This decision is published in table format in the Hawai'i reporter
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT. (CIVIL NO. 11-1-0163).
On the briefs: Brian J. De Lima and Francis R. Alcain (Crudele & De Lima), for Plaintiff-Appellant.
Heidi M. Rian and Candace J. Park, Deputy Attorneys General, for Defendants-Appellees.
Nakamura, C.J., and Leonard and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
In this secondary appeal, Appellant Marzie Valdez (" Valdez" ) appeals from the " Findings of Fact and Conclusions of Law; Order Affirming Administrative Hearing Decision Dated April 13, 2011," entered on February 1, 2012 in the Circuit Court of the Third Circuit (" Circuit Court" ). The Circuit Court decided in favor of Appellee State of Hawai'i, Department of Human Services, Administrative Appeals Office, Adult Protective Services (" DHS" ), and affirmed the decision of a DHS hearing officer, which found that Valdez abused a vulnerable adult, a 65-year old female resident-patient (" Patient" ) of the Hilo Medical Center, Extended Care Facility (" Facility" ).
On appeal, Valdez contends that the Circuit Court erred in failing to conclude that: (1) the notice of her DHS hearing violated Hawaii Revised Statutes (" HRS" ) § 91-9(b); (2) the administrative hearing procedures violated Valdez's right to due process; and (3) the administrative hearing officer's findings regarding physical and psychological abuse were clearly erroneous.
Upon careful review of the records and the briefs submitted by the parties, and having given due consideration to the arguments they advance and the issues they raise, we resolve Valdez's points of error as follows and affirm:
(1) Valdez contends that the DHS plainly erred because its October 21, 2010 Notice of Videoconferencing Hearing (" Notice" ) and subsequent notices of hearing referred to HRS chapter 91 and Hawaii Administrative Rules (" HAR" ) § 17-1402, but did not mention HAR § 17-2. She argues that the Notice violated HRS § 91-9(b) because it did not specify what statutes or rules would be " involved" in the hearing. Thus, Valdez contends that she did not know which procedures to follow prior to the DHS hearing and, more specifically, that she did not know that she could subpoena witnesses.
We agree that the DHS erred in referencing HAR § 17-1402, where the " right to a hearing" is described as applying to an " applicant for or recipient of public assistance." Haw. Admin. R. § 17-1402-4. Valdez was plainly not a " claimant" to whom the hearing rules would apply. Haw. Admin. R. § 17-1402-5. We consider whether Valdez's substantial rights were prejudiced by the Notice's deficiency.
To the extent that Valdez was misdirected to HAR § 17-1402, that misdirection appears not to have prejudiced Valdez. Specifically, HAR § 17-1402-5 states that the claimant shall have the opportunity to " question or refute any testimony or evidence, and to confront and cross-examine any witness." Haw. Admin. R. § 17-1402-5. HAR § 17-1402 does not preclude a claimant from asking to subpoena a witness; rather, it says nothing about the subject either way. When Valdez was informed at the hearing that Patient and Daughter would not appear, nothing in HAR § 17-1402 prevented her from objecting and asking for the opportunity to " question or refute any testimony or evidence" as HAR § 17-1402-5 provided. On that basis, we conclude that Valdez's substantial rights were not affected by the deficient notice and that her failure to raise an objection constituted a waiver of her right to subsequently complain about the absence of the witnesses. See, e.g., Waikiki Resort Hotel, Inc. v. City & Cnty. of Honolulu, 63 Haw. 222, 250, 624 P.2d 1353, 1372 (1981) (holding that the principle that " an appellate court will consider only such questions as were raised and reserved in the lower court applies on review by courts of administrative determinations [and] preclude[s] from consideration questions or issues which were not raised in administrative proceedings." ); see also, United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (" [O]rderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts." ).
(2) Valdez argues that the administrative hearing deprived her of her right to due process, because " [w]hile Valdez was afforded a hearing, the rules and procedures that she followed pursuant to [HAR § 17-1402] failed to adequately safeguard her right to due process, thus violating the same." According to Valdez, HAR § 17-1402-5 left her with " no practical ability to contact or even identify the adverse or percipient witnesses" so that she was " left to rely upon mainly character witnesses[,]" and " no reasonable ability to independently investigate [her] claim." Valdez also argues that the confidentiality provisions of HRS § 346-225 denied her a fair hearing because those provisions " caused [DHS] to redact the name and any identifying information for any witness or individual interviewed [during its] investigation" and, as a result, " denied Valdez any real opportunity to re-interview individuals contained in the [DHS] investigation, [or] to secure the parties['] presence for testimony at hearing." We disagree.
The basic elements of procedural due process of law require both notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Sandy Beach Def. Fund v. City Council of the City & Cnty of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989). However, due process is not a fixed concept requiring a specific procedural course beyond these basic elements in every situation. Id. Rather, due process is flexible, calling for such procedural protections as the ...