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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-XX-XXXXXXX
                                                              30-JUL-2018
                                                              08:33 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                 ---o0o---


                     W.N., Petitioner-Appellant,

                                    vs.

                      S.M., Respondent-Appellee.


                               SCAP-XX-XXXXXXX

        APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
              (CAAP-XX-XXXXXXX; FC-M NO. 14-1-0034K)

                               JULY 30, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

                          I.      INTRODUCTION

          In our previous decision in this case, A.A. v. B.B.,

139 Hawaii 102, 384 P.3d 878 (2016), we vacated the final

judgment of the family court denying the petition of A.A.

(hereafter W.N.) for joint custody of a minor child with B.B.

(hereafter S.M.).    The case was remanded to the family court

with instructions that it determine whether W.N. established a
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prima facie case of de facto custody, and if so, that the court

render a custody award in the child’s best interest.

           On remand, the family court entered an order without

holding a further evidentiary hearing or taking additional

evidence in which it found that W.N. was not a “fit and proper

person” as required to establish a prima facie entitlement to

custody of the minor child.      W.N. appealed the family court’s

adverse ruling, and the request to transfer the case to this

court was granted.    We conclude that the family court erred in

not holding a further hearing to ascertain whether W.N. is

presently a fit and proper person and whether a custody award

would be in the minor child’s present best interests.

Accordingly, we vacate the family court’s 2017 Order and remand

the case for a further evidentiary hearing consistent with this

opinion.   We also provide guidance as to evidentiary matters

that may arise on remand.

                II.     FACTS AND PROCEDURAL HISTORY

           W.N. and S.M. entered into a committed relationship in

March 2009.   In 2011, W.N. and S.M. jointly decided to bring

S.M.’s newborn biological granddaughter (Child) into their home

to raise her as their daughter.       S.M. legally adopted Child, and

S.M. and W.N. jointly shared parental care, duties, and

responsibilities for Child.      W.N., S.M., Child, and S.M.’s

teenage son (Son) lived together as a family unit from October

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2011 until October 2013.      In October 2013, W.N. and S.M.

separated, and they entered into a written 50/50 co-parenting

agreement for Child.     In April 2014, S.M. sent W.N. a letter

declaring that he was revoking the 50/50 co-parenting agreement

on the basis that it was his parental right to do so.

           In May 2014, W.N. filed a petition in the Family Court

of the Third Circuit (family court) seeking joint legal and

joint 50/50 physical custody of Child (custody petition)

pursuant to Hawaii Revised Statutes (HRS) § 571-46(a)(2) (Supp.

2013).1   W.N. asserted that he was the de facto parent of Child

and was a fit and proper person to have care, custody, and

control of Child.    S.M. sought dismissal of the custody petition
     1
           HRS § 571-46(a) provides in relevant part as follows:

           (a) In actions for divorce, separation, annulment, separate
           maintenance, or any other proceeding where there is at
           issue a dispute as to the custody of a minor child, the
           court, during the pendency of the action, at the final
           hearing, or any time during the minority of the child, may
           make an order for the custody of the minor child as may
           seem necessary or proper. In awarding the custody, the
           court shall be guided by the following standards,
           considerations, and procedures:

                (1) Custody should be awarded to either parent or to
                both parents according to the best interests of the
                child, and the court also may consider frequent,
                continuing, and meaningful contact of each parent
                with the child unless the court finds that a parent
                is unable to act in the best interest of the child;

                (2) Custody may be awarded to persons other than the
                father or mother whenever the award serves the best
                interest of the child. Any person who has had de
                facto custody of the child in a stable and wholesome
                home and is a fit and proper person shall be entitled
                prima facie to an award of custody[.]




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contending that W.N. was a legal stranger to Child, that HRS §

571-46(a)(2) was unconstitutional, and that W.N. had no standing

before the family court.

            On October 3, 2014, the family court held an

evidentiary hearing on the custody petition (2014 Hearing).2

Scott and Janet Crosier (collectively, the Crosiers) testified

that each had supervised visitations between W.N. and Child, and

they favorably described the interactions between W.N. and

Child.   W.N. sought to introduce the visitation reports into

evidence that the Crosiers had each prepared contemporaneously

with the supervised visitations.          The family court sustained

S.M.’s objections to their admission because they contained

hearsay statements of Child, rejecting W.N.’s argument that the

statements were not offered for the truth of the matter asserted

by Child.    The court also sustained S.M.’s foundation objections

to the Crosiers using their respective visitation reports to

refresh their recollections.        As to Janet Crosier, W.N.

proffered that the reports would aid her in recalling Child’s

behaviors and interactions with W.N. that she could not

remember.

            Dr. Jamuna Wyss, who was qualified as an expert in

parent-child psychological relationships and parenting styles,
     2
            The Honorable Melvin H. Fujino presided.




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testified that he taught W.N. parenting techniques.            Dr. Wyss

testified favorably as to W.N.’s relationship with Child.              He

also testified that Child would likely suffer “damaging

psychological consequences” if W.N.’s relationship with Child

was terminated.     W.N.’s counsel asked Dr. Wyss if he was aware

of any sexual abuse allegations against W.N. and sought to

introduce a letter written by Dr. Wyss to Child Welfare

Services.    The court sustained S.M.’s objection to the admission

of the letter and did not allow Dr. Wyss to testify as to his

opinion on the allegations because it was outside the scope of

his April 25, 2014 clinical note (clinical note).3            Dr. Wyss then

testified generally that he did not believe W.N. posed any

threat to Child.

            Additionally, W.N. sought to introduce progress notes

from his individual therapy sessions with Dr. Wyss, as well as

S.M. and W.N.’s couples therapy sessions with Dr. Wyss.             The

court again sustained S.M.’s objection to the introduction of

the progress notes as outside the scope of Dr. Wyss’s clinical

note.    Further, Dr. Wyss testified that he taught W.N. anger



     3
            S.M.’s counsel objected on the basis that the parties agreed to
exchange reports prepared by the expert witnesses prior to the hearing and as
such, the testimony should be limited to Dr. Wyss’s report--the April 25,
2014 clinical note. The record does not contain an on-the-record pretrial
ruling limiting expert testimony to the contents of the experts’ reports.




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management techniques4 and related that, in his opinion, W.N. had

made progress on anger management.5

            Dr. Jennifer De Costa, a family counselor and a

licensed marriage and family therapist, was called by S.M. and

qualified as an expert in family behavior and relationships.

Dr. De Costa testified that she had treated Son and regularly

used written tests to assess Son’s depression and anxiety in

treatment.    Dr. De Costa stated that she observed a correlation

between fluctuations in Son’s test scores and his interactions

with W.N.    S.M. asked Dr. De Costa if Son had displayed “extreme

regression” since W.N. began visitation with Child, and Dr. De

Costa responded affirmatively.

            Dr. De Costa testified that she also met with Child

and initially had no concerns as to Child’s development.             After

visits started with W.N., however, Dr. De Costa stated that

Child began to exhibit “some regressive behaviors.”            Dr. De

Costa answered “yes” when asked hypothetically whether she would

have concerns about Child having a custodial relationship with

W.N. given his anger management problem, her knowledge of W.N.’s

relationship with Son, and Child’s regressive behaviors.             Dr. De

     4
            W.N. testified that his anger management problem is characterized
by raising his voice, swearing, and walking away to cool off.

     5
            Dr. Wyss indicated that his opinion on W.N.’s anger management
progress relied on W.N.’s self-reporting.




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Costa further testified that she did not think that termination

of the relationship would harm Child.

            S.M. also called W.N.’s sister, C.N., to testify.

C.N. testified that she had concerns about W.N.’s temper, which

she had expressed to S.M., and that W.N.’s behavior had not

improved.

            After the parties’ arguments, the family court ruled

that W.N. had not shown a compelling state interest as to why

the de facto custody presumption of HRS § 571-46(a)(2) should

apply to him under a strict scrutiny standard.          The family court

denied the custody petition and allowed S.M. to stop all

visitations.    On December 11, 2014, the family court entered

findings of fact, conclusions of law, and its final judgment on

the custody petition.

            W.N. appealed, and following transfer of the case to

this court, we held that application of HRS § 571-46(a)(2) would

not infringe upon S.M.’s fundamental liberty interests or right

to privacy under the Hawaii Constitution, and that W.N. was

therefore not required to establish a compelling state interest

as a prerequisite for the family court to make a de facto

custody determination.     A.A. v. B.B., 139 Hawaii 102, 108, 113-

16, 384 P.3d 878, 884, 889-92 (2016).        We noted that the record

may support a finding that W.N. satisfied all elements of HRS §

571-46(a)(2), which would invoke the de facto custody

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presumption.    Id. at 107 n.8, 384 P.3d at 883 n.8.

Additionally, although this court held that any error by the

family court in restricting Dr. Wyss’s testimony or excluding

the progress notes was harmless under the circumstances, we

stated that “if further evidentiary proceedings are held on

remand, the family court may revisit its ruling regarding the

proffered evidence.”6      Id. at 116 n.23, 384 P.3d at 892 n.23.           We

vacated the final judgment denying W.N.’s custody petition and

remanded the case to the family court with instructions that the

court determine whether W.N. met the requirements for a de facto

custody presumption pursuant to HRS § 571-46(a)(2), and if so,

for a custody award in the child’s best interest.            Id. at 116-

17, 384 P.3d at 892-93.

