430 P.3d 892 (Hawai’i App. 2018), CAAP-17-0000088, AC ex rel. TP v. NP

Docket Nº:CAAP-17-0000088
Citation:430 P.3d 892, 143 Hawai‘i 331
Party Name:AC, Petitioner, ON BEHALF OF TP, Subject, Petitioner-Appellee, v. NP, Respondent-Appellant.
Attorney:Linda M. Vass, Legal Aid Society of Hawaii, for Petitioner-Appellee. Steven J. Kim, Honolulu, for Respondent-Appellant.
Judge Panel:By: Leonard, Presiding Judge, Reifurth and Chan, JJ.
Case Date:November 29, 2018
Court:Court of Appeals of Hawai'i, Intermediate
 
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Page 892

430 P.3d 892 (Hawai’i App. 2018)

143 Hawai‘i 331

AC, Petitioner, ON BEHALF OF TP, Subject, Petitioner-Appellee,

v.

NP, Respondent-Appellant.

No. CAAP-17-0000088

Intermediate Court of Appeals of Hawai‘i

November 29, 2018

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT (CASE NO. FC-DA 16-1-0193)

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 Fathers 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...

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