CourtListener 10738395

Testo completo

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-NOV-2025
08:08 AM
Dkt. 145 MO
NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
(consolidated)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

IN THE MATTER OF THE GUARDIANSHIP OF I.W. and T.E.

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(CASE NOS. 5GD151000035 and 5GD151000036 (consolidated))

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
In CAAP-XX-XXXXXXX, Petitioners-Appellants SW (Mother)

and SK, who identifies himself as hānai father, (Appellants)

appeal from: (1) the June 22, 2022 Order Denying Mother's Motion

for Summary Judgment [(MSJ)] (Order Denying MSJ); (2) the June

22, 2022 Order Granting Guardian's Motion for an Order

Instructing Mother to Amend Her 2021 Tax Return [(Motion to Amend

Tax Return)] (Order to Amend Tax Return); (3) the June 22, 2022

Order on Guardian Ad Litem's [(GAL's)] Motion for Clarification

and Direction [(GAL Motion for Clarification)] (GAL Clarification

Order); (4) the January 27, 2023 Order Granting Motion to Add Co-

Guardian and Modify the Limited Guardianship to an Unlimited

Guardianship [(Motion to Modify Guardianship)] and Denying

Petition for Removal of [JK] as Guardian of Minor [(2022 Petition

to Remove Guardian)] [(collectively, Guardianship Motions)]
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(Guardianship Order); (5) the April 25, 2023 Order Granting

Guardian's Motion to Change Minors State of Residence [(Motion to

Relocate)] and Denying Interested Party's Motions for a New Trial

and/or Relief from [Guardianship Order], and for Stay Pending

Disposition of the Motion and Denying Mother and Interested

Party's Petition for an Order Terminating Guardianship of Minor

[(Motion for New Trial and Relief)] (Relocation Order); and (6)

the July 3, 2023 Findings of Facts [(FOFs)] and Conclusions of

Law [(COLs)] (FOFs & COLs), entered by the Family Court of the

Fifth Circuit (Family Court).1

In CAAP-XX-XXXXXXX, Appellants also appeal from: (1)

the July 18, 2023 Ex Parte Order (Ex Parte Order to Verify Return

Flights); (2) the July 31, 2023 Ex Parte Order (Ex Parte Order

Denying Motion to Reconsider); and (3) the April 5, 2024 FOFs and

COLs (Ex Parte Order's FOFs & COLs).2

I. BRIEF BACKGROUND

JK (Guardian) is IW's and TE's (the Children's)

maternal grandmother. On December 16, 2015, Guardian and her

husband, GK (collectively, Guardians) filed, per child, a

Petition for Appointment of a Guardian of a Minor for [the

1
The Honorable Jonathan J. Chun presided over the challenged
orders.

The Honorable Edmund D. Acoba presided over the January 20, 2016 Order
Appointing Guardian with Unlimited Authority and the July 10, 2020 Stipulation
and Order to Approve Resignation of Co-Guardian [GK] and to Establish a
Limited Guardianship of the Minor Child.

The Honorable Stephanie R.S. Char presided over the January 11, 2022
Order Granting Guardian's Motion for Appointment of [GAL].
2
The Honorable Michael K. Soong presided over the Ex Parte Order to
Verify Return Flights and the Ex Parte Order's FOFs & COLs.

The Honorable Randal G.B. Valenciano presided over the Ex Parte Order
Denying Motion to Reconsider.

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Children]. Guardians sought guardianship of the Children and the

appointment of a guardian ad litem (GAL). On December 9, 2015,

Mother signed a Power of Attorney: Temporary Custody, Medical

and Educational Consent, granting Guardians the authority to

authorize medical care and treatments for the Children, apply for

public benefits on the Children's behalf, and act on Mother's

behalf concerning the Children's education and social

development.

In December of 2018, Mother and the Children's father

(Father) each filed per child a Waiver of Notice and Consent to

Guardianship. The Family Court entered per child the January 20,

2016 Order Appointing Guardian with Unlimited Authority.

In August and September of 2019, Appellants filed

petitions to remove the Guardians and terminate the guardianships

of TE and IW.

On April 20, 2020, Guardians filed per child Co-

Guardians Motion to Move the Minor Out of State, seeking to

relocate the Children to Oregon for Guardian's new job. These

motions were denied.

On July 10, 2020, the parties filed per child a

Stipulation and Order to Approve Resignation of Co-Guardian [GK]

and to Establish a Limited Guardianship of the Minor Child

(Stipulation). The Stipulation provided, inter alia, that: (1)

GK was removed as a co-guardian; (2) Guardian would continue as

guardian of the Children but with limited authority; (3) so long

as Guardian resided in Oregon, the Children would attend school

in Oregon and live primarily with Guardian; (4) Mother may

exercise custodial time during the school year; (5) Guardian had

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two weeks of summer visitation time with the Children; and (6)

Mother may have daily phone calls or video conferencing with the

Children, and Guardian may have the same when the Children are

with Mother. The Stipulation resolved all pending motions and

petitions.

On August 23, 2021, Appellants filed per child a

Petition for an Order Terminating Guardianship of Minor (2021

Petition to Terminate Guardianship). Guardian filed an answer,

opposing the requested relief.

On December 22, 2021, Guardian filed per child the

Motion to Modify Guardianship. After a January 11, 2022 hearing,

the Family Court entered an order appointing a GAL, ordering that

the GAL's sole duty is to protect the Children's needs and

interests by performing the following duties: (1) interviewing

relevant persons and reviewing relevant records; (2) ascertaining

the interest of the Children; (3) seeking cooperative resolutions

to the Children's situation; and (4) providing findings and

recommendations to the Family Court. The Family Court further

ordered that Guardian shall front the cost of the GAL and that

the issue of whether other parties shall be ordered to reimburse

the GAL costs would be reserved for later determination.

Appellants subsequently filed per child the 2022

Petition to Remove Guardian. On March 18, 2022, Mother filed per

child MSJs, seeking summary judgment concerning the termination

of Guardian's limited guardianship for the Children. Guardian

opposed the motion. On March 29, 2022, GAL filed the [GAL]

Report and recommended that it was in the best interest of the

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Children to grant both Guardians an unlimited guardianship over

the Children.

On March 31, 2022, the Family Court heard arguments on

the MSJs,3 and found there were genuine issues of material facts

that needed to be decided, including: (1) Mother's fitness; (2)

Mother's ability to provide a safe and stable home; (3) whether

Mother's prior grant of custody had been superseded by the

guardianship; and (4) the best interest of the Children. The

Family Court entered per child the Order Denying MSJ on June 22,

2022.

On April 26, 2022, GAL filed per child a GAL Motion for

Clarification, seeking direction on how to proceed regarding a

request from SK that he and Mother be allowed to review any

documents and materials relied on by the GAL in executing her

duties.

On May 2, 2022, Guardian filed per child the Motion to

Amend Tax Return, requesting that Mother remove the Children from

her 2021 tax return. The Family Court heard the GAL Motion for

Clarification and the Motion to Amend Tax Return on May 18, 2022.

Regarding the Motion to Amend Tax Return, the Family Court stated

that it would not make its ruling based upon its interpretation

of Internal Revenue Service rules, but rather based on what it

believed to be fair and equitable. The Family Court stated that

the issue was whether it should include a provision in the

Stipulation about who is entitled to claim the Children as

dependents. The Family Court explained: (1) Guardian had

3
For the sake of judicial economy, the Family Court heard the MSJs
for each child at the same time, as if the MSJs were consolidated.

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claimed the Children as dependents since 2015; (2) Mother claimed

the Children as dependents for the first time in 2021; (3) the

intent at the time of the 2021 Stipulation was to have the

Children be dependents of Guardian based on the prior history of

tax filings; (4) Guardian provided the majority of the Children's

support; and (5) Guardian has physical control of the Children

during the majority of the year. The Family Court ordered Mother

to amend her 2021 tax return to remove the Children as

dependents, and to not declare the Children as dependents on

future tax returns.