           At a status conference following remand, the family

court indicated that it would limit its review to the existing

record and invited the parties to provide briefing on whether it

had authority for such limitation.7         W.N. submitted a memorandum

arguing that there was sufficient evidence in the record to

determine that he met the elements for a de facto custody

      6
            As to other evidentiary issues raised by W.N., this court held
that Dr. De Costa was properly qualified as an expert in her field and the
family court did not err in accepting her testimony. A.A., 139 Hawaii at 116
n.23, 384 P.3d at 892 n.23.

      7
           The Honorable Kanani Laubach presided over the proceedings on
remand.




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presumption and that an award of joint custody of Child to him

would be in the best interests of Child.         In the alternative, if

the family court did not find that there was sufficient evidence

to establish a de facto custody presumption, W.N. argued that an

evidentiary hearing was necessary to supplement the 2014 Hearing

record.    In support, W.N. contended that his arguments and

evidence presented at the 2014 Hearing were not focused on the

elements of HRS § 571-46(a)(2) because the family court

requested briefing on whether W.N. had a constitutional right

and a statutory basis to assert a custodial claim.

           W.N. maintained that it would be error for the family

court to conclude that he failed to meet his burden to establish

that he is a “fit and proper person” without an opportunity to

supplement the record, particularly in light of this court’s

observation that the record may support a finding that W.N. met

all the elements of HRS § 571-46(a)(2).         W.N. also argued that

the family court foreclosed him from presenting evidence from

Dr. Wyss to rebut allegations of sexual abuse that were used to

determine W.N.’s fitness for custody.        W.N. further argued that

it would be a manifest injustice for the family court not to

consider new evidence on remand regarding W.N.’s fitness for

custody.   As an offer of proof, W.N. stated that since the 2014

Hearing, he had obtained a State of Hawaii Department of Human




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Services foster care license, for which he underwent a

psychosexual evaluation.

          S.M. filed a memorandum in support of limiting the

family court’s review on remand to the existing record.            S.M.

argued that whether or not W.N. was a fit and proper person must

be determined as of the date of the 2014 Hearing because

considering new evidence on remand would improperly afford W.N.

a “second bite of the apple” and an opportunity to present

improvements to “his situation” in order to increase his fitness

for custody.   Prior to holding a new evidentiary hearing, S.M.

argued, the family court should determine from the existing

record whether W.N. satisfied the elements of HRS § 571-46(a)(2)

for a de facto custody presumption.

          The family court ruled that it would base its review

on the 2014 Hearing record to determine whether W.N. was

entitled to a de facto custody presumption.          The court stated

that it would afford the parties an opportunity to raise any

evidentiary objections, in writing, from their review of a video

recording of the 2014 Hearing.       W.N. reiterated the need to

supplement the record in order to present evidence on events

subsequent to the 2014 Hearing bearing upon the issue of whether

he is a fit and proper person.       The court indicated that it

would take this argument under consideration.




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          W.N. subsequently filed a petition raising objections

to the exclusion of the Crosiers’ visitation reports and Dr.

Wyss’s progress notes.     Rather than excluding the Crosiers’

visitation reports, W.N. argued, any hearsay statements therein

could be redacted and the visitation reports could then be

considered in determining W.N.’s entitlement to a de facto

custody presumption and in rendering a custody award in the best

interests of Child.     In addition, W.N. objected to the exclusion

of Dr. Wyss’s progress notes and argued the court should permit

Dr. Wyss to provide testimony to rebut the sexual abuse

allegations against W.N.      Dr. Wyss’s testimony should address a

letter he wrote to Child Welfare Services regarding the

allegations, W.N. contended, and the letter should be admitted

into evidence.    S.M. filed a statement of no objection to

limitation to the 2014 Hearing record on remand.

          The family court denied all of W.N.’s evidentiary

objections.   The court found that the Crosiers’ visitation

reports were hearsay and the Crosiers were allowed to testify,

and that Dr. Wyss’s progress notes were cumulative.           The family

court then determined that based upon its review of the 2014

Hearing record, W.N. had failed to establish a prima facie case

under HRS § 571-46(a)(2) for a de facto custody presumption.

Accordingly, the family court ruled that it would not be in the

best interests of Child to award W.N. joint custody.

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          On June 8, 2017, the family court entered its Findings

of Fact and Conclusions of Law and Order (2017 Order).            The

family court found that a review of the transcripts and the

audio and video recording of the 2014 Hearing enabled it to

judge credibility and determine whether W.N. satisfied the

elements of HRS § 571-46(a)(2).       Based upon this evidence, the

family court concluded that while W.N. met two of the three

elements of HRS § 571-46(a)(2), he did not meet his burden as to

the “fit and proper person” statutory element because of (1) his

undisputed anger management problem and (2) Dr. De Costa’s and

C.N.’s unfavorable testimony, including Dr. De Costa’s testimony

as to Child’s regression and Son’s performance on psychological

tests and “extreme regression.”       The family court thus denied

W.N.’s custody petition.

