NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 24-MAY-2023 08:06 AM Dkt. 97 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
IN THE INTEREST OF AA
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 16-00249)
MEMORANDUM OPINION (By: Leonard, Presiding Judge, McCullen and Chan, JJ.)
Respondent-Appellant Father appeals from the Family
Court of the First Circuit's June 24, 2022 order denying his
motion for reconsideration. 1 On appeal, Father alleges that the
family court violated his due process rights. 2 Based on the
1 The Honorable Andrew T. Park presided.
2 Father also contends that the family court committed structural error by failing to appoint counsel for the unknown natural father. See In re JH, 152 Hawai‘i 373, 380, 526 P.3d 350, 357 (2023) (clarifying that the family court may discharge court-appointed counsel when a parent inexcusably fails to appear in court, stating that, absent a client, "what's an attorney to do?"). Based on our decision in this case, we need not address this issue. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
discussion below, we affirm the family court's denial of
Father's motion for reconsideration for lack of jurisdiction.
I. BACKGROUND
A. Termination Of Parental Rights
In November 2016, Mother gave birth to AA and
requested he be placed in foster care. Upon discharge from the
hospital, Petitioner-Appellee Department of Human Services (DHS)
placed AA with Intervenors-Appellees resource caregivers
(Caregivers).
On December 7, 2016, DHS filed a petition for
temporary foster custody of AA and initiated the underlying case
(Underlying Case). AA entered foster care in December 2016; AA
was less than a month old. About a month later, the family
court appointed Court Appointed Special Advocates Program (CASA)
as AA's guardian ad litem.
Mother failed to provide DHS with sufficient
information to identify or locate the then-unknown natural
father of AA. As a result, the family court permitted service
upon unknown natural father by publication. Following service
by publication, DHS moved to terminate Mother's and unknown
natural father's parental rights.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On February 27, 2018, the family court terminated
Mother's and unknown natural father's parental rights.
B. First Motion To Intervene And Appeal
On October 23, 2018, DHS filed a motion for immediate
review, explaining that Father contacted DHS claiming to be AA's
biological father and that AA was in the process of being
adopted by Caregivers. A genetic test confirmed that Father was
the biological father of AA.
On February 11, 2019, Father moved to intervene
(Father's Motion to Intervene); AA was a little over two years
old. 3
The family court granted the motion, but later set
aside that order because Father was still in default. The
family court denied Father's motion to set aside the default,
and Father appealed. This court explained that Father could not
proceed with a motion to intervene until his default was set
aside. In re AA, 148 Hawai‘i 278, 472 P.3d 1123, No. CAAP-19-
0000711, 2020 WL 5796177 at *13 (App. Sept. 29, 2020) (mem.).
On certiorari review, the Hawai‘i Supreme Court held
that the family court should have analyzed Father's motion to
intervene under Hawai‘i Family Court Rules (HFCR) Rule 24 without
requiring him first to set aside the default judgment, and
Father's Motion to Intervene superseded a January 28, 2019 motion to 3
intervene.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
remanded the case for further proceedings. In re AA, 150 Hawai‘i
270, 284-89, 500 P.3d 455, 469-74 (2021). The supreme court,
however, upheld the family court's (1) service of Father via
publication and (2) denial of Father's request to set aside
default and termination of Father's parental rights by default.
150 Hawai‘i at 284-89, 500 P.3d at 469-74.
C. Renewed Motion To Intervene
On February 17, 2022, Father again moved to intervene
(Renewed Motion to Intervene); AA was a little over five years
old.
Father argued that he met the standards set forth in
HFCR Rule 24(a)(2) for mandatory intervention and HFCR
Rule 24(b)(1) for permissive intervention. Father relied on In
re Doe, 109 Hawai‘i 399, 126 P.3d 1086 (2006) and Hawaii Revised
Statutes (HRS) § 587A-33(d) (2018). 4
On March 14, 2022, the family court heard and orally
denied Father's Renewed Motion to Intervene.
On March 22, 2022, the family court granted AA's
adoption to Caregivers.
