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Polm v. Department of Human Services

Intermediate Court of Appeals of Hawai'i

December 30, 2014


Editorial Note:

This decision is published in table format in the Hawai'i reporter


On the briefs: Caron M. Inagaki, Randolph R. Slaton, Henry S. Kim, (on the reply brief), Dana A. Barbata, Deputy Attorneys General, for Defendant-Appellant.

Paul V.K. Smith, Christopher A. Dias, (Schutter Dias & Smith), and John S. Carroll, for Plaintiff-Appellee.

Foley, Presiding J., Leonard and Reifurth, JJ.


Defendant-Appellant Department of Human Services, State of Hawai'i (DHS) appeals from the September 17, 2013 Final Judgment and the December 3, 2013 First Amended Final Judgment, both entered in the Circuit Court of the First Circuit[1] (circuit court).

On appeal, DHS contends that sixteen of the circuit court's seventy-one Findings of Fact (FOF) are clearly erroneous and eight of the circuit court's thirty-seven Conclusions of Law (COL) are wrong. Although not raised in its points on appeal, DHS also contends (1) that a third-party's actions constituted a superseding, intervening criminal act so to limit DHS's liability and (2) that the circuit court awarded damages that were not supported by the evidence.


The minor decedant (Decedent) was born on July 8, 2008 in Honolulu, Hawai'i to Matthew McVeigh (Mr. McVeigh) and his wife, April McVeigh (Mrs. McVeigh) (together, McVeighs). The McVeighs also had a daughter (Daughter) who was approximately two years old when the Decedent was born.

On or about August 22, 2008, the Decedent's primary care physician, Naro L. Torres, M.D. (Dr. Torres), saw the Decedent because he was acting fussy with apparent pain and inability to use his right arm. Dr. Torres requested the McVeighs take the Decedent to the Kapi'olani Medical Center for Women and Children (KMCWC) to have his arm examined. The Decedent was diagnosed with a fractured right humerus (upper arm). When questioned about how the Decedent sustained the injury, the McVeighs told the staff at KMCWC that they did not know what caused his injury and that the only possible cause might have been an automobile accident that occurred on or about August 13, 2008. The staff at KMCWC rejected the McVeighs' automobile accident explanation, however, because the nature of the Decedent's injury was not consistent with the McVeighs' timeline of events.

In response to the Decedent's injury, KMCWC conducted a Multi-Disciplinary Team (MDT) case conference that included various professionals, such as Guardian Ad Litems and Volunteer Guardian Ad Litems (VGAL), social-workers, military representatives, and medical staff. The MDT determined that the Decedent had likely suffered abuse resulting in his fractured arm. The perpetrator of the Decedent's injury was not identified.

Because there was no adequate explanation for the Decedent's injury, the Honolulu Police Department was contacted and a case was opened with Child Welfare Services (CWS) of the DHS for suspected severe child abuse and neglect. On August 23, 2008, the Decedent and the Daughter were removed from the McVeighs' household and placed in the custody of DHS. A supervised case was instituted in the Family Court of the First Circuit (family court) and the McVeighs signed a voluntary relinquishment of custody of the Decedent and the Daughter. The family court appointed a VGAL for the Decedent and a VGAL social worker, Jessie Addison (Addison).

Based on recommendations from CWS, the family court placed various conditions on both the McVeighs. The family court required that Mr. McVeigh attend anger management and parenting classes and that Mrs. McVeigh undergo drug rehabilitation for her methadone addiction.

On or about February 25, 2009, DHS returned the Decedent and the Daughter to the McVeigh home under continued DHS supervision and monitoring. Gwenson Yuen (Yuen) took over as case manager for the McVeighs' case in February 2009, the same month that the Daughter and the Decedent were returned to the McVeigh household. As a DHS case manager, Yuen was responsible for insuring that the McVeighs complied with the conditions CWS imposed and was responsible for the safety of the Decedent and the Daughter. Yuen worked out of the Leeward Branch of the Child Protective Services (CPS) Department of DHS. His supervisor at the time was Jalene-Ann Mastin (Mastin), a social worker who holds a master's degree in social work.

On June 19, 2009, approximately four months after the Decedent was returned to the McVeigh household, Yuen and Addison observed a bruise to the corner of the Decedent's left eye and left cheek area (June 19 bruise). Upon questioning, Mr. McVeigh explained that the Decedent had fallen when he was learning how to walk and hit the corner of a table. Yuen did not personally visit the McVeigh house to ascertain whether Mr. McVeigh's story was credible.

Addison, as the Decedent's VGAL social worker, kept careful notes of the injury. Yuen, however, did not log the June 19 bruise' into the CPS mandatory record keeping system (CPSS) as required pursuant to the DHS's codified procedures called the Green Book. In addition, Yuen did not perform a " Child Risk Assessment" using the Child Risk Assessment Matrix.

