Kaho`Ohanohano v. Dhs, State

Decision Date20 March 2008
Docket NumberNo. 28324.,28324.
Citation178 P.3d 538,117 Hawai'i 262
CourtHawaii Supreme Court
PartiesGeorge KAHO`OHANOHANO, as Next Friend of Dasia Marie Morales-Kaho`Ohanohano, a minor; Jarrett K. Kaho`Ohanohano, Individually, Plaintiffs-Appellees, v. DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAII, Defendant/Third-Party Plaintiff/Third-Party Counterclaim Defendant/Counterclaim Defendant/Cross-claim Plaintiff-Appellant, Denise Morales, Defendant/Third-Party Defendant/Cross-claim Defendant/Third-Party Cross-claim Defendant-Appellee, Darryl Ramos, Defendant/Third-Party Defendant/Cross-claim Defendant/Third-Party Cross-claim Defendant-Appellee, John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; and Doe Governmental Entities 1-50, Defendants. George Kaho`Ohanohano, Next Friend of Dasia Marie Morales-Kaho`Ohanohano (minor) and Jarrett Kaho`Ohanohano, Plaintiffs, v. Susan Drelich, M.D., Defendant/Cross-claim Plaintiff/Cross-claim Defendant, Billie F. Strother, M.D., aka Billie Strother-Sowers, M.D., Defendant/Cross-claim Defendant/Cross-claim Plaintiff, Amanda D. Tucker, M.D., aka Amanda D. Tuckermeuse, M.D., Defendant/Cross-claim Defendant, Hawai`i Health Systems Corporation dba Maui Memorial Medical Center, Defendant/Cross-claim Defendant/Cross-claim Plaintiff, Mitchell N. Tasaki, M.D.; and Mitchell N. Tasaki M.D., INC., Defendants/Cross-claim Defendants, John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Doe "Non-Profit" organizations 1-10; and Roe Governmental Entities 1-10, Defendants.

Kimberly Tsumoto Guidry (Dorothy Sellers, with her on the brief, and Girard Lau), Deputy Attorneys General, for defendantsappellants Department of Human Services, State of Hawai`i.

Vladimir Devens (Andrew S. Winer and William Meheula, with him on the brief, of Winer Meheula & Devens), Honolulu, for plaintiffs-appellees.

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ.; LEVINSON, J., and ACOBA, J., concurring separately.

Opinion of the Court by MOON, C.J.

Following a sixteen-day bench trial, defendants-appellants Department of Human Services (DHS) and State of Hawai`i (State) [hereinafter, collectively, DHS or the State] appeal from the Circuit Court of the Second Circuit's1 January 22, 2007 second amended judgment, entered in favor of plaintiffs-appellees George Kaho`ohanohano (George), as next friend of his minor granddaughter, Dasia Marie Morales-Kaho`ohanohano (Minor), and Jarrett K. Kaho`ohanohano (Jarrett), individually as Minor's natural father, [hereinafter, collectively, the Kaho`ohanohanos] in this negligence action, awarding them $243,071.39 in special damages, $800,000.00 in general damages, and $77,369.80 in costs, for a total of $1,120,441.10. Upon application by the Kaho`ohanohanos, the case was transferred to this court, pursuant to Hawai`i Revised Statutes (HRS) § 602-58(b)(1) (Supp. 2007) (governing transfer upon the ground that the case involves "question of first impression or a novel legal question"), on November 15, 2007. Oral argument was held on February 21, 2008.

Briefly stated, two-and-a-half year old Minor suffered a fracture of the left femur on February 14, 2001 and life-threatening abdominal injuries two months later on April 16, 2001. Both injuries allegedly occurred while Minor was in the care and physical custody of her natural mother, defendant Denise Morales (Denise), and Denise's then-boyfriend, defendant Daryl Ramos (Daryl).2 Denise and Jarrett shared joint physical custody of Minor, who stayed with each parent on a rotating weekly basis. Although the first injury was reported to DHS as a suspected child abuse case, DHS allowed Denise to continue her joint custody arrangement with Jarrett while DHS investigated the circumstances of Minor's injury. DHS had yet to complete its investigation when the second injury occurred, which was determined to have resulted from child abuse. Ultimately, Jarrett obtained sole legal and physical custody of Minor.

