The measures would dramatically narrow the rules for when children can be taken from their parents absent a judge’s order.

The Hawaii Legislature is considering several bills to protect the constitutional rights of parents suspected of abuse and neglect in a state that stands out for its failure to do so.

Several of the bills focus on the state’s practice of almost always removing children from their parents without first getting an order from a judge. These warrantless seizures were the subject of a Civil Beat investigation last year.

The most prominent of the measures is Senate Bill 407. It was written by Sen. Joy San Buenaventura, chair of the Senate Health and Human Services Committee, whose role gives her considerable power over which bills make it through the legislative process.

Kapolei Judiciary Complex. Family Court is located inside this complex.
Oahu’s Family Court, where many child welfare cases play out, is located inside the Kapolei Judiciary complex. (Cory Lum/Civil Beat/2022)

In response to a Civil Beat story on warrantless searches in September, San Buenaventura said she planned to introduce a bill to deal with “illegal, knee-jerk” child abuse investigations.

In essence, SB 407 would change the criteria for when police are permitted to take children into protective custody in the absence of an order from a judge.

Now, Hawaii law allows warrantless removals if there’s probable cause to believe that the child will suffer harm in the next 90 days – a definition clearly at odds with federal case law that draws very narrow criteria for when a child can be taken without a court order.

Instead, SB 407 would add a new definition of immediate harm justifying removal. It would have to be an active and observable danger giving authorities cause to believe the child would be hurt in the time it would take to get a court order.

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A police officer who removed a child would have to write a report within 24 hours detailing the observations that justified the removal under the new criteria. And Child Welfare Services, the agency in charge of removing children and putting them in foster care, would be required to include that police report when it went to family court to obtain temporary custody.

The bill cleared its first hurdle last week when it was approved by the Health and Human Services committee. It was amended to incorporate wording changes suggested by the state Judiciary.

But the committee rejected a suggestion from the Department of Human Services, the parent of Child Welfare Services, and the state Attorney General’s Office to form a working group to consider the proposed changes.

“DHS is concerned that the proposed changes and additional processes may increase the safety risks for children who are subjects of a report of child abuse and neglect,” the department wrote in testimony to the committee. 

The department said it was still modernizing its child welfare information system to allow the various parties in child protection cases to share information in real time.

The AG’s office, in written testimony, said that only the Big Island has a process in place to obtain court orders in child removals. At the hearing, a DHS official told the committee that DHS only seeks a court order on the Big Island when the police department disagrees with a child welfare worker’s decision to remove a child.

“Unfortunately, this process can be quite lengthy, and involves paperwork at many levels within the DHS and the family court before the court order is obtained, and during that time, a child who has been assessed by DHS to be subject to imminent harm must remain in the care of his or her parents,” the AG wrote.

The AG’s office said it had many questions, including the standard of proof for the family court to issue an order, what evidence would be needed, whether the request be made verbally or in writing and whether more money would be needed to pay for staff available over weekends and holidays.

“The consequence of an inefficient or inconsistent process may be a negative impact on the safety of abused children,” the department wrote.

But San Buenaventura rejected the idea of a task force.

Senator Joy San Buenaventura
Sen. Joy San Buenaventura rejected the idea of a task force on child welfare court orders. (Tim Wright/Civil Beat/2022)

“I know it’s highly problematic, but my concern is those situations where the children are being removed without proper due process for the parents,” she said.

In fact, many other states have set up systems that allow child protective workers to get court orders in a matter of hours, seeing it as essential to protecting the constitutional rights of parents.

Richard Wexler, executive director of the National Coalition for Child Protection Reform in Virginia, reviewed the proposed bill and testimony at Civil Beat’s request.

He called the idea of a task force a subterfuge to kill the bill.

“Other states have answered those questions with no difficulty,” he wrote in an email. “True, no state goes to court as often as it should, and all states abuse their ‘emergency’ powers, but I know of none as extreme as Hawaii.”

“If DHS bureaucrats and their counterparts in the courts and the police really can’t figure this out, I’m sure there are people from those other states who can teach them,” he added.

Shawn McMillan, a California attorney who has successfully sued child welfare departments in several jurisdictions on the mainland for removing children without court orders, also reviewed the bills.

Attorney Shawn McMillan at his San Diego Offices
Shawn McMillan serves as one of the lawyers involved in the unwarranted removal of children from their parents. (Dave Barak/Civil Beat/2022)

Although SB 407 amends the definition of imminent harm, he said, the wording leaves out the second part of a test that has been established in a series of decisions by the U.S. Court of Appeals for the 9th Circuit. That’s a requirement that child protection workers, before taking a child without a court order, find that there is not a less intrusive way of averting the immediate danger, such as having one parent move out temporarily.

“The statute still will not suffice,” McMillan wrote in an email. “Although it would be better than what they have now.”

In response to the AG and DHS calling for a task force, McMillan said, “You just need a big lawsuit over there. After they’ve paid out a big number, they’ll be more motivated.”

Marilyn Yamamoto, an advocate for parental rights, said the current version of SB 407 is confusing, because it includes different definitions for imminent and immediate harm, when the two words mean the same thing.

Confusion, she said, could lead to more children ending up in foster care. “It’s got to be crystal clear,” she said.

She dismissed the idea that reforms should be studied while the state continues to violate the Constitution’s protections against unreasonable searches and seizures.

“I don’t care if it’s paperwork to get a court order,” she said. “It’s not a suggestion. The Fourth Amendment is set in stone.”

Three other bills – House Bill 449, SB 1042 and SB 638 – include similar provisions, but also would require child welfare workers to provide parents with notice of their rights when an investigation is launched.

Two more bills – SB 411 and HB 779 – would require family courts to appoint attorneys for indigent parents upon the filing of a petition for the state to take custody of a child or put the family on official “supervision.” This issue was also detailed in a Civil Beat story last year

This project is supported by the Fund for Investigative Journalism.

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