Regarding the GAL Motion for Clarification, the Family

Court ordered GAL to provide limited documents to the parties and

assigned the cost of the motion to SK based on its finding that

the motion arose out of SK's request to GAL.

The Family Court held a trial on the Guardianship

Motions in September and December of 2022. On January 27, 2023,

the Family Court filed per child the Guardianship Order

providing, inter alia, that: (1) Guardian's guardianship will be

unlimited; (2) GK is added as a co-guardian to the Children, (3)

the Petition to Remove Guardian is denied, and (4) the

Stipulation is amended.

On January 31, 2023, post-trial, Guardians filed per

child the Motion to Relocate, seeking to move the Children to

Michigan.

On February 6, 2023, Appellants filed per child the

Motion for New Trial and Relief.

The Motion to Relocate and Motion for New Trial and

Relief were heard on March 3, 2023, and March 14, 2023. The

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Family Court denied the Motion for New Trial and Relief, and

granted the Motion to Relocate and entered written orders on

April 25, 2023.

On May 24, 2023, Appellants filed a Joint Notice of

Appeal in CAAP-23-356, challenging the Order Denying MSJ, the

Order to Amend Tax Return, the GAL Clarification Order, the

Guardianship Order, and the Relocation Order. On July 3, 2023,

the Family Court filed per child the FOFs & COLs for the Order

Denying MSJ, the Order to Amend Tax Return, the Guardianship

Order, and the Relocation Order.

On July 13, 2023, Guardians filed an ex parte motion

regarding verification of return flights. On July 18, 2023, the

Family Court filed the Ex Parte Order to Verify Return Flights,

ordering that: (1) Mother must provide Guardians confirmation and

verification that return flights and travel arrangements have

been made to return the Children to Michigan no later than

August 14, 2023; (2) that if Mother fails to comply, Guardians

may pick up the Children on Kaua i; and (3) Mother is not

permitted to take the Children out of the country without

Guardians' consent.

On July 27, 2023, Mother sought reconsideration, which

was denied in the Family Court's July 31, 2023 Ex Parte Order

Denying Motion to Reconsider.

On August 8, 2023, the Family Court entered an order

approving the parties' stipulation to consolidate the Children's

cases. On October 20, 2023, Appellants filed the Notice of

Appeal in CAAP-23-598, challenging the Ex Parte Order to Verify

Return Flights and the Ex Parte Order Denying Motion to

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Reconsider. On April 5, 2023, the Family Court filed FOFs & COLs

for the Ex Parte Order to Verify Return Flights and FOFs & COLs

for the Ex Parte Order Denying Motion to Reconsider.

On February 11, 2025, we consolidated the two appeals.

II. POINTS OF ERROR

Appellants collectively raise thirty-eight points of

error, although a number of these points of error overlap, and

challenge FOFs and COLs further identified below. In CAAP-23-

356, Appellants both argue that the Family Court erred by: (1)

denying Mother's MSJ; (2) denying the Petition to Remove

Guardian; (3) entering the Order to Amend Tax Return; (4)

ordering SK to pay GAL's fees in the GAL Clarification Order; (5)

granting the Motion to Relocate; (6) applying Hawaii Revised

Statutes (HRS) § 560:5-112(b), which is unconstitutional as

written and as applied; (7) applying HRS § 571-46, which is

unconstitutional as written and as applied to Mother; (8)

entering FOFs A18, A19, B9, B10, C18(d), C19, C20, D6, D8, D17,

D18, D20, D21, D23, D30, D32, D35, D43, D47, D71, D93, D95, D96,

D97, D102, D103, D104, D108, D110, D111, D131, D141; and (9)

entering COLs A7, A8, A9, B1, B2, C2, D5, D8, D10, D16, D21, D24,

E5, and E6. Mother also contends that the Family Court erred by:

(1) relying on the GAL Report; and (2) entering FOFs D7, D10,

D11, D27, D55, D56, D59, and D132. SK also argues that the

Family Court erred by: (1) entering the Guardianship Order; (2)

denying SK's Motion for New Trial and Relief; (3) entering FOFs

C17, C18(c), C18(e), C18(f), D13, D19, D28, D29, D34, D37, D40,

D44, D45, D46, D63, D64, D65, D77, D94, D136, D144, D145, D146,

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E25, and E27; and (4) entering COLs D2, D3, D6, D9, D11, D12,

D13, D14, D15, D17, D18, D19, D20, D22, D23, E1, E2, E3, E4, and

E7.

In CAAP-23-598, Appellants both contend that the Family

Court erred by: (1) depriving them of their substantive liberty

interests, property interests, and due process rights; (2)

issuing the Ex Parte Order to Verify Return Flights in the

absence of extraordinary circumstances and without a post-

deprivation hearing; (3) ordering relief regarding international

travel that was not sought in the Ex Parte Motion to Verify

Return Flights; (4) failing to provide adequate notice to Mother

in entering the Ex Parte Order to Verify Return Flights; (5)

denying the Ex Parte Motion for Reconsideration; entering FOFs

A30, A31, A33, A34, A35, A36, A38, A39, A40, A41, A42, A43, A44,

and A47 regarding the Ex Parte Order to Verify Return Flights,

and FOFs A6, A8, A9, A11, A12, A13, A14, A15, and A16 regarding

the Ex Parte Order Denying Motion to Reconsider; and (6) entering

COLs A2, A3, A5, A6, A7, and A8 regarding the Ex Parte Order to

Verify Return Flights, and COLs A4, A6, A7, A8, A9, A10, A11, and

A12 regarding the Ex Parte Order Denying Motion to Reconsider.

Mother also contends that the Family Court erred by ordering her

to pay the cost of the Children's interstate travel. SK also

contends that the Family Court erred by ordering relief that

affects the rights and responsibilities of the Children as Native

Hawaiians without giving SK an opportunity to be heard.

The challenged FOFs for the Order Denying MSJ are as

follows:
[A]18. The Declaration of Mother and Declaration of
[Mother] do not contain sufficient facts based on personal

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knowledge to support her claim that there are no genuine
issues of material fact in this matter.

[A]19. The records in this matter, including the GAL report
and the other pending motions filed by the Guardian,
indicate that there are genuine issues of material fact that
should be decided after a full hearing on the merits.

The challenged COLs for the Order Denying MSJ are as

follows:
[A]6. In re Guardianship of Doe, said, "we construe the
custody guardianship provision of HRS § 560:5-209 and the
custody provision in HRS § 571-46 in pari materia in order
to determine the appropriate standard to be applied where
conflicting claims between parents and non-parents are made
in a guardianship hearing. Id. at 4 P.3d 508 at 517, 93
Haw. 374 (emphasis in original).

[A]7. The determination of whether termination of the
Guardianship is unwarranted is based on what is in the minor
child's best interest. The best interest of the child is an
"issue of ultimate fact. . . " Maeda v. Maeda, 794 P.2d
268, 8 Haw.App. 139 (Haw. App. 1990).

[A]8. The Court concludes that the pleadings and records in
this case, including the GAL's report and pending motions
filed in this case, show there is a genuine issue of
material fact regarding the best interest of the children
which should only be decided upon a full hearing on the
merits of the case.

[A]9. The Declaration of Mother and Declaration of [Mother]
do not contain sufficient facts based on personal knowledge
to support her claim that there are no genuine issues of
material fact in this matter.

The challenged FOFs for the GAL Clarification Order are

as follows:
[B]9. At the hearing, the GAL asked the Court to grant her
fees and costs as a result of her having to file the Motion.

[B]10. The Court ordered [SK] to pay for the GAL's fees and
costs.

The challenged COLs for the GAL Clarification Order are

as follows:
[B]1. Cost and fees of the GAL is assigned to [SK] since it
arose from his request.

[B]2. It was proper for the GAL to ask the Court for
clarification since she is a neutral party.

The challenged FOFs for the Order to Amend Tax Return

are as follows:

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[C]17. Guardian was harmed because she was not able to
claim the children in 2021 and as a result did not receive a
refund that would have been approximately $4,000.00.

