NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-MAR-2022 08:13 AM Dkt. 179 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
KQ, on behalf of KQ, a minor, Petitioner-Appellee, v. RQ, Respondent-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-DA NO. 20-1-002043)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)
Self-represented Respondent-Appellant RQ (Father)
appeals from the Family Court of the First Circuit's1 (Family
Court) October 12, 2020 Order for Protection (Protective Order),
and January 15, 2021 Order Denying Respondent's Motion for
Reconsideration.
On appeal, Father asserts that the Family Court erred
in granting the Protective Order to Petitioner-Appellee KQ
(Mother) on behalf of the parties' minor child (Child) and
denying his Motion for Reconsideration, pursuant to Hawai#i Rules
of Civil Procedure (HRCP) Rule 59(e). To that end, Father raises
the following seven points of error:2
1 The Honorable Natasha R. Shaw presided. 2 Hawai#i Rules of Appellate Procedure (HRAP) Rule 1(d) provides in part that "[a]ttorneys and pro se parties are deemed to be aware of, and are (continued...) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
1. The Family Court erred by "not appointing counsel on behalf of [Father] who is an indigent defendant";
2. The Family Court erred by "refus[ing] a hearing or entry of [Father's] affirmative defense and counterclaim thru [sic] responsive pleadings";
3. The Family Court erred "in failing to enforce [Father's] 1st Amendment Constitutional rights thereafter the court erred in concluding that extreme psychological abuse occurred in [Father's] home for the exercise of religious freedom";
4. The Family Court erred "in failing to enforce against wrongful interference on the weekend of 09/19/2020 thru [sic] 09/21/2020 where [Mother's] acts of wrongful interference" violated a "06/10/2020 Interim Protection Order";
5. The Family Court erred by "concluding that physical and/or child abuse occurred in [Father's] home in contradiction to [Hawaii Revised Statutes (HRS)] § 703-309";
6. The Family Court erred by "recording a judgment of domestic abuse and stating '[Father] failed to show why the order for protection should not be had' and committed clear error [in its] . . . determination of credibility granted to [Mother] despite acts of contempt . . . and the credibility granted to [Child Welfare Services (CWS)] despite inconsistencies[.]"; and 7. The Family Court erred by "failing to vacate a 10/12/2020 order for protection and erred in the entry of findings of fact and conclusions of law in support of domestic abuse where in the post- trial record, the court dismisses exculpatory evidence as harmless or irrelevant."
2 (...continued) expected to comply with, all of the provisions of these rules." Father's third amended opening brief, however, does not comply with HRAP Rule 28(b), and his arguments are addressed "to the extent they can reasonably be discerned" to promote equal access to justice for pro se litigants. Wagner v. World Botanical Gardens, Inc., 126 Hawai#i 190, 193, 268 P.3d 443, 446 (App. 2011).
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Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Father's points as follows: 1. Father Fails To Meet His Burden Of Showing That The Family Court Erred By Not Appointing Counsel Sua Sponte
Father argues that the "Family Court erred by not
appointing counsel on behalf of Respondent who is an indigent
defendant in a custody hearing where the Plaintiff's allegations
was prosecuted by her counsel[,]" and cites to State v. Loher, 140 Hawai#i 205, 398 P.3d 794 (2017).
In Loher, the Hawaii Supreme Court held that the trial
court deprived the defendant of his "constitutional right to the
assistance of counsel as provided by the Sixth Amendment to the
United States Constitution and article I, section 14 of the
Hawai#i Constitution." Id. at 220, 398 P.3d at 809. See also
State v. Uchima, 147 Hawai#i 64, 74, 464 P.3d 852, 862 (2020)
(explaining that an indigent defendant charged with an offense
punishable by imprisonment has a state and federal constitutional right to have the assistance of counsel at every critical stage
of the prosecution). Father, however, had not been charged with
any offense punishable by imprisonment.
Instead, the Family Court issued a Protective Order
pursuant to HRS § 586-5.5(a) (2018), which makes no mention of
appointing counsel. Of note, HRS § 586-5(b) (2018) provides in
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part that "[a]ll parties shall be present at the hearing and may
be represented by counsel." HRS § 586-5(b). Thus, the plain
language of HRS § 586-5 does not require the Family Court to
appoint counsel for Father.
