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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 16-JUN-2026 09:10 AM Dkt. 23 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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IN THE MATTER OF THE GUARDIANSHIP OF I.W. AND T.E.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NOS. 5GD151000035 and 5GD151000036 (consolidated))
JUNE 16, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT JUDGE MORIKONE, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY EDDINS, J.
I.
The right of a parent to raise their child is a fundamental
liberty at the heart of our state’s constitutional tradition.
This case explores the status of that interest when a parent
consents to guardianship.
The right remains intact.
We hold two things. *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
First, the rebuttable presumption that a fit parent acts in
the best interest of their child extends to guardianship
proceedings. Consenting to a guardian’s care is not a waiver.
The presumption endures despite that consent.
Second, before a family court may set that presumption
aside, the due process and privacy protections in article I,
sections 5 and 6 of the Hawaiʻi Constitution require clear and
convincing evidence of unfitness.
We affirm the Intermediate Court of Appeals (ICA) in
result. The ICA identified the correct standard. But we anchor
the standard in the Hawaiʻi Constitution.
Two further points. Clear and convincing evidence governs
fitness. The preponderance of the evidence standard governs the
best interest analysis under Hawaiʻi Revised Statutes (HRS)
§ 560:5-210(b) (2018) and HRS § 571-46 (2018). And the parental
presumption is not a conclusive rule that makes guardianship
terminable at will. It is a substantial, but rebuttable,
preference that must inform the family court’s assessment of the
child’s best interest.
We return the case to the family court for a fitness
determination under the correct standard.
II.
A. Factual Background
This is a contested guardianship over two children. Now
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teenagers, they have lived with their grandparents for nearly a
decade. The grandparents seek to keep and expand their role.
The mother wants to end it.
Toby and Izzy are the biological children of Mother and
Father. (Pseudonyms are used for the minors.) Mother and
Father were never married. They broke up when Mother was six
months pregnant with their second child, Izzy.
Toby is now sixteen. Izzy is thirteen.
Grandmother is Mother’s mother.
In January 2016, when Toby was five and Izzy was two,
Mother and Father consented to appoint Grandmother and her
husband, Grandfather, as unlimited co-guardians for them. The
guardianship petitions filed by Grandmother and Grandfather
(Guardians) stated that “Mother requests assignment of
guardianship to petitioners because of inability to care for the
[children] due to personal, emotional and financial issues.”
Mother testified that she was then unemployed, on food
stamps, without stable housing, and not “in the best
position . . . to meet [the children’s] needs and to care for
them.” She viewed the arrangement as temporary.
Over four years later, in March 2020, Mother and her
boyfriend filed petitions to terminate the children’s
guardianships.
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Within two months, Grandmother and Grandfather moved the
family court to relocate the children from Kauaʻi to Oregon,
citing Grandmother’s loss of work during the COVID-19 pandemic.
After mediation, the parties stipulated in July 2020 that
Grandfather would resign as co-guardian; Grandmother would
continue as a limited guardian; and the children would move to
Oregon and live with her during the school year, subject to
Mother’s custodial time during breaks. The guardianship
termination petitions went no further.
Since the move, Toby has been diagnosed with autism and
ADHD, and receives specialized school services. Both children
began receiving therapy in Kauaʻi, then continued services in
Oregon. Caring for the children’s emotional and special needs,
and Mother’s ability to manage that care, became a focal point
of the fitness dispute that followed.
In December 2021, Grandmother moved to undo the 2020
stipulation, reinstating Grandfather as co-guardian and
restoring the guardianship to unlimited.
Then, in February 2022, Mother and her boyfriend filed
joint petitions to terminate the guardianships for both
children. The boyfriend’s standing to participate in the family
court proceedings as an “interested party” was challenged in
circuit court, but Guardians later withdrew the motion. At the
ICA, Guardians unsuccessfully attempted to strike the
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boyfriend’s briefing. The Guardians have not renewed their
objections here, and we do not address them.
Father does not seek custody. He supports continuing the
guardianship.
1. Family Court Decision
The family court held four days of hearings on the
termination petition and motion to modify the guardianship.
In January 2023, the family court granted Grandmother’s
motion to undo the 2020 stipulation. It denied the petitions
for termination of the children’s guardianships.
The family court applied HRS § 560:5-210(b) to the
termination question. It invoked the parental presumption from
In re Guardianship of Jane Doe, subject to rebuttal. See In re
Guardianship of Doe, 93 Hawaiʻi 374, 385, 4 P.3d 508, 519 (App.
2000).
