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

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

IN THE MATTER OF JK

NO. CAAP-17-0000922

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT

(CASE NO. FC-M NO. 17-1-041K)

JUNE 10, 2021

GINOZA, CHIEF JUDGE, HIRAOKA AND NAKASONE, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

"[C]ivil commitment of the mentally ill for any purpose

constitutes a significant deprivation of liberty that requires

due process protection." In re Doe, 102 Hawai#i 528, 543, 78

P.3d 341, 356 (App. 2003) (cleaned up) (quoting Addington v.

Texas, 441 U.S. 418, 425 (1979)). In this case, RespondentAppellant JK was involuntarily hospitalized under Hawaii Revised

Statutes (HRS) Chapter 334. He appeals from the "Order Granting

Petition for Involuntary Hospitalization" entered by the Family

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000922

10-JUN-2021

08:10 AM

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Court of the Third Circuit on December 14, 2017.1 For the

reasons explained below we hold: (1) we have jurisdiction to

decide JK's appeal under the collateral consequences exception to

the mootness doctrine; and (2) the family court erred when it

found there was clear and convincing evidence that JK was

imminently dangerous to himself or others within the meaning of

HRS §§ 334-1 and 334-60.2. Accordingly, we reverse the Order

Granting Petition for Involuntary Hospitalization.

BACKGROUND

On November 21, 2017, JK was examined by Michael

McGrath, M.D. (Dr. McGrath), in the emergency room of the Kona

Community Hospital. Dr. McGrath was the attending psychiatrist

at the Hospital's Kalani Ola Behavioral Health Unit. JK's

family had reported "bizarre and disorganized behavior, . . .

decreased sleep, pressured speech, . . . some paranoid thinking,

some grandiose thinking, some poor judgment, some potentially

dangerous behaviors that led them to bring [JK] to the emergency

department."

Dr. McGrath obtained a history from JK and developed a

working diagnosis of bipolar disorder, manic. Dr. McGrath's

Certificate of Physician/Psychologist for Involuntary

Hospitalization (Certificate) was dated November 23, 2017, and

stated that JK was imminently and substantially dangerous to

other persons (not to himself) and that "family is frightened

because of impulsive, unpredictable behavior[.]" Dr. McGrath

1 The Honorable Aley K. Auna, Jr. presided.

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certified that JK was not capable of realizing he needed

treatment or of making a rational decision about his treatment. 

Dr. McGrath had JK involuntarily admitted to the Hospital.

PROCEDURAL HISTORY

On November 24, 2017, the State of Hawai#i Department

of Health filed a petition to involuntarily hospitalize JK under

HRS Chapter 334. HRS § 334-60.2 (Supp. 2016) provides:

§ 334-60.2 Involuntary hospitalization criteria. A

person may be committed to a psychiatric facility for

involuntary hospitalization, if the court finds:

(1) That the person is mentally ill or suffering

from substance abuse;

(2) That the person is imminently dangerous to self

or others; and

(3) That the person is in need of care or treatment,

or both, and there is no suitable alternative

available through existing facilities and

programs which would be less restrictive than

hospitalization.

The first statutory criterion must be established "beyond a

reasonable doubt[,]" while the second and third criteria must be

established by "clear and convincing evidence[.]" HRS

§ 334-60.5(j) (Supp. 2016); see In re Doe, 102 Hawai#i 528, 529,

78 P.3d 341, 342 (App. 2003).

The following definitions apply:

"Dangerous to others" means likely to do substantial

physical or emotional injury on another, as evidenced by a

recent act, attempt or threat.

. . . .

"Dangerous to self" means the person recently has:

(1) Threatened or attempted suicide or serious

bodily harm; or

(2) Behaved in such a manner as to indicate that the

person is unable, without supervision and the

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assistance of others, to satisfy the need for

nourishment, essential medical care, shelter or

self-protection, so that it is probable that

death, substantial bodily injury, or serious

physical debilitation or disease will result

unless adequate treatment is afforded.

. . . .

"Imminently dangerous to self or others" means that,

without intervention, the person will likely become

dangerous to self or dangerous to others within the next

forty-five days.