          W.N. timely filed a Notice of Appeal from the 2017

Order.   The case was subsequently transferred to this court.

                     III.    STANDARDS OF REVIEW

          This court reviews the family court’s findings of

facts (FOF) under the “clearly erroneous” standard.           Waldecker

v. O’Scanlon, 137 Hawaii 460, 466, 375 P.3d 239, 245 (2016).

          A FOF is clearly erroneous when (1) the record lacks
          substantial evidence to support the finding, or (2) despite
          substantial evidence in support of the finding, the
          appellate court is nonetheless left with a definite and
          firm conviction that a mistake has been made. “Substantial
          evidence” is credible evidence which is of sufficient
          quality and probative value to enable a person of
          reasonable caution to support a conclusion.


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Id.   On appeal, the family court’s conclusions of law are

reviewed de novo under the right/wrong standard.             Id. (citing In

re Doe, 95 Hawaii 183, 190, 20 P.3d 616, 623 (2001)).

            “The interpretation of a statute is a question of law

reviewable de novo.”       Kauai Springs, Inc. v. Planning Comm’n of

Cty. of Kauai, 133 Hawaii 141, 163, 324 P.3d 951, 973 (2014)

(quoting Franks v. City & Cty. of Honolulu, 74 Haw. 328, 334,

843 P.2d 668, 671 (1993)).

            “[W]here the admissibility of evidence is determined

by application of the hearsay rule, there can be only one

correct result, and the appropriate standard for appellate

review is the right/wrong standard.”          State v. Moore, 82 Hawaii

202, 217, 921 P.2d 122, 137 (1996) (internal quotation marks and

citation omitted).

                             IV.    DISCUSSION

            W.N. asserts that the family court abused its

discretion by denying his request to hold an evidentiary hearing

on remand.     W.N. contends that the only disputed issue before

the family court on remand was whether he satisfied the “fit and

proper person” element of HRS § 571-46(a)(2) for application of

a de facto custody presumption.         Yet, argues W.N., the family

court improperly limited evidence bearing upon this

determination by excluding (1) the Crosiers’ visitation reports



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based upon hearsay statements of Child;8 (2) Dr. Wyss’s progress

notes from the individual and couples therapy sessions, his

testimony as to matters ruled outside the scope of his clinical

note, and his letter to Child Welfare Services;9 and (3) evidence

that W.N. had subsequently obtained a foster care license that

required him to undergo a psychosexual evaluation.            To determine

the best interests of Child, W.N. asserts, the family court must

consider the present circumstances instead of those from the

date of the 2014 Hearing.       As such, W.N. maintains, it was a

manifest injustice for the family court to deny his request to

present new evidence and to hold based solely on the 2014

Hearing record that he is not “a fit and proper person.”10

           In response, S.M. argues that the family court was not

required by this court’s decision to hold a new evidentiary

     8
            W.N. also challenged the ruling in the 2014 Hearing that did not
allow the Crosiers to use their reports to refresh their recollections.

     9
            W.N. argues that although in A.A. v. B.B. this court found that
the family court’s limitation of Dr. Wyss’s testimony and the exclusion of
the progress notes were harmless, it was error for the family court on remand
to prevent W.N. from offering relevant information to establish that he is a
“fit and proper person.” This court, W.N. asserts, foresaw this problem and
stated that the family court could revisit its evidentiary rulings on remand.

     10
            W.N. also argues that the trial court abused its discretion in
finding, contrary to this court’s footnote in A.A. v. B.B., that there was
not sufficient evidence in the record to hold that W.N. is a “fit and proper
person.” In doing so, W.N. maintains, the family court improperly
disregarded extensive favorable testimony from both Dr. Wyss and the Crosiers
as to W.N.’s relationship with and care of Child, as well as Dr. Wyss’s
testimony regarding W.N.’s progress in anger management. That evidence was
sufficient, W.N. contends, to find that he is a “fit and proper person.”




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hearing on remand.      On the contrary, S.M. contends, the decision

indicated that the hearing record was sufficient to make a

determination as to whether W.N. had established a prima facie

case of a de facto custody presumption under HRS § 571-46(a)(2).

It would have been error, S.M. asserts, for the family court to

give W.N. an opportunity to re-litigate the issues heard at the

2014 Hearing with new facts.11       Additionally, S.M. argues that

the family court on remand properly excluded the evidence that

W.N. sought to introduce as it contained hearsay or was

needlessly cumulative and that the court rendered rulings as to

W.N.’s evidentiary objections in accordance with this court’s

evidentiary holdings in the first appeal.

           We first address the question as to whether the family

court erred on remand when it denied W.N.’s request for a

further evidentiary hearing.        Thereafter, we turn to W.N.’s

evidentiary objections on remand, including the exclusion of the

Crosiers’ visitation reports, the limitation of Dr. Wyss’s

testimony, and the exclusion of Dr. Wyss’s progress notes.



