In re: A.G.
CourtHawaii Intermediate Court of Appeals
Date FiledOctober 30, 2026
DocketCAAP-26-0000142
StatusPublished
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Full Opinion
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2026
08:31 AM
Dkt. 97 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF A.G.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 26-00006)
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, and McCullen and Gluck, JJ.)
Mother-Appellant (Mother) and Father-Cross-Appellant
(Father) appeal from the February 26, 2026 Orders Concerning
. . . Continued Contested Return Hearing (Foster Custody Order)
entered in the Family Court of the First Circuit (family court).
Following a contested trial, the family court awarded foster
custody of A.G. (Child) to Petitioner-Appellee Department of
Human Services (DHS).
On appeal, Mother contends that the evidence was
insufficient for the family court to find by a preponderance of
the evidence that it had jurisdiction pursuant to Hawaii Revised
Statutes (HRS) Β§Β§ 571-11(9) (2018 & Supp. 2025) and 587A-5
(2018), to award foster custody to DHS, and to order the service
plan dated January 12, 2026 against Mother. Relatedly, Mother
challenges the following aspects of the family court's March 30,
2026 Findings of Fact and Conclusions of Law (FOFs/COLs):1/
1/
The FOFs are divided into several sections. Sections I. and II.
are separately numbered, each starting with "1." Beginning with Section III.,
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Section II., FOFs 4, 30, 38, and 41; Sections III.-XI., FOFs 7,
8, 16, 17, 22-24, 32, 37-40, 45, 50, 64, 76, 98, 99, 102, 104,
105, 109, 113-122, 124, 126, and 127; and COLs 11-19, and 22.
Father summarily challenges the same FOFs and COLs as
Mother and additionally challenges Section II., FOF 52; Section
III., FOF 2; and COLs 12 and 14.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Mother's and Father's (together, Parents) contentions as follows,
and affirm.
A. Mother's Contentions
1. Assumed Facts Not in Evidence
Mother contends that in entering the Foster Custody
Order, the family court "assumed facts that w[ere] not in
evidence," which violated her fundamental right to due process.
Specifically, Mother argues that the family court assumed without
evidence that Parents questioned whether the Child β who was born
prematurely and weighed one pound at birth β needed supplemental
oxygen, adjusted medical equipment against medical advice, and
objected to using "Western medication" as treatment for their
mental health diagnoses. Mother further argues there is no
evidence to support the family court's findings that (a) Parents'
unresolved mental health issues and lack of coherent thinking
places the Child at risk of neglect and harm if the Child is
placed in their care and custody, (b) Parents are unable or
unwilling to provide the Child with a safe family home; and (c)
Parents' behavior is a strong indicator they are homeless.
Mother also contends that the family court erroneously found that
Parents failed to prepare for the discharge of the Child from the
hospital, even though Father testified that their home state is
1/
(...continued)
the FOFs are consecutively numbered, starting with "1," without regard to
section number. The FOFs contain two consecutive sections labeled "IV." The
second section, "IV. Mental Health," should correctly be labeled, "V. Mental
Health." The FOFs also contain two sections labeled "XI." The first section
labeled "XI. Assessments" should correctly be labeled, "IX. Assessments." For
purposes of clarity, we will refer to the corrected section numbers in this
disposition.
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Arkansas, the Child was born in Hawai#i when Parents were here on
vacation, the Child's discharge date fluctuated, and Father
provided proof of medical coverage for the Child effective in all
states the day that DHS took custody of the Child.
We review the family court's FOFs for clear error and
its COLs de novo. Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d
355, 360 (2006) (quoting In re Doe, 95 Hawai#i 183, 190, 20 P.3d
616, 623 (2001)).
A[n] FOF is clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2) despite
substantial evidence in support of the finding, [we are]
nonetheless left with a definite and firm conviction that a
mistake has been made. Substantial evidence is credible
evidence which is of sufficient quality and probative value
to enable a person of reasonable caution to support a
conclusion.
Id. (internal quotation marks omitted).
A family court's determination as to whether a parent
is willing and able to provide a safe family home for their child
presents a mixed question of law and fact reviewed under the
clearly erroneous standard. Doe, 95 Hawai#i at 190, 20 P.3d at
623. "Moreover, the family court is given much leeway in its
examination of the reports concerning a child's care, custody,
and welfare, and its conclusions in this regard, if supported by
the record and not clearly erroneous, must stand on appeal." Id.
(brackets and internal quotation marks omitted) (quoting In re
Doe, 89 Hawai#i 477, 487, 974 P.2d 1067, 1077 (App. 1999)).
