NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-JAN-2024
07:53 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF P.L.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 22-00150)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and McCullen, JJ.)
Appellant Father (Father) appeals from the Orders
Concerning Child Protective Act (Orders), entered on February 9,
2023, in the Family Court of the First Circuit (Family Court).1/
The Family Court ordered, among other things, continued foster
custody of Father's child, P.L. (Child).
Child was born in August 2021. On October 5, 2022,
Father was arrested for attempted murder for allegedly stabbing
Child's mother (Mother) while she held Child in her arms. A
police officer took protective custody of Child pursuant to
Hawaii Revised Statutes (HRS) § 587A-8 (2018), and custody was
transferred to Petitioner-Appellee Department of Human Services
(DHS). DHS assumed temporary foster custody pursuant to HRS §§
587A-8 and 587A-9 (2018) and confirmed the threat of abuse and
neglect by Mother and Father.
On October 10, 2022, DHS filed a Petition for Temporary
Foster Custody of Child (Petition), alleging that Child's
physical or psychological health or welfare was subject to
imminent harm or threatened imminent harm by the acts or
omissions of Child's family, including: (1) Father's arrest for
1/
The Honorable Brian A. Costa presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
allegedly stabbing Mother while she held Child; (2) Child being
left with no legal caregiver or custodian willing and able to
provide her with a safe family home; and (3) Mother and Father's
history of drug use and Father's history of domestic violence.
On October 12, 2022, at the initial court hearing on the
Petition, Father was provided court-appointed legal counsel, and
the Family Court confirmed temporary foster custody.
On January 30, 2023, Father's adjudication trial was
held. All parties and their respective counsel were present.
The court heard testimony from Raquel Taguchi (Taguchi), the
assigned DHS social worker supervisor. All parties stipulated to
Taguchi's expertise as a social worker in the area of child
protective and child welfare services. Taguchi testified, among
other things, that in February 2022, the safety concerns for
Child were domestic violence and substance abuse, and following
the October 5, 2022 incident, the DHS crisis response team and
Mother reported to her that Father had stabbed Mother while
holding Child. Taguchi further testified that Father was unable
to provide Child with a safe and stable environment as he
remained incarcerated and had a substance abuse history. The
Family Court found Taguchi's testimony to be credible.
The Family Court entered the Orders on February 9,
2023, and related Findings of Fact and Conclusions of Law
(FOFs/COLs) on March 15, 2023. The court found by a
preponderance of the evidence that
based upon the credible testimony and the report(s)
submitted pursuant to HRS §§ 587A-7 (2018) and 587A-l8
(2018) and the record herein, . . . there is an adequate
basis to sustain the Petition in that the Child is a child
whose physical or psychological health or welfare has been
harmed or is subject to threatened harm by the acts or
omissions of the Child's family.
The court also concluded that "Father is currently not willing
and able to provide the Child with a safe family home, even with
the assistance of a service plan and, as such, foster custody of
the Child is appropriate." As relevant here, the court took
jurisdiction over Father, adjudicated the Petition, and continued
foster custody of Child.
On appeal, Father appears to contend that the Family
Court erred in concluding that Father caused harm or threatened
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harm to Child, because: (1) Taguchi's testimony about the
stabbing incident was inadmissible hearsay; and (2) "the record
contains no admissible evidence that [Father] harmed or
threatened to harm his child by an act or omission." Relatedly,
Father appears to challenge FOFs 22, 29, 30, 34, 37, and 38, and
COL 8.2/
2/
The challenged FOFs and COL state:
FINDINGS OF FACT
. . . .
22. On October 5, 2022, the Child was left with no
legal caretaker and the Child not only witnessed domestic
violence between Mother and Father, but was also in a highly
dangerous situation in which Father stabbed Mother while she
was holding the Child in her arms.
. . . .
29. On October 5, 2022, the DHS received another
report of physical neglect, threat of abuse and threat of
neglect, that Father had stabbed Mother during an argument
while Mother was holding the Child in her arms.
a. Father was arrested for attempted murder by the
Honolulu Police Department and Mother was taken to the
hospital with stab wounds.
b. A police officer took protective custody of the
Child, who was 22-months old at the time. Custody was
transferred to the DHS and the DHS assumed temporary foster
custody.
30. Due to the stab wounds inflicted by Father,
Mother was admitted to the Intensive Care Unit at The
Queen's Medical Center and she was eventually released just
prior to November 2022.
. . . .
34. Based upon the second report to DHS, Father not
only engaged in domestic violence with the Child present,
but Father also placed the Child is [sic] a highly dangerous
situation when he stabbed Mother while she was holding the
Child.
. . . .
37. Father has a history of substance abuse which
poses a high risk of harm to the Child.
Assessments
38. The Child's physical or psychological health or
welfare has been harmed and is subject to threatened harm by
the acts or omissions of the Child's family.
. . . .
(continued...)
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Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Father's contentions as follows:
(1) Father contends that "[DHS] did not provide
admissible evidence of harm or threatened harm by the parents
because the basis of [Taguchi's] opinion that there was harm or
threatened harm is hearsay evidence that is not acceptable to
prove factually that [Father] stabbed [M]other while she was
hold[ing] the baby on October 5, 2022."