     11
            As to the family court’s conclusion that W.N. did not meet the
“fit and proper person” element, S.M. contends that W.N.’s admitted anger
management problem and the testimony regarding Child and Son’s regression,
sexual abuse allegations, and conflicts between S.M. and W.N. were sufficient
to establish that it would not be in the best interests of Child to award
W.N. joint custody. Thus, S.M. argues, the family court properly held that
W.N. is not a fit and proper person for custody.




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   A.   A Court Must Consider Relevant, Probative Evidence To
 Determine Whether The Petitioner Is A Fit And Proper Person And
  Whether A Custody Award Is In The Best Interests Of The Child

           The primary issue before this court is whether the

family court erred on remand by precluding W.N. from presenting

evidence of circumstances arising after the 2014 Hearing that

directly related to whether W.N. was a “fit and proper person”

with a prima facie entitlement to custody of Child.            This court

instructed the family court on remand to make a determination as

to whether W.N. satisfies the elements of HRS § 571-46(a)(2) for

a de facto custody presumption,12 and if so, to make a custody

award in the best interests of Child.         A.A. v. B.B., 139 Hawaii

102, 116-17, 384 P.3d 878, 892-93 (2016).          Based solely upon the

2014 Hearing record, the family court held that W.N. did not

satisfy the “fit and proper person” element of HRS § 571-

46(a)(2), and he was thus not entitled to a de facto custody

presumption for an award of custody of Child.

           It is well settled that in child custody cases the

paramount concern is the best interests of the child.             Doe v.

Doe, 98 Hawaii 144, 155, 44 P.3d 1085, 1096 (2002).            The

criteria and procedures for the family court to award custody

     12
            HRS § 571-46(a)(2) (Supp. 2013) provides that a person other than
the child’s father or mother may establish that he or she is entitled to a
prima facie award of custody if that person “has had de facto custody of the
child in a stable and wholesome home and is a fit and proper person.”




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and determine the best interests of the child are set forth in

HRS § 571-46.   HRS § 571-46 (Supp. 2016).        We thus construe HRS

§ 571-46 to determine the legislature’s intent as to the

timeliness of information to be considered in determinations

implicating the best interests of the child.          When construing a

statute, “our foremost obligation is to ascertain and give

effect to the intention of the legislature which is to be

obtained primarily from the language contained in the statute

itself.”   Kauai Springs, Inc. v. Planning Comm’n of Cty. of

Kauai, 133 Hawaii 141, 163, 324 P.3d 951, 973 (2014) (quoting

Franks v. City & Cty. of Honolulu, 74 Haw. 328, 334, 843 P.2d

668, 671 (1993)).

           Accordingly, we look first to the plain language of

HRS § 571-46, which indicates that current, relevant evidence is

required for a court to make an informed decision regarding

applicability of a de facto custody presumption.           The

presumption’s pivotal requirement that a person “is [] fit and

proper,” HRS § 571-46(a)(2) (emphasis added), requires the court

to consider if the person is fit and proper to care for the

minor child at the time of the contemplated custody award.             Such

a determination by its nature cannot be based solely on

circumstances as they existed years before custody would be

granted.   The plain language of HRS § 571-46(a)(2) requires the



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court to consider relevant, probative evidence of the person’s

present fitness for custody.

          Many of the same contemporary considerations relevant

to whether a person is presently fit and proper are also

critical in evaluating whether a custody award is in the best

interests of the child.     HRS § 571-46(b) requires the family

court to consider multiple factors to determine the best

interests of the child, such as “[a]ny history of sexual or

physical abuse of a child by a parent”; “[a]ny evidence of past

or current drug or alcohol abuse”; “[t]he overall quality of the

parent-child relationship”; the physical, emotional, safety, and

educational needs of the child; “[t]he mental health of each

parent”; and “[t]he areas and levels of conflict present within

the family.”    HRS § 571-46(b).     These factors are not time-

restricted.    For example, the family court must consider “[a]ny

history” of abuse, encompassing all possible instances of abuse,

regardless of when the abuse occurred; the family court is also

required to consider “[a]ny evidence of past or current drug or

alcohol abuse.”    HRS § 571-46(b)(1)-(2), (13) (emphasis added).

Determinations of the child’s physical, emotional, safety and

educational needs are set forth in the present tense, requiring

the court to consider the child’s needs as of the time of the

custody proceeding.     HRS § 571-46(b)(6)-(9).




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            The best interests of the child factors must also be

read in conjunction with other provisions of HRS § 571-46.

Kauai Springs, 133 Hawaii at 163, 324 P.3d at 973 (“It is

fundamental in statutory construction that each part or section

of a statute should be construed in connection with every other

part or section so as to produce a harmonious whole.” (quoting

State v. Davis, 63 Haw. 191, 196, 624 P.2d 376, 380 (1981))).

