author: JUSTICE HOOD delivered the Opinion of the Court. JUSTICE GABRIEL, specially concurring.

text:
    In Re The PEOPLE of the State of Colorado, Plaintiff, v. Brandon D. BROWN, Defendant.
    Supreme Court Case No. 18SA237
    Supreme Court of Colorado.
    June 10, 2019
    Attorneys for Plaintiff: Beth McCann, District Attorney, Johanna G. Coats, Deputy District Attorney, Denver, Colorado
    Attorneys for Defendant: Appeal to Justice, LLC, Amy D. Trenary, Broomfield, Colorado
    En Banc
   JUSTICE HOOD delivered the Opinion of the Court.

¶1 After being charged with first degree murder as an adult in district court, Brandon Brown exercised his statutory right to request a "reverse transfer" to juvenile court. In doing so, he asks us to address whether he may temporarily waive privilege as to certain information at the reverse-transfer hearing without suffering a continued waiver at trial.

¶2 We hold that he may not. Nothing in the reverse-transfer statute gives Brown the ability to make such a limited waiver. And, neither common law scope-of-waiver limitations nor constitutional principles regarding impermissibly burdening rights change that result. By disclosing otherwise privileged information in open court during a reverse-transfer hearing, Brown would waive privilege as to any such information at trial. Because we agree with the trial court's ruling to the same effect, we discharge our rule to show cause.

I. Facts and Procedural History

¶3 Brandon Brown was charged as an adult in district court for crimes alleged to have taken place in 2012, when he was seventeen years old. The district attorney charged Brown with one count of first degree murder, eight counts of attempted first degree murder, and one count of conspiracy to commit aggravated robbery. Brown exercised his statutory right to seek a reverse transfer, a process that could result in his case being transferred from district court, where he would be tried as an adult, to juvenile court, where he would face prosecution under the Children's Code. See § 19-2-517(3)(a), C.R.S. (2018) (outlining the procedures for transferring a case from district court to juvenile court).

¶4 Before the reverse-transfer hearing, however, Brown sought a protective order, requesting that the district court prohibit the prosecution from using at trial "[a]ny evidence presented at the reverse-transfer hearing, and/or in briefs related to the issue of reverse-transfer." In addition to this wide-ranging request, Brown specifically singled out:

• expert reports;
• medical, dental, mental health, and/or psychological evaluations, screenings, or treatment, and any records underlying such evaluations or records upon which such evaluations are based;
• school records;
• Department of Human Services records;
• records of dependency and neglect proceedings;
• confidential records maintained by agencies of the judicial department or executive branch; and
• any other confidential records.

¶5 The district court denied the request for the protective order altogether. It found that it was "unlikely that the type of evidence generally presented at a reverse transfer hearing would be relevant and admissible at a trial." But, in any event, it held that "neither case law nor statute" empowers a defendant at a reverse-transfer hearing to introduce privileged information without waiving privilege as to that information.

¶6 We granted Brown's petition for a rule to show cause pursuant to C.A.R. 21. He argues that the district court abused its discretion by refusing to issue the protective order.

II. Analysis

¶7 We first address why jurisdiction is appropriate under C.A.R. 21. Because this is a question of first impression as to which a remedy on appeal could prove inadequate, we choose to exercise our original jurisdiction. Second, we identify the standard of review. Third, we analyze whether Brown can partially waive privilege during the reverse-transfer hearing. We conclude that any disclosure of privileged information at the reverse-transfer hearing would constitute a waiver at trial.

A. Original Jurisdiction

¶8 We generally hear petitions under C.A.R. 21 that "raise issues of first impression" and "are of significant public importance." See People v. Johnson , 2016 CO 69, ¶ 7, 381 P.3d 316, 318 (quoting People v. Steen , 2014 CO 9, ¶ 8, 318 P.3d 487, 490 ). Additionally, we have discretion to exercise our original jurisdiction under C.A.R. 21 when "a remedy on appeal would prove inadequate." Id. at ¶ 8, 381 P.3d at 318 (quoting People v. Sisneros , 55 P.3d 797, 799 (Colo. 2002) ).

¶9 All three considerations apply here. Whether a defendant may partially disclose privileged information in a reverse-transfer hearing is a question of first impression with significant public importance, and the issue is likely to recur. Additionally, as a practical matter, the wrongful disclosure of privileged information is irremediable on appeal, as the privileged information will have been disclosed. See Sisneros , 55 P.3d at 799.

¶10 For all these reasons, we choose to exercise our original jurisdiction here.

B. Standard of Review

¶11 While we review a trial court's decision denying a protective order for abuse of discretion, Bond v. Dist. Court , 682 P.2d 33, 38 (Colo. 1984), we review questions of law, such as the interpretation of the reverse-transfer statute, de novo, Johnson , ¶ 9, 381 P.3d at 318 (citing Bostelman v. People , 162 P.3d 686, 689 (Colo. 2007) ).

C. Brown May Not Partially Waive Privilege

¶12 Brown asserts privilege as to numerous documents, evaluations, and testimony by some witnesses. And although the parties disagree as to whether some of this correspondence and other evidence is privileged information, that level of the analysis is potentially rendered moot by another: Even if all that Brown seeks to protect is privileged, would he waive any such privilege upon disclosure of the information during a reverse-transfer hearing? To answer this question, we first turn to the language of the reverse-transfer statute.

1. The Reverse-Transfer Statute

¶13 The plain language of the statute doesn't explicitly give Brown the ability to make a limited waiver of privilege.

¶14 The statute provides that "[a]fter a juvenile case has been charged by direct filing ... in district court, the juvenile may file in district court a motion to transfer the case to juvenile court." § 19-2-517(3)(a). After describing some procedural requirements (time to file, responses by the district attorney, and so on), the statute lists factors for a court to consider "[i]n determining whether the juvenile and the community would be better served by" adjudicating in juvenile or district court. See § 19-2-517(3)(a)-(b).

¶15 Among those factors are:

• "age ... and the maturity of the juvenile as determined by considerations of the juvenile's home, environment, emotional attitude, and pattern of living";
• "record and previous history of the juvenile in prior court-related matters";
• "current and past mental health status";
• "likelihood of the juvenile's rehabilitation by use of the sentencing options available in the juvenile and district courts"; and
• "previous[ ] commit[ment] to the department of human services."

§ 19-2-517(b)(IV), (V), (VI), (VII), (X).

¶16 In interpreting a statute, we give words and phrases their plain and ordinary meaning, read them in context, and construe them according to the rules of grammar and common usage. See Doubleday v. People , 2016 CO 3, ¶ 19, 364 P.3d 193, 196. Our primary task is to "ascertain and effectuate the intent of the General Assembly." Turbyne v. People , 151 P.3d 563, 567 (Colo. 2007). Statutes should be applied as written, and we do not add or subtract words. See State v. Medved , 2019 CO 1, ¶ 19, 433 P.3d 33, 37 ("[I]n interpreting a statute, we must accept the General Assembly's choice of language and not add or imply words that simply are not there." (quoting People v. Diaz , 2015 CO 28, ¶ 15, 347 P.3d 621, 625 )); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 94 (2012) ("[An] absent provision cannot be supplied by the courts.").

¶17 While the enumerated factors might implicate certain potentially privileged information (or at least confidential information), nowhere does the statute grant Brown the right to disclose that information solely for the purposes of reverse transfer. The statute is completely silent as to limited disclosure. And it isn't our role to add such language.

¶18 We therefore decline the invitation to effectively do so here.

2. Waiving Privilege Extends from the Reverse-Transfer Hearing to Trial

¶19 Looking beyond the plain language of the statute, Brown argues that, as a matter of common law, waiver is "limited to the purposes for which the information is placed at issue." That "limited" purpose here, he contends, is the reverse-transfer hearing. As a result, any disclosure must be confined to that hearing. We disagree.

¶20 Both parties agree that privilege is waived when the "privilege holder 'has injected his physical or mental condition into the case as the basis of a claim or an affirmative defense.' " In re Alcon v. Spicer , 113 P.3d 735, 739 (Colo. 2005) (quoting Clark v. Dist. Court , 668 P.2d 3, 10 (Colo. 1983) ). However, Brown argues that "as the basis of a claim or an affirmative defense" means that he is only putting his physical and mental condition at issue with respect to the jurisdictional issue in the reverse-transfer hearing; he isn't simultaneously putting his physical and mental condition at issue as to the underlying alleged crimes. Brown emphasizes the language in Alcon that states that waivers "have always been limited by the circumstances of the case." Id.

