EDITOR's NOTE: A public employee from Kauai, the island of retaliation, has foolishly appealed in FEDERAL COURT. Maybe she thought she was still in State Court? So here's what happens when a Hawaii Child Welfare case ends up in a real court:
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Excerpt from 9th Circuit Court 3-Judge Panel Ruling in David v. Kaulukukui, June 27, 2022
The panel affirmed the district court’s denial of defendant’s motion to dismiss, on the basis of qualified immunity, an action brought pursuant to 42 U.S.C. § 1983 alleging violations of plaintiff’s right to familial association.
Plaintiff, individually and on behalf of her minor daughter, alleged that defendant Gina Kaulukukui, an employee of the Kauai County Police Department, deceived the Hawaii family court when she assisted the non-custodial father of plaintiff’s daughter in obtaining a temporary restraining order that prevented plaintiff, the sole custodial parent, from having any contact with her daughter. Plaintiff further alleged that Kaulukukui conspired with the noncustodial father and state officials to extract the daughter from her school and place her in the father’s custody without plaintiff’s knowledge or a court order.
The panel stated that although Kaulukukui may ultimately prove that plaintiff’s allegations were false, at the pleading stage, the panel must accept all well-pleaded factual allegations as true. When the alleged events in this case occurred, the law clearly established that a parent and child’s constitutional right to familial association is violated when a state official interferes with a parent’s lawful custody through judicial deception. The law also clearly established that a state official cannot remove a child from a lawful custodial parent without consent or a court order unless the official has reasonable cause to believe that the child is in imminent danger and, even then, the scope and duration of the removal must be reasonable. Here, plaintiff plausibly alleged that Kaulukukui violated these rights by deliberately failing to inform the family court of a custody order when assisting the non-custodial father in obtaining a temporary restraining order that prevented contact between plaintiff and her daughter, and by assisting the other defendants in removing plaintiff’s daughter from plaintiff’s custody and separating them for 21 days. As such, Kaulukukui was not entitled qualified immunity at this early stage.
If what Plaintiff Hannah David alleges is true, she and her daughter suffered a blatant abuse of government power. David claims that Defendant Gina Kaulukukui, an employee of the Kauai County Police Department, deceived the Hawaii family court when she assisted the non-custodial father of David’s daughter in obtaining a temporary restraining order (TRO) that prevented David, the sole custodial parent, from having any contact with her daughter. David further claims that Kaulukukui conspired with the father (who works for the Kauai County Fire Department) and other state officials to extract the daughter from her school and place her in the father’s custody on a different island—all without David’s knowledge or a court order— and then prevented David and her daughter from having any contact for 21 days.
Whether these shocking allegations are true is for another day. The question here is whether qualified immunity requires dismissal of David’s denial-of-familial association claim brought against Kaulukukui under 42 U.S.C. § 1983. Because we conclude that David and her daughter’s constitutional right to familial association was clearly established such that a reasonable official in Kaulukukui’s shoes would have understood that her alleged actions were a constitutional violation, we affirm the district court’s denial of Kaulukukui’s motion to dismiss. David and her daughter deserve nothing less than the opportunity to have their claims heard.
As this appeal comes to us from a denial of Kaulukukui’s motion to dismiss, we must “accept[] as true all well-pleaded allegations of material fact, and construe[] them in the light most favorable to [David].” Hernandez v. City of San Jose, 897 F.3d 1125, 1132 (9th Cir. 2018) (quoting Padilla v. Yoo, 678 F.3d 748, 757 (9th Cir. 2012)).
A. Family Background and Custody Order
David is the mother and sole custodial parent of her 11- year-old daughter, B.D. William Keahiolalo is B.D.’s biological father. David alleges that Keahiolalo raped and impregnated her when she was underage. David reported the alleged rape, but no criminal charges were filed against Keahiolalo. Shortly after B.D.’s birth, David alleged that Keahiolalo abused B.D. In the wake of these serious allegations, the parties engaged in “prolonged and bitter litigation in the Family Court,” and “[i]n order to avoid an evidentiary hearing on the custody and abuse allegations,” Keahiolalo “agreed to stipulate to any and all of [David]’s demands with regard to the custody of B.D.”