HRS § 334-1 (2010 & Supp. 2016) (emphasis added).

The State's petition was supported by Dr. McGrath's

Certificate. The petition was heard on November 30, 2017. The

family court received testimony from Dr. McGrath and JK's spouse. 

The family court then ruled:

Um, the Court finds beyond a reasonable doubt that

[JK] is mentally ill. Uh, his diagnosis is bipolar disorder

manic. There -- the doctor provided and [JK's spouse]

supported a number of incidences [sic] of, uh, paranoid or

grandiose behavior, uh, with delusions, uh, that supports

that diagnosis. Uh, even while at the hospital he was

argumentative and could not adequately communicate.

Uh, the Court further finds that, um, [JK] needs

care and/or treatment and there is no suitable

alternative available which would be less restrictive

than hospitalization; uh, to wit, uh, [JK] has stated

in very certain terms that he's not gonna take any

medication and, uh, at least with regards to [JK's

spouse], uh, he would not listen to her.

What is very telling here is that [JK] prior to him

being at the hospital had no or very little sleep and, uh,

that is quite concerning to the Court. The -- and while at

the hospital and taking at least some of the medication, uh,

evidence has shown that he is sleep -- he is sleeping which

is a good thing.

Uh, but if [JK] follows through with what he stated to

others that he's gonna refuse taking medication when he gets

out, uh, the Court can surmise that he will revert back to

very little or no sleeping at all which is very concerning

to the Court.

Uh, the Court agrees with [JK], uh, there's been no

evidence presented that, uh, anything that was done with the

straight razor, uh, was harmful or dangerous to anyone. Uh,

he -- there's no indication that he used it to threaten

someone with, uh, or that he actually cut someone or himself

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with it. Uh, he was simply trying to teach his son how to

shave.

. . . .

So the Court can conclude based upon prior action, uh,

that, uh, if [JK] continues to not have any or sufficient

sleep and nourishment, he's taking Power Bars and nothing

else, uh, that if he doesn't have essential medical care,

uh, that there is a probability that death or substantial

bodily injury or serious physical debilitation will result

unless adequate treatment is afforded to him.

So the Court will find that the State has proven by

clear and convincing evidence that [JK] is imminently

dangerous to himself and others and that he needs care

and/or treatment and there is no suitable alternative

available which would be less restrictive than

hospitalization.

. . . [T]he petition is granted.

The Order Granting Petition for Involuntary Hospitalization was

entered on December 14, 2017. This appeal followed.

JURISDICTION

The State contends JK's appeal is moot because the

period of his involuntary hospitalization has expired and he is

no longer involuntarily hospitalized. "[M]ootness is an issue of

subject matter jurisdiction." Hamilton ex rel. Lethem v. Lethem,

119 Hawai#i 1, 4, 193 P.3d 839, 842 (2008). Accordingly, before

we reach the merits we must analyze whether we have jurisdiction

to decide this appeal. Pele Def. Fund v. Puna Geothermal

Venture, 77 Hawai#i 64, 67, 881 P.2d 1210, 1213 (1994) ("[E]very

court must . . . determine as a threshold matter whether it has

jurisdiction to decide the issue presented.") (citation omitted). 

The mootness doctrine is said to encompass the circumstances

that destroy the justiciability of a suit previously suitable for determination. Put another way, the suit must

remain alive throughout the course of litigation to the

moment of final appellate disposition. Its chief purpose is

to assure that the adversary system, once set in operation,

remains properly fueled. The doctrine seems appropriate

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where events subsequent to the judgment of the trial court

have so affected the relations between the parties that the

two conditions for justiciability relevant on appeal —

adverse interest and effective remedy — have been

compromised.

Hamilton, 119 Hawai#i at 5, 193 P.3d at 843 (quoting Lathrop v.

Sakatani, 111 Hawai#i 307, 312-13, 141 P.3d 480, 485-86 (2006))

(other citation omitted).

JK contends that the "collateral consequences"

exception to the mootness doctrine applies.

