In re: TC and RC ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-DEC-2021
08:04 AM
Dkt. 63 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF TC AND RC
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(FC-S NO. 19-0021K)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and McCullen, JJ.)
Appellant Mother (Mother) appeals from the Order
Related to Continued Second Permanency Hearing, filed on January
8, 2021 (1/8/21 Order Re: Second Permanency Hearing) in the
Family Court of the Third Circuit (Family Court),1 related to
Mother's two children (Children)
The State of Hawai#i, Department of Human Services
(DHS) contends that this court lacks appellate jurisdiction
because the 1/8/21 Order Re: Second Permanency Hearing is not an
appealable order. Thus, as a threshold matter, we address our
jurisdiction in this appeal.
Under Hawaii Revised Statutes (HRS) § 571-54 (2018),
"appeals in family court cases, as in other civil cases, may be
taken only from (1) a final judgment, order, or decree, . . . or
1
The Honorable Mahilani E.K. Hiatt signed the Order Related to
Continued Second Permanency Hearing, and the Honorable Joseph P. Florendo, Jr.
presided at the hearing.
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(2) a certified interlocutory order." In re Doe Children, 96
Hawai#i 272, 283, 30 P.3d 878, 889 (2001) (citations omitted).
"'Final order' means an order ending the proceedings, leaving
nothing further to be accomplished." Familian NW., Inc. v. Cent.
Pac. Boiler & Piping, Ltd., 68 Haw. 368, 370, 714 P.2d 936, 937
(1986) (citation omitted). "However, it is widely acknowledged
that a final judgment or decree is not necessarily the last
decision of a case. What determines the finality of an order or
decree is the nature and effect of the order or decree." In re
Doe, 77 Hawai#i 109, 114, 883 P.2d 30, 35 (1994) (internal
quotation marks, emphasis, and citation omitted).
"The very nature of a family court chapter 587
proceeding entails an ongoing case which does not result in a
'final' order, as that term is generally defined, because, under
chapter 587, the family court retains continuing jurisdiction
over the case in order to prevent future harm or threatened harm
to a child." In re Doe Children, 96 Hawai#i at 283, 30 P.3d at
889 (brackets and citations omitted). Despite the Family Court's
continuing jurisdiction over a child, "[i]mmediate review is
necessary because parents have fundamental liberty interests in
the care, custody, and management of the child." In re Doe, 77
Hawai#i at 115, 883 P.2d at 36 (internal quotation marks,
brackets, and citations omitted). The Hawai#i Supreme Court thus
recognized favorably that "an infringement upon parental custody
rights is an appealable decision even though the requisite
finality normally required for appeals is lacking[,]" and held
that "fundamental liberty interests in the custody and care of [a
mother's] child compel appellate review even though the degree of
finality normally required for an appeal has not been met." Id.
at 114-15, 883 P.2d at 35-36 (internal quotation marks omitted)
(emphasis added).
At a permanency hearing, the Family Court is required
to make findings as to certain issues and the Family Court also
shall order: a child's reunification with a parent or parents;
the child's continued placement in foster care under certain
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circumstances; or a permanent plan with a goal as specified by
statute. See HRS § 587A-31 (2018).2
2
HRS § 587A-31 states:
§587A-31 Permanency hearing. (a) A permanency
hearing shall be conducted within twelve months of the
child's date of entry into foster care or within thirty days
of a judicial determination that the child is an abandoned
infant or that aggravated circumstances are present. A
permanency hearing shall be conducted at least every twelve
months thereafter for as long as the child remains in foster
care under the placement responsibility of the department or
an authorized agency, or every six months thereafter if the
child remains in the permanent custody of the department or
an authorized agency.
(b) The court shall review the status of the case to
determine whether the child is receiving appropriate
services and care, that case plans are being properly
implemented, and that activities are directed toward a
permanent placement for the child.
