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                                                Electronically Filed
                                                Intermediate Court of Appeals
                                                CAAP-XX-XXXXXXX
                                                28-JUL-2020
                                                08:10 AM




               NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX


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

                              CAAP-XX-XXXXXXX
                          IN THE INTEREST OF LC1
                            (FC-S NO. 18-00140)

                                     AND
                              CAAP-XX-XXXXXXX
                          IN THE INTEREST OF LC2
                            (FC-S NO. 19-00132)


           APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT


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

             Mother-Appellant (Mother) appeals from, inter alia, the

August 6, 2019 Orders Concerning Child Protective Act (Custody

Orders), issued by the Family Court of the First Circuit (Family

Court).1    Mother also challenges various of the Family Court's

September 20, 2019 Findings of Fact and Conclusions of Law (FOFs

and COLs).




     1
         The Honorable Bode A. Uale presided.
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           In the Custody Orders, the Family Court revoked

Petitioner-Appellee Department of Human Services' (DHS) family

supervision of Mother and her child, LC1, confirmed DHS's custody

of LC1, and granted DHS's Petition for Temporary Custody of

Mother's child, LC2 (collectively, the Children).

           On appeal, Mother contends that the Family Court erred

in COL 7 when it concluded that she was not willing and able to

provide a safe family home, even with the assistance of a service

plan.   Mother principally argues the Family Court reversibly
erred when it admitted into evidence State's Exhibit 6, Queen's

Medical Center records that include toxicology results for Mother

and LC2 (Toxicology Report), or otherwise relied on the

Toxicology Report, without a sufficient foundation and without it

being properly admitted into evidence.     She further argues that,

without the exhibit, there was insufficient evidence to show that

she and LC2 tested positive for methamphetamine and amphetamine.

Relatedly, Mother challenges and/or otherwise contends that FOFs

34, 38, 46, 47, 50, 51, 70, 78, 79, 81-87, 89-94 are clearly

erroneous.   In addition, Mother submits that she did not receive

a fair trial because the Family Court based its decision in part
on the court's feeling that Mother had "duped" the court in prior

proceedings with respect to her alleged drug use.      Finally,

Mother contends that the Family Court applied the wrong standard

to her motion for reconsideration and reversibly erred in denying

that motion.

           Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

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the arguments advanced and the issues raised by the parties, we

resolve Mother's points of error as follows:

          Mother argues that the Family Court reversibly erred by

considering, without a sufficient foundation or proper admission

into evidence, the Toxicology Report, which purportedly shows

that on May 21, 2019, Mother tested positive for methamphetamine

and amphetamine when she was admitted to Queen's Medical Center

(Queen's) for LC2's birth, and on May 22, 2019, when LC2 was

born, that Mother and LC2 tested positive for methamphetamine and
amphetamine.

          An evidentiary hearing was held on July 31, 2019.

Although the Family Court denied a motion to strike the

Toxicology Report, it is unclear whether the Toxicology Report

was admitted into evidence at the July 31, 2019 hearing.      DHS

witnesses included Sherrilyn Watai (Nurse Watai), a registered

nurse at Queen's, where LC2 was born.     Nurse Watai testified,

inter alia, that she collected a specimen from LC2 of meconium,

which is a baby's first stool, and sent the specimen to the

hospital's lab.   She stated that she believed that the specimen

was sent out to Diagnostic Laboratory Services (DLS) for testing,

and that testing is not run within the Queen's system.      Nurse

Watai did not testify as to the contents of the Toxicology Report

or lay any further foundation for the admission of the report.

          DHS also called Dr. Clifford Wong (Dr. Wong), who was

employed as the director of the toxicology department at Clinical

Laboratories of Hawaii (Clinical Labs).     Dr. Wong testified

regarding Clinical Labs' drug testing of hair samples.      On cross-

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examination of Dr. Wong, a Clinical Labs report showing negative

drug test results for Mother's hair sample was admitted into

evidence.   When asked on direct examination about meconium drug

testing, he stated that Clinical Labs does not do such testing

in-house, but he was familiar with the testing; he answered

various questions about the nature and significance of meconium

drug testing.   Dr. Wong was shown what appears to have been the

Toxicology Report, and he stated that he did not know Queen's

procedures for processing meconium, but that the report he was
shown stated that a specimen was sent to a testing laboratory in

Illinois, United States Drug Testing Labs.     The report shown to

Dr. Wong was not admitted into evidence through his testimony,

and no attempt was made to elicit foundational testimony from Dr.