4 HRS § 587A-33(d) provides: "A family member may be permitted visitation with the child at the discretion of the permanent custodian. The court may review the exercise of such discretion and may order that a family member be permitted such visitation as is in the best interests of the child."
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On April 25, 2022, the family court entered the order
denying Father's Renewed Motion to Intervene.
On April 27, 2022, the family court revoked DHS's
permanent custody and terminated its jurisdiction over the case
in light of AA's adoption.
On May 5, 2022, Father moved for reconsideration of
the denial of his Renewed Motion to Intervene (Motion for
Reconsideration).
On June 7, 2022, the family court denied Father's
Motion for Reconsideration explaining that it lacked
jurisdiction over the case, and even if it had jurisdiction,
Father presented no new argument:
Having taken judicial notice of the records, file, and proceeding herein; having had the chance now in addition to the pleadings filed respectively by movant, CASA, and the [Caregivers] on May 5, 16th, and 25th; and now having had opportunity to hear and consider additional oral argument, for reasons contained in the two opposition memoranda filed by the CASA program and the [Caregivers], as joined by [DHS], the Court respectfully denies the motion for reconsideration filed by [Father].
As an additional factor, as was pointed out in the CASA's memorandum, this Court did terminate its own jurisdiction of the case upon the granting of the adoption, which I suppose is the first hurdle. Even if this Court could have granted the reconsideration based on some vestigial or lingering jurisdiction that it had, the Court finds that there's no new argument or point of law presented in the reconsideration motion and that the Court did in fact correctly apply the law at the initial hearing on the motion filed by [Father] that . . . reconsideration was sought for, I should say.
On June 24, 2022, the family court entered the Order Denying the
Motion for Reconsideration. Father timely appealed.
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 24-MAY-2023 08:06 AM Dkt. 97 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
IN THE INTEREST OF AA
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-S NO. 16-00249)
MEMORANDUM OPINION (By: Leonard, Presiding Judge, McCullen and Chan, JJ.)
Respondent-Appellant Father appeals from the Family
Court of the First Circuit's June 24, 2022 order denying his
motion for reconsideration. 1 On appeal, Father alleges that the
family court violated his due process rights. 2 Based on the
1 The Honorable Andrew T. Park presided.
2 Father also contends that the family court committed structural error by failing to appoint counsel for the unknown natural father. See In re JH, 152 Hawai‘i 373, 380, 526 P.3d 350, 357 (2023) (clarifying that the family court may discharge court-appointed counsel when a parent inexcusably fails to appear in court, stating that, absent a client, "what's an attorney to do?"). Based on our decision in this case, we need not address this issue. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
discussion below, we affirm the family court's denial of
Father's motion for reconsideration for lack of jurisdiction.
I. BACKGROUND
A. Termination Of Parental Rights
In November 2016, Mother gave birth to AA and
requested he be placed in foster care. Upon discharge from the
hospital, Petitioner-Appellee Department of Human Services (DHS)
placed AA with Intervenors-Appellees resource caregivers
(Caregivers).
On December 7, 2016, DHS filed a petition for
temporary foster custody of AA and initiated the underlying case
(Underlying Case). AA entered foster care in December 2016; AA
was less than a month old. About a month later, the family
court appointed Court Appointed Special Advocates Program (CASA)
as AA's guardian ad litem.
Mother failed to provide DHS with sufficient
information to identify or locate the then-unknown natural
father of AA. As a result, the family court permitted service
upon unknown natural father by publication. Following service
by publication, DHS moved to terminate Mother's and unknown
natural father's parental rights.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On February 27, 2018, the family court terminated
Mother's and unknown natural father's parental rights.
B. First Motion To Intervene And Appeal
On October 23, 2018, DHS filed a motion for immediate
review, explaining that Father contacted DHS claiming to be AA's
biological father and that AA was in the process of being
adopted by Caregivers. A genetic test confirmed that Father was
the biological father of AA.
