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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-AUG-2023
07:48 AM
Dkt. 69 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DS, Petitioner-Appellant,
v.
WG, Respondent-Appellee
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
HILO DIVISION
(CASE NO. 3DA221000050)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Petitioner-Appellant DS (Mother) appeals from the
"Order Dissolving Temporary Restraining Order for Protection"
entered by the Family Court of the Third Circuit, Hilo Division,
on July 22, 2022.1 For the reasons explained below, we affirm.
On January 27, 2022, Mother obtained a temporary
restraining order (TRO) against Respondent-Appellee WG (Father)
on behalf of herself and their Child. The TRO was to expire on
July 26, 2022. See Hawaii Revised Statutes (HRS) § 586-5(a)
2
(Supp. 2021).
1
The Honorable Jeffrey W. Ng presided.
2
HRS § 586-5 (Supp. 2021) provides, in relevant part:
Period of order; hearing. (a) 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
(continued...)
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At the February 8, 2022 show-cause hearing, Mother
informed the family court that the Hawai#i Department of Human
Services (DHS) would be filing a report. The hearing was
continued to allow DHS to complete its report. The DHS Child
Welfare Services Branch (CWS) filed its Report on March 24, 2022.
At the continued show-cause hearing, Father requested
an evidentiary hearing. Father also requested visitation pending
the evidentiary hearing. The family court heard testimony from
Marce Mossman, the CWS social worker who prepared the Report.
After hearing counsel's arguments, the family court stated it
would allow Father to have supervised visits with Child. The
amended TRO was filed on March 29, 2022. An evidentiary hearing
was scheduled for June 28, 2022.
On June 6, 2022, Mother moved for an order allowing
Child to testify at the evidentiary hearing, and for appointment
of a guardian ad litem (GAL), under Hawai#i Family Court Rules
(HFCR) Rule 45.1. Carol Ann Plummer, Ph.D. was appointed GAL for
Child "for the sole purpose of making a determination if child
should testify[.]"
The evidentiary hearing began on June 28, 2022. The
CWS Report was received into evidence by stipulation. The family
court heard testimony from Mossman, Dr. Plummer, and Mother.
Child wasn't allowed to testify. At the end of the day, while
Mother was on the witness stand, the hearing was continued to
July 22, 2022.
On July 20, 2022, Mother filed a motion to continue the
evidentiary hearing. The hearing resumed on July 22, 2022.
Mother appeared by telephone. The family court denied the motion
to continue. At Mother's request, the family court judicially
2
(...continued)
hundred eighty days from the date the order is granted or
until the effective date, as defined in section 586–5.6, of
a protective order issued by the court, whichever occurs
first, including, in the case where a temporary restraining
order restrains any party from contacting, threatening, or
physically abusing a minor, for a period extending to a date
after the minor has reached eighteen years of age.
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noticed the records in Mother's and Father's pending divorce
cases.3 No further testimony was offered. After hearing
arguments from counsel, the family court found that Mother had
not proven the allegations contained in her petition by a
preponderance of the evidence, and orally dissolved the TRO. The
written Order was entered that day. This appeal followed.
Mother contends that the family court erred by:
(1) granting visitation to Father "without a hearing or
evidence"; (2) prohibiting Child from testifying; (3) refusing to
allow Mother's witnesses to testify; (4) refusing to admit
Mother's exhibits into evidence; (5) denying Mother's motion to
continue the evidentiary hearing; and (6) dissolving the TRO.
[T]he family court possesses wide discretion in making its
decisions and those decision[s] will not be set aside unless
there is a manifest abuse of discretion. Thus, we will not
disturb the family court's decisions on appeal unless the
family court disregarded rules or principles of law or
practice to the substantial detriment of a party litigant
and its decision clearly exceeded the bounds of reason.
Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)
(citation omitted).
