Critics say Hawaii’s current policy flouts federal precedent and leaves it vulnerable to lawsuits.

Several bills designed to protect the rights of Hawaii parents who face the removal of their children are dead, at least for now.

The bills would have required authorities to get orders from judges in most cases before taking children from a parent suspected of abuse or neglect, in contrast to the current practice in Hawaii of almost never seeking court orders.

The most prominent of the measures, Senate Bill 407, ran aground when the Senate Judiciary Committee declined to hear it after it was passed by the Senate Health and Human Services Committee. The human services chair, Sen. Joy San Buenaventura, was one of the authors of the bill.

“I just couldn’t do everything, and we prioritized other stuff,” said Sen. Karl Rhoads, the Judiciary chair. “It’s a complicated topic and it’s hard to get into the details in every bill that comes to you in session.”

Chair Judiciary Karl Rhoads during mail in ballot hearing held in room 016 at the Capitol.
State Sen. Karl Rhoads says his Judiciary Committee did not consider the most prominent parental rights bill because it had other priorities. (Cory Lum/Civil Beat/2019)

Rhoads said he will review the bills left over from this session for consideration next year. SB 407 would not have to be introduced again and start from scratch.

“We’ll try again next year,” San Buenaventura said. “We need to educate people that we need to ensure that, when children are taken away, they’re taken away for just cause and there’s due process in place.”

“To me it was a commonsense bill. I’m disappointed. But like many good bills, sometimes it takes more than one year to get it through,” she said.

Three other bills — Senate Bill 1042, Senate Bill 638 and House Bill 449 — died without ever getting a hearing.

A Civil Beat investigation last year found that Hawaii is flouting federal court precedent by almost never getting an order from a judge before removing children for suspected abuse or neglect. The 9th U.S. Circuit Court of Appeals, in a series of decisions, has made it clear that authorities should get a court order unless the danger to the child is so great that they face harm in the time it would take to go before a judge. Hawaii is part of the 9th Circuit and is bound by its rulings.

  • Special Report

The judge’s role is thought to provide a crucial balance to social workers focused on minimizing risk to children. Judges, by contrast, are accustomed to weighing evidence and competing interests — in this case, protecting a child from possible danger versus preserving the constitutional rights of parents.

Most states in the 9th Circuit have conformed to the court’s decisions by setting up systems that allow child protective workers or police to go before a judge in a matter of hours. In a survey of other jurisdictions, Civil Beat found that only Idaho and Montana rely to the same extent as Hawaii on warrantless searches.

Montana, however, is considering legislation to require child protection workers to get warrants unless they document imminent danger to the child, much like the Hawaii legislation would have done. One of the authors of the Montana bill called it “astonishing” that the state has operated for so long outside the bounds of the Constitution.

Hawaii law currently allows children to be taken without a court order if there’s probable cause to believe the child will be harmed in the next 90 days.

SB 407 would have only allowed warrantless removals if authorities believed the child was in danger in the time it would take to go before a judge. Police officers would have had to write a report within 24 hours justifying the removal, and Child Welfare Services would have had to include that police report in its filing in family court to obtain temporary custody of the child.

Hawaii’s current policy, and the failure of the bills like SB 407, makes it vulnerable to lawsuits from parents whose constitutional rights have been denied, said Shawn McMillan, a California attorney who has successfully sued several jurisdictions on the mainland for removing children without court orders.

Attorney Shawn McMillan at his San Diego Offices
San Diego attorney Shawn McMillan says it’s just a matter of time before someone sues Hawaii over its child removal policy. (Dave Barak/Civil Beat/2022)

“They’re eventually going to get hit,” he said. “It’s not a matter of if but when. You need the right case, the right client. A big enough hit and everyone will change their attitude.”

Richard Wexler, executive director of the National Coalition for Child Protection Reform in Virginia, has followed Hawaii’s child removal policy. He called the defeat of the reform bills “disappointing but not surprising.”

Wexler sees Hawaii as an extreme version of a nationwide phenomenon of horror stories about child abuse leading to a massive “surveillance state” that systematically overreacts and denies parents their rights, which has been dubbed “health terrorism.”

“This year, the health terrorists won and Hawaii’s vulnerable children lost,” Wexler said. “So we have to come back and fight again next year.”

The Department of Human Services, which oversees child protection, had proposed to lawmakers that instead of changing the law as described in SB 407, the Legislature instead should form a working group to consider the proposed changes. The department said it was concerned that SB 407 would increase the risks to children.

Civil Beat requested an interview with DHS director Cathy Betts to ask if the department still supported the formation of a working group, but the department did not respond.

Support Civil Beat during the season of giving.

As a small nonprofit newsroom, our mission is powered by readers like you. But did you know that less than 1% of readers donate to Civil Beat?

Give today and support local journalism that helps to inform, empower and connect.

About the Author