SB638

SECTION 1. The legislature finds that, in fiscal year 2019, of the 2,336 cases of child abuse or neglect investigated by the department of human services, only thirty-two per cent were confirmed. In fiscal year 2020, of the 1,131 children who entered foster care in Hawaii, only sixteen per cent were placed as the result of court orders or voluntary consent. Eighty-four per cent of children who entered foster care were removed from their homes without judicial oversight or as part of a coordinated child or family safety plan. Many times, parents or guardians are unaware of their legal rights at the time of involuntary child removal by the State. Native Hawaiian families and children are disproportionately affected. These children constitute forty-four per cent, nearly half, of children in foster care while constituting less than one-third of children living in the islands.

The legislature further finds that one of the reasons for the high rate of child removals without court orders or warrants is the overly broad and confusing definition of "imminent harm", which allows immediate removal when there is reasonable cause to believe that, without intervention, the child will suffer harm within the following ninety days. However, the ninety-day threshold provides more than sufficient time for police or child welfare services to petition and receive a court order or warrant for removal. Therefore, the State's definition of "imminent harm" should be narrowed to limit the circumstances warranting the immediate removal of a child.

The legislature additionally finds that this distinction is necessary to protect parents' and families' constitutional rights as outlined by the Ninth Circuit Federal Court of Appeals in the case Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007), which says:

Parents and children have a well-elaborated constitutional right to live together without governmental interference. The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies. Officials violate this right if they remove a child from the home absent information at the time of the seizure that establishes reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury. The Fourth Amendment also protects children from removal from their homes absent such a showing. Officials, including social workers, who remove a child from [their] home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.

(Internal quotation marks and citations omitted.)

The legislature further finds that most citizens recognize the right to a Miranda warning in criminal cases. Few citizens realize that the same right applies to child welfare investigations. Any concerns that notifying a parent of the parent's rights would prevent the rescue of an abused child are unfounded. Determining a child is in imminent danger is effectively an authorization for a warrantless removal. The legislature also finds that Connecticut and Arizona have laws that require parents to be presented with a written notification of their rights when an investigation is initiated, and other states, including Idaho, Colorado, and New York, are actively considering enactment of similar laws, supported by family advocates and elected officials.

Accordingly, the purpose of this Act is to:

(1) Amend the definition of "imminent harm" to remove the ninety-day provision and instead have the term mean an active, present danger to a child that is visible and articulable, and that without instant intervention, there is probable risk that continued contact with the child's family will result in physical harm to the child;

(2) Require police officers, who have the exclusive statutory authority to remove a child from the child's family home without a court order or the family's consent, to promptly submit a police report documenting specific, articulable evidence of imminent harm to the child that warranted the immediate removal; and

(3) Require the State to provide written notice to a parent of the parent's rights when conducting an investigation of reported child abuse or neglect.

SECTION 2. Section 587A-4, Hawaii Revised Statutes, is amended by amending the definition of "imminent harm" to read as follows:

""Imminent harm" means that [~~without intervention~~ ~~within the next ninety days, there is reasonable cause to believe that harm to the child will occur or reoccur.~~] an active, present danger to a child exists that is visible and articulable, and that without instant intervention, there is a probable risk that continued contact with the child's family will result in physical harm to the child."

SECTION 3. Section 587A-8, Hawaii Revised Statutes, is amended to read as follows:

"[[]§587A-8[]] Protective custody by police officer without court order. (a) A police officer shall assume protective custody of a child without a court order and without the consent of the child's family[~~, if in the discretion of the police officer, the officer determines that:~~] if the officer does not have time to obtain a court order and observes and can articulate on the initial police report that:

(1) [~~The~~] At the point of contact with the child's family, the child is subject to imminent harm while in the custody of the child's family;

(2) The child has no parent, as defined in this chapter, who is willing and able to provide a safe family home for the child;

(3) The child has no caregiver, as defined in this chapter, who is willing and able to provide a safe and appropriate placement for the child; or

(4) The child's parent has subjected the child to harm or threatened harm and the parent is likely to flee with the child.

(b) The department shall assume temporary foster custody of the child when a police officer has completed the transfer of protective custody of the child to the department as follows:

(1) A police officer who assumes protective custody of a child shall complete transfer of protective custody to the department by presenting physical custody of the child to the department; or

(2) If the child is or will be admitted to a hospital or similar institution, the police officer shall immediately complete the transfer of protective custody to the department by notifying the department and receiving an acknowledgment from the hospital or similar institution that it has been informed that the child is under the temporary foster custody of the department.

(c) Within twenty-four hours or the next business day of assuming protective custody of a child, the police officer shall provide to the department an initial written report containing documented observations of the behaviors and circumstances that formed the basis for the child's immediate removal."