To invoke successfully the collateral consequences doctrine,

the litigant must show that there is a reasonable

possibility that prejudicial collateral consequences will

occur. Accordingly, the litigant must establish these

consequences by more than mere conjecture, but need not

demonstrate that these consequences are more probable than

not. This standard provides the necessary limitations on

justiciability underlying the mootness doctrine itself. 

Where there is no direct practical relief available from the

reversal of the judgment, as in this case, the collateral

consequences doctrine acts as a surrogate, calling for a

determination whether a decision in the case can afford the

litigant some practical relief in the future.

The array of collateral consequences that will preclude

dismissal on mootness grounds is diverse, and includes harm

to a defendant's reputation as a result of the judgment at

issue.

Hamilton, 119 Hawai#i at 8, 193 P.3d at 846 (quoting Putman v.

Kennedy, 900 A.2d 1256, 1261-62 (Conn. 2006)).

JK does not cite, nor have we found, any reported

Hawai#i appellate decision identifying reasonably possible

prejudicial collateral consequences of an order for involuntary

hospitalization. In In re PC, No. CAAP-15-0000015, 2017 WL

2602003 (Haw. App. June 15, 2017) (SDO), we applied the

collateral consequences doctrine to an appeal from an involuntary

hospitalization but we did not identify what prejudicial

collateral consequences were reasonably possible. Id. at *1 n.2.

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In Hamilton, the supreme court recognized that

"reputational harm" was sufficient to trigger application of the

collateral consequence exception. 119 Hawai#i at 9-11, 193 P.3d

at 847-49. Like the temporary restraining order at issue in

Hamilton, there is a reasonable possibility that the family

court's findings — that JK was mentally ill and imminently

dangerous to himself and others — and order of involuntary

hospitalization will cause harm to JK's reputation. We hold that

the reputational harm that could reasonably result from an order

of involuntary hospitalization under HRS § 334-60.2 is sufficient

to trigger the collateral consequences exception to the mootness

doctrine. We have jurisdiction to decide the merits of JK's

appeal.

POINTS OF ERROR

JK argues that the family court: (1) "committed plain

error, and violated [JK]'s constitutional right to a hearing

before a fair and impartial tribunal by its adversarial

questioning, and improper elicitation of evidence upon which the

family court specifically based its findings"; (2) "erred in

concluding that the State proved beyond a reasonable doubt that

[JK] is mentally ill"; and (3) "erred in concluding that there

was clear and convincing evidence that [JK] was imminently

dangerous to self or others."

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STANDARDS OF REVIEW

Constitutional Law

Questions of constitutional law are reviewed under the

"right/wrong" standard. State v. Lee, 149 Hawai#i 45, 49, 481

P.3d 52, 56 (2021).

Judicial Questioning of a Witness

"A trial judge's questioning of a witness is reviewed

on appeal for abuse of discretion." State v. Sprattling, 99

Hawai#i 312, 317, 55 P.3d 276, 281 (2002) (citations omitted). 

In this case, JK did not object to the family court questioning

or calling witnesses; accordingly, we review for plain error. 

The Hawai#i Supreme Court has stated:

[T]he plain error doctrine represents a departure from the

normal rules of waiver that govern appellate review, and, as

such, . . . an appellate court should invoke the plain error

doctrine in civil cases only when justice so requires[.] As

such, the appellate court's discretion to address plain

error is always to be exercised sparingly.

Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 458,

40 P.3d 73, 81 (2002) (cleaned up).

Findings of Fact and Conclusions of Law

A trial court's label of a finding of fact or a

conclusion of law is not determinative of the standard of review. 

Crosby v. State Dep't of Budget & Fin., 76 Hawai#i 332, 340, 876

P.2d 1300, 1308 (1994).

Findings of fact are reviewed under the "clearly

erroneous" standard. Birano v. State, 143 Hawai#i 163, 181, 426

P.3d 387, 405 (2018). A finding of fact is clearly erroneous

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when the record lacks substantial evidence to support the finding

or when, despite some evidence to support the finding, we are

left with the definite and firm conviction in reviewing all of

the evidence that a mistake has been committed. Id.