The challenged FOFs are supported by: (1) the
testimony of DHS social worker Jessica Wong-Sumida (Wong-Sumida),
who was qualified as an expert in social work, child protection
and child welfare; (2) DHS's January 9, 2026 Report for Orders
for Protective Custody and Temporary Foster Custody, which was
prepared by Wong-Sumida and admitted as State's Exhibit 1; and
(3) the January 12, 2026 Safe Family Home Report, which was
prepared by Wong-Sumida and admitted as Exhibit 2.
As to State's Exhibits 1 and 2, HRS Β§ 587A-18(a) (2018)
requires DHS to file certain written reports with the court
concurrent with the filing of a petition invoking the court's
jurisdiction under the Child Protective Act, Chapter 587A, and no
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less than fifteen days before a scheduled return hearing. HRS
Β§ 587A-18(d) states, "A written report submitted pursuant to this
section shall be admissible and relied upon to the extent of its
probative value in any proceeding under this chapter, subject to
the right of any party to examine or cross-examine the preparer
of the report."
Here, Mother's counsel cross-examined Wong-Sumida, and
the family court properly relied on Exhibits 1 and 2, as
reflected in COLs 11 and 17. Further, the family court found
Wong-Sumida to be a credible witness and found Father not to be a
credible witness.2/ Any purported conflict between Father's
testimony and DHS's evidence, including Wong-Sumida's testimony,
was for the family court to resolve. See DL v. CL, 146 Hawai#i
328, 336, 463 P.3d 985, 993 (2020) (issues dependent upon the
credibility of witnesses and the weight of the evidence are
within the province of the trier of fact (quoting Doe, 95 Hawai#i
at 190, 20 P.3d at 623)).
Substantial evidence supports the challenged FOFs and
COLs, which present mixed issues of fact and law. They are not
clearly erroneous, and there was no due process violation.
2. Shifting the Burden of Proof
Mother contends that the family court "committed a
structural legal error by unconstitutionally shifting the burden
of proof to the Parents rather than the DHS . . . ."
(Capitalization altered.) She argues that this "shift" is
reflected in the following FOFs:
II. Background and Procedural History
. . . .
41. Mother and Father made an oral motion to dismiss
the petition and return the Child to their care, arguing
that Father's Exhibit F-1 is evidence of medical coverage in
Arkansas obtained for the Child prior to the [temporary
foster custody (TFC)] hearing. The Parents failed to
present arguments or evidence of a stable residence capable
of supporting the Subject Child's continued oxygen needs in
the State of Hawai#i or elsewhere and/or a basic
understanding of the Child's needs.
2/
Mother did not testify or produce witnesses or exhibits.
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. . . .
[V.] Mental Health
. . . .
23. The Parents failed to provide any evidence of
consistent mental health treatment from a therapeutic
provider.
24. The Parents failed to present any evidence of a
legal medical marijuana card or a valid medical prescription
for marijuana.
. . . .
38. No mental health professional treating the
Parents has recommended that the Subject Child be reunified
with Mother or Father.
Mother further argues that DHS had the burden of proof, and
because the family court made findings by improperly shifting the
burden of proof to Parents, COLs 11-22 are erroneous.
DHS presented evidence β and Parents do not challenge
the family court's related findings β that hospital staff
informed Parents that they needed housing capable of supporting
an oxygen machine for the Child. Section II., FOF 23. See
Balogh v. Balogh, 134 Hawai#i 29, 33 n.3, 332 P.3d 631, 635 n.3
(2014) (unchallenged findings of fact by the family court are
binding on the appellate court). Parents were told the Child was
medically fragile and required oxygen to survive, and could not
be discharged without confirmed medical coverage. Section II.,
FOF 24. Hospital staff reported ongoing concerns that the Child
might not survive air transport without necessary oxygen.
Section II., FOFs 14, 24, 27. Although Father claimed to own
numerous homes in Arkansas, Father failed to present evidence of
those homes and on the second day of trial testified from Oregon,
where Parents had applied for government assistance benefits.
Section II., FOFs 46, 50, 51. The family court's FOF 41 β that
Parents failed to present evidence of stable housing capable of
supporting the Child's need for oxygen β is not an improper
shifting of the burden of proof. Rather, it is a finding, after
DHS introduced evidence raising safety concerns about the Child,
that the family court did not find Parents' evidence, consisting
primarily of Father's testimony, either credible or persuasive.
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DHS also presented evidence β and Parents do not
challenge the family court's related findings β that Mother
reported having Post-Traumatic Stress Disorder, anxiety, and
diabetes; using tetrahydrocannabinol (THC); and having a medical
marijuana card from another state. Section II., FOF 7; Section
V., Mental Health, FOF 20. DHS similarly presented evidence β
and Parents do not challenge the family court's related findings
β that Father reported an unspecified form of mental health
diagnosis and actively using THC-acid. Section II., FOF 8;
Section V., Mental Health, FOF 21. FOFs 23, 24, and 38 (quoted
supra) simply reflect Parents' failure to rebut DHS's evidence.
