AC ex rel. TP v. NP

Decision Date29 November 2018
Docket NumberNO. CAAP-17-0000088,CAAP-17-0000088
Citation430 P.3d 892 (Table)
Parties AC, Petitioner, ON BEHALF OF TP, Subject, Petitioner-Appellee, v. NP, Respondent-Appellant.
CourtHawaii Court of Appeals

On the briefs:

Linda M. Vass, Legal Aid Society of Hawaii, for Petitioner-Appellee.

Steven J. Kim, Honolulu, for Respondent-Appellant.

(By: Leonard, Presiding Judge, Reifurth and Chan, JJ.)

SUMMARY DISPOSITION ORDER

Respondent-Appellant NP (Father) appeals an Order for Protection (OFP) filed by the Family Court of the Fifth Circuit (the Family Court)1 on February 1, 2017, which bars him from having any contact, except for supervised visits, with his daughter (Child) until January 31, 2029.

On appeal, Father asserts the following points of error: (1) the Family Court committed reversible error by its failure to qualify Chia Granda (Dr. Granda), Carla Nelson (Dr. Nelson), and Noelle Cambeilh (Ms. Cambeilh) as expert witnesses, coupled with its failure to reflect its decision not to qualify the witnesses as experts on the record; (2) the Family Court committed reversible error by crediting the expert opinions of Dr. Granda and Dr. Nelson, that Child's alleged disclosures were not coached, where such testimony was never given to a reasonable degree of probability in the experts' fields of practices; (3) the Family Court committed reversible error by admitting and relying upon the testimony of Dr. Granda and Ms. Cambeilh concerning children's reporting rates for sexual abuse and that children rarely lie about such matters, where neither of these witnesses was qualified as an expert on child sex abuse; and (4) Father's due process right to a fair trial was violated due to the dumulative effect of the errors in this case.

Generally, "[w]hether expert testimony should be admitted at trial rests within the sound discretion of the trial court and will not be overturned unless there is a clear abuse of discretion. An abuse of discretion occurs when the decisionmaker exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party." State v. Fukagawa, 100 Hawai‘i 498, 503, 60 P.3d 899, 904 (2002) (citations and internal quotation marks omitted).

Arguments that were not raised at trial are waived on appeal. See Asato v. Procurement Policy Bd., 132 Hawai‘i 333, 354 n.22, 322 P.3d 228, 249 n.22 (2014) ("As a general rule, if a party does not raise an argument at trial, that argument will be deemed to have been waived on appeal[.]" (citing State v. Moses, 102 Hawai‘i 449, 456, 77 P.3d 940, 947 (2003) ) ). Nonetheless, this court may review these points for plain error. See Hawai‘i Rules of Appellate Procedure Rule 28(b)(4) ("Points not presented [on appeal] in accordance with [ Rule 28 ] will be disregarded, except that the appellate court, at its option, may notice a plain error not presented."). The Hawai‘i Supreme Court in Okada Trucking Co., Ltd., v. Bd. of Water Supply, 97 Hawai‘i 450, 40 P.3d 73 (2002), stated:

The 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.

Id. at 458, 40 P.3d at 81 (internal quotation marks, citations, and ellipsis in original omitted). See also Cox v. Cox, 138 Hawai‘i 476, 491, 382 P.3d 288, 303 (2016) (dissenting opinion noting that Hawai‘i appellate courts "rarely recognize[ ] plain error in civil cases").

I. Failure to Qualify Witnesses as Experts

We first address Father's assertion that the Family Court plainly erred by failing to qualify Dr. Granda, Dr. Nelson, and Ms. Cambeilh as expert witnesses and subsequently relying on their testimonies in its decision. In the absence of any objection by Father to the witnesses testifying as experts and of any request to qualify them as experts during trial, Father now argues upon appeal that the Family Court's heavy reliance on the witnesses' testimonies in making its decision was plain error as it had "never actually reached the issue of whether the witnesses were qualified as experts, and if they were qualified, what were the limits of their qualification." Father cites to State v. Metcalfe, 129 Hawai‘i 206, 297 P.3d 1062 (2013).2 In Metcalfe, the Hawai‘i Supreme Court instructed that "nothing in the HRE would preclude the trial court from declining to qualify a witness as an expert in front of the jury, so long as the requisite foundation for the witness's testimony is established." Id. at 226, 297 P.3d at 1082.

