'Grab And Go' Must Go: Hawaii Should Honor Parents' Rights In Child Welfare Cases - Honolulu Civil Beat

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Civil Beat Editorial Board

The members of The Civil Beat Editorial Board are Chad Blair, Patti Epler, Nathan Eagle, Kim Gamel, John Hill and Matthew Leonard. Opinions expressed by the editorial board reflect the group’s consensus view. Not all members may participate in every interview or essay. Chad Blair, the Politics and Opinion Editor, can be reached at cblair@civilbeat.org.

In October, a former worker for Hawaii’s Child Welfare Services sat for a deposition in a lawsuit arising from the state’s role in removing a fifth grade girl from her classroom on the Big Island to be flown across the state to live with a biological father she barely knew. After three weeks of agony for the girl’s mother, who had legal custody but didn’t even know about the “grab and go” operation until afterwards, the whole escapade unravelled and the girl went home.

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“Are you familiar with the Fourth Amendment?” attorney Eric Seitz asked the CWS assessment worker, referring to the constitutional prohibition against unreasonable searches and seizures.

“I couldn’t tell you what it is,” the worker replied.

It’s true that many Americans are woefully ignorant of the Constitution. But this one worked for an agency that routinely enters people’s homes, with the help of police, to seize people’s children, a practice with clear implications for Fourth Amendment rights.

That same agency almost always takes children without first seeking a court order, as reported in a series of stories in Civil Beat over the past year. That practice defies federal court precedent that makes it very clear that warrantless removals should only occur when the danger to the child is so great that there is no time to go before a judge.

“So the majority of the time we do take children into custody, it is without a court order,” another CWS worker told Seitz in a deposition. The only time CWS gets a court order, she said, is when the agency doesn’t know where the child is — a small percentage of cases.

It is hard to fathom how Hawaii has been getting away with this for so long. In other states, lawyers have won big settlements over the failure of child welfare agencies to get court orders. In part because of that, jurisdictions that weren’t already seeking court orders have changed their ways. Social workers in Arizona, like their counterparts in Hawaii, were not getting warrants, but the Legislature changed the rules several years ago, and now the state has an exemplary system allowing a judge to issue an order within hours.

In interviews for our stories, Hawaii officials seem to have never given it much thought. It’s just the way it’s always been done.

The Department of Human Services, the parent of CWS, said it discussed the idea at some point with court officials but dropped it because the Judiciary said it lacked the capacity to streamline the process. But the Judiciary said it had not been approached about such a possibility.

Regardless of who’s right, they’re missing the point. Constitutional rights are not a matter of budgets and streamlining processes. They must be honored no matter what.

The stakes in child welfare cases could not be higher. Parents can and do lose their children forever. Once the children have been taken, the state’s bureaucratic machinery kicks in — and it’s very hard to stop. Even for parents who prevail, it can mean years away from their children.

Understandably, social workers tend to err on the side of safety. Who would want to be responsible for leaving a child at home only to have something awful happen?

But having a judge review the facts before the removal  provides another, hopefully neutral, set of eyes. Judges are trained to weigh interests — in this case, the risk to the child versus the parents’ and children’s right to live together as a family.

Perhaps it would be less pressing if parents were dealing with a system that otherwise made sure everything possible was done to reunite them with their children.

Unfortunately, that is far from the reality.

As Civil Beat’s series has shown, most parents are represented by court-appointed attorneys who, parents say, too often just go through the motions and seem loathe to make waves in the insular world of judges, guardians ad litem and CWS social workers.

In short, at every step along the way, parents are dealing with a deeply flawed system, making it all the more important that their rights be protected.

Parents might be expected to be dissatisfied with lawyers who fail to get their children returned. But Civil Beat’s analysis of 10 years of appeals in child welfare cases found evidence to support their complaints. Appeals almost always failed, often because attorneys failed to raise objections or take other steps in family court proceedings or did not follow appellate procedure by, for instance, citing authorities.

Since that story appeared, the Judiciary responded to an open records request for amounts paid in child welfare cases over the past three years for investigators, experts, paralegals and social workers — the kinds of services that some other states consider key to a robust family defense.

The answer: There were none. Zero.

Then there are the judges themselves. Civil Beat used the state’s open records law to obtain a decade’s worth of reports from consultants advising the Judiciary on how to improve family court proceedings.

The consultant sent observers to watch family court hearings and tally how often important topics were discussed and at what depth. The most recent results were astounding.

In almost every category, the judges' performance fell despite training on how to conduct child welfare hearings. In just 8% of cases, for instance, did the judge talk about efforts to reunite parents with their children or prevent removal in the first place -- perhaps the single most important possible issue to discuss.

One child welfare reformer who reviewed the document at Civil Beat's request said it revealed "an assembly line of injustice, in which everyone pretends to be holding hearings, but they’re just going through the motions."

