Hawaii Bar Journal May 2023

Joseph Dane

Susan

Ryan Hamaguchi

Cynthia Johiro

Edward Kemper

Laurel Loo

Melvin M M Masuda

Eaton O'Neill

Lennes Omuro

Brett Tobin

HSBA OFFICERS

President

Rhonda Griswold

President-Elect

Jesse Souki

Vice President

Mark M Murakami

Secretary

Lanson Kupau

Treasurer

Alika Piper

YLD OFFICERS President

Lisa Yang

Vice President/President-Elect

Kelcie Nagata

Secretary

Danica Swenson Treasurer

Andria Schumann

EXECUTIVE DIRECTOR

Patricia Mau-Shimizu GRASS

Art Direction

Debra Castro

Production

Beryl

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On the Cover: Ba l a n c i n g Ac t by Pat r i c e A . Fe de r spi e l . Fe de r spi e l moved to Hawai`i in 2000, to live her dream of painting full time Her BS in Art Education is from the University of Wisconsin She is a signature member, trustee, and past president of the Hawai’i Watercolor Society Her award-winning watercolors have been shown in numerous exhibits in the U S and is collected by fans world wide Her painting “Balancing Act” asks that you recognize all that you balance on a daily basis.

To see more of her work please visit: www artofaloha com or ArtOfAloha on Facebook and Instagram

Notices and articles should be sent to Edward C Kemper at edracers@aol com, Cynthia M Johiro at cynthia m johiro@hawaii gov, or Carol K Muranaka at carol k muranaka@gmail com All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community The Hawaii Bar Jour nal reserves the right to edit or not publish submitted material Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised The HSBA and the publisher disclaim any liability arising from reliance upon infor mation contained herein This publication is designed to provide general infor mation only, with regard to the subject matter covered It is not a substitute for legal, accounting, or other professional services or advice This publication is intended for educational and infor mational purposes only Nothing contained in this publication is to be considered as the rendering of legal advice

Family L aw For um

by the HSBA Committee on Judicial Administration

ACKNOWLEDGMENTS

The Hawaii State Bar Association Committee on Judicial Administration was established for the pur pose of maintaining a close relationship with the Judiciary on matters of mutual concer n to the bench and bar. Since 2012, the Bench-Bar Conferences and in alter nate years, the Criminal Law Forums, Civil Law Forums, and Family Law Forums have been positive and constructive because of the enthusiasm of Hawai‘i Supreme Court Chief Justice Mark E Recktenwald, who has supported the endeavors of the committee The committee appreciates his dedication in making these efforts a priority.

The committee acknowledges the time and work everyone has put into planning, organizing, and making the Family Law Forum a success. The committee appreciates those that have assisted as moderators and panelists for the Forum: Judge Brian Costa, Judge Andrew Park, Judge Jessi Hall, Judge Adrianne Heely, Judge Darien Nagata, Judge Stephanie Char, Lynn Hecht Schafran, Elladine Olevao, Caroline Cobangbang, Valerie Grab, Madeline Tomasino-Reed, Kevin Adaniya, and Tom Tanimoto Special thanks to Lisa Lum for the technical support, Hayley Cheng for the behind-the-scenes guidance and assistance, and Erin Kobayashi for being the reporter

I. WELCOME

The Family Law Forum held on Friday, October 21, 2022 opened with remarks from the following distinguished individuals: Hawai`i Supreme Court Justice Simeon R. Acoba (ret.), cochair of the Judicial Administration Committee; Hawai`i

Supreme Court Chief Justice Mark E Recktenwald welcomed participants on behalf of the Judiciary; Vladimir Devens, cochair of the Judicial Administration Committee; HSBA President Shannon Sheldon; and Judge Brian A Costa, District Family Court Judge of the First Circuit

II. DOMESTIC VIOLENCE AND THE EFFECTS ON CHILDREN: “LITTLE PITCHERS, BIG EARS: HOW DOMESTIC VIOLENCE IMPACTS DEVELOPING BRAINS – NATURE AND NURTURE, NEUROSCIENCE AND ACES”

A. Case Discussion and Overview

Lynn Hecht Schafran’s1 presentation focused on how domestic violence affects children’s brains. She mentioned a short news article by The Associated Press dated June 15, 2022 titled “Supreme Court Rules with American Woman in Bitter Custody Dispute.” The article focused on the United States Supreme Court’s unanimous decision overtur ning the order issued by a United Stated District Court Judge of the Easter n District of New York mandating the retur n of a child to Italy despite finding that the child would be at “ grave risk of psychological har m ” because of the father’s physical and emotional abuse of the mother.

As Ms Schafran explained, the lower court’s finding that the “ grave risk of har m ” to the child could be mitigated by simply keeping his parents apart was completely inaccurate and did not recognize or appreciate the complexity of domestic violence and its impact on a child Ms Schafran’s notes, the article by The Associated Press, and excer pt from the Memorandum Decision and Order issued by the Easter n District of New York are attached as Appendix A

The December 2012 Report of the Attor ney General’s National Task Force on Children Exposed to Violence: Defending Childhood, Protect, Heal, Thrive, reported that children’s exposure to violence, including domestic violence, is “ a national crisis with effects lasting well into adulthood ” Ms Schafran explained that exposure to violence, whether as a direct victim or witness, has a profound impact on children’s developing brains and poses significant implications for the courts The challenge,

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, g p p countable while both acknowledging the har m to victims and enabling offenders to change (e.g., many offenders experienced violence in their own childhood homes)

B. Hawai‘i’s Custody Statute and the Neurological Dif ferences between the Perpetrator and Victim

Ms Schafran complimented Hawaii’s custody statutes, highlighting Hawai`i Revised Statute section 571-46(a)(9) (2008), which prioritizes “the safety and well-being of the child and the parent who is the victim of family violence ” She explained that central to a child’s well-being and safety was not living in an environment of fear and toxic stress She then described the neurological differences between the perpetrator of domestic violence and the victim, including her PowerPoint presentation illustrating that the perpetrator is not stressed, the prefrontal cortex is in control, and thinking and behavior are planned, practiced, and habitual On the other hand, the victim is afraid, overwhelmed, the fear circuitry is in control, attention, and thoughts are driven by the perpetrator’s actions, and the victim’s behavior is controlled by survival reflexes and habits from childhood

Ms. Schafran explained the victim’s state of constant anxiety and fear is often manifested in how the victim may appear – often frazzled and upset while the perpetrator may appear cool, articulate, and calm (e.g., can recite events in chronology). As a result, the perpetrator may present as more credible than the victim Ms Schafran recited the adage, “don’t judge a book by its cover ” She further indicated that neuroscience infor ms why domestic violence impacts a child’s development

C. First Impressions: Exposure to Violence and a Child’s Developing Brain (Video)

The video, “First Impressions: Exposure to Violence and a Child’s Developing Brain” which was created by the California Attorney General’s Office and available on YouTube was presented The video explained that a baby’s brain is undeveloped at birth waiting for experiences to help shape it. A baby or young child’s brain is thus more vulnerable Previously, it was believed that young children are not affected by domestic violence because they do not know what is happening, unfortunately, young children are the most severely impacted, resulting in dramatic and lifelong consequences For example, a baby absorbs the internal state of the victim parent, which is characterized by stress, anxiety, and constant fear

The video demonstrated that children who are exposed to domestic violence are chronically stressed, have difficulty bonding and for ming attachments, and manifest itself in unwanted or disruptive behaviors A child exposed to domestic violence adopts a survival strategy and is in constant crisis mode This affects his or her ability to learn. Surprisingly, children exposed to violence have more mental health issues than those children who actually experienced physical abuse While the video focused on babies and small children, Ms. Schafran affir med that children of all ages are affected by domestic violence She noted that children exposed to domestic violence need to talk about their feelings It is important that they receive critical messages about what they have experienced (e g , it is not your fault)

D. The Impact of Domestic Violence on a Child’s Brain and the Sensitization to the Defense Circuitry

Ms Schafran highlighted the expert witness testimony in Saada v. Golan, the case referenced in the beginning of her presentation The expert witness, Dr Edward Tronick, a leading child development expert and member of the Developmental Brain Science Program of the University of Massachusetts, testified:

[E]xposure to domestic violence has immediate effects on young children’s cognitive, social, and emotional development and their ability to “regulate stress ” It also has a physiological effects and both immediate and long-ter m effects on t h e b r a i n s t r u c t u re a n d o rg a n i z at i o n [ E ] x p

domestic violence could have particularly severe effects on a child as young as B A S because of the state of brain development at that age Continued exposure or re-exposure to domestic violence, whether directed at the child or witnesses by the child, has a cumulative effect on the child and increases the likelihood of later effects

Ms. Schafran also referenced the book, “What Happened to You?” by Dr Bruce D Perry (2021), which found:

Biologically speaking continuous trauma can weaken remaining neural pathways to the thinking part of the brain and strengthen neural pathways to the survival part, thus bypassing the thinking part, which makes some children less capable of coping with adversity as they grow up.