"[S]ubstantial evidence" is "credible evidence which is of

sufficient quality and probative value to enable a person of

reasonable caution to support a conclusion." In re Grievance

Arbitration Between State of Hawai#i Organization of Police

Officers and County of Kaua#i, 135 Hawai#i 456, 462, 353 P.3d 998,

1004 (2015) (citations omitted).

Conclusions of law are reviewed under the "right/wrong"

standard. Estate of Klink ex rel. Klink v. State, 113 Hawai#i

332, 351, 152 P.3d 504, 523 (2007). A conclusion of law that is

supported by the trial court's findings of fact and reflects an

application of the correct rule of law will not be overturned. 

Id. When a conclusion of law presents mixed questions of fact

and law, we review it under the "clearly erroneous" standard

because the court's conclusions are dependent on the facts and

circumstances of each individual case. Id.

DISCUSSION

1. The family court's questioning of witnesses did

not deprive JK of due process.

JK contends the family court violated his

constitutional right to due process by questioning witnesses and

eliciting improper evidence upon which it based the Order

Granting Petition for Involuntary Hospitalization. JK did not

object to the family court's questioning of Dr. McGrath or to its

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calling or questioning of JK's spouse, or otherwise raise this

issue below. Accordingly, we review for plain error.

In civil cases, the plain error rule is only invoked when

"justice so requires." We have taken three factors into

account in deciding whether our discretionary power to

notice plain error ought to be exercised in civil cases:

(1) whether consideration of the issue not raised at trial

requires additional facts; (2) whether its resolution will

affect the integrity of the trial court's findings of fact;

and (3) whether the issue is of great public import.

WW v. DS, 149 Hawai#i 123, 130, 482 P.3d 1084, 1091 (2021)

(citations omitted).

A trial judge has discretion to question a witness. 

Sprattling, 99 Hawai#i at 317, 55 P.3d at 281. This discretion

is particularly broad when questioning witnesses during a hearing

on a petition for involuntary hospitalization. "In [jury-waived

trials and hearings on evidentiary motions], it is the judge who

is the trier of fact, and, accordingly, there is no possibility

of jury bias; under the circumstances, the judge's duty to

clarify testimony and fully develop the truth in the case becomes

particularly heightened." Id. at 322-23, 55 P.3d at 286-87

(quoting State v. Hutch, 75 Haw. 307, 326 n.8, 861 P.2d 11, 21

n.8 (1993)). "However, when conducting such questioning, the

trial court must not exhibit bias or advocate for either

party[,]" nor should it "conduct an unduly extended examination

of any witness." Id. (citations omitted).

In this case, the family court questioned Dr. McGrath

on his testimony — elicited by the State — about what he had been

told by JK's family members. Dr. McGrath testified that the

family:

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brought up the issue of . . . [JK] stating things about a

straight razor to his son and using a straight razor and

being able to put his finger through metal because God had

given him that power.

. . . [T]he family was scared by these things and that

was partly what led to him being brought to the emergency

department.

The family court asked Dr. McGrath:

Is there any specific incidences [sic] where he

attempted to do this to the detriment of his safety or

others?

Like for instance using a straight razor, did he

actually do it or was he just talking about it and that's

what got them afraid?

THE WITNESS: Correct. Your Honor, I have limited

information as to whether an -- or a razor was on the table

or whether it was being -- I don't know 'cause I don't have

that information.

THE COURT: Okay. And, uh, what about putting finger

through metal? Did -- was there an actual incident that

that [sic] occurred pursuant to the -- 

THE WITNESS: The report was --

THE COURT: -- statements of the family?

THE WITNESS: The report of the family was that he had

stated to the son that he wanted the son to -- to watch how

he could put his finger through metal because God had given

him the ability to put his finger through a metal container,

and the son was disturbed and frightened by this 'cause it

clearly was a [sic] indication of not --

THE COURT: Right.

THE WITNESS: -- reasonable thinking.

THE COURT: Well, I -- okay. So there's no actual

incident where he actually injured himself by doing that --

THE WITNESS: No. No.

