Mom Challenges State's Child Abuse Registry

by Rein M. Terrado, Court House News, July 23, 2015 

HONOLULU (CN) - Eight years after the death of her newborn daughter, a mother is grappling with the system that listed her in Hawaii's child abuse registry.

Courtney Bird sued Hawaii and its Department of Human Services on Monday in a class action in Hawaii's First Circuit Court.

Bird claims the state did not give her notice that she had been reported for the death of her daughter, C.F., while her former husband, Frank Fontana, was serving in the Navy in Hawaii. The DHS report prevents her from adopting or working with children, for life.

Hawaii requires the DHS to give notice to the parent when it concludes an investigation, to give the person the right to appeal, Bird says in the complaint.

She says she returned home on March 28, 2007 to find her then-husband performing CPR on their daughter. The Naval Criminal Investigation Service interviewed both of them and eventually told her that her husband "had confessed to murdering C.F.," according to the lawsuit.

Bird says she had never seen any signs of abuse, nor did she ever see him do "anything inappropriate" to either of their two children.

In a memorial website she posted for her daughter in 2007, checked Thursday morning, Bird says the Navy accepted a plea bargain that sentenced Fontana to less than 4 years in a Navy prison.

She claims that DHS completed its investigation, blaming her and Frank for the child's death, "long before Frank confessed."

This violated due process "by impermissibly shifting the burden of proof from the accusing state to the accused person and imposing an exceedingly high standard of proof that does not allow expungement even by proof of innocence," Bird says in the complaint.

Devastated by her daughter's death, she says, and without any family in Hawaii to help her care for her other little girl, T.F., she gave the DHS temporary custody of her firstborn. DHS then petitioned for custody of T.F. in Family Court.

With no means of support, Bird says, she had to return to family in Tennessee, which Hawaii allowed her to do with her remaining daughter after the custody battle.

"Under Hawaii law, the report is permanent and irremovable because she allowed DHS to drop the Family Court custody case instead of insisting on a trial on the merits," Bird says.

The only way to have her name removed from the child abuse registry was to have insisted upon being prosecuted to final judgment, Bird says.

She claims the state violated her right to due process by failing to inform her of its investigation of her. Now she is barred forever from adopting or from working with children.

The adoption agency she worked with in Tennessee found her name during a background check.

The DHS could not immediately be reached for comment Wednesday.

According to the U.S. Department of Health and Human Services, Hawaii is among the states with the lowest rates in the country of foster children who were re-abused within six months of being reunited with their families. In 2012, only 1.9 percent of Hawaii children leaving foster care were reported to have suffered maltreatment within a half year, the fourth-lowest rate nationally.

The DHS credited its use of validated best-practice assessment procedures to analyze risk and make recommendations to the Family Court, which oversees all child abuse cases.

Bird seeks class certification, an injunction, expungement of the report and punitive damages.

She is represented by Margery Bronster with Bronster Fujichaku Robbins, in Honolulu.

PDF: Lawsuit Text