(c) At each permanency hearing, the court shall make
written findings pertaining to:
(1) The extent to which each party has complied with
the service plan and progressed in making the
home safe;
(2) Whether the current placement of the child
continues to be appropriate and in the best
interests of the child or if another in-state or
out-of-state placement should be considered;
(3) The court's projected timetable for
reunification or, if the current placement is
not expected to be permanent, placement in an
adoptive home, with a legal guardian, or under
the permanent custody of the department or an
authorized agency;
(4) Whether the department has made reasonable
efforts, in accordance with the safety and
well-being of the child, to:
(A) Place siblings who have been
removed from the family home
with the same resource family,
adoptive placement, or legal
guardians; and
(B) Provide for frequent
visitation or other ongoing
interactions with siblings who
are not living in the same
household;
(5) The appropriate permanency goal for the
child, including whether a change in goal
is necessary;
(6) Whether the department has made reasonable
efforts to finalize the permanency goal in
effect for the child and a summary of
those efforts;
(7) The date by which the permanency goal for
the child is to be achieved;
(8) In the case of a child who has attained
(continued...)
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2
(...continued)
fourteen years of age, the services needed
to assist the child with the transition
from foster care to independent living;
and
(9) Consultations with the child in an
age-appropriate manner about the proposed
plan for permanency or transition from
foster care to independent living.
(d) At each permanency hearing, the court shall
order:
(1)The child's reunification with a parent or
parents;
(2) The child's continued placement in foster
care, where:
(A) Reunification is expected to
occur within a time frame that
is consistent with the
developmental needs of the
child; and
(B) The safety and health of the
child can be adequately
safeguarded; or
(3) A permanent plan with a goal of:
(A) Placing the child for adoption
and when the department will
file a motion to set the
matter for the termination of
parental rights;
(B) Placing the child for legal
guardianship if the department
documents and presents to the
court a compelling reason why
termination of parental rights
and adoption are not in the
best interests of the child;
or
(C) Awarding permanent custody to
the department or an
authorized agency, if the
department documents and
presents to the court a
compelling reason why adoption
and legal guardianship are not
in the best interests of the
child.
(e) At each permanency hearing where a permanent
plan is ordered, the court shall make appropriate orders to
ensure timely implementation of the permanent plan and to
ensure that the plan is accomplished within a specified
period of time.
(f) A permanency hearing may be held concurrently
with a periodic review hearing.
(g) If the child has been in foster care under the
responsibility of the department for a total of twelve
consecutive months or an aggregate of fifteen out of the
most recent twenty-two months from the date of entry into
foster care, the department shall file a motion to terminate
parental rights, unless:
(continued...)
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Here, DHS filed a Permanent Plan on August 19, 2020,
recommending continued foster care until a determination whether
the Children could be reunified with a suitable and appropriate
parent; and if reunification with a parent was not possible, DHS
recommended placement with paternal grandparents. On September
23, 2020, the Family Court issued its Orders Related To First
Permanency Hearing in which it ordered the "proper concurrent
permanency plan is reunification or adoption."
Subsequently, a Permanent Plan filed by DHS on November
25, 2020, noted that on November 10, 2020, the Family Court
approved foster care placement of the Children with their
paternal grandparents in Idaho and thus "DHS recommends the
proposed revised case goals and objectives be reunification with
Father" (emphasis added).
After a hearing on December 29, 2020, the Family Court
entered the 1/8/21 Order Re: Second Permanency Hearing, which is
the subject of this appeal, and ordered among other things: that
foster custody be continued; and that the proper permanency plan
was reunification. Given DHS's most recent permanent plan, which
had been filed and then admitted into evidence, the effect of
this order was that the revised permanency plan approved by the
Family Court now called for reunification with Father who resided
2
(...continued)
(1) The department has documented in the
safe family home factors or other
written report submitted to the
court a compelling reason why it is
not in the best interest of the
child to file a motion; or
(2) The department has not provided to
the family of the child, consistent
with the time period required in the
service plan, such services as the
department deems necessary for the
safe return of the child to the
family home.
