NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JAN-2021
07:55 AM
Dkt. 53 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
SG, Petitioner-Appellee,
v.
BA, Respondent-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-DA NO. 17-1-2977)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Respondent-Appellant BA (Father) appeals an Order for
Protection entered by the Family Court of the First Circuit
(family court)1 on January 10, 2018, which bars him from having
any contact with his daughter (Child) and Petitioner-Appellee SG
(Mother) until January 10, 2019, and Mother's child from a
previous relationship (Older Child) until January 10, 2023. As
to Child, however, Father was allowed supervised visitation and
weekly Facetime contact.
Father asserts that the family court erred in making a
finding of domestic abuse and entering the Order for Protection
against him. Specifically, Father asserts that the family court
erred in: (1) permitting Mother to testify regarding a statement
made by Older Child's therapist describing a statement made by
Older Child; (2) entering findings of fact (FOF) 9 and 10 in the
Order for Protection; and (3) entering conclusions of law (COL)
1
The Honorable Steven N. Nakashima presided.
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4-6 in the Order for Protection. Father requests that the Order
for Protection be reversed.
Upon careful review of the record and Father's opening
brief,2 and having given due consideration to the arguments
advanced and the issues raised, we vacate the Order for
Protection.
On December 1, 2017, Mother filed a Petition for an
Order for Protection against Father, making several allegations
of domestic abuse by Father against Mother, Child, and Older
Child, in the form of physical harm, extreme psychological abuse,
and threat of imminent physical harm, bodily injury, or assault.
The family court issued a temporary restraining order
(TRO) against Father. The hearing on Mother's petition was held
on January 8 and 10, 2018. Both parties testified at the
hearing. The social worker from the Department of Human Services
(DHS) Child Welfare Services who prepared the report for this
matter also testified. The exhibits presented at trial included
the December 29, 2017 DHS report prepared by the DHS social
worker.
On January 10, 2018, the family court issued the Order
for Protection in favor of Mother and Child for a period of one
year (until January 10, 2019), and in favor of Older Child for a
period of five years (until January 10, 2023).
On April 10, 2018, the family court filed its Findings
of Fact and Conclusions of Law (FOF/COL). Relevant to this
appeal are the following FOFs and COLs:
A. Findings of Fact
. . . .
3. The Parties started their relationship with each
other in or about September 2014.
4. At the time the relationship started [Mother]
had a daughter, [Older Child] (born in 2006),
from a prior relationship . . . .
2
Mother did not submit an answering brief.
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5. In 2016, the Parties had a child, [Child], who
was born in Hawaii.
. . . .
8. On or about May 2017, [Father] forcefully
removed [Child] from [Mother's] arms and took
off with her up the stairs in what appeared to
[Mother], an attempt to run off with [Child] as
he had threatened to previously do. [Mother]
was able to catch up with [Father] and get
[Child] from [Father] back into her care. There
was a dispute as to what took place in this
incident, however, the Court gave credence to
the testimony of [Mother] as to what had
occurred in that [Father] was attempting to run
off with the child.
9. The Court also gives credence to the incident
involving the choking of [Older Child] which
[Older Child] reported to [Mother] in June 2017
and which [Older Child] confirmed did occur to
the [DHS social worker]. The report to [the DHS
social worker] was consistent with the report
that had previously been made to [Mother].
Issues were raised by [Father] regarding whether
[Older Child's] perception about what had
occurred may have been taken out of context or
distorted by [Older Child] due to her previous
diagnosis of post-traumatic stress disorder.
However, no competent evidence was ever
presented that any post-traumatic stress
disorder issue was affecting [Older Child's]
perception of events or had distorted [Older
Child's] perception of the events leading up to
her statement of being choked by [Father].
10. Accordingly, the Court makes a finding of
domestic abuse by [Father] against [Mother], and
the two children by a preponderance of the
evidence and the Court finds that [Father] has
failed to show cause why the Temporary
Restraining Order should not be continued.
B. Conclusions of Law
. . . .
4. Based on the findings above, [Father] has failed
to show cause why the Temporary Restraining
Order should not be continued, and [Mother] has
shown by a preponderance of the evidence that
domestic abuse has occurred.
5. Accordingly, the Court orders that a Protective
Order is necessary to prevent domestic abuse or
the reoccurrence of domestic abuse and is
necessary for a time period of 5 years as to
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[Older Child], up to and including January 10,
2023, and is necessary for a time period of 1
year as to [Mother] and [Child], up to and
including January 10, 2019.
6. Further orders are specifically set forth in the
Order for Protection that was filed on January
10, 2018 and those orders are fully incorporated
herein, including, among other things, orders
that allow for Facetime contact and PACT
(Parents and Children Together) supervised
visits between [Child] and [Father].