The court assessed Mother’s fitness under the preponderance
of the evidence standard. See In re Guardianship of Doe, 106
Hawaiʻi 75, 78, 101 P.3d 684, 687 (App. 2004) (applying a
preponderance of the evidence standard to fitness in
guardianship proceedings). It found her unfit. The court
grounded that determination on Mother’s “limited involvement
with her children and her demonstrated lack of knowledge or
ability to take into account [the children’s] emotional and
special needs.”
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The court found that Mother did not “demonstrate an
understanding of [Izzy’s] emotional needs nor [Toby’s] special
needs relating to his ADHD and [a]utism diagnos[e]s.” The
court-appointed guardian ad litem testified that Mother was
unable to parent the children. And Mother, the court found,
“made little to no attempt to show that it is in the children’s
best interest to have the guardianship terminated.” She relied
solely on the parental presumption. Because Mother was not fit,
the court concluded, the presumption was rebutted.
The family court then reviewed the HRS § 571-46 best
interest factors. It concluded that Grandmother and
Grandfather’s unlimited guardianship served the best interest of
the children.
Mother and her boyfriend appealed.
2. ICA Memorandum Opinion
The ICA held that the family court applied the wrong
standard of proof when it found Mother unfit to parent Toby and
Izzy. In its formulation, “the court may override parental
consent in a proceeding to appoint a guardian or to terminate a
guardianship created by parental consent only if it finds by
clear and convincing evidence that the parent is unfit, i.e., is
unwilling or unable to exercise their parental rights.”
(Emphasis added.) Matter of Guardianship of I.W., No. CAAP-23-
0000356, 2025 WL 3215249, at *15 (Haw. App. Nov. 18, 2025).
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The ICA identified HRS § 560:5-210 as the operative statute
for termination and other post-appointment proceedings. It
authorizes “any order that is in the best interest of the ward.”
The court then turned to its earlier decision in In re
Guardianship of Doe, 106 Hawaiʻi at 78, 101 P.3d at 687, which
held that the preponderance standard governs parental fitness
when appointing a guardian. The statute at issue was HRS
§ 560:5-204 (2018), which covers the initial appointment of
guardians. Id.
In our case, however, the ICA reasoned that the
preponderance standard in Guardianship of Doe (a holding based
on a 1993 version of HRS § 560:5-204) was superseded by the
legislature’s 2004 enactment of HRS § 560:5-204, modeled on the
1998 Uniform Guardianship and Protective Proceedings Act. The
new HRS § 560:5-204 not only required the appointment be in the
best interest of the child, but also required that either “the
parents consent, all parental rights have been terminated, or
the parents are unwilling or unable to exercise their parental
rights.” (Emphasis added.) Matter of Guardianship of I.W.,
2025 WL 3215249, at *15. Under HRS § 587A-33 (2018), parental
rights may be terminated when “clear and convincing evidence
exists that the parent is unwilling and unable to provide the
child with a safe family home, and it is not reasonably
foreseeable that the parent will become able to do so within a
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reasonable period of time.” Id. Thus, the ICA ruled, the clear
and convincing standard should apply.
The legislature has not specified the standard of proof
required for guardianship modification and termination
proceedings. The ICA filled the gap. Citing fundamental
liberty interests and legislative history describing
guardianship as a last resort, it held that clear and convincing
evidence of unfitness is required.
Nor was the error harmless. The court examined the two
factors the family court relied on to assess fitness: (1)
Mother’s involvement and communication with the children, and
(2) her knowledge of and ability to address the children’s
emotional, educational, and special needs. On neither factor,
the ICA held, was the evidence so overwhelming that the wrong
standard could not have affected the outcome.
The ICA vacated in part and remanded the guardianship order
for further proceedings.
Grandmother and Grandfather sought cert.
III.
A. The Parental Presumption Applies in Guardianship Proceedings
This court has not expressly held that a fit parent is
presumed to act in the best interest of their child in
guardianship proceedings. We do so now.
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The parental presumption begins with Troxel v. Granville,
530 U.S. 57 (2000). There, the United States Supreme Court held
that “there is a presumption that fit parents act in the best
interests of their children.” Id. at 68. “[S]o long as a
parent adequately cares for [their] children (i.e., is fit),
there will normally be no reason for the State to inject itself
into the private realm of the family to further question the
ability of that parent to make the best decisions concerning the
rearing of that parent’s children.” Id. at 68-69.
A parent’s interest in raising their children is protected
under article I, sections 5 and 6 of the Hawaiʻi Constitution.