(h) Nothing in this section shall prevent the
department from filing a motion to terminate parental rights
if the department determines that the criteria for
terminating parental rights are present.
(Emphases added).
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in Idaho. The 1/8/21 Order Re: Second Permanency Hearing also
found that the projected date for reunification was February
2021. Further, by the time of this order, the Children had been
relocated out-of-state to Idaho and placed with their paternal
grandparents. The order found that this out-of-state placement
was safe, appropriate and in the best interest of the Children.
Given these circumstances, we conclude the 1/8/21 Order
Re: Second Permanency Hearing infringed upon Mother's parental
custody rights and is an appealable order. Id. at 115, 883 P.2d
at 36 (citing In re Yavapai Cty. Juvenile Action No. J-8545, 680
P.2d 146, 150-51 (Ariz. 1984) (en banc) ("A parent denied and
redenied control over his or her children must have the right to
appeal the initial and subsequent denials.")). We thus have
jurisdiction to review the merits of this appeal.
On appeal, Mother contends the Family Court erred by
(1) refusing to provide Mother with an opportunity to have an
evidentiary hearing on a permanent placement plan conducted
pursuant to HRS § 587A-31, (2) failing to ensure that her
Children in foster custody were provided proper notice of court
hearings and by failing to appoint an attorney for the Children
to protect their rights, (3) admitting reports into evidence and
not giving Mother an opportunity to cross-examine the preparers
of the reports, (4) finding the Children's current placement is
safe and appropriate, (5) finding Petitioner-Appellee DHS made
reasonable efforts to finalize a permanency plan, (6) finding
Father made progress and Mother made some progress toward
resolving the problems that necessitated placement (7) finding
"each term, condition, and consequence of the Interim Family
Service Plan dated April 23, 2019 has been explained to and is
understood by the children's mother to be continued," (8) finding
the Children have been consulted, in an age appropriate manner,
about the proposed permanency and/or transition goal, and
(9) finding "[t]he out-of-state placement with the children's
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paternal grandparents proposed by DHS is safe, appropriate, and
in the best interest of the children."
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 Mother's points of error as follows:
Points of error (1) and (3): Mother contends the Family
Court erred by refusing to provide her with an opportunity to
have an evidentiary hearing on a permanent placement plan.
Mother asserts HRS § 587A-31 requires the Family Court to hold a
hearing and make findings of fact. Thus, Mother argues the
Family Court should have received and properly considered
sufficient information before making such findings, including
providing an opportunity for all parties to present evidence on
issues related to the required findings, and the failure to allow
Mother to testify and present evidence was prejudicial and a
violation of due process.
Mother has a fundamental liberty interest in the right
of care, custody, and control of the Children, and thus "the
State may not deprive her of this interest without providing a
fair procedure for deprivation." Doe v. Doe, 120 Hawai#i 149,
168, 202 P.3d 610, 629 (App. 2009) (citations omitted). "At its
core, procedural due process of law requires notice and an
opportunity to be heard at a meaningful time and in a meaningful
manner before governmental deprivation of a significant liberty
interest." Id. (emphasis added)(quoting State v. Bani, 97
Hawai#i 285, 293, 36 P.3d 1255, 1263 (2001)).
At a permanency hearing, the Family Court is required
to make written findings as specified by statute. See HRS
§ 587A-31(c). Pursuant to HRS § 587A-18 (2018), DHS is required
to submit certain reports to the Family Court in Child Protective
Act proceedings such as this case, including reports prior to
periodic review hearings and permanency hearings. HRS § 587A-
18(d) provides that "[a] written report submitted pursuant to
this section shall be admissible and relied upon to the extent of
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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." (Emphasis added). A permanency hearing
is a proceeding within the meaning of HRS Chapter 587A and thus a
party to the proceeding must be given the right to examine or
cross-examine the preparer of reports admitted into evidence
pursuant to HRS § 587A-18. Examination regarding such reports is
particularly relevant when the reports are the bases to support
findings required by HRS § 587A-31.