The family court did not commit structural error by improperly
shifting the burden of proof to Parents.
B. Father's Contentions
Father joins Mother's contentions. For the reasons
stated above, those contentions fail and Father's effort to
piggyback on them likewise fails. Father additionally challenges
Section II., FOF 52, along with COLs 12 and 14, and Section III.,
FOF 2.
As to FOF 52 and COLs 12 and 14, Father contends that
the record lacks substantial evidence to support the findings
that DHS made reasonable efforts (a) to prevent or eliminate the
need for removal of the Child from the family home, and (b) to
finalize the permanency plan, which was reunification. Father
argues that DHS did not make reasonable efforts to unify Father
with the Child and did not provide Father a reasonable
opportunity for reunification.
Substantial evidence supports the challenged FOFs and
COLs, which present mixed issues of fact and law. That evidence,
as reflected in numerous unchallenged FOFs, includes the
following: The day after the Child was born, DHS referred the
family to Family Strengthening Services upon receiving a report
of concern for the Child. Section II., FOF 3. When Father
identified paternal grandmother as a proposed safety plan
participant, DHS spoke with paternal grandmother and requested
her identification to perform background clearances, which was
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not provided. Section II., FOFs 16, 18. At a second multi-
disciplinary team meeting, parents discussed relocating to
Arkansas and were informed that stable housing capable of
supporting an oxygen machine for the Child was required. Section
II., FOF 23. Father failed to present any supporting evidence of
an address in Arkansas. Section II., FOF 46; Section VII., FOF
59. Parents often changed their telephone numbers and did not
keep hospital staff or DHS informed of their current phone
number. Section II., FOF 26; Section V., FOF 35. Hospital staff
offered multiple resources to Parents, which they declined to
pursue. Section II., FOF 28.
In addition, Father testified that between January 15,
2026, when trial started, and February 25, 2026, when trial
concluded, Parents left Hawai#i and traveled through several
states, including Arkansas, Texas and Oregon. Although Father
claimed his residence was in Arkansas, he applied for government
food assistance in Oregon. When he testified via Zoom on
February 25, 2026, Father stated he was in Samson, Oregon at a
friend's business conference. Father also appeared to confirm
that he did not provide DHS with an address in Arkansas until
four or five days prior to February 25, 2025, because at first he
planned to go to his mother's home. Given Parents' shifting
plans, the services offered through the hospital, the Child's
medical needs, and DHS's attempts to follow up when Parents
provided information, the family court did not clearly err in
finding that DHS made reasonable efforts to prevent or eliminate
the need to remove the Child from the family home.
As to Section III., FOF 2, Father challenges the
finding that the Child has resided in Honolulu throughout the
pendency of this case. He argues that Parents resided in
Arkansas, Mother gave birth prematurely while in Hawai#i, Parents
had no intent to move and reside in Hawai#i, and "the Child did
not, on her own, establish residency in Hawai#i[.]"
Father does not dispute Section II., FOFs 2 and 34,
which establish that (a) the Child was born at Kaiser Permanente
Medical Center after Mother was flown from Maui to Oahu, and (b)
on January 9, 2026, the Honolulu Police Department took the Child
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into protective custody and transferred custody to DHS, which
assumed temporary foster custody. The Child never left the State
of Hawai#i and was brought to court by the resource caregiver on
the last day of trial.
HRS Β§ 587A-5 states:
Pursuant to section 571-11(9), the court shall have
exclusive original jurisdiction:
(1) In a child protective proceeding concerning any
child who is or was found within the State at
the time specified facts and circumstances
occurred, are discovered, or are reported to the
department. These facts and circumstances
constitute the basis for the court's finding
that the child's physical or psychological
health or welfare is subject to imminent harm,
has been harmed, or is subject to threatened
harm by the acts or omissions of the child's
family; and
(2) In any prior child protective proceeding under
chapter 587, the former Child Protective Act.
Whether or not Parents' residence was outside the State
of Hawai#i, the Child was born in and never left the state. The
family court therefore had jurisdiction over the underlying
proceeding under HRS Β§ 587A-5.
C. Conclusion
For the reasons discussed above, the February 26, 2026
Foster Custody Order is affirmed.
DATED: Honolulu, Hawai#i, October 30, 2026.
On the briefs:
/s/ Clyde J. Wadsworth
Tae Chin Kim Presiding Judge
for Mother-Appellant.
Crystal M. Asano /s/ Sonja M.P. McCullen
for Father-Cross-Appellant. Associate Judge
Savanah E. Song and
Julio C. Herrera, /s/ Daniel M. Gluck
Deputy Attorneys General, Associate Judge
for Petitioner-Appellee.
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