IN THE FAMILY COURT OF THE FIRST
CIRCUIT
STATE OF
|
DARA M. HOLBROOK
YATSUSHIRO )
Plaintiff/Appellee ) vs. ) Defendant/Appellant ) |
FC-UCCJEA
No. 03-1-0011 FINDINGS
OF FACT AND CONCLUSIONS OF LAW RE: ORDER DENYING DEFENDANT'S MOTION FOR
POST-DECREE RELIEF FILED ON 8/24/06 AND 9/25/06 SHORT TRIAL OF: 12/22/2007 JUDGE: CHRISTINE E. KURIYAMA |
Appellant, LAWRENCE J. HOLBROOK, (Father, Defendant,
Appellant), pro se, pursuant to Hawaii
Family Court Rule 52, hereby
submits this Findings of Fact and Conclusions
of Law with regards to the Order Denying Defendant's Motion For Post-Decree
Relief Filed on August 24, 2006 and September 25, 2006 in the
Family Court, First Circuit, State of Hawaii:
The following was heard by this Court, the Honorable
Christine Kuriyama presiding, on December 22, 2006 in Case Number UCCJEA
03-1-0011:
1)
Motion and Affidavit for Post-Decree Relief filed on August
24, 2006, filed to reestablish visitation between father and daughter, KLH
(F-12/16/1994), and the rendering of appropriate tax forms.
2)
Motion and Affidavit for Post-Decree Relief filed on
September 25, 2006, filed to reestablish visitation between father and son, KTH
(M-9/20/1997).
3)
Motion for Leave to Withdraw as Parenting Coordinator filed
on August 23, 2006.
Present at the December 22, 2006 hearing were Lawrence J.
Holbrook, pro se, R. Malia Taum, Guardian ad Litem (GAL), Stacy
Fukuhara-Barclay, Parenting Coordinator (PC), Lynne McGivern, attorney for
Plaintiff, Dara M. Holbrook, nka Dara Holbrook-Yatsushiro.
Having taken judicial notice of the files and records and
with consideration of evidence presented at hearing by the parties, including
the testimonies of the parties and admitted exhibits:
THIS COURT HEREBY FINDS as follows:
1.
Prior to September 8, 2003, the following
events did result in denial of visitation where no evidence, but only
allegations, of domestic violence existed.
a.
Defendant, frequently working two jobs, had
a wonderful, loving relationship with his children, took part in the family
household responsibilities, and cared for his children from the changing of
diapers to singing lullabies and reading to them on a daily basis.
b.
Plaintiff abandoned our home in
c.
Defendant attempted to reconcile with
Plaintiff during the six months after her abandonment, however, Plaintiff had
purchased a car, enrolled the children in school, changed her residency for
voting purposes, and pursued full time employment in the State of
d.
In an act of obvious entrapment, Plaintiff
purchased a plane ticket for Defendant to come to
e.
On December 19, 2000, Plaintiff served a Temporary
Restraining Order, FC-DA 001-1-2177.
f.
At hearing on January 3, 2001, the TRO was granted
for a period of three years. Defendant, at that time and to this day maintains
his innocence against all the allegations. There were no allegations of
domestic violence against the children. No regular visitation with the children
was established.
g.
Defendant returned to
h.
Defendant appealed the TRO which was
subsequently denied due to Plaintiff's multiplying allegations that got more elaborately
violent with each iteration.
i.
In May 2001, Defendant established weekly,
supervised, telephone visitation through the
j.
Sometime around May of 2003, Defendant was
served with an Order to appear before the Court in
i.
In her position statement, Plaintiff makes
false allegations of domestic violence by Defendant against his children.
ii.
Plaintiff never produces any evidence.
iii.
Plaintiff argues for sole custody based
upon the now defunct Section 571-46(9) using the previously issued TRO to prove
domestic violence.
iv.