THE COURT: -- or was injurious of others?

THE WITNESS: Not to my knowledge.

THE COURT: Okay. Thank you.

(Emphasis added.)

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Dr. McGrath also testified — in response to questions

by the State — that he was not aware of any alternative programs

or facilities on Hawai#i Island that were less restrictive than

Kona Community Hospital's Kalani Ola Behavioral Health Unit. The

family court then asked him:

If he were to be released where would he go? Do you

know?

THE WITNESS: Uh, from statements that have been made

by [JK] my assumption is that he would return home.

JK's spouse was present in the courtroom during the

hearing on the State's petition. The family court asked her:

So I do have a question. If [JK] is released, uh,

Doctor McGrath said that he's actually -- that he thinks

that he'll be going -- the -- the place for him to go would

be home. I wanna ask [JK's spouse]. If he were --

[JK's SPOUSE]: Yes, Your Honor.

THE COURT: -- to be released today is he coming home?

[JK's SPOUSE]: At this time I don't think my husband

would be safe -- my -- my child and I would be safe with my

husband coming home without treatment. I'm very concerned

for his health and his safety as well.

THE COURT: Ma'am, why don't -- why don't you come up

here? Let's have you sworn in.

JK's spouse took the witness stand and was sworn. She described

her observations of JK, including the incident about the straight

razor: "he then stated that he had such a steady hand that he

could do all these things like the monks could do and that God

would use him as a vessel."

The family court then stated:

I think I understand what you're describing here. One of the

things that I have to make a decision on is whether [JK] is

imminently dangerous to himself or to others.

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Now, what you've described is a lot of bizarre

behavior, um, but -- but I'm really focusing upon that one

aspect of what I have to make a decision on.

And so if you can tell me what has he done in the

past? Maybe that would be -- what has he done in the past

that actually hurt either himself or others?

(Emphasis added.) After JK's spouse responded, the family court

gave the State and JK the opportunity to cross-examine. The

State cross-examined; JK had no questions. JK called no

witnesses after the State rested.

The family court's questioning of Dr. McGrath and JK's

spouse was limited to issues properly raised by the State's

petition under HRS § 334-60.2, and was appropriate in light of

the family court's "heightened" "duty to clarify testimony and

fully develop the truth[.]" Sprattling, 99 Hawai#i at 323, 55

P.3d at 287. The family court did not "exhibit bias or advocate

for either party[,]" nor did it "conduct an unduly extended

examination" of either witness. Id. at 322-23, 55 P.3d at 286-87

(citations omitted). We decline to hold that the family court

plainly erred by questioning the witnesses; JK was not thereby

deprived of due process.

2. The family court did not err in finding that JK

was mentally ill.

JK challenges "[t]he family court's Conclusion of Law

#G in its Order Granting Petition for Involuntary Hospitalization[.]" The order stated:

Upon full consideration of the above exhibit and the

testimony and other evidence adduced at the hearing, the

court makes the following findings of fact:

. . . .

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G. [JK] is mentally ill, beyond a reasonable doubt,

in that [JK] suffers from a bipolar disorder

(manic phase).

A finding that the respondent is mentally ill must be established

"beyond a reasonable doubt[.]" HRS § 334-60.5(j). The finding

is supported by substantial evidence; that is, the Certificate

and opinion testimony by Dr. McGrath. There was no evidence

controverting Dr. McGrath's opinion.

JK's sole argument — made for the first time on appeal

— is that Dr. McGrath's opinion was inadmissible because he was

never qualified as an expert witness. Dr. McGrath testified that

he was the "attending psychiatrist" at the Kalani Ola Behavioral

Health Unit at Kona Community Hospital, and JK's psychiatrist. 

JK did not object or move to strike Dr. McGrath's testimony that

"the working diagnosis is a bipolar disorder manic[.]" JK's

failure to object to Dr. McGrath's opinion testimony constituted

a waiver of objections to Dr. McGrath's qualifications under

Rule 702 of the Hawaii Rules of Evidence (HRE).2 See Kemp v.