Here, proper foundation was established for each testifying witness, by virtue of their knowledge, skill, experience, training, or education. At trial, each witness testified as to their qualifications, as follows.

Dr. Nelson is a board certified pediatrician. She is Child's attending physician and treating physician. During the hearing, she stated that she was not testifying as an expert on child abuse. However, she testified that based on her training and experience as a pediatrician, she is able to assess and diagnose whether a child may have been sexually abused. As Child's treating physician, she has met with Child and her mother at least once a year since Child was born. During three different appointments on March 4, 2015, March 27, 2015, and August 31, 2016, Child allegedly made disclosures to Dr. Nelson regarding possible sex abuse.

Dr. Granda is a board certified pediatrician, adult psychiatrist, and child psychiatrist, who is also certified in trauma-focused cognitive behavioral therapy

for children who have been abused (including sexual abuse). She has also gone through other child and adolescent psychiatry training and board certification, which allow her to treat children who may have been sexually abused. Dr. Granda testified that, based on her training, experience, and education, she is able to diagnose mental disorders or mental issues with children. She has over a decade of experience with childhood sex abuse matters. Child was referred to Dr. Granda after Child made statements to Dr. Nelson tantamount to describing sexual abuse by her father. Dr. Granda has had four sessions with Child, sometimes with her mother as well.

Ms. Cambeilh is a licensed clinical social worker who is also trained in trauma-focused cognitive behavioral therapy

. Ms. Cambeilh testified that, as a licensed clinical social worker, she can diagnose and treat mental health disorders. She has experience working with patients, including children, who have been sexually abused. Here, Child was referred to Ms. Cambeilh for therapy based on the referral from Dr. Nelson to Dr. Granda and Dr. Granda's opinion that Child suffered from post-traumatic stress disorder. Ms. Cambeilh met with Child for four sessions.

Where the proper foundation was established for each witness, we conclude that the Family Court's failure to qualify the witnesses as experts was not plain error.

II. Statements Not Made to a Reasonable Degree of Probability in Witness' Fields of Practice

Father further argues that the testimonial statements were not made to a reasonable degree of certainty or probability in their fields and as such, were not relevant or reliable. Father argues that "[w]ithout this testimony, it was and is impossible to know whether the witness's testimony was probable in their field, or merely a speculative statement of possibilities."

As the fact-finder in this case, the Family Court has the discretion to assign the appropriate weight to the testimony. See Ass’n of Apartment Owners of Wailea Elua v. Wailea Resort Co., Ltd., 100 Hawai‘i 97, 117-18, 58 P.3d 608, 628-29 (2002) ("[I]t is within the province of the trier of fact to weigh the evidence and to assess the credibility of the witnesses, and this court will refrain from interfering in those determinations.") (internal quotation marks and citation omitted). "[T]he touchstones of admissibility for expert testimony under HRE Rule 702 are relevance and reliability." State v. Vliet, 95 Hawai‘i 94, 106, 19 P.3d 42, 54 (2001). In State v. DeLeon, 131 Hawai‘i 463, 319 P.3d 382 (2014), the Hawai‘i Supreme Court held that "trial courts should not require a reasonable degree of scientific certainty before admitting expert opinions but may exclude expert testimony based on speculation or possibility." Id. at 484, 319 P.3d at 403 (quotations omitted).

At trial, Father objected to Dr. Granda's opinion that the mother was not coaching Child. Father's objection was based on a lack of foundation as to the mother's credibility. The Family Court overruled the objection at trial stating, "I think she can, based on her four sessions [with Child], has -- make her opinion about whether or not -- her observations of mom and her observations about whether there appears to be coaching." We conclude that this was not an abuse of discretion. Father's objection at trial, however, did not preserve the argument based on degree of certitude or probability that Father contends on appeal. It is thus waived. See Asato, 132 Hawai‘i at 354 n, 22, 322 P.3d at 249 n.22.

Somewhat similarly, Dr. Nelson testified to her opinion that Child was not developmentally able to be coached.3 Father objected to this statement as improper because Dr. Nelson had stated that she was only testifying as an attending or treating physician. The Family Court overruled Father's objection at trial, finding that the statement was "still in her area of expertise that -- whether the person would have enough developmental ability at that age to -- to be coached." (emphasis added) The Family Court did not abuse its discretion in reaching this conclusion. Upon appeal, however, Father contends that this statement was not grounded upon a reasonable degree of probability in her field of training, which does not stem from the objection made at trial. Father's argument on appeal...

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