While Defendant has had an ongoing and
positive relationship with his children, Plaintiff demands restricted and
supervised visitation. Signs of parental alienation behavior are plainly
evident in Plaintiff's position statement.
k.
On July 15, 2003, Defendant moved to
l.
Twice weekly Pact visitation was
established and Defendant never missed a scheduled session. All Visit
Observation Forms demonstrated that Defendant has positive interactions with
his children.
2.
On September 8, 2003, a trial for custody
and visitation was held, the Honorable Judge William K. Wallace III presiding.
a.
Although the Pact records had been
subpoenaed by the Plaintiff they were not presented as evidence at trial.
b.
Documents showing Plaintiff's hostile and dangerous
habits and activities were improperly removed from evidence.
c.
Legal and physical custody was awarded to
Plaintiff.
d.
Dr. Barbara Alethea was appointed family
counselor.
e.
Sarah Harvey was appointed as GAL.
f.
Defendant was ordered into therapy, the completion
of which was to have initiated visitation outside the Pact center, if not
sooner at Dr. Alethea's recommendation.
g.
A visitation schedule was established that
would have been reasonable for cooperative and low conflict parents.
h.
Child support was established in the State
of
i.
Dependency exemptions were apportioned
where the Order clearly states "Each party shall execute any and all
documents required by the Internal Revenue Service or the Hawaii State Tax
Collector to effectuate such provisions."
3.
On October 3, 2003, our
4.
On November 17, 2004, Plaintiff requested a
three-year continuance of the above stated TRO. Defendant agreed, unaware of
how these orders can be abused and how much this continuance would affect his
visitation with his children.
5.
About February of 2004, Plaintiff dismissed
Dr. Alethea, and pulled our daughter from the doctor's care, apparently because
the Pact and psychotherapy sessions were working and the doctor was advocating
an increase in father's visitation. Plaintiff never permitted the doctor to see
our son.
6.
On April 28, 2004, a final decree of
divorce, Chancery No. 01-85, was entered in Circuit Court for the
7.
About May of 2004, Dr. Alethea told
Defendant that Plaintiff and the children were no longer in her care. The GAL
told Defendant that our daughter was seeing a new therapist selected by
Plaintiff.
8.
On June 28, 2004, Defendant completed anger
management and parenting classes. Defendant continued to attend parenting
classes upon his own initiative for the next two years. However, the GAL did
not increase visitation quickly and safely as required in the visitation order.
Upon inquiry, the GAL told Defendant that Plaintiff was insisting on far less
visitation than the order had awarded.
9.
In October 2004, Defendant's parents came
to
10. On the
evening of November 1, 2004, Plaintiff's current husband, Guy Yatsushiro,
assaulted Defendant during an exchange of the children.
a.
This was not the first time that Dr.
Yatsushiro had treated Defendant with disrespect, but it was the first time
that his anger had escalated to violence.
b.
To Defendant's knowledge, Plaintiff was not
present. However, Plaintiff filed a Police Report alleging that Defendant got
angry with Mr. Yatsushiro.
c.
Mr. Yatsushiro attached statement to
Plaintiff's Police Report understating the nature of the assault. Still, he
clearly described having cornered Defendant between an open car door and the
driver's seat of my parent's rental car and reflected Defendant's fear that he
would soon start throwing blows.
11. On
November 12, 2004, Plaintiff's husband, Guy Yatsushiro, filed an Ex Parte
Temporary Restraining Order, Case No. 1SS04-1-001564, against Defendant. Such
TRO was denied where harassment as defined by HRS 604-10.5 was not sufficiently
alleged.
12. On
November 18, 2004, Defendant's Civil Case No. 1SS04-1-01541, was heard in the
District Court of the First Circuit, Honolulu, Division, State of Hawaii, the
Honorable Judge J.P. Stone, presiding.
a.
Plaintiff's attorney flailed into Court
ranting that Defendant was a menace to society.
b.