Subsection (a) of HRS § 571-46 empowers family courts to make

and modify custody awards guided by the best interests of the

child at any time as “necessary or proper” during the minority

of the child.   HRS § 571-46(a).      Subsection (a)(6) of HRS § 571-

46 provides that existing custody awards “shall be subject to

modification or change whenever the best interests of the child

require or justify the modification or change.”          HRS § 571-

46(a)(6).   We have construed this provision to require courts to

consider changed circumstances and make a custody modification

in alignment with the best interests of the child after an

initial custody award.     Waldecker v. O’Scanlon, 137 Hawaii 460,

470, 375 P.3d 239, 249 (2016).       Read in pari materia, these

provisions evince the legislature’s intent that the

determination of the best interests of the child take into

consideration both past and present circumstances.

            Our precedents further reflect that HRS § 571-46 calls

for a determination based on all probative evidence.            In Doe,

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this court held that the family court erroneously denied the

mother a re-hearing in a custody proceeding when she was unable

to present evidence of the father’s alleged abusive behavior at

the initial custody hearing because the hearing time had

expired.   98 Hawaii at 147-48, 156, 44 P.3d at 1088-89, 1097.

The court erred, we stated, because the denial of the re-hearing

“resulted in the exclusion of testimony of witnesses bearing

upon the issue of family violence and, inferentially, the best

interest of [the c]hild.”      Id. at 155, 44 P.3d at 1096.

           In a more recent case, Tumaneng v. Tumaneng, the

family court precluded a mother seeking modification of a

custody decree, in light of father’s relocation and mother’s

planned relocation, from introducing evidence of alleged

domestic violence that had occurred prior to the original

custody decree but was not proffered by mother in the original

proceedings.   138 Hawaii 468, 471-72, 382 P.3d 280, 283-84

(2016).    We held that the family court erred in excluding this

evidence because the information was relevant to making a

custody determination in the best interests of the child

regardless of when it occurred.       Id. at 474, 382 P.3d at 286.

           As in Tumaneng and Doe, the family court’s failure to

hold a further evidentiary hearing on remand resulted in the

exclusion of information relevant to determining whether W.N. is

a fit and proper person, as well as information relevant to

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ascertaining the best interests of Child.         See Tumaneng, 138

Hawaii at 474, 382 P.3d at 286; Doe, 98 Hawaii at 155, 44 P.3d

at 1096.   The family court did not consider any circumstances

that arose over the course of more than two years after the 2014

Hearing relating to whether W.N. was a “fit and proper person”

under HRS § 571-46(a)(2).      Significantly, W.N. made an offer of

proof that he would supplement the record with evidence that he

had undergone a psychosexual evaluation and obtained a foster

care license since the 2014 Hearing.        This evidence would have

directly pertained to the court’s determination of whether W.N.

was presently a fit and proper person.

           Other jurisdictions have also held that when custody

of a child is at issue, a person’s present fitness must be

considered.   See, e.g., Adoption of Mary, 610 N.E.2d 898, 902

(Mass. 1993) (in issue is whether parent is “presently unfit”);

Roeh v. Roeh, 746 P.2d 1016, 1018-19 (Idaho Ct. App. 1987)

(lower court erred when it granted custody to father on findings

that were three to seven years old and ignored evidence of

mother’s present fitness); In re O.J.R., 769 S.E.2d 631, 638

(N.C. Ct. App. 2015) (in termination of parental rights case,

“parents’ fitness to care for their children should be

determined as of the time of the hearing” and the “trial court

must consider evidence of changed conditions” (quoting In re

Ballard, 319 S.E.2d 227, 231 (N.C. 1984))); Larson v. Larson, 30

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Wis. 2d 291, 299, 140 N.W.2d 230, 235 (1966) (“Fitness should be

determined as of the time of the hearing and as to its future

probability.”).    Additionally, when a lower court has failed to

consider whether a parent is presently fit for custody,

appellate courts in other jurisdictions have remanded the cases

for further evidentiary hearings.        See, e.g., Roeh, 746 P.2d at

1021 (“Upon remand, the magistrate is empowered to take

additional evidence relating to the present fitness of the

parents in determining the custody issue.”); Armistead v.

Armistead, 322 S.E.2d 836, 838 (Va. 1984) (where court excluded

evidence relevant to best interests of child, on remand “the

chancellor should consider all the evidence already in the

record as well as any new evidence the parties may submit

relevant to the determination of [child’s] best interests”).