She then presented on the impact of sensitization to the defense circuitry. Ms. Schafran illustrated this using a slide by Christopher F Wilson, Psy D that drew a correlation between the length of time a person is exposed to violence and the impact on his or her assessment of what is a “threat.” The longer a person is exposed, the more heightened his or her defense circuitry becomes and the more difficult it is to “ come down” from this state.

E. Adverse Childhood Experiences (ACE) Study

Ms Schafran discussed the Adverse Childhood Experiences (ACE) Study, which explains how crucial children’s experiences inside and outside the home are to their lifelong mental, physical, and emotional health and behavior. She stated that domestic violence is a learned behavior

In the video, “How Childhood Trauma Affects Health Across a Lifetime,” Dr Nadine Burke Harris explained that the ACE Study was a collaboration between California HMO Kaiser Per manente and the Center for Disease Control from 1995-1997, featuring 17,337 responses from mostly white, well-educated patients The study asks ten questions about physical and sexual abuse, neglect, and household dysfunctions such as substance abuse, criminal household member, and domestic violence (observed or per petrated)

The study was created after Dr. Vincent Felitti, head of preventative medicine at Kaiser Per manente, found that 56% of his obesity patients reported childhood sexual abuse At the time, he was running a weight loss study and interviewing patients who had dropped out of the study. Dr. Felitti’s curiosity as to whether there was a correlation between obesity and childhood abuse led him to work with Dr. Robert Anda of the Center for Disease Control to create the ACE Study The ACE Study found that childhood abuse, household dysfunction, and other for ms of adversity were common and linked to elevated risks of mental health problems and physical illness, including heart disease, across a person ’ s lifespan

The ACE Study uses the ACE Score, which is a total count of the number of ACEs reported by the respondent The ACE score is used to assess the total amount of stress during childhood and has demonstrated that as the number of ACEs increase, the risk for health problems, such as alcoholism and alcohol abuse, chronic obstructive pulmonary disease, depression, liver disease, risk for intimate partner violence, multiple sexual partners, sexually transmitted diseases, smoking, suicide attempts, unintended pregnancies, and adolescent pregnancy among others, increases in a strong and g raded fashion The higher the score, the g reater the risk is for all aspects of a person ’ s health over their lifespan

F. The Convergence of Neurobiolog y and Epidemiolog y

Subsequent to the advent of the ACE study, the neuroscience covering children’s developing brains evolved The neuroscience explains how growing up in fear bathes the highly plastic developing brain in stress hor mones that literally shape brain structures and circuits

Ms. Schafran referenced an article titled “The Enduring Effects of Abuse and Related Adverse Experiences in Childhood: A Convergence of Evidence from Neurobiology and Epidemiology” published in 2004 by a group of eight neuroscientists, pediatricians, physicians, and public health experts, including Dr Felitti

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and Dr. Anda, regarding the detrimental effects of traumatic stress on developing neural networks and on the neuroendocrine systems that regulate them. Specifically, the “ convergence of evidence from neurobiology and epidemiology calls for an integrated perspective on the origins of health and social problems through the lifespan ” The article can be accessed at: https://www.ncbi.nlm.nih.gov/pmc/articles/PM C3232061/pdf/nihms340170 pdf

She further explained that in a safe environment when the child has a nurturing relationship with a caregiver, moderate stress produces resilience

Children lear n to deal with everyday stress Toxic stress,2 however, produces a per manent “alar m state ”

Referring to Dr Bruce Perry’s lecture, “Maltreatment and the Developing Child: How Early Childhood Experience Shapes Child and Culture Differential “State” Reactivity”, available at http://www lfcc on ca/mccain/per r y pdf, Ms Schafran related that in the “alar m state,” the baseline state of arousal is altered. The result is that children are physiologically in a state of alar m, of “fight or flight,” even when there is no external threat or demand For example, when a stressor arises such as an argument with a peer or a demanding school task, children can escalate to a state of fear very quickly

As another example, when faced with a typical exchange with an adult, perhaps a teacher in a slightly frustrated mood, the child may over-read the non-verbal cues such as eye contact or touch. In short, compared to their peers, traumatized children may have less capacity to tolerate the

nor mal demands and tresses of school, home, and social life

Ms. Schafran further described that toxic stress could produce “fear conditioning” early in a child’s life Over time, neutral stimuli elicit fear, and the emotional memory of fearful events becomes strong and stable This adversely impacts ocial interaction, behavior, and a child’s ability to learn The more prolonged the stressor, the greater the likelihood of long-ter m symptoms over the lifespan While a calm child can focus on a teacher’s words and engage in abstract cognition, a child in an alar m state is less efficient at processing and storing verbal infor mation. The traumatized child lives in an aroused state, ill-prepared to learn from social, emotional, and other life experiences. The child is living in the moment and may not fully appreciate the consequences of his or her actions Ingesting alcohol and/or drugs magnifies this effect

Children subjected to toxic stress often display symptoms linked to the neurobiology of their major coping adaptation The neurochemical system of the dissociating child is predisposed to somatic complaints, withdrawal, helplessness, dependence, anxiety disorders, and major depression The neurochemical system of the fight or flight child is also susceptible to symptoms related to persistent hyperarousal such as increased startle response, serious sleep disorders, anxiety, hyperactivity, conduct disorder, Attention Deficit and Hyperactivity Disorder, and post-traumatic stress disorder.

Ms Schafran explained that children raised in an environment of persistent exposure to domestic violence are more likely to be violent themselves as children and adults This behavior is likely linked to their being in constant fight or flight mode and the cognitive distortions fear produces She also suggested that courts can help to protect children through orders that end the exposure to domestic violence and support the protective, non-abusing parent

G. Custody Evaluators, Fact Finders, and the Custody Investigation Unit – Determining Custody in the Hawai‘i Family Courts

Ms Schafran emphasized the importance of training for those who evaluate families for the courts. She endorsed specialized training for those who make recommendations regarding custody and neuroscience education in the impact on children of exposure to domestic violence This approach should guide decisions regarding the best interest of a child. Educational programs should address ending the child’s exposure to domestic violence, supporting the protective parent in order to promote healing and promoting the child’s needs for trauma-infor med care and treatment.

She further recommended that judges should require anyone seeking appointment as a guardian ad litem or custody evaluator to demonstrate knowledge of domestic violence and the relevant social science and neuroscience. Ms. Schafran

standardized for m for guardian ad litems and custody evaluators for use in evaluations and reports that includes reporting of violent acts that occurred. She suggests judges encourage stakeholders in domestic violence cases (e g , attorneys, law enforcement, mental health professionals, social workers), parents, schools, and the community to educate themselves about the har m caused by domestic violence to children and to take a holistic, integrated approach

H. Hawai‘i Coercive Control Law and Post-Abuse Separation

Ms Schafran noted Hawai`i is one of few states that statutorily acknowledge coercive control 3 She advised developing a bench card with behaviorally-based questions to ascertain whether an individual is or is not safe For example, does the party require the other party to share his or her password for various accounts? Is a party able to visit the party’s family? She mentioned that a person may exert control by monitoring the other party’s activities, deciding what they wear, where they go, with

whom they socialize, and persuading their partner checking up on them is an expression of love

She explained that post-separation abuse is an ongoing pattern of “intimate terrorism” encompassing weaponizing children, physical and sexual violence, psychological abuse, economic/financial abuse, legal abuse, and tactics that isolate and discredit victims from their community and support systems She noted that often the ter mination of the parents’ relationship does not end the domestic abuse and coercive control; perpetrators furious at losing control of their partner are more likely to seek child custody, manipulate the courts, perpetrate post-separation abuse and coercive control, and yet be awarded custody. She detailed “admirable fathering” wherein the father may appear to be caring, concerned, and indulgent, but exercises subtle manipulation (e.g., blames mother for everything, makes statements like “ your mom makes me cry ” or “ you ’ re the only one who loves me”). She also reminded participants that children and

young people can be direct victims and survivors of coercive control

Ms Schafran’s PowerPoint presentation is attached as Appendix B.

III. DEPARTMENT OF HUMAN SERVICES’ CHILD WELFARE SERVICES

The Honorable Andrew Park, District Court Judge of the Family Court of the First Circuit moderated the discussion of the Department of Human Services, Child Welfare Services Division.

A. Overview

Simeona Mariano, Deputy Attorney General for the Department of Human Services,4 and Elladine Olevao, Branch Administrator for Child Welfare Services (CWS), provided an overview of the CWS process Ms Mariano described the three ways in which the Department becomes involved with a child and/or family; (1) a direct call through the Department’s hotline, (2) a call through the Honolulu Police Department (e g , arrest of a parent), or (3)

by court order (e.g., restraining order, divorce case) The CWS has a 24-hour hotline (1-800-832-5300) Ms Olevao detailed the process when a call comes into CWS and the CWS assessment in accordance with Chapter 587A, Hawai`i Revised Statutes that follows:

• All calls go through the reporting line

• In-person reporting is available at the local CWS office

• CWS will conduct a safety and risk assessment to deter mine if a report is accepted or referred to Voluntary Case Management, or the family strengthening program

• Within four hours, a social worker is assigned to follow up a report of abuse and neglect and must meet with the victim/child within 48 hours from receipt of the report

• Timelines established by state or federal law guide the timing of the process and response

• Social workers have 60 days to make an assessment whether abuse neglect occurred or will occur within the next 60 days.

