NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000051

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.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000051

19-JAN-2021

07:55 AM

Dkt. 53 SO
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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:

Steven J. Kim,

for Respondent-Appellant

/s/ Katherine G. Leonard

Presiding Judge

/s/ Clyde J. Wadsworth,

Associate Judge

/s/ Karen T. Nakasone,

Associate Judge

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