          Based on a plain meaning reading of HRS § 571-46, an

in pari materia reading of its provisions, and precedent from

this and other jurisdictions, the family court must consider

admissible evidence probative of establishing the elements of

HRS § 571-46(a)(2), including evidence as to whether a person is

a fit and proper person at the time of the court’s

determination.    If the statutory elements are satisfied, then

consideration of such evidence is essential for the family court

to make a custody award in the best interests of the child.                In

this case, the passage of time since the 2014 Hearing and W.N.’s

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offer of proof that he obtained a foster care license and

underwent a psychosexual evaluation for the licensure indicates

that there was new, material evidence bearing upon whether W.N.

was a fit and proper person as of the time of the proceedings on

remand.     In limiting review on remand to the 2014 Hearing

record, the family court precluded consideration of this

evidence.     The family court thus erred in denying W.N.’s request

to hold a further evidentiary hearing on remand.13

                     B.     Evidentiary Objections

             In light of our disposition remanding this case for

further proceedings, we provide guidance as to other evidentiary

matters that have been raised in this appeal.

          1. Exclusion of Visitation Reports on Hearsay Grounds

             At the 2014 Hearing, the family court sustained

objections to the introduction of the Crosiers’ visitation

reports because the reports contained hearsay statements of




     13
            W.N. also contends that the family court erred in not concluding
that there was sufficient evidence in the record to support that W.N. is a
fit and proper person. Although we noted in A.A. v. B.B. that the record was
sufficient to support a finding that W.N. satisfied the elements of HRS §
571-46(a)(2), as discussed above, it was necessary for the family court to
make a determination as to whether W.N. was presently a fit and proper
person. Accordingly, we do not address whether the 2014 Hearing record would
have entitled W.N. to a de facto custody presumption when the hearing
occurred.




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Child.14      Similarly, on remand, the family court excluded the

visitation reports on hearsay grounds and because the Crosiers

testified at the 2014 Hearing.15

              W.N. argued both during the 2014 Hearing and on remand

that Child’s statements in the visitation reports were not

offered for the truth of the matter asserted and thus they were

not hearsay.      W.N. alternatively asserted that if Child’s

statements were hearsay, then the statements could be redacted

or could fall under the excited utterance exception.                It appears

that the family court concluded that Child’s statements were

hearsay; that the statements did not qualify under a hearsay

exception; and that they could not have been redacted from the



      14
              Hawaii Rules of Evidence (HRE) Rule 801 provides in relevant part
as follows:

              “Hearsay” is a statement, other than one made by the
              declarant while testifying at the trial or hearing, offered
              in evidence to prove the truth of the matter asserted.

              “Statement” is an oral assertion, an assertion in a
              writing, or nonverbal conduct of a person, if it is
              intended by the person as an assertion.

HRE Rule 801 (2016). HRE Rule 802 (2016) provides as follows: “Hearsay is
not admissible except as provided by these rules, or by other rules
prescribed by the Hawaii supreme court, or by statute.”

      15
            The record is not clear as to the reasoning underlying the family
court’s hearsay ruling on remand regarding the visitation reports. Because
S.M. did not file any new objections or a response to W.N.’s objections, we
consider only the reasoning S.M. articulated during the 2014 Hearing and the
basis given by the court in its original ruling, i.e., that the reports
contained hearsay statements made by Child.




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visitation reports in a manner that would have enabled the court

to duly consider the remaining substance of the reports.

             As stated previously, it is well settled that, in

child custody cases, the paramount concern is the best interests

of the child.     Doe v. Doe, 98 Hawaii 144, 155, 44 P.3d 1085,

1096 (2002).     The visitation reports prepared by the Crosiers

contemporaneously with supervised visits of W.N. and Child

between June 23, 2014 and September 30, 2014 contain detailed

descriptions of W.N. and Child’s interactions, as well as

changes in Child’s behavior and eating over time.            The reports

recount certain statements and exclamations made by Child during

the course of the supervised visits.         Independent of their

factual accuracy, these statements demonstrate how Child

interacted with W.N.      As such, Child’s statements were not

offered for the truth of the matter asserted and are not

hearsay.16

             The visitation reports contain information directly

relevant to assessing whether W.N. is a fit and proper person

and whether a custody award is in the best interests of Child.

Accordingly, on remand, the family court should reexamine its


     16
            Additionally, the statements by Child appear to be relatively
isolated, appearing to make redaction feasible and not justifying excluding
the reports in their entirety if the remaining portions were otherwise
admissible.




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evidentiary rulings related to the admission of the visitation

reports.17

 2. Limitation of Dr. Wyss’s Testimony and Exclusion of Progress
                           Notes on Remand

             W.N. contends that the family court on remand erred

and abused its discretion in its evidentiary rulings as to Dr.

Wyss.     W.N. argues that, although this court held in A.A. v.

B.B. that the limitation of Dr. Wyss’s testimony and the

exclusion of progress notes from counseling sessions with W.N.

and S.M. were harmless, the limitation and exclusion on remand

precluded the family court from considering relevant evidence as

to whether W.N. was a fit and proper person.