Wong.

            DHS called Lisa Kunioka (Ms. Kunioka), an assessment

worker in DHS's Child Welfare Services, whom the court qualified

as an expert in child welfare services.     Ms. Kunioka testified

that her supervisor told her to remove LC2 from Mother's custody.

She said that she then called Queen's and spoke to someone on the

telephone, whom she believed was the charge nurse, as well as a

hospital social worker, to confirm that Mother and LC2 tested

positive for methamphetamine.    Mother objected to the testimony

on the grounds that DHS was attempting to use an expert to allow

hearsay testimony as to the contents of a report with no

underlying indicia of reliability and that the contents were

based on statements from other people.     It was further argued

that her opinion as to harm should not be allowed if she did not

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have any underlying facts on which to base her opinion.        All

objections were overruled.    Although Ms. Kunioka was shown the

Toxicology Report at the hearing, she did not testify that she

relied on the report, and the report was not admitted into

evidence through her testimony.

           DHS also called Lena Kakehi (Ms. Kakehi), a DHS child

and adult protective services specialist.     The court qualified

Ms. Kakehi as an expert in child welfare services, noting in part

that she was the current case manager in this case.      She
testified that she was informed by Ms. Kunioka of the positive

drug tests.   She offered no testimony regarding the Toxicology

Report.

           After testimony was concluded, Mother asked the court

to strike the Toxicology Report because the State did not present

its witness who was slated to authenticate the document and

provide information about the drug testing reflected in the

report.   At the conclusion of arguments, the court orally ruled

that it was not striking the Toxicology Report because "it was

appropriately testified to by [N]urse Watai and, also, Dr.

Clifford Wong made comments about the testing."      The court then

stated:   "You know, I just feel like I was duped by your client,

Mr. Haia, when I returned the child to her, honestly feeling

like, you know, she was no longer using."     It is clear from the

court's further remarks, as well as the written FOFs and COLs

that the court was ruling against Mother based on the positive

drug test contained in the Toxicology Report.



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          Mother argues that the Toxicology Report should not

have been admitted in evidence due to a lack of foundation.              The

State argues that Nurse Watai's credible testimony that she took

LC2's meconium, and Dr. Wong's credible testimony regarding the

significance of a positive meconium test, provided sufficient

foundation for the Toxicology Report to be admitted into evidence

or otherwise relied on by the Family Court.         The State's argument

is without merit.

          In State v. Williams, 146 Hawai#i 62, 74-75, 456 P.3d
135, 147-48 (2020), the Hawai#i Supreme Court recently considered

whether a family court abused its discretion in admitting certain

x-rays into evidence due to a lack of foundation.          The supreme

court addressed the sufficiency of the foundation for the

admission of these particular x-rays as follows:
                State's Exhibits 3 and 4 would have been admissible as
          a "record of regularly conducted activity" pursuant to
          [Hawaii Rules of Evidence (HRE)] Rule 803(b)(6) if
          sufficient foundation was laid as to their authenticity by
          "the testimony of the custodian or other qualified witness,
          or by certification that complies with rule 902(11) or a
          statute permitted certification[.]" There was no
          certification, and Dr. Polk was not a "custodian" of records
          of Tripler. The issue therefore is whether Dr. Polk could
          be deemed an "other qualified witness" for purposes of
          laying a foundation for admission of the x-rays from
          Tripler.
          In State v. Fitzwater, 122 Hawai#i 354, 227 P.3d 520 (2010),
          this court stated:
                      A person can be a "qualified witness" who can
                authenticate a document as a record of regularly
                conducted activity under HRE Rule 803(b)(6) or its
                federal counterpart even if he or she is not an
                employee of the business that created the document, or
                has no direct, personal knowledge of how the document
                was created. As one leading commentator has noted:
                      . . . The phrase "other qualified witness" is
                      given a very broad interpretation. The witness
                      need only have enough familiarity with the
                      record-keeping system of the business in
                      question to explain how the record came into
                      existence in the ordinary course of business.
                      The witness need not have personal knowledge of

