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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-DEC-2023
07:56 AM
Dkt. 98 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
A.S. and on behalf of a minor,
Petitioner-Appellee,
v.
R.L., Respondent-Appellant
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(FC-DA NO. 3DA221000128)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)
Self-represented Respondent-Appellant R.L. (Father)
appeals from the Order for Protection (Order), entered on
August 29, 2022, in the Family Court of the Third Circuit (Family
Court).1/ Following an evidentiary hearing, the Family Court
enjoined Father from, among other things, threatening, abusing,
or contacting Petitioner-Appellee A.S. (Mother) and their minor
child (Child) for a period of approximately ten years, pursuant
to Hawaii Revised Statutes (HRS) § 586-5.5 (Supp. 2021).
On appeal, Father appears to contend that the Family
Court abused its discretion or otherwise erred in: (1) issuing
the Order absent any evidence that the Child "was at risk of
imminent harm"; (2) acting with "obvious bias" during the hearing
by, among other things, "dismiss[ing]" or failing to acknowledge
Father's "valid objections"; (3) failing to view social media
videos admitted into evidence; (4) failing to allow Father to
1/
The Honorable Jeffrey W. Ng presided.
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present a closing argument at the hearing; (5) admitting into
evidence a Department of Human Services report submitted to the
Court on August 23, 2022, as well as a series of emails sent to
Mother; and (6) allowing Patrice Bell, a Child Adult Protective
Service Specialist for Child Welfare Services, to testify as an
expert.2/
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Father's contentions as follows:
The issue we find dispositive is whether the Family
Court abused its discretion in failing to view certain social
media videos admitted into evidence, before rendering its
decision that Mother had proven by a preponderance of the
evidence that the allegations underlying her request for an order
of protection were true. Father argues that the videos at issue
– Exhibits G, H, I, and J – "show prior inconsistent statements"
made by Mother, including that Mother "lied in her testimony when
she said [Father] followed her[.]" Father asserts that the
Family Court admitted these exhibits into evidence, but did not
review them before announcing its decision to issue the Order.
The hearing transcript, which reflects the following
discussion, appears to support Father's contention:
THE COURT: What they are trying to say is that you
made prior inconsistent statements. Okay?
[MOTHER]: Okay.
THE COURT: So, I mean, you can look at the videos to
see whether they are authentic or not. . . .
. . . .
THE COURT: . . . So then why don't the parties look
at [the videos] and then let me know how that goes.
. . . .
2/
Father's apparent points of error have been restated and reordered
for clarity. Father's opening brief does not comply with HRAP Rule 28(b) in
numerous material respects. Nevertheless, Hawai #i appellate courts have
"consistently adhered to the policy of affording litigants the opportunity 'to
have their cases heard on the merits, where possible.'" Marvin v. Pflueger,
127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012) (quoting Morgan v. Plan. Dep't,
Cty. of Kauai, 104 Hawai#i 173, 180–81, 86 P.3d 982, 989–90 (2004)).
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THE COURT: . . . .
[Mother], did you have a chance to review the
videos?
[MOTHER]: Yeah, it's my TikTok videos.
THE COURT: So you are not disputing the authenticity?
[MOTHER]: No, they are authentic. They are my TikTok
videos that I did post.
THE COURT: Okay. What is your offer of proof,
[Father's counsel], as to what the TikTok videos shows?
[FATHER'S COUNSEL]: Yes, so the TikTok, Exhibit G my
offer of proof is it's from January 2nd, 2022, allegedly
after the incident that occurred that shows the parties or
[Child] at least having a good time and not being fearful of
her life.
[MOTHER]: Yes.
[FATHER'S COUNSEL]: Exhibit H is a video of -- posted
the day after the TRO was filed, and we would show that that
goes against her testimony that she's afraid of [Father].
Her posture is more of look at me now, I believe that was
the name of the song that was being played.
I is a video of [Mother] where she makes a statement
regarding February 28th, posted on February 28th saying that
her stalker followed her around the block and that her
stalker -- or had someone follow her and is ambiguous.
It's a prior inconsistent statement. She does not say
that she saw [Father] or that she could confirm that
[Father] was driving the vehicle. So it goes against that
statement.
Exhibit J is from February -- May 14, 2021. It shows
bias, interest and motive. She is saying when is [Father]
going to go to jail. When is he going to pay for the
consequences --
. . . .
[FATHER'S COUNSEL]: . . . The rest, Judge, I reviewed
it. The basis isn't that strong, so I won't move to enter
those. So I'm looking at H, I, J -- sorry, G, H, I, J.