In spite of Plaintiff's attorney's uncivil
behavior, Defendant and Mr. Yatsushiro agreed to dismiss the charges without
prejudice assuming all parties behaved.
c.
Court Minutes reflect that all exchanges of
minor children were to be made a part of family court matters.
d.
That afternoon, Mr. Yatsushiro called
Defendant asking the whereabouts of our daughter. Our daughter was in school in
13. On
November 23, 2004, the Honorable Judge Allene R. Suemori signed an Order
amending the above mentioned TRO to include a provision requiring the exchange
of the children at the Kailua Police Station.
a.
This provision was clearly contrary to the
language of the dismissed civil order heard less than five days earlier and was
clearly under the jurisdiction of the current UCCJEA case, however, Plaintiff
pushed to have this provision improperly included in the TRO so that any
violation could be treated as a criminal offense rather than a parenting issue.
b.
Plaintiff subsequently ignored other
provisions in this addition to the TRO, threatening to call the Police again
should I not conform to her interpretation of the Order.
14. On
November 30, 2004, in her billing statement, the GAL makes known her intent to
withdraw from this hostile case. Said motion was filed with the Family Court on
January 13, 2005.
15. On
December 19, 2004, Plaintiff had the Police come to my apartment to pick up the
children in the middle of the night during Defendant's scheduled 2004 Christmas
vacation. The Police Report claims parental interference. Our daughter was
coordinating Plaintiff's efforts to have the Police intervene reflecting severe
Parental Alienation behavior.
16. On
February 16, 2005, at the hearing to release the GAL under UCCJEA No.
03-1-0011, Plaintiff's lawyer threatened to decrease visitation and
increase child support. R. Malia Taum is appointed new GAL. The court minutes
on this hearing are in error on two points:
a.
Plaintiff's lawyer was the first to disclose
knowledge of a CPS investigation against Defendant in the context of a threat where
neither Defendant nor the Court had been informed.
b.
Defendant objected to the appointment of a
new GAL.
17. On March
1, 2005, Defendant has an extended interview with CPS Investigator, Maxine Smith-Sullivan at
a.
The CPS investigation focused on
allegations of child abuse.
b.
These allegations came after Plaintiff had
spoken with our daughter's elementary school teacher, apparently instigating
the investigation.
c.
Mrs. Smith-Sullivan informed me that the
investigation uncovered different parenting styles between Plaintiff and
Defendant.
d.
Defendant was cleared of allegations of
physical harm on April 15, 2005.
e.
To my knowledge, parental alienation was
not investigated.
18. On March
15, 2005, Plaintiff renders the required IRS Form 8332, Release of Claim to
Exemption for Child of Divorce or Separated Parents, for tax years 2003 and
2004.
a.
The form for tax year 2002 is incomplete.
b.
Plaintiff has rendered no additional Forms
8332.
c.
In accordance with the requirements of IRS
Code Sec 152(e)(2), Regulation 26CFR1.152-4T,
Proposed
Regulation 149856-03 issued on May 2, 2007, and a number of Tax Court Cases,
Plaintiff is out of compliance with the Custody Order and has placed
Defendant's status as Enrolled Agent in continuing jeopardy according to
Circular 230, Section 10.51(f).
19. On three
separate occasions in July 2005 (7/3, 7/10, and 7/17), Defendant was extremely
concerned regarding months of discussion with Plaintiff addressing the exchange
location for Sunday evenings.
a.
These exchanges were becoming increasingly
dangerous to the children due to several factors. Plaintiff refused to listen
to defendant's concerns.
b.
When Defendant was unable to deliver the
kids to the Kailua Police Station, I took them to the Beretania Police Station.
c.
Plaintiff postponed the exchanges by over
an hour on each occasion while she filed Police Reports at the Kailua Police
Station.
20. On July
19, 2005, Defendant was arrested for violations of a TRO. Plaintiff had to lie,
in Police Report No. 05-270425 and in the related reports, that she had no
information regarding the alternate exchange location in order to get the
police to classify the issue in the report as a TRO violation rather than a
parenting issue.
a.