[C]18. After hearing the parties' arguments and reviewing
the submitted pleadings on the matter, the Court makes the
following findings:

. . . .

c. The majority of the financial support for the
minor child is provided by Guardian.

d. It is equitable for the Guardian to declare the
minor child as a dependent.

e. Guardian has physical control of the minor
children for the majority of the year.

f. The minor children are dependents of the Guardian.

[C]19. [Mother] is ordered to amend her 2021 tax return to remove
the children as dependents.

[C]20. [Mother] must refrain from claiming the minor
children as dependents going forward.

The challenged COL for the Order to Amend Tax Return

is: "[C]2. It is equitable to allow the Guardian to claim the

minor children as dependents on Guardian's tax return due to the

Guardian having physical control the majority of the year."

The challenged FOFs for the Guardianship Order are as

follows:
[D]6. The Court finds that [Mother] is not able to parent
the children.

[D]7. [Mother] has not demonstrated an understanding of her
children's emotional and education needs, nor specifically
did she demonstrate an understanding of [TE's] special needs
relating to his ADHD and Autism diagnosis.

[D]8. The Court finds that the GAL's testimony that that
[sic] [Mother] is not able to parent the children, is
credible, supportable by other evidence and statement and is
given weight.

. . . .

[D]10. [Mother] did not provide evidence that the children
would be better off living with her.

[D]11. [Mother] did she [sic] provide evidence that
supported severing the children's relationship with their
Grandparent Guardians.

. . . .

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[D]13. CFS was involved due to [Mother], "neglecting the
children and/or possibly placing the children in danger."

. . . .

[D]17. [Mother] had sporadic involvement in the children's
lives since the advent of the guardianship.

[D]18. [Mother] has had spotty communication with the minor
children throughout the duration of the guardianship.

[D]19. When all parties resided on Kauai, the communication
and contact between [Mother] and the children was
inconsistent.

[D]20. [Mother] demonstrates a lack of consistency and
follow through, i.e. saying she was going to come visit and
then not showing up.

[D]21. The inconsistency negatively impacts the children's
relationship with [Mother].

. . . .

[D]23. The children do not want to spend much time with
[Mother].

. . . .

[D]27. The children's preference is given weight as it is
based on their emotional needs.

[D]28. In particular, [IW], is emotionally attached to
Guardian since she has lived with her for most of her life.

[D]29. The testimony of Dr. Dianne Gerrard that [IW]'s
emotional attachment primacy is with the Guardian is deemed
credible and is adopted as a finding of this Court.

[D]30. It would be harmful to the emotional health of the
children to remove them from the Co-Guardians.

. . . .

[D]32. By choice, the children do not often speak to
[Mother].

. . . .

[D]34. The children have a quality relationship with the
Co-Guardians and are a family unit.

[D]35. [Mother] had not developed a quality relationship
with the children due to her lack of consistent involvement.

. . . .

[D]37. [Mother] often stayed out late and neglected the
children.

. . . .

[D]40. [Mother] was not able to adequately take care of the
children.

. . . .

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[D]43. The children have been solely in the care of the Co-
Guardian's except for occasional visits with [Mother].

[D]44. [GK] is the primary caregiver of the children
because Guardian works outside of the home.

[D]45. [GK] is the one who sees to the majority of their
daily needs - getting ready for school, getting to school,
going to appointment, interfacing with the school, driving
them to various activities.

[D]46. [GK] has provided the primary care for the children
while living on Kauai, and in Oregon.

[D]47. [Mother] did not volunteer to help with the
children, or involve herself in their daily lives when they
lived on Kauai.

. . . .

[D]55. [Mother] did not make contact with any schools or
services here on Kauai to determine what resources are
available to meet the children's emotional and academic
needs.

[D]56. [Mother] did not have contact with the children's
school in Oregon and the psychologist seeing the children
for well over a year.

. . . .

[D]59. [Mother] made no attempt to be involved in the [IEP]
process, and even after the diagnosis was received, made no
attempts to reach out to [TE's] school or therapist to find
out what she could do in her home to help him.

. . . .

[D]63. The children had sores while on Kauai with [Mother].
Guardian determined that the sores were not treated
appropriately.

[D]64. [Mother] did not comply with [TE's] medication
protocol. [Mother] was informed about the proper dosage and
the need for [TE] to take medication every day.

[D]65. [TE] needs the medication to address his ADHD and it
helps him manage impulse control and stay better focused.
The last couple times [TE] traveled with [Mother], she was
provided the exact number of pills for [TE] to take. Each
time he has returned with approximately half of the
medication untaken.

. . . .

[D]71. [Mother] does not understand the emotional needs of
her children.

. . . .

[D]77. Travel of this nature causes stress for the children
and in particular [TE].

. . . .

[D]93. [Mother] demonstrated a lack of understanding of
[TE's] needs.

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. . . .

[D]95. [Mother] is not able to meet the educational needs
of the children and they would suffer as a result.

[D]96. [Mother] is not capable of following through with
maintaining [TE's] education.

[D]97. [Mother] lacks interest in the children's education
and in particular with [TE's] diagnosis and its impact on
his education.

. . . .

[D]102. [The Children] are not particularly close to [their
younger siblings].

[D]103. The Co-Guardians have encouraged [Mother] to have a
relationship with the children over the years.

[D]104. The Co-Guardians tried to set up scheduled visits
and invited [Mother] to school events and performances.

. . . .

[D]108. The Co-Guardians often have a hard time getting in
touch with the children.

. . . .

[D]110. The state of the relationship between [Mother] and
Guardian support [the Guardians' concern that they would
have little contact with the Children if the guardianship is
terminated].

[D]111. Both the GAL and Dr. Gerard testified that severing
the relationship between the Co-Guardian's and the children
would be detrimental to the emotional health of the children
and the Court finds these testimonies to be credible and
adopts this testimony as a finding of the court.

. . . .

[D]131. [Mother's] mental health issues would adversely
impact the children, in particular [TE], who needs routine
and structure.

[D]132. In order for [Mother] to agree that the children
could go to Oregon with Co-Guardians, Guardian and [GK] had
to agree to a Limited Guardianship.

. . . .

[D]136. The children resided with the Co-Guardians
approximately forty-one to forty-two weeks out of the year

. . . .

[D]141. The GAL further testified that the Co-Guardian's
had custody of the children due to the amount of time per
year they were in their care, and the Court finds this
testimony to be credible and hereby adopts it as a finding.

. . . .

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[D]144. As the primary caregiver of the children, [GK]
needs the ability to sign the children up for activities and
make decisions on their behalf.

[D]145. Being a co-guardian accurately reflects the role
[GK] plays in the children's lives.

[D]146. If something were to happen to Guardian rendering
her unable to carry out the duties of the guardianship, the
most stable and emotionally supportive environment for the
children would be with [GK].

The challenged COLs for the Guardianship Order are as

follows:
[D]2. HRS § 560:5-210(b) also addresses termination of a
guardianship. Specifically, a "ward or a person interested
in the welfare of a ward may petition for any order that is
in the best interest of the ward."

[D]3. "[I]n a proceeding brought by a parent to remove a
non-parent as a guardian of the parent's minor child, the
family court must consider the preference granted to parents
in Hawai i Revised Statutes (HRS) § 571-46(1)(1993) in
determining whether under HRS § 560:5-212 (1993), it is in
the best interests of the child to terminate the
guardianship." In the Matter of the Guardianship of Jane
Doe, 93 Haw. 374, 4 P.3d 508 (2000).

. . . .

[D]5. Given [Mother's] limited involvement with her
children and her demonstrated lack of knowledge or ability
to take into account their emotional and special needs as
discussed herein, the parental preference contained HRS §
571-46(1) is rebutted. Once this preference is rebutted
[Mother] needs to bring forth specific evidence to show she
is will[ing and] able to provide for the children's
emotional and special needs.