At trial, Father stipulated to Taguchi's expertise in
the area of child protective and child welfare services. Father
did not object to or move to strike Taguchi's testimony
concerning the stabbing incident as inadmissible hearsay at any
time before the close of evidence.3/ Father merely stated in
closing argument that "there is no admissible evidence presented
today to establish that [F]ather stabbed [M]other." This was
insufficient to preserve Father's current hearsay argument.
Under HRE Rule 103(a)(1), an "[e]rror may not be predicated upon
a ruling which admits or excludes evidence unless a substantial
right of the party is affected, and . . . [i]n case the ruling is
2/
(...continued)
CONCLUSIONS OF LAW
. . . .
8. The Child's physical or psychological health or
welfare has been harmed and is subject to threatened harm by
the acts or omissions of the Child's family.
3/
Father also did not raise a timely hearsay objection to the
October 7, 2022 Safe Family Home Report (10/7/22 SFHR), which was admitted
into evidence as Exhibit 1. The 10/7/22 SFHR stated, in relevant part:
On 10/05/22, [Father] was arrested for attempted murder
. . . as it was reported, [Father] stabbed [Mother].
[Mother] was holding [Child] at the time of the
incident. . . .
It was reported, [Mother] and [Father] got into an argument
a few days prior to the stabbing and [Father] kicked
[Mother] out of the home. [Mother] came to the home on
10/05/22 to pick up [Child]. At that time, [Mother] and
[Father] got into an argument and [Father] stabbed [Mother].
[Mother] was holding [Child] in her arms when [Father]
stabbed [Mother].
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one admitting evidence, a timely objection or motion to strike
appears of record, stating the specific ground of objection, if
the specific ground was not apparent from the context[.]"
(Emphasis added; format altered.) The purpose of requiring a
specific objection to the introduction of inadmissible testimony
is to inform the trial court of the error. See State v. Long, 98
Hawai#i 348, 353, 48 P.3d 595, 600 (2002). Because Father failed
to object to or move to strike the challenged testimony, Father's
hearsay argument is deemed waived. See State v. Engelby, 147
Hawai#i 222, 232-33, 465 P.3d 669, 679-80 (2020); State v.
Kawakami, No. CAAP-XX-XXXXXXX, 2021 WL 2268834, at *2 (Haw. App.
June 3, 2021) (SDO) (noting that the appellant failed to timely
object to or move to strike testimony under HRE Rule 103(a)(1)
when he addressed the issue only during closing argument).
Father makes no other discernible argument as to why
FOFs 22, 29, 30, and 34 are clearly erroneous.4/ His challenge to
these FOFs is therefore without merit.
(2) Father asserts more generally that "the record
contains no admissible evidence that [Father] harmed or
threatened to harm his child by an act or omission." This
contention appears to challenge FOF 38 and COL 8, and is also
without merit.
In addition to the Family Court's FOFs regarding the
stabbing incident, the court made other findings that support FOF
38 and COL 8, which Father does not contest on appeal. These
FOFs include the following:
FINDINGS OF FACT
. . . .
25. The Child is vulnerable due to her young age and
being completely dependent on adult caretakers to meet her
needs.
. . . .
32. The Child had no legal caretaker when protective
custody was taken by the police officer as Mother was
admitted to the hospital and Father was taken into custody
by the police.
4/
For example, Father does not cite any evidence in the record that
contradicts or undermines any of the challenged FOFs, and we have found none.
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. . . .
35. Father's extreme violent behavior poses a high
risk of harm to the Child and demonstrates his inability to
appropriately parent and to prioritize the Child's needs
over his own.
36. Due to Father's incarceration, Father is unable
to provide supervision, care, protection, nor a home/shelter
for the Child.
. . . .
40. It is contrary to the immediate welfare of the
Child to remain in the family home.
41. Father is currently not willing and able to
provide the Child with a safe family home, even with the
assistance of a service plan.
These uncontested FOFS are binding on this court and
further support the Family Court's mixed conclusions of fact and
law in FOF 38 and COL 8. See In re Doe, 99 Hawai#i 522, 538, 57
P.3d 447, 463 (2002) ("Unchallenged findings are binding on
appeal." (quoting Poe v. Haw. Labor Rels. Bd., 97 Hawai#i 528,
536, 40 P.3d 930, 938 (2002))). Accordingly, we conclude that
FOF 38 and COL 8 are supported by substantial evidence in the
record, and we are not left with a definite and firm conviction
that a mistake has been made.5/ See In re Doe, 95 Hawai#i 183,
190, 20 P.3d 616, 623 (2001).
For the reasons discussed above, we affirm the Orders
Concerning Child Protective Act, entered on February 9, 2023, in
the Family Court of the First Circuit.
DATED: Honolulu, Hawai#i, January 5, 2024.
On the briefs:
/s/ Katherine G. Leonard
Herbert Y. Hamada Presiding Judge
for Father-Appellant.
/s/ Clyde J. Wadsworth
Kellie M. Kersten and Associate Judge
Julio C. Herrera,
Deputy Attorneys General, /s/ Sonja M.P. McCullen
for Petitioner-Appellee. Associate Judge
5/
Father presents no discernible argument as to why FOF 37 is
clearly erroneous. In any event, FOF 37 is supported by substantial evidence
in the record, including the 10/7/22 SFHR, and we are not left with a definite
and firm conviction that a mistake has been made.
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