NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 14-MAY-2025 08:07 AM Dkt. 133 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
J.W., Petitioner-Appellee, v. R.E., Respondent-Appellant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CASE NO. 1PP151006391)
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
Respondent-Appellant R.E. (Mother) appeals from the
Family Court of the First Circuit's February 23, 2024 "Decision
and Order Re: Custody, Visitation, and Support" 1 in this
Paternity Case, awarding Petitioner-Appellee J.W. (Father) sole
legal and physical custody of Child (born in 2012) and granting
Mother supervised video visits.
1 The Honorable Jessi L.K. Hall presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On appeal, Mother contends the family court (1) denied
her right to due process and (2) erred in applying the Hawai‘i
Revised Statutes (HRS) § 571-46(a)(9) (2018) presumption. 2
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below, and vacate and remand.
(1) Mother first contends the family court denied her
right to due process by prohibiting her from contesting the
sexual abuse allegations. 3
The family court heard Father's "Motion to Prohibit
Relitigating" immediately preceding trial, and explained it was
"not going to allow [sic] to relitigate the confirmation made by
Child Welfare Service of the sex abuse because the parties
stipulated to the adjudication on October 29th, 2020" in the
Child Welfare Service case (Child Welfare Case). 4 The family
2 Mother also contends the family court denied her right to have a meaningful relationship with Child, and erred in determining Father's sole custody was in Child's best interest. Based on our decision, we decline to address these issues. 3 In this point of error, Mother also argues that the family court erred in not allowing her expert witness to testify regarding the Children's Justice Center (CJC) interview. The family court did not allow testimony regarding the CJC interview because the CJC interview was not offered into evidence. Without the CJC interview in evidence, expert testimony would not assist the trier of fact in understanding the CJC interview. See Hawai‘i Rules of Evidence Rule 702. 4 At Mother's request, we take judicial notice of the Child Welfare Case records in CAAP-XX-XXXXXXX. See Uyeda v. Schermer, 144 Hawai‘i 163, 172,
(continued . . .)
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
court found that "Mother [was] collaterally estopped from
relitigating the [Child Welfare Case] confirmation of Mother
sexually abusing the child since the issue was previously
determined in the [Child Welfare Case] which Mother was a party
[to] and she stipulated to jurisdiction and did not contest the
confirmation of sex abuse."
A due process "inquiry examines whether a parent
received a fundamentally fair process under the circumstances of
the case." See In re JH, 152 Hawaiʻi 373, 380, 526 P.3d 350, 357
(2023). A party asserting collateral estoppel (issue
preclusion) must show
(1) the issue decided in the prior adjudication is identical to the one presented in the action in question; (2) there is a final judgment on the merits; (3) the issue decided in the prior adjudication was essential to the final judgment; and (4) the party against whom [issue preclusion] is asserted was a party or in privity with a party to the prior adjudication.
Bremer v. Weeks, 104 Hawai‘i 43, 54, 85 P.3d 150, 161 (2004)
(emphasis added and citation omitted).
While the Child Welfare Case presented the same sexual
abuse issue as in this case, the sexual abuse issue was not
"decided in" the Child Welfare Case. The only issue clearly
(. . . continued)
439 P.3d 115, 124 (2019) (explaining the Hawai‘i Supreme Court has "explicitly 'validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same'") (citation and internal brackets omitted). And, Father's motion to strike Mother's opening brief for attaching documents from the Child Welfare Case is dismissed as moot, though Mother is cautioned to comply with the Hawai‘i Rules of Appellate Procedure.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
decided in the Child Welfare Case was that Father was capable of
providing a safe family home without a service plan. The family
court then closed the Child Welfare Case, with "temporary" sole
legal and physical custody of the Child being awarded to Father
in the Paternity Case. 5
Thus, collateral estoppel did not apply to Department
of Human Services' (DHS) sexual abuse confirmation. Under these
circumstances, where collateral estoppel was erroneously applied
to preclude Mother from disputing DHS's sexual abuse
confirmation, we conclude Mother did not receive the
fundamentally fair process she was due.