[D]6. HRS § 571-46(b) provides a non-exhaustive list of
factors for the Court to consider when determining the best
interests of a child.

. . . .

[D]8. HRS § 571-46(b)(2) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
there is a history of neglect or emotional abuse of a child,
which makes this factor weigh in favor of the Co-Guardians.

[D]9. HRS § 571-46(b)(3) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the overall quality of the party-child relationship weighs
in favor of the Co-Guardians.

[D]10. (HRS § 571-46(b)(4) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the history of caregiving or parenting by each party prior
and subsequent to a [marital] or other type of separation
weighs in favor of the Co-Guardians.

[D]11. (HRS § 571-46(b)(5) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,

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the cooperation in developing and implementing a plan to
meet the children's ongoing needs, interests and schedule,
weighs in favor of the Co-Guardians.

[D]12. (HRS § 571-46(b)(6) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the physical health of the children does not weigh in favor
of any party as both parties scan [sic] meet the children's
physical needs.

[D]13. (HRS § 571-46(b)(7) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the emotional health of the children weighs in favor of the
Co-Guardians.

[D]14. (HRS § 571-46(b)(8)- Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the safety needs of the children do not weigh in favor of
any party.

[D]15. (HRS § 571-46(b)(9) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the Court has serious concerns regarding [Mother's] ability
or willingness to fully take into consideration and
incorporate [TE's] needs both educationally and
psychologically. Therefore, the educational needs of the
children weigh in favor of the Co-Guardians.

[D]16. (HRS § 571-46(b)(10) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the children's relationship with siblings to [sic] do not
weigh in favor of any party.

[D]17. (HRS § 571-46(b)(11) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the Co-Guardian's actions demonstrate that they allow the
children to maintain family connections through family
events and activities. The Court was concerned that
[Mother] would not encourage the relationship between the
children and Co-Guardians if the Guardianship was
terminated. Therefore, this best interest factor weighs in
favor of the Co-Guardians.

[D]18. (HRS § 571-46(b)(12) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the Co-Guardian's demonstrated that they separate the
children's needs from their own. Whereas [Mother's]
behavior indicated a need to see to her own needs over the
best interests of her children. As such, this best interest
factor weighs in favor of the Co-Guardians.

[D]19. (HRS § 571-46(b)(14)- Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the Court determined that the mental health of [Mother]
would likely adversely affect her ability to parent. No
similar determinations were made regarding the mental health
of the Co-Guardians, therefore this best interest factor
weighs in favor of Co-Guardians.

[D]20. (HRS § 571-46(b)(15) - Based on the evidence and
testimony which provide the basis for the Findings of Fact,
the area and levels of conflict present within the family
did not weigh in favor of any party.

[D]21. Based on the above best interest factors, the
Unlimited Guardianship is in the children's best interest.

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[D]22. HRS § 560:5-112(c) provides that the "court may
appoint an additional guardian or conservator at any time,
to serve immediately or upon some other designated event."
The statute does not provide the need for an additional
finding regarding the parental fitness or ability to parent.

[D]23. It is in the children's best interest that [GK] be
added as a Co-Guardian to ensure the care and stability for
the children.

[D]24. [Mother] has not provided sufficient evidence to
show she is able to provide for the children's emotional and
special needs nor has she presented facts to show that it is
in the children's best interest that the Guardianship be
terminated.

The challenged FOFs for the Relocation Order are as

follows:
[E]25. Nothing in the Court's Order issued on January 27,
2023 was predicated on where the Co-Guardian's and children
lived.

. . . .

[E]27. The fact that the Co-Guardians were asking the Court
to move to Kalamazoo, Michigan was not enough to change the
outcome as the Court was aware of the potential for a move
due to the loss of Guardian's employment.

The challenged COLs for the Relocation Order are as

follows:
[E]1. The Court previously determined that the Guardianship
was in the children's best interest pursuant to HRS § 571-
46(b). Where the children and Co-Guardians live does not
change the application of the best interest factors, nor the
finding that it is in the best interest of the children that
the children remain with the Guardian and Co-Guardian.

[E]2. The Court concludes that it is in the best interest
of the children that the Guardian, Co-Guardian and the
children be allowed to move to Michigan so they can remain
as a stable family unit.

[E]3. The Court concludes that the area where the Guardian
and Co-Guardian propose to move is suitable and can provide
for the needs of the children.

[E]4. A request for a new trial under HFCR 59 requires the
court to consider if the new evidence could have been
discovered through due diligence and whether the new
evidence is material enough to change the outcome. Where
the children lived was not a material factor in Order issued
January 27, 2023. Therefore, new information in this issue
was not material, nor would it have changed the outcome.

[E]5. Pursuant to HFCR 52(b) objections were raised to the
language that Mother, "gave up the right to parent" in the
Order issued January 27, 2023. The Court finds that this is
not a material issue in its decision. The Court considered
the best interests factors in HRS § 571-46. This particular

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sentence was used to show that in previous hearings, Mother
stopped being the custodial parent by voluntary action.

[E]6. The Court at its discretion did not apply the portion
of HRS § 560:5-112(b), "or other good cause," for removing a
guardian, since no facts were present to support a
conclusion that good cause exists to remove the Guardian.

[E]7. The request for a Stay is denied because equity
favors maintaining relationships with guardians and a Stay
would not be in the best interests of the children.

III. APPLICABLE STANDARDS OF REVIEW
Generally, the family court possesses wide discretion
in making its decisions and those decision[s] will not be
set aside unless there is a manifest abuse of discretion.
Thus, we will not disturb the family court's decisions on
appeal unless the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant and its decision clearly exceeded the
bounds of reason.

Interest of AA, 150 Hawai i 270, 283, 500 P.3d 455, 468 (2021)

(citation omitted). "The family court's conclusions of law are

reviewed de novo under the right/wrong standard." Id.

The Hawai i Supreme Court stated in In re Guardianship

of Carlsmith, 113 Hawai i 236, 239, 151 P.3d 717, 720 (2007)

(cleaned up):
[The appellate court] reviews questions of constitutional
law de novo under the "right/wrong" standard and, thus,
exercises its own independent constitutional judgment based
on the facts of the case. [The appellate court], as a
general matter, has long adhered to the proposition that (1)
legislative enactments are presumptively constitutional; (2)
a party challenging a statutory scheme has the burden of
showing unconstitutionality beyond a reasonable doubt; and
(3) the constitutional defect must be clear, manifest, and
unmistakable.

Hawai i Family Court Rules (HFCR) Rule 61 provides:
Rule 61 Harmless Error. No error in either the
admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or omitted
by the court or by any of the parties is ground for granting
a new trial or for setting aside a verdict or for vacating,
modifying, or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or defect
in the proceeding that does not affect the substantial
rights of the parties.

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IV. DISCUSSION

A. Applicable Standard for Guardianship Motions

Appellants argue, variously, that the Family Court

erred with respect to the appropriate standard for determining

the Guardianship Motions. We evaluate each of these arguments.

Appellants both argue that under HRS § 560:5-112, a

guardianship of a minor may be terminated for good cause. 4

HRS § 560:5-112 falls under part 1 of HRS article

560:5, which contains the general provisions for guardianships. 5

It provides that an interested person may petition for removal of

a guardian on the grounds that removal would be in the best

interest of the ward or for other good cause. HRS § 560:5-

112(b). Part 2 of article 560:5 contains the provisions for

guardianships of minors. HRS § 560:5-210 provides for the

termination of and other proceedings after appointment of a

guardianship of a minor:
§ 560:5-210 Termination of guardianship; other
proceedings after appointment.

. . . .

(b) A ward or a person interested in the welfare of a
ward may petition for any order that is in the best interest
of the ward.