¶21 But Alcon doesn't compel the result that Brown seeks. In Alcon , we noted that privilege holders only impliedly waive privilege as it relates to the specific condition that was placed at issue. Id. Alcon waived privilege "with respect to the injuries claimed in her lawsuit," but not her entire medical record. Id. at 740. In other words, the scope of the information encompassed by Alcon's waiver of privilege was limited to the "circumstances of the case"-the types of injuries alleged and nothing else. Id. at 739. Once waived, however, the privileged information was waived for the purposes of the entire litigation; nothing about our analysis suggested that Alcon's waiver could be limited to a particular hearing or part of the litigation.

¶22 Brown's reliance on our recent decision in Zapata v. People is equally misplaced. We held in Zapata that waiver under section 16-8.5-104, C.R.S. (2018) (addressing waiver of privilege in the competency context) is limited to the "parties and the court in that defendant 's case." Zapata v. People , 2018 CO 82, ¶ 41, 428 P.3d 517, 526-27. This holding does not apply here for at least three reasons. First, we came to our conclusion based on the specific statutory scheme at issue there, not on common law principles. Id. at ¶ 44, 428 P.3d at 527 ("[W]here, as here, the General Assembly has specified that only a limited waiver occurs, that-not a general common law principle-controls."). Second, the statute at issue in Zapata singled out-in five out of the six subsections-three recipients for disclosure. Id. at ¶ 42, 428 P.3d at 527. Thus, the statute dictated limited waiver. Id. at ¶ 45, 428 P.3d at 528. Third, even assuming that the analysis could somehow apply to the reverse-transfer statute, the defendant in Zapata was trying to gain access to medical records of another person from a different case. Id. at ¶¶ 11-12, 428 P.3d at 522. By contrast, Brown seeks to maintain his own privilege in the same case.

¶23 Moreover, our decision in People v. Higgins undercuts Brown's argument regarding the scope of the waiver. There, a juvenile, through her defense counsel, agreed to a state-administered mental health assessment. People v. Higgins , 2016 CO 68, ¶ 2, 383 P.3d 1167, 1168. Later, the district attorney dismissed the juvenile charges and charged the defendant as an adult. Id . at ¶ 3, 383 P.3d at 1168. The defendant then requested a reverse-transfer hearing and sought to suppress the mental health assessment, arguing that the trial court was required to give Fifth Amendment self-incrimination warnings before the assessment. Id. at ¶¶ 3, 10, 383 P.3d at 1168, 1169. But we declined to address that issue, concluding that, because the defendant consented to the assessment, there were no Fifth Amendment implications. Id. at ¶ 11, 383 P.3d at 1169. In other words, the defendant had already waived her right to withhold that information, even though the assessment took place before the defendant's bid for reverse transfer. Thus, the reverse-transfer hearing and the underlying claims were all one "case" and any privilege waived in one applied to the other. So it is here as well.

¶24 Therefore, our jurisprudence on waiver offers Brown no refuge.

3. There's No Impermissible Burden on Constitutional Rights

¶25 Brown also contends that refusing to grant a protective order impermissibly burdens his Fifth Amendment right against self-incrimination. But Brown isn't compelled to produce any privileged information and isn't punished for choosing not to. As a result, there isn't an impermissible burden on his Fifth Amendment rights.

¶26 The thrust of Brown's argument is that his situation is the same as the defendant's in People v. Rosenthal . See 617 P.2d 551 (Colo. 1980). There, we held that "unrestricted prosecutorial use at the guilt trial of the defendant's psychiatric communications clashes directly with the privilege against self-incrimination." Id. at 555. The defendant had hired her own psychiatrist to conduct an insanity evaluation in pursuit of a not guilty by reason of insanity plea. Id. at 552-53. Although there were statutory prohibitions on using information obtained from the state-mandated evaluation, there were no similar protections for a privately obtained evaluator. Id. at 553. Nevertheless, we reasoned that allowing use of the psychiatric communications with the private evaluator would require the defendant to "become[ ] a witness against herself through the conduit of the psychiatric examiner." Id. at 555.

¶27 But the reverse-transfer hearing and a not guilty by reason of insanity evaluation are apples to oranges. There is no requirement that a defendant provide explicit information about the alleged offense during a reverse-transfer hearing. See § 19-2-517(3)(a)-(b). Yet a sanity examination requires exactly that. The statutory definition of "sanity examination" says so: "[A] court-ordered examination of a defendant ... directed to developing information to determining the sanity or insanity of the defendant at the time of the commission of the act with which he is charged." § 16-8-102(8), C.R.S. (2018) (emphasis added). So, in Rosenthal , the defendant was forced to "become[ ] a witness against herself" because she was required to speak about the offense itself. Rosenthal , 617 P.2d at 555. Brown is required to do no such thing, as we demonstrate below.

¶28 First, Johnson made clear that the reverse-transfer statute doesn't compel a defendant to produce any mental health records. Johnson , ¶ 15, 381 P.3d at 319 ("If privileged information is not 'made available' by the privilege-holder, nothing in the statute gives the trial court the power to force a party to disclose privileged information."). Thus, although Brown may submit privileged information at the reverse-transfer hearing, nothing forces him to do so. We have never held that being confronted with a choice-even a difficult one-regarding whether to waive privilege necessarily produces an unconstitutional burden.

¶29 Second, while the reverse-transfer statute implicates potentially privileged information, it doesn't "threaten[ ] to inflict 'potent sanctions' " for failing to disclose such information. People v. Roberson , 2016 CO 36, ¶ 31, 377 P.3d 1039, 1044 (quoting Lefkowitz v. Cunningham , 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) ) (reasoning that the requirement to answer incriminating questions in order to maintain probation impermissibly burdened the defendant's constitutional rights). And because the reverse-transfer statute doesn't "automatically penalize" failure to disclose privileged information-as Johnson demonstrates-it doesn't impermissibly burden Brown's Fifth Amendment right against self-incrimination. See People v. Sapp , 934 P.2d 1367, 1370 (Colo. 1997).

¶30 In sum, because Brown isn't required to disclose any privileged information and is not penalized for declining to do so, the reverse-transfer statute doesn't impermissibly burden the Fifth Amendment right against self-incrimination.

III. Conclusion

¶31 We acknowledge that Brown faces a difficult choice regarding whether to disclose privileged information during his reverse-transfer hearing. But that difficulty doesn't grant him the right to limit any resulting waiver to that hearing. (As the trial court noted, however, whether any disclosed information is admissible at trial is a different question.) While we understand that this uncertainty might hinder Brown and other similarly situated defendants from offering a full picture of their case during the reverse-transfer hearing, neither the reverse-transfer statute nor caselaw on waiver or impermissibly burdening constitutional rights supplies Brown with the remedy that he seeks. To the extent that this is a glitch in the statutory scheme, it is up to the General Assembly to decide whether to fix it.

¶32 Therefore, we hold that Brown may not limit waiver to his reverse-transfer hearing. Accordingly, the trial court's order is affirmed.

JUSTICE GABRIEL specially concurs.

CHIEF JUSTICE COATS does not participate.

JUSTICE GABRIEL, specially concurring.

¶33 I join the majority's opinion in full because I believe that the conclusion that it reaches is compelled by applicable statutory and case law. I write separately, however, to express my concern that the result that the law dictates, which I fear will deter many juvenile offenders who are charged as adults from seeking a reverse transfer of their cases, may not be what the legislature intended when it enacted the reverse-transfer statute.