• The social worker must assess whether the child can remain safely in the home.

• If the child cannot remain safely in the home, the Department will take the necessary steps to remove the child The Family Law Division of the Department will prepare and file a petition within 3 working days from the child’s removal from the home

• The filing of the petition triggers specific deadlines

Ms Mariano described the three types of petitions that may be filed by the Department requesting the following:

(1) temporary foster custody (TFC), (2) foster custody, and (3) family supervision She further explained that:

• A petition for TFC is used when a child is at imminent risk of being har med or threatened with har m and must be removed from the family in order to assure his or her safety.

• A petition for Foster Custody is used when a child needs to remain out of the family home in order to assure his or her safety. A petition is filed if, regardless of the efforts of the family, changes are not made to the family home to allow the safe return of the child within 90 days. (The family can agree to out-of-home placement by signing a voluntary consent for foster placement.)

• A petition for family supervision is used when the child is able to remain in the family home because the child’s parents are willing and able to provide a safe family home with the assistance of a service plan and oversight of the court is necessary to ensure compliance with services, which will insure the safety of the child.

The presenters also discussed the various hearings involved in the CWS cases, which in part, ensure the Department is held accountable for its efforts in each case. For example, the court holds periodic review hearings every six months The court will review the parents’ progress with services, assess whether the child can be safely returned to the family home, and ensure the child’s needs are being met The Department and the guardian ad litem will file reports for the court’s review

The per manency hearing in CWS cases was detailed. The per manency hearing is held every twelve months from the child’s initial date of entry into foster care or within thirty days of a judicial deter mination that the child is an abandoned infant or that aggravated circumstances are present and reasonable efforts to reunify a child and family are not required In this hearing, the court must deter mine if the child is to be retur ned to the legal custodian, placed for adoption and parental rights ter minated, placed per manently with a fit and willing relative, or placed in another planned per manent living arrangement

It was further explained that the Department files a motion to ter minate parental rights if the child’s family is not willing and able to provide a safe family home, even with the assistance of a service plan, within a reasonable period of time (which is not to exceed two years from the

child’s date of entry into foster care).

Those involved in a CWS case include the child, parents, attorney for the Department, guardian ad litem for the child, resource caregiver (or foster parent), and attorneys (e g , parents may have court-appointed legal counsel or hire private attorneys; sometimes a child has his or her own attorney) It was also noted interpreters are available when needed.

Reunification is the goal in CWS cases whenever possible, and efforts are made to keep children with their families, if safe and appropriate It was disclosed that the Department has over one hundred contracts with various providers to provide services to children and families Currently, there are about 1,800 children in foster care statewide.

The presenters also provided infor mation about Family First Hawai`i, established by the Family First Prevention Services Act, with the premise that families can often provide safe and loving care if they have the support and services they need Family First Hawai`i works in collaboration with CWS and other stakeholders, through federal funds, toward the ultimate goal of preventing children from entering the foster care system while incorporating the culture and values of Hawai`i families Ms Olevao explained that children who are of native Hawaiian and/or Pacific Island descent are disproportionately represented in CWS matters at nearly twice the rate of children who are of Caucasian ethnicity

B. Participants in Child Welfare Service Cases

Caroline Cobangbang, who serves as a court-appointed guardian ad litem for children in CWS matters, stated that her role is to promote and protect the needs and the best interest of the child Once there is an open case (i e , a petition has been filed), a child is assigned a guardian ad litem As a guardian ad litem, she represents children who may be in foster care or still in the home under family supervision Ms Cobangbang stated that she is present at the first hearing in the case and is separate and independent of the Department of Human Services She stated

that she can make suggestions in the case, file motions on behalf of the child, and is a party in the matter She further explained that as the guardian ad litem, she participates in regular review hearings, provides reports to the court, and is involved in obtaining infor mation and working with providers involved in the case (e g , child’s school, child’s therapist)

Valerie Grab, Executive Director, and Madeline Tomasino-Reed, Managing Attorney, co-founders of The Children’s Law Project of Hawai`i,5 a non-profit public interest law fir m based on Hawai`i island and established in 2017, explained that their mission is to elevate the practice of child welfare law on the island They serve as guardian ad litems for foster children and children who are involved in the court system (e g , truancy cases, juvenile law offender cases, or custody dispute cases), as well as representing non-parent caregivers in guardianship and adoption proceedings

They believe that holistic advocacy requires more than meeting with the child every quarter and submitting a report every five and one-half months To be effective guardian ad litems, comprehensive reviews of all systems that affect the child are necessary, including areas such as the child’s education (especially if they receive special education or have disciplinary issues) and physical and mental health

Guardian ad litems need to be active in other proceedings involving the child (e g , domestic abuse case) and diligent with respect to matters affecting the child (e g , parents’ participation in services, Ohana conferences), and they will accompany a child, for example, if they testify in a criminal matter.

Ms Grab talked about the challenges facing guardian ad litems, including the need to have a wide breadth of knowledge on different subject areas to effectively represent children The Children’s Law Project provides support and trainings for guardian ad litems and resource centers (located in Hilo and Kona) that provide a safe and confidential environment where guardian ad litems can interview their clients and caregivers The Child Law Project also provides a library with resource materials for guardian ad litems

There are also material and infor mation available from the National Association of Counsel for Children

In the First Circuit, children are encouraged to come to court, if for example, they want to meet with the judge presiding over their case or see what the courtroom looks like The guardian ad litem will assist in the coordination and accompany the child.

Ms Tomasino-Reed presented information about representing parents in CWS cases. She expounded on the emotional challenges of the practice and the immediate need to assess whether they will challenge the state’s actions (e.g., removal of the child) As counsel for parents, they assist their clients in deciding whether to agree to certain services and advocate for services that will meet their needs and help them to reunify with their child

Kevin Adaniya provided infor mation about the Oahu Child Welfare Mediation program launched in 2009, incorporating best practices from well-established mediation programs in California The program ’ s goals are to keep children safe and to more quickly return them safely home or provide them with a safe, per manent alternate home The program seeks to empower parents to fully participate in their cases, use social worker’s expertise efficiently and effectively as much as possible, engage in mutual decision-making, and develop plans, conditions, and court orders that are in a child’s best interest, and protect the rights of the parties

A mediation referral is typically made when a case is set for trial The presiding judge will inquire with the attorneys whether the case should be set for mediation and will deter mine if mediation is appropriate The court will schedule the mediation prior to the trial. Common case issues include adjudication (i e , whether the child has been har med or threatened with har m to justify the continuation of the case), whether a continuation of foster custody or a return of the child to a parent under family supervision is appropriate, ter mination of parental rights, and the per manent plan for a child such as adoption or guardianship. He explained that there may be many participants in a CWS

case mediation,6 including counsel for the Department and parents, the parents, social worker, guardian ad litem, and sometimes the resource caregiver.

The court will hold a pretrial conference after the mediation If a full agreement has been reached, the court will set aside the trial If a full agreement has not been reached, the court will conduct the pretrial conference in preparation for the trial The Child Welfare Mediation program committee receives input from participants and stakeholders and makes adjustments to the program whenever necessary The committee also provides statistics on mediation outcomes. Statistics from the program as of the fiscal year ending on June 30, 2022 are as follows:

• Twenty-three cases were referred to mediation

• Of those cases, 43 5% of those cases were fully settled at the time of the mediation.

• Of the cases that were not fully settled at the time of mediation, partial agreements were reached in 31% of those cases

•A trial was held in only about one-third of the cases that were referred to mediation

A video featuring Delia Ulima, Melissa Mayo, and Anastasia Neumann from HI H O P E S (Hawai`i Helping Our People Envision Success) Initiative was presented Ms Ulima is the HI H O P E S Manager at EPIC Ohana Ms Mayo serves as the Pono Process Lead at EPIC Ohana and a member of the HI H O P E S Board Ms Neumann serves as the Pono Process Navigator and a member of the HI H O P E S Board Both Ms Mayo and Ms Neumann shared their impactful experience as youth in foster care.

The initiative helps young people, primarily those between the ages of 14 and 26, successfully transition from foster care to adulthood by providing access to education, employment, financial assistance, health care, housing, and family and other relationship connections The initiative works with public and private partners on the state and local level to improve policies and practices, promote youth engagement,

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and create community partnerships.

