In Re: The Adoption of a Male Child

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-FEB-2024
07:51 AM
Dkt. 98 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE ADOPTION OF A MALE CHILD
by C.C. and J.C., Petitioners-Appellees

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1AD221000013)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

C.C. and J.C. (together, Adoptive Parents) adopted
Child. Child's natural father A.M. moved to overturn the
adoption. The Family Court of the First Circuit denied A.M.'s
motion by order entered on April 4, 2023.1 A.M. appeals. We
affirm.
Child was born in 2016. In re A.A., 150 Hawai#i 270,
273, 500 P.3d 455, 458 (2021) (AA I), cert. denied sub nom. McCoy
v. Haw. Dep't of Human Servs., No. 21-1467, 143 S. Ct. 94 (U.S.
Oct. 3, 2022) (mem.). One week later, DHS filed a petition for
foster custody (the CPS Case). The family court defaulted the
then-unknown natural father for failing to appear after service
by publication. The family court gave DHS foster custody of
Child. Child was placed with Adoptive Parents. The family court
eventually terminated the parental rights of Child's natural

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The Honorable Andrew T. Park presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

mother and then-unknown father and awarded DHS permanent custody
of Child. The family court approved adoption as the permanency
plan for Child on August 14, 2018.
On October 9, 2018, A.M. contacted DHS about "the
process of legally bringing [Child] home." AA I, 150 Hawai#i at
274, 500 P.3d at 459. A.M. had been adjudicated as Child's
natural father in a separate paternity case. A.M. moved to
intervene in the CPS Case. He was ordered to first move to set
aside his default and the termination of his parental rights.
After trial, the family court denied A.M.'s motion to set aside
his default and his motion to intervene. Id. at 278, 500 P.3d at
463. A.M. appealed.
The supreme court held that service by publication did
not violate A.M.'s constitutional rights, AA I, 150 Hawai#i at
285, 500 P.3d at 470, and the family court did not err by
declining to vacate A.M.'s default or the termination of his
parental rights, id. at 285-86, 500 P.3d at 470-71. But it also
held that A.M. wasn't required to set aside his default or the
termination of his parental rights before proceeding with his
motion to intervene. Id. at 286, 500 P.3d at 471. The CPS Case
was remanded to the family court.
On February 7, 2022, DHS initiated the case below (the
Adoption Case) by petitioning the family court to let Adoptive
Parents adopt Child.
On February 17, 2022, A.M. renewed his motion to
intervene in the CPS Case. In re A.A., No. CAAP-XX-XXXXXXX, 2023
WL 3619865, *2 (Haw. App. May 24, 2023) (mem.) (AA II), cert.
rejected, No. SCWC-XX-XXXXXXX, 2023 WL 5400092 (Haw. Aug. 22,
2023). The family court heard and orally denied the motion on
March 14, 2022. Id.
On March 22, 2022, in the Adoption Case, the family
court heard and orally granted the petition for adoption.
On April 27, 2022, the family court revoked DHS's
custody of Child and terminated its jurisdiction over the CPS
Case given Child's adoption. AA II at *2.

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The Adoption Decree was entered in the Adoption Case on
April 28, 2022.
On May 5, 2022, in the CPS case, A.M. moved for
reconsideration of the denial of his motion to intervene. AA II,
2023 WL 3619865, at *2. The family court denied reconsideration.
Id. A.M. appealed. We held that A.M.'s appeal from the denial
of his motion to intervene was moot. The supreme court affirmed
the termination of A.M.'s parental rights, so A.M.'s only
remaining interest was in visitation. But Adoptive Parents'
adoption of Child extinguished A.M.'s visitation interest. Id.
at *3 (citing HRS § 587A-33(d)). We also held that the family
court's jurisdiction in the CPS Case terminated upon Child's
adoption. Id. (citing HRS §§ 587A-4, 578-16(b)). We affirmed
the family court's order denying A.M.'s motion for
reconsideration. The supreme court rejected A.M.'s petition for
writ of certiorari on August 22, 2023. No. SCWC-XX-XXXXXXX, 2023
WL 5400092.
In the Adoption Case, A.M. moved to overturn Child's
adoption on February 28, 2023. The family court entered an order
denying A.M.'s motion on April 4, 2023. This appeal followed.
(1) HRS Chapter 578 governs adoptions. HRS § 578-12
(2018) governs setting aside or modifying adoption decrees.
Revised Laws of Hawaii, 1955 (RLH) § 331-12 was the predecessor
to HRS § 578-12. In In re Adoption of Watson, 45 Haw. 69, 361
P.2d 1054 (1961), the supreme court held that under RLH § 331-12,
the family court may consider "a petition or motion filed by any
properly interested person to . . . show good cause why a decree
of adoption previously entered should be set aside or modified."
Id. at 78, 361 P.2d at 1059 (emphasis added). The dispositive
issue in this appeal is whether A.M. was a person "properly
interested" in setting aside or modifying Child's adoption.
In the CPS Case, the supreme court affirmed the family
court's termination of A.M.'s parental rights. AA I, 150 Hawai#i

