JD v. PD.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-FEB-2021
07:51 AM
Dkt. 70 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAII

---o0o---

JD, Petitioner-Appellee, v.
PD, Respondent-Appellant

CAAP NO. XX-XXXXXXX

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-DA 19-1-2603)

February 10, 2021

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

1
The Honorable Natasha R. Shaw presided.
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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)

2
HRS § 586-10.5 is set forth in the Discussion section infra.

2
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

3
HRS § 586-4(c) (2018) provides that the family court may issue an
ex parte TRO if there is "probable cause to believe that a past act or acts of
abuse have occurred, or that threats of abuse make it probable that acts of
abuse may be imminent."
4
Under HRS § 586-5(b) (2018), on the earliest date possible, and no
later than fifteen days from the date the TRO is granted, the family court
must hold a hearing (show-cause hearing) on the petition "requiring cause to
be shown why the order should not continue." At the show-cause hearing, if
the court finds that the respondent "has failed to show cause why the order
should not be continued and that a protective order is necessary to prevent
domestic abuse or a recurrence of abuse," the court may issue a protective
order. HRS § 586-5.5(a) (2018).

3
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

5
An Amended Notice of Appeal was filed on January 22, 2020.
6
Father's motion contained a notice of hearing that indicated that
a hearing was scheduled for May 11, 2020. The court minutes of May 11, 2020
reflect that Father's motion was denied because the family court was divested
of jurisdiction to modify any order pending appeal with this court.

4
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

7
We make no factual determination regarding any of the documents
attached to Father's motion; we note that the CPSS and Intake numbers shown on
the documents are not the same, even among pages within the same document.
8
Mother did not submit an answering brief.

5
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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-XX-XXXXXXX, 2018 WL 5785070 (Haw. Nov. 2, 2018), and cert.
denied sub nom. LC v. MG, 140 S. Ct. 234 (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).

6
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.)

9
Father's hearsay challenge raised on appeal was not preserved
below, and is waived. See Hawai#i Rules of Appellate Procedure Rule
28(b)(4)(iii).
10
Father challenged the admission of "CWS Short Report Docket 43"
which is not a correct docket reference, and "CWS Short Report Docket 49"
which is the 11/20/19 Report submitted to the family court. We construe
Father's challenge to encompass both reports received and considered by the
family court.

7
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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 ex rel. Lethem v. Lethem, 119 Hawai#i

1, 11, 193 P.3d 839, 849 (2008) (noting HRS § 586-10.5 requires

that any TRO issued under the chapter must be reported to DHS for

investigation). DHS must then "provide the family court with a

written report on the disposition of the referral," which must be

filed by the family court and provided to the parties at least

two working days before the hearing "if possible." HRS § 586-

10.5. The statute also requires that "[t]he report shall be

noted in the order dismissing the petition or granting the

restraining order." Id. The statute does not define the term

"disposition," nor explain what is meant by "disposition of the

referral." Id.

In this case, pursuant to HRS § 586-10.5, two

confidential DHS reports were received and considered by the
family court at the show-cause hearing. Both reports do not

appear to contain any "disposition" by DHS of the child abuse

referral. The first report filed November 20, 2019, entitled

"Short Report to Court, 11/18/19" (First DHS Report) describes

DHS's investigation into the allegations of abuse against Child

by both Father and Mother, and notes that DHS was acting pursuant
to the family court's order in this case. The First DHS Report

concludes with DHS's assessment of Child's living arrangement, a

recommendation regarding the restraining order, and states that

8
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

DHS "will continue to investigate[.]" The second DHS report was

filed the day of the continued hearing on December 17, 2019, and

was entitled "Short Report to Court, 12/17/19" (Second DHS

Report). The Second DHS Report, inter alia, provided an update

on Child's status and progress since the First DHS Report filed a

month before, and concluded with DHS's assessment regarding

Child's living arrangement, a recommendation regarding the

restraining order, and again stated that DHS "will continue to

investigate[.]" Neither report contained the word "disposition,"

nor any language indicating DHS's disposition of the child abuse

referral. Instead, both reports indicated that DHS's

investigation into the referral would continue.