In matters involving the termination of parental rights
or petitions for family supervision or foster custody by the
Department of Human Services (DHS), however, indigent parents
have a guaranteed right to court-appointed counsel under the due
process clause in article I, section 5 of the Hawai#i
Constitution and the Fourteenth Amendment of the United States
Constitution. A parent's constitutionally protected liberty
interest is at stake when parental rights are substantially
affected, hence the right to court-appointed counsel. See In re
T.M., 131 Hawai#i 419, 436, 319 P.3d 338, 355 (2014), holding
modified by In re L.I., 149 Hawai#i 118, 122-23, 482 P.3d 1079,
1083-84 (2021).
The underlying proceeding in this case involves a
domestic abuse protective order, not a termination of parental
rights or petitions for family supervision or foster custody. Moreover, Father retained visitation, albeit supervised, during
the Protective Order, and the record does not reflect that Father
requested a court-appointed counsel. Father, thus, fails to meet
his burden of showing that the Family Court erred by not
appointing counsel sua sponte. See In re RGB, 123 Hawai#i 1, 18,
229 P.3d 1066, 1083 (2010).
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2. The Family Court Heard Father's Notice and Motion And Motion to Dismiss
Father argues that the Family Court erred by dismissing
his "Notice & Motion for [HRCP] Rule 60(b)(3) Hearing/
Counterclaim for Contempt of Court & Tortious Interference with
Custody/Visitation" (Notice and Motion) and "Motion to Dismiss
Complaint" (Motion to Dismiss) without a hearing.
This argument is without merit because the court did,
in fact, conduct a hearing on his motions. On October 7, 2020,
Mother's Petition for an Order for Protection on Behalf of Family
or Household Member(s) (Petition) and Father's Notice and Motion
and Motion to Dismiss came on for hearing before the Family
Court. Per the October 7, 2020 Family Court minutes, all parties
appeared in-person and testimony occurred from 11:21-11:32 a.m.
and 11:41-11:48 a.m. After testimony, the Family Court denied
without prejudice Father's Notice and Motion and Motion to
Dismiss, and granted Father's request for a continuance to
October 12, 2020 so that Father could prepare his exhibits for
trial on Mother's Petition. 3. Father Fails To Show His Exercise Of Religion Was Substantially Burdened
Father argues that the "failure of the Family Court to
recognize and uphold religious freedom imposes unlawful rule of
fundamental human rights . . . ."
To find unconstitutional infringement of Father's
religious practices, we must examine if the activity "was
motivated by and rooted in a legitimate and sincerely held
religious belief," if the "free exercise of religion had been
burdened," "the extent or impact of the regulation on the
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parties' religious practices," and if there was a compelling
interest to justify the burden. State v. Adler, 108 Hawai#i 169,
177, 118 P.3d 652, 660 (2005) (citation omitted). Notably, "the
United States Supreme Court has long recognized a distinction
between the freedom of individual belief, which is absolute, and
the freedom of individual conduct, which is not absolute." Id.
(internal quotation marks omitted).
Regarding Father's September 20, 2020 conduct, Mother
alleged Father called the police and filed a false report, yelled at Child, hit Child with a back scratcher on her forearm hard
enough to leave a mark, and hit Child in the head. In compliance
with HRS § 586-5.5, the Family Court provided Father with an
opportunity to show why the protective order should not be
continued. The Family Court ultimately found Mother credible,
and that she proved the material allegations in the Petition.
This process cannot be said to substantially burden Father's
exercise of religion. State v. Armitage, 132 Hawai#i 36, 62, 319
P.3d 1044, 1070 (2014) (requiring appellant to show a substantial
burden on his practice of religion, and holding that requiring an application process to go to Kaho#olawe "cannot be said to
'substantially burden' the exercise of religion"). 4. The Family Court Did Not Abuse Its Discretion By Not Punishing Mother For Custodial Interference
Father argues that the Family Court abused its
discretion by not "punishing" Mother for custodial interference
during the weekend of September 19, 2020 through September 21,
2020 "in direct violation of [the] 06/10/2020 interim protection
order" pursuant to HRS § 587A-37 (2018).