4
Mother argues that the Family Court is permitted to terminate the
guardianship for good cause if the Family Court finds that Mother is currently
willing and able to raise the Children. SK argues that HRS § 577-7(a)'s
provision establishing parental control over the conduct and education of
one's children is good cause requiring the Family Court to terminate the
guardianship. We do not reach these arguments because, as discussed infra,
HRS § 560:5-112 does not apply here.
5
Chapter 560 contains the Uniform Probate Code provisions, and
article V of chapter 560 further contains the provisions for guardianship and
protective proceedings. HRS § 560:5-101 (2018). Part 1 of article V contains
the article's general provisions. H. Stand. Comm. Rep. No. 597, in 2004 House
Journal. Part 2 contains provisions for guardianships of minors. Id. Part 3
contains provisions for guardianships for incapacitated persons. Id. Part 4
covers conservatorships for both minors and adults. Id.

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The Hawai i legislature enacted HRS § 560:5-210 when it

adopted the 1998 Uniform Guardianship and Protective Proceedings

Act (UGPPA). 2004 Haw. Sess. Laws Act 161 § 1; H. Stand. Comm.

Rep. No. 597, in 2004 House Journal. The commentary to the UGPPA

clarifies that "[s]ubsection (b) can be used to seek termination

of the guardianship or restrict the guardian's powers[.]" Unif.

Guardianship Prot. Proc. Act § 210 cmt. (1997). Accordingly, an

interested person may petition for any order, including for

termination or modification of the guardianship, that is in the

best interest of the minor.

Because HRS § 560:5-210 is more specific to

guardianship of minors, it controls over the more general HRS

§ 560:5-112 provision. See In re R Children, 145 Hawai i 477,

485, 454 P.3d 418, 426 (2019) ("[S]pecial or particular

provisions control over general provisions, terms or expressions.

. . . It is also elementary that specific provisions must be

given effect notwithstanding the general provisions are broad

enough to include the subject to which the specific provisions

relate."). Therefore, under HRS § 560:5-210(b), the guardianship

of a minor may be terminated or modified when it is in the best

interest of the minor.

Within this best interest standard, there is the

established presumption that a fit parent will act in the best

interest of their child. See Troxel v. Granville, 530 U.S. 57,

69 (2000). Accordingly, even when conducting a best interest

analysis in the context of a statute that does not expressly

provide for preference to a fit parent's decisions, the court

must uphold a rebuttable presumption in favor of the decisions of

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a fit parent. See Doe v. Doe, 116 Hawai i 323, 333, 172 P.3d

1067, 1077 (2007) (requiring court to give special weight to

visitation decisions of fit custodial parent in context of

grandparent visitation statute's best interest standard); In re

Guardianship of Doe, 93 Hawai i 374, 385-86, 4 P.3d 508, 519-20

(App. 2000) (interpreting parental preference into guardianship

statute's best interest standard).

Appellants argue that HRS § 560:5-210 is

unconstitutional as written and as applied to this case on the

grounds that the best interest of the child standard is

insufficient in proceedings when a parent who has not been

adjudicated unfit petitions to terminate a limited guardianship

established with parental consent. Appellants contend that the

harm to the child standard is constitutionally required in this

case, and because such a standard cannot be read into HRS §

560:5-210 without making a substantive amendment to the statute,

HRS § 560:5-210 is unconstitutional as written and as applied.

"Every enactment of the legislature is presumptively

constitutional, and the party challenging the statute has the

burden of showing unconstitutionality beyond a reasonable doubt."

A.A. v. B.B., 139 Hawai i 102, 107, 384 P.3d 878, 883 (2016)

(cleaned up). Parents have a substantive liberty interest in the

care, custody, and control of their children protected by article

I, sections 5 and 6 of the Hawai i Constitution, and the due

process clause of the United States Constitution. Doe v. Doe,

116 Hawai i at 334, 172 P.3d at 1078; In re Doe, 99 Hawai i 522,

533, 57 P.3d 447, 458 (2002); Troxel, 530 U.S. at 65. As noted,

there is a presumption that a fit parent will act in the best

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interest of their child. Troxel, 530 U.S. at 69. Accordingly,

if a fit parent's decision regarding their child becomes subject

to judicial review, the court "must accord at least some special

weight to the parent's own determination." Id. at 70.

The supreme court concluded that the best interest

standard in HRS § 571-46.3 (Supp. 2003), 6 Hawaii's grandparent

visitation statute, was unconstitutional because it did not

include a harm to the child standard. 116 Hawai i at 336, 172

P.3d at 1080. The court held that a parent's fundamental right

to direct the upbringing of their child is implicated where a

non-parent third party petitions for visitation, and the State

cannot "interfere with the parent's decision absent a finding

that the parent's decision to deny access to the child would

result in harm to the child." A.A. v. B.B., 139 Hawai i at 111,

384 P.3d at 887 (discussing Doe v. Doe, 116 Hawai i at 336, 172

P.3d at 1080).

However, the harm to the child standard applies to

protect parental rights in proceedings where the parent's fitness

is not at issue. Doe v. Doe, 116 Hawai i at 333, 172 P.3d at

1077 (determining constitutionally required standard for

visitation decisions where custodial parent's fitness has not

6
HRS § 571-46.3 provided in relevant part:

§ 571-46.3 Grandparents' visitation rights; petition;
notice; order. A grandparent or the grandparents of a minor
child may file a petition with the court for an order of
reasonable visitation rights. The court may award
reasonable visitation rights provided that the following
criteria are met:

(1) This State is the home state of the child at
the time of the commencement of the proceeding; and

(2) Reasonable visitation rights are in the best
interests of the child.

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been challenged); SC v. JC, 151 Hawai i 153, 162, 509 P.3d 1116,

1125 (App. 2022) ("We hold that Doe's harm-to-the-child standard

applies in these circumstances, where Father, as a custodial

parent whose fitness has not been challenged, seeks to modify a

visitation order entered in favor of non-parent third parties,

i.e., Maternal Grandparents."); accord Troxel, 530 U.S. at 68-69

("[S]o long as a parent adequately cares for his or her 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."). The

traditional presumption that a parent acts in the best interest

of their child applies to fit parents, not to parents who have

been deemed unfit. See Troxel, 530 U.S. at 69-70.

In this case, Mother's fitness is the crux of the

Family Court's Guardianship Order. The Family Court determined

that Mother is not able to parent the Children, i.e., is unfit,7

and therefore the parental preference in favor of Mother is

rebutted. The Family Court then concluded that Mother must

demonstrate that she is able to provide for the Children's needs,

and conducted the best interest analysis without the parental

preference in favor of Mother. Accordingly, because the Family

Court found Mother to be unfit, Mother was not entitled to the

presumption that she acts in the best interest of the Children,

and the Family Court need not give special weight to her

7
See In re Doe, 95 Hawai i 183, 192, 20 P.3d 616, 625 (2001)
(indicating that a parent being "unfit," is "in other words, both that the
parent is unwilling or unable to provide his or her child with a safe family
home . . . and that the parent will not become willing or able to do so within
a reasonable period of time.").

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preferences in determining what is in the best interest of the

Children. See Troxel, 530 U.S. at 70. Therefore, Mother has not

established that the Family Court applied HRS § 560:5-210(b) to

this case in an unconstitutional manner. We will address, infra,

whether the Family Court erred in finding that Mother is not able

to parent the Children.

Mother's argument that HRS § 560:5-210(b) is facially

unconstitutional also fails. "A facial challenge to a

legislative Act is, of course, the most difficult challenge to

mount successfully, since the challenger must establish that no

set of circumstances exists under which the Act would be valid."

United States v. Salerno, 481 U.S. 739, 745 (1987). An appellate

court determining the constitutionality of a statute must

"interpret [the] statute so as to preserve its constitutionality

whenever feasible." Doe v. Doe, 116 Hawai i at 331, 172 P.3d at

1075.

The grandparent visitation statute in Doe v. Doe was

deemed facially unconstitutional because the apparent purpose of

the statute was to allow grandparents to circumvent the decisions

of parents, and thereby "undermine[] a parent's judgment to not

allow grandparents access to one's child based merely on a

finding that grandparent visitation was in the child's best

interests." A.A., 139 Hawai i at 114, 384 P.3d at 890

(discussing Doe v. Doe, 116 Hawai i at 332 n.6, 172 P.3d at 1076

n.6). No such legislative purpose to circumvent parental

decisions exists for HRS § 560:5-210. See H. Stand. Comm. Rep.