Father first asserts that the family court erred in
admitting, over his hearsay objection, Mother's testimony that
Older Child's therapist said that Older Child told her that
Father choked Older Child. The therapist did not testify.
Mother testified as follows:
A. . . . [Older Child's therapist] informed us that
[Older Child] had told her some things in that session that
were very concerning, and that as a mandatory state reporter
she had to contact Child Protective Services. So --
Q. What happened after?
A. She told us that [Older Child] disclosed that
[Father] had --
[FATHER'S COUNSEL]: Objection. Hearsay.
[MOTHER'S COUNSEL]: Your Honor, again, this is to
explain the actions (inaudible) with the psychiatrist. Not
to assert that while the statements are not being offered to
assert that [Father] did any such action. Again, this is to
explain the actions of my client.
THE COURT: You know, given that this has already come
out in the testimony of [the DHS social worker], I'm going
to allow it because based on what you're saying in terms of
the reporting and then what happened subsequent, so you can
go ahead.
THE WITNESS: [Father] had choked her; that at that
time she was able to give us kind of a timeframe but wasn't
able to recall an exact date. That because she had made the
allegation that [Older Child's therapist] had to contact
[Child Protective Services (]CPS[)] to make the claim on
[Older Child's] behalf which we did.
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On appeal, Father challenges the admission of Mother's testimony
as "double hearsay," where Mother described a statement by Older
Child's therapist to Mother which in turn described an alleged
statement by Older Child to the therapist regarding the choking
incident. We note that while a general hearsay objection was
preserved, a specific double hearsay objection was not raised or
argued below.
Hawai#i Rules of Evidence (HRE) Rule 801 (2016) defines
hearsay as "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." Hearsay is generally
not admissible. HRE Rule 802 (2016).
Mother's statement was not offered for the prohibited
hearsay purpose of proving that Father had choked Older Child.
The purpose of the testimony was to establish the basis for
Mother's subsequent testimony regarding the events and actions
taken by Older Child's therapist in calling CPS with Mother,
Father, and Older Child; the family court allowed it on this
basis.
Father argues that, to the extent Mother's testimony
was not offered for its truth, it could not constitute a basis to
support the family court's findings and conclusions that the
choking incident occurred, or that Father engaged in domestic
abuse. Father's argument has merit. While it was permissible
for the family court to admit Mother's testimony regarding the
circumstances of Older Child's initial report of the choking
incident for a non-hearsay purpose, the family court did not
conform its consideration of this evidence to its own ruling.
The family court erred by improperly utilizing this evidence
substantively for the "truth of the matter asserted" in violation
of the hearsay rule. HRE Rule 801.
The family court made a credibility determination based
on substantive consideration of this inadmissible hearsay
evidence. There were only two witnesses, Mother and the DHS
social worker, through which the evidence of Older Child's
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choking allegation was elicited. In its oral ruling granting the
Order for Protection,3 the family court accorded less weight to
the DHS social worker's testimony of Older Child's report of the
choking incident, acknowledging that the social worker had not
specifically determined that the choking incident was abuse. The
family court also found that Mother was "credible" and that Older
Child's earlier report to the therapist lent "more credibility"
to Older Child's report of the choking incident. This
credibility ruling reflects an improper utilization of Mother's
testimony for a prohibited hearsay purpose, when it was admitted
only for a non-hearsay purpose.
In the written findings and conclusions issued after
the hearing, specifically FOF 9, the family court also improperly
3
At the conclusion of the hearing, the family court orally granted
the request for the Order for Protection and explained, in relevant part:
[W]hat it really comes down to is the question of who do I
believe because it's very clear that [Father] is denying
that he has done anything physical; that he has done
anything wrong. . . .
. . . .
I -- I'm looking at the report by [the DHS social
worker] and, really, you know, the -- what she is saying is
that there's no evidence to indicate that [Father] has been
abusive towards their child [Child]. She's not saying
anything with respect to [Older Child]. She's saying -- and
I don't know that she really has made any determination with
respect to [Older Child]. She says there's information that
indicates that [Older Child] has had negative interactions
with [Father] that may have contributed to increase anxiety
and stress for which she receives treatment.
[Mother] has taken protective action to ensure [Older
Child] is not exposed to [Father's] inappropriate behaviors
towards her, meaning towards [Older Child]. . . . And in
taking a look at this -- and I'm not necessarily placing a
tremendous amount of reliance upon the report of [the DHS
social worker]. I think that there's much more involved
here. . . . And, quite frankly, I find that, you know,
[Mother] is credible, and that her actions in doing what
she's doing is really being done for the protection of
[Older Child], protection of [Child] and herself. . . .
