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In re CM

Intermediate Court of Appeals of Hawaii

September 29, 2017



          Taryn R. Tomasa, Deputy Public Defender, for Minor-Appellant.

          Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, for Plaintiff-Appellee.



          LEONARD, J.

         Minor-Appellant CM appeals from the May 1, 2015 Findings of Fact [(FOFs)], Conclusions of Law [(COLs)], Decision and Order (Order Denying Reconsideration) entered by the Family Court of the Fifth Circuit (Family Court)[1] CM also challenges the Family Court's April 2, 2015 Amended Modified Order Revoking Probation and Resentencing (Amended Modified Order), which ordered the payment of restitution to the victim of CM's law violation, as well as the Family Court's previous orders for restitution, which were entered on March 2 and 16, 2015.

         As set forth herein, we hold: (1) the Family Court did not err in concluding that family courts, like criminal courts, need not sort out insurance indemnities, subrogation rights, and/or other potential civil law implications before ordering a minor law violator to repay his or her victim under the family court restitution statute, - (2) as the Family Court recognized, the family court restitution statute is permissive or discretionary and does not mandate an order for restitution in every case in which restitution is requested; (3) the Family Court erred, however, in relying strictly on adult criminal restitution cases and principles, rather than considering the greater flexibility provided in the family court restitution statute, which authorizes a family court to order a minor law violator to make restitution by way of services to the victim, or to render community services instead, and which does not specifically require reimbursement of the "full amount" of the victim's loss; and (4) the Family Court erred in ordering monthly restitution payments of $300.00 because (a) the Family Court failed to consider CM's ability to make restitution payments for the purpose of establishing the time and manner of payment and (b) the Family Court issued various restitution orders in varying amounts, without notice, an opportunity to be heard, or an explanation as to why its decision changed. We vacate and remand.


         On January 29, 2014, Plaintiff-Appellee State of Hawai'i (the State) filed a Petition charging CM with certain law violations, pursuant to Hawaii Revised Statutes (HRS) § 571-11(1) (2006). In relevant part, the Petition alleged:

COUNT 3: On or about November 2, 2013, in the County of Kaua'i, State of Hawai'i, [CM] did intentionally or knowingly cause serious bodily injury to [a minor victim (MV) ] thereby committing the offense of Assault in the First Degree in violation of [HRS] Section 707-710 (1).[2]

         The Family Court's unchallenged Findings of Fact (FOFs), include that CM intentionally shot a pellet gun at MV's face. The pellet entered and exited MV's eye, lodging itself in MV's facial skin, leaving fragments and pieces in the eye, with a loss of vision. MV's resulting medical bills were evidenced to be $23, 434.85. MV's medical bills were paid in full by Med-QUEST, which provided medical insurance to MV's family. CM was thirteen years old at the time of the shooting incident.

         At a November 10, 2014 adjudication hearing, CM entered into a plea agreement with the State. CM admitted to the Assault in the First Degree and the State dismissed the remaining counts. There was no other agreement as to the disposition. When the court inquired about restitution, CM's counsel stated there was no agreement as far as restitution, but noted that the Deputy Prosecuting Attorney (DPA) "is trying to verify and will provide me the documentation regarding . . . that issue." In conjunction with the plea colloquy, inter alia., the court explained and CM acknowledged that CM could be ordered to pay restitution.

         The Family Court adjudged CM a law violator as to Count 3, Assault in the First Degree. The Family Court ordered an updated social study and revoked CM's probation. The Updated Social History Report, which was filed in the Family Court on January 5, 2015, reported that MV's mother "stated her husband would be submitting medical bills to request restitution."

         In addition, at the January 5, 2015 disposition hearing, the DPA asked the Family Court "to continue this matter for a restitution hearing.11 The DPA stated that the victim's family "were going to get all of the medical records together and submit it." The DPA further stated, "[s]o when I spoke to the family, they were, yes, wanting to have restitution awarded to them." The DPA argued to the Family Court, "I think the status of the law is that if there are medical bills, then the minor and or the minor's family should be responsible for those medical bills. And I'll be the first to say, when I spoke with the family, most of their expenses were covered by Quest. But I don't think that would make any difference." On January 5, 2015, the Family Court filed an order revoking the probation period set in conjunction with a prior petition, resentencing CM to an extended period of probation, and setting various conditions to the probation.

         On March 2, 2015, the Family Court held a further hearing, including a hearing on restitution. CM's counsel stipulated to the entry of MV's medical records, stating that he had no objections to admitting the records into evidence. The requested amount of restitution, $23, 434.85, was supported by the documents admitted into evidence. There was no challenge to the reasonableness of the services, but the defense questioned whether the full amount should be awarded because both CM and MV's families had Quest insurance. CM argued that, in effect, his insurance carrier already paid for all of the medical services. CM further argued that this case is distinguishable from State v. Tuialii, 121 Hawai'i 135, 214 P.3d 1125 (App. 2009), because the nature of the crime did not benefit or enrich CM in any way.

