J.W. v. R.E.

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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.
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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 . . .)

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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.

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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[.]"

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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

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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.

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