Since 2012, the Hawaii Judiciary has been working with a national council to improve the quality of hearings in family court, where proceedings can lead to momentous decisions such as whether parents lose custody of their children forever.

In November 2019, judges from across the state got training on how to conduct better hearings, including how to engage with parents and what topics to discuss to achieve goals such as avoiding or shortening foster placements or speeding up the time it takes for a child to find a permanent home.

To measure the effect, observers sat in on a sampling of court hearings before and after the training.

The most recent draft report showed a surprising result: Across the board, judges are addressing almost all topics in hearings with parents less than they did before the training.

Kapolei Judiciary Complex. Family Court is located inside this complex.
Family Court is located inside the Kapolei Judiciary Complex. Cory Lum/Civil Beat/2022

In one example, judges talked about efforts to reunite children with their parents, or how to prevent their removal in the first place, in 67% of cases in the year-and-a-half before the training. While that increased to 88% right after the training — several months into the pandemic — it has since dropped to just 8%.

“What this report tells us is that Hawaii doesn’t really have a court system for ‘child welfare’ cases at all,” Richard Wexler, executive director of the National Coalition for Child Protection Reform in Virginia, wrote in an email. Wexler reviewed the report at Civil Beat’s request.

“Hawaii has an assembly line of injustice, in which everyone pretends to be holding hearings, but they’re just going through the motions before rubber-stamping whatever” the state’s Child Welfare Services wants, he added.

Janet Sherwood, a California attorney with experience as a child welfare trial and appellate counsel, advocate and judge, also reviewed the report. She said it should be seen in the context of the pandemic, which began in March 2020. Remote video hearings have a much different dynamic than parties meeting in person, she said.

"I think a lot of judges were really stressed out by that way of doing business, were just trying to get through the things that were legally required, and did not see the engagement question as very important in light of the emergency situation," she wrote in an email.

Janet Sherwood
Janet Sherwood says the pandemic may have affected the behavior of judges in Hawaii and elsewhere, but the lack of resources is a more persistent problem. Courtesy: Janet Sherwood

But she also sees a more persistent problem. For family courts to live up to the high standards of the National Council of Juvenile and Family Court Judges, the Reno, Nevada, organization that works with Hawaii and other states, far greater resources would have to be dedicated to family courts.

"There would be better outcomes because there would be sufficient time for everybody to have their say and for the courts to have a complete picture of what is happening in that family before making life-altering decisions," she said.

Despite Civil Beat's request, the Judiciary did not arrange an interview with an official knowledgeable about the Court Improvement Program.

The attempt to improve family court hearings is part of Hawaii's participation in the CIP. The U.S. Department of Health and Human Services for years has provided money to all 50 states, Washington D.C., Puerto Rico and the U.S. Virgin Islands to test and put in place innovative methods leading to better outcomes in child welfare cases.

Some states post their CIP proposals and results online, including Louisiana, Texas, North Carolina, Utah and Washington.

Hawaii does not. In fact, the Judiciary required Civil Beat to file a request under the state public records law, the Uniform Information Practices Act, to obtain the reports and charged a fee for them. The Judiciary provided a dozen documents, dating to about 2014, containing a variety of information about the challenges faced by the state's family courts and efforts through the Court Improvement Program to address them.

The effort to conduct better hearings was one of the primary initiatives. A baseline assessment of Hawaii's practices found that court hearings rarely touched on how a child could remain at home rather than go into foster care, or barriers to finding a permanent placement for a child. Judges hardly ever asked parents if they had any questions or if they understood the next step. Specific needs of children, such as education and mental health, also were not discussed often.

A 2015 assessment found that there had been little improvement in these practices.

These efforts led eventually to the 2019 training of judges in "enhanced resource guidelines" designed to improve hearings. Court observers from the court council and later, during the pandemic, a law fellow based on Oahu, used a coding form to capture engagement with parents and what topics were discussed.

The most recent findings were based on observations between December and February at 49 hearings. They were not encouraging.

Judges in most cases did speak directly to parents and children and addressed them by their names. But all other "engagement strategies" were inconsistent, the report found, including asking if parents and children understood the nature of the hearing and the next steps or had any questions.

"Discussion topics relevant to all hearings were discussed on a very limited basis or not at all," the report found. At none of the hearings, for instance, did the parties discuss what was preventing the return of the child that day or how a child might spend time with siblings. The crucial question of reunifying parents with their children or preventing their removal was only discussed in 8% of cases -- and even in half of those, it was just a statement, not a substantive discussion.

Compared to observations before the 2019 training, discussion of child safety fell 52%, issues related to legal representation dropped 45% and maintaining permanent connections decreased 41%. The only topic discussed more often was children's mental health, which increased 4% compared to before the training.

There were some bright spots. "Judicial demeanor" was considered appropriate at all hearings. Just six of 49 hearings were continued.

But the list of shortcomings was far longer. Children and other family members rarely attended hearings, likely because of Covid-19, while parents and their attorneys were there only half the time. Among the children and parents who did show up, "neither were given the opportunity to be heard." Many chances to engage families were lost, and overall there was a lack of substantive discussion of important topics like aspects of the child's well-being.

The average hearing lasted 15 minutes -- not enough to get into the intricacies of each case, the report found.

Richard Wexler
Richard Wexler, who advocates for child protection reform, says the report reveals "an assembly line of injustice." 

That's a shockingly short time for matters of life and death, Wexler said.

"Given how little happens at these hearings, I'm surprised they're that long," he said. "If the judges aren’t asking any questions, the parents aren’t allowed to speak and sometimes the lawyers don’t even show up – how are they filling the time?"

Consider the question of what is preventing a child's return to home on that day. Wexler called that the single most important question a judge could ask, leading to a discussion of issues such as housing and child care that the state might help solve.

"Yet in all of the hearings observed not one judge cared enough to even ask the question," he said.

Sherwood, the California attorney, said Hawaii is not alone in falling short of the national court council's standards.

"The resource guidelines have been around for at least 20 years and no court that I know of has ever lived up to them," she said. "Most juvenile court calendars are severely overcrowded and there is often not enough time available to get through the stuff that is legally required, much less to spend time 'engaging' the participants."

Only more resources, she said, would allow the courts to meet the goals. But if that happened, she said, "The quality of the experience for all participants would improve significantly."

Martin Guggenheim, a professor at New York University School of Law and a leading national expert on family defense, agreed that Hawaii's faults are common among the states.

"Almost always, in my experience, when court observers report on actual proceedings, they reveal frequent and common shortcomings in the process," he said. "These findings fit that pattern perfectly."

One change that could help, Wexler said, would be to open family court hearings to the public, as is the case in states where at least 40% of foster children live.

"The simple fact that everyone in that courtroom knows that a reporter, or someone from the general public, might walk in and see how they’re doing their jobs is likely to improve how they do their jobs," he said.

This project is supported by the Fund for Investigative Journalism.

Read the report here:

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