At the end of a hearing on November 10, 2020, at which
the Family Court ordered the Children could be placed with their
paternal grandparents in Idaho, the parties discussed scheduling
the second permanency hearing. Mother asserted that the
December 8, 2020 permanency hearing should be an evidentiary
hearing. DHS asserted, however, that the Family Court had a
practice that permanency hearings were not contested evidentiary
hearings and that "[t]he only evidence presented would be the
permanency plan and any reports submitted in preparation for the
[permanency] hearing." DHS's position thus made clear that it
intended to rely upon reports admitted into evidence for the
Family Court to make the required findings under HRS § 587A-31(c).
On December 8, 2020, a permanency hearing was held.
Mother raised several motions verbally at the hearing. First,
Mother requested a stay regarding a prior court order allowing
the Children to travel to Idaho. The motion for a stay was
denied. Second, Mother asserted a motion to continue the
permanency hearing, in part because DHS filed an updated report
on November 25, 2020, two days late, and the Guardian Ad Litem
(GAL) also filed an untimely report given a deadline set by the
court. The Family Court granted a continuance of the permanency
hearing to December 29, 2020. Third, Mother requested that the
permanency hearing be an evidentiary hearing, asserting that she
objected to the permanency plan because its stated goal of
reunification was only with Father. DHS stated that based on
available information, Father was on track to be the first parent
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to create a safe family home but that DHS had not ruled out
reunification with Mother. After Father's counsel objected to
the lack of a filed written motion "to know what the issues are
and be able to respond," the Family Court noted that during the
November 10, 2020 hearing Mother was instructed to submit a
written request as to why the permanency hearing should be an
evidentiary hearing but nothing was submitted. The Family Court
granted a continuance of the December 8, 2020 permanency hearing
but again requested Mother to file a motion "explaining why it
should be an evidentiary hearing for the next permanency
hearing." Mother's counsel responded "I will file a written
motion for an evidentiary hearing. And one of the grounds for
the evidentiary hearing is the statute that provides any party
with the right to examine the preparer of the report."
At the continued permanency hearing, on December 29,
2020, DHS requested that the Family Court adopt DHS's proposed
order that had been submitted to the court, with a revision to
update the location of the Children. In turn, Mother argued,
inter alia, that the Family Court was obligated to make certain
findings under HRS § 587A-31(c), that she had a right under HRS
§ 587A-18(d) to examine those who had prepared the reports
submitted to the Family Court, and that she had the right to
present her testimony and other evidence. The Family Court ruled
that: it would approve the order proposed by DHS; and that
although Mother argued for an evidentiary hearing, she had been
on notice since the prior hearing on December 8, 2020, that she
should file a written motion, and that if a written motion had
been filed it was untimely for the continued permanency hearing
and thus the court would not consider Mother's contentions made
at the present hearing. No witnesses were called or other
evidence presented at the hearing. The 1/8/21 Order Re: Second
Permanency Hearing, entered after the December 29, 2020 hearing,
provides that DHS's Permanent Plan filed on November 25, 2020, as
well as the GAL's Fourth Report To The Court, filed on December
8, 2020, "are admitted into evidence and made a part of the
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record, subject to cross-examination thereon[.]" The reference
in the order that the admitted reports were subject to cross-
examination is not correct, as Mother was not allowed to examine
any witnesses, including those who had prepared these reports.
Based on this record, we first conclude the Family
Court erred in requiring Mother to submit a written motion prior
to allowing her to examine or cross-examine the preparers of the
reports or to present her own testimony and other evidence. Rule
10(a) of the Hawai#i Family Court Rules (HFCR) states in part:
"All motions, except when made during a hearing or trial, shall
be in writing, shall state the grounds therefor, shall set forth
the relief sought, and if involving a question of law shall be
accompanied by a memorandum in support of the motion." HRS
§ 587A-18(d) expressly allowed Mother to examine or cross-examine
the preparers of DHS's reports. Further, even if HFCR Rule 10(a)
was applicable, it was satisfied. "The purpose of a motion in
writing is to give notice to the opposite party and state the
grounds of the motion. There is nothing sacrosanct about the
writing." Benezet v. Nowell, 42 Haw. 581, 584 (Haw. Terr. 1958)
(interpreting Hawai#i Rules of Civil Procedure Rule 7(b)).