There are five Boards on East Hawai`i, West Hawai`i, Oahu, Kauai, Maui serving the island comprised of current and for mer foster care youth between the ages of 14 and 26 The mission of the Boards is to educate, advocate, and collaborate for improvements in the foster care system and better outcomes for foster youth. The youth boards also serve as the youth advisory council to the Child Welfare Services Branch

Ms. Ulima highlighted HI H.O.P.E.S. efforts in the last several years, including, sibling connections, Imua Kakou (program that assists young adults transition from foster care), social capital efforts, Foster Youth Bill of Rights, and the Pono Process (an additional support for children and youth in foster care to use in the event their rights are not being honored or upheld)

Ms. Mayo further detailed the Pono Process from the filing of a grievance via website, email, phone, or text message to the efforts to assist the young person in reaching a resolution Additional infor mation about the Pono Process is available at http://ponoprocess.org. More infor mation about HI H O P E S can be found at http://www hihopes org/

C. Questions and Answers

Judge Park facilitated questions from participants directed to the presenters, which provoked the following additional infor mation:

• The ter m “long-ter m foster care ” is no longer used in CWS cases and was replaced by the ter m “Alternative Planned Per manent Living Agreement” or “APPLA ”

• There is discussion about making mediation in Child Welfare Service matters available on the neighbor islands, although one mediation was held in a CWS matter in the Third Circuit

• About two-thirds of CWS’ contracts with third-party providers are available statewide.

• Resources (e g , financial assistance) and services are available for a child and their resource family after legal guardianship

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D. Statewide Overview

Judges from each circuit participated in the forum and provided infor mation about the operations, procedures, and needs related to CWS matters in their respective circuit

1. First Circuit

The Honorable Jessi L Hall provided infor mation regarding the First Circuit’s operations with respect to CWS cases, including the following:

• First Circuit is unique in that there are four judges in the juvenile division with each judge having a rotating schedule with one week dedicated to CWS cases (i e , week 4) This allows CWS cases to be heard every day.

• A case will continue to be heard before the same judge.

• If there are related cases (e g , FC-P, FCDA, FC-D), a judge is able to call those cases and address the needs of the matter (e g , amend orders) Every effort, however, is made to have the same judge handle the CWS case from beginning to end

Judge Hall also provided infor mation about the special courts available in the First Circuit, including Family Drug Court (focuses on parents who come into the system due to their substance abuse issues by providing additional support and services to help them address those issues), Zero to Three Court (cases involving children from birth to three years old focusing on reunification as quickly as possible), Juvenile Drug Court, Girls Court, and Truancy Court (focused on attendance in school for Waianae Inter mediate, Wahiawa Middle School, and Kapolei Inter mediate, although referrals can be made from any middle or inter mediate school throughout the island) She also described a new program, the Early Education Intervention program, which just launched this school year The program focuses on truancy in the elementary level and addressing what may be preventing parents from getting their child to school

Judge Hall discussed the need for attorneys for parents in CWS cases statewide She noted that it is a contract

position and any attorney interested in serving as counsel for parents should apply Each circuit has its payment plan/scale The First Circuit is exploring creating a mentorship program for attorneys interested in serving as counsel for parents

The court also offers training for any interested attorneys Judge Hall explained that even taking one case would be helpful and greatly appreciated.

2. Second Circuit

The Honorable Adrienne N. Heely shared the following infor mation regarding matters in the Second Circuit (which include cases for the islands of Maui, Molokai, and Lanai):

• There are currently two full-time judges presiding over family law matters: Judge Heely and Judge James Rouse, who is not yet able to preside over CWS cases dues to his prior employment

• There are four per diem judges assisting the Court: Judge Lance Collins, Judge Michelle Drewyer, Judge Matson Kelly, and Judge Loren Tilley.

• For Maui, CWS hearings are every Tuesday and contested hearings are on Friday. For Molokai and Lanai, they are held once a month every third Wednesday for Molokai and the fourth Thursday for Lanai

• Judges will be reconvening travel to Molokai and Lanai

• Currently, there are approximately 291 active FC-S cases From January 2022 to October 2022, there were 79 new cases

• Similar to the First Circuit, counsel for parents are provided by contract, but cannot be retained in a related case (e.g., domestic abuse or paternity cases)

• Mediation in CWS cases is being discussed, and the court is looking forward to starting mediation as funds become available.

• The court is working on running aging reports to monitor CWS cases and ensure statutory deadlines are met

Judge Heeley discussed the special

programs in the Second Circuit, including Imua Kakou and “Dream Days” (collaboration between the Court, HI H O P E S and EPIC Ohana to bring agencies and youth together to provide resources and services) Family Drug Court and Juvenile Drug Court were temporarily suspended during the pandemic, but hopefully will reconvene

3. Third Circuit

The Honorable Darien W L Ching Nagata provided the following infor mation for the Third Circuit:

• There are several new judges presiding over family law matters on the Hawai`i island

• Judge Nagata and Judge Jeffrey W Ng preside over matters in Hilo, Judge Jill M Hasegawa presides over cases in Waimea, and Judge Joanne E Sokolow presides over matters in Kona Judge Kimberly B M Taniyama is currently handling all CWS cases for Judge Sokolow due to her prior employment

• There is a shortage of guardian ad litems and attorneys for CWS cases

• In Hilo, CWS cases are heard on Thursdays and Fridays, and some Mondays

• Judge Nagata and Judge Ng split the CWS cases evenly Judge Nagata presides over general matters on Thursday and evidentiary hearings are held in the afternoons (e g , adjudication, ter mination of parental rights, adoptions, legal guardianships) Judge Ng replicates the same general schedule on Friday Evidentiary hearings are also scheduled on Mondays if available

• In Waimea, Judge Hasegawa will use the last Wednesday of the month for CWS cases

• In Kona, Tuesday mornings are generally dedicated to CWS cases, but evidentiary hearings may be set on Thursday or Friday

• In all districts, hearings may be set based on the court’s availability as needed

• If possible, related cases may be set together based on the circumstances JIMS allows the judges to track related cases and

coordinate hearing dates.

• The CWS mediation program, modeled after the First Circuit, is available in the Third Circuit

Judge Nagata also talked about the Third Circuit’s Truancy Court, Adoption Day (also referred to as Ohana Day), and Teen Day (featuring a mock trial in court and prizes and giveaways for youth and in coordination with various stakeholders)

4. Fifth Circuit

The Honorable Stephanie R S Char shared the following infor mation about the Fifth Circuit:

• Two full-time judges serve the Family Court, including Judge Char and Judge Gregory Meyers Judge Char currently sits on the CWS calendar every Thursday generally from 10:00 a m until the close of business, depending on the matters that need to be heard.

• There are eight to nine attorneys on the court-appointed list for guardian ad litem or parent counsel in CWS cases; one to two Court Appointed Special Advocates (otherwise referred to as “CASA”); and one deputy attorney general on the island of Kauai

• Judge Char presides over divorce matters, and Judge Meyers presides over paternity matters. They have no problem issuing orders in cases related to pending CWS cases as needed

• In ter ms of special programs, they are currently limited Donations such as stuffed animals, board games, toys for children, and gift cards are received from private attorneys and different entities and designed to encourage children to attend court hearings

• In 2022, 27 petitions were filed Prior to the pandemic, there were typically 25 to 30 new cases each year During the height of the pandemic, the court saw upwards of 45 petitions filed.

• The court is trying to have mediation started in CWS cases, but there are challenges (e g , need for electronic equipment) There is a volunteer mediation program in

effect comprised of attorneys practicing in the area of family law, but it is currently only utilized in divorce and pater nity matters.

Judge Char relayed that the Imua K a k o u p ro g r a m h a s b e e n e x t r e m e l y successful.

5. Questions and Answers

Judge Park facilitated questions from participants directed to the judges and the following infor mation was provided:

• The Second Circuit requires all contracted guardian ad litems, counsel for parents, and CASA to participate in the Court’s 40-hour CASA training The CASA training is held once a year and follows a statewide curriculum.

• For the Third Circuit, training is required for court-appointed guardian ad litems and counsel for parents The Children’s Law Project provides various types of training and would be a resource to consider Contracts for parents’ counsel run every 2 years, but it is possible to obtain a contract mid-ter m.

• For the Fifth Circuit, court-appointed counsel for parents and guardian ad litems are paid on an hourly basis (versus a contract) Judge Char noted that the court would be accommodating with respect to requests for virtual appearances as appropriate for attorneys who may be from other circuits.

• For the First Circuit, guardian ad litems are not individually contracted. Contracts are through the Legal Aid Society of Hawai`i or a private g roup of guardian ad litems.

IV. FAMILY LAW CASE LAW UPDATE

Tom Tanimoto presented the family law update, which is attached as Appendix D. Dyan Mitsuyama concluded the Forum by thanking all participants

2022 FAMILY LAW FORUM PARTICIPANTS

The HSBA Committee on Judicial Administration in 2022 was comprised of the following co-chairs and members:

Hawai‘i Supreme Court Associate Justice

Simeon R Acoba, Jr (ret ), Co-Chair;

Vladimir Devens, Co-Chair; Judge

Ronald Ibarra (ret.), Judge Blaine J. Kobayashi, Judge Brian Costa, Judge

Rowena A. Somerville, Chief Judge Randal G Valenciano, Judge Wendy DeWeese, Judge Summer M Kupau-Odo, Judge M. Kanani Laubach, Judge

Clarissa Malinao, Hayley Cheng, Dennis

Chong Kee, Steven J.T. Chow, Kahikino

Noa Dettweiler, Kirsha K M Durante, Tred Eyerly, Daylin Rose Heather, Edward C. Kemper, Erin Kobayashi, Simeona Mariano, Dyan Mitsuyama, Carol K

Muranaka, Kyleigh F.K. Nakasone, Richard Sing, Audrey E Stanley, Wilson Unga, and Dawn West

The Family Law Forum Subcommittee was comprised of the following committee members: Judge Brian Costa, Judge Wendy DeWeese, Dyan Mitsuyama, Simeona Mariano, and Erin Kobayashi.