¶34 The reverse-transfer statute, section 19-2-517(3), C.R.S. (2018), is part of the Colorado Children's Code, sections 19-1-101 to 19-7-103, C.R.S. (2018). That Code provides, in pertinent part, that the purpose of the juvenile justice system is to hold public safety "paramount" while at the same time taking into consideration "the best interests of the juvenile, the victim, and the community in providing appropriate treatment to reduce the rate of recidivism in the juvenile justice system and to assist the juvenile in becoming a productive member of society." § 19-2-102(1). Consistent with this purpose, the Code recognizes that, in certain circumstances, the juvenile and the community would be better served by having a juvenile offender tried in juvenile court, rather than as an adult in district court. See § 19-2-517(3). Such a view is also consistent with the Supreme Court's recognition that juvenile offenders are fundamentally different from adults for purposes of sentencing because (1) they lack maturity and have "an underdeveloped sense of responsibility"; (2) they "are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure"; and (3) their characters are "not as well formed" as those of adults. Roper v. Simmons , 543 U.S. 551, 569-70, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (quoting Johnson v. Texas , 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) ).

¶35 Concluding that a juvenile waives privilege as to certain information that he or she wishes to present at a reverse-transfer hearing arguably undermines the foregoing principles because it potentially chills a juvenile offender's exercise of the right to seek a reverse transfer of his or her case in circumstances in which the juvenile and the community will be better served by adjudicatory proceedings in juvenile court.

¶36 It is not clear to me that the legislature intended such a result, nor can I perceive a legitimate basis for chilling a juvenile offender's right to seek a reverse transfer in this way.

¶37 Adopting a limited waiver of privilege in the present context will not prejudice the People because they will receive the information at issue in advance of the reverse-transfer hearing so that they will be able to prepare properly. Moreover, as everyone in this case appears to concede, information of the type at issue is unlikely to be admissible at the trial on the merits. Accordingly, I find it difficult to discern the interests that the People are seeking to vindicate in arguing that Brown would waive any privileges that he possesses by introducing at a reverse-transfer hearing evidence that section 19-2-517(3)(b) essentially compels him to produce.

¶38 For these reasons, although applicable law compels me to join the majority opinion, I respectfully urge the General Assembly to clarify whether it intended a waiver of privilege in the circumstances presented here and, if not, to enact legislation that establishes appropriate limits on any waiver of privilege resulting from a juvenile's presentation of statutorily mandated evidence at a reverse-transfer hearing.

      Brown framed the issue as follows: "Whether the district court abused its discretion by refusing to issue a protective order preventing the prosecution from admitting[,] into trial evidence[,] confidential and privileged information Mr. Brown wishes to disclose for the sole purpose of supporting his motion for reverse-transfer."

      The legislature has provided for limited waiver in other circumstances, such as insanity and competency. See § 16-8-107(1)(a), C.R.S. (2018); § 16-8.5-108, C.R.S. (2018). That the legislature has explicitly provided for limited waiver elsewhere but not in the reverse-transfer statute further suggests that the legislature didn't intend to create limited waiver here.

      Because the plain and unambiguous language of the reverse-transfer statute resolves the issue of limited waiver, we need not reach for tools, such as legislative history, used to throw light on more enigmatic texts.

      Brown also relies on People v. Chavez for a similar proposition. See 621 P.2d 1362, 1365 (Colo. 1981). There we held that there was "an intolerable tension" between the right to testify in one's defense and the right against self-incrimination when it comes to the combination of a habitual criminal charge and a separate, substantive offense. Id. To properly defend against both charges, the defendant would be required to incriminate himself as to the habitual charge, which then could be used against him for the separate charges. Id. at 1364. In other words, the defendant had no choice. Brown has one.


source: Caselaw Access Project

license: Public Domain

text:
    TH, Plaintiff-Appellee, v. JH, Defendant-Appellant
    NO. CAAP-15-0000539
    Intermediate Court of Appeals of Hawai'i.
    April 30, 2019. May 2, 2019.
    SUMMARY DISPOSITION ORDER
    Vacated. Affirmed.
    Remanded.


text:
    Theodorico ERUM, Jr., Plaintiff-Appellant, v. Josue Bumatay LLEGO, Defendant-Appellee
    NO. CAAP-17-0000762
    Intermediate Court of Appeals of Hawai'i.
    April 30, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Genya SCROGGIN and David James Scroggin, Plaintiffs-Appellants, v. MANDARIN ORIENTAL MANAGEMENT (USA) INC. dba Kahala Mandarin Oriental Hawaii, Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Entities 1-10, Defendants
    NO. CAAP-17-0000534
    Intermediate Court of Appeals of Hawai'i.
    April 30, 2019.
    SUMMARY DISPOSITION ORDER
    Vacated. Remanded.


text:
    STATE of Hawai'i, Plaintiff-Appellant, v. James MONTGOMERY, Defendant-Appellee
    NO. CAAP-17-0000832
    Intermediate Court of Appeals of Hawai'i.
    April 30, 2019.
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    STATE of Hawai'i, Plaintiff-Appellant, v. Frank ENOS, also known as Frank Enos, Jr., Defendant-Appellee
    NO. CAAP-18-0000407
    Intermediate Court of Appeals of Hawai'i.
    April 30, 2019.
    SUMMARY DISPOSITION ORDER
    Vacated. Remanded.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Alton Joseph EXZABE, Defendant-Appellant
    NO. CAAP-18-0000425
    Intermediate Court of Appeals of Hawai'i.
    April 30, 2019.
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.


text:
    Edmund M. ABORDO, Plaintiff-Appellant, v. Patricia (aka) Patti Ann ICHIDA, Defendant-Appellee
    NO. CAAP-18-0000499
    Intermediate Court of Appeals of Hawai'i.
    April 30, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Jacob Paul DECLOUET, Defendant-Appellant
    NO. CAAP-18-0000547
    Intermediate Court of Appeals of Hawai'i.
    April 30, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Jason HESTER, Overseer of the Office of Overseer, a corporate sole and his successors, over/for the Popular Assembly of Revitalize, a Gospel of Believers, Plaintiff/Counterclaim-Defendant/Appellee, v. Leonard G. HOROWITZ and The Royal Bloodline of David, Defendants/Counterclaim-Plaintiffs/Appellants, and Jacqueline Lindenbach Horowitz, Defendant/Counterclaim-Plaintiff/Appellee, and Philip Maise, Intervenor-Appellee, and John Does 1-10, Jane Does 1-10, Doe Entities 1-10, Doe Partnerships 1-10, Doe Governmental Units 1-10, Defendants
    Jason Hester, an individual, Plaintiff/Counterclaim-Defendant/Appellee, v. Leonard G. Horowitz, an individual and Sherri Kane, an individual Defendants/Counterclaim-Plaintiffs/Appellants, and The Royal Bloodline of David, a Washington Corporation Sole, Defendant/Appellant, and Medical Veritas International, Inc., a California non-profit corporation, John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10 and Doe Governmental Units 1-10, Defendants
    Jason Hester, Petitioner-Appellee, v. Leonard G. Horowitz, Respondent-Appellant
    NOS. CAAP-16-0000162 CAAP-16-0000163 AND CAAP-18-0000584
    Intermediate Court of Appeals of Hawai'i.
    May 2, 2019 As Corrected May 17, 2019
    MEMORANDUM OPINION
    Affirmed.
    Vacated. Remanded.


text:
    Jason HANKINS, Plaintiff-Appellant, v. ANG, INC., dba McDonald's Management of Ewa Beach Hawai'i, Defendant-Appellee
    NO. CAAP-18-0000148
    Intermediate Court of Appeals of Hawai'i.
    May 1, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Mark Ian BOADO, Defendant-Appellant
    NO. CAAP-17-0000007
    Intermediate Court of Appeals of Hawai'i.
    May 9, 2019
    MEMORANDUM OPINION
    Vacated. Remanded.