Haw. Const. art. I, §§ 5, 6; In the Interest of JH, 152 Hawaiʻi
373, 378, 526 P.3d 350, 355 (2023); In re Doe, 99 Hawaiʻi 522,
533, 57 P.3d 447, 458 (2002). Parents “have a fundamental right
to care, control, and have custody of their children.” Interest
of JH, 152 Hawaiʻi at 378, 526 P.3d at 355. The right to privacy
prevents the government from unjustified interference with
“child rearing and education.” Doe v. Doe, 116 Hawaiʻi 323, 334,
172 P.3d 1067, 1078 (2007).
This court has already applied the Troxel presumption to
third-party visitation. See Doe, 116 Hawaiʻi at 333, 172 P.3d at
1077 (grandparent visitation). Guardianships invoke similarly
significant rights. A guardian holds the “powers of a parent
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regarding the [child’s] support, care, education, health, and
welfare.” HRS § 560:5-208(a) (2018). If the presumption
protects a parent’s choice to limit a grandparent’s visit, it
protects a parent’s choice to end an arrangement that displaces
day-to-day parenting.
Other jurisdictions agree. Courts “have held that a parent
does not relinquish [their] fundamental liberty interest in
raising [their] child by consenting to a guardianship, and,
thus, is entitled to the Troxel presumption in a proceeding to
terminate the guardianship.” In re Guardianship of Reena D., 35
A.3d 509, 513 (N.H. 2011); Morris v. Clark, 572 S.W.3d 366, 371
(Ark. 2019); In re Guardianship of D.J., 682 N.W.2d 238, 246
(Neb. 2004); Hunter v. Hunter, 771 N.W.2d 694, 705 (Mich. 2009);
see also In re D.I.S., 249 P.3d 775, 784 (Colo. 2011) (“[T]he
Troxel presumption must prevail over any competing presumption
in favor of an established custodial environment, including
guardianships.”).
The rule applies equally to the guardianship context. We
hold that the parental presumption as to the best interest of
the child also applies in guardianship proceedings.
B. Due Process Requires Clear and Convincing Evidence of Unfitness
We agree with the ICA. Unfitness must be shown by clear
and convincing evidence. But we part ways on how to get there.
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The ICA built its holding on HRS § 560:5-204. That statute
controls the initial appointment of a guardian. It requires
either parental consent, a prior parental termination order, or
a showing that parents are unwilling or unable to parent. HRS
§ 560:5-204. The ICA reasoned that because termination of
parental rights is itself a clear and convincing matter under
HRS § 587A-33, the appointment statute imports the same
standard, one that carries over to existing proceedings
involving guardianship.
Several steps in that chain give us pause. HRS § 560:5-204
addresses initial appointment, not modification or termination.
The legislature placed those proceedings in a separate section,
HRS § 560:5-210, a statute that speaks only to the “best
interest of the ward” inquiry. HRS § 560:5-210. Reading the
appointment statute to silently set the burden of proof for
post-appointment proceedings asks HRS § 560:5-204 to do work it
wasn’t written to do. And the legislative history surrounding
the 2004 amendments – describing guardianships as a “last
resort” and stressing scope and flexibility – speaks to design,
not burden of proof. See H. Stand. Comm. Rep. No. 597, in 2004
House Journal, at 1639.
Nowhere did the legislature mention “clear and convincing,”
or cross-reference HRS § 587A-33. We decline to read the
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termination of parental rights standard into a guardianship
statute through legislative silence.
“Parents have a substantive liberty interest to parent
their child.” Interest of JH, 152 Hawaiʻi at 378, 526 P.3d at
355. This interest is also entitled to due process protection.
DJ v. CJ, 147 Hawaiʻi 2, 17, 464 P.3d 790, 805 (2020). “[A]
parent’s right to the care, custody, and control of the parent’s
child is a fundamental liberty interest protected by the United
States and Hawaiʻi constitutions and entitled to due process
protection.” Id.
Because a guardian holds “the powers of a parent regarding
the ward’s support, care, education, health, and welfare,”
guardianship proceedings implicate a parent’s fundamental
rights. HRS § 560:5-208(a).
To identify what process is due, we balance the three
Mathews factors: (1) the private interest affected by official
action, (2) the risk of erroneous deprivation of such interest
through the procedures used, and the value of additional
procedural safeguards, and (3) the government’s interest. State
v. Bani, 97 Hawaiʻi 285, 297, 36 P.3d 1255, 1267 (2001) (citing
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)); Santosky v.
Kramer, 455 U.S. 745, 758 (1982) (the Mathews balancing test
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demonstrated that using the preponderance standard in parental
terminations is “inconsistent with due process”).