State Child Support Enf't Agency, 111 Hawai#i 367, 391, 141 P.3d

1014, 1038 (2006) ("As a general rule, if a party does not raise

2 Rule 702, Hawaii Rules of Evidence, Chapter 626, Hawaii Revised

Statutes (2016) provides:

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion or

otherwise. In determining the issue of assistance to the

trier of fact, the court may consider the trustworthiness

and validity of the scientific technique or mode of analysis

employed by the proffered expert.

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an argument at trial, that argument will be deemed to have been

waived on appeal[.]") (citations omitted).3

Moreover, JK does not challenge the family court's

finding of fact K., which stated:

K. Michael McGrath, M.D., a licensed physician and

psychiatrist, personally examined [JK], was present at

the hearing, and gave oral testimony at the hearing.

JK did not impeach Dr. McGrath on cross-examination,

nor did he offer any evidence to contradict Dr. McGrath's

diagnosis of his mental illness. The family court's finding that

JK was mentally ill beyond a reasonable doubt was not error.

3. The family court erred by concluding that JK was

imminently dangerous to himself or to others.

JK challenges the "family court's Conclusion of Law #H

in its Order Granting Petition for Involuntary Hospitalization[.]" The order stated:

H. By clear and convincing evidence [JK] is imminently

and substantially dangerous to self or others.

Paragraph H. is a mixed finding of fact and conclusion of law;

under HRS §§ 334-60.2(2) and 334-60.5(j) a person may be

involuntarily hospitalized only if the family court finds, "by

clear and convincing evidence," that "the person is imminently

dangerous to self or others[.]"

3 JK stipulated — before entry of the Order Granting Petition for

Involuntary Hospitalization — that Dr. McGrath was qualified to express

opinions under HRE Rule 702 during the December 12, 2017 hearing on the

State's motion for an order authorizing the involuntary administration of

medication.

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"Clear and convincing evidence" is:

an intermediate standard of proof greater than a

preponderance of the evidence, but less than proof beyond a

reasonable doubt required in criminal cases. It is that

degree of proof which will produce in the mind of the trier

of fact a firm belief or conviction as to the allegations

sought to be established, and requires the existence of a

fact be highly probable.

Masaki v. Gen. Motors Corp., 71 Haw. 1, 15, 780 P.2d 566, 574

(1989) (citations omitted). Hawai#i appellate courts have not

addressed the standard of review for a finding of fact that must

be based upon "clear and convincing evidence." We adopt the

standard recently articulated by the California Supreme Court in

Conservatorship of O.B., 470 P.3d 41 (Cal. 2020).

The California law concerning "clear and convincing

evidence" is similar to that articulated in Masaki. Under

California law:

The standard of proof known as clear and convincing

evidence demands a degree of certainty greater than that

involved with the preponderance standard, but less than what

is required by the standard of proof beyond a reasonable

doubt. This intermediate standard "requires a finding of

high probability."

Conservatorship of O.B., 470 P.3d at 46 (citations omitted).

Regarding the standard of review on appeal applicable

to findings of fact that require proof by clear and convincing

evidence, the California Supreme Court held:

To summarize, we hold that an appellate court must

account for the clear and convincing standard of proof when

addressing a claim that the evidence does not support a

finding made under this standard. When reviewing a finding

that a fact has been proved by clear and convincing

evidence, the question before the appellate court is whether

the record as a whole contains substantial evidence from

which a reasonable factfinder could have found it highly

probable that the fact was true. In conducting its review,

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the court must view the record in the light most favorable

to the prevailing party below and give appropriate deference

to how the trier of fact may have evaluated the credibility

of witnesses, resolved conflicts in the evidence, and drawn

reasonable inferences from the evidence.