text:
    COCO PALMS HUI LLC, Plaintiff-Appellee, v. Noa MAU-ESPIRITO and Charles D. Hepa, Defendants-Appellants, and Kaipolani Mau-Espirito, also known as Ka-Ipolani Mau Espirito, Defendant
    NO. CAAP-18-0000106
    Intermediate Court of Appeals of Hawai'i.
    May 8, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Fred E. HOFER, Defendant-Appellant
    NO. CAAP-18-0000097
    Intermediate Court of Appeals of Hawai'i.
    May 8, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Robert E. WIESENBERG, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI'I, Defendant-Appellee, and John Does 1-50; Jane Does 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units/Entities 1-50, Defendants
    NO. CAAP-15-0000711
    Intermediate Court of Appeals of Hawai'i.
    May 10, 2019.
    MEMORANDUM OPINION
    Vacated. Reversed. Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Monica HATTORI, Defendant-Appellant
    NO. CAAP-16-0000556
    Intermediate Court of Appeals of Hawai'i.
    May 10, 2019.
    MEMORANDUM OPINION
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellant, v. Dawn NAEOLE, Defendant-Appellee
    NO. CAAP-18-0000381
    Intermediate Court of Appeals of Hawai'i.
    May 10, 2019
    MEMORANDUM OPINION
    Vacated. Remanded.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Monica KNAPP, Defendant-Appellant
    NO. CAAP-18-0000511
    Intermediate Court of Appeals of Hawai'i.
    May 14, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    BANK OF HAWAI'I, Plaintiff-Appellee, v. Richard Anthony MARQUES; Laura Marie Marques, Defendants-Appellants, and Jim Hogg; Palehua Community Association ; Director of Budget and Fiscal Services, City and County of Honolulu; Makakilo Ridge Community Association, Defendants-Appellees, and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe "Non-Profit" Corporations 1-50; and Doe Governmental Units 1-50, Defendants
    Bank of Hawaii, Plaintiff-Appellee, v. Richard Anthony Marques; Laura Marie Marques, Defendants-Appellants, and Jim Hogg; Palehua Community Association ; Director of Budget and Fiscal Services, City and County of Honolulu; Makakilo Ridge Community Association, Defendants-Appellees, and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe "Non-Profit" Corporations 1-50; and Doe Governmental Units 1-50, Defendants
    NOS. CAAP-15-0000734 CAAP-16-0000827
    Intermediate Court of Appeals of Hawai'i.
    May 13, 2019.
    MEMORANDUM OPINION
    Affirm. Vacate.
    Remanded.


text:
    Gali HUFF, Petitioner-Appellee, v. Abraham MARTIN, Respondent-Appellant.
    NO. CAAP-18-0000372
    Intermediate Court of Appeals of Hawai'i.
    May 13, 2019.
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Michael J. BOTELHO, Defendant-Appellant
    NO. CAAP-18-0000285
    Intermediate Court of Appeals of Hawai'i.
    May 15, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Albert BIRMINGHAM, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee
    NO. CAAP-17-0000722
    Intermediate Court of Appeals of Hawai'i.
    May 15, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    REALTY FINANCE, INC., Plaintiff/Counterclaim Defendant-Appellee, v. Thomas Frank SCHMIDT and Lorinna Jhincil Schmidt, Defendants/Cross-Claim Defendants/ Counterclaim-Plaintiffs/Appellants, and Kaloko Two Partnership, a Hawaii limited partnership; Amerasian Land Co., a Nevada corporation, Defendants/Counterclaim-Plaintiffs/Appellees, and Association of Apartment Owners of the Marco Polo Apartments, an unincorporated condominium association, Defendant/Cross-Claim Plaintiff/Counterclaim-Plaintiff/Appellee, and Turlington Corporation, as Successor-In-Interest to John Rapp, Defendant/Cross-Claim-Defendant/Appellee, and Lawhn & Keever, a Law corporation; Douglas J. Ige; State of Hawai'i, by and through the Chief, Oahu Collections Branch, Defendants-Appellees,
    Association of Apartment Owners of the Marco Polo Apartments, Defendant/Third-Party Plaintiff/Appellee, v. Real Property Division Department of Finance, County of Maui, Bank of Honolulu, and Charles Mazzola, Third-Party Defendants/Appellees.
    NO. CAAP-16-0000536
    Intermediate Court of Appeals of Hawai'i.
    May 14, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Justin T. WOLCOTT, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF the COURTS, State of Hawai'i, Respondent-Appellee
    NO. CAAP-15-0000859
    Intermediate Court of Appeals of Hawai'i.
    May 16, 2019.
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Sophina PLACENCIA, Defendant-Appellant
    NO. CAAP-18-0000180
    Intermediate Court of Appeals of Hawai'i.
    May 16, 2019.
    SUMMARY DISPOSITION ORDER
    Dismissed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Michael A. WRIGHT, Defendant-Appellant
    NO. CAAP-18-0000327
    Intermediate Court of Appeals of Hawai'i.
    May 16, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Gary RESPICIO, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF the COURTS, State of Hawai'i, Respondent-Appellee
    NO. CAAP-17-0000851
    Intermediate Court of Appeals of Hawai'i.
    May 15, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Jordon J.K. RODRIGUES, Defendant-Appellant.
    NO. CAAP-18-000038
    Intermediate Court of Appeals of Hawai'i.
    May 21, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    John DOE, Appellant-Appellant, v. Attorney General, Clare E. CONNORS, Appellee-Appellee
    NO. CAAP-16-0000351
    Intermediate Court of Appeals of Hawai'i.
    May 20, 2019
   SUMMARY DISPOSITION ORDER

Affirm.

1 Pursuant to Hawai`i Rules of Appellate Procedure (HRAP) Rule 43(c)(1), Clare E. Connors, the current Attorney General of the State of Hawai`i is automatically substituted as Appellee-Appellee herein in place of Douglas S. Chin.

--------


text:
    STATE of Hawai'i, BY AND THROUGH its Attorney General Clare E. CONNORS , Plaintiff-Appellant, v. Michael KAHAPEA, Defendant-Appellee,
    State of Hawai'i Employees' Retirement System, Garnishee-Appellee.
    NO. CAAP-17-0000680
    Intermediate Court of Appeals of Hawai'i.
    May 17, 2019
   SUMMARY DISPOSITION ORDER

Vacate. Remand.

1 Pursuant to Hawai`i Rules of Appellate Procedure (HRAP) Rule 43(c)(1) (2012), Clare E. Connors, the current Attorney General of the State of Hawai`i is automatically substituted as Plaintiff-Appellant herein in place of Douglas S. Chin.

--------


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Hilton JOANES, Defendant-Appellant
    NO. CAAP-16-0000451
    Intermediate Court of Appeals of Hawai'i.
    May 17, 2019
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Summer N. JENKINS, Defendant-Appellant
    NO. CAAP-16-0000120
    Intermediate Court of Appeals of Hawai'i.
    May 23, 2019
    MEMORANDUM OPINION
    Vacated. Remanded.


text:
    U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR the C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-CB1, Plaintiff-Appellee, v. JUNG HOON KIM, Defendant-Appellant, and Midland Funding LLC, Defendant-Appellee, and John Does 1-20; Jane Does 1-20; Doe Corporations 1-20; Doe Entities 1-20; and Doe Governmental Units 1-20, Defendants
    U.S. Bank National Association, as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2007-CB1, Plaintiff-Appellee, v. Jung Hoon Kim, Defendant-Appellant, and Midland Funding LLC, Defendant-Appellee, and John Does 1-20; Jane Does 1-20; Doe Corporations 1-20; Doe Entities 1-20; and Doe Governmental Units 1-20, Defendants
    NOS. CAAP-17-0000402 CAAP-17-0000700
    Intermediate Court of Appeals of Hawai'i.
    May 22, 2019
    SUMMARY DISPOSITION ORDER
    Vacated.
    Remanded.


