Dean v. Department of Human Services Adult Protection Services

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUN-2024
07:54 AM
Dkt. 59 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

CHRISTINE DEAN, Appellant-Appellant, v.
DEPARTMENT OF HUMAN SERVICES ADULT PROTECTION SERVICES,
Appellee-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC191001357)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

In this secondary appeal, Appellant-Appellant Christine

Dean (Dean) appeals from the September 1, 2020 Judgment entered

by the Circuit Court of the First Circuit (Circuit Court).1 Dean

also challenges the Circuit Court's September 1, 2020 Order

Affirming Department of Human Services [(DHS)] Notice of

Administrative Hearing Decision Dated July 29, 2019 (Order

Affirming DHS).

Dean raises four points of error on appeal, contending

that the Circuit Court erred in: (1) affirming the DHS

Administrative Appeals Office Hearing Officer's (Hearing

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The Honorable James H. Ashford presided.
Officer's) Decision because it contained clearly erroneous

findings of fact (FOFs) and conclusions of law (COLs); (2) ruling

that there was substantial evidence in the record to support the

Hearing Officer's ruling that the 85-year-old adult man who was

allegedly financially exploited by Dean (Client A) was a

vulnerable adult; (3) ruling that excessive hearsay was allowed

at the administrative hearing; and (4) concluding that the

Hearing Officer did not violate Dean's Fifth Amendment rights.

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 Dean's points of error as follows:

(1) In conjunction with her first point of error, Dean

argues that the Circuit Court erred in concluding that the

Hearing Officer's decision to affirm DHS's confirmation of

financial exploitation by Dean is supported by reliable,

probative, and substantial evidence in the record. Dean's

opening brief does not comply with Hawai#i Rules of Appellate

Procedure (HRAP) Rules 28(b)(4), and the argument section of the

brief does not track with her points of error. However, it

appears that Dean's primary argument in support of her first

point of error is that Client A testified at the administrative

hearing that Dean did not financially exploit him. It further

appears that Dean relies on her other arguments to support her

first point of error. Therefore, we consider Dean's other

arguments before reaching the issue of whether she has

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established that she is entitled to relief on this first point of

error.

(2) Dean argues that there was not substantial

evidence in the record to support the Hearing Officer's decision

that Client A was a vulnerable adult.

Hawaii Revised Statutes (HRS) § 346-222 (2015) defines

vulnerable adult as follows:
"Vulnerable adult" means a person eighteen years of
age or older who, because of mental, developmental, or
physical impairment, is unable to:
(1) Communicate or make responsible decisions to
manage the person's own care or resources;
(2) Carry out or arrange for essential activities of
daily living; or
(3) Protect oneself from abuse, as defined in this
part.

The purpose of Chapter 346 is to protect vulnerable

adults, while infringing as little as possible on their personal

liberty. See HRS § 346-221 (2015). Financial exploitation of a

vulnerable person is a form of abuse. See HRS § 346-222.2

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HRS § 346-222 includes the following definition of financial
exploitation:

"Financial exploitation" means the wrongful taking,
withholding, appropriation, or use of a vulnerable adult's
money, real property, or personal property, including but
not limited to:
(1) The breach of a fiduciary duty, such as the
misuse of a power of attorney or the misuse of
guardianship privileges, resulting in the
unauthorized appropriation, sale, or transfer of
property;
(2) The unauthorized taking of personal assets;
(3) The misappropriation or misuse of moneys
belonging to the vulnerable adult from a
personal or joint account; or
(4) The failure to effectively use a vulnerable
adult's income and assets for the necessities
required for the vulnerable adult's support and
maintenance, by a person with a duty to expend
income and assets on behalf of the vulnerable
adult for such purposes.
Financial exploitation may be accomplished through coercion,
manipulation, threats, intimidation, misrepresentation, or
exertion of undue influence.

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The Hearing Officer's Decision includes numerous FOFs

citing substantial and probative evidence supporting a

determination that Client A was a vulnerable adult. For example,

in May of 2018, Client A had reported to Bank of America that he

was 85 years old, could not leave the house due to health issues,

someone named "Chris" was helping him with shopping (he did not

know her last name), and he had memory issues due to an accident.

A Bank of America investigation showed open account takeover

fraud claims against Client A's account totaling over $22,000 of
retail, airfare and cash advance transactions between November

2017 and May 2018. (Dean was referred to Client A by Visiting

Angels from about May of 2017 to June of 2018, after he fell and

suffered dizziness.) Client A reported to Bank of America that

he did not know how Dean would have gotten his credit card, which

he said was present at his home; he also said he thought the

account was closed. Bank of America said the card was sent to

Dean at her Ewa Beach address. When the Department of Human

Services Adult Protective Services (APS) called Client A's home,

Dean answered and reported that she was his caregiver, provided

food and meals, picked up his medications, and took him to

doctor's appointments. There was evidence that Client A lived

alone, had little or no family contact, had possible impairments,

and needed some or full assistance with activities of daily

living. Client A told APS that he had no idea that he had two

additional credit cards (Chase and Discover) he was paying for.

