Survivors of Amos K. Agliam v. C & F Trucking

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAY-2021
08:03 AM
Dkt. 45 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

SURVIVORS OF AMOS K. AGLIAM,
Claimant-Appellant-Appellee,
v.
C & F TRUCKING, Employer-Appellee-Appellant,
and
HAWAI#I EMPLOYERS' MUTUAL INSURANCE COMPANY, INC.,
Insurance Carrier-Appellee-Appellant

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2014-224 (WH) (9-13-01002H))
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Employer-Appellee-Appellant C&F Trucking and Insurance
Carrier-Appellee-Appellant Hawai#i Employers' Mutual Insurance
Company, Inc. (collectively, C&F Trucking), appeal from the
Decision and Order of the Labor and Industrial Relations Appeals
Board (LIRAB) filed on January 3, 2017 (Decision) entered against
them and in favor of Claimant-Appellant-Appellee Survivors of
Amos K. Agliam (Survivors of Agliam). The Survivors of Agliam
consist of Kelly Waiau (Waiau), who was in a relationship with
Amos K. Agliam (Decedent), and Waiau's two minor children
(Children) who were not Decedent's biological children. The
LIRAB determined that the Children, as hānai children of
1

1
Hānai is a Hawaiian word meaning "Foster child, adopted child;
foster, adopted." Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary
56 (rev. ed. 1986).
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Decedent, were dependents entitled to receive death benefits
pursuant to the Hawai#i Workers' Compensation Law, Chapter 386,
Hawaii Revised Statutes (HRS), reversing the contrary decision by
the Disability Compensation Division of the Department of Labor
and Industrial Relations (DLIR).2
On appeal, C&F Trucking raises a single point of error,
contending that the LIRAB's Conclusions of Law on pages 8-14 of
its Decision misinterpreted HRS § 386-42 (Supp. 1997) and
erroneously determined that the Children were the hānai children
of Decedent at the time of the work accident on November 15, 2013
resulting in Decedent's death, and were entitled to death
benefits.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
affirm.
C&F Trucking contends that the LIRAB Decision
"misinterpreted HRS § 386-42," where the evidence showed that the
Children "were not hanai children of Decedent and were not
entitled to death benefits because their biological father []
remained financially and legally responsible for their support
and never relinquished legal custody." C&F Trucking further
argues that the LIRAB Decision "erroneously held Decedent's
purely voluntary financial support of the two children
established hanai status with the attendant legal rights and
obligations of HRS § 386-42," and contends that this constituted
"an improper expansion" of an employer's liability. These
contentions are without merit.
In its Decision and Order, filed January 3, 2017, the
LIRAB made the following unnumbered Conclusions of Law, pertinent
to the error advanced on appeal:

2
The LIRAB Decision determined that Waiau was not a dependent
entitled to such benefits. This determination is not at issue in this appeal.

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Employer also argues that allowance of death benefits to Child #1
and Child #2, while their biological father remained legally
responsible for their financial support via child support would
result in an undeserved windfall to them.
The Board disagrees with Employer. The case law and
legislative history support the Board's determination that
Child #1 and Child #2 were hanai children of Decedent.
As noted in the foregoing discussion, the custom of
hanai is less formal than adoption or ho'okama. The
addition of a hanai child to the definition of "child" only
makes sense if it is interpreted as the less formal method
of child adoption. The Hawaii Supreme Court has also
distinguished the less formal hanai from the more formal
adoption by custom.

Documentation of the customary practice of hanai is
not expected or required. The record on this appeal
supports that Decedent lived with the children, considered
and treated them as his own, and co-parented them with their
biological parents.

Although the biological father of Child #1 and Child
#2 remained financially liable for child support payments,
Decedent also contributed financially, albeit voluntarily,
toward their welfare, including food, housing, and school-
related expenses for the children. An award of dependent's
benefits as a result of Decedent's work-related death would
not result in a windfall to the children, but a continuation
of a part of the financial support they were receiving from
Decedent at the time of his death. Such a determination is
also in keeping with the humanitarian nature of the workers'
compensation law.