Defendant's attorney in the civil case, Rick
Sing, Esq., showed Defendant Police Reports filed by our daughter, KLH. The
number of such police reports has not been disclosed. However, from the
language and intent, Defendant alleges that these reports were numerous and
were filed at her mother's request.
21. At hearing
on July 26, 2005, the Honorable Judge Reynaldo D. Graulty presiding, Plaintiff
brought our daughter to the hearing for the purpose of testifying against her
father. The Case Numbers and associated Police Reports are as follows:
a.
FC-CR No. 05-1-2021, Reports 05-291853 and 04-513774.
b.
FC-CR No. 05-1-1791, Reports 05-270425 and 05-281335.
22. On
September 1, 2005, in a closed-door session without the parties, the Court
terminated father's right to see his daughter. The reason for this termination
was that Dr. Tsushima submitted a letter to the Court, dated August 31, 2005,
asking the Court to look into the matter of our daughter's allegations of
"hitting."
a.
Defendant was unaware of the content of the
letter until after the closed-door hearing.
b.
The doctor did not recommend terminating
visitation.
c.
The letter explicitly stated that there was
no evidence to support the daughter's allegations against her father.
d.
The letter was submitted into evidence
again in the short trial, and was used as evidence that Defendant was hitting
his son.
e.
Empirical studies have proven that children
of a severely alienating parent exhibit alienating behaviors independently of
the alienating parent. Substantial evidence exists to expose the severe
alienation behaviors of the custodial parent.
f.
For this reason, it was highly
inappropriate for Dr. Tsushima to have written a letter to the Court for the
purpose--assumed by Plaintiff--of terminating visitation
g.
In addition, it is against the language and
intent of HRS Sec 626.804(b)(6) for the Court to have accepted such hearsay as evidence
for the termination of visitation with Defendant's children.
23. On October
7, 2005, Defendant met with the CPS investigator, Leticia Wallace, on the reopened
CPS case. On December 12, 2005, Defendant was again cleared of any allegations
of physical abuse. Indeed, this CPS investigator raised the same concerns
regarding different parenting styles. As before, Parental Alienation was not
examined.
24. On
November 7, 2005, at the trial of TRO violations stated above, Judge Graulty
presiding, Defendant pled guilty to the amended charge of Contempt of Court
under HRS 710-1077/1G.
a.
The Family Court is aware that the issue
arose as a direct result of Plaintiff's improper, and perhaps illegal,
inclusion of the parenting responsibility to exchange children under the
amended TRO of November 23, 2004 instead of the Family Court Order.
b.
Defendant also notes that all conditions of
domestic violence class, parenting classes, and probation were completed upon
his appearance in District Court for review on October 16, 2006.
25. On
December 29, 2005 an order amending the TRO to correct the improper amendment
was filed, specifically stating "All provisions for the custody and
visitation of the parties two minor children shall be made pursuant to UCCJEA
03-1-0011."
26. On Order,
filed without hearing on February 10, 2006, the appointment of a Parenting
Coordinator (PC) was made.
a.
At the short-trial, Defendant presented
adequate evidence that he had every right to expect that this Court would
appoint a PC of minimum standards who could handle complicated cases of custody
and visitation. Those minimum standards are acknowledged on a national level by
the, "Association of Family and Conciliation Courts" (AFCCnet.org),
in their document entitled, "Guidelines for Parenting Coordination."
This Court appointed the parties Annabelle Murray and Stacy Fukuhara-Barclay,
feminists and anti-father advocates, as PCs.
b.
Defendant presented adequate evidence at
the short trial to establish that Stacy Fukuhara-Barclay was unqualified, was unable
to establish a minimum of communication between the parties, and did permanently
damaged KTH's relationship with his natural father by terminating visitation
that was filled with enjoyment and fulfillment from both the father and son's
perspective.
c.