On August 4, 2009, Mr. McVeigh took the Decedent to the Makalapa Naval Health Clinic (Makalapa Clinic) and saw Nuzhat Bokhari, M.D, (Dr. Bokhari) because the Decedent exhibited cold symptoms. Dr. Bokhari examined the Decedent and ordered x-rays to rule out any bony lesions to the Decedent's old fractured arm, which was ruled out. Dr. Bokhari diagnosed the Decedent with an upper respiratory infection and prescribed medications.

On August 5, 2009, at approximately 1:01 p.m., Yuen recorded the following into the DHS Log of Contacts:

Consult with Elliot Plourde in Intake. [Yuen] followup with report of re-harm.
The Decedent taken to the [Makalapa Clinic]. Nurse, Lt. Lisa Barnes reports [y]esterday visit with [the Decedent] for sore throat. Medicine given to father, [Mr. McVeigh]. Nurse reports x-ray yesterday also taken. Shows only old fractures. Nurse confirms no abuse or neglect. Child released to father. (Note: PCP Dr. Nuzhat [Bokhari]).

Also on August 5, 2009, at approximately 1:45 p.m., a report of concern (August 5 Report) was made to DHS intake worker, Elliot Plourde (Plourde), with the CPS Hotline. The caller was the Decedent's babysitter, Keysha Cordona (Cordona). Cordona reported that she had been babysitting the Decedent and the Daughter the past two months. She reported the following:

(1) Approximately one (1) month ago (early July 2009), [Cordona] observed a black eye on [the Decedent]. When questioned by [Cordona], Mr. McVeigh stated that " [the Decedent] fell while learning to walk."
(2) Approximately two (2) weeks ago, [Cordona] observed a " 1 inch long L shaped bruise/red mark on [the Decedent's] right temple." When questioned by [Cordona], Mr. McVeigh stated " he fell."
(3) Approximately 1 or 2 weeks ago, [Cordona] observed a " 1/2 inch long bruise between [the Decedent's] right index finger and thumb and a small bruise on his right wrist." When questioned by [Cordona], Mr. McVeigh said that [the Decedent] must have fallen or bumped his hand on something.

Plourde recorded Cordona's report of possible re-harm in the August 5 Report. In that five page report, Plourde noted the following " recent concerns" :

(1) [The Decedent] was fussy on 8/3/09. [The Decedent] reportedly would not drink his bottle but did eat baby food. Concerns were reported to Mr. McVeigh when he picked up [the Decedent and Daughter].
(2) On 8/4/09, [the Decedent] was noted to be fussy again and [could] be " coming down with something." [Cordona] called Mr. McVeigh and asked him to take [the Decedent] to the doctor as he was not well.
(3) Mr. McVeigh reportedly made an appointment for 8/5/09 at 1330 hours, but changed it to 8/4/09. [Cordona] reported that Mr. McVeigh took [the Decedent] to the Makalapa Clinic on 8/4/09 and " had a few x-rays and was prescribed amoxicillin." Mr. McVeigh returned [the Decedent] to the babysitter and he returned to work.
(4) On 8/5/09, [Cordona] observed [the Decedent] to be " fussy and unable to hold his bottle or lift his arms.

The concern regarding the Decedent's inability to lift his arms prompted Cordona to call the CPS Hotline on August 5, 2009.

After the August 5 Report, Plourde recommended that the Decedent be seen by his primary care physician and undergo a complete body examination for possible re-harm. The examination would determine if the Decedent was being abused and the extent of his injuries, including what was wrong with his arms or shoulders. The circuit court determined that there is no credible evidence that Mr. McVeigh ever took the Decedent to visit the Makalapa Clinic on August 5, 2009 pursuant to Yuen's direction.[2]

In addition, even though the Green Book required the August 5 Report be referred to the assessment (investigation) CWS unit, Yuen told Plourde that he would look into the matter himself and did not refer the August 5 Report to the assessment unit. Instead, Yuen told Plourde that he would let Plourde know whether or not a new intake should be opened. Furthermore, Yuen did not perform an assessment of the Decedent using the Child and Family Assessment Matrix, DHS 1517 and did not report the August 5, 2009 reported bruises to the VGAL social worker, Addison.

On September 18, 2009, the Decedent, then 14 months old, was found unresponsive, limp, and not breathing in his crib. The Decedent was taken to KMCWC and where died two days later on September 20, 2009. The cause of death was determined to be intracranial injury due to abusive head trauma. The Decedent's head trauma resulted from Mr. McVeigh violently shaking or striking him, which caused his brain to be impacted by the inside of his skull. There was no evidence as to how much shaking or striking was involved or how long the shaking or striking lasted. The medical examiner indicated the Decedent would have become unresponsive at, or close to, the time that his head injury was inflicted. Mr. McVeigh was convicted in the United States Navy General Court Martial of the following crime:

Matthew R, McVeigh did on or about 18 September 2009, by culpable negligence, while perpetrating an offense directly affecting the person of [the Decedent], to wit: a battery, unlawfully kill [the Decedent] by striking the head and shaking the body of [the Decedent] with his hands. (Ellipses and brackets omitted.)

