JD v. PD

482 P.3d 555

JD, Petitioner-Appellee,

v.PD, Respondent-Appellant

CAAP NO. 20-0000023

Intermediate Court of Appeals of Hawai‘i.

February 10, 2021

On the brief:

PD, Respondent-Appellant.

HIRAOKA, PRESIDING JUDGE, WADSWORTH AND NAKASONE, JJ.

OPINION OF THE COURT BY NAKASONE, J.

Respondent-Appellant PD (Father ), self-represented, appeals from the December 17, 2019 Judgment of the Family Court of the First Circuit (family court ),¹ that granted an Order for Protection to Petitioner-Appellee JD (Mother ) and the couple's child, RD (Child ).

In domestic abuse protective order cases involving a minor, Hawaii Revised Statutes (HRS ) Chapter 586 requires that the Department of Human Services (DHS or Department ) provide the family court, the petitioner, and the respondent with "a written report on the disposition of the referral" before issuance of the protective order. HRS § 586-10.5 (2018).² The DHS reports provided to the family court and the parties in this case do not contain DHS's "disposition" of the referral. Accordingly, we vacate the Order for Protection and remand this case to the family court with instructions.

I. BACKGROUND

On November 8, 2019, Mother filed a Petition for an Order for Protection (Petition ) against Father, making several allegations of domestic abuse of Mother and Child in the form of physical harm, extreme psychological abuse, threat of imminent physical harm, bodily injury, and assault. Six allegations of domestic abuse of Mother and Child were made in the Petition, and three of those allegations pertinent to this appeal are as follows:

In Allegation A, Mother claimed that in 2015, "[Father] sat me down, had my phone and called almost all contacts[,] slapping my face. [Child] was crying and sitting next to me." (Allegation A )

In Allegation B, Mother claimed that on November 7, 2019, "Department of Human Services (DHS) Child Welfare Services (CWS) completed investigation w/ [Child] and [Father]. DHS removed [Child] from the care of [Father], declaring [Father] unsafe. On 11/7/19, [Child] was placed in the care of myself, [Mother]." (Allegation B )

In Allegation C, Mother claimed that on October 7, 2019, "An active Child Welfare Services (CWS) case #00124600 was generated alleging threat of abuse and neglect to [Child] by [Father]. On 10/3/2019 [Child] was seen at Kapiolani Hospital. It was reported and documented by hospital [sic] visible ... bruising across [Child']s backside." (Allegation C )

Upon reviewing the November 8, 2019 Petition, the family court granted an ex parte temporary restraining order (TRO ) the same day, prohibiting Father from contacting Mother and Child.³ Along with the issuance of the TRO, the family court ordered DHS to investigate the matter, submit a report, and appear to testify at a show-cause hearing⁴ on Mother's Petition.

A show-cause hearing on Mother's Petition was held on November 20, 2019. The family court granted Father's request for a continuance of the hearing to seek legal representation, and the hearing was continued to December 17, 2019.

At the December 17, 2019 continued show-cause hearing, Father appeared with an attorney. The family court accepted the two DHS reports prepared by the DHS social worker, respectively dated November 18, 2019 and December 17, 2019. Both Father and Mother testified, along with Child's former teacher, and the DHS social worker who prepared the reports for the family court.

At the conclusion of the show-cause hearing, the family court granted the Petition and issued the Order for Protection in favor of Mother and Child for a period of five years, prohibiting Father's contact with Mother and Child, except for full supervised visitation and as needed for court proceedings, until December 17, 2024. The family court found that Father had failed to show cause why the TRO should not be continued, and found that Mother had proved Allegations A, B, and C by a preponderance of the evidence, and that a protective order was necessary to prevent domestic abuse or the recurrence of abuse. The family court filed its Findings of Fact and Conclusions of Law on February 24, 2020, which stated in pertinent part:

22. Following trial on the Petition, the Court finds that MOTHER and DHS Social Worker are credible and that MOTHER proved the material allegations of the Petition by a preponderance of the evidence as to allegations A, B, and C, that FATHER failed to show good cause why the order should not be continued, and finds that a protective order is necessary to prevent domestic abuse or recurrence of domestic abuse.