             Following remand, the family court excluded Dr. Wyss’s

progress notes on the basis that they were cumulative.18             Hawaii


     17
            On appeal, W.N. also argues that the visitation reports should
have been considered by the family court on remand because the family court
in the 2014 Hearing did not allow the Crosiers to refresh their recollections
with the reports. A writing may be used to refresh a witness’s recollection
when the witness’s memory has lapsed. HRE Rule 612 (2016); State v.
Espiritu, 117 Hawaii 127, 137, 176 P.3d 885, 895 (2008). A review of the
record indicates that the family court did not err in ruling that W.N. did
not establish a proper foundation for refreshing recollection because neither
Janet Crosier nor Steve Crosier clearly indicated a lapse in memory prior to
counsel’s attempt to provide the writing to the Crosiers to refresh their
recollections. Nevertheless, the family court on remand may consider
allowing further testimony from the Crosiers regarding the visitation reports
in making an informed determination of the matters before it.

     18
            It is noted that at the 2014 Hearing, the family court excluded
Dr. Wyss’s progress notes on a different basis--as outside the scope of his
clinical note. However, the progress notes appear to contain matters within
the scope of the clinical note. For example, the clinical note references

                                                             (continued . . .)

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Rules of Evidence (HRE) Rule 403 provides that relevant evidence

may be excluded if it is a “needless presentation of cumulative

evidence.”    HRE Rule 403 (2016).19      This court has held that,

“[i]n order for evidence to be considered ‘cumulative’ for HRE

403 purposes, it must be substantially the same as other

evidence that has already been received.”          State v. Pulse, 83

Hawaii 229, 247, 925 P.2d 797, 815 (1996).

            The record does not indicate that the family court on

remand identified the other admitted evidence that rendered the

progress notes cumulative.       Thus, it is unclear if the progress

notes constitute a “needless presentation of cumulative

evidence.”    See HRE Rule 403.      A review of the progress notes

indicates that they include substantial information regarding

W.N.’s anger management therapy, they reference the sexual abuse

allegations against W.N., and they contain Dr. Wyss’s clinical

opinion regarding such allegations.         Thus, the progress notes

appear to bear upon issues about which Dr. Wyss did not testify

(. . . continued)

W.N.’s anger management issue and the use of cognitive-behavioral therapy
interventions to treat this challenge and indicates that W.N.’s behavior
involves “no physical aggression.”
      19
            HRE Rule 403 provides as follows: “Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.”




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or about which Dr. Wyss’s testimony was limited by court rulings

during the 2014 Hearing.       Additionally, the family court on

remand did not address the letter that Dr. Wyss had written to

Child Welfare Services regarding the sexual abuse allegations

against W.N.20

           Therefore, following this second remand, the family

court should reexamine its ruling that the progress notes are

cumulative of other evidence in the record and, if so, identify

such evidence already in the record.         Provided they are

otherwise admissible, any progress notes containing probative,

non-cumulative evidence should be considered, along with

proffered testimony related to the import of such progress

notes.    Finally, the family court should address the




     20
            In our decision in the first appeal, we concluded that although
under the circumstances any error by the family court in restricting Dr.
Wyss’s testimony or in not admitting the progress notes was harmless, we
stated that “if further evidentiary proceedings are held on remand, the
family court may revisit its ruling regarding the proffered evidence.” A.A.
v. B.B., 139 Hawaii 102, 116 n.23, 384 P.3d 878, 892 n.23 (2016). Our
determination that the exclusion of the progress notes and the limitation of
Dr. Wyss’s testimony were harmless relied upon the evidentiary record as then
presented and the legal issues considered in the first appeal. As previously
discussed, the family court’s custody determination will require
consideration of probative evidence of present circumstances, and the
relative impact of any evidentiary ruling may differ in this context. Thus,
the court should reexamine prior rulings challenged on appeal regarding
evidence that was excluded at the initial hearing.




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admissibility of Dr. Wyss’s letter to Child Welfare Services in

accordance with the principles set forth in this opinion.21

                            V.      CONCLUSION

           Based on the foregoing, the family court’s June 8,

2017 Findings of Fact and Conclusions of Law and Order is

vacated, and the case is remanded to the family court for

further proceedings consistent with this opinion to determine

whether W.N. presently meets the elements of HRS § 571-46(a)(2),

and if so, to make a custody award in the best interests of

Child.

Michael S. Zola                           /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Timothy Luria
Naoko C. Miyamoto                         /s/ Sabrina S. McKenna
Katherine M.M. Lukela
for respondent                            /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




      21
            As to the remaining evidentiary objections raised on appeal by
W.N., this court previously addressed substantively similar arguments in A.A.
v. B.B. See 139 Hawaii at 116 n.23, 384 P.3d at 892 n.23. W.N. also argues
that the family court misstated the record in regard to C.N.’s testimony that
W.N. “had not changed.” However, it appears from the transcript of the 2014
Hearing that the family court did not misstate the record.




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