by Andrew Walden
Will Hawaii’s Family Courts adopt rules mandating legal representation for abused foster children?
Stephen Lane, Special Master in the Peter Boy case, tells Hawai’i Free Press:
Retired attorney David Case of Kona and I drafted the attached proposed Family Court Rule and, as required, submitted it to the Chief Justice for consideration. We made this submission in response to the failure of the Hawaii Legislature year after year to codify Judge Mark Browning's Family Court Tort Protocol by statute.
I have since been informed by the court that the proposed rule has been submitted to the Family Court Rules Committee for consideration. Mr. Case and I are encouraged by this referral.
Judge Browning’s 2014 Tort Protocol mandated:
In the event that a GAL, CASA, Resource Caretaker, party, social worker and/or attorney become aware that a child(ren) may have suffered a physical, emotional, and/or psychological injury that could be considered an actionable tort under Federal and/or State law, said individual shall immediately inform the Court in writing.
But it has almost never been invoked. Stephen Lane points out:
One of the alarming things about the failure of the wonderful protocol that Judge Browning devised is that each of these kids who suffer such harm have enough mandated reporters in their lives to fill a small school bus. And they all stand silent.
In the 2023 Legislative Session, over the objections of the Hawaii Judiciary, the House Committee on Human Services approved HB1291. The bill later died without hearing by the House Judiciary and Hawaiian Affairs Committee--but the message had been delivered: If the Judiciary does not act, the Legislature will.
The text of HB1291 explained:
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.
Will the Family Court Rules Committee now finish the job?