On January 9, 2003, the Kaho`ohanohanos commenced a negligence action against DHS, Denise, and Daryl. Essentially, the Kaho`ohanohanos alleged that DHS failed to: (1) protect Minor; (2) timely take custody of her; and (3) conduct a reasonable and competent investigation of the suspected report of child abuse. After a lengthy bench trial, the trial court found in favor of the Kaho`ohanohanos, ruling, inter alia, that: (1) DHS had a legal "duty to provide Minor with prompt and ample protection from future harm and to conduct an appropriate and professionally competent investigation" under HRS chapter 587 (the Child Protective Act); (2) DHS breached its duty based upon the "professional judgment" standard of care enunciated in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982);3 and (3) such breach was a "significant causal connection" to Minor's April 16, 2001 injuries. The trial court also found DHS liable for damages resulting from the negligent infliction of emotional distress (NIED). Damages were apportioned, jointly and severally, among DHS (29%), Denise (20%), and Daryl (20%).4

On appeal, DHS challenges the aforementioned trial court's conclusions, as well as the circuit court's earlier grant of the Kaho`ohanohanos' motion for partial summary judgment5 that collaterally estopped DHS from relitigating whether Minor's April 16, 2001 injuries occurred while in Denise's care in light of a prior oral ruling made by the Family Court of the Second Circuit in a separate custody proceeding.6 DHS maintains that the trial court wrongly concluded that DHS had a legally cognizable duty to protect all children within its investigatory ambit, including those outside its legal or physical custody. Relying on HRS § 662-2 (1993),7 DHS maintains — for the first time on appeal — that liability can only be imposed upon a governmental entity if such liability can be imposed upon a private individual in analogous circumstances [hereinafter, the private analog exception]. Because no analogous situation exists where a private individual could be held liable to the Kaho`ohanohanos for "failing" to protect Minor — a non-custodial child — from harm, DHS submits that it, likewise, cannot be held liable.

For the reasons more fully discussed infra, we affirm the trial court's January 22, 2007 second amended judgment.

A. Factual Background

The relevant factual background of this lawsuit is drawn from the 249 unchallenged findings entered by the trial court in its December 4, 2006 first amended findings of fact (FOFs), conclusions of law (COLs), decision and order [hereinafter, the first amended trial order], entered in favor of the Kaho`ohanohanos. Inasmuch as the FOFs are not challenged on appeal, they are binding on this court. Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai`i 450, 458, 40 P.3d 73, 81 (2002).

1. Relevant Statutory Provisions

The laws governing DHS's investigation of child abuse are codified in the Child Protective Act, HRS chapter 587. Section 587-1 (2006) provides in pertinent part that:

The legislature finds that children deserve and require competent, responsible parenting and safe, secure, loving, and nurturing homes. The legislature finds that children who have been harmed or are threatened with harm are less likely than other children to realize their full educational vocational, and emotional potential, and become law-abiding, productive, self-sufficient citizens, and are more likely to become involved with the mental health system, the juvenile justice system, or the criminal justice system, as well as become an economic burden on the State. The legislature finds that prompt identification, reporting, investigation, services, treatment, adjudication, and disposition of cases involving children who have been harmed or are threatened with harm are in the children's, their families', and society's best interests because the children are defenseless, exploitable, and vulnerable.

The policy and purpose of this chapter is to provide children with prompt and ample protection from the harms detailed herein, with an opportunity for timely reconciliation with their families if the families can provide safe family homes, and with timely and appropriate service or permanent plans to ensure the safety of the child so they may develop and mature into responsible, self-sufficient, law-abiding citizens.... Each appropriate resource, public and private, family and friend, should be considered and used to maximize the legal custodian's potential for providing a safe family home for the child.

HRS § 587-21 (2006) establishes general procedures and guidelines for the investigation by DHS of suspected child abuse:

(a) Upon receiving a report that a child is subject to imminent harm, has been harmed, or is subject to threatened harm, [DHS] shall cause such investigation to be made as it deems to be appropriate. In conducting the investigation [DHS] may:

(1) Enlist the cooperation of appropriate law enforcement authorities for phases of the investigation for which they are better equipped, and the law enforcement authority may conduct and provide to [DHS] the results of a criminal history record check concerning an alleged perpetrator of imminent harm, harm, or threatened harm to a child; and

(2) Interview a child who is the subject of an investigation without the prior approval of and without the presence of the child's family, including temporarily assuming protective custody of the child for the purpose of conducting the interview, if the action is deemed necessary and appropriate under the circumstances by [DHS] and a police officer.

(b) Upon satisfying itself as to the course of action that should be pursued to best accord with the purpose of this chapter, [DHS] shall:

(1) Resolve the matter in an informal fashion appropriate under the circumstances;

(2) Seek to enter into a service plan,[8] without filing a petition in court, with members of the child's family and other...

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