After the show-cause hearing on December 17, 2019 was

concluded and the Order for Protection had already been granted,

Father claimed to have received a Notice of CWS Disposition from

DHS CWS dated January 13, 2020, which explained that

"disposition" meant "the results of the

investigation/assessment." The Notice of CWS Disposition states

in pertinent part as follows:
Date: 1/13/2020
NOTICE OF CWS DISPOSITION
To: [(Father's name)] Re: [(Child's name, date of
birth)]
[(Father's address)]
CPSS# 125646 INTAKE #N6697
The Department of Human Services (DHS) Child Welfare
Services (CWS) Branch received a report alleging that you
were the perpetrator of child abuse and/or neglect. DHS CWS
has completed its investigation/assessment pursuant to
Hawaii Revised Statutes (HRS) §350 and §587A. This letter
is to inform you of DHS CWS' disposition (i.e., the results
of the investigation/assessment.)

"C" means that the allegation was CONFIRMED.
This information will be entered into Hawaii's Child
Protective Services System (CPSS) Central Registry. The

9
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

information may be used, with your consent, for a background
clearance, or as provided by federal and State laws. This
confirmation may affect your ability to gain employment that
involves children or vulnerable adults.

"N" means that the allegation was NOT CONFIRMED.
Allegations which are NOT confirmed are NOT entered into
Hawaii's CPSS Central Registry and will not be available to
the public for any purpose.
Confirmed and not confirmed dispositions are stored in the
DHS CWS database, and are only available to CWS for the
purpose of assisting CWS in conducting future risk and
safety assessments, in accordance with the federal Child
Abuse Prevention and Treatment Act (CAPTA) of 2010 and HRS
§350.
DHS CWS' disposition(s) of the child abuse and/or neglect
allegation(s) against you are indicated with either a "C" or
"N" on the table below.
. . . .

(Bolding in original.) On the table, the DHS CWS's "disposition"

on "Threatened Physical Harm/Abuse" was marked "N" or not

confirmed, and "Threatened Physical Neglect" was also marked "N"

or not confirmed. As to other categories on the table, inter

alia, of physical harm/abuse, failure to thrive, physical

neglect, abuse, and neglect –- no findings of "confirmed" or "not

confirmed" were listed, and these categories were left blank. We

make no factual determination regarding this document (see supra

note 7), but note that it reflects on its face a disposition as

to the allegations of abuse by Father against Child that appears

to be inconsistent with the family court's findings from the

show-cause hearing a month before. At that time, the family

court found that Allegation B (that DHS CWS had completed

investigation of Father and removed Child from Father's case

declaring Father unsafe) and Allegation C (that an active CWS

case was generated alleging threat of abuse of neglect to Child

10
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

by Father due to hospital's report of bruising on Child's

backside) had been proven by the preponderance of the evidence.
1. "Disposition" means the final result of the
investigation or assessment of a child abuse
referral that DHS conducted pursuant to its
procedures.

While HRS § 586-10.5 does not define "disposition" of a

child abuse referral, this statute references the child abuse

reporting and child protection procedures in HRS Chapters 350 and

587A. The Notice of CWS Disposition quoted above also noted that

DHS CWS had "completed its investigation/assessment" pursuant to

these same chapters. "It is well established that statutes in

pari materia should be construed together." Jijun Yin v. Aguiar,
146 Hawai#i 254, 264, 463 P.3d 911, 921 (2020) (citation

omitted). Thus, we examine HRS Chapters 350 and 587A in pari

materia, for clarification of the meaning of the term

"disposition" as used in HRS § 586-10.5. See HRS § 1-16.11

HRS Chapter 350 deals with the reporting of child abuse

and neglect, inter alia, setting mandatory reporting requirements
and imposing penalties for non-reporting. HRS Chapter 350 does

not contain the term "disposition" in any of its sections.

HRS Chapter 587A codifies the Child Protective Act, the

purpose of which is to protect children who have been harmed or

threatened with harm, by providing a means for identifying,

reporting, and investigating such cases, and implementing plans

11
HRS § 1-16 (2009 & Supp. 2018) provides, "Laws in pari materia, or
upon the same subject matter, shall be construed with reference to each other.
What is clear in one statute may be called in aid to explain what is doubtful
in another."