APPELLATE JUDGES AND ADMINISTRATION

Honorable Mark E Recktenwald, Chief Justice, Hawai‘i Supreme Court; Honorable Todd W Eddins, Associate Justice, Hawai‘i Supreme Court; Honorable

Sabrina S McKenna, Associate Justice, Hawai‘i Supreme Court; Honorable

Keith K. Hiraoka, Associate Judge, Intermediate Court of Appeals; Honorable

Sonja M McCullen, Associate Judge, Inter mediate Court of Appeals; Honorable

Karen T Nakasone, Associate Judge, Inter mediate Court of Appeals; Honorable

Clyde J Wadsworth, Associate Judge, Inter mediate Court of Appeals; Lisa

T K O Lum, Special Assistant to the Administrative Director of the Courts;

Craig Hirayasu, Probations Administrator, Second Circuit; Kari-Lynn

Wakakuwa, Special Services Branch Administrator, Second Circuit; Marsha Yamada, Deputy Chief Court Administrator for Client Services, Second Circuit; Dean Hiraki, Deputy Chief

Court Administrator for Client Services, Third Circuit; Cheryl Salmo, Deputy Chief Court Administrator for Operations, Third Circuit

JUDGES

Judge Stephanie Char, Judge Rebecca Copeland, Judge Jessi Hall, Judge Jill Hasegawa, Judge Adrianne Heely, Judge Dyan Medeiros, Judge Gregory Meyers, Judge Darien Nagata, Judge Courtney Naso, Judge Jeffrey Ng, Judge Elizabeth Paek-Harris, Judge Andrew Park, Judge James Rouse, Judge Natasha Shaw, Judge Joanna Sokolow, Judge Kimberly Taniyama, Judge Matthew Viola, Judge Bryant Zane

ATTORNEYS

Kevin Adaniya, Eric Alabanza, Andrea Alden, Amberlyn Alualu, Crystal Asano, Eyke Brath Hurdman, Maria Brosnan Faltas, Brian Buckley, Sara Jo Buehler, Caroline Cobangbang Lance Collins, Elizabeth Cuccia, Laura Cushman, Maricar Daoang, Donna Davis Green, Daryl Dobashi, Gavin Doi, Tony Donnes, P Gregory Frey, Jonathan Fujiyama, Catherine Gibson, Noah Gibson, Valerie Grab, Shannon Hackett, Geoffrey Hamilton, Seth Harris, Geraldine Hasegawa, Nicole Hazlett, William Heflin, Julio Herrera, Stephen Hioki, Tiffany Ige, Ann Isobe, Debbie Jew, Franz Juan, Curtis Kam, Harlan Kimura, Mari Kishimoto Doi, Carol Kitaoka, Dawn Laird, Lynnae Lee, Michael Lee, Laurel Loo, Katie Lukela, Charles McCreary, Emiko Meyers, Annabel Murray, Paula Nakata, Lianne Onishi, Andrew Park, Patrick Pascual, Anthony Perrault, Ellen Politano, Judith Schevtchuk, Shannon Sheldon, Randal Shintani, Scott Shishido, Sara Silver man, Paul Soenksen, Gemma-Rose Soon, Erin Sugita, Jo-Ann Takara, Gay Tanaka, Tom Tanimoto, Madeline Tomasino-Reed, Lynne Toyofuku, Carol Tribbey, Justin Tsai, Jessica Uchida, Sheila Vierra, Maria Williams, Aaron Wills, Trina Yamada, Cheryl Yamaki, Rebecca Yonashiro, Sandra Young

President of Legal Momentum

Patricia Mau-Shimizu, Executive Director, Hawai`i State Bar Association

The appendices are not included with the Report as published here A complete version of the Report of the 2022 Family Law Forum including the appendices noted here is posted at the HSBA website.

Appendix A: Lynn Hecht Schafran’s Notes; The Associated Press dated June 15, 2022 titled “Supreme Court Rules with American Woman in Bitter Custody Dispute;” Excer pt from the Memorandum Decision and Order issued by the Easter n District of New York

Appendix B: PowerPoint Slide Presentation by Lynn Hecht Schafran

Appendix C: Order Appointing

Guardian Ad Litem; The Duties of a Guardian Ad Litem

Appendix D: Family Law Forum Case Law Summary

1 Lynn Hecht Schafran is Senior Vice President of Legal Momentum and has been the Director of Legal Momentum’s National Judicial Education Program to Promote Equality for Women and Men in the Courts since 1981

2 E g , [T]he abuser creates a pervasive atmosphere of crisis in his house,” Lundy Bancroft, Understanding the Batterer in Custody and Visitation Disputes (1998); Repeated activation of the “fight or flight” reaction “results in pathologic changes in multiple systems over time; some experts refer to this effect as the biologic embedding of stress ” Megan Bair-Merritt, et al , Silent Victims – An epidemic of Childhood Exposure to Domestic Violence, New England Jour nal of Medicine (2013)

3 Haw Rev Stat § 596-1 defines coercive control 4 Simeona Mariano disclosed that she was presenting in her individual capacity and not on behalf of the Department

5 Additional infor mation about The Children’s Law Project of Hawai i can be found at http://www.clphi.org.

6 There are three mediators who currently service the program: Katherine Bennett, Dr Barbara Higa Rogers, and Kevin Adaniya

H S B A H A P P E N I N G S

HSBA Board Action

The HSBA Board took the following actions at its meeting in February:

• Deter mined that legislation relating to the mandatory retirement age of justices and judges is ger mane to the pur poses of the unified bar; and

• Voted to remain neutral on the legislation which proposes a constitutional amendment to increase the retirement age of justices and judges from 70 to 75

Mandatory Continuing Legal Education Board Openings

The Hawaii State Board of Continuing Legal Education is seeking applicants to fill three attor ney positions on its Board with ter ms beginning on October 2, 2023 and expiring October 1, 2026. Responsibilities and duties include, but are not limited to, participating in quarterly board meetings, occasionally reviewing applications for CLE credits, and providing recommendations to the HSBA staff for various oversight issues that arise Prior experience in CLE organization or coordination is preferred Board positions are uncompensated.

If interested in serving, please submit a resume, cover letter, and area of law practice to the Nominating Committee at nominations@hsba org no later than Wednesday, May 31, 2023

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C A S E N O T E S

Supreme Court

Administrative City and County of Honolulu v. Honolulu Police Commission, No SCWC-20-0000776, March 7, 2023, (McKenna, J ) This opinion addressed whether Chief Louis Kealoha (Kealoha) was entitled to a citypaid attorney to defend him against federal criminal charges. Kealoha was Chief of Police for the Honolulu Police Department (HPD) In 2017 and 2018, indictments were filed in the United States District Court for the District of Hawaii against Kealoha, his wife Katherine Kealoha (together, the Kealohas), and additional HPD officers Kealoha asked the City and County of Honolulu (the City) to provide him with a defense attorney. The Department of the Corporation Counsel of the City and County of Honolulu recommended that the Honolulu Police Commission (the Commission) deny the request After a contested case hearing, the Commission ruled Kealoha was entitled to representation The Commission decided Kealoha met the requirements for representation under HRS § 52D-8 and Rules of the Honolulu Police Commission (RHPC) Rule 11-1(e) The Commission concluded four acts alleged in the first superseding indictment entitled Kealoha to representation because they were done in the perfor mance of Kealoha’s duty as a police officer, even if unlawful and regardless of motive The City appealed The Commission’s decision was affir med by the circuit court and the ICA. The ICA concluded Kealoha’s actions were done in the perfor mance of his duty as a police officer because they are the kinds of tasks a police chief generally perfor ms Preliminarily, the Hawaii Supreme Court agreed with the ICA’s conclusions that the “ complaint allegation” rule governing the duty to defend by insurance companies and the “ scope of employment” test are inapplicable to HRS § 52D-8 deter minations The Hawaii Supreme Court also agreed with the ICA that Kealoha was not required to testify at the contested case hearing The Hawaii Supreme Court disagreed, however, with the analytical approaches and

Appeal Pointer

A stipulation to dismiss an appeal or a motion for voluntary dismissal of an appeal will not be approved by the appellate court unless the stipulation or motion complies with the requirements of HRAP 42

conclusions regarding Kealoha’s entitlement to representation The Hawaii Supreme Court held: (1) pursuant to the plain language of HRS § 52D-8, a police officer is entitled to representation only “for acts done in the perfor mance of the officer’s duty as a police officer”;

(2) RHPC Rule 11-1(e) cannot expand rights of representation conferred by HRS § 52D-8; (3) the officer has the burden of establishing entitlement to representation; (4) the Commission should examine the entire record to deter mine whether an officer is being prosecuted for acts done in the perfor mance of the officer ’ s duty as a police officer; and (5) based on the record before the Commission, Kealoha did not meet his burden of establishing entitlement to representation.