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HRS § 587A-37 provides that "[i]f a party fails to
comply with the terms and conditions of an order issued by the
court under this chapter, the court may apply the provisions of
section 710-1077 and any other provisions available under the
law." But, the "06/10/2020 interim protection order" to which
Father refers was an order continuing the parties' motions for
post-decree relief in the parties' divorce action in FC-D 10-1-
2770. This order also provided that Father have certain
"parenting time" with Child and that "Mother shall facilitate and encourage the child to spend time with Father." Thus, HRS
§ 587A-37 was not applicable because Mother did not violate any
order issued under HRS chapter 587A.
Moreover, a person commits the offense of custodial
interference if: The person, in the absence of a court order determining custody or visitation rights, intentionally or knowingly takes, detains, conceals, or entices away a minor with the intent to deprive another person or a public agency of their right to custody, and removes the minor from the State.
HRS § 707–726(1)(c) (2014). This appeal, however, involves a
protective order, not a criminal charge against Mother for
custodial interference.
And while the Protective Order pertained to Father's
Child, and thus affected his custody, the Protective Order
granted Father supervised visitations at Parents and Children
Together (PACT) until the order expired. The Protective Order
also stated that "[a]ll orders regarding custody and visitation
are subject to modification in parties' divorce action."
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In the parties' related divorce matter in FC-D 10-1-
2770, Mother was ultimately awarded sole physical and legal
custody of Child, subject to Father's right to visitation. In
sum, the record does not show that Mother deprived Father of
custody or removed Child from the State and, thus, the Family
Court did not abuse its discretion by not "punishing" Mother for
custodial interference. 5. Father Fails To Meet His Burden Of Showing That The Family Court Erred By Concluding Mother Proved The Material Allegations In The Petition
Father appears to argue that the Family Court
improperly relied on "inflammatory and/or libelous testimony,
false allegations and serious misrepresentation of material
facts[,]" rather than his testimony that he exercised "reasonable
parental discipline."
In Hamilton ex rel. Lethem v. Lethem, the Hawai#i
Supreme Court held: (1) parents have a constitutional right to discipline children inhering in their liberty interest in the care, custody, and control of their children, under the due process clause, article 1, section 5 of the Hawai #i Constitution, (2) a parent may raise the right of parental discipline in a [HRS] § 586–5 show cause hearing in opposition to the continuation of a temporary restraining order (TRO) issued under HRS chapter 586 on allegations of domestic abuse, (3) in such circumstances trial courts shall consider whether the discipline is reasonably related to the purpose of safeguarding or promoting the welfare of the minor in determining whether the parent's conduct constituted abuse or proper discipline, and (4) generally a non-custodial parent retains the right to discipline a child when the child is under his or her supervision.
126 Hawai#i 294, 296, 270 P.3d 1024, 1026 (2012).
Here, the Family Court made findings that Father
testified he "disciplined, not hit" Child. After considering
this testimony, the Family Court nonetheless concluded that
Mother proved the material allegations in her Petition based on
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DHS's Report dated October 5, 2020 (Report), stipulated exhibits,
and the credibility of Mother and DHS Social Worker Canionero (SW
Canionero). The Family Court further concluded that Father
failed to show good cause why the TRO should not be continued.
To the extent Father argues that the Family Court
"relied upon inflammatory and/or libelous testimony, false
allegations and serious misrepresentation" rather than his
parental discipline testimony, we "will not pass upon issues
dependent upon the credibility of witnesses and the weight of the
evidence." Kie v. McMahel, 91 Hawai#i 438, 444, 984 P.2d 1264,
1270 (App. 1999) (citation, internal quotation marks, and
brackets omitted).
