A Hawaii state senator says she is prepared to introduce legislation to assure that child welfare workers routinely seek court orders before removing children from their parents.

Sen. Joy San Buenaventura said the bill would address the findings of a Civil Beat investigation published in September. The story found that in more than 90% of cases of children being taken from their parents after abuse or neglect allegations, police and social workers act on their own without first getting an order from a judge.

This is in stark contrast to many other jurisdictions, where a judge’s approval before the potentially traumatic removal of a child is far more common.

Sen. Joy San Buenaventura, center, said she is prepared to introduce legislation to underscore the need for court orders when children are removed from parents. Christina Jedra/Civil Beat/2020

The U.S. Court of Appeals for the 9th Circuit, which includes Hawaii, has concluded in a series of decisions that the constitutional rights of parents and children require court orders unless the danger to the child is so great that there’s no time.

“I am alarmed that children are being taken away without a court order,” said San Buenaventura, chair of the Senate Human Services Committee.

She said she was open to introducing a measure similar to one passed in 2017 by the Arizona Legislature. In that state, child welfare workers had not been getting court orders before removing children. The new law made it clear that court orders should be the norm, and narrowly defined the circumstances that could lead to an emergency removal absent a warrant.

The number of children in foster care has dropped in Arizona. The courts also set up a system allowing social workers, in most cases, to get a court order within hours.

San Buenaventura wants to address a quirk in Hawaii law clearly at odds with 9th Circuit decisions: “Imminent harm” is defined as the possibility that a child could be injured in the next 90 days, more than enough time to seek a court order. She said the state needs to scrap that provision for something far shorter.

Getting judges to sign off on most child removals may not be enough, she said.

“My concern is that a judge would rubber-stamp whatever a CPS social worker says,” she said. “At least it will be something to have a warrant, but I think we need more than that.”

That would include continuing oversight by the Legislature and support for overworked Child Welfare Services workers “so illegal, knee-jerk reaction to accusations does not override actual investigation.”

Chair Judiciary Karl Rhoads during mail in ballot hearing held in room 016 at the Capitol.
Sen. Karl Rhoads said he’s not sure whether the issue of warrantless child removals requires legislation. Cory Lum/Civil Beat/2019

State Sen. Karl Rhoads, chair of the Senate Judiciary Committee, said in response to Civil Beat’s investigation that he’s not sure legislation is needed.

“There’s no way to legislate completely good judgment,” he said.

Child welfare workers, he said, face two difficult options — leaving a child exposed to possible harm, or breaking up a family.

“Getting that judgment right every time is never going to happen,” he said. “But maybe there are ways to get it right more often.”

Civil Beat’s story noted that other jurisdictions in the 9th Circuit resort to warrantless removals far less often. In Orange County, Calif., for instance, judges signed off on child removals in almost three-quarters of cases, compared to less than 10% in Hawaii.

But Rhoads said he’d like to know more about the reasons behind the disparity.

It’s possible, he said, that Hawaii’s child welfare workers are stretched so thin compared to other places that by the time they intervene, “things have gone really bad. If California is better funded and organized, it’s conceivable that’s true.”

Rhoads noted, however, that the constitutional questions raised by warrantless removals go beyond staffing and funding issues.

“We’re not supposed to have a choice on following the Constitution,” he said.

Sen. Laura Acasio introduced a bill in the last legislative session that would have required police to submit reports after removing a child, documenting an immediate threat so severe that there was no time to go before a judge.

Senate Bill 2416 also would have required the state to provide written notice to parents of their rights in a child welfare investigation. The bill died before it even got a hearing. Similar bills in recent years also have fallen short.

Acasio, who lost her bid for reelection after redistricting forced her to face another Democratic incumbent in the Aug. 13 primary, agrees with San Buenaventura that the 90-day definition of imminent harm needs to be shortened to something more like 36 hours.

“If imminent harm is 90 days, there’s time for a court order,” she said.

She thinks the Legislature may also need to intervene to get the two departments involved in child removals — Human Services and the Judiciary — to cooperate in coming up with a way for judges to issue orders more quickly, as they do in other jurisdictions.

The departments could probably do it on their own, she said, but for whatever reason have failed to collaborate. A Human Services official told Civil Beat the department would be open to such a system, but that the Judiciary lacked the resources. But a spokeswoman for the courts said they were unaware of any proposal from Human Services.

“We end up micromanaging when they don’t do it,” Acasio said. “Then they come and say we don’t need legislation for that. Then do it.”

Senator Laura Acasio is greeted with a feather lei by supporter Richard Tiogangco as she waits for Saturday's election results at her Hilo Headquarters Photo: Tim Wright.
Sen. Laura Acasio introduced legislation that would have changed the definition of “imminent harm” to a child, which is now defined as danger in the next 90 days. But the bill did not get a hearing. Tim Wright/Civil Beat/2022

The state should be balancing dangers to children against the trauma of removal — and the possibility, too, of a child being hurt in foster care, Acasio said.

It’s been frustrating, she said, that efforts to do that haven’t gotten much traction until now.

“It only affects certain people,” she said. “And maybe not the people who are tracking the legislation.”

Marilyn Yamamoto, who has been advocating for parental rights for years and proposed a number of bills, said the tools exist to better differentiate between routine family difficulties and the cases that could lead to a child being seriously injured or killed.

“But if every kid is removed to be on the safe side, then the system is overwhelmed and they will certainly overlook abuse,” she said.

And regardless of differing views on finding the proper balance, she said, parents have rights.

“Here’s a department whose sole mission is to enter homes and remove children when necessary,” she said, “and they don’t have a handle on constitutional rights … We’re talking about the Bill of Rights, for crying out loud.”

This project is supported by the Fund for Investigative Journalism.

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