APS's investigation into Client A's finances during the period of

alleged vulnerability to Dean turned up tens of thousands of

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dollars of expenses/payments that Client A said he did not know

about or did not approve, although he later recanted some of

these statements. They included expenses that were, at least,

out of the norm for an elderly person to pay to a Visiting Angels

caregiver, such as travel expenses, Victoria Secret purchases,

and cash. Client A denied telling Dean to send money to someone

on the mainland; family members denied receiving money. Client A

stated on several occasions that he did not give anyone

permission to use his credit cards.
In addition, the Hearing Officer's findings note that

there was evidence of a brief interview of Client A by Dr.

Raymond Davidson, in which Dr. Davidson stated, inter alia, that

Client A did not know how much money he had in his accounts, the

date, day of week, month and year, or recent meals. This was not

the sole evidence of Client A's impairments, as suggested by

Dean.

Client A testified at the administrative hearing. In

the written decision, the Hearing Officer noted Client A's
testimony concerning memory lapses and that his mind "slips."

The Hearing Officer found that Client A seemed confused as to why

he was called to testify, he got agitated at times and tended to

wander. Client A retracted some of his earlier statements at the

May 6, 2019 administrative hearing, claimed to have authorized

and approved Dean's expenditures, and denied needing a high level

of care. We conclude, however, that based on the totality of the

evidence before the hearing officer, there was substantial

evidence in the administrative record supporting the Hearing

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Officer's decision that DHS had met its burden to establish that

Client A was a vulnerable person.3

(3) Dean argues that the Circuit Court erred in

rejecting her challenge to the Hearing Officer's Decision based

on the admission of "excessive" hearsay evidence at the

administrative hearing. Dean cites no authority supporting her

argument, concedes that hearsay may be admitted in some

instances, but says that the hearsay in this case was excessive

pointing primarily to APS's log of contacts regarding Client A.
Hearsay evidence is admissible at administrative hearings. See

HRS § 91-10(1) (2012); see also Price v. Zoning Bd. of Appeals of

Honolulu, 77 Hawai#i 168, 176, 883 P.2d 629, 637 (1994); Shorba

v. Bd. of Educ., 59 Haw. 388, 397, 583 P.2d 313, 319 (1978).

Dean also appears to challenge the Hearing Officer's

assessment of Client A's testimony at the hearing, although

pointing to no particular finding or part of the record on

appeal. However, "the credibility of witnesses and the weight to

be given their testimony are within the province of the trier of
fact and, generally, will not be disturbed on appeal." Tamashiro

v. Control Specialist, Inc., 97 Hawai#i 86, 92, 34 P.3d 16, 22

(2001). The Hearing Officer carefully considered and assessed

Client A's testimony, along with the other evidence presented at

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In conjunction with this argument, Dean also appears to argue that
the Hearing Officer ruled Client A "lacked capacity" and ignored the
presumption stated in HRS § 346-251 (2015) that an individual is presumed
capable of making decisions concerning their person. However, "financial
exploitation," as defined in HRS § 346-222 does not require a finding that a
vulnerable person lacked capacity. Here, the Hearing Officer's decision is
based on her conclusion that DHS correctly confirmed the report of financial
exploitation by Dean against Client A, a vulnerable adult. The Hearing
Officer's decision is not based on a conclusion that Client A lacks capacity.

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the hearing prior to finding that Client A's statements at the

hearing could be attributed to undue influence and manipulation.

We conclude that this point of error is without merit.

(4) Dean argues the Circuit Court erred in rejecting

her argument that the Hearing Officer violated her due process

rights under the Fifth Amendment of the U.S. Constitution. Dean

submits that her constitutional right to "remain silent" (i.e.,

not to testify) was violated when the Hearing Officer made

negative inferences against Dean for not testifying.
We note that "[t]he Fifth Amendment does not forbid

adverse inferences against parties to civil actions when they

refuse to testify in response to probative evidence offered

against them: the Amendment does not preclude the inference

where the privilege is claimed by a party to a civil cause."

Ramil v. Keller, 68 Haw. 608, 620, 726 P.2d 254, 262 (1986)

(cleaned up) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318

(1976)). However, as the Circuit Court correctly stated,

"Nowhere in the hearing decision did the hearing officer comment
on Ms. Dean's decision to remain silent." Accordingly, Dean's

argument is without merit.

Finally, upon consideration of all of Dean's arguments

on appeal, including but not limited to those specified above, we

further consider her first point of error, i.e., that the Circuit

Court erred in not concluding that the Hearing Officer's Decision

contained clearly erroneous findings of fact and erroneous legal

conclusions, and we conclude that there is substantial, reliable,

and probative evidence in the record supporting the Hearing

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Officer's findings, notwithstanding the existence of conflicting

evidence in the record, and the Hearing Officer did not err or

abuse her discretion in her conclusions in this case.

For these reasons, the Circuit Court's September 1,

2020 Judgment is affirmed.

DATED: Honolulu, Hawai#i, June 25, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Daphne E. Barbee,
for Appellant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
James W. Walther,
Lynne M. Youmans, /s/ Karen T. Nakasone
Deputy Attorneys General, Associate Judge
for Appellee-Appellee.

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