(Italics in original) (emphases added).
An agency's conclusions of law are reviewed de novo,
pursuant to HRS § 91-14(g) (Supp. 2019). Kilakila #O Haleakalā
v. Bd. of Land & Nat. Res., 138 Hawai#i 383, 396, 382 P.3d 195,
208 (2016) (internal quotation marks and citation omitted). HRS
§ 91-14(g) provides for judicial review of an agency's
conclusions or decisions for violation of constitutional or
statutory provisions, exceeding statutory authority, or being
affected by other errors of law. HRS §§ 91-14(g)(1), (2), (4).
"A conclusion of law that presents mixed questions of fact and
law is reviewed under the clearly erroneous standard because the
conclusion is dependent upon the facts and circumstances of the
particular case." Kilakila, 138 Hawai#i at 396, 382 P.3d at 208

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(internal quotation marks and citations omitted). Interpretation
of statutes are governed by the following:
First, the fundamental starting point for statutory-
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.

First Ins. Co. of Hawaii v. A&B Properties, 126 Hawai#i 406, 414,
271 P.3d 1165, 1173 (2012) (quoting State v. Wheeler, 121 Hawai#i
383, 390, 219 P.3d 1170, 1177 (2009) (internal citation
omitted)).
The Workers' Compensation statute, HRS § 386-42, titled
"Dependents," provides in relevant part:
(a) The following persons, and no others, shall be deemed
dependents and entitled to income, and indemnity benefits
under this chapter:

(1) A child who is:
(A) Unmarried and under eighteen
years;
. . . .

(b) A person shall be deemed to be actually dependent upon
the deceased, if the deceased contributed all or a
substantial portion of the living expenses of that person at
the time of the injury.

(Emphases added). HRS § 386-2 (Supp. 1997), the definitions
section, defines "Child" to include a "posthumous child, adopted
child, stepchild, child born to parents not married to each
other, and hanai child acknowledged prior to the personal
injury." (Emphasis added). Hawaii Administrative Rules (HAR)
Title 12, chapter 10, Workers' Compensation, section 1, further
defines "Hanai child" as "a child who, prior to the industrial
injury, is taken permanently to reside, be educated, and reared
by someone other than the natural parents, traditionally a
grandparent or other relative." HAR Rule 12-10-1.

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The pertinent statutes and rule set forth above clearly
and unambiguously include hānai children in the list of
dependents entitled to income and indemnity benefits under
Hawai#i's Workers' Compensation statutes. There is nothing in
the applicable statutes and rule that states or suggests that
continued financial responsibility from a biological parent
prevents children from becoming the hānai children of another
individual, as C&F Trucking contends.
The LIRAB Decision examined legislative history and
case law to confirm that the legislative intent was to expand
survivors' benefits to include children who were not formally
adopted.3 The LIRAB Decision cited, inter alia, case law
including Leong v. Takasaki, 55 Haw. 398, 410-11, 520 P.2d 758,
766 (1974), which explained the informal nature of hānai:
The Hawaiian concept of adoption also differs from that in
other common law jurisdictions. The ancient Hawaiians

3
The LIRAB Decision noted the following committee reports from 1982
when the legislature amended HRS § 386-2, to specifically include hānai
children in the definition of "dependent." These reports provide:

The purpose of this bill is to amend Section 386-2, Hawaii Revised
Statutes, to grant a hanai child . . . toward whom the employee
had assumed the duties and responsibilities of a parent, the same
rights as other children as defined in this section.
As the present statute now exists, these dependents who, because
of the employee's failure to initiate formal adoption proceedings,
are not treated as children of the employee. Your Committee is
aware that the concept of "hanai" is an integral part of Hawaii's
tradition, which is currently used interchangeably in describing
children "adopted" by custom.

S. Stand. Comm. Rep. No. 277-82, in 1982 Hawai#i Senate Journal, at 1066.
Another report similarly states:
The purpose of this bill is to entitle a "hanai child" the same
rights as other children enumerated in Section 386-2 HRS.
This bill was recommended by the Workers' Compensation Program
Commission. The Commission felt that the unique tradition of
hanai warranted legislation that would protect the rights of these
children.
H. Stand. Comm. Rep. No. 756-82, in 1982 Hawai#i House Journal, at 1244. We
note that the LIRAB Decision incorrectly cited the second report as a Senate
report, but it was a House Report.

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cherished the principle of adoption, which took two forms: A
child or adult one loves, but for whom one might not have
exclusive care, might be adopted as a keiki ho'okama
(child), or kaikua'ana ho'okama, kaikaina ho'okama,
kaikuahine ho'okama, kaikunane ho'okama (adult). A child so
adopted would be adopted as a child of the family, and
entitled to inherit through his parents, while an adult
would be adopted as a form of showing affection or respect.
On the other hand, a keiki hanai is a child given to another
to raise, as a foster child. O'Brien v. Walker, 35 Haw. 104,
128-30 (1939); Andrews and Parker, Hawaiian Dictionary 104,
158 (1922); Pukui and Elbert, Hawaiian Dictionary 52, 115
(1971). As adoption under the statute replaced ancient
Hawaiian custom and usage, the term ho'okama has fallen into
disuse and the term hanai has since been used to refer to all
types of adoption. Nevertheless the custom of giving
children to grandparents, near relatives, and friends to
raise whether legally or informally remains a strong one.

(Italics in original) (footnote omitted).
Based on the legislative history and case law, the
LIRAB correctly concluded that a hānai relationship is "less
formal than adoption," and that "[d]ocumentation of the customary
practice of hanai is not expected or required." When construing
a statute, courts must "give effect to all parts of a statute,
and no clause, sentence, or word shall be construed as
superfluous, void, or insignificant if a construction can be
legitimately found which will give force to and preserve all
words of the statute." Adams v. CDM Media USA, Inc., 135 Hawai#i
1, 18, 346 P.3d 70, 87 (2015) (citation and internal quotations
omitted). Requiring a hānai relationship to follow the same
formalities as an adoption would render the inclusion of the term
"hanai" in HRS § 386-2 superfluous, where an adopted child was
included in the statute prior to the addition of the term "hanai"
in 1982.
The record in this case established a hānai
relationship between Decedent and the Children. Waiau was
previously married to the Children's biological father, but
separated from him in 2010, and was divorced in 2011. After the
divorce, Waiau retained full legal and physical custody of the
Children, who have lived with her since birth. The Children's

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biological father was ordered to pay child support, but he did
not start paying the child support until after Decedent's death.
Waiau and Decedent's relationship began in 2010.
Decedent, Waiau, and the Children began living together from
December of 2010, until Decedent's death on November 15, 2013.
Waiau and Decedent shared housing expenses, had been approved for
a loan to purchase a home together, and they had planned to be
married. The LIRAB Decision found that Decedent had developed a
very close relationship with the Children and treated them as his
own. Decedent helped pay for the Children's private school
tuition, rent and utilities, groceries, and school supplies.
Decedent often took the Children on outings to the beach, mall,
movies, on fishing excursions, motorcycle rides, jiu-jitsu, and
taught the Children how to surf. Decedent referred to the
Children as his children both in his everyday life, as well as on
social media. Decedent also volunteered at the Children's school
as a parent/guardian, and assisted in their school's annual
fundraising event. Decedent provided guidance and discipline to
the Children, and had conversations with them about their future
career paths and college opportunities.
Based on our review of the record and the law, the
LIRAB Decision's COLs were not wrong. The LIRAB's conclusion
that the Children's biological father's continued financial
responsibility and lack of formal relinquishment of any parental
rights did not preclude the Children from being the hānai
children of Decedent, was correct. See HRS § 91-14(g); Kilakila,
138 Hawai#i at 396, 382 P.3d at 208. Decedent's voluntary
financial and non-financial support of the Children established
their hānai status; and the LIRAB's conclusion in this regard was
correct. See id. The LIRAB Decision's conclusions in this case
were consistent with Hawai#i Workers' Compensation Law and were
not an "improper extension" of Hawai#i law as C&F Trucking
contends.

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Therefore, IT IS HEREBY ORDERED that the Decision and
Order of the Labor and Industrial Relations Appeals Board Filed
on January 3, 2017, is affirmed.
DATED: Honolulu, Hawai#i, May 18, 2021.
On the briefs:
Brian G.S. Choy /s/ Keith K. Hiraoka
Keith M. Yonamine Presiding Judge
(Choy & Tashima)
for Employer/Insurance /s/ Clyde J. Wadsworth
Carrier-Appellees-Appellants Associate Judge

Rechelle A.M. Barbour /s/ Karen T. Nakasone
(Remillard & Huynh) Associate Judge
for Claimaint-Appellant-
Appellee

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