text:
    Kaycee A. HIGA, Petitioner-Appellee, v. Gabby ORDONEZ-SNOW, Respondent-Appellant
    NO. CAAP-17-0000096
    Intermediate Court of Appeals of Hawai'i.
    May 22, 2019
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    ASSOCIATION OF APARTMENT OWNERS OF KAI MAKANI, through its Board of Directors, Plaintiff-Appellee, v. Michael J. OLEKSA and Erica L. Oleksa, Defendants-Appellants, and Option One Mortgage Corporation nka Sand Canyon Corporation, a California Corporation, Defendant-Appellee, and Does 1-20, Defendants
    NO. CAAP-16-0000611
    Intermediate Court of Appeals of Hawai'i.
    May 29, 2019.
    SUMMARY DISPOSITION ORDER
    Vacated. Remanded.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Billy Joel DE LIMA, Defendant-Appellant
    NO. CAAP-17-0000914
    Intermediate Court of Appeals of Hawai'i.
    May 28, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellant, v. Joshua RESUN, Defendant-Appellee ,
    NO. CAAP-16-0000046
    Intermediate Court of Appeals of Hawai'i.
    May 24, 2019
    MEMORANDUM OPINION
    Vacate. Remanded.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Pamela Joy NAILE, Defendant-Appellant
    NO. CAAP-18-0000534
    Intermediate Court of Appeals of Hawai'i.
    May 29, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    PL III, LLC, a Hawaii limited liability company; Arick B. Yanagihara; Michael H. Nekoba; William G. Boyle; and Anita Matsuzaki, Plaintiffs/Counterclaim Defendants/Appellants, v. PUU LANI RANCH CORP., a Hawaii corporation, Defendant/Counterclaimant/Appellee, and F. Newell Bohnett, as Trustee under that certain unrecorded Revocable Living Trust Agreement dated July 29, 1981, made by F. Newell Bohnett, as Settlor; and F. Newell Bohnett, in his individual capacity, Defendants-Appellees.
    PL III, LLC, a Hawaii limited liability company; Arick B. Yanagihara; Michael H. Nekoba; William G. Boyle; and Anita Matsuzaki, Plaintiffs/Counterclaim Defendants/Appellees, v. Puu Lani Ranch Corp., a Hawaii corporation, Defendant/Counterclaimant/Appellant, and F. Newell Bohnett, as Trustee under that certain unrecorded Revocable Living Trust Agreement dated July 29, 1981, made by F. Newell Bohnett, as Settlor; and F. Newell Bohnett, in his individual capacity, Defendants-Appellants, and Doe Counterclaim Defendants 1-20, Counterclaim-Defendants.
    PL III, LLC, a Hawaii limited liability company; Arick B. Yanagihara; Michael H. Nekoba; William G. Boyle; and Anita Matsuzaki, Plaintiffs/Counterclaim Defendants/Appellees, v. Puu Lani Ranch Corp., a Hawaii Corporation, Defendant/Counterclaimant/Appellant, and F. Newell Bohnett, as Trustee under that certain unrecorded Revocable Living Trust Agreement dated July 29, 1981, made by F. Newell Bohnett, as Settlor; and F. Newell Bohnett, in his individual capacity, Defendants-Appellants, and Doe Counterclaim Defendants 1-20, Counterclaim-Defendants.
    NO. CAAP-14-0001115 Consolidated with CAAP-15-0000484 CAAP-15-0000671
    Intermediate Court of Appeals of Hawai'i.
    May 29, 2019
    MEMORANDUM OPINION
    Vacate. Remand.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Jamie Lee Napua PIRES, Defendant-Appellant
    NO. CAAP-16-0000379
    Intermediate Court of Appeals of Hawai'i.
    May 30, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Israel Vega MALAVE, Defendant-Appellant
    NO. CAAP-18-0000332
    Intermediate Court of Appeals of Hawai'i.
    May 29, 2019
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Justin A. LAMBERT, Defendant-Appellant
    NO. CAAP-15-0000454
    Intermediate Court of Appeals of Hawai'i.
    May 29, 2019
    MEMORANDUM OPINION
    Reversed in part. Vacated in part. Reversed. Vacated. Remanded.


text:
    MM, Petitioner-Appellant, v. BD, Respondent-Appellee
    MM, Petitioner-Appellant, v. BD, Respondent-Appellee
    NOS. CAAP-16-0000596 CAAP-17-0000106
    Intermediate Court of Appeals of Hawai'i.
    May 30, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Jamielee Napua PIRES, Defendant-Appellant
    NO. CAAP-18-0000088
    Intermediate Court of Appeals of Hawai'i.
    May 30, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Michelle GALVEZ, Defendant-Appellant
    NO. CAAP-18-0000417
    Intermediate Court of Appeals of Hawai'i.
    May 30, 2019
    MEMORANDUM OPINION
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Samuel JOO RIM SU, Defendant-Appellant
    NO. CAAP-18-0000692
    Intermediate Court of Appeals of Hawai'i.
    May 30, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Andrea M. MILLS, Defendant-Appellant
    NO. CAAP-15-0000475
    Intermediate Court of Appeals of Hawai'i.
    May 31, 2019.
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.


text:
    WAIKOLOA VILLAGE ASSOCIATION, Plaintiff/Counterclaim Defendant-Appellee, v. J R & M RESTAURANTS HAWAII LLC, Defendant/Counterclaim Plaintiff-Appellee, and Peter J. Lenhart, Real Party in Interest-Appellant
    NO. CAAP-15-0000649
    Intermediate Court of Appeals of Hawai'i.
    May 30, 2019
    MEMORANDUM OPINION
    Vacated.
    Remanded.


text:
    Marlene TIM SING, individually and as Next Friend to her daughter, Makalika Tim Sing, a minor, and as Personal Representative for the Estate of Dale Kanani Tim Sing, Deceased; Dale Cordero, Kale Tim Sing, and Lokelani Tim Sing, Plaintiffs-Appellants, v. Konrad K. MOSSMAN, Huihui Lavon Kanahele-Mossman, Defendants/Cross-Claim Plaintiffs/Cross-Claim Defendants/Appellees, and County of Hawai'i, Defendant/Cross-Claim Defendant/Cross-Claim Plaintiff/Appellee, and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Nonprofit Corporations 1-10; Doe Governmental Entities 1-10, inclusive, Defendants
    Kassy Astrande, individually and as Guardian Ad Litem of McKenzie Tim Sing, a minor, Plaintiffs-Appellees, v. Konrad K. Mossman, Huihui Lavon Kanahele-Mossman, Defendants/Cross-Claim Plaintiffs/Cross-Claim Defendants/Appellees, and County of Hawai'i, Defendant/Cross-Claim Defendant/Cross-Claim Plaintiff/Appellee, and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Nonprofit Corporations 1-10; Doe Governmental Entities 1-10, inclusive, Defendants
    NOS. CAAP-16-0000207 AND CAAP-15-0000891
    Intermediate Court of Appeals of Hawai'i.
    May 31, 2019
    MEMORANDUM OPINION
    Vacate. Remand.


text:
    IN RE OFFICE OF INFORMATION PRACTICES OPINION LETTER NO. F16-01
    NO. CAAP-16-0000568
    Intermediate Court of Appeals of Hawai'i.
    May 31, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Sharon Matsumoto EBBO; Aaron Kwan Lee; Christy Leonard ; Kenneth Keichi Matsumoto; Nora Matsumoto; LM-602 Front Street L.L.C.; NM-602 Front Street L.L.C.; PM-602 Front Street L.L.C.; RM-602 Front Street L.L.C., Plaintiffs-Appellees, v. SGG, LLC; RJZ, LLC aka RZJ LLC, Defendants-Appellants, and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50 and Doe Governmental Units 1-50, Defendants
    NO. CAAP-17-0000347
    Intermediate Court of Appeals of Hawai'i.
    May 31, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPANT TRUST, Plaintiff-Appellee, v. Randall M.L. YEE, as Special Administrator FOR the ESTATE OF Oliver H. CUMMINGS, Sr.; Randall M.L. Yee, as Special Administrator for the Estate of Laura E.M.K. Cummings, Defendants-Appellees, and Oliver Cummings Jr., Successor Trustee Under the Oliver H. Cummings, Sr. Trust Dated October 26, 2006 and Oliver H. Cummings, Jr., Successor Trustee Under the Laura E.M.K. Cummings Trust Dated October 26, 2006, Defendant-Appellant, and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50, Defendants
    NO. CAAP-17-0000447
    Intermediate Court of Appeals of Hawai'i.
    June 5, 2019
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    BANK OF HAWAII, Plaintiff-Appellee, v. Keith KIMI and Jeanne Kimi, Defendants-Appellants, and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50; Defendants
    NO. CAAP-17-0000712
    Intermediate Court of Appeals of Hawai'i.
    May 31, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellant, v. Joshua LEE, Defendant-Appellee
    NO. CAAP-16-0000797
    Intermediate Court of Appeals of Hawai'i.
    May 31, 2019.
    MEMORANDUM OPINION
    Vacate. Remand.


text:
    In the MATTER OF the ELAINE EMMA SHORT REVOCABLE LIVING TRUST AGREEMENT DATED JULY 17, 1984, as amended
    NO. CAAP-15-0000960
    Intermediate Court of Appeals of Hawai'i.
    June 10, 2019.
    MEMORANDUM OPINION
    Affirm. Reverse.