(2) Mother next contends the family court erred in
applying the presumption set forth in HRS § 571-46(a)(9).
Under HRS § 571-46(a)(9), if child custody is in
dispute, a determination that a parent committed "family
violence" raises "a rebuttable presumption that it is
detrimental to the child and not in the best interest of the
child to be placed in sole custody, joint legal custody, or
joint physical custody with the perpetrator of family violence."
In FC-DA No. 20-1-2179, an Order for Protection in
favor of Father and against Mother was entered on April 9, 2021
for a five-year term. In FC-DA No. 20-1-2237, an Order for
5 The family court stated it "consolidated this matter with [the Paternity Case], at Father's request[.]"
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Protection in favor of Mother and against Father was entered on
April 9, 2021 for a five-year term. Under state law, a family
court may issue an order for protection if necessary to prevent
"domestic abuse." HRS §§ 586-1 (Supp. 2024) (defining the term
"domestic abuse" as "Physical harm, bodily injury, assault, or
the threat of imminent physical harm, bodily injury, or assault,
extreme psychological abuse, coercive control, or malicious
property damage between family or household members"), 586-2
(Supp. 2024) (noting family court has jurisdiction), 586-5.5
(Supp. 2024) (indicating a family court may issue a protective
order if "necessary to prevent domestic abuse").
The family court concluded that Father rebutted the
presumption against him stemming from the issuance of the Order
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 14-MAY-2025 08:07 AM Dkt. 133 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
J.W., Petitioner-Appellee, v. R.E., Respondent-Appellant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CASE NO. 1PP151006391)
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
Respondent-Appellant R.E. (Mother) appeals from the
Family Court of the First Circuit's February 23, 2024 "Decision
and Order Re: Custody, Visitation, and Support" 1 in this
Paternity Case, awarding Petitioner-Appellee J.W. (Father) sole
legal and physical custody of Child (born in 2012) and granting
Mother supervised video visits.
1 The Honorable Jessi L.K. Hall presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On appeal, Mother contends the family court (1) denied
her right to due process and (2) erred in applying the Hawai‘i
Revised Statutes (HRS) § 571-46(a)(9) (2018) presumption. 2
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below, and vacate and remand.
(1) Mother first contends the family court denied her
right to due process by prohibiting her from contesting the
sexual abuse allegations. 3
The family court heard Father's "Motion to Prohibit
Relitigating" immediately preceding trial, and explained it was
"not going to allow [sic] to relitigate the confirmation made by
Child Welfare Service of the sex abuse because the parties
stipulated to the adjudication on October 29th, 2020" in the
Child Welfare Service case (Child Welfare Case). 4 The family
2 Mother also contends the family court denied her right to have a meaningful relationship with Child, and erred in determining Father's sole custody was in Child's best interest. Based on our decision, we decline to address these issues. 3 In this point of error, Mother also argues that the family court erred in not allowing her expert witness to testify regarding the Children's Justice Center (CJC) interview. The family court did not allow testimony regarding the CJC interview because the CJC interview was not offered into evidence. Without the CJC interview in evidence, expert testimony would not assist the trier of fact in understanding the CJC interview. See Hawai‘i Rules of Evidence Rule 702. 4 At Mother's request, we take judicial notice of the Child Welfare Case records in CAAP-XX-XXXXXXX. See Uyeda v. Schermer, 144 Hawai‘i 163, 172,
(continued . . .)
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
court found that "Mother [was] collaterally estopped from
relitigating the [Child Welfare Case] confirmation of Mother
sexually abusing the child since the issue was previously
determined in the [Child Welfare Case] which Mother was a party
[to] and she stipulated to jurisdiction and did not contest the
confirmation of sex abuse."
A due process "inquiry examines whether a parent
received a fundamentally fair process under the circumstances of
the case." See In re JH, 152 Hawaiʻi 373, 380, 526 P.3d 350, 357
(2023). A party asserting collateral estoppel (issue
preclusion) must show
(1) the issue decided in the prior adjudication is identical to the one presented in the action in question; (2) there is a final judgment on the merits; (3) the issue decided in the prior adjudication was essential to the final judgment; and (4) the party against whom [issue preclusion] is asserted was a party or in privity with a party to the prior adjudication.