Certified Question

Yanagi v. Bank of America, N.A., NO. SCCQ-21-0000462, March 8, 2023, (McKenna, J ) The United States Bankruptcy Court for the District of Hawaii (bankruptcy court) certified two questions to the Hawaii Supreme Court Those questions were: (1) Whether an action alleging a wrongful nonjudicial foreclosure of Land Court property that seeks only money damages against the foreclosing lender, and does not seek to avoid the foreclosure sale or affect title to the property, is an action that “directly impeach[es] . . . any foreclosure proceedings affecting registered land” within the meaning of HRS § 501-118(c), and is time barred if filed after the issuance of a certificate of title to the buyer at a foreclosure sale; and (2) whether a putative class action asserting wrongful foreclosure claims extends the time during which a c l a s s m e m b e r m a y c o m m e n c e a n

i n d i v i d ual action under HRS § 501118(c), where the putative class action was commenced before the issuance of a certificate of title to the buyer at the foreclosure sale, and, if there is such an extension, how long does it last? The bankruptcy court explained that if we “answer[] the [first] question in the affirmative, the second question will become relevant.” The Hawaii Supreme Court answered the first question in the negative Although the bankruptcy court would then consider the second question irrelevant, the Hawaii Supreme Court provided a brief answer to that question, to the extent the answer continued to bear on the timeliness of Plaintiff-Appellee Jasper Cesar Manuel’s wrongful foreclosure claims. First, an action alleging a wrongful nonjudicial foreclosure of Land Court property that seeks only damages against the foreclosing lender is not an action that “directly impeaches” any foreclosure proceedings affecting registered land within the meaning of HRS § 501118 (2018); therefore, the action is not barred by the entry of a transfer certificate of title to the buyer at a foreclosure sale. Second, cases hold generally that the pendency of a putative class action tolls the time during which a class member may commence an individual action The time for commencing an individual action is tolled until a clear denial of class certification.

Flores-Case Ohana v University of Haw , No SCRQ-22-0000118, March 15, 2023, (Eddins, J , with McKenna, J , concurring in part and dissenting in part) In this case, a Native Hawaiian family challenged the constitutionality of administrative rules governing access to Mauna Kea’s summit under article XII, section 7 of the Hawaii State Constitution. The Circuit Court of the Third Circuit reserved the following questons to the Hawaii Supreme Court: does the burden of proof shift to the government defendant to prove that the rules are reasonable and do not unduly limit the constitutional rights

conferred in article XII, section 7? If so, what standards govern its application? In answering reserved questions, the Hawaii Supreme Court applied the same principles utilized in answering certified questions from federal courts. Specifically, “[t]his court may refor mulate the relevant state law questions as it perceives them to

be, in light of the contentions of the parties.” See Pac. Radiation Oncolog y, LLC v. Queen’s Med. Ctr., 138 Hawaii 14, 16, 375 P.3d 1252, 1254 (2016) (quotation marks omitted) (quoting Allstate Ins. Co. v. Alamo Rent–A–Car, Inc., 137 F.3d 634, 637 (9th Cir. 1998)). The Hawaii Supreme Court saw no reason why the framework applied to certified questions from federal courts

would not apply to reserved questions from “circuit court, the land court, the tax appeal court [or] any other court empowered by statute.” See Haw. R. Appellate Proc. Rule 15(a). Accordingly, the Hawaii Supreme Court “refor mulated the question so that a negative answer to the first [reserved] question will not preclude us from answering the second [reserved] question ” The Hawaii Supreme Court also “refor mulate[d] the question” to remove any confusion about what standard applies to constitutional challenges arising from article XII, section 7 The standard did not require, as the circuit court’s reserved questions imply, that plaintiffs must “ prove that the rules are [un]reasonable and [] unduly limit the constitutional rights conferred in Article XII, Section 7 ” Therefore, the refor mulated reserved questions were as follows: (1) In a challenge to the constitutionality of administrative rules based on a violation of article XII, section 7 of the Hawaii Constitution, does the burden of proof shift to the government defendant? (2) What standard governs a challenge to the constitutionality of an administrative rule based on an alleged violation of article XII, section 7?

First, the Hawaii Supreme Court held that the burden does not shift to the government agency, and instead remains with the challenging party, in constitutional challenges to administrative rules arising from article XII, section 7. In general, the party challenging the constitutionality of an administrative rule bears the burden of proof This longstanding general rule governs absent an exception Second, the Hawaii Supreme Court deter mined that the Ka Paakai framework applies to rulemaking in addition to contested case hearings See Ka Paakai O KaAina v Land Use Comm’n, 94 Hawaii 31, 7 P 3d 1068 (2000), as amended (Jan 18, 2001) There was no principled basis to exempt agency rulemaking from the State’s constitutional obligations under article XII, section 7 In Ka Paakai, the Hawaii Supreme Court recognized that article XII, section 7 of the Hawaii Constitution “place[d] an affir mative duty on the State and its agencies to p r e s e r ve a n d p ro t e c t t r a d i t i o n a l a n d

customary native Hawaiian rights” during contested case hearings. Id. at 45, 7 P.3d at 1082 (emphasis added). That “affir mative duty” applied during rulemaking as well. Third, consistent with the Ka Paakai framework, the Hawaii Supreme Court held that agencies must engage in a contemporaneous analysis of the relevant factors prior to adopting a rule That analysis should identify Native Hawaiian traditional and customary rights or practices affected by the proposed rule, if any, consider the scope and extent to which those rights or practices will be impaired, and explain how the proposed rule reasonably protects those rights and practices as balanced with the State’s own regulatory right Fourth, the Hawaii Supreme Court held that to succeed in an article XII, section 7 constitutional challenge to administrative rules, a plaintiff must show: (1) the agency failed to adequately consider “the identity and scope of ” Native Hawaiian traditional and customary rights affected by the rule, if any; or (2) the agency failed to adequately consider “the extent to which” Native Hawaiian traditional and customary rights “will be affected or impaired by the [rule]”; or (3) the rule failed to “reasonably protect” Native Hawaiian traditional and customary rights, “if they are found to exist,” as balanced with the State’s own regulatory right. The test sets forth both the steps agencies must take prior to promulgating rules and the standard by which rules will be judged under article XII, section 7 This test necessarily required agencies to consider a rule’s impact on Native Hawaiian traditional and customary rights so that a court may deter mine whether that analysis and the rule passes constitutional muster In Ka Paakai, “[r]equiring these minimal prerequisites facilitates precisely what the 1978 Constitutional Convention delegates sought: ‘badly needed judicial guidance’ and the ‘enforcement by the courts of these rights[ ]’” The Hawaii Supreme Court applied the Ka Paakai framework and its requirement of contemporaneous consideration Native Hawaiian rights to administrative rulemaking because, if not, an a g e n c y ’ s “ p ro m i s e o f p r e s e r v i n g a n d

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protecting customary and traditional rights would be illusory absent [consideration of] the extent of their exercise, their impair ment, and the feasibility of their protection.” Put simply, the Hawaii Supreme Court held the State and its agencies to the promise made in 1978: “The State reaffir ms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupuaa tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights ”

Civil Procedure

Meyer v Basco, No SCWC-210000027, March 7, 2023, (McKenna, J ) This opinion addressed whether a district court has subject matter jurisdiction to rule on a HRS § 604-10 5 petition to enjoin harassment (injunction petition) after ninety days elapses from issuance of an ex parte temporary restraining order (TRO) The Hawaii Supreme Court held the ICA correctly held the district court had such jurisdiction. Due to public safety implications, however, the Hawaii Supreme Court also addressed an issue the ICA did not: whether a HRS § 604-10.5 TRO expired after ninety days despite district court orders continuing the TRO beyond ninety days pending completion of a hearing and decision on the injunction petition. The Hawaii Supreme Court held that if a district court has commenced hearing the merits of a HRS § 604-10 5 injunction petition but, despite reasonable efforts, was unable to conclude the hearing within ninety days of issuance of the ex parte TRO, it had jurisdiction and discretion to continue the TRO pending its final decision on the injunction petition as long as standards for issuance of temporary injunctive relief are met

Contract

Deutsche Bank Nat’l Trust Co as Trustee for Morgan Stanley ABS Capital I Inc Trust 2006-NC4 v Yata, No SCWC-180000922, March 9, 2023, (Nakayama, J )

mortgage to New Century Mortgage Corporation, and the mortgage was later assigned to Appellee Deutsche Bank. After Yata defaulted on the note, Deutsche Bank filed a complaint to foreclose the mortgage. Deutsche Bank asserted that it was entitled to possession of the note, which was endorsed in blank. Deutsche Bank subsequently filed a Motion for Summary Judgment (MSJ), arguing it established all material allegations in the complaint and there were no genuine issues of material fact, which Motion was granted Yata filed a Motion for Reconsideration, arguing that Deutsche Bank failed to establish its standing to foreclose Yata’s Motion for Reconsideration was denied, and on appeal the ICA affir med the granting of the MSJ On certiorari, Yata asserted that the ICA grievously erred by misinterpreting U S Bank Tr , N A as Tr for LSF9 Master Participation Tr v Verhagen, 149 Haw 315, 489 P 3d at 419 (2021), as amended (July 6, 2021), reconsideration denied, No SCWC-17-000746, 2021 WL 2948836 (Haw July 9, 2021), arguing that there was no “admissible documentary evidence” demonstrating Deutsche Bank had possession of the note when it filed the complaint. Yata’s argument appeared to have merit because the ICA misapplied Verhagen in deter mining that Deutsche Bank’s documents were admissible. Moreover, even if the documents were admissible, those documents did not establish that Deutsche Bank had possession of the note when it filed the complaint Thus, Deutsche Bank did not establish it had standing to foreclose