In 2012, the parties filed a stipulated custody agreement with the Hawaii family court, and the court issued an order granting David full legal and physical custody of B.D. (Custody Order). The Custody Order denied Keahiolalo visitation rights and ordered that he “stay away from and have no contacts whatsoever with [David].”1 The Custody Order also contained a provision stating that “in the absence of a compelling emergency that affects [B.D.’s] health or safety, Mr. Keahiolalo stipulates and agrees not to file any motions in the Family Court of the State of Hawaii or another jurisdiction.” The Custody Order “has never been amended, modified, or vacated, and remains in full force and effect.”
B. Altercation and TRO
During the relevant period, David and B.D. lived on the island of Hawaii, while Keahiolalo lived on Kauai. From issuance of the Custody Order until November 2019, Keahiolalo had “virtually no contacts” with his daughter. However, in November 2019, David and B.D. flew to Kauai for Thanksgiving to visit David’s family. While there, B.D. participated in a modeling show at a local shopping center. Keahiolalo showed up at this event with two of his other daughters and introduced himself to B.D. David ordered to him leave, but he “continued to follow [David] and B.D., encouraged his daughters to approach B.D., and videotaped the children’s reaction.”
The following day, David took B.D. to Keahiolalo’s workplace and demanded that he apologize to B.D. When he refused, David yelled at, pushed, and taunted Keahiolalo until the police arrived and arrested her on misdemeanor harassment and third-degree assault charges. After David posted bail, she and B.D. returned to the island of Hawaii.
A few days after the altercation, Keahiolalo met with Kaulukukui at the Kauai County Police Department. Kaulukukui prepared and filed a petition for a protective order (the Petition) in the Hawaii family court on Keahiolalo’s behalf seeking to prohibit David from contacting Keahiolalo or any of his family members, including B.D. The Petition did not mention the existing Custody Order or inform the family court that Keahiolalo lacked legal, custodial, or visitation rights to B.D.
On December 4, 2019, the family court granted the Petition and issued a TRO prohibiting David from having contact with B.D. or Keahiolalo. The TRO did not discuss any custodial issues or authorize Keahiolalo to take custody of B.D.
C. State Officials Place B.D. with Keahiolalo
Approximately two weeks after Keahiolalo received the TRO, a Hawaii Child Welfare Services (CWS) official visited David’s home and performed a Comprehensive Strengths and Risk Assessment Rating to determine whether the home was safe for B.D. David received a risk score of 3 on a scale of 0–51, with a low/moderately low risk score ranging from 1 to 17. During the home visit, David explicitly informed the official of the terms of the Custody Order. Around this same time, at least two other CWS officials were also explicitly informed of the Custody Order.
Nevertheless, a few days after the home visit, on December 20, several CWS officials (accompanied by Keahiolalo and multiple state police officers) conducted a “grab and go” of B.D. without a court order or prior notice to David. State officials took B.D. from her school, placed her in Keahiolalo’s custody, immediately escorted Keahiolalo and B.D. to the airport, and flew them to Kauai “to avoid any encounter with [David].” David was not informed that B.D. had been taken from school and transported to Kauai until after B.D. was placed in Keahiolalo’s custody and police officers served the TRO on David at her home. David and her attorney attempted to contact CWS, the police, and the Kauai court to get information about B.D.’s whereabouts, but they were unsuccessful. David again informed CWS of the terms of the existing Custody Order. David also reported to the Kauai County Police Department “that B.D. had been kidnapped and was in the custody of an allegedly abusive, non-custodial parent.” But Kaulukukui and the other named defendants worked together to prevent David’s allegations from being investigated or a police report from being filed.