Moreover, this Court cannot determine whether the
Family Court considered the reasonableness of Father's actions
because Father failed to provide transcripts of the October 7,
2020 and the October 12, 2020 hearings. See HRAP
Rule 10(b)(1)(A); Bettencourt v. Bettencourt, 80 Hawai#i 225,
230, 909 P.2d 553, 558 (1995) (explaining that the "burden is
upon appellant in an appeal to show error by reference to matters
in the record, and he or she has the responsibility of providing
an adequate transcript") (citation, internal quotation marks, and
brackets omitted). Thus, Father failed to meet his burden of
showing that the Family Court erred in concluding that Mother
proved the allegations in the Petition and Father failed to show
good cause why the TRO should not be continued.
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6. Father Failed To Meet His Burden Of Showing There Was Insufficient Evidence
Father appears to challenge the sufficiency of the
evidence supporting the Family Court's conclusion that he did not
show good cause why the TRO should not be continued.
Sufficient evidence exists when "the record contains
'substantial evidence' supporting the family court's
determinations . . . ; the testimony of a single witness, if
found by the trier of fact to have been credible, will suffice."
In re Doe, 95 Hawai#i 183, 196, 20 P.3d 616, 629 (2001) (citations omitted).
Here, the Family Court held a hearing on the Petition
and found the testimonies of Mother and SW Canionero credible.
With Mother and SW Canionero's testimonies, there was sufficient
evidence to support a conclusion that Mother proved the
allegations in the Petition and Father did not show good cause
why the TRO should not be continued. See Id.; Kie v. McMahel, 91
Hawai#i at 442, 984 P.2d at 1268 (interpreting HRS § 586-5.5(a)
to mean, "[w]hile at [the] hearing the respondent must 'show cause why' the protective order is not necessary, [] the burden
remains on the petitioner to prove the petitioner's underlying
allegations by a preponderance of the evidence.") (citation
omitted). 7. The Protective Order Will Not Be Set Aside Based on Conflicting Evidence
Finally, Father appears to argue that the Family Court
erred by issuing the Protective Order based, in part, on DHS's
Report because it conflicted with the Notice of CWS Disposition
dated November 25, 2020 (Disposition).
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In the Report, DHS confirmed alleged physical abuse and
threat of abuse by Father based on Child's "fearfulness of
[Father's] methods of physical discipline and his aggression
towards her causing [Child] to feel unsafe and vulnerable to his
anger while in his care." In the Disposition, DHS indicated that
the allegation of threatened physical harm or abuse was
confirmed, and did not comment on physical harm or abuse. It is
not entirely clear, however, that the Report and the Disposition
speak to the same incident. Assuming, arguendo, that the Report and Disposition
were about the same incident and were in conflict, judgments
"based on conflicting evidence will not be set aside where there
is substantial evidence to support the trier of fact's findings."
State v. Mattiello, 90 Hawai#i 255, 259, 978 P.2d 693, 697 (1999)
(citations, internal quotation marks, and brackets omitted).
Again, the Family Court considered the Report, and the
credibility of Mother's and SW Canionero's testimonies. As
discussed above, Mother's and SW Canionero's testimonies provided
sufficient evidence to support the Family Court's decision. Contradiction, if any, between the Report and Disposition will
not be a basis for setting aside the Family Court's Order. CONCLUSION
In sum, the record on appeal does not indicate that
Father presented new evidence or arguments that could not have
been presented during the underlying proceeding. Thus, the
Family Court did not abuse its discretion in denying Father's
motion for reconsideration. See HRCP 59(e); Ass'n of Apartment
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Owners of Wailea Elua v. Wailea Resort Co., Ltd., 100 Hawai#i 97,
110, 58 P.3d 608, 621 (2002).
For the foregoing reasons, we affirm the Family Court's
October 12, 2020 Order for Protection and January 15, 2021 Order
Denying Respondent's Motion for Reconsideration.
DATED: Honolulu, Hawai#i, March 23, 2022.
On the briefs: /s/ Keith K. Hiraoka Presiding Judge RQ, Respondent-Appellant, pro se. /s/ Clyde J. Wadsworth Associate Judge Sara M. Theodorous, /s/ Sonja M.P. McCullen for Petitioner-Appellee. Associate Judge