Id. at 55 (emphasis added). The California Supreme Court also

cautioned:

[W]e use this opportunity to emphasize that as in criminal

appeals involving a challenge to the sufficiency of the

evidence, an appellate court reviewing a finding made

pursuant to the clear and convincing standard does not

reweigh the evidence itself. In assessing how the evidence

reasonably could have been evaluated by the trier of fact,

an appellate court reviewing such a finding is to view the

record in the light most favorable to the judgment below; it

must indulge reasonable inferences that the trier of fact

might have drawn from the evidence; it must accept the

factfinder's resolution of conflicting evidence; and it may

not insert its own views regarding the credibility of

witnesses in place of the assessments conveyed by the

judgment. . . . [T]he question before a court reviewing a

finding that a fact has been proved by clear and convincing

evidence is not whether the appellate court itself regards

the evidence as clear and convincing; it is whether a

reasonable trier of fact could have regarded the evidence as

satisfying this standard of proof.

Id. at 53. It is under this standard that we review whether the

evidence before the family court, viewed in the light most

favorable to the State, could have led a reasonable fact-finder

to the conclusion that it was highly probable JK was imminently

dangerous to himself or others, under the applicable statutory

definitions.

A. Imminently Dangerous

Under HRS § 334-1, a person is "imminently dangerous to

self or others" if, "without intervention, the person will likely

become dangerous to self or dangerous to others within the next

forty-five days." Dr. McGrath testified that JK "stated to staff

that he does not intend to take medications once he leaves the

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hospital because there is nothing wrong with him." Dr. McGrath

then opined:

Because of the aforementioned lack of insight and judgment

and his own admission that he does not intend to take

medication after leaving it is my opinion that if he were to

be given the opportunity to attempt to be treated as an

outpatient the severity of these symptoms would escalate,

the dangerousness would become imminent within 45 days and

there would be some harm.

(Emphasis added.) Dr. McGrath did not specify what he meant by

"some harm." He agreed that it was his opinion JK would "be a

danger to himself . . . or others within the next 45 days if he

were to be released[.]" However, he did not specify the nature

of the "danger" JK posed, to himself or to others.

B. Dangerous to Self

Under HRS § 334-1:

"Dangerous to self" means the person recently has:

(1) Threatened or attempted suicide or serious

bodily harm; or

(2) Behaved in such a manner as to indicate that the

person is unable, without supervision and the

assistance of others, to satisfy the need for

nourishment, essential medical care, shelter or

self-protection, so that it is probable that

death, substantial bodily injury, or serious

physical debilitation or disease will result

unless adequate treatment is afforded.

In response to his testimony about JK's belief that "he

could put his finger through metal because God had given him the

ability to put his finger through a metal container," the family

court asked Dr. McGrath:

Well, I -- okay. So there's no actual incident where

he actually injured himself by doing that --

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THE WITNESS: No. No.

THE COURT: -- or was injurious of others?

THE WITNESS: Not to my knowledge.

On cross-examination, Dr. McGrath testified:

Q. Um, now, do you -- has [JK], um, had any violent

outbursts at the hospital?

A. No overtly violent outburst, no.

Q. And no attempts at self harm?

A. No.

JK's spouse explained that the incident concerning the

straight razor did not involve JK actually using a straight

razor, or trying to force their son to use one:

Q. What, uh, tell me more about the razor. I'm -- I'm

trying to visualize exactly what [JK] did with the razor as

it relates to your 13-year old son.

A. He was showing my son how to shave although he had

already taught him how to shave, and he was demanding that

my son take the double-sided old-fashioned razor and use

that because he was going to be getting a straight razor for

himself.

When my son said, "Dad, no, you don't need to do

that. It's okay. I have a safety razor," he then stated

that he had such a steady hand that he could do all these

things like the monks could do and that God would use him as

a vessel.

(Emphasis added).

JK's spouse also described JK refusing to sleep;

leaving the house "around 3, 4:00 in the morning"; and "drinking

water and eating protein bars, an occasional piece of fruit with

it and that was it[.]" She explained:

He would claim he needed to go to the gym two to three times

a day, um, and that he needed to work out and so that he was

wanting to build up muscle mass, and that's why he wanted to

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continue to have nothing but the protein bars 'cause it had

everything his body needed is what he claimed to me.