Eleven days later, during which time David had no contact with her daughter, the family court held a hearing on the TRO. The court learned of the Custody Order for the first time and dismissed the prohibition against David having contact with B.D. due to Keahiolalo’s “lack of authority . . . to file on behalf of [B.D.].” But the court declined to issue any additional orders and “directed counsel, as officers of the court, to discuss and work out the custody matters.” Despite the court’s direction, the Kauai County Prosecutor refused to (1) speak with David’s counsel, (2) produce any authority permitting Keahiolalo to maintain physical custody, or (3) allow David or her mother to see or talk to B.D.
After the hearing, David’s counsel repeatedly attempted to contact CWS representatives on the islands of Kauai and Hawaii and have B.D. returned to David or removed from Keahiolalo, all to no avail. CWS initially attempted to deny involvement in the seizure to make it appear that Keahiolalo “simply took custody of B.D. himself,” but it later informed David that it would “be filing something” in the family court. Several days later, CWS removed B.D. from Keahiolalo’s home and placed her in a foster home on Kauai, still without allowing David to communicate with her daughter.
Having made no progress working with state officials, on January 2, 2020, David moved for a TRO in federal district court requiring the state to return B.D. to her custody. Four days later, the Hawaii Department of Human Services filed a petition for temporary custody of B.D. in the Hawaii family court. After an evidentiary hearing, the family court denied the Department’s petition. Finally—21 days after being grabbed from her school without her mother’s knowledge and without being able to even talk to her mother—B.D. was returned home.
D. This Lawsuit
David, individually and on behalf of B.D., sued several individuals, including Kaulukukui, under 42 U.S.C. § 1983 for violating their constitutional right to familial association.2 In addition to the facts included above, David alleged in her First Amended Complaint (FAC) that:
• Kaulukukui “acted in concert with [CWS officials], among others, to file and serve the [P]etition in the family court, to provide Defendant Keahiolalo with advice enabling him to obtain the protective order and thus circumvent the existing [Custody Order], and to orchestrate and carry out the seizure of B.D. and placement with Defendant Keahiolalo without any authority to do so.”
• After the seizure of B.D. from her school, several Defendants, including Kaulukukui, “were communicating amongst each other and acting in concert to prevent . . . [a] police report from being filed, to prevent [David’s] claims from being investigated and to perpetuate what they knew to be the unlawful placement of B.D. in the custody of Defendant Keahiolalo.”
• From December 2 to December 31, all Defendants, including Kaulukukui, “had frequent and direct contacts with Defendant Keahiolalo in the form of text messages, emails, phone conversations, and in-person visits – both formal and informal – in which Defendants worked together at every step with Defendant Keahiolalo to assist with and prepare documents that deliberately misled the Family Court, to conspire to orchestrate the ‘grab and go’ abduction of B.D., and to maintain the appearance that the actions taken were appropriate and lawful.”
Kaulukukui moved to dismiss the claim brought against her based on qualified immunity. The district court denied her motion, concluding that David plausibly alleged that Kaulukukui violated a clearly established constitutional right to familial association. The district court first explained that the FAC could plausibly be read to infer that Kaulukukui knew about the Custody Order when she filed the Petition and, therefore, knew that Keahiolalo did not have any authority to move for a protective order on B.D.’s behalf. In addition, the district court held that the FAC stated several allegations that, after the Petition was filed, Kaulukukui “knowingly assisted in the wrongful removal of B.D. from David’s custody in violation of [their] rights to familial association.” While the district court noted that Kaulukukui might ultimately be able to show that David’s allegations were not true, it concluded that “those questions cannot be definitively answered at this motion-to-dismiss stage.” Kaulukukui timely appealed.
2 While David named multiple CWS workers, the State Director of the Department of Human Services, Keahiolalo, and Keahiolalo’s attorney as defendants, this appeal concerns only Kaulukukui because she is the only defendant who moved to dismiss asserting qualified immunity.
Read the full ruling >>> here <<<.
CN: Island hopping
HNN: 9th Circuit: County, state workers may have violated constitutional rights in bitter child custody case