Foster Children in Hawaii and Their Right to Counsel

by Steve Lane

According to the Department of Human Services, there were 4,697 reports of abuse or neglect of Hawaii's children in 2019. Hawaii is the only state in the nation that has a judicial procedure in place to ensure the legal rights of our most vulnerable population are protected; a little-known 2014 Family Court Tort Protocol mandated by Judge Mark Browning. 

I recently served pro bono as the Special Master in the Peter Boy Kema case, but, as best as I can tell, Judge Browning’s Protocol is otherwise being ignored with impunity.  ‘Mandated reporters’ are not reporting and are not being sanctioned for the failure to report.   Absent my appointment in the Peter Boy Kema case and one other case in Waimea two years ago, I can find no record that the provisions of the Hawaii Family Court Tort Policy as established by Judge Mark Browning have ever been invoked.

My interest in this subject is prompted by my 25 years plus as licensed foster parent, my three years as a volunteer Guardian Ad Litem (GAL) with the Family Court and my service as a Special Master with Family Court where I have represented the interests of abandoned and abused children, including helping them secure access to counsel when they suffer harm.

What I have found most striking in my experience is that in the land of milk and honey, where there are probably more licensed attorneys per square foot than almost any country in the world, our most vulnerable population, the children who are wards of the State and or in foster care, have virtually no access to counsel if they suffer harm as a result of third party tort liability.

According to the Public Information Officer of the Department of Human Services, 2,687 children went through the foster care system in Hawaii in 2018. In earlier years the numbers approached 5,000. Of the children in foster care, a significant number of them are also wards of the State of Hawaii. That is, they have no responsible adult or parent to serve as their legal guardian. The State of Hawaii is their legal guardian and that duty is largely discharged by the DHS social worker assigned to the child and the attendant family court case.

If a child (not in foster care) suffers and injury or harm at the hands of another, such as an automobile accident, schoolyard fall etc., the parent may choose to consult a lawyer on the child’s behalf to see if the child has a claim for damages. In the event a lawyer decides there is a claim, he will ask the court to appoint the parent to serve as the child’s prochien ami, or next friend, so that the claim can be filed. In Hawaii, a minor under 18 years of age cannot hire a lawyer on his or her own and can only be represented if the court approves a responsible adult or parent to act on his or her behalf.

If a child in foster care, who is also a ward of the State of Hawaii, is involved in an accident or otherwise suffers harm, the paradigm changes dramatically. First of all, if there are physical injuries involved requiring medical care, the State of Hawaii steps in and pay the medical bills through the Department of Human Services MedQuest program. However, there is no one present in the child’s life at this point that has the legal authority to act on the child’s behalf and in their best interest to investigate if there is a claim for damages.

If there is a Guardian Ad Litem (GAL) involved with the child, the Court-Appointed Special Advocates (CASA) program has taken the position that it is out side the authority of the GAL to act in this area or to even investigate a possible claim for the child. The Department of Human 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.

Most troublesome of all, if the State of Hawaii discovers there is insurance, they will seek to “represent”  the child in a claim for damages but only to the extent that they are able to recover back the “out of pocket” expenses they incurred by extending the MedQuest benefits to the injured child.  The State of Hawaii is certainly entitled to try and assert their lien rights in such a case by attempting to secure reimbursement for their medical costs. However, they ethically cannot do that while standing in the child’s shoes, pretending to be the child’s lawyer on one hand, and their own lawyer on the other. The old adage that you cannot serve two masters applies here.

While the State may appoint a Guardian Ad Litem (GAL) to "represent" the child through CASA, GALs do not actually represent the child (e.g. a child has no attorney-client privilege with the GAL). GALs are appointed by the court and report to the court. There is nothing in the appointing order that authorizes them to bring a personal injury claim on behalf of the child.  

While Judge Browning’s Protocol directs the family court judge to appoint what is described as a Special Master under Rule 66 to act in the child’s best interest in investigating injury claims and securing a prochien ami and or counsel to represent the child, there are other systems in place that appear to offer the same remedy more efficiently and comprehensively.

In some California jurisdictions, for example, their Juvenile Courts automatically appoint litigation or civil counsel in the event that a ward of the jurisdiction suffers harm. 

The Dependency Court Tort Policy in the Juvenile Division of the Los Angeles County Superior Court has proven to be both effective and efficient.  There are no administrative costs attendant to the program and between March of 1992 and February of 2008 more than $18,000,000 was recovered including millions of dollars reimbursed to the County and State for the costs of medical and related services.

The child should be entitled to their own independent voice and counsel who would seek full recovery for any claims of damage they might have against a third party who caused the injury, not simply limited to recovering their medical expenses for the purpose of reimbursing the State of Hawaii. That is the Attorney General’s job, but not as the lawyer for the child.

Under the present system an entire class of children has been fundamentally   disenfranchised of their right to counsel in the event they suffer injury at the hands of another because they had the misfortune of becoming wards of the State through no fault of their own.

PDF: 2014 Family Court Tort Protocol

PDF: Peter Boy Kema Special Master Report  

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