11
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

to ensure that these children are provided with a safe family

home. This chapter contains a single reference to the term

"disposition" in its statement of purpose and construction in HRS

§ 587A-2 (2018), that provides, "The legislature finds that

prompt identification, reporting, investigation, services,

treatment, adjudication, and disposition of cases involving

children who have been harmed or are threatened with harm are in

the children's, their families', and society's best interest

because the children are defenseless, exploitable, and vulnerable

. . . ." (Emphasis added.) This section describes the various

procedures set forth in the Child Protective Act, from reporting

and investigation, to adjudication and disposition. While only

the term "adjudication"12 is defined in the chapter, the language
employed in § 587A-2 shows that terms such as investigation,

adjudication, and disposition, are distinct.

The term "disposition" is also found in the Hawai#i

Administrative Rules (HAR) for DHS Child Welfare Services

Programs, under a chapter dealing with Child Welfare Casework

Services. See generally HAR § 17-1610 (effective 2010-2021).
The Notice of Termination or Reduction of Services Father

provided also referenced these rules.13 The stated goal of the

12
The term "adjudication" is defined in the HRS § 587A-4 (2018)
definitions section, as follows: "'Adjudication' means a finding by a court
that is supported by a preponderance of the evidence that the child has been
harmed or is subjected to threatened harm by the acts or omissions of the
child's family." The definitions section for the chapter, HRS § 587A-4, does
not contain a definition of "disposition."
13
This document purportedly informed Father that DHS was terminating
its services since Child was "not at risk of harm or threatened harm," citing
HAR § 17-1610-45(1). HAR § 17-1610-45 is entitled "Termination of child
welfare casework services" and states that "Notice shall be provided and child
(continued...)

12
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Department under this chapter is to "provide services to the

child who has been the subject of a report of abuse, neglect, or

threatened harm" to ensure the child's safety, permanency, and

well-being. HAR § 17-1610-1. While no definition of

"disposition" appears in the definition section of HAR § 17-1610-

2, the term appears in a section entitled "Disposition of

assessment" as follows:
17-1610-24 Disposition of assessment. (a) For those reports
accepted for assessment pursuant to chapter 350, HRS, a
disposition shall be made in accordance with departmental
procedures and documented in the department's information
system within sixty working days of the acceptance of the
report as to whether the child has been harmed.

(b) The legal custodian and the alleged maltreater shall be
provided written notice of the disposition of the assessment
in accordance with section 17-1610-11 . . . .

(Underscoring in original.) The definitions section provides

that "'Assessment' or 'investigation' is the professional,

systematic, gathering and evaluation of information about the

family for the purpose of making decisions regarding confirmation

of child abuse and/or neglect, protection of the child, and

services to the family." HAR § 17-1610-2.

Based on the foregoing, the term "disposition" is one

that is used by DHS in its administrative rules and in HRS §

587A-2. In conducting a plain meaning analysis, the words of a

statute "must be taken in their ordinary and familiar

signification," with regard "to their general and popular use."

Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439, 449, 420 P.3d

13
(...continued)
welfare casework services shall be terminated when: (1) The department finds
the child is not at risk of harm or threatened harm[.]"

13
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

370, 380 (2018) (quotation marks and citations omitted). A court

may also "resort to legal or other well accepted dictionaries as

one way to determine the ordinary meaning of certain terms not

statutorily defined." Id. at 449-50, 420 P.3d at 380-81

(quotation marks and citations omitted). The definition in the

Notice of CWS Disposition quoted above, that "disposition" means

"the results of the investigation/assessment," is one that is

ordinarily applied and generally used. We hold that the term

"disposition" as used in HRS § 586-10.5, means the result of the

investigation or assessment that the Department conducted

pursuant to its procedures for a child abuse referral. This

definition comports with the typical legal meaning of

"disposition" as a "final settlement or determination[.]"

Disposition, Black's Law Dictionary (11th ed. 2019). It is also

consistent with the common meaning of "disposition" as a "final

arrangement" or "settlement[.]" Disposition, Merriam-Webster's

Collegiate Dictionary 361 (11th ed. 2003). And as set forth

below, this definition is also consistent with the legislative

history of HRS § 586-10.5.

2. The legislative history of HRS § 586-10.5
shows that the legislature intended that
the DHS report contain a "disposition" of
the child abuse referral, and that an
investigative report without a "disposition"
does not satisfy the statute.