Being the counselor, there's no reason for [Older Child] to
necessarily trust the counselor, but it was somebody that
she trusted to go ahead and make a statement. And in many
ways to me, that gives more credibility to what [Older
Child] is stating about this . . . .
(Emphases added.)
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relied on Mother's hearsay testimony regarding Older Child's
initial report of the choking incident, as being consistent with
the subsequent report by Older Child to the social worker, in
determining that the choking allegation was credible, as follows:
9. The Court also gives credence to the incident
involving the choking of [Older Child] which [Older Child]
reported to [Mother] in June 2017 and which [Older Child]
confirmed did occur to the [DHS social worker]. The report
to [the DHS social worker] was consistent with the report
that had previously been made to [Mother]. Issues were
raised by [Father] regarding whether [Older Child's]
perception about what had occurred may have been taken out
of context or distorted by [Older Child] due to her previous
diagnosis of post-traumatic stress disorder. However, no
competent evidence was ever presented that any
post-traumatic stress disorder issue was affecting [Older
Child's] perception of events or had distorted [Older
Child's] perception of the events leading up to her
statement of being choked by [Father].
(Emphasis added.) This finding reflects an improper utilization
of Mother's testimony for a prohibited hearsay purpose when it
was admitted only for non-hearsay purposes.
Father further contends that FOF 9 is clearly
erroneous, in part, because Older Child never reported the
choking incident to Mother. A family court's finding of fact is
"clearly erroneous" when "the record lacks substantial evidence
to support the finding[.]" W.N. v. S.M., 143 Hawai#i 128, 133,
424 P.3d 483, 488 (2018) (citation omitted). Father's contention
has merit, as there is no evidence in the record to support the
family court's finding that Older Child reported the choking
incident to Mother. Mother testified that she first heard about
the choking incident on June 8, 2017, after Older Child had
reported it to her therapist. Thus, the portion of FOF 9 that
found that Older Child reported the choking incident to Mother
was clearly erroneous.
Father also contends that there was insufficient
evidence to support a finding of domestic abuse with respect to
the choking incident in FOF 9, and the resulting finding in FOF
10 that a protective order was necessary. HRS § 586-1 (2018)
defines "domestic abuse" as follows:
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(1) Physical harm, bodily injury, assault, or
the threat of imminent physical harm, bodily injury,
or assault, extreme psychological abuse or malicious
property damage between family or household members;
or
(2) Any act which would constitute an offense under
section 709-906 [(abuse of family and household members)],
or under part V [(sexual offenses)] or VI [(child abuse)] of
chapter 707 committed against a minor family or household
member by an adult family or household member.
Where a party challenges the sufficiency of the evidence to
support a family court's decision,
[t]he question on appeal is whether the record contains
"substantial evidence" supporting the family court's
determinations, and appellate review is thereby limited to
assessing whether those determinations are supported by
"credible evidence of sufficient quality and probative
value." In this regard, the testimony of a single witness,
if found by the trier of fact to have been credible, will
suffice.
In re Doe, 95 Hawai#i 183, 196, 20 P.3d 616, 629 (2001)
(citations omitted).
Father's challenges to the sufficiency of evidence to
support FOFs 9 and 10 have merit. There was a lack of
substantial evidence to support a finding of domestic abuse with
regard to the choking incident by Father against Older Child, due
to the erroneous consideration of inadmissible hearsay evidence,
and the lack of evidence regarding Older Child's report to
Mother. FOF 9, which contained the findings regarding the
choking incident, was clearly erroneous, as it relied on
credibility determinations based on inadmissible hearsay
evidence, and contained a finding not supported by the record.
FOF 10, which made a finding of domestic abuse by Father against
Older Child, was also clearly erroneous for these reasons. It is
unclear whether the family court would have nevertheless
sustained a finding of domestic abuse by Father against Mother
and Child in FOF 10, without the finding of domestic abuse based
on the choking incident against Older Child.
Father's challenges to COLs 4, 5, and 6 also have
merit, as these conclusions stemmed from the clearly erroneous
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FOF 9 and FOF 10. We review a family court's conclusions of law
de novo, applying the right/wrong standard. W.N., 143 Hawai#i at
133, 424 P.3d at 488. COLs 4, 5, and 6, which concluded, inter
alia, that further protection was necessary to prevent domestic
abuse or the reoccurrence of domestic abuse, were incorrect.
Based on the foregoing, we vacate the January 10, 2018
Order for Protection entered by the Family Court of the First
Circuit, and remand for further proceedings as may be necessary.
DATED: Honolulu, Hawai#i, January 19, 2021.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Steven J. Kim,
for Respondent-Appellant /s/ Clyde J. Wadsworth,
Associate Judge
/s/ Karen T. Nakasone,
Associate Judge
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