On March 18, 2011, the Decedent's grandmother, Terri Polm (Polm) filed a Complaint in this wrongful death action[3] against DHS and Mr. McVeigh on behalf of herself and the Decedent's estate, alleging that DHS was negligent in its oversight of the Decedent's case. On May 6, 2013, the circuit court dismissed Polm's individual claim under HRS § 663-3 and Polm's claim for negligent infliction of emotional distress. Polm's remaining claims on behalf of the Decedent's estate proceeded to a five day non-jury trial beginning July 2, 2013.

On August 7, 2013, the circuit court entered its Findings of Fact and Conclusions of Law and Order finding DHS 50% liable of the total awarded amount of $250,000.00 in damages to Polm, as personal representative of the Decedent's estate. The circuit court determined that DHS had a duty

(1) [to] provide [the Decedent] with competent prompt, and ample protection from harm, (2) to prepare and maintain required information in DHS's records, and (3) to conduct an appropriate and professionally competent investigation pursuant to [HRS] Chapter 587 (the Child Protective Act), the Hawaii Administrative Rules [(HAR)], and the Green Book following the [August 5 Report] of apparent potential serious re-harm to [the Decedent] made by babysitter [Cordona].

The circuit court further determined that,

(1) under principles of respondeat superior, DHS breached its duty to the Decedent when it did not adequately investigate the August 5 Report of re-harm to the Decedent, did not investigate the circumstances relevant to the reported bruises stated in the August 5 Report, and did not follow the procedure set forth in DHS's own Green Book;

(2) that DHS's failure to properly document the Decedent's June 19 bruise was negligent because when DHS received the August 5 Report, DHS staff and social workers did not realize that the report pertained to a different injury or new harm than the June 19 bruise;

(3) that DHS was negligent when it failed to inform the VGAL of the Cordona's August 5 Report; and

(4) that the DHS's negligence was a legal cause of the Decedent's death.

The circuit court awarded damages for conscious pain and suffering and the loss of enjoyment of life to Polm, as representative to the Decedent's estate. On September 17, 2013, the circuit court entered its Final Judgement (Final Judgment).

On October 21, 2013, DHS filed its notice of appeal from the Final Judgment, in case no. CAAP-13-0004020. On November 12, 2013, the circuit court entered its " Order Granting in Part and Denying in Part 'Plaintiff's Motion to Alter or Amend Judgment,' Filed September 24, 2013," (Amended Judgment) in which Polm was awarded additional costs of $2,651.37, jointly and severally against Mr. McVeigh and DHS, and $4,856.06, severally against DHS. On December 3, 2013, entered the First Amended Final Judgment.

On December 11, 2013, DHS filed a second Notice of Appeal from the Final Judgment and the First Amended Final Judgment in this instant proceeding, case no. CAAP-13-0006029. On January 21, 2014, case no. CAAP-13-0006029 and case no. CAAP-13-0004020 were consolidated under case no. CAAP-13-0006029.


A. Findings of Fact

" In this jurisdiction, a trial court's FOFs are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed." Chun v. Bd. of Trs. of the Employees' Ret. Sys. of the State of Hawai'i, 106 Hawai'i 416, 430, 106 P.3d 339, 353 (2005) (internal quotation marks, citations, and ellipses omitted). " An FOF is also clearly erroneous when the record lacks substantial evidence to support the finding. [The Hawai'i Supreme Court has] defined 'substantial evidence' as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Leslie v. Estate of Tavares, 91 Hawaii 394, 399, 984 P.2d 1220, 1225 (1999) (internal quotation marks and citations omitted).

B. Conclusions of Law

A COL is not binding upon an appellate court and is freely reviewable for its correctness. [The appellate] court ordinarily reviews COLs under the right/wrong standard. Thus, a COL that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned. However, a COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case.

Chun, 106 Hawai'i at 430, 106 P.3d at 353 (internal quotation marks, citations, and brackets in original omitted).


A. The circuit court's FOFs were not clearly erroneous.

DHS contends the following FOFs are clearly erroneous: 20, 21, 23, 29, 31, 32, 35, 37, 39, 44, 47, 48, 57, 60, 62, and 67.

1. FOF 20

20. Although Gwenson Yuen had the title of " social worker", Mr. Yuen was not a licensed social worker nor did Mr. Yuen ever obtain any college degrees in the area of social work or ever attend any college or university courses in social work; all of Mr. Yuen's social worker training was on the job. As a social worker for a ...

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