North Hawaii Community Hospital diagrams injuries to foster child Fabian Garcia, Age 3.
by Andrew Walden
After Hawaii County Prosecutors’ failed second degree murder case against Kamuela foster parent Chastity Alcosiba-McKenzie, a civil suit over the 2017 foster care death of three-year-old Fabian Garcia is picking up steam in Hawaii’s Third Circuit Court.
Meanwhile, Hawaii State legislators are introducing SB411, HB779, and HB829 which would guarantee court-appointed counsel to indigent biological parents whose children are subject to foster care proceedings.
A key question in foster care litigation is how nightmare foster homes get approved in the first place.
The case, Garett v Hawaii, is the first Hawaii foster care suit to name Department of Human Service contractor, Catholic Charities, as a defendant.
Unbeknownst to many in the legal profession, both Catholic Charities and Partners in Development have been writing 'safe family home' reports for DHS. According to one source, for many years Partners in Development Foundation conducted ‘child specific’ safe home reports for DHS and Catholic Charities provided the reports on ‘family placements’ where the foster child is related to prospective foster family. Starting July 1, 2021, Catholic Charities obtained the contract to provide both types of safe home family reports for DHS.
Catholic Charities did not respond to a request for comment. In court filings, Catholic Charities' lawyers argue, "(their) liability ... is secondary and passive, whereas the liability of the (foster parents) are active and primary...."
Filed April 4, 2019, Garett v Hawaii, (3CC19100088K) endured delay after delay. But subsequent to the November 4, 2021, acquittal of Chastity Alcosiba-McKenzie, the subpoenas began to fly.
In response to a discovery motion, Defendant DHS, December 29, 2022, filed a document entitled “Log of Reasons for Redactions” arguing for the right to conceal several documents including, “Resource Family Home Study, dated 8/27/15 by Catholic Charities Hawaii.”
The January 9, 2023, rebuttal to DHS from plaintiffs’ attorney, Jeffrey Foster, hints at DHS wrongdoing in the case.
Foster points out:
This is not family court. This is a civil case involving claims of wrongful death under HRS §663-3.
On Page 4 of the Complaint, Plaintiffs aver as follows: “in the months, weeks and days leading up to Fabian’s death, employees of both Defendant [DHS] and Defendant CATHOLIC CHARITIES observed open and obvious injuries on Fabian and were notified of suspected child abuse occurring in the McKenzie Residence on nearly a dozen separate occasions.” The Log seeks to withhold several documents that refer to reports of alleged child abuse or neglect….
The Complaint also alleges: “Defendant ALCOSIBA-MCKENZIE maintained a documented history of legal, psychological, and personal problems that should have disqualified her from becoming licensed as a resource caregiver” and “a documented history of problems with other children assigned to her care and custody (by Defendant [DHS]) prior to being assigned Fabian and his siblings.” The Complaint also alleges: “Defendant MCKENZIE also maintained a documented history of legal, psychological and personal problems that should have disqualified him from becoming licensed as a Resource Care Giver (RCG).”
Foster then requests that DHS admit the truth of specific allegations, including:
c) Request for Admission No. 5: “Admit that West Hawaii CWS social workers and/or employees were attending the same Twelve Step (“12 Step”) meetings that parents with children in the CWS system were required to attend as part of a reunification plan or other court-ordered attendance at such meetings.” …
f) Request for Admission No. 10: “Admit that the State maintained knowledge prior to the placement of the Garett-Garcia children in the household of Defendant ALCOSIBA-MCKENZIE that Defendant ALCOSIBA-MCKENZIE suffered from Adjustment Disorder, Anxiety and Depression.”
g) Request for Admission No. 11: “Admit that the State had knowledge prior to the placement of the Garett-Garcia children in the household of Defendant ALCOSIBA-MCKENZIE that Defendant ALCOSIBA-MCKENZIE had been a victim of childhood sexual abuse, physical abuse and verbal abuse.”
h) Request for Admission No. 12: “Admit that the State maintained knowledge prior to the placement of the Garrett-Garcia children in the household of Defendant ALCOSIBA-MCKENZIE that Defendant ALCOSIBA-MCKENZIE had been involved with her own CWS case involving one or more of her own biological children.”
i) Request for Admission No. 13: “Admit that the State maintained knowledge prior to the placement of the Garett-Garcia children in the household of Defendant MCKENZIE that Defendant MCKENZIE had a history of substance abuse.”
j) Request for Admission No. 14: “Admit the State maintained knowledge prior to the placement of the Garett-Garcia children in the household of Defendant MCKENZIE that Defendant MCKENZIE had a history of domestic violence.”
k) Request for Admission No. 15: “Admit the State maintained knowledge prior the placement of the Garett-Garcia children in the household of Defendant MCKENZIE that Defendant MCKENZIE had suffered a history of childhood abuse inflicted upon him by his father in which Defendant MCKENZIE would be hit by his father until he bled.”…
Could Fabian’s death have been prevented if the biological parents had an attorney to investigate the fitness of these foster parents prior to Fabian’s placement?
Text, Status: SB411, HB779, HB829
HB1291: Requires certain persons to immediately report a potential tort claim to the family court when that person has reason to believe that a child in foster custody has suffered an injury that may arise to a tort claim.