The private interest at stake in guardianship proceedings
is substantial. A parent who moves to terminate a guardianship
wants to reclaim the rights that define the parent-child
relationship: custody, educational and medical decisions, and
the small everyday choices that over the years shape their
child’s life. Even when a guardianship is nominally temporary,
a finding of unfitness operates as a long-term barrier to
reunification.
The Maine Supreme Court observed that parental rights
decisions fall on a continuum of finality. “[A]lthough the
appointment of a guardian . . . does not result in the same
degree of finality as a termination of parental rights or a
determination of de facto parenthood, the appointment is more
final than a jeopardy order in a child protection proceeding,
and parental rights are transferred to the guardian almost in
their entirety.” In re Guardianship of Chamberlain, 118 A.3d
229, 241 (Me. 2015). So “[w]hen the government authorizes an
extensive and potentially permanent intrusion into fundamental
constitutional rights, the risk of erroneous deprivation of a
parent’s rights is high if the decision-maker does not have a
greater-than-ordinary degree of confidence in the correctness of
its factual findings — namely, the degree of confidence afforded
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by the standard of proof by clear and convincing evidence.” Id.
(emphasis added).
The line between parental termination and a long-lasting
guardianship is thin.
The risk of erroneous deprivation runs in one direction.
The HRS § 571-46(b) best interest factors in guardianship
proceedings tend to favor continued guardianship. Not because
the parent is unfit, but because guardianship itself produces
the very evidence used to sustain that status quo. Guardians by
definition are the ones caregiving and meeting the child’s day-
to-day needs. They will likely prevail on factors keyed to “the
history of caregiving or parenting,” and their ability to meet
physical health, safety, educational, and emotional needs. See
HRS § 571-46(b)(4), (6)-(9).
The longer the arrangement lasts, the deeper that advantage
grows. A parent who has stepped back to let a guardian step in
has, by the act of stepping back, weakened their own showing on
the caregiving and needs-meeting factors. The preponderance
standard for fitness gives the structural tilt full effect. A
clear and convincing standard restores the balance.
The government’s interest is two-fold. The State has a
compelling interest in child welfare. See A.A. v. B.B., 139
Hawaiʻi 102, 116 n.22, 384 P.3d 878, 892 n.22 (2016) (“The
State’s compelling interest and duty with regard to the welfare
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of children has long been recognized in this jurisdiction.”).
But it also has a strong interest in family reunification, and
encouraging, not deterring, parents from consenting to temporary
guardianships to protect their children. See In re D.I.S., 249
P.3d at 787.
A demanding standard for unfitness serves both interests at
once. It keeps a guardianship in place where the evidence
warrants it, and it preserves the parents’ path back when it
does not. Other jurisdictions have reached the same conclusions
under similar reasoning. See Matter of Guardianship of L.Y.,
968 N.W.2d 882, 899 (Iowa 2022) (“Because of the liberty
interests at stake, the clear and convincing evidence standard
is the appropriate one to apply in proceedings to terminate
guardianships of minor children established with parental
consent.”); Guardianship of Kelvin, 114 N.E.3d 102, 109 (Mass.
App. Ct. 2018); Guardianship of Reena D., 35 A.3d at 515.
We hold that the due process and privacy protections of the
Hawaiʻi Constitution require clear and convincing evidence of
parental unfitness before a family court may decline to apply
the presumption that a fit parent acts in the best interest of
the child. To the extent In re Doe held otherwise, it is
overruled. See 106 Hawaiʻi at 78, 101 P.3d at 687.
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C. The Best Interest Analysis Remains a Preponderance Inquiry
Two more points. First, what the heightened standard does
not require.
Clear and convincing evidence controls the threshold
question of fitness. It does not govern the best interest
analysis.
HRS § 560:5-210(b) directs that any post-appointment order
be in the best interest of the child, and HRS § 571-46 supplies
the familiar factors. Those factors are weighed under a
preponderance of the evidence standard. In re D.I.S., 249 P.3d
at 786 (“[T]he Troxel presumption and the court’s statutory role
in considering what is in the child’s best interests can be
accommodated through the guardian bearing the burden of proof by
a preponderance of the evidence.”).
Mother and her boyfriend suggest a different rule: once a
parent is found fit, the best interest inquiry ends and
termination of guardianship automatically follows.
The parental presumption neither requires termination at
the fit parent’s behest, nor displaces the best interest
analysis central to HRS § 560:5-210. As another court reasoned,
“nothing in our constitutional or statutory scheme, the common
law, or general practice supports the proposition that the
guardianship is terminable at will.” Boisvert v. Harrington,
796 A.2d 1102, 1108 (Vt. 2002); see also A.A., 139 Hawaiʻi at
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106, 384 P.3d at 882 (“In cases involving child custody, it is
well established that the guiding consideration is the best
interests of the child.”).