(1) Mother argues that the family court abused its
discretion by amending the TRO "without notice to" Mother,
"without an evidentiary hearing[,]" and without "findings or
legal basis[.]" The argument is without merit. During the
March 29, 2022 hearing, after Father requested visitation, Mother
stated, "if the Court is inclined to grant visitation that it be
supervised at Parent's, Inc. or the Y three hours in duration,
once a week." The CWS Report was in the record, and the family
court heard testimony from Mossman, the social worker who
prepared the report. Mossman explained that "DHS didn't confirm
3
WG v. DG, JIMS 3DV121000235, and DS v. WG, JIMS 3DV121000239. The
record does not indicate that Mother provided the family court with copies of
the records in the divorce cases or directed the family court's attention to
any orders entered in the divorce cases. See Hawaii Rules of Evidence (HRE)
Rule 201(d) (2016) ("A court shall take judicial notice if requested by a
party and supplied with the necessary information.") (emphasis added).
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[the] allegations" against Father.4 On this record, we cannot
say that the family court abused its discretion by amending the
TRO to allow Father supervised visitation at the YMCA Visitation
Center.
(2) Mother argues that the family court abused its
discretion by not allowing Child to testify. HFCR Rule 45.1
requires family court approval before any child is summoned to
appear as a witness. The family court heard testimony from
Dr. Plummer, Child's GAL. Dr. Plummer testified that she was
ordered "to understand if it would be in [Child's] best interest
to speak or if that could be upsetting or traumatizing to
[Child]." She interviewed Mother, Father, and Child. She read
the CWS Report. She testified on cross-examination:
Q. Do you believe that it would be in the best
interest of the child to testify in court before her father
and mother in the courtroom?
A. I don't believe that would be in [Child's] best
interest.
. . . .
Q. So if [Child] is not able to speak with the
Judge in chambers but in fact needs to testify in court with
both mother and father present, do you believe it is in
[Child's] best interest to do so?
A. I think that would be far too stressful for
[Child].
The family court denied Mother's motion, finding "that it is not
in the best interest of [Child] to testify in court in front of
[Mother and Father] and subject to cross-examination." On this
record, we cannot say that the family court abused its discretion
by accepting Dr. Plummer's opinion about Child's best interests
and not allowing Child to be called as a witness and be subject
to cross-examination.
4
The contents of the CWS Report, and Mossman's testimony, are
discussed in more detail below in connection with Mother's sixth point of
error.
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(3) Mother argues that the family court abused its
discretion by refusing to allow Mother's witnesses to testify.
Mother cites pages 81-86 of the transcript of proceedings on
June 28, 2022, to support her argument. Those pages show that
the family court allowed Mother to call Child's tutor, but the
record does not indicate that Mother called the tutor as a
witness. Mother made an offer of proof for a witness who would
testify about "[Mother]'s intelligence and honesty and
truthfulness and the minor child's ability to testify." The
family court disallowed the witness. The family court did not
abuse its discretion because Mother's character for truthfulness
had not been attacked, Hawaii Rules of Evidence (HRE)
Rule 608(a)(2) (2016), and Child's ability to testify was not at
issue because the family court had already ruled that Child
couldn't be called as a witness. The cited pages of the
transcript do not contain any other rulings by the family court.
(4) Mother argues that the family court abused its
discretion by refusing to admit her exhibits 1, 9, and 12 into
evidence. Mother stated that exhibit 1 was the amended TRO. The
family court took judicial notice of the amended TRO. Mother
argued it should have been admitted into evidence under HRE
Rules 801, 802, 803 and 804 because Mother and Child were
unavailable as witnesses. HRE Rule 801 contains definitions;
Rule 802 states the hearsay rule; and Rules 803 and 804 contain
exceptions to the hearsay rule. The amended TRO was a family
court order; it didn't contain any statement by Mother or Child.
The family court did not err by refusing to admit Mother's
Exhibit 1 into evidence.
Mother's counsel represented to the family court that
exhibit 9 was "a transcribed statement of [Child], who recorded a
memorandum on a phone on January 25th, 2022, around 8:00 p.m."