On February 11, 2019, Father moved to intervene
(Father's Motion to Intervene); AA was a little over two years
old. 3
The family court granted the motion, but later set
aside that order because Father was still in default. The
family court denied Father's motion to set aside the default,
and Father appealed. This court explained that Father could not
proceed with a motion to intervene until his default was set
aside. In re AA, 148 Hawai‘i 278, 472 P.3d 1123, No. CAAP-19-
0000711, 2020 WL 5796177 at *13 (App. Sept. 29, 2020) (mem.).
On certiorari review, the Hawai‘i Supreme Court held
that the family court should have analyzed Father's motion to
intervene under Hawai‘i Family Court Rules (HFCR) Rule 24 without
requiring him first to set aside the default judgment, and
Father's Motion to Intervene superseded a January 28, 2019 motion to 3
intervene.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
remanded the case for further proceedings. In re AA, 150 Hawai‘i
270, 284-89, 500 P.3d 455, 469-74 (2021). The supreme court,
however, upheld the family court's (1) service of Father via
publication and (2) denial of Father's request to set aside
default and termination of Father's parental rights by default.
150 Hawai‘i at 284-89, 500 P.3d at 469-74.
C. Renewed Motion To Intervene
On February 17, 2022, Father again moved to intervene
(Renewed Motion to Intervene); AA was a little over five years
old.
Father argued that he met the standards set forth in
HFCR Rule 24(a)(2) for mandatory intervention and HFCR
Rule 24(b)(1) for permissive intervention. Father relied on In
re Doe, 109 Hawai‘i 399, 126 P.3d 1086 (2006) and Hawaii Revised
Statutes (HRS) § 587A-33(d) (2018). 4
On March 14, 2022, the family court heard and orally
denied Father's Renewed Motion to Intervene.
On March 22, 2022, the family court granted AA's
adoption to Caregivers.
4 HRS § 587A-33(d) provides: "A family member may be permitted visitation with the child at the discretion of the permanent custodian. The court may review the exercise of such discretion and may order that a family member be permitted such visitation as is in the best interests of the child."
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On April 25, 2022, the family court entered the order
denying Father's Renewed Motion to Intervene.
On April 27, 2022, the family court revoked DHS's
permanent custody and terminated its jurisdiction over the case
in light of AA's adoption.
On May 5, 2022, Father moved for reconsideration of
the denial of his Renewed Motion to Intervene (Motion for
Reconsideration).
On June 7, 2022, the family court denied Father's
Motion for Reconsideration explaining that it lacked
jurisdiction over the case, and even if it had jurisdiction,
Father presented no new argument:
Having taken judicial notice of the records, file, and proceeding herein; having had the chance now in addition to the pleadings filed respectively by movant, CASA, and the [Caregivers] on May 5, 16th, and 25th; and now having had opportunity to hear and consider additional oral argument, for reasons contained in the two opposition memoranda filed by the CASA program and the [Caregivers], as joined by [DHS], the Court respectfully denies the motion for reconsideration filed by [Father].
As an additional factor, as was pointed out in the CASA's memorandum, this Court did terminate its own jurisdiction of the case upon the granting of the adoption, which I suppose is the first hurdle. Even if this Court could have granted the reconsideration based on some vestigial or lingering jurisdiction that it had, the Court finds that there's no new argument or point of law presented in the reconsideration motion and that the Court did in fact correctly apply the law at the initial hearing on the motion filed by [Father] that . . . reconsideration was sought for, I should say.
On June 24, 2022, the family court entered the Order Denying the
Motion for Reconsideration. Father timely appealed.
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
II. STANDARD OF REVIEW
"It is axiomatic that mootness is an issue of subject
matter jurisdiction. Whether a court possesses subject matter
jurisdiction is a question of law reviewable de novo." Hamilton
ex rel. Lethem v. Lethem, 119 Hawai‘i 1, 4-5, 193 P.3d 839, 842-
43 (2008) (internal quotation marks omitted) (quoting
Kaho‘ohanohano v. Dep't of Hum. Servs., 117 Hawai‘i 262, 281, 178
P.3d 538, 557 (2008)).