Criminal

State v Michaeledes, No SCAP-210000562, March 3, 2023, (Recktenwald, J ) David John Michaeledes was charged with several counts arising from an alleged hit and run The circuit court dismissed the charging document as insufficient The State appealed to the ICA and simultaneously recharged Michaeledes via a second “Felony Infor mation and NonFelony Complaint,” which attempted to correct the inadequacies in the first charging document identified by the circuit

court. The circuit court dismissed the second charging document for lack of jurisdiction while the first charging document remained pending on appeal before the ICA. The Hawaii Supreme Court held that the filing of the notice of appeal in the first case did not divest the circuit court of jurisdiction over the second case recharging Michaeledes for the same criminal conduct

Barker v Young, No SCWC-210000098, March 6, 2023, (McKenna, J ) Phillip J Barker (Barker) was arrested for harassment, a petty misdemeanor He was eventually convicted of disorderly conduct as a violation He then applied to the Hawaii Criminal Justice Data Center (HCJDC) for expungement of his arrest record pursuant to HRS § 831-3 2 He asserted that because Section 701-107(7) of the Hawaii Penal Code provides that a violation does not constitute a crime, he was entitled to expungement based on the plain language of HRS § 831-3 2(a) The HCJDC denied his application, concluding that Barker had been convicted of a “crime” within the meaning of HRS § 831- 3.2(a). The circuit court granted judgment in favor of the HCJDC. Barker appealed to the ICA, who ruled it could not apply the Penal Code definition of “crime” to HRS § 831-3.2(a) because of the language in subsection (a)(2). The HCJDC, circuit court, and ICA all concluded that inclusion of the word “violation” in HRS § 831-3.2(a)(2) indicated a “violation” is a “crime” under HRS § 8313 2(a) On certiorari, Barker asked “[w]hether the ICA gravely erred in holding that the word ‘crime’ in [HRS § 8313 2(a)] is ambiguous such that the word includes violations?” The Hawaii Supreme Court held that under the plain language of HRS §§ 831-3 2(a) and 701107(7), a person arrested for or charged with a crime (including a petty misdemeanor), but convicted of a violation, is eligible for arrest record expungement because a “violation” is not a “crime ”

State v Per r y, No SCWC-26118, March 8, 2023, (Eddins, J ) A jury found

Jason Perry guilty of two murders that occurred several days apart. Then, answering special verdict for ms, the jury found that he committed one murder as a principal and accomplice, and the other murder as an accomplice. For purposes of a mandatory minimum ter m in the second murder, the jury answered an interrogatory It found Perry had possessed or used a semi-automatic firear m while engaged in the offense The trial court enhanced each of Perry’s murder in the second degree prison ter ms beyond the ordinary statutory maximum And it ran those sentences consecutively Perry is serving two consecutive life ter ms without the possibility of parole ter ms Perry argued that his second-degree murder conviction based only on accomplice liability should be reversed Perry did not shoot anyone and because the jury found that he possessed a semi-automatic firear m during the crime, the guilty verdict was “irreconcilably inconsistent ” Perry also maintained that the court unlawfully enhanced his two second-degree murder prison ter ms He said the court made factual findings to support a sentence beyond the ordinary statutory maximum, violating his right to a jury trial. Perry further claimed that his simultaneous murder convictions were not “ previous convictions” that subjected him to enhanced ter ms of imprisonment under HRS § 706-657. The Hawaii Supreme Court rejected Perry’s arguments. First, the jury’s verdict was not irreconcilably inconsistent Second, the two guilty verdicts established that Perry was “previously convicted” of second-degree murder, a finding detached from the right to a jury trial

State v Sardinha, No SCWC-160000798, March 9, 2023 (Nakayama, J , with Wilson, J , dissenting) The Hawaii Supreme Court was asked to clarify when multiple offenses arise from the same criminal episode The test for deter mining the singleness of a criminal episode is based on whether the alleged conduct was so closely related in time, place, and circumstances that a complete account of one charge cannot be related without referring

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to details of the other charge For multiple offenses to satisfy the circumstances element of the single-episode test, the alleged offenses must raise similar facts and/or issues such that there is a substantive overlap in evidence between the offenses The ICA correctly deter mined that Hawaii law does not require the joinder of Petitioner/Defendant-A ppellee Bronson Sardinha’s traffic offenses with his assault offense

Wilson, J., dissented. Wilson, J. stated that when offenses arise from a single criminal episode, the State must bring those charges together in one trial. State v. Car roll, 63 Haw. 345, 627 P.2d 776 (1981). The “single episode test,” which deter-

mines when offenses arise from a single criminal episode, is derived from HRS § 701-109(2) A defendant’s conduct arises “from the same episode” when the conduct is “ so closely related in time, place and circumstances that a complete account of one charge cannot be related without referring to details of the other charge ” Car roll, 63 Haw at 351, 627 P 2d at 780. Thus, the three elements in the single-episode test are whether the offenses are closely related in (1) time, (2) place, and (3) circumstances The issue in this case was whether Sardinha’s conduct was so closely related in time, place, and circumstances such that the State was required

C O U R T B R I E F S

Circuit Court of the First Circuit Criminal Division Seeking Attorneys

The Circuit Court of the First Criminal Division is seeking attor neys interested in serving as court appointed counsel in criminal cases.

A pplicants must be licensed to practice law in the State of Hawaii and have experience in litigation and/or criminal practice A pplicants should indicate whether they have a preference of offense classifications for which they would like to be considered

Attor neys from all islands are welcome to apply by submitting a cover letter and resume to:

Judge Shirley M Kawamura

Criminal Administrative Judge

777 Punchbowl St

Honolulu, HI 96813

Phone: 808-539-4330

Email: 12thDivision 1CC@courts hawaii gov

Judges Engage with Community: National Judicial Outreach Week 2023

Hawai‘i state judges met with students and teachers in a variety of settings during National Judicial Outreach Week 2023 to discuss their roles as judges, the rule of law, and the work courts do to maintain open and transparent gover nment, provide a fair and impartial system of justice, and protect the fundamental legal rights of all citizens

First Circuit (O‘ahu) District Court

Judge A.K. Thomas Haia visited Waianae Elementary School where he spoke with fourth g raders about how to become a judge, how the judicial process works, different types of judges and lawyers, what he likes and dislikes about his position, and the importance of doing well in school and making good choices

Second Circuit District Court Judge Christopher M. Dunn participated in a Career Day event at Haiku Elementary School where he spoke to more than 40 fourth and fifth g rade students, their teachers, and administrative staff He had barely begun delivering his carefully prepared remarks when hands shot up, and he spent his time answering a myriad of questions like, “Did you ever send anyone to jail?” “Have you ever had any celebrities in your courtroom?”

“Why do judges wear a robe?” “Do you bang the gavel?” “What’s the most serious case you ever had?” The questions kept coming beyond his 30-minute limit, and Judge Dunn, with the help of the principal, was able to thank his enthusiastic audience and make way for the next speaker.

First Circuit Civil Administrative Judge Jeannette H Castagnetti, Intermediate Court of A ppeals Chief Judge Lisa M Ginoza, Associate Justice Sabrina S. McKenna, and Hawai‘i Supreme Court Chief Justice Mark E Recktenwald served as panelists for the March 10 University of Hawaii Law Review Symposium: “Honoring Women in the Law and a Critical Inquiry Into Women’s Rights in the Past, Present, and Future ” See: https:// hawaiilawrevie w com/symposium

First Circuit Criminal Administrative Judge Judge Shirley M. Kawamura joined students and teachers at Laie Elementary School on March 10, for the We the People Showcase, a simulated cong ressional hearing in which the students answer questions about the U.S.

Constitution.

Finally, First Circuit Deputy Chief Judge/Senior Family Court Judge Matthew J Viola and District Family Judge Brian A Costa spoke with students and faculty of Aichi University Nagoya during their visit to the Ronald T Y Moon Judiciary Complex in Kapolei.

Hawai‘i Supreme Court Justice Sabrina S. McKenna spoke to Japanese law students from five universities: Aichi, Aoyama Gakuin, Meiji, Waseda, and The University of the Ryukyus on March 7 They visited the Hawai‘i Supreme Court as part of the University of Hawai‘i William S Richardson School of Law’s two-week “Hawai‘i Prog ram Law Study Tour.” This was the first time since the COVID-19 pandemic that students were able to visit inperson Justice McKenna made her presentation in Japanese, and provided an overview of the U.S. and Hawai‘i judicial and legal systems, Title IX, and LGBTQ rights.