         After the hearing, on March 2, 2015, the Family Court entered an "Amended Order Revoking Probation and Resentencing, " which ordered restitution to MV in the amount of $23, 434.85, to be paid in monthly installments of no less than $200.00. The order further provided that, in the absence of payment by CM, CM's parents pay restitution to MV in the amount of $23, 434.85, in monthly installments of no less than $200.00.

         On March 16, 2015, the Family Court entered a "Modified Order Revoking Probation and Resentencing" (Modified Order).[3] With respect to restitution, the Modified Order (1) decreased the total amount of restitution that CM is required to pay from $23, 434.85 to $6, 884.04, and (2) increased the monthly installments that CM is required to pay from $200.00 to $300.00. The Modified Order further provided that, in the absence of payment by CM, CM's parents pay restitution to MV in the amount of $6, 884.04, in monthly installments of no less than $300.00.

         On March 20, 2015, CM filed a Motion for Reconsideration of Court's Order for Restitution on March 2, 2015 (Motion for Reconsideration). The Motion for Reconsideration contained no reference to the Modified Order. Rather, CM argued that ordering restitution in the amount of $23, 434.85 was improper because the statutory provisions concerning restitution in proceedings involving minors, HRS §§ 571-48(11) and (13), are distinguishable from the restitution statutes applicable to adults, in particular HRS § 706-646. For this reason, and others, CM argued that State v. Tuialii is distinguishable and should not be applied to this case.[4] The State filed a response and a hearing on the Motion for Reconsideration was set for April 20, 2015.

         Prior to that hearing, on April 2, 2015, the Family Court entered the Amended Modified Order.[5] In the Amended Modified Order, the Family Court increased the total restitution amount back to the original amount of $23, 434.85, in monthly installments of no less than $300.00. The Amended Modified Order did not further change the total restitution amount payable by . CM's parents ($6, 884.04), in the absence of payments by CM.

         At the April 20, 2015 hearing, CM argued that the restitution statute applicable to minors, HRS.§ 571-48(11), should not be interpreted in the same manner as the penal code restitution statute, particularly in light of the policy and purpose of family court system, i.e., to promote reconciliation of distressed juveniles and to foster rehabilitation of juveniles, as well as to render appropriate punishment and reduce juvenile delinquency. Basically, CM argued that under Hawai'i's statutory scheme, children are treated differently than adults. In addition, counsel pointed to the differences in the statutory language and argued that, notwithstanding Tuialii, the Family Court has discretion not to order full restitution. CM further argued that, factually, the nature of CM's law violation was different than the crime in Tuialii and, unlike the defendant in Tuialii, CM did not reap any financial benefit from his law violation. Finally, it was argued that the fact that both CM and MV had the same insurance should be considered, as well as the fact that medical costs and expenses were never directly charged or paid out-of-pocket by MV or MV's family.

         Pointing to Tuialii, the DPA argued that the Family Court need not concern itself with the insurance matters and then submitted on the State's written response, which argued, inter alia, that failure to make CM pay would be a windfall to him, that restitution serves a rehabilitative purpose, and that as a matter of public policy, juveniles should make restitution just like adults.

         At the conclusion of the parties' arguments, the Family Court denied reconsideration of the prior restitution order, declining to decide a restitution issue based on insurance subrogation or reimbursement arguments, and citing Tuialii. The Family Court acknowledged the factual distinction between this case and Tuialii, that CM and the victim both had the same insurer. The court made no comment on CM's other arguments except to state, "[i]n 571-48, it just says that this Court can order restitution."

         On May 1, 2015, the Family Court entered its Order Denying Reconsideration, which included, in relevant part, the following FOFs and COLs:

Findings of Fact
I. The minor intentionally shot a pellet gun at a fifteen year old girl's (victim) face on November 2, 2013 (the incident).
. . . .
5. The evidence is that the victim's medical bills were shown to be $23, 434.85 as a result of the incident.
6. The State of Hawaii Med-QUEST Division (MQD) provides eligible low-income adults and children access to health and medical coverage through managed care plans.
7. The minor's family had Med-QUEST for medical insurance.
8. The victim's family had MED-QUEST for medical insurance.
9. The victim's medical bills of $23, 434.85 were paid in full by Med-QUEST.
10. The victim had no out-of-pocket medical costs.
11. Therefore, both families involved in this incident were covered under the Hawai'i Med-Quest program.
12. The family court, pursuant to [HRS] ยง 571-48(11) ordered restitution in this matter for the amount of the ...

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