No "Disposition," No Order for Protection

By Benjamin Lowenthal -

 JD v. PD (ICA February 10, 2021)

Background. Mother filed a petition for order for protection against Father and alleged domestic abuse of Mother and child. The allegations went back to 2015. The family court, the Hon. Judge Natasha R. Shaw presiding, granted the petition and issued a temporary restraining order. The family court also ordered the Department of Human Services to investigate, submit a report, and appear at the hearing on the petition for an order of protection.

 

At the hearing, the family court accepted two reports prepared by a social worker at DHS. At the hearing both parties, the child’s former teacher, and the DHS social worker testified. The family court granted the petition and issued an order for protection for five years. The family court found that Mother proved the allegations in the petition. The family court prohibited Father from contacting Mother and child except under fully supervised visitation and as needed for court.

 

Father moved to amend or dissolve the order for protection. Father presented evidence that child welfare services investigated allegations of abuse and concluded that they were “not confirmed.” Father used this evidence as a basis to dissolve the order for protection. Father, however, appealed from the granting of the initial order for protection and the motion was denied for lack of jurisdiction.

 

DHS Reports, when Ordered, Need to have a “Disposition.” The ICA examined Father’s argument that the family court erred in admitting the DHS reports as “hearsay evidence.” Father presented his appeal pro se and the ICA started by examining applicable statutes first.

 

In cases where there are allegations of domestic abuse involving a family or household member who is a minor or an incapacitated person . . ., the employee or appropriate nonjudicial agency designated by the family court to assist the petitioner shall report the mater to the [DHS] . . . . The department of human services shall provide the family court with a written report on the disposition of the referral. The court shall file the report and mail it to the petitioner and respondent at least wto working days before the hearing date, if possible. If circumstances prevent the mailing of the report as required in this section, the court shall provide copies of the report to [the parties] at the hearing. The report shall be noted in the order dismissing the petition or granting the restraining order.

 

HRS § 586-10.5. According to the ICA, this statute requires DHS upon receiving a referral, to write a report on the “disposition of the referral” and turn it over to the parties and the court. The statute does not define the term “disposition.”

 

“Disposition” means the Final Result of the Investigation or Assessment of a Child Abuse Referral. In the absence of a statutory term, the ICA examined the statutes in pari materia. Jijun Yin v. Aguiar, 146 Hawai'i 254, 264, 463 P.3d 911, 921 (2020); HRS § 1-16. After surveying HRS Chapter 587A and relevant regulations pertaining to Child Welfare Services and finding no definition, the ICA turned to its plain meaning found in ordinary dictionaries. See Wells Fargo Bank, N.A. v. Omiya, 142 Hawai'i 439, 449, 420 P.3d 370, 380 (2018). In the end, the ICA defined the term “disposition” to mean the “the result of the investigation or assessment that the Department conducted pursuant to its procedures for a child abuse referral.” Here, the DHS referrals were incomplete. Without the final result of the investigation, the family court erred in issuing the order for protection.

 

Editor’s Note. This is the first published opinion by the Judge Karen T. Nakasone.

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