"The legislature enacted HRS Chapter 586 in 1982 to

streamline the procedures for obtaining and issuing ex parte

temporary restraining orders to prevent acts of or the recurrence

of domestic abuse." Coyle v. Compton, 85 Hawai#i 197, 205, 940

14
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

P.2d 404, 412 (App. 1997) (quotation marks and citations

omitted). In 1987, HRS § 586-10.5 was added as a new section to

Chapter 586,14 to "ensure the involvement and assistance of the

Department of Social Services and Housing (DSSH) in domestic

abuse matters involving alleged abuse to minors." S. Stand.

Comm. Rep. No. 1444, in 1987 Senate Journal, at 1521. The

legislature believed that the new section would "give the Family

Court and responsible state agencies the ability to better

protect the victims of domestic abuse." Id. In 1991, when the

statute was amended to include reference to both Chapter 350 and

Chapter 587,15 the legislature explained that "Chapter 350

14
The new section of HRS 586-10.5 read as follows:

§586- Reports by the department of social services and
housing. In cases where there are allegations of domestic
abuse involving a minor family or household member, the
employee or appropriate nonjudicial agency designated by the
family court to assist the petitioner shall report the
matter to the department of social services and housing, as
required under chapter 350, and shall further notify the
department of the granting of the temporary restraining
order and of the hearing date. The department of social
services and housing shall provide the family court with an
oral or written report of the investigation's progress on or
before the hearing date.

1987 Haw. Sess. Laws Act 315, § 7 at 983.
15
The 1991 amendment was as follows:
§586-10.5 Reports by the department of human services. In
cases where there are allegations of domestic abuse
involving a minor family or household member, 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 [chapter
350], chapters 350 and 587, 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 an oral or
written report of the investigation's progress on or before
the hearing date.

1991 Haw. Sess. Laws Act 141, § 3 at 366 (brackets and underscoring in
original).

(continued...)

15
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

educates the public about child abuse law while Chapter 587

outlines the procedures used to protect children." S. Stand.

Comm. Rep. No. 189 in 1991 Senate Journal, at 863.

The key amendment relevant to this appeal occurred in

2007, Act 108, as follows:
SECTION 1. Section 586-10.5, Hawaii Revised Statutes,
is amended to read as follows:
"§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 587, 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 [an oral or] a written report [of the investigation's
progress on or] 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 by 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."

SECTION 2. Statutory material to be repealed is
bracketed and stricken. New statutory material is
underscored.

2007 Haw. Sess. Laws Act 108, §§ 1-2 at 187 (brackets,

strikeouts, and underscoring in original). Prior to this

amendment, the last sentence of the statute read, "The department

of human services shall provide the family court with an oral or

written report of the investigation's progress on or before the

hearing date." HRS § 586-10.5 (2006). The 2007 amendment

deleted the language that the DHS report contain the

15
(...continued)

16
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"investigation's progress" and required DHS to include the

"disposition of the referral" in its report to the family court.

The legislative discussions on the 2007 amendments

focused on the other new requirements of a written report and

deletion of the oral report option,16 and the due process

requirement of timely notice of DHS's report to the parties.17

On the critical change relevant here, there appears to be no

specific explanation as to why the content requirement of the

report was changed to mandate that a "disposition" of the child

abuse referral be included in the report. While no explanation

appears in the legislative history, the new requirement

specifically mandating a disposition be included is clear.

Based on the foregoing, we conclude that under HRS §

586-10.5, it is not sufficient for DHS to merely report on the

status or progress of its investigation into the child abuse

allegations. The report from DHS submitted to a family court

pursuant to HRS § 586-10.5 must contain a disposition, i.e. the

final result of the investigation or assessment of a child abuse

16
The Conference Committee Report states, "Your Committee finds that
reports made by the Department of Human Services to the family court should be
made in writing to ensure that a written record is established[.]" H. Conf.
Comm. Rep. No. 33 in 2007 Senate Journal, at 1016. The change was
specifically addressed, to "[d]elete the option that would allow the
Department of Human Services to provide an oral report regarding the
dispositions of referrals made to the department in cases where there are
allegations of domestic abuse involving minors or incapacitated persons[.]"
Id.
17
Regarding the requirement of timely notice to the parties, the
legislative history indicates, "The purpose of this bill is to provide basic
due process in Family Court protective order proceedings alleging domestic
abuse by requiring that the Department of Human Services (DHS) report of the
matter be provided to the parties at least two days before the hearing, if
possible." H. Stand. Comm. Rep. No. 1683 (2007), available at
https://www.capitol.hawaii.gov/session2007/commreports/
SB1161_HD1_HSCR1683_.pdf.