There is no evidence in the record that JK had recently

threatened or attempted suicide or serious bodily harm, as

described under HRS § 334-1. Further, as to the second part of

the definition of "dangerous to self" this court has stated:

To be considered "dangerous to self" under the Hawai#i

statutory scheme . . . it is not enough that an individual

is unable to satisfy the need for nourishment, essential

medical care, shelter or self-protection without supervision

and assistance of others. There must also be clear and

convincing evidence that the individual's inability to

satisfy [their] need for nourishment, essential medical

care, shelter or self-protection without supervision and

assistance of others will probably result in death,

substantial bodily injury, or serious physical debilitation

or disease unless adequate treatment is afforded to the

individual.

In re Doe, 102 Hawai#i at 554, 78 P.3d at 367 (second emphasis

added). Here, Dr. McGrath testified that the danger to JK would

become imminent in 45 days and there would be "some harm." 

Dr. McGrath's testimony was not sufficient to allow a reasonable

factfinder to find it highly probable that JK's condition would

result in his death, substantial bodily injury, or serious

physical debilitation or disease unless adequate treatment was

afforded to him. Further, JK's spouse's testimony about JK's

irregular sleep and diet, unconventional behavior, and refusal to

take medication,4

 without more, was not sufficient to allow a

reasonable fact-finder to find it highly probable that JK posed

4 We note that the family court's December 19, 2017 order denying

the State's motion to authorize involuntary administration of medication

contains a "finding that there is no evidence that [JK] actually poses a

danger of physical harm to himself or others."

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an imminent danger to himself within the meaning of HRS §§ 334-1

and 334-60.2.

C. Dangerous to Others

Under HRS § 334-1:

"Dangerous to others" means likely to do

substantial physical or emotional injury on another,

as evidenced by a recent act, attempt or threat.

When delivering its decision the family court

acknowledged:

Uh, the Court agrees with [JK], uh, there's been no

evidence presented that, uh, anything that was done with the

straight razor, uh, was harmful or dangerous to anyone. Uh,

he -- there's no indication that he used it to threaten

someone with, uh, or that he actually cut someone or himself

with it. Uh, he was simply trying to teach his son how to

shave.

The family court was charged with making an extremely

difficult decision — whether to significantly deprive JK of his

liberty — in light of JK's spouse's concern that she and their

child would not be safe if JK came home without treatment, and

that JK would be a threat to himself as well. The family court

ultimately ruled:

Now, scaring the family in and of itself is not

imminently dangerous to self or others but the conduct is

very concerning I think, and I believe that it is dangerous

to yourself or others. So get the help that you need so

that you can come out and be -- and continue to be a

productive, uh, husband and father to your children. Okay?

To its credit, the family court recognized the fear and

concern expressed by JK's spouse, for herself, for their child,

and for JK. But this is not a case like In re PC, where the

respondent was involuntarily hospitalized after he sent

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threatening text messages to his parents which included pictures

of guns, bullets, and knives; and, after his parents vacated

their home out of fear for their safety, plunged a large kitchen

knife into his parents' mattress where his father usually slept. 

2017 WL 2602003, at *1. There is no evidence in the record that

JK had ever acted, attempted, or threatened to inflict

substantial physical or emotional injury upon another person,

within the meaning of HRS § 334-1. The record does not contain

substantial evidence to allow a reasonable fact-finder to find

there was a high probability that JK was dangerous to others

within the meaning of HRS § 334-1. The family court erred by

finding there was clear and convincing evidence that JK was

imminently dangerous to others.

CONCLUSION

For the foregoing reasons, we reverse the "Order

Granting Petition for Involuntary Hospitalization" entered by the

family court on December 14, 2017.

On the briefs:

/s/ Lisa M. Ginoza

Nolan Chock, Chief Judge

Julio C. Herrera, 

Deputy Attorneys General, /s/ Keith K. Hiraoka

State of Hawai#i, Associate Judge

for Petitioner-Appellee

State of Hawai#i /s/ Karen T. Nakasone

Department of Health. Associate Judge

Saisamoa F. Grey Price,

Deputy Public Defender,

State of Hawai#i,

for Respondent-Appellant JK.

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