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                      the actual creation of the documents or have
                      personally assembled the records. In fact, the
                      witness need not even be an employee of the
                      record-keeping entity as long as the witness
                      understands the entity's record-keeping system.
                      There is no requirement that the records have
                      been prepared by the entity that has custody of
                      them, as long as they were created in the
                      regular course of some entity's business.
                      The sufficiency of the foundation evidence
                      depends in part on the nature of the documents
                      at issue. Documents that are "standard records
                      of the type regularly maintained by firms in a
                      particular industry may require less by way of
                      foundation testimony than less conventional
                      documents proffered for admission as business
                      records."
                5 Joseph McLaughlin, Weinstein's Federal Evidence
                § 803.08[8][a] (2d ed. 2009) (footnotes omitted).

          122 Hawai#i at 366, 227 P.3d at 532 (footnote omitted)
          (ellipsis in original).

                Dr. Polk had apparently worked for Tripler as a
          resident for four years in the late 1970s, but there was no
          foundation laid sufficient to render him an "other qualified
          witness" as to Tripler's x-rays. In addition, the ICA's
          statement that "[x]-ray results are the type of data that
          doctors reasonably rely on in rendering a diagnosis and both
          doctors testified as to their observations that [minor son]
          suffered a fractured femur" as a basis for its conclusion
          that the admission of the x-rays was harmless does not go to
          the issue of whether sufficient foundation had been laid for
          their admission, but only as to a basis for expert testimony
          pursuant to HRE Rule 703 (1984).
                Thus, insufficient foundation was laid for the
          admission of State's Exhibits 3 and 4.

Id. (footnote omitted).
          In this case, there was no certification.           Dr. Wong was

not a custodian of the records of Queen's (and he did not

otherwise work for Queen's), he specifically testified that he

did not know Queen's procedures related to meconium testing, and

there was no foundation laid sufficient to render him an "other

qualified witness" as to Queen's record-keeping system and/or

that of a third-party testing laboratory used by Queen's.              Nurse

Watai was employed by Queen's and testified as to the collection

of the meconium specimen and the transmission of the specimen to
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Queen's lab.   However, she had no specific knowledge of what

happened to the specimen after that, mistakenly believing that it

was sent to DLS, and she was not offered as a custodian of

records for Queen's or as someone with familiarity with the

Queen's record-keeping system to explain how the Toxicology

Report from United States Drug Testing Labs was created and

incorporated into Queen's records.    The person that was

apparently intended to be offered as a witness for that purpose,

APRN-RX Justine Tye, was not called as a witness by the State.
          Thus, insufficient foundation was laid for the

admission of the Toxicology Report and the Family Court abused

its discretion in admitting it into evidence and/or otherwise

considering it.   The Family Court made findings regarding

Mother's and LC2's positive drug tests based on the Toxicology

Report, and made further findings that, based on those positive

drug tests, it was more likely than not that Mother used and

exposed LC2 to drugs in utero.    Those findings were central to

the Family Court's findings that Mother has an unresolved

substance abuse problem and its conclusion that Mother was not

presently willing and able to provide the Children with a safe

family home, even with the assistance of a service plan.      On the

record in this case, we cannot conclude that the Family Court's

error in admitting and/or otherwise considering the Toxicology

Report was harmless.

          Therefore, we conclude that the Custody Orders must be

vacated on these grounds.   Accordingly, we need not address

Mother's other arguments on appeal.

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          For the reasons stated above, the Family Court's August

6, 2019 Custody Orders are vacated, and this case is remanded to

the Family Court for further proceedings pursuant to HRS Chapter

587A concerning the safety and health of the Children.

          DATED: Honolulu, Hawai#i, July 28, 2020.

On the briefs:
                                      /s/ Lisa M. Ginoza
Thomas A.K. Haia,                     Chief Judge
for Mother-Appellant.
                                      /s/ Katherine G. Leonard
Gay M. Tanaka,                        Associate Judge
Julio C. Herrera,
Erin Torres,                          /s/ Keith K. Hiraoka
Deputy Attorneys General,             Associate Judge
for Petitioner-Appellee
 Department of Human Services.




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