SG v. BA, 011921 HIICA, CAAP-18-0000051

Docket NºCAAP-18-0000051
Party NameSG, Petitioner-Appellee, v. BA, Respondent-Appellant
AttorneySteven J. Kim, for Respondent-Appellant
Judge PanelLeonard, Presiding Judge, Wadsworth and Nakasone, JJ.
Case DateJanuary 19, 2021

SG, Petitioner-Appellee,

v.

BA, Respondent-Appellant

No. CAAP-18-0000051

Intermediate Court of Appeals of Hawaii

January 19, 2021

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-DA NO. 17-1-2977)

Steven J. Kim, for Respondent-Appellant

Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.

SUMMARY DISPOSITION ORDER

Respondent-Appellant BA (Father) appeals an Order for Protection entered by the Family Court of the First Circuit (family court)1on 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) 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 ....

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 [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...

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