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at 285-86, 500 P.3d at 470-71. A.M. is precluded from
relitigating that issue.2 The order terminating A.M.'s parental
rights stated:

13 Pursuant to HRS § 587A-33(b)(5) Mother and [A.M.] are
excluded from participating in adoption or other
subsequent proceedings and he/she/they shall not be
noticed of future hearings and he/she/they shall not
appear at future hearings unless he/she/they receive
further legal notice requiring such appearance[.]

Under these circumstances, A.M. was not a person "properly
interested" in setting aside or modifying Child's adoption. The
family court did not err by denying A.M.'s motion to overturn
Child's adoption.
(2) A.M.'s argument that there was structural error in
the CPS Case because the family court did not appoint counsel for
the unidentified father, who was properly served and defaulted,
AA I, 150 Hawai#i at 285-86, 500 P.3d at 470-71, is without
merit. See In re JH, 152 Hawai#i 373, 380, 526 P.3d 350, 357
(2023) (noting that without a client, "what's an attorney to do?"
because counsel would be "hard-pressed to understand the parent's
present objectives, and is challenged to provide sound, ethical
representation"). It is also an impermissible collateral attack
on the family court's orders in the CPS Case. See In re Hawaiian
Elec. Co., 149 Hawai#i 343, 358, 489 P.3d 1255, 1270 (2021)
(discussing collateral attack doctrine).
(3) A.M.'s argument that he was not given notice of
the Adoption Case also lacks merit. "[N]otice need not be given

2
Issue preclusion, also referred to as collateral estoppel, applies
when: (1) the fact or issue in the present action is identical with the one
decided in the prior adjudication; (2) there was a final judgment on the
merits in the prior adjudication; (3) the parties to the present action are
the same or in privity with the parties in the prior action; and (4) the fact
or issue decided in the prior action was actually litigated, finally decided,
and essential to the earlier valid and final judgment. Dannenberg v. State,
139 Hawai#i 39, 60, 383 P.3d 1177, 1198 (2016). Adoptive Parents were allowed
to intervene in the CPS case on May 29, 2019. AA I, 150 Hawai#i at 276, 500
P.3d at 461. Thus, A.M., Child, Adoptive Parents, and DHS — the parties to
the CPS Case — are also the parties to this case.

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to any parent whose parental rights have been legally
terminated[.]" HRS § 578-2(e). A person "who does not have any
legal interest or custodial right in and to the child, cannot
assail an adoption decree on the basis that he was not made a
party to or given notice of the adoption proceedings." Watson,
45 Haw. at 74, 361 P.2d at 1057. Cf. In re AG1 and AG2, ___
Hawai#i ___, ___ P.3d ___, 2024 WL 299417 (App. Jan. 26, 2024)
(holding that HRS § 587A-13 does not require that a parent whose
parental rights have been terminated be summoned if a subsequent
petition concerning the child is filed).
We need not consider A.M.'s other points of error
(concerning good cause to overturn the adoption). The family
court's April 4, 2023 "Order Denying Natural and Biological
Father's Motion to Overturn Adoption" is affirmed.
DATED: Honolulu, Hawai#i, February 9, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Georgia K. McMillen, Presiding Judge
for Appellant A.M.
/s/ Karen T. Nakasone
Francis T. O'Brien, Associate Judge
for Petitioners-Appellees
C.C. and J.C. /s/ Sonja M.P. McCullen
Associate Judge
Jonathan M. Fujiyama,
Julio C. Herrera,
Deputy Attorneys General,
State of Hawai#i,
for Appellee Department
of Human Services.

Shelby N. Ferrer,
for the Appellee Court Appointed
Special Advocates Program.

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