First Circuit Judges Costa and May Retained

District Family Judge Brian A Costa and District Court Judge Melanie Mito May were recently retained by the Judicial Selection Commission Judge Costa’s new ter m is June 2, 2023 to June 1, 2029 Judge May’s new ter m is June 23, 2023 to June 22, 2029.

Per Diem Judge Announcements

The following per diem judges were recently reappointed:

Bevanne J Bowers and Lance D Collins to the District Court of the Second Circuit, designated to act as District Family Judges Their ter ms: December 20, 2022 – December 19, 2023

Lynne T.T. Toyofuku to the District

Court of the First Circuit, designated to act as District Family Judge Ter m:

March 2, 2023 – March 1, 2025

The following per diem judges were recently appointed:

Ronette M Kawakami to the District Court of the First Circuit. Ter m:

March 13, 2023

March 12, 2024

Kaupena F. Soon to the District Court of the First Circuit, designated to act as per diem District Family Judge. Ter m: March 28, 2023

March 27, 2024

The Depar tment of Commerce and Consumer Affairs, Insurance Division is seeking to fill vacant staff attorney positions. Applicants should be comfor table with written and oral communication and legal research. Experience in litigation, administrative proceedings, advice and counsel, o r l e g i s l a t i v e a f f a i r s i s p r e f e r r e d . A p p l i c a n t s m u s t b e l i c e n s e d t o p r a c t i c e l a w i n t h e S t a t e o f H a w a i i S t a r t i n g salaries are dependent on qualifications. Benefits include pension, health coverage, and a defined contribution plan. P l e a s e s u b m i t r e s u m e a n d a p p l i c a t i o n ( Fo r m 278 ) t o Insurance@dcca.hawaii.gov. Form 278 and more information on vacancies are available at: https://cca hawaii gov/ins/employment-oppor tunities/

2023 Hawai‘i Access to Justice Conference

Save the date: Friday, June 16, 2023

The Hawai‘i Access to Justice Conference, sponsored by the Hawai‘i Access to Justice Commission, will be an all-day event, currently scheduled to be held in person at the Law School. Please plan to attend for a provocative discussion and varied workshops that seek justice for the underserved and include extensive audience participation about pressing current issues.

Honorable Nancy Gertner, former federal district court judge and now teaching at Harvard Law School, will be the keynote speaker Hawai‘i Supreme Court Chief Justice Mark Recktenwald and Second Circuit Judge (ret ) Joseph Cardoza, chair of the Commission, will offer opening remarks

As usual, free lunch and refreshments and six low-cost continuing legal education (“CLE”) credits will be available.

Offenses” and the “Assault Offense” together pursuant to HRS § 701-109(2). Wilson, J would hold that the Traffic Offenses and the Assault Offense arose from the same criminal episode, and thus, that the State was required to bring the charges together

Labor Suzuki v. American Healthways, Inc., No. SCWC-22-0000044, March 8, 2023, (Per Curiam) Petitioner asserted that the ICA erred when it dismissed Petitioner’s appeal for lack of jurisdiction According to the ICA, the order appealed from did not constitute an appealable final order However, Petitioner’s motion that requested leave to appeal acknowledged that the order was not an appealable final order, and instead sought an appeal under the preliminary ruling language of HRS § 91-14(a) The Labor and Industrial Relations Appeals Board granted this request The Hawaii Supreme Court held that the ICA erred when it dismissed Petitioner’s appeal for lack of jurisdiction

Land Hoomoana Found v Land Use Commission, No. SCWC-17-0000181, March 10, 2023, (Nakayama, J , with McKenna, J , dissenting, with whom Recktenwald, C J , joins). This case concerned a proposed overnight campground development for unhoused and commercial campers on “class B” land in an agricultural district near Lahaina, Maui At issue was whether the Hoomoana Foundation’s (the foundation) proposed campground project could be authorized by special use per mit or whether a district boundary amendment was required The specific exclusion of overnight camps from per mitted uses in HRS § 205-4 5(a)(6) means that the public and private recreational use of overnight camps is not per mitted in class A and B land in agricultural districts and cannot be p e r m i t t e d by s p e c i a l u s e p e r m i t . I n

addition, Mahaulepu v. Land Use Commission, 71 Haw 332, 790 P 2d 906 (1990), superseded by statute, 2005 Haw Sess Laws Act 205, §§ 2-3 at 669-71, which held that a use not per mitted under HRS § 2054.5(a)(6) could be authorized by special use per mit, was overruled because it was incorrectly decided Because the foundation’s proposed campground project included a public or private recreational overnight camp use, the project required a district boundary amendment McKenna, J , dissented, joined by Recktenwald, C.J. McKenna, J. stated that the majority chose to overrule Mahaulepu v. Land Use Commission, 71 Haw. 332, 790 P 2d 906 (1990); in doing so, the majority avoided stare decisis jurisprudence. The Hawaii Supreme Court has repeatedly held that where the legislature fails to act in response to the Hawaii Supreme Court’s statutory interpretation, that statutory interpretation must be considered to have the legislature’s tacit approval In addition, the Hawaii Supreme Court has held that when they decide a matter of statutory interpretation, and the legislature does not alter what they have done, “[c]onsiderations of stare decisis have special force[ ]” See State v Garcia, 96 Hawaii 200, 206, 29 P.3d 919, 925 (2001) (quoting Hilton v S C Pub Rys Comm’n, 502 U S 197, 202 (1991)) The majority held that because the foundation’s “proposed campground project includes a public or private recreational overnight camp use, the project requires a district boundary amendment ” The majority thus acknowledged that with respect to unsheltered persons, the foundation’s proposed project was not a “recreational” use prohibited by HRS § 205-4 5(a)(6), which would require a district boundary amendment based on the majority’s overruling of Mahaulepu Even with respect to “ recreational” overnight campers, however, HRS § 205-4 5(a)(14) specifically per mits “agricultural tourism activities, including overnight accommodations of twenty-one days or less[ ]” But the foundation was

precluded from fully explaining why a district boundary amendment was not required because the Land Use Commission denied the foundation’s intervention petition as moot after granting Puunoa

Homeowners Association and Devonne Lane’s petition for a declaratory order

Public Utilities

In the Matter of the Application of Hawaii Electric Light Co., Inc., No. SCOT-220000418, March 13, 2023, (Eddins, J with Wilson, J , concurring separately) Over ten years ago, energy company Hu Honua had a brainwave: it could produce renewable energy by burning trees. The company sought regulatory approval to supply energy to Hawaii Island using a biomass power plant. Last summer, approval for that energy deal was denied Hu Honua appealed the denial, arguing that the Public Utilities Commission (PUC) misunderstood its mandate and held Hu Honua to an unfair standard. The Hawaii Supreme Court disagreed The PUC faithfully followed the Hawaii Supreme Court’s remand instructions to consider the reasonableness of the proposed project’s costs in light of its greenhouse gas emissions and the project’s impact on intervenor Life of the Land’s members’ right to a clean and healthful environment

Wilson, J , concurred separately Wilson, J. stated that the State of Hawaii is in a declared climate emergency In its emergency declaration, the Hawaii legislature called for “ an immense increase of scale in endeavors to conserve our biosphere ” Wilson, J. agreed with the Majority that the PUC’s consideration and denial of the amended Power Purchase Agreement met its duty under article XI, section 9 of the Hawaii State Constitution to protect the right of Hawaii’s people to a clean and healthy environment, which subsumes the right to a life-sustaining climate system

Intermediate Court of Appeals Property

Owners of Kahala To wers, No. CAAP-180000531, March 6, 2023, (Wadsworth, J ) This appeal stemmed from a dispute between the owner of a condominium unit and the board of directors of the condominium project. In August 2016, Plaintiff-A ppellee Sarah Pendleton, personally and as Trustee of the Sarah Pendleton Revocable Living Trust dated June 3, 1994 (Pendleton), sued Defendant-A ppellant The Association of A partment Owners of Kahala Towers aka Kahala Towers AOAO (AOAO) for the retur n of $600 in fines she had paid to AOAO earlier that year pursuant to an allegedly invalid and unenforceable fine policy The district court entered summary judgment in Pendleton’s favor on her claim to recover the $600, and subsequently awarded her attor ney ’ s fees and costs of more than $16,000. AOAO appealed The ICA held that: (1) the district court properly exercised jurisdiction over Count II of the complaint, which did not seek declaratory relief, but, instead, sought damages from AOAO in the amount of $600, as well as an award of attor ney ’ s fees and costs; (2) Pendleton’s claims in the district court, by which she sought to recover fines paid to AOAO in 2016 pursuant to an allegedly invalid and unenforceable fine policy, were not barred by the doctrines of res judicata or collateral estoppel; (3) the district court did not abuse its discretion in g ranting Pendleton’s motion to dismiss Count III of the complaint without prejudice, after Count III became moot; and (4) the district court did not err thereafter in striking the hearing on AOAO’s motion for summary judgment on Count III, after the motion became moot The ICA further held that the district court did not abuse its discretion in awarding Pendleton attor ney ’ s fees under Haw Rev Stat § 514B-157

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