No. 597, in 2004 House Journal (providing that guardianships

should be "viewed as a last resort"). Rather, as discussed

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infra, the court may only override parental consent to form a

guardianship upon a finding that all parental rights have

actually been or meet the requirements to be terminated. See HRS

§ 560:5-204 (2018). Accordingly, there are multiple

circumstances in which the court would not need to afford special

weight to a parent's decisions in guardianship proceedings under

HRS § 560:5-210 because the parent's rights had already been

terminated or they had been adjudicated unfit. See id.

Therefore, HRS § 560:5-210 is not facially invalid.

Appellants challenge the Family Court's appointment of

GK as co-guardian under HRS § 560:5-112(c), which provides that

the court "may appoint an additional guardian or conservator at

any time, to serve immediately or upon some other designated

event[.]" HRS § 560:5-112 provides for when the court can

appoint a co-guardian, i.e., "at any time," whereas HRS § 560:5-

204 provides the conditions for the appointment of a guardian for

a minor. HRS § 560:5-204 provides in relevant part:
§ 560:5-204 Judicial appointment of guardian;
conditions for appointment.

. . . .

(b) The court may appoint a guardian for a minor if
the court finds the appointment is in the minor's best
interest, and:

(1) The parents consent;

(2) All parental rights have been terminated; or

(3) The parents are unwilling or unable to
exercise their parental rights.

Accordingly, if a parent does not consent to the

appointment of a guardian, as here, the Family Court may only

appoint the guardian if it finds that the appointment is (1) in

the minor's best interest, and (2) all parental rights have been

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terminated or the parents are unwilling or unable to exercise

their parental rights. Id. The Family Court erred to the extent

that it determined HRS § 560:5-112(c) permitted it to add GK as a

co-guardian.

However, such error may be harmless because the Family

Court found that Mother is not able to parent the Children. See

HFCR Rule 61 ("The court at every stage of the proceeding must

disregard any error or defect in the proceeding which does not

affect the substantial rights of the parties.").

Appellants further argue that the Family Court

wrongfully applied the preponderance of the evidence standard,

rather than the clear and convincing evidence standard, in

determining the Guardianship Order.

The clear and convincing standard of proof serves "to

protect particularly important individual interests in various

civil cases." Woodruff v. Keale, 64 Haw. 85, 100, 637 P.2d 760,

770 (1981) (quoting Addington v. Texas, 441 U.S. 418, 424

(1979)). In other words, this standard applies where "[t]he

interests at stake . . . are deemed to be more substantial than

mere loss of money." Addington, 441 U.S. at 424. On the other

hand, the preponderance of the evidence standard applies where

society has a minimal concern with the outcome of the suit, and

the parties should thus "share the risk of error in roughly equal

fashion." Id. at 423.

The ICA previously held that the preponderance standard

of proof applies to determining whether a natural parent is unfit

when appointing a guardian. In re Guardianship of Doe, 106

Hawai i 75, 78, 101 P.3d 684, 687 (App. 2004). The ICA made this

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holding based on the 1993 version of HRS §§ 560:5-204 (1993) 8 and

560:5-206 (1993),9 which provided that the only condition for the

appointment of a guardian for a minor was if the appointment

would be in the best interests of the minor. The ICA reasoned

that a guardianship differs from termination of parental rights

because a guardianship is neither absolute nor irrevocable. In

re Guardianship of Doe, 106 Hawai i at 78, 101 P.3d at 687.

While a guardianship of a minor bestows the powers and

responsibilities of a parent, the guardianship nevertheless

remains "subject to residual parental rights and

responsibilities," such as the right to reasonable visitation,

consent to adoption or marriage, and the responsibility for

support. Id. Additionally, a guardian always remains subject to

removal. Id.

However, although a guardianship may not absolutely and

irrevocably supersede all the rights of a parent, it certainly

supersedes many of these parental rights, such as the right to

the custody of and to provide care for the child. See HRS

8
HRS § 560:5-204 (1993) provided in relevant part:

§ 560:5-204 Court appointment of guardian of the
person of minor; conditions for appointment; letters;
priority of testamentary nominee. The family court may
appoint any competent person whose appointment would be in
the best interest of the minor as a guardian of the person
for an unmarried minor. . . .
9
HRS § 560:5-206 (1993) provided in relevant part:

§ 560:5-206 Court appointment of guardian of the
person of minor; qualifications; priority of minor's
nominee. Subject to the provisions of section 560:5-204,
the family court may appoint as guardian of the person of a
minor any competent person whose appointment would be in the
best interests of the minor, provided, however, if the minor
is fourteen years of age or older, the minor may nominate
any competent person and the minor's nominee shall have
priority unless the family court finds the appointment
contrary to the best interests of the minor.

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§ 560:5-208(a) (2018) ("Except as otherwise limited by the court,

a guardian of a minor ward has the powers of a parent regarding

the ward's support, care, education, health, and welfare."); 39

Am. Jur. 2d Guardian and Ward § 90 (2025) ("Until the

guardianship of a minor child is terminated, the guardian's right

to custody of the minor is superior to that of the minor's

parent."). Therefore, the fundamental liberty interest of a

parent in the care, custody, and control of their child is

implicated in guardianship proceedings.

Since the In re Guardianship of Doe decision, the

Hawai i legislature repealed the guardianship of a minor

provisions, HRS § 560:5-201 to -212, and adopted the 1998 UGPPA

in their place. 2004 Haw. Sess. Laws Act 161 § 1; H. Stand.

Comm. Rep. No. 597, in 2004 House Journal. The legislative

history of Act 161 indicates that guardianships should be "viewed

as a last resort," and that "[o]nly when no alternative to

guardianship . . . is available should the court create a

guardianship." H. Stand. Comm. Rep. No. 597, in 2004 House

Journal.

Consistent with these principles, the legislature

enacted HRS § 560:5-204 (Supp. 2004), 10 which imposes additional

10
HRS § 560:5-204 provides in relevant part:

§ 560:5-204 Judicial appointment of guardian;
conditions for appointment.

. . . .

(b) The court may appoint a guardian for a minor if
the court finds the appointment is in the minor's best
interest, and:

(1) The parents consent;

(2) All parental rights have been terminated; or
(continued...)

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conditions on the appointment of a guardian. The Family Court

must not only find that the appointment is in the best interest

of the child, but also find that the parents consent, all

parental rights have been terminated, or the parents are

unwilling or unable to exercise their parental rights. Id.

Notably, under HRS § 587A-33 (2018), an individual's parental

rights are terminated upon the Family Court's determination that

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 reasonable period of time. Accordingly, a court

may only override the requirement of parental consent to appoint

a guardian if parental rights have been terminated or the parent

meets the requirement for termination of parental rights. See

id.

The legislature did not specify the standard of proof

in determining whether parents are unwilling or unable to

exercise their parental rights in guardianship proceedings. 2004

Haw. Sess. Laws Act 161 § 1. In light of the fundamental liberty

interests at play and the legislative history indicating that

guardianships should be viewed as a last resort, we hold that 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.

10
(...continued)
(3) The parents are unwilling or unable to
exercise their parental rights.

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We therefore conclude that the Family Court applied the

wrong standard of proof. We will address, infra, whether the

Family Court's misapplication of the standard of proof was

harmless error.

B. The MSJ

Appellants argue that Mother was entitled to summary

judgment because Guardian admitted via her failure to respond to

Mother's Request for Admissions that Mother is a fit parent with

a stable and wholesome home. However, the supreme court has held

that a trial court's denial of summary judgment based on its

finding that genuine issues of material fact existed is not

reviewable on appeal. Bhakta v. Cnty. of Maui, 109 Hawai i 198,

209-11, 124 P.3d 943, 954-56 (2005); Ching v. Case, 145 Hawai i

148, 169 n.36, 449 P.3d 1146, 1167 n.36 (2019). Here, the Family

Court denied the MSJ, finding that issues of material fact needed

to be decided at trial, including, inter alia, Mother's fitness,

Mother's ability to provide a safe and stable home, and the best

interest of the Children. The denial of the MSJ on this ground

is not reviewable.