Father timely filed his appeal on January 15, 2020.⁵

On March 9, 2020, Father filed a Motion and Declaration to Amend [and] Dissolve the Existing Order [for Protection] with the family court.⁶ Father claimed to have received (1) a Notice of CWS Disposition dated January 13, 2020 from the DHS Social Services Division Child Welfare Services Branch (DHS CWS ), and (2) a Notice of Termination or Reduction of Service dated January 13, 2020 from the DHS Social Services Division.⁷ The Notice of CWS Disposition purportedly informed Father that "DHS CWS has completed its investigation/assessment pursuant to Hawaii Revised Statutes (HRS) § 350 and § 587A" into the "report alleging that you were the perpetrator of child abuse and/or neglect" as to Child, and the "disposition" as to allegations of threatened physical harm/abuse and threatened physical neglect was that the allegations were not confirmed. Based on these documents, Father argued that the "DHS/CSW [sic] case has since been closed" because "DHS found that the child is not at risk of harm or threatened harm with respect to Father[,]" and that "[a]llegations against Father were not confirmed, and social services have been discontinued as of January 13, 2020[.]"

On appeal, Father's Opening Brief⁸ contends that the family court erred by (1) precluding the testimony of Child's school counselor, (2) admitting the DHS CWS reports into evidence while the investigation was still pending, (3) applying the wrong standard in concluding that the Order of Protection was necessary to prevent future abuse, (4) concluding that the alleged abuse warranted a protection order, and (5) exhibiting bias in favor of Mother and the DHS CWS social worker. Father also claims he received ineffective assistance from his counsel.

II. STANDARDS OF REVIEW

A. Family Court Conclusions of Law

"The family court's [conclusions of law] are reviewed on appeal de novo, under the right/wrong standard." LC v. MG & Child Support Enf't Agency, 143 Hawai‘i 302, 310, 430 P.3d 400, 408 (2018), reconsideration denied sub nom. LC v. MG, No. SCAP-16-0000837, 2018 WL 5785070 (Haw. Nov. 2, 2018), and cert. denied sub nom. LC v. MG, ––– U.S. ––––, 140 S. Ct. 234, 205 L.Ed.2d 127 (2019) (citing In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623 (2001) ). Conclusions of law are "not binding upon an appellate court and are freely reviewable for their correctness." Id.

B. Statutory Interpretation

"Statutory interpretation is a question of law reviewable de novo." State v. Castillon, 144 Hawai‘i 406, 411, 443 P.3d 98, 103 (2019) (quoting Panado v. Bd. of Trs., Emps.' Ret. Sys., 134 Hawai‘i 1, 10, 332 P.3d 144, 153 (2014) ). In reviewing questions of statutory interpretation, we are guided by the following principles:

First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation 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. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

Id. (citing Panado, 134 Hawai‘i at 10-11, 332 P.3d at 153-54 ).

III. DISCUSSION

A. The family court erred in granting the Order for Protection where the DHS reports submitted to the court did not contain a disposition as required by HRS § 586-10.5.

Father contends that the family court erred in admitting the "hearsay evidence"⁹ in the DHS reports¹⁰ at the show-cause hearing, while the DHS investigation was still pending. While Father does not specifically challenge the family court's receipt of the DHS reports under the applicable statute, HRS § 586-10.5, Father's challenge to the interim, non-final content of the reports has merit under the statute. HRS § 586-10.5 provides:

§ 586-10.5. Reports by the department of human services; court responsibilities

In cases where there are allegations of domestic abuse involving a family or household member who is a minor or an incapacitated person as defined in section 560:5-102, the employee or appropriate nonjudicial agency designated by the family court to assist the petitioner shall report the matter to the department of human services, as required under chapters 350 and 587A, and shall further notify the department of the granting of the temporary restraining order and of the hearing date. The department of human services shall provide the family court with a written report on the disposition of the referral. The court shall file the report and mail it to the petitioner and respondent at least two working days before the hearing date, if possible. If circumstances prevent the mailing of the report as required in this section, the court shall provide copies of the report to the petitioner and respondent at the hearing. The report shall be noted in the order dismissing the petition or granting the restraining order.

(Emphases added.)

For cases involving domestic abuse allegations against a minor, this statute requires the family court's designee to "report the matter to [DHS] as required under chapters 350 and 587A" and notify DHS of the TRO and the date of the show-cause hearing. Id.; see Hamilton...