By William Cole
Advertiser Courts Writer
The Department of Human Services, in the past criticized for giving children back to unfit parents, now finds itself criticized in an unusually blunt decision by the state appeals court for taking a young girl away from her mother.
The Hawai‘i Intermediate Court of Appeals took to task DHS and its agency, Child Protective Services, along with the family court for removing the child from a Wai‘anae mother who "has always shown the utmost concern for (the girl’s) well-being and progress," according to the court’s 96-page opinion.
"There’s always been criticism of CPS — but the courts virtually never make a comment about CPS," said attorney Earle Partington, who monitors court cases for the Hawai‘i Association of Criminal Defense Lawyers.
"You don’t get criticism like this unless it’s a really egregious case."
In recent years, Child Protective Services has been under fire for the handling of cases in which children are returned to parents who abused them. In one high-profile case, a 4-year-old boy suffered brain damage and was left in a vegetative state after he was beaten by his mother, Kimberly Pada, who is serving a 20-year prison term for attempted manslaughter.
The recent case reviewed by the appeals court involves DHS taking custody of the girl, referred to as "Jane Doe," days after she was born in 1995. The removal was made permanent in 1998.
In reversing the family court decision, the appeals court suggested the mother’s greatest offense was having family members with a criminal past.
"Ironically, according to the evidence in the record, the only harm ever suffered by Jane occurred when she was in the care of a foster family, prompting DHS to move Jane to a new foster home," the recent opinion said. Court records do not make clear the type of harm.
Zero-tolerance for mistakes 'troubling'
The appeals panel — whose decisions are binding on lower courts — said it finds "troubling" the department’s "zero-tolerance for understandable mistakes" on the part of the mother, and concludes the statutory presumption in favor of substitute parents at child removal hearings is "constitutionally improper."
"I think our point from the beginning was the whole process was flawed in not giving (the mother) a fair opportunity to get her child back," said Richard Kawana, the woman’s court-appointed attorney.
The appeals court sent the case back to family court. But the 35-year-old woman — who has seen her daughter only intermittently in the past and not at all recently — still may not get back the 5-year-old girl any time soon.
Kawana, appointed to represent the woman after she was declared indigent, said the state could appeal the case to the Hawai‘i Supreme Court. Deputy Attorney General Mary Anne Magnier said she still had to examine the opinion to decide what course of action to take.
In February 1995, DHS filed petitions seeking foster custody of the Wai‘anae woman’s four older children "due to threatened harm and lack of medical/mental care by mother and because mother failed to voluntarily participate in recommended services," according to court documents.
Jane was born four months later. Her father was on probation for sexually assaulting a daughter by a previous marriage. Among the terms was that he have no contact with children. On June 23, 1995, three days after Jane was born, DHS filed a petition for temporary custody, claiming there was "a foreseeable substantial risk that harm may occur." Three years later, the family court awarded permanent custody of the girl to DHS.
But the appeals court concluded a child can’t be removed at such a "permanent plan" hearing because the child’s family — as opposed to the individual parent — is unable to provide that child with a safe home.
DHS claimed Jane was in imminent harm from a grandfather and her father, both of whom also had sexual assault histories. However, the court opinion said the grandfather died of cancer, never having seen Jane, and the father had been deported.
The opinion also notes the family court twice denied DHS temporary foster custody of the girl, and that shortly thereafter, "seemingly dissatisfied with the family court’s denial of its petition, (DHS) used an innocuous incident" to get the custody.
When an apparent mix-up at a DHS office led to the woman nursing the girl in the father’s presence unsupervised at what was supposed to be a supervised visit, DHS did not warn the mother, court said. Rather, DHS had her picked up by police and claimed the incident demonstrated her inability to protect the girl, the court’s opinion said.
"DHS’s zero-tolerance for understandable mistakes or misunderstandings by mother is troubling," the court said.
'No evidence mother was unfit'
The family court faulted the mother for never having a job, but, according to the opinion, the woman was seeking employment and was "running herself ragged trying to comply with her service plan and all the requirements placed on her by the different therapists and service providers she was required to meet with under the service plan."
The court said the father — who did not live with Jane’s mother because of his probation — provided financial support, and that witnesses testified that the woman loved her daughter and was able to provide for her needs.
"In summary, there was no clear and convincing evidence that mother was unwilling or unable to provide Jane with a safe family home and was thus unfit to retain her parental rights in Jane," the opinion said.
DHS director Susan Chandler said she had not seen the appeals court decision and declined to comment.
Sarah Casken, executive director of the Hawai‘i State Foster Parents Association — an organization that has been critical of DHS and CPS in the past for returning children to unfit parents — said it’s difficult to say who’s wrong or right in the case.
"The court seems to be saying (DHS) did not prove reasonable efforts were made (to return the child), so therefore they didn’t have the right to terminate the mother’s rights," she said.
What is clear is that the case has gone on too long, she said.
"The really bad decision is this child has been in limbo for five years," Casken said. "It appears they (DHS) failed to provide a child with a safe, nurturing home in a timely fashion."
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