C. The Guardianship Order

Appellants argue, inter alia, that the GAL Report

erroneously gave zero weight and consideration to the

constitutional rights of Mother and the constitutional rights of

minors. Appellants provide no authority to support the

proposition that minors have a constitutional right to be raised

by their natural parents, nor did we find any. Accordingly, our

analysis focuses on whether the GAL should have considered

Mother's constitutional rights.

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The Family Court appointed the GAL under HRS § 560:5-

115 (2018), which provides that "the family court shall state on

the record the duties of the guardian ad litem[.]" The Order

Appointing GAL directed GAL to "prepare a report for the Court

including recommendations in the children's best interests." The

GAL's "sole duty is to protect the subject children's needs and

interests," which includes the duties to "[a]ct as an independent

fact finder," "[a]scertain the interest of the subject children,"

"[s]eek cooperative resolutions to the subject children's

situation within the scope of the subject children's interest and

welfare," and "[p]rovide written reports of findings and

recommendations[.]" In other words, the GAL fulfills a "child-

centered role" as an "advocate for the subject children's

interests[.]" It is the duty of the Family Court, not the GAL,

to consider other factors appropriate to its ultimate

determination.

Nothing in the Order Appointing GAL directed the GAL to

consider Mother's constitutional rights. To the contrary, the

order expressly stated that the GAL "in no way represents the

Guardian, [GK], [Mother] or [SK]." Accordingly, it was not

within the scope of the GAL's duties to evaluate and report on

Mother's interests, constitutional or otherwise.

Further, the Family Court is not bound by the GAL's

findings and recommendations and may, upon considering and

weighing all relevant factors, render a decision contrary to a

GAL's recommendations. See, e.g., Matter of Adoption of H.A.,

143 Hawai i 64, 80-81, 422 P.3d 642, 658-59 (App. 2017)
(affirming family court's adoption award against the

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recommendation of the guardian ad litem). Here, although the GAL

did not consider Mother's constitutional rights, the Family Court

considered the parental preference in favor of Mother and

concluded that the preference was rebutted. Therefore, the

Family Court did not err in considering the GAL Report and the

Supplemental GAL Report because the reports did not address

Mother's constitutional rights.

Mother challenges, inter alia, FOF D6 wherein the

Family Court found that Mother is not able to parent the Children

and conducted its best interest analysis in light of that

finding, ultimately concluding that the parental preference in

favor of Mother was therefore rebutted.

As discussed supra, the Family Court erred in applying

the preponderance of the evidence standard, rather than the clear

and convincing evidence standard, in determining that Mother is

unable to parent the Children. We now address whether the

misapplication of the standard of proof was harmless. HFCR Rule

61; e.g., State v. Miller, 84 Hawai i 269, 279-80, 933 P.2d 606,

616-17 (1997) (affirming circuit court order based on

determination that application of wrong standard of proof was

harmless); cf. In re Guardianship of Doe, 106 Hawai i at 79, 101

P.3d at 688 (vacating and remanding order denying appointment of

guardian because application of wrong standard of proof was

dispositive below).

The Family Court in challenged FOF D8 found GAL's

testimony that Mother is not able to parent the Children credible

and supportable by other evidence, and gave it weight. The GAL

indicated in her testimony that the factors she gave the most

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weight to were the Children's emotional needs and educational

needs, particularly TE's, and the history of caregiving. The

Family Court further indicated in COL D5 that it determined that

the custody presumption in favor of Mother was rebutted due to

"[Mother's] limited involvement with her children and her

demonstrated lack of knowledge or ability to take into account

their emotional and special needs[.]" Accordingly, it appears

that these were the primary factors in the Family Court's

determination that Mother is unfit. We address these issues

accordingly.

Appellants challenge FOFs D17-D19 as well as D47.

These concern Mother's involvement and communication with the

Children during the unlimited guardianship on Kaua i, and the

limited guardianship in Oregon.

By Mother's own admission, her contact with the

Children on Kaua i during the unlimited guardianship – in place

prior to the July 2020 Stipulation – was sporadic. The Family

Court found in the unchallenged FOF D48 that once the Children

moved to Oregon, Mother's time with the Children became more

dependable. For example, both the GAL Report and the Guardians'

testimony indicate that Mother's contact with the Children

increased in frequency in 2022. The GAL Report indicated that

Mother's monthly texts with the Children increased to between ten

and twenty-two times from December 2021 to February 2022. GK's

testimony indicated that starting in September 2022, Mother

called the Children every day. Additionally, Mother has

consistently exercised her custodial time with the Children since

the limited guardianship began.

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Accordingly, the record indicates that notwithstanding

Mother's inconsistent contact with the Children during the

initial unlimited guardianship, Mother substantially increased

the frequency and consistency of her contact throughout the

limited guardianship and after she began her efforts to regain

custody of the Children.

Appellants also challenge FOFs D7, D55-56, and D71

concerning Mother's ability to meet the Children's emotional

needs. GAL testified that both Children's emotional needs are

"heightened."

Based on the evidence presented at trial, it appears

that IW's emotional needs have little to do with Mother's ability

or inability to meet those needs, but rather focus on the degree

of attachment to Guardians, and in particular to Guardian. The

GAL testified that due to this attachment, IW could suffer

emotional harm simply by reducing her time under Guardian's care,

regardless of the ability of the new primary caregiver. GAL's

assessment of Mother's inability to meet the Children's emotional

needs also relied on Mother's lack of a stated therapeutic plan

and lack of involvement with the Children's therapy during the

guardianship. However, Mother has testified that she would

continue therapy for both Children, but it was difficult to put a

specific plan in place given the guardianship.

Challenged FOFs D7, D55, D59, D64, D65, D93, D95-D97,

and D131 concern Mother's ability to meet the Children's

educational and/or special needs. However, the GAL indicated

that IW would be able to attend school on Kaua i at grade level
and perform academically, and that Mother understands IW's

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educational needs. Much of the testimony regarding the

Children's educational needs centered around TE's special needs.

TE has been diagnosed with autism and ADHD. As a

result, TE initially had a 504 Plan and then an IEP. GAL and Dr.

Dianne Gerard, a Kaua i psychologist, testified that TE's special

needs require a high level of care and structure as well as

medication management. GAL expressed concern regarding Mother's

ability to meet TE's educational needs due to Mother's issues

with timeliness, Mother's lack of involvement with TE's 504 or

IEP and autism services, and TE's medication management.

The record indicates that Mother has had limited

involvement with the Children's education while the Guardian had

unlimited authority over the Children's education. GAL testified

that she believed Mother does not have the ability to understand

TE's IEP due to her lack of involvement. Although Mother has

been kept generally informed about the Children's education, it

does not appear that she has been invited to participate. Mother

indicated that she has contacted schools about educational

options for the Children, and that she would seek out services

for TE's special needs if the guardianship were to be terminated.

Mother explained that she did not have a "set-in-stone plan" for

the Children's education because "it's so up in the air at this

point what's happening with them."

GAL, Mother, and Guardian have all recognized that

Mother has had issues regarding being late to pick up the

Children. GAL expressed concern regarding Mother's ability to

meet TE's educational needs due to Mother's issues with

timeliness. Dr. Gerard stated that she felt it would be "fairly

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dangerous" for the guardianship to be changed because TE's needs

for structure and supervision "might well not have been matched

by his mother." GAL observed TE becoming agitated when Mother

was late to pick him up.