During the hearing on November 10, 2020, Mother orally informed
the Family Court that she did not agree to the permanency plan
and wanted the permanency hearing set for December 8, 2020, to be
an evidentiary hearing. During a permanency hearing on December
8, 2020, Mother explained that she objected to the permanency
plan because it only proposed reunification with Father. At the
continued permanency hearing on December 29, 2020, Mother again
objected to the permanency plan and requested to exercise her
right to examine the preparers of submitted reports and present
her own testimony. Thus, Mother made her motion for an
evidentiary hearing during a hearing and was not required to file
a written motion under HFCR Rule 10(a). In re AB, 145 Hawai#i
498, 515, 454 P.3d 439, 456 (2019), as amended (Dec. 16, 2019)
(holding that, even if HFCR Rule 10(a) applied to an application
to intervene, the requesting party made the request during a
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hearing and thus the request was exempt from the writing
requirement under the rule).
Second, HRS § 587A-18(d) explicitly provides Mother
should have been afforded an opportunity to examine or cross-
examine the preparer of the DHS reports that would be relied upon
during the permanency hearing.3 Mother made this argument and
cited the statutory provision, albeit verbally at a hearing.
Given the record, Mother should have been provided with the
rights to examine witnesses under this statutory provision. We
note that admission of a report into evidence under HRS § 587A-
18(d) is not contingent upon actual cross examination of the
preparer of the report, however such admission subjects the
preparer of a report to cross examination. Therefore, the Family
Court did not err by admitting into evidence DHS's Permanent Plan
filed on November 23, 2020; however, admission of this report
meant that Mother should have been allowed to examine or cross-
examine those who prepared that report or any DHS report admitted
and relied upon by the Family Court.
Furthermore, we conclude that given Mother's due
process rights to be heard at a meaningful time and in a
meaningful manner, she should have also been afforded the
opportunity to testify at the second permanency hearing and
allowed to present other relevant evidence. We recognize that
the Family Court must have discretion to properly manage its
calendars and the proceedings before it. However, given Mother's
parental custody rights at issue in this case, the Family Court
should have allowed her the opportunity to present evidence
relevant to the issues before the court in the second permanency
hearing. See AC v. AC, 134 Hawai#i 221, 339 P.3d 719 (2014)
3
HRS § 587A-18 applies to reports filed by "the department or other
authorized agencies." For purposes of Chapter 587A, "[d]epartment" is defined
as "the department of human services and its authorized representatives[;]"
and "[a]uthorized agency" is defined as "the department, other public agency,
or a person or organization that is licensed by the department or approved by
the court to receive children for control, care, maintenance, or placement."
HRS § 587A-4.
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(holding the Family Court abused its discretion in denying a
mother's motion for additional time to present evidence relevant
to determining the best interest of the children in a case
involving custody over minor children). Thus, the Family Court
erred in denying Mother the opportunity to testify and to present
relevant evidence.
Point of error (2): Mother contends the Family Court
erred by failing to ensure the Children were provided proper
notice of court hearings under rights established in HRS § 587A-
3.1 (2018)4 and by failing to appoint an attorney for the
children to protect their rights pursuant to HRS § 587A-
16(c)(6)(2018).5
4
HRS § 587A-3.1 provides, in relevant part:
[HRS § 587A-3.1]. Rights of children in foster care.
(a) The department or an authorized agency shall ensure,
whenever possible, that a child in foster care will:
. . . .
(6) Receive notice of court hearings, and if the
child wishes to attend the hearings, the
department or authorized agency shall ensure
that the child is transported to the court
hearings;
(7) Have in-person contact with the child's assigned
child welfare services worker;
. . . .