Further, Defendant presented adequate
evidence that this PC, from the very beginning, negligently ignored child
alienation issues that are prevalent in Plaintiff's blended family.
27. On June
28, 2006, the PC sent a letter to the parties with instructions regarding
travel to
a.
Included in the instructions was a
scheduled exchange for the children's return, "Larry’s parents will drop
off the children at
b.
When Defendant's mother fell ill on July
12th, Defendant accompanied the children and their grandfather to the airport.
c.
Plaintiff then filed a Police Report
alleging that Defendant violated the TRO knowing that, if acted upon by the
Police, the report would have resulted in the jailing of Defendant.
28. On July 9,
2006, while in
29. On
September 19, 2006, the PC filed a declaration and order with the Family Court
terminating father's visitation with his son based upon false allegations of
domestic violence without investigating the allegations.
30. At the
short trial, Defendant presented evidence that our daughter continues to suffer
through multiple medical conditions without proper diagnosis and treatment.
While the natural father is blamed, the issues surrounding KLH's medical
situations have never been investigated inside the blended family.
a.
KLH has had an infection of dozens of warts
on her feet that went without treatment until her father intervened, in the
fall of 2004, with over-the-counter medicines and attention to KLH's physical
and emotional health.
b.
KLH had a diagnosis of hyperhidrosis from a
dermatologist, Dr. David Huntly, on November 22, 2004. Defendant informed
Plaintiff via email. In return, Plaintiff threatened legal action for taking
KLH to a doctor without her permission.
c.
In the summer of 2005, KLH visited her
d.
KLH is unwilling to accept the services of
her step-father, an internal medicine specialist. It is unusual for a child to
resist the expertise and professionalism of a doctor, who Plaintiff reports is
an esteemed member of his community, unless there has been some severe
psychological damage perpetrated by the step-father upon the step-daughter.
e.
In Dr. Tsushima's 8/31/05 letter, KLH admits
to violently hitting Dr. Yatsushiro upon the back of his head with such force
that he was stunned and she was laughing. The signs and sources of child abuse
are clearly evident within the custodial parent's home.
31. At the
short trial, Defendant presented evidence that our son, KTH, was diagnosed with
"Failure to Thrive," not asthma, while Plaintiff and Defendant lived
together in
a.
Throughout Defendant's regular visits, the
children's descriptions of their home included accounts of mites, ants,
termites, cockroaches, rodents, feral cats, pidgeons, and a large, long-haired
dog.
b.
In presenting excerpts at trial from the
book, What Bit Me? by Gordon Nishida, M.A. in biological sciences, and Joanne
Tenorio, Ph.D, both of whom have close to 50 years working at the
32. At the
short trial, Defendant established KLH's motivation to make false allegations
against her father. Through KTH's use of a point system, KLH exercised
considerable physical strength over her younger brother. The point system, from
one to ten, included providing candy to her younger sibling as reward and
painful physical harm as punishment. Defendant became fully cognizant of the
extent to which KLH was abusing power over KTH during the summer of 2005, and took
steps to curb the behavior. KLH thwarted Defendant's reasonable parenting by
making false allegations to a required reporter, Dr. Tsushima.
33. At the
short trial, Defendant presented evidence that Defendant's son was under
increased pressure to commit false allegations of domestic violence against his
father. When he returned home, KTH was subjected to a barrage of ridicule over
any statement he might make with regards to the good times he has had with his
Dad. Typically, as happens to many children of severe alienation, KTH succumbed
to the pressure in the custodial parent's care and the blended family that had
fallen victim to Plaintiff's unrelenting denigration of the children's natural
father.
34. At the
short trial, Defendant explained that more psychological treatment is
unwarranted. Defendant has been released from the care of
a.
Defendant has completed his course of
psychological treatment as far as it can go for a mentally stable, divorced
father of two children that he is not allowed to see,
b.