And the agency bringing these cases to court has profound problems of its own, beyond its practice of not seeking court order to remove children. In its most recent annual report to the federal government on how it is addressing shortcomings, CWS has shown improvement. But it still falls far below the mark in areas such as the quality and frequency of parental visits, social worker monitoring of children in foster care and engaging the parent and child in case planning. The percentage of parents being reunited with children is falling.

In short, at every step along the way, parents are dealing with a deeply flawed system, making it all the more important that their rights be protected.

The System Can Be Improved

So what can be done?

First and foremost, the Legislature should approve a bill along the lines of Arizona's requiring CWS to seek court orders unless there is an immediate danger to the child. It may cost money to set up a system that allows CWS to get court orders 24/7, but so be it -- not only does the Constitution require it, the cost could be offset if fewer families entered the system.

The Legislature should also rescind an absurd provision of Hawaii law that defines “imminent harm” as the possibility of a child being injured in the next 90 days. In other places, imminent harm is defined as something likely to happen within hours, not days, weeks or months.

State Sen. Joy San Buenaventura has said she plans to introduce such legislation in the coming session. It should be passed and signed by the governor.

Rep Joy San Buenaventura cesspool info forum.
Rep. Joy San Buenaventura said she was considering legislation to put a stop to "illegal, knee-jerk" child welfare investigations. Cory Lum/Civil Beat/2018

In addition, the Judiciary should give serious consideration to scrapping the system of court-appointed lawyers in favor of a model that has proven successful in other jurisdictions. New York City, Philadelphia and Minnesota have all moved to "interdisciplinary" parental defense in which, instead of a single overworked attorney, parents are also supported by social workers, parent advocates  and experts who can help them deal with the problems that make it difficult to parent, such as housing, immigration, education and public assistance.

New York City officials believe that model has reduced costs substantially and, more importantly, contributed to a dramatic drop in the number of children in foster care.

Why would Hawaii not want to at least explore such an alternative?

The entire child welfare system needs to open up. As it is, confidentiality laws and rules -- or at least officials' interpretation of them -- prevent the public from knowing almost anything about child welfare cases. It's true that the privacy of children who have been abused or neglected should be protected. But that concern should not cast a veil of secrecy over every aspect of the system.

One of Civil Beat's stories, for instance, revealed that a foster mother of at least 10 children had been running a prescription drug ring from her home, even forcing one of the teenage children to participate by delivering envelopes full of pills to customers in their cars. DHS would not say how long the woman and her husband had been foster parents, how much they had been paid, how often the children had been visited by a state social worker or when the state first got a report that the children were being abused.

It's hard to see how that kind of confidentiality is in anyone's interest except the state's.

Perhaps if the child welfare system were more transparent, the Hawaii public would have a better sense of what's needed to do the job right. Perhaps the public would support using tax dollars to bolster the system and reduce crippling caseloads that in some cases are far above national norms.

And perhaps, most importantly, the state would find a way to reunite more children with their parents.

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About the Author

Civil Beat Editorial Board

The members of The Civil Beat Editorial Board are Chad Blair, Patti Epler, Nathan Eagle, Kim Gamel, John Hill and Matthew Leonard. Opinions expressed by the editorial board reflect the group’s consensus view. Not all members may participate in every interview or essay. Chad Blair, the Politics and Opinion Editor, can be reached at cblair@civilbeat.org.

Latest Comments (0)

The "grab and go" is bad enough but it’s only the tip of the iceberg for how flawed the system of child protection is! The child welfare procedure model in Hawaii is Amazing!! However it’s not being followed, not at all. The practices in the field, across the board, all the time, do not align with the written procedure or even the ethical underpinning of social work. If you point this out you are ignored by administration or told to take it up in court. While technically this is possible, how many parents know how to write their own motion and what motion do you write for caseworker violations procedure? Currently there is NO avenue for parents and children who have been harmed in the system to address their grievances. Another issue I find questionable is the national statistics on children abused while in foster care is high, yet Hawaii claims something like .07%. This is just wrong! Hawaii needs to investigate the abuse happening in care and stop sweeping it under the rug.

Lifeislafter · 10 months ago

Things are complex. When a child dies at the hands or the parents, the question asked is "Why didn't the system intervene to prevent such a tragedy?" In my capacity as a school administrator, I reported cases of likely abuse and neglect. In one stance, the father had wrapped a towel around his fist to minimize bruising while repeatedly punching his son. I was glad that there was immediately removal. In this case, the son was with a foster family for a period of time and the father accepted counseling and within six months the family was reunited. There was another case in which sexually-abused daughters repeatedly were placed back in the home, only to experience continued abuse. I wish this article included much more input from frontline workers.

irwinhill · 10 months ago

Unfortunately, judges are not trained to balance interests, which is precisely why they violate a parent's fundamental right to have a parent-child relationship. What is horrible is the a) lack of comprehention on their part of what it means to have a child taken away from his or her parent; b) the fascile belief that they are doing so according to constitutional law. Consider even the U.S.Supreme Court's wrong-headed decision in Gloan v Saada

prohuman · 11 months ago

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