(b) In addition to the rights established in
subsection (a), a child in foster care shall have the
following rights:
. . . .
(2) To meet with and speak to the presiding judge in
the child's case;
(3) To have regular in-person contact with the
child's court appointed guardian ad litem, court
appointed special advocate, and probation
officer;
(4) To ask for an attorney, if the child's opinions
and requests differ from those being advocated
by the guardian ad litem pursuant to section
587A-16(c)(6);
. . . .
5
HRS § 587A-16(c) states:
(c) A guardian ad litem shall, unless otherwise
ordered by the court:
. . . .
(6) Inform the court of the child's opinions and
requests. If the child's opinions and requests
differ from those being advocated by the
(continued...)
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Mother claims she preserved these points of error by
repeatedly requesting an attorney for the Children, both orally
and in her December 29, 2020 "Motion for Evidentiary Hearing and
Appointment of an Attorney for the Children," but that her
requests were denied. Mother cites generally to the court
minutes without specifying where in the court minutes she
requested appointment of an attorney under HRS § 587A-16(c)(6).
Moreover, the minutes do not appear to reflect Mother made such a
request.6 With regard to Mother's "Motion for Evidentiary
Hearing and Appointment of Attorney for the Children," it was
transmitted electronically to DHS and the Family Court7 prior to
the start of the December 29, 2020 continued permanency hearing
but was not filed until approximately two hours after the hearing
concluded. The Family Court stated it would not hear the motion
at the permanency hearing but did not deny it.
On this record, we cannot conclude that Mother properly
raised the issues in her second point of error before the Family
Court. Moreover, to the extent Mother asserts that the Family
Court should have acted sua sponte, Mother presents no argument
and does not point to anything in the record to establish that
the Family Court should have acted sua sponte as she contends.
5
(...continued)
guardian ad litem, the court shall evaluate and
determine whether it is in the child's best
interests to appoint an attorney to serve as the
child's legal advocate concerning such issues
and during such proceedings as the court deems
to be in the best interests of the child.
6
Although Mother relies solely on the minutes, which fail to reflect
that she raised the issue on appeal, we note the transcript for the December
29, 2020 hearing reflects that Mother's attorney stated "the children have
statutory rights under Section 3.1 of [chapter 587A]. And the Court has a duty
under -3.1(c) to protect those children's rights, which has not happened yet
and needs to happen." However, Mother made no further argument or factual
assertion in this regard to the Family Court.
7
On May 28, 2020, the Interim Chief Judge of the Circuit Court of the
Third Circuit withdrew prior orders allowing documents to be submitted by E-
mail to the Family Court of the Third Circuit.
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Points of error (4) through (9): Mother's remaining
points of error challenge certain findings made by the Family
Court in the 1/8/21 Order Re: Second Permanency Hearing. We have
held above that: the Family Court erred in precluding Mother from
examining or cross-examining those who prepared DHS's Permanent
Plan filed on November 23, 2020, and any other DHS report
admitted and relied upon, pursuant to HRS § 587A-18; and
furthermore, the Family Court erred in precluding Mother from
testifying and presenting other relevant evidence. Given these
rulings, we further conclude that the findings in the 1/8/21
Order Re: Second Permanency Hearing that Mother challenges in her
points of error (4) through (9) must be vacated because she did
not have a meaningful opportunity to present any evidence
pertaining to the challenged findings.
Therefore, IT IS HEREBY ORDERED that, except for
findings not challenged by Mother in this appeal, the Order
Related to Continued Second Permanency Hearing, filed on January
8, 2021, in the Family Court of the Third Circuit, is vacated.
The case is remanded to the Family Court for further proceedings
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, December 20, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Michael S. Zola,
for Appellant Mother /s/ Keith K. Hiraoka
Associate Judge
Charles H. McCreary IV,
Patrick A. Pascual, /s/ Sonja M.P. McCullen
Julio C. Herrera, Associate Judge
Erin K.S. Torres,
Deputy Attorney General,
for Petitioner-Appellee
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