"When reviewing a case where the circuit court lacked
subject matter jurisdiction, the appellate court retains
jurisdiction, not on the merits, but for the purpose of
correcting the error in jurisdiction." Kaaukai v. Cnty. of
Maui, 126 Hawai‘i 124, 267 P.3d 708, No. 29387, 2012 WL 149871 at
*5 (App. Jan. 18, 2012) (SDO) (brackets omitted) (quoting Koga
Eng'g & Constr., Inc. v. State, 122 Hawai‘i 60, 84, 222 P.3d 979,
1003 (2010)).
III. DISCUSSION
In his points of error, Father focuses on the denial
of his Renewed Motion to Intervene (as opposed to the denial of
his Motion for Reconsideration), contending that the family
court violated his due process rights. As he did below, Father
argues that he met the requirements for mandatory intervention
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under HFCR Rule 24(a)(2) and permissive intervention under HFCR
Rule 24(b)(1).
In his Renewed Motion to Intervene, Father requested
"an assessment of Father for reunification/visitation with the
minor child and notification to all interested parties in
preserving Father's rights in all cases."
But reunification was not at issue. By declining to
set aside Father's default and termination of parental rights by
default, the Hawai‘i Supreme Court's decision in In re AA
affirmed the family court's termination of Mother's and Father's
parental rights to AA and award of permanent custody of AA to
DHS. See In re AA, 150 Hawai‘i at 285-86, 500 P.3d at 470-71.
In other words, In re AA ended Father's legal challenges to the
family court's termination of parental rights and cleared the
path for Caregivers to adopt AA. HRS § 578-2(c)(1)(K) (2018)
(providing that an adoption may occur without the consent of
"[a] parent whose parental and custodial duties and rights have
been divested by an award of permanent custody pursuant to
section 587A-33").
Father's remaining right was visitation with AA under
HRS § 587A-33(d). But, for purposes of this appeal, even if
Father's Renewed Motion to Intervene met the requirements of
HFCR 24(a)(2) or (b)(1), AA's adoption about two months later
extinguished Father's residual interest in visitation. In re
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Doe, 109 Hawai‘i at 410, 126 P.3d at 1097 (explaining that "such
[HRS § 587A-33(d)] rights and interests terminate on the
condition the children are adopted or reach the age of
eighteen").
Thus, any challenge to the family court's denial of
Father's Renewed Motion to Intervene was rendered moot upon AA's
adoption.
As for the denial of Father's Motion for
Reconsideration, AA's adoption 45 days earlier terminated the
family court's jurisdiction over the Underlying Case because AA
was no longer subject to harm. HRS § 587A-5 (2018) (providing
that a family court has jurisdiction over any child found within
the State of Hawai‘i that "is subject to imminent harm, has been
harmed, or is subject to threatened harm by the acts or
omissions of the child's family"); HRS § 587A-4 (2018) (defining
family, in relevant part, as the legal parent of a child); HRS
§ 578-16(b) (2018) (providing in relevant part that "[t]he
former legal parent or parents of an adopted individual and any
other former legal kindred shall not be considered to be related
to the individual"). The family court recognized this and
entered an order terminating the Underlying Case on April 27,
2022.
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Thus, the family court had no jurisdiction over
Father's May 5, 2022 Motion for Reconsideration.
IV. CONCLUSION
Therefore, we affirm the family court's June 24, 2022
order denying Father's Motion for Reconsideration for lack of
jurisdiction.
DATED: Honolulu, Hawai‘i, May 24, 2023.
On the briefs: /s/ Katherine G. Leonard Presiding Judge Georgia K. McMillan, For Respondent-Appellant. /s/ Sonja M.P. McCullen Associate Judge Jonathan M. Fujiyama, Julio C. Herrera, /s/ Derrick H.M. Chan Deputy Attorneys General, Associate Judge for Petitioner-Appellee.
Francis T. O'Brien, for Intervenors-Appellees.
Shelby N. Ferrer, for Court Appointed Special Advocates Program.