We also decline to import the “harm to the child” standard
from Doe v. Doe. See 116 Hawaiʻi at 336, 172 P.3d at 1080.
Guardianship involves daily custody, not once-in-a-while visits.
The stakes for both parent and child are higher and the
dimensions of decision-making are broader.
A rule automatically granting a fit parent’s termination
petition unless removal would harm the child collapses fitness
and best interest into a single inquiry. It overrides the
legislature’s decision to keep them separate. Other
jurisdictions do not apply the “harm to the child” rule in the
guardianship termination context. See Boisvert, 796 A.2d at
1107-08; In re D.I.S., 249 P.3d at 786; Hunter, 771 N.W.2d at
705; Guardianship of Reena D., 35 A.3d at 515. We follow them.
So the rule is straightforward. When a parent is found
fit, a presumption operates in favor of termination. Guardians
may rebut that presumption by showing, under a preponderance of
the evidence, that continued guardianship serves the child’s
best interest. See In re D.I.S., 249 P.3d at 786.
D. How the Presumption Operates in the Best Interest Analysis
We recognize the parental presumption in the guardianship
context for the first time. A word on how it should work.
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The presumption carries real weight. It’s not just a
conceptual checkbox on the way to HRS § 571-46’s analysis. When
a family court considers a factor that favors the guardian, the
presumption requires asking whether that surface-level advantage
reflects the parent’s true ability to parent rather than the
conditions the guardianship itself created.
Consider an example. A parent who once met their child’s
basic physical, emotional, and safety needs may lack a recent
record of doing so. The guardian has been doing it. A guardian
with superior financial resources may currently meet those needs
more comfortably. Neither fact, standing alone, should be
allowed to tip the scale. The presumption demands that the
court take account of the structural reasons the guardian’s
showing looks strong and the parent’s looks thin.
But the presumption is not absolute. Time matters.
Attachment matters. The deeper the child’s roots in the
guardian’s home, the more weight the guardian’s evidence may
carry. As the Colorado Supreme Court put it, “the longer the
child resides with and is cared for by guardians, the more
likely it may be that guardians, despite the presumption in
parents’ favor, will be able to show . . . that the best
interests of the child are served by continuation of the
guardianship.” In re D.I.S., 249 P.3d at 787.
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A parent’s brief absence from caregiving should not weigh
against them as heavily as a parent’s prolonged one. See HRS
§ 571-46(b)(4) (the history of caregiving or parenting).
We leave the case-specific best interest determination to
the family court. The presumption gives parental rights the
constitutional credence they deserve, without taking from the
family court what family courts do best – protect children based
on facts, not formulas.
E. The Constitutional Error Was Not Harmless
The family court found Mother unfit by a preponderance of
the evidence. That was constitutional error. And the error was
not harmless.
A due process violation that touches a fundamental parental
right is not the kind of mistake an appellate court overlooks.
See Doe v. Doe, 120 Hawaiʻi 149, 170, 202 P.3d 610, 631 (App.
2009). Because it found Mother unfit, the family court declined
to apply the parental presumption to the best interest analysis.
The error was structural in operation. It set the level of
proof at which Mother’s constitutionally protected interest
could be set aside. The bulk of the family court’s analysis –
best interests under HRS § 571-46 – progressed without the
parental presumption because the fitness finding had already
removed it from the equation.
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On a record where the threshold determination is
constitutionally crumbly, what follows cannot be salvaged.
We affirm the ICA’s remand.
The family court must reassess Mother’s fitness under the
clear and convincing evidence standard. See In re Doe, 95
Hawaiʻi 183, 190, 20 P.3d 616, 623 (2001) (“[I]t is well-settled
that an appellate court will not pass upon issues dependent upon
the credibility of witnesses and the weight of the evidence;
this is the province of the trier of fact.”).
If the family court finds Mother fit, it must apply the
parental presumption to the best interest analysis. If it finds
her unfit under the proper standard, it may proceed under HRS
§ 571-46 without the presumption.
IV.
We affirm the ICA’s November 18, 2025 Memorandum Opinion
and December 19, 2025 Judgment on Appeal. We remand to the
family court for further proceedings consistent with this
opinion.
Kai Lawrence /s/ Vladimir P. Devens (on the briefs) for Petitioners /s/ Sabrina S. McKenna
Mother /s/ Todd W. Eddins (on the briefs) Respondent /s/ Lisa M. Ginoza
/s/ Kevin T. Morikone