Mother's counsel represented that exhibit 12 was "electronic
messages made between [Mother] and [Father] involving [Child]"
that purported to show "the kind of communications that occur
which give rise to the allegations of harassment and threat of
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harm and actual harm to [Mother] and herself." The family court
denied Mother's requests based on lack of foundation. Mother
presented no witness to identify or authenticate exhibits 9
or 12. The family court did not err by denying admission for
lack of foundation. HRE Rule 901 (2016) ("Requirement of
authentication or identification").
(5) Mother argues that the family court erred by
denying her motion to continue the evidentiary hearing. "A court
has the discretion to grant or refuse a continuance of a
proceeding in the orderly administration of justice." Sapp v.
Wong, 62 Haw. 34, 41,
609 P.2d 137, 142 (1980) (citations
omitted). We review for abuse of discretion.
Id.
Mother's motion to continue was based upon a doctor's
note. The family court granted Mother's request to file the
doctor's note as a confidential document. The opening brief does
not cite the record to direct us to the doctor's note. According
to the transcript, Father's counsel argued that the doctor's note
"doesn't say the nature of the illness. It doesn't say anything.
It just says, [']hi, excuse her from court[.']" Mother was in
attendance by telephone, but wasn't asked to explain her symptoms
to the family court. Father's counsel also pointed out that "the
TRO expires on Tuesday."5 The family court denied the
continuance because it already had two evidentiary hearings set
for Monday, TROs set for Tuesday, and another evidentiary hearing
set for Tuesday afternoon, so there was no time to continue the
hearing before the TRO expired. Mother didn't ask to testify by
telephone. On this record, we cannot say that the family court
abused its discretion by denying Mother's motion to continue the
evidentiary hearing.
(6) Mother argues that the family court abused its
discretion "when it dissolved the petition with prejudice[.]"
Mother's petition was based upon her allegation of Father's
5
We take judicial notice, pursuant to HRE Rule 201 (2016), that
July 22, 2022, the date of the hearing, was a Friday. The statutory
expiration for the TRO was Tuesday, July 26, 2022. See HRS § 586-5(a).
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conduct while Child and a Friend were having a sleep-over at
Father's house. Mother stated that Child said Father came into
their room and "bent down to look at [Friend's] private area."
Father allegedly left the room, "then came back and put his hand
on [Friend]'s breast."
Mossman (the CWS social worker) interviewed Child.
Child told Mossman "she had just woken up and was unsure if she
was seeing correctly." Mossman interviewed Father. Father
"denied any sexual behavior or activity towards" Friend.
Mossman met with Friend. Friend "denied any touching by" Father,
"has never felt uncomfortable in [Father's] care[,]" and "was
adamant that [Father] touching her is 'a lie', and she does not
know why [Child] is saying this." Mossman met with Friend's
mother. Friend's mother "does not believe that any sexual
activity toward [Friend] occurred[,]" "shared that [Friend] is a
very light sleeper who would wake up if touched," "is also
confident that [Friend] would tell her if anything uncomfortable
happened at [Father]'s home[,]" and "[s]ince [Father] discussed
the allegations in the TRO with her, [Friend's mother] has had
several conversations with [Friend] and [Friend] denies any
touching. [Friend]'s only concern was why [Child] was saying
that something like this happened." The CWS Report stated that
"DHS did not confirm [Child's] allegations." Mossman testified
during the first evidentiary hearing that DHS did not consider it
a sex abuse case "because the victim [Friend] has denied that
anything occurred." Mossman also testified that "the department
has not determined that the child is under any risk for harm at
this time."
"It is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of the evidence; this is the province of the trier of
fact." In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001)
(cleaned up). On this record, we cannot conclude that the family
court abused its discretion by dissolving the TRO and dismissing
Mother's petition with prejudice.
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For the reasons explained above, the "Order Dissolving
Temporary Restraining Order for Protection" entered by the family
court on July 22, 2022, is affirmed.
DATED: Honolulu, Hawai#i, August 8, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Jamae K. K. Kawauchi, Presiding Judge
for Petitioner-Appellant.
/s/ Clyde J. Wadsworth
Jo Kim, Associate Judge
for Respondent-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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