Posted on: Friday, September 3, 2004

State denied immunity in child-abuse lawsuit

By Ken Kobayashi
Advertiser Courts Writer

A state judge's ruling yesterday could have a widespread effect on the way the state Department of Human Services handles abused children in foster care.

Circuit Judge Victoria Marks refused to throw out a lawsuit against the state filed on behalf of Reubyne Buentipo Jr., who was 4 years old in 1997 when he suffered severe brain damage after he was repeatedly and severely abused by his mother, Kimberly Pada.

Buentipo's lawyer, Francis O'Brien, argued the state should be held accountable for what he claims was negligence by Department of Human Services social workers. He said the workers permitted Pada to visit her son while he was in foster care and later did not adequately follow up on reports that she was abusing him after he was returned to her.

But Lillian Koller, director of the Department of Human Services, yesterday said her department must have the immunity to fulfill a federal mandate of trying to preserve the family. She said there is always an inherent risk that an abusive parent may repeat the abuse. But department workers must take that "risk" if those families will be reunited.

Without immunity, the recommendation of whether a child should be returned to the parent will be "skewed" against reunification based on avoiding a lawsuit, she said.

Attorney Howard Glickstein, hired to represent the state, argued that the state is immune from liability for the time when Buentipo was in foster care. He also argued court cases here establish that the department did not have a legal obligation to prevent the abuse once the mother regained custody of the boy.

After hearing the arguments, Marks ruled that the social workers were not appointed by the court and do not have the immunity. She said when the boy was in foster care, the state had a duty to ensure his safety and welfare.

The judge also said the state's responsibility to protect the boy continued even after Reubyne was returned to Pada.

O'Brien said he wanted to establish that if a child in foster care is harmed because of the negligence of the state, the child would have the right to recover damages from the state.

Deputy Attorney General Charles Fell said the state may ask for an immediate appeal, but he didn't know whether it would ask for one.

"We regret the ruling, but we respect it," he said.

O'Brien said social workers won't be held personally liable and said he doesn't think they agonize over whether what they do will lead to the state being sued.

O'Brien, who has represented other children in foster care, said he doesn't think the decision, if upheld, will result in a "deluge of cases" filed on behalf of foster children. He said the numbers may be even smaller if the social workers realize that "they have to be answerable to someone."

The ruling paves the way for a trial in March on the lawsuit, although the state could appeal to have the Hawai'i Supreme Court rule on the issue of the state's liability for children in foster care.

Reubyne's case highlighted the problems of child abuse, crystal methamphetamine addiction and the department's practices regarding when abused children should be returned to their parents. The department has about 2,700 children in foster care.

According to O'Brien's case, Pada had tested positive for ice before and after Reubyne was born in August 1993. He was still in the hospital 2› months later when the Department of Human Services took him into custody.

Reubyne was placed in various foster homes, but suffered injuries when his mother would visit him, according to O'Brien. She admitted she still used drugs, and the department confirmed that the mother abused her son, O'Brien said.

Despite the problems, Reubyne was returned to his mother in 1997. There were other reports of abuse and in August 