Bremer v. Weeks, 104 Hawai‘i 43, 54, 85 P.3d 150, 161 (2004)
(emphasis added and citation omitted).
While the Child Welfare Case presented the same sexual
abuse issue as in this case, the sexual abuse issue was not
"decided in" the Child Welfare Case. The only issue clearly
(. . . continued)
439 P.3d 115, 124 (2019) (explaining the Hawai‘i Supreme Court has "explicitly 'validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same'") (citation and internal brackets omitted). And, Father's motion to strike Mother's opening brief for attaching documents from the Child Welfare Case is dismissed as moot, though Mother is cautioned to comply with the Hawai‘i Rules of Appellate Procedure.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
decided in the Child Welfare Case was that Father was capable of
providing a safe family home without a service plan. The family
court then closed the Child Welfare Case, with "temporary" sole
legal and physical custody of the Child being awarded to Father
in the Paternity Case. 5
Thus, collateral estoppel did not apply to Department
of Human Services' (DHS) sexual abuse confirmation. Under these
circumstances, where collateral estoppel was erroneously applied
to preclude Mother from disputing DHS's sexual abuse
confirmation, we conclude Mother did not receive the
fundamentally fair process she was due.
(2) Mother next contends the family court erred in
applying the presumption set forth in HRS § 571-46(a)(9).
Under HRS § 571-46(a)(9), if child custody is in
dispute, a determination that a parent committed "family
violence" raises "a rebuttable presumption that it is
detrimental to the child and not in the best interest of the
child to be placed in sole custody, joint legal custody, or
joint physical custody with the perpetrator of family violence."
In FC-DA No. 20-1-2179, an Order for Protection in
favor of Father and against Mother was entered on April 9, 2021
for a five-year term. In FC-DA No. 20-1-2237, an Order for
5 The family court stated it "consolidated this matter with [the Paternity Case], at Father's request[.]"
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Protection in favor of Mother and against Father was entered on
April 9, 2021 for a five-year term. Under state law, a family
court may issue an order for protection if necessary to prevent
"domestic abuse." HRS §§ 586-1 (Supp. 2024) (defining the term
"domestic abuse" as "Physical harm, bodily injury, assault, or
the threat of imminent physical harm, bodily injury, or assault,
extreme psychological abuse, coercive control, or malicious
property damage between family or household members"), 586-2
(Supp. 2024) (noting family court has jurisdiction), 586-5.5
(Supp. 2024) (indicating a family court may issue a protective
order if "necessary to prevent domestic abuse").
The family court concluded that Father rebutted the
presumption against him stemming from the issuance of the Order
for Protection against him, but Mother had not rebutted the
presumption. However, nothing in the record indicates Mother
was found to have committed "family violence," which is defined
differently than "domestic abuse." See generally HRS §§ 571-2
(2018) (defining "family violence" as "the occurrence of one or
more of the following acts by a family or household member," not
including acts of self-defense: "(1) Attempting to cause or
causing physical harm to another family or household member;
(2) Placing a family or household member in fear of physical
harm; or (3) Causing a family or household member to engage
involuntarily in sexual activity by force, threat of force, or
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
duress.") (formatting altered), 586-1 (defining "domestic
abuse").
Without a specific finding that Mother engaged in
"family violence," the family court erred in concluding the HRS
§ 571-46(a)(9) presumption applied solely based on the entry of
the Order of Protection.
Based on the foregoing, we vacate the family court's
February 23, 2024 "Decision and Order Re: Custody, Visitation,
and Support" and May 28, 2024 "Findings of Fact and Conclusions
of Law" and remand this case for further proceedings consistent
with this summary disposition order.
DATED: Honolulu, Hawai‘i, May 14, 2025.
On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Mateo Caballero, for Respondent-Appellant. /s/ Karen T. Nakasone Associate Judge Dyan K. Mitsuyama, Alethea K. Rebman, /s/ Sonja M.P. McCullen Paula S. Nakata, Associate Judge for Petitioner-Appellee.