THE COURT: [Mother]? What's your position on -- you
are saying they are authentic?
[MOTHER]: They are my TikTok videos, your Honor. I
am a content creator on TikTok. I just want to put it on
record, there is nothing wrong or against --
. . . .
THE COURT: G, H, I and J are received into evidence.
(RESPONDENT'S EXHIBITS G, H, I AND J
WERE MARKED FOR IDENTIFICATION AND
RECEIVED IN EVIDENCE.)
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THE COURT: So with that, do you still need [the
authenticating witness] to testify?
[FATHER'S COUNSEL]: No, I don't.
THE COURT: All right. And you have no further
witnesses, [Father's counsel]?
[FATHER'S COUNSEL]: No, I have no further witnesses.
THE COURT: Okay. Thank you. You can all be seated.
So the Court is prepared to rule.
. . . .
Based upon the credible evidence and testimony, and
considering the exhibits, the Court finds [Mother] credible.
Does not find [Father] and his witnesses credible.
So the Court is going to find that [Mother] proved the
allegations contained in the petition by a preponderance of
the evidence. [Father] has failed to show cause why order
should not be continued, and a protective order is necessary
to prevent domestic abuse or occurrence of abuse.
. . . .
Mother does not dispute that the Family Court did not
view the videos at issue before announcing its decision. Indeed,
Mother acknowledges that "the judge did not view the videos, but
admitted them anyway when [Mother] did not object to their
admission." She argues, however, that the videos have "minimal
probative value" and "were not used as the basis of [the Court's]
ruling."
This misses the point. HRS § 586-5.5 provides in
relevant part:
(a) If, after hearing all relevant evidence, 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 order that a protective order be issued
for a further fixed reasonable period as the court deems
appropriate, including, in the case where a protective order
restrains any party from contacting, threatening, or
physically abusing a minor, a fixed reasonable period
extending to a date after the minor has reached eighteen
years of age.
(Emphasis added.) The express language of HRS § 586-5.5 thus
requires the trial court to hear all relevant evidence before
issuing a protective order pursuant to the statute's terms.
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Here, the videos at issue were offered as evidence of
Mother's purported "prior inconsistent statements" and her
alleged "bias, interest and motive." The Family Court appears to
have admitted the videos into evidence on these grounds.
Although Mother disputes the probative value of the videos, there
is no dispute they constitute relevant evidence and no indication
they are merely cumulative of other admissible evidence.
Pursuant to HRS § 586-5.5, the court was thus required to hear,
i.e., view, the admitted videos before issuing the Order. See
HRS § 586-5.5(a); see also People ex rel. Sherman v. Cryns, 748
N.E.2d 821, 824 (Ill. App. Ct. 2001) (determining that the trial
court abused its discretion in ruling on a request for
preliminary injunction without viewing the videotape that it had
admitted into evidence). In failing to do so, the court abused
its discretion. Cf. Tabieros v. Clark Equip. Co., 85 Hawai#i
336, 376-77, 944 P.2d 1279, 1319-20 (1997) (holding that the
trial court abused its discretion in excluding relevant
videotapes from evidence without first viewing them); Lau v.
Allied Wholesale, Inc., 82 Hawai#i 428, 438, 922 P.2d 1041, 1051
(App. 1996) (ruling that the trial court abused its discretion in
admitting a videotape into evidence without first reviewing its
contents).
Given our ruling, we do not reach Father's remaining
contentions, except to conclude that Father has not shown that
the Family Court acted with bias against him. See Aga v.
Hundahl, 78 Hawai#i 230, 242, 891 P.2d 1022, 1034 (1995).
Accordingly, we vacate the Order and remand the case to
the Family Court for a new hearing. In doing so, we do not mean
to suggest that the videos at issue are determinative of the
issues raised in Mother's petition. We simply conclude that the
Family Court abused its discretion in not viewing this evidence
once it was admitted, before announcing the court's decision and
entering the Order.
For the reasons discussed above, the Order for
Protection, entered on August 29, 2022, in the Family Court of
the Third Circuit, is vacated, and the case is remanded to the
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Family Court for a new hearing pursuant to HRS §§ 586-5 and 586-
5.5.
DATED: Honolulu, Hawai#i, December 13, 2023.
On the briefs:
/s/ Keith K. Hiraoka
R.L., Presiding Judge
Self-represented Respondent-
Appellant.
/s/ Clyde J. Wadsworth
William Dean Associate Judge
(Ohana Law Firm)
for Petitioner-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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