17
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

referral that DHS conducted pursuant to its procedures. The

disposition is the final result of DHS's "professional,

systematic gathering and evaluation" of pertinent information

"for the purpose of making decisions regarding confirmation of

child abuse and/or neglect" and child protection. HAR § 17-1610-

2. By requiring that a written report containing a disposition

by DHS be provided to the family court no later than the hearing

on the petition, and by requiring that the report be noted in the

family court's order dismissing or granting the restraining

order, the statute necessarily contemplates that the report must

be received by the family court before the hearing and before

entry of the family court's order. Mandating that the family

court has DHS's disposition information on child abuse

allegations, fulfills the legislative purposes of (1) ensuring

the assistance of the Department to the family court in domestic

abuse situations involving allegations of abuse against minors,

(2) giving the family court and responsible state agencies the

ability to better protect victims of domestic abuse, and (3)

providing due process for the parties. See S. Stand. Comm. Rep.
No. 1444, in 1987 Senate Journal, at 1521; H. Stand. Comm. Rep.

No. 1683 (2007), available at

https://www.capitol.hawaii.gov/session2007/commreports/SB1161_HD1

_HSCR1683_.pdf.

Father's challenge to the December 17, 2019 Order for

Protection has merit because the family court did not receive a

written report on the disposition of the referral, and no written

18
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

report on the disposition of the referral was filed by the family

court, before the Order for Protection was issued.
B. Father's remaining points of error

As to Father's third point of error, the family court

applied the correct "preponderance of the evidence" standard of

proof to the domestic abuse allegations in this case. See Kie v.

McMahel, 91 Hawai#i 438, 442, 984 P.2d 1264, 1268 (App. 1999)

(citing Coyle, 85 Hawai#i at 206, 940 P.2d at 413). The

"preponderance of the evidence" standard is constitutional when

applied in cases involving a protection order under HRS Chapter

586. Coyle, 85 Hawai#i at 206, 208, 940 P.2d at 413, 415.
We need not address Father's remaining points of error

at this time.
IV. CONCLUSION

Based on the foregoing, we vacate the family court's

December 17, 2019 Order for Protection, and remand to the family

court for further proceedings in accordance with this opinion and

with the following instructions:
(1) The Temporary Restraining Order granted on November

8, 2019 is hereby reinstated under Hawai#i Family Court Rules

(HFCR) Rule 26(g),18 and a new 180-day period under HRS § 586-

18
HFCR Rule 26(g) provides that an appellate court has the power "to
suspend, modify, restore, or grant a restraining order during the pendency of
an appeal or to make any order appropriate to preserve the status quo or the
effectiveness of the decree subsequently to be entered." At the point the
Order for Protection was entered on December 17, 2019, a TRO was in effect.
Because we vacate the Order for Protection, we restore the position of the
parties to status quo ante at the time of the show-cause hearing.

19
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

5(a)19 is hereby ordered, starting from the filing of our

judgment on appeal;

(2) The family court shall conduct a show-cause hearing

on Mother's Petition for an Order for Protection within 15 days

of the filing of our judgment on appeal, in accordance with the

15-day deadline of HRS § 586-5(b); and

(3) The family court shall not conclude the show-cause

hearing until it has received from DHS, and filed, a written

report on the disposition of the referral at issue in this case.

On the brief: /s/ Keith K. Hiraoka
Presiding Judge
PD,
Respondent-Appellant. /s/ Clyde J. Wadsworth
Presiding Judge

/s/ Karen T. Nakasone
Presiding Judge

19
HRS § 586-5(a) (2018) provides that, "A temporary restraining
order granted pursuant to this chapter shall remain in effect at the
discretion of the court, for a period not to exceed one hundred eighty days
from the date the order is granted or until the effective date, as defined in
section 586-5.6, or a protective order issued by the court, whichever occurs
first."

20