Defendant cannot admit to false allegations,
and
c.
The psychologists are afraid that this
adversarial court system will hold them responsible for false allegations
against their client.
35. At trial,
Plaintiff alleged that she is not obstructing Defendant's visitation with his
children. However, Defendant will point out in his brief how Plaintiff's
responses to questions and cross-examination are typical of an alienating
parent intent on destroying the target parent's relationship with his children.
36. After the
short trial, Plaintiff continued to obstruct visitation between Defendant and
his children by:
a.
On December 29, 2006, Plaintiff was granted
a TRO, Case No. FD06-1-2453, alleging that a) she had a heightened sense of
fear and b) an order from the Family Court--that would not be filed until April
23, 2007--ruled against Defendant. This order was dismissed at the TRO hearing
on February 5, 2007, the Honorable Michael F. Broderick presiding, for
insufficient evidence. The language Plaintiff uses is hysterical and
slanderously portrays Defendant as a criminal on the loose. Judge Broderick instructed
Plaintiff to file another TRO only in the event there was some physical contact
or other immediate threat to her person.
b.
On April 23, 2007, Defendant appeared in
Family Court, under UCCJEA 03-1-0011, to request visitation with his children.
No order from the December 22, 2006 trial had been issued. At this hearing, the
order that is the subject of this appeal was presented to Judge Kuriyama,
signed by her and filed during the hearing. Defendant was served a copy of the short
trial order after the hearing.
c.
On April 27, 2007, Plaintiff filed another
TRO, Case No. FC-DA 07-1-0829, alleging that Defendant had filed an exhibit at
the April 23, 2007 hearing in Family Court. Plaintiff had to perjure herself to
get this Court to accept this as a grantable TRO. In her TRO, Plaintiff
escalates her fear and self-centeredness with a vivid imagination alleging that
Defendant will obtain a firearm. On May 9, 2007, the Honorable Judge Paul T.
Murakami, dissolved this TRO for insufficient evidence.
37. Presently,
all communication with Defendant's children has ceased due to Plaintiff's neurotic
reactions to Defendant's attempts at cooperative parenting.
NOW THEREFORE, THIS COURT MAKES THE FOLLOWING CONCLUSIONS OF
LAW:
1. In the matter between the
parties:
a. Plaintiff, Dara M. Holbrook, nka
Dara Yatsushiro-Holbrook, has consistently failed to provide any evidence
supporting allegations against Defendant. She has failed to show cause why
visitation should continue to be terminated. Plaintiff has consistently pursued
obstructing tactics that have resulted in denial of visitation between father
and children. Plaintiff has flouted the
b. Defendant, Lawrence J. Holbrook,
has acknowledged and has exhibited the frailty of a noncustodial parent trying
to continue a relationship with his children under the punitive conditions
demanded by Plaintiff. Defendant has gone to great lengths to be available for
visitation and has expressed a fervent desire to nurture the children's
relationship with both parents. Defendant has shown responsibility for his
actions and--while not perfect--has maintained a relationship with his children
above and beyond the enmity engendered. There is no basis for additional
psychotherapy for Defendant or his children.
c. Therefore, custody of the
children should be given to Defendant to reverse the effects of child
alienation that have taken root.
2. Alternately, in the matter
between the parties:
a. This Court had little opportunity,
in the time given at this short trial, to adequately hear issues presented
before it with the degree of clarity required under HRS 580-47(f) to make a
decision of justice and equity between the parties.
b. Therefore, the order issued by
this Court, filed on April 23, 2007, for the short trial held on December 22,
2006 is vacated and a new trial is ordered for Defendant's visitation with his
children and rendering the appropriate tax forms.
c. Prior to a new trial on
visitation, a CPS investigation into allegations of parental alienation and
domestic abuse in the custodial parent's home shall be ordered as authorized by
HRS Sections 571-45 and 587-21.
________________________________ _________________________
Judge
of the Above Titled Court Dated,