text:
    STATE of Hawai'i, Plaintiff-Appellant, v. Windley KAPALSKI, Defendant-Appellee
    NO. CAAP-17-0000130
    Intermediate Court of Appeals of Hawai'i.
    June 10, 2019.
    MEMORANDUM OPINION
    Vacate. Remand.


text:
    Kathleen Brooke ROBERTS, Plaintiff-Appellant, v. Anthony JAYSWAL, D.C., dba Healing Hands Chiropractic of Maui, Defendant-Appellee, and John Does 1-5, John Doe Corporations 1-5, John Doe Partnerships 1-5, Roe Non-Profit Corporations 1-5, and Roe Governmental Agencies 1-5, Defendants
    NO. CAAP-15-0000933
    Intermediate Court of Appeals of Hawai'i.
    June 7, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Ryan H. HIRONAKA, Defendant-Appellant
    NO. CAAP-18-0000404
    Intermediate Court of Appeals of Hawai'i.
    June 5, 2019
    SUMMARY DISPOSITION ORDER
    Reversed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. William Terry EVANS, Defendant-Appellant
    NO. CAAP-18-0000412
    Intermediate Court of Appeals of Hawai'i.
    June 12, 2019
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Lee Y. MYERS, Defendant-Appellant
    NO. CAAP-18-0000290
    Intermediate Court of Appeals of Hawai'i.
    June 12, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Richard PRICE and Julia Price, Plaintiffs-Counterclaim Defendants/Appellees, v. Tom COULSON, Defendant-Counterclaimant/Appellee, and Carl Kingston, as Personal Representative of the Estate of Julia Collins Price also known as Julie Price and the Estate of Julia Collins Price also known as Julie Price, Defendants-Real Parties in Interest/Appellants
    NO. CAAP-17-0000609
    Intermediate Court of Appeals of Hawai'i.
    June 10, 2019.
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Brok CARLTON, Defendant-Appellant
    NO. CAAP-17-0000419
    Intermediate Court of Appeals of Hawai'i.
    June 13, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    NATIONSTAR MORTGAGE LLC, Plaintiff-Appellee v. James BOONSTRA, Defendant-Appellant, and Association of Apartment Owners of the Vintage at Kaanapali; Kaanapali Golf Estates Community Association, Inc. ; First Hawaiian Bank; the Bank of New York Mellon fka the Bank of New York, as Successor Trustee to JPMorgan Chase Bank, N.A. as Trustee for the Certificateholders of CWABS Master Trust, Revolving Home Equity Loan Asset Backed Notes, Series 2004-Q, Defendants-Appellees, and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Doe Entities 1-10; and Doe Governmental Units 1-10, Defendants
    NO. CAAP-18-0000583
    Intermediate Court of Appeals of Hawai'i.
    June 12, 2019
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. QUOC V. TRAN, Defendant-Appellant
    NO. CAAP-15-0000456
    Intermediate Court of Appeals of Hawai'i.
    June 12, 2019
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.


text:
    In the MATTER OF the GUARDIANSHIP and Conservatorship OF B.H., D.D., S.D., and V.D., Minor Children.
    No. 118,188
    Supreme Court of Kansas.
    Opinion filed June 7, 2019
    John J. Gillett, of Chanute, argued the cause and was on the brief for appellants.
    Andrea Sue Hughes, of the Law Dame, LLC, of Paola, argued the cause, and G. Thomas Harris, of Harris Law Office, of Fredonia, was on the brief for appellees.
    Charles H. Apt III, of Apt Law Offices, LLC, of Iola, was on the brief as guardian ad litem.
   The opinion of the court was delivered by Rosen, J.:

During the course of child in need of care (CINC) proceedings, Alicia and Sam relinquished custody of the four children in their care to relatives through a legal guardianship, after which the CINC proceedings were either terminated or became dormant. Alicia and Sam later sought to terminate the guardianship. The district court refused to grant them relief, holding that the best interests of the children militated against returning custody to Alicia and Sam. The Court of Appeals disagreed and reversed the district court. This court granted the guardians' petition for review.

Because we determine that the district court findings were insufficient to allow proper appellate review, we remand the case to the district court for more complete and specific findings.

FACTS

The record informs us that Alicia is the natural mother of S.D., V.D., and D.D. Sam is the natural father of S.D., V.D., and B.H. In 2010, Alicia and Sam were arrested on drug-related charges. Because all of the children had been living with Alicia and Sam at the time of the arrest, the children were placed in temporary foster care.

On September 1, 2010, the Wilson County Attorney filed CINC petitions regarding all four children. On the same day, the court entered orders giving temporary physical custody of the children to Sam's cousin, Malinda, and her husband, Gregory. Each child was adjudicated a child in need of care.

On October 14, 2010, Malinda filed a petition for guardianship and conservatorship requesting that the court appoint her and Gregory coguardians and coconservators for all four children. Following a hearing, on December 23, 2010, the district court granted the petition and appointed Malinda and Gregory coguardians and coconservators of B.H., S.D., and V.D. The order also purported to terminate the CINC cases concerning those three children. The court did not rule regarding the guardianship and conservatorship of D.D. It continued her case until March 7, 2011, so that D.D.'s natural father had adequate time to participate in the proceedings. D.D.'s father did not respond and, on March 10, 2011, the district court appointed Malinda and Gregory coguardians and coconservators of D.D. and purported to terminate the CINC case concerning her.

On the same day that it appointed Malinda and Gregory guardians of D.D., the district court ruled on child support. The journal entry indicates the Kansas Department of Social and Rehabilitation Services (SRS) had moved to intervene in the guardianship proceeding. In the journal entry, the court found that the guardians had received $ 795.39 in monthly cash assistance from SRS for each of the children-D.D., S.D., and V.D. The court ordered Alicia and Sam to reimburse SRS for these payments. It further ordered Alicia and Sam to each pay the guardians $ 407 per month for the support of the children.

Alicia and Sam were eventually convicted of felony drug charges and sentenced to prison terms. Sam served two and a half years in prison and was released in July 2013. Alicia served four and a half years in prison and was released in December 2014.

Alicia was paroled to the guardians' house in Osawatomie, Kansas, and lived there for a short time with them and the children. After three or four months, Alicia moved to Louisburg before eventually settling in Paola with her boyfriend and his daughter. She saw the children occasionally when she requested to see them and the children were not busy. S.D., V.D., and D.D. stayed overnight at her house once. By 2016, she was approximately $ 17,000 in arrears in child support.

During his incarceration, Sam called the children once every few months. He also sent them letters. After his release, he immediately moved to the state of Washington. He informed Malinda that he could not see the children before his move because he was being paroled to Washington. Sam called Malinda one month after he arrived in Washington and informed her he would come see the children at Christmas. He did not make the visit. Malinda did not hear from Sam until March of 2014 when he called her on the phone. Sam made no attempts to see the children after his release from prison. He began making child support payments in March 2016 after his employer received paperwork indicating he needed to garnish Sam's wages. The payments were sporadic and depended on whether Sam had work. Sam owed about $ 25,600 in arrearages.

On July 26, 2016, Alicia and Sam filed a petition to terminate the guardianship and conservatorship. They argued that they had a constitutional right to their children and, because they now had the means to care for the children, the guardianship and conservatorship should be terminated and the children should be returned to their custody.

The guardians moved to dismiss the petition. They asserted that Alicia and Sam were presumptively unfit under K.S.A. 2016 Supp. 38-2271. Consequently, they argued, Alicia and Sam could not terminate the guardianship. A hearing was held on the petition to terminate the guardianship.

On March 16, 2017, Alicia and Sam moved the court to open the record and take additional evidence that did not exist before the hearing. The court granted the motion and ordered a hearing. The judge also stated that he would interview the children again. The hearing was held on April 28, 2017, and the court heard testimony about the guardians' fitness, efforts by Alicia and Sam to spend time with the children, and the children possibly changing their minds about with whom they wanted to reside.