SECTION 4. Section 587A-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) When the department receives protective custody of a child from the police, the department shall:

(1) Assume temporary foster custody of the child if, in the discretion of the department, the department determines that the child is subject to imminent harm while in the custody of the child's family;

(2) Obtain a copy of the initial police report within twenty-four hours or the next business day;

[~~(2)~~] (3) Make every reasonable effort to inform the child's parents of the actions taken[,] unless doing so would put another person at risk of harm;

[~~(3)~~] (4) Unless the child is admitted to a hospital or similar institution, place the child in emergency foster care while the department conducts an appropriate investigation, with placement preference being given to an approved relative;

[~~(4)~~] (5) With authorized agencies, make reasonable efforts to identify and notify all relatives within thirty days of assuming temporary foster custody of the child; and

[~~(5)~~] (6) Within three days, excluding Saturdays, Sundays, and holidays:

(A) Relinquish temporary foster custody, return the child to the child's parents, and proceed pursuant to section [~~587A-11(4),~~] 587A-11(b)(4) and (c)(4), (5), or (6);

(B) Secure a voluntary placement agreement from the child's parents to place the child in foster care, and proceed pursuant to section [~~587A‑11(6)~~] 587A-11(c)(6) or (8); or

SECTION 5. Section 587A-11, Hawaii Revised Statutes, is amended to read as follows:

"§587A-11 Investigation; department powers. (a) Upon receiving a report that a child is subject to imminent harm, has been harmed, or is subject to threatened harm, and when an assessment is required by this chapter, the department shall cause [~~such~~] an investigation to be made as it deems to be appropriate.

(b) In conducting the investigation, the department shall:

(1) At the time of initial face-to-face contact, provide the parent with written notice of the parent's rights and legal disclosures in a document entitled "Notice of Parent Rights", which shall be prepared by the department and shall disclose the following information:

(A) The department is conducting an investigation of suspected child abuse or neglect according to the law;

(B) The parent shall be notified of the allegations prior to an interview;

(C) The parent is not required to permit the department or a police officer to enter the parent's residence unless a valid warrant is presented;

(D) The parent is not required to speak with the department at the time; however, failure to cooperate may have serious consequences;

(E) The parent has the right to record the interview;

(F) The parent is entitled to seek representation of an attorney and have an attorney present when the department questions the parent;

(G) Neither the department nor the police officer is an attorney, and neither may provide legal advice to the parent;

(H) Any statement made by the parent or any family member may be used against the parent in a hearing initiated pursuant to this chapter; and

(I) The parent is not required to sign any document the department or police officer presents, including but not limited to a release of claims or service agreement, and is entitled to have an attorney review any document before agreeing to sign;

(2) Make reasonable efforts to ensure that the notice provided to the parent pursuant to this subsection is written in a manner and language that will be understood by the parent;

(3) Request the parent to sign and date the notice as evidence of having received the notice. If the parent refuses to sign and date the notice upon request, the department shall specifically indicate on the notice the request to sign and the parent's refusal to do so. The department shall sign the notice as a witness to the parent's refusal to sign and provide the parent with a copy of the signed notice at the time of the initial face-to-face contact with the parent; and

(4) Except when an initial contact with a parent results in the immediate or same-day placement of a child into emergency foster care, the notice provided pursuant to this subsection shall be implemented, retained in the child's case file, and attached to a court petition in the event of a subsequent removal to foster custody. Failure to attach the Notice of Rights to a petition shall result in the dismissal of evidence gathered during the parent interview.

(1) Enlist the cooperation and assistance of appropriate state and federal law enforcement authorities, who may conduct an investigation and, if an investigation is conducted, shall provide the department with all preliminary findings, including the results of a criminal history record check of an alleged perpetrator of harm or threatened harm to the child;

(2) Conduct a criminal history record check of an alleged perpetrator and all adults living in the family home, with or without consent, to ensure the safety of the child;

(3) Interview the child without the presence or prior approval of the child's family and temporarily assume protective custody of the child for the purpose of conducting the interview; provided that all child interviews shall be recorded and retained in the department's case files;

(4) Resolve the matter in an informal fashion that it deems appropriate under the circumstances;

(5) Close the matter if the department finds, after an assessment, that the child is residing with a caregiver who is willing and able to meet the child's needs and provide a safe and appropriate placement for the child;

(6) Immediately enter into a service plan:

(A) To safely maintain the child in the family home; or

(B) To place the child in voluntary foster care pursuant to a written agreement with the child's parent.

If the child is placed in voluntary foster care and the family does not successfully complete the service plan within three months after the date on which the department assumed physical custody of the child, the department shall file a petition. The department is not required to file a petition if the parents agree to adoption or legal guardianship of the child and the child's safety is ensured; provided that the adoption or legal guardianship hearing is conducted within six months of the date on which the department assumed physical custody of the child;

(7) Assume temporary foster custody of the child and file a petition with the court within three days, excluding Saturdays, Sundays, and holidays, after the date on which the department assumes temporary foster custody of the child, with placement preference being given to an approved relative; or

(8) File a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter."

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	638
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII