by Andrew Walden
Will Legislators force the Hawaii Judiciary to provide lawyers to foster children who have been injured or abused while in foster care?
Over the objections of the Hawaii Judiciary, the House Committee on Human Services approved HB1291, February 14, 2023. The bill now awaits action by the House Judiciary and Hawaiian Affairs Committee before the March 3, 2023, ‘First Decking’ deadline. (UPDATE: JHA did not act. Bill is dead.)
The text of HB1291 explains:
The legislature finds that, according to the Department of Human Services, 2,782 children were in foster care during the fiscal year of 2019. The State serves as the legal custodian and representative for a significant number of children in foster care due to their age. If a child in foster care suffers an injury caused by a third party, the State will cover the child's medical costs. However, that child is unable to obtain legal representation to file a tort claim to seek any additional damages, such as damages for pain and suffering. In this event, a class of children is, in effect, disenfranchised from a right to counsel simply because they are in foster care with the State serving as their legal custodian.
The legislature further finds that the Hawaii State Supreme Court's standing committee on children in family court has considered and discussed a tort claim procedure or policy to provide outside legal representation on behalf of a child who is in foster care subject to chapter 587A, Hawaii Revised Statutes, and may have a cause of action and seek damages for any injuries sustained. The standing committee declined to adopt a procedure or policy but acknowledged that a process should be established in family court.
In addition to legal representation HB1291 also mandates:
Reporting of injured child in foster custody; tort claim; court-appointed master. (a) In the event that a guardian ad litem, court-appointed special advocate, resource family, party, social worker, or attorney has reason to believe that a child in foster custody has suffered a physical, emotional, or psychological injury that may arise to a tort claim under federal or state law, these persons shall immediately report the matter to the court in writing.
(b) Upon receiving a written notice pursuant to subsection (a), the court shall immediately set a hearing and provide a copy of the written communication to all parties. At the hearing, the court shall consider whether issuing an order to appoint a master pursuant to family court rules is necessary to investigate the reported potential tort claim.
Oahu Family Court Judges such as Jessi Hall oversee secret Family Court cases involving foster care and adoptions on Oahu. These include nightmare cases like the Kalua foster family of Waiamanlo.
On behalf of the Hawaii Judiciary, Judge Hill disingenuously testifies, “Family court judges can decide on a case-by-case basis when to override the confidentiality of a case when it is the child’s best interest to explore a tort action.”
She doesn’t cite any examples. There is a reason.
Under Hawaii Judiciary policy, multiple cases involving a particular foster family are generally overseen by a single judge. This policy creates a bias favoring coverup when the foster child is raped, abused, tortured, starved, or murdered by the foster parents or by others in the household. As a result, Family Court Judges rarely “override the confidentiality.” That’s the problem HB1291 would solve.
Stephen Lane served pro bono as the Special Master in the Peter Boy Kema case. Testifying in favor of HB1291, Lane points out:
The Department of Social Services has taken the position in at least several cases that it isn’t their responsibility to even report such an injury let alone seek an independent voice to represent the best interests of the child and investigate a possible claim.
Sometimes its worse than that.
In Graves v Hawaii, Civil No. 3CCV-19-0000022, plaintiffs allege:
23. Prior to Plaintiff’s placement with Defendant G. Holmes, Plaintiff met with her assigned Child Welfare Services case worker, Defendant (Kerry) Perez, at Starbucks in Waimea, Hawai‘i.
24. Plaintiff’s older sister was also present at this meeting.
25. During this meeting, Plaintiff’s sister disclosed that, while she was a minor, she was sexually abused by Defendant Puaoi-Marcellino.
26. Defendant Puaoi-Marcellino is a family friend and frequent visitor to the home of Defendant G. Holmes, and has been known to stay at the residence.
27. Kerry Perez overheard this disclosure and responded, “Don’t tell her [Plaintiff] that otherwise she won’t go there [G. Holmes’ residence].”
28. Shortly thereafter, Plaintiff was placed in the foster home of Defendant G. Holmes, who was approved by Defendant DHS to be a foster parent.
Outside counsel may be a child’s only hope to break out of a system run for the benefit of adults’ need to cover up their own wrongdoing.