On July 18, 2017, the district court denied the petition to terminate the guardianship. It made a number of legal observations before ruling: that K.S.A. 59-3091(h) required that it terminate the guardianship unless there was clear and convincing evidence that it was still needed; that it was the guardians' burden to show that Alicia and Sam were "still unfit" or that "exceptional circumstances" existed; and that, when the parents are unfit or extraordinary circumstances exist, the best interests of the children should be considered. The court concluded that extraordinary circumstances existed and that terminating the guardianship would be contrary to the best interests of the children. It ruled that, because it found that extraordinary circumstances existed, it would not determine whether Alicia and Sam were fit parents. Based on all of this, the court concluded there was clear and convincing evidence that the guardianship should not be terminated.

Alicia and Sam appealed the decision. The Court of Appeals reversed the district court after concluding that the district court erred when it considered the best interests of the children. In re Guardianship and Conservatorship of B.H ., No. 118188, 2018 WL 4517544, at *6 (Kan. App. 2018) (unpublished opinion). It held that the district court should have applied the parental preference doctrine because it did not make a finding of parental unfitness, it failed to identify the extraordinary circumstances, and the evidence would not support a finding of extraordinary circumstances. 2018 WL 4517544, at *6. Applying the parental preference doctrine, the Court of Appeals reversed the district court order and remanded the case with directions to terminate the guardianship. 2018 WL 4517544, at *6-7.

We granted the guardians' petition for review.

ANALYSIS

This appeal focuses on the interplay between the Kansas Code for Care of Children, K.S.A. 2018 Supp. 38-2201 et seq., and the Kansas Probate Code's Act for Obtaining a Guardian or a Conservator, or both, K.S.A. 59-3050 et seq. The appeal must be understood in light of two distinct kinds of proceedings at the district court level: the guardianship action of the present appeal, and CINC proceedings filed as separate actions under different case numbers. No appeals were taken in the CINC proceedings; indeed, it is unclear what orders were entered in the CINC proceedings, although at least one was apparently terminated following the approval of the guardianship by the probate court.

K.S.A. 2018 Supp. 38-2201(a) states: "any orders pursuant to [the Code for Care of Children] shall take precedence over any similar order under ... article 30 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, guardians and conservators, ... until jurisdiction under this code is terminated." K.S.A. 2018 Supp. 38-2203(a) states: "Proceedings concerning any child who may be a child in need of care shall be governed by this code ...." In the present case, however, the proceedings under the Code for Care of Children were subordinated to proceedings under the chapter 59 guardianship and conservatorship statutes.

Under the Code for Care of Children, jurisdiction is obtained over a child upon the filing of a petition under the code. K.S.A. 2018 Supp. 38-2203(c). Jurisdiction over the child continues until the child becomes 18 years of age (with exceptions for children still attending high school), or the child is adopted, or the child has been discharged by the court. K.S.A. 2018 Supp. 38-2203(c). Following an adjudication that a child is a child in need of care, a court is to consider various factors relating to the welfare of the child and then make dispositional decisions. K.S.A. 2018 Supp. 38-2255. If the court awards custody of the child to a party outside the home, a permanency plan must be prepared, which will include considerations for future reintegration into the home. K.S.A. 2018 Supp. 38-2255(e) ; K.S.A. 2018 Supp. 38-2264.

If the court deems reintegration a viable alternative, a reintegration plan should be developed as part of a court-approved permanency plan. The permanency plan is subject to at least annual court review. If the court deems reintegration not a viable alternative, the State must file a motion within 30 days seeking termination of parental rights or the appointment of a permanent custodian. K.S.A. 2018 Supp. 38-2255(f). Courts are authorized to appoint permanent custodians, a legal relationship created strictly for the resolution of CINC cases when termination of parental rights is not in the best interests of the child but placement of the child in the parental home is also not in the child's best interests. See K.S.A. 2018 Supp. 38-2272. Such a permanent custodianship may be created with the consent and agreement of the parents and the approval of the court. K.S.A. 2018 Supp. 38-2272(a)(1). The district court retains jurisdiction over the child unless the court enters an order terminating jurisdiction. K.S.A. 2018 Supp. 38-2272(b). If a permanent custodian is appointed, the parents retain strictly limited rights and responsibilities: the obligation to pay child support and medical support; the right to inherit from the child; and the right to consent to adoption of the child. K.S.A. 2018 Supp. 38-2272(h).

In the present case, it appears that the Code for Care of Children procedures were followed at least as far as having the children declared children in need of care. From testimony in the record, we can speculate that some kind of hearings were held regarding permanency. It appears, however, that no permanency plans were created and no plans for reintegration were either adopted or found unfeasible. No permanent custodians were appointed and Alicia and Sam's rights were not terminated. Instead, the statutory process for determining custody was short-circuited by the initiation of guardianship proceedings. This process violated the mandates of the Code for Care of Children, which "creates a legislatively designated framework of sequential steps of judicial proceedings with each step occurring in a specific order leading toward permanency in the child's placement." In re N.A.C ., 299 Kan. 1100, Syl. ¶ 5, 329 P.3d 458 (2014).

K.S.A. 59-3091 sets out the manner for terminating a guardianship or conservatorship. K.S.A. 59-3091(a) provides:

"At any time following the appointment of a guardian or a conservator, any person, including the ward or conservatee, may file a verified petition with the court requesting that the court find that the ward or conservatee is no longer in need of a guardian or a conservator, or both, and requesting that the court terminate the guardianship or conservatorship, or both."

Following a hearing, "if the court does not find, by clear and convincing evidence, that the ward or conservatee is in need of a guardian or conservator, or both, the court shall order that the guardianship or conservatorship, or both, be terminated as provided for herein." K.S.A. 59-3091(h).

Ordinarily, voluntary guardianships are exactly that: voluntary. For that reason, they may be terminated at any time and for any or no reason. See Nelson, Child Custody, Parenting Time, and Third-Party Visitation , Practitioner's Guide to Kansas Family Law § 6.8.2(a) 2d ed. 2010. But several circumstances inform us that the present case does not involve an ordinary voluntary guardianship. Alicia and Sam were facing involuntary separation from their children because they were going to prison. They were also facing the prospect of losing their parental rights, and they opted for the guardianship as a means to avoid CINC final orders. The CINC cases entered a state of limbo: the record on appeal contains no judicial determination that the status of the parental fitness ever changed or that the children were no longer children in need of care, although the CINC cases may have been terminated.

In In re Guardianship of Williams , 254 Kan. 814, 869 P.2d 661 (1994), this court set out several principles relevant to the present case.

"The best interests of the child test ... has long been the preferred standard to apply when the custody of minor children is at issue between the natural parents of the child or children. However, absent highly unusual or extraordinary circumstances it has no application in determining whether a parent, not found to be unfit, is entitled to custody as against a third-party nonparent." 254 Kan. at 826, 869 P.2d 661.

In support of this rule, the Williams court quoted Herbst v. Herbst , 211 Kan. 163, 163, 505 P.2d 294 (1973) : " 'In the absence of an adjudication that a natural parent is unfit to have custody of a child, the parent has the paramount right to custody as opposed to third parties-even, as here, they happen to be her own parents and the child's grandparents.' " 254 Kan. at 826, 869 P.2d 661. The court also referred to In re Eden , 216 Kan. 784, 786-87, 533 P.2d 1222 (1975), which rejected the best interests test in disputes between strangers and natural parents who are not unfit and who are able and willing to care for the children.

The court cited with approval 67A C.J.S., Parent and Child § 26, p. 253, which states that, when there is no intent permanently to relinquish custody, but a parent surrenders a child temporarily because of illness or financial difficulties, the parent has the right to reclaim custody when the situation changes for the better. 254 Kan. at 827, 869 P.2d 661. It also cited Elrod, Child Custody Prac. and Proc. § 4.06 (1993), noting a general rule that parents as natural guardians have superior rights to the custody of their child over nonparents " 'unless the parents are unfit or extraordinary circumstances exist.' " 254 Kan. at 827-28, 869 P.2d 661.

This court concluded: "We adhere to the rule that absent highly unusual or extraordinary circumstances the parental preference doctrine is to be applied in a custody dispute over minor children when the dispute is between a natural parent who has not been found unfit and a nonparent." ( Emphasis added.) 254 Kan. at 828, 869 P.2d 661. This rule applies even if "at the time the natural parent seeks their custody [the guardians] are giving the children proper and suitable care and have acquired an attachment for them." 254 Kan. 814, Syl. ¶ 2, 869 P.2d 661.

As to what constitutes "extraordinary circumstances," the Williams court quoted In re Kailer , 123 Kan. 229, 231, 255 P. 41 (1927) :

" '[T]he welfare of children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents' right thereto is not infringed upon or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where the parents are dead, or where they are unfit to be intrusted with the custody and rearing of their children and have forfeited this right because of breach of parental duty, or where the right has been prejudiced by the discord of the parents themselves.' " 254 Kan. at 822, 869 P.2d 661.

Kailer predated the Code for Care of Children, and we do not consider its list of factors to be exhaustive. Williams simply places the responsibility on a district court to decide whether particular circumstances are extraordinary.

Alicia and Sam argue that these principles from Williams mandate termination of the guardian and custodial relationship. But these principles apply to ordinary circumstances for creating guardianships. See In re R.C ., 21 Kan. App. 2d 702, 708, 713, 907 P.2d 901 (1995), rev. denied 259 Kan. 928 (1996) (distinguishing Williams , which dealt with truly voluntary guardianships, from cases arising out of the Code for Care of Children, and holding that CINC-motivated guardianships require consideration of best interests of children). It is possible that various factors, whether procedural peculiarities, family relationships, or other issues that may arise in the exceptional case, may justify a finding of extraordinary circumstances. Williams simply informs us that the best interests of the children-standing alone-do not take precedence over the preference of parents to retain or regain custody of their children.

The district court stated that, "having found extraordinary circumstances exist, this Court does not determine whether or not Sam and Alicia are fit parents ...." The Court of Appeals made much of this non-determination. See 2018 WL 4517544, at *4-5. The Court of Appeals gave little weight to the parties' conflicting evidence about parental fitness, because the district court order was based on the existence of extraordinary circumstances, not on a finding of parental unfitness.

The proper venue for determining parental fitness would have been, of course, the proceedings under the Code for Care of Children. As noted earlier, orders pursuant to the Code take precedence over similar orders under the Probate Code relating to guardians and conservators. K.S.A. 2018 Supp. 38-2201(a). If the statutory requirements under the Code for Care of Children had been followed, Alicia and Sam could have sought to persuade the court in the CINC proceedings that they were fit and that the children should be reintegrated into their homes.

For reasons that do not appear in the record, that did not happen in the present case. Instead, a guardianship proceeding appears to have taken the place of the required CINC proceedings. As a consequence, parental fitness was left undetermined, as was any plan for reintegration.

The district court explicitly found that "extraordinary circumstances exist in this case." The court also listed facts that contributed to a conclusion that the best interests of the children would be served by maintaining the guardianship and custodianship. The court noted the earlier determinations that the children were in need of care; the earlier CINC proceedings finding that remaining in the home or returning home would be contrary to the welfare of the children; the special educational and socializing needs of the children that had not been met by Alicia and Sam but were being met by the guardians; the children residing in the custody of the guardians for more than six years; and separating the children would be harmful to them.

It is not clear, however, which of these many factors were the basis for the district court's legal conclusion that extraordinary circumstances existed. It is further unclear whether the district court's determination that extraordinary circumstances are present here was intended to be an independent finding of fact, a stand-alone legal conclusion finding allowing the court to consider the children's best interests, or a conclusion based on the series of factual findings that preceded it. It may be that at least some of the factors relating to best interests were also considered grounds for finding extraordinary circumstances, but the order does not state that is the case. It is also possible that the district court considered the overall circumstances, including the truncated CINC proceedings, to be extraordinary, without considering any particular factor sufficient to lead to that conclusion.

Whether extraordinary circumstances exist is a mixed question of law and fact. The district court makes factual findings about the circumstances, and it makes a legal conclusion about whether these circumstances are extraordinary. See, e.g., Gannon v. State , 303 Kan. 682, 699-700, 368 P.3d 1024 (2016). The appellate court reviews the factual findings to determine whether they are supported by clear and convincing evidence, which is to say, whether the reviewing court is convinced that a rational fact-finder could have found the determination to be highly probable. See K.S.A. 59-3091(h) (clear and convincing evidence necessary to support rejecting request to terminate custodial relationship); In re Adoption of B.B.M ., 290 Kan. 236, 244, 224 P.3d 1168 (2010). The question of law would be subject to unlimited review. See, e.g., State v. Kahler , 307 Kan. 374, 400, 410 P.3d 105 (2018), cert. granted --- U.S. ----, 139 S. Ct. 1318, 203 L.Ed.2d 563 (2019). If the reviewing court finds no error in the lower court's determination that extraordinary circumstances exist, then determinations regarding children's best interests are reviewed for abuse of discretion. See In re R.S ., 50 Kan. App. 2d at 1116, 336 P.3d 903.

Unfortunately, in the present case, this paradigm for review cannot be followed. While the district court made findings of fact and reached conclusions of law, it is impossible to disentangle the findings from the conclusions and to sort out which findings supported which conclusions.

In general, litigants must object to inadequate findings of fact and conclusions of law in order to give the trial court the opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal. When no objection is made, this court presumes the district court found all facts necessary to support its judgment, although this court may nevertheless order a remand if the lack of specific findings precludes meaningful review. McIntyre v. State , 305 Kan. 616, Syl. ¶ 1, 385 P.3d 930 (2016) ; Dragon v. Vanguard Industries , 282 Kan. 349, 356, 144 P.3d 1279 (2006). When it is impossible to discern from the appellate record the factors on which the district court relied to find extraordinary circumstances, however, this court must remand for additional factual findings and legal conclusions. Progressive Products, Inc. v. Swartz , 292 Kan. 947, 961-62, 258 P.3d 969 (2011).

Alicia and Sam did not object to the sufficiency of the findings on the record. But instead of remanding for more complete findings, the Court of Appeals remanded "with directions to terminate the guardianship and conservatorship in a reasonable and timely manner." 2018 WL 4517544, at *7. Such a remedy carries with it the consequence that children will be separated and returned to the custody of parents who have been found to be providing them with inadequate parental care and who maintained minimal support and contact with them, and the parents would successfully circumvent statutorily mandated procedures for developing permanency and reintegration plans. Significantly, the court in several of the CINC proceedings here expressly found that "remaining in the home or returning home would be contrary to the welfare of the child(ren)." The CINC proceedings were terminated without any revision of that finding apparent in the record. The remedy ordered by the Court of Appeals overrides that finding and potentially places the children in custodial settings contrary to their welfare.

CONCLUSION

We therefore conclude that the better resolution is to remand this case to the district court for findings and legal conclusions that suffice to allow appellate review. The court should make factual findings about the circumstances and state those findings in its order. From there, the court should make a legal conclusion about whether those circumstances are extraordinary. If extraordinary circumstances exist, then the court should specify the factors leading to the determination that the best interests of the children supports maintaining or terminating the custodial relationships.

We address one final point raised by the guardians. They argue that this court lacks statutory jurisdiction to entertain this appeal. They contend that, by terminating the CINC proceedings without making permanency orders, the district court must have intended the guardianship to be a permanent placement. They then argue, without citing authority, that the denial of a motion to change permanent custody is not an appealable order under the Code for Care of Children. But this case was filed in probate court, and K.S.A. 2018 Supp. 59-2401a(b)(5) permits appeals from "any final order, judgment or decree entered in any proceeding pursuant to: ... the act for obtaining a guardian or conservator, or both ...." We have no difficulty holding that this statutory language is broad enough to encompass an order denying a motion to terminate a guardianship.

However, the issue highlights the confused nature of the proceedings below. Alicia and Sam, the Court of Appeals, and, to some extent, the district court sought to take the care of the children out of the purview of the Code for Care of Children and place it in the jurisdiction of the Probate Code. This shift violated the stated purpose of the Code for Care of Children, which was to make "the safety and welfare of a child ... paramount in all proceedings under the code." K.S.A. 2018 Supp. 38-2201(b)(1). The parties and the courts are now faced with the task of sorting out the proceedings that have taken place under these separate and distinct statutory schemes. It is anticipated that the district court will accomplish that task on remand.

Judgment of the Court of Appeals reversing the district court is reversed. We remand to the district court with directions as stated above.