Guardian also testified that when TE returned from

staying with Mother over a summer, he had not taken 23 out of 30

capsules of his ADHD medication. Mother explained that she did

not force TE to take his ADHD medication over the summer because

her understanding was that the medication was for "school

purposes." TE also experienced "sensory overload" issues in

Mother's house in summer 2021, but the situation was improved in

summer 2022. Mother stated that she has discussed additional

options to help manage TE's sensory issues.

Overall, the record indicates that Mother's involvement

in the Children's education and TE's special needs services was

limited while Guardian held educational authority over the

Children. It appears that Mother is willing to ensure that TE is

provided with services to meet his special and educational needs,

but that Dr. Gerard and GAL were nevertheless concerned about

Mother's ability to do so. There was no evidence contrary to

Mother's testimony that issues with TE's medication

administration was due to Mother's misunderstanding about the

purpose of the medication. Mother may have issues with

timeliness and structure, but such issues are not to the extent

that she is clearly unwilling and unable to parent the Children.

For these reasons, we cannot conclude that the evidence

supporting the Family Court's decision was so overwhelming that

the misapplication of the lower preponderance standard to the

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issue of Mother's ability to meet the Children's educational and

special needs was harmless.

Therefore, the Family Court's application of the

preponderance standard, rather than the clear and convincing

standard, to the issue of Mother's fitness to parent the Children

was not harmless, and Mother's substantial rights were therefore

prejudiced. We vacate in part and remand the Guardianship Order

to the Family Court for further proceedings consistent with this

Memorandum Opinion. See In re Guardianship of Doe, 106 Hawai i

at 79, 101 P.3d at 688 ("[T]he weighing of the proper quantum of

proof of the natural father's unfitness vel non, as between the

contrapuntal considerations found by the family court in the

evidence adduced . . . remains with the family court.").

Notwithstanding our determination that the Guardianship Order

must be vacated, in order to ensure relative stability for the

Children pending further proceedings, which may take into

consideration any changes in circumstances, we vacate only in

part so that the Guardianship Order will remain in effect pending

the outcome of the further proceedings before the Family Court.

D. GAL Clarification Order

Appellants argue that the Family Court erred by

sanctioning SK with the GAL Clarification Order fees because,

inter alia, it did not cite to any authority allowing it to do

so, the Order Appointing GAL provided that Guardian shall pay the

GAL's costs, and there was no finding of bad faith. Appellants

challenge FOFs B9 and B10 and COLs B1 and B2 in conjunction with

their arguments.

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The Order Appointing GAL provided that the GAL was

appointed pursuant to HRS § 560:5-115, which specifically

provides for the compensation of a GAL, stating in relevant part:
§ 560:5-115 Guardian ad litem. . . . Persons
appointed by the court or the family court, as applicable,
to serve as guardians ad litem or to perform any other
duties that may be requested by the court in guardianship
and protective proceedings shall be compensated in the
amounts, if any, that the court deems appropriate and
reasonable. Any such compensation shall be paid from the
respondent's assets or other source under the jurisdiction
of the court or the family court as it shall order.

Accordingly, the Family Court had the authority to

order the parties to pay GAL's fees under HRS § 560:5-115,

without a separate motion or finding of bad faith for the Family

Court to order such compensation.

The Order Appointing GAL provided that Guardian shall

front the cost of the GAL, and that it would later determine

whether other parties shall be ordered to reimburse Guardian for

the cost of the GAL, in whole or in part. However, the order did

not preclude the Family Court from otherwise exercising its

authority under HRS § 560:5-115 based on particular

circumstances. Unchallenged FOFs B1 to B4, B7, and B8 for the

GAL Clarification Order provide:
1. The GAL filed a Motion on April 26, 2023, seeking
clarification and direction from the Court regarding a
request for information from [SK].

2. In her Motion, the GAL included the text of [SK's]
request, which sought for the GAL to provide him with all
documents and information that was considered and/or
disregarded by the GAL when making her recommendations.

3. The GAL asked the Court to clarify this request as the
GAL found the request to be very broad and asking for
information not considered.

4. A hearing on the Motion was held on May 18, 2022.

. . . .

7. The GAL and [SK] engaged in dialogue with the Court
regarding his request.

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8. Through the discussion with the Court, the GAL and [SK]
reached an understanding regarding what information held by
the GAL should be turned over to [SK].

Upon review, we conclude that the Family Court did not

abuse its discretion in ordering SK to pay the GAL's fees at

issue.

E. Order to Amend Tax Return

Appellants argue that the Family Court erred in

ordering Mother to amend her 2021 tax return because the Children

resided with Mother during the entire 2021 calendar year except

that they were temporarily absent for the purpose of attending

school in Oregon. Appellants challenges FOFs C17, C(18)(d), C19,

and C20, and COL C2 in conjunction with that argument.

Appellants further argue, inter alia, that the Family Court erred

by acting outside its discretion because it lacked the authority

to compel Mother to amend her tax returns.

The Family Court based its determination on the

parties' relative support of Children and time of custodial care.

We have recognized the Family Court's authority to authorize a

party to claim the annual tax deduction for a dependent child.

See, e.g., Spencer v. Spencer, No. 30320, 2011 WL 4537845, *1 n.2

(Haw. App. Sept. 30, 2011) (SDO) (noting that dependent tax

exemption for a child is usually awarded to custodial parent,

unless it is waived). Accordingly, we cannot conclude that the

Family Court erred in ordering Mother to amend her 2021 tax

return and not declare the Children as dependents in future tax

returns.11

11
To be clear, the "future returns" issue is subject to amendment if
there is a further change in primary custody.

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F. Motion for New Trial and Relief

Mother argues that Guardian intentionally concealed her

application for employment in Michigan during the trial, which

deprived Mother and SK from discovering any evidence related to

Guardian's plans and ability to provide for the best interests of

the Children in Michigan. SK argues that the Family Court erred

by failing to order a new trial on the grounds that Guardians

were contemplating a move from Oregon to Michigan while trial was

still pending, and this information was not revealed at the time

of trial. Because we are already vacating in part and remanding

the Guardianship Order, we need not reach the issue of whether

the Family Court abused its discretion in denying a new trial.

Appellants further argue that the Family Court erred in

granting the Motion to Relocate without first assessing whether

Mother's rights would be affected by granting Guardians' motion

to move the Children from Oregon to Michigan. Appellants

challenge FOFs E25 and E26 and COLs E1-E7 in conjunction with

these arguments. Appellants also argue that Mother's

constitutional and statutory rights were deprived without an

opportunity to be heard when the Family Court issued the Ex Parte

Order to Verify Return Flights, ordering Mother to verify the

Children's return flights to Michigan.

As indicated in COLs E1 to E4, the Family Court granted

the Motion to Relocate based primarily on its previous

determination that the guardianship was in the best interest of

the Children. The Family Court conducted its best interest

analysis in light of its finding that Mother was unfit to parent

the Children and that the parental preference in favor of Mother

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was rebutted. As we have already decided to vacate in part the

Guardianship Order we also vacate and remand the Relocation Order

and the Ex Parte Order to Verify Return Flights for further

proceedings consistent with this Memorandum Opinion.

V. CONCLUSION

For the foregoing reasons, the Family Court's June 22,

2022 Order Denying MSJ, the June 22, 2022 GAL Clarification

Order, and the June 22, 2022 Order to Amend Tax Return are

affirmed. The Family Court's January 27, 2023 Guardianship Order,

the April 25, 2023 Relocation Order, and the July 18, 2023 Ex-

Parte Order to Verify Return Flights are vacated, to the extent

described herein. This case is remanded to the Family Court for

further proceedings consistent with this Memorandum Opinion.

DATED: Honolulu, Hawai i, November 18, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Michael A. Glenn,
for Petitioner-Appellant SW. /s/ Keith K. Hiraoka
Associate Judge
SK, Petitioner-Appellant,
pro se. /s/ Clyde J. Wadsworth
Associate Judge
Kai Lawrence,
for Guardians-Appellees.

Sianha M. Gualano,
Deputy Solicitor General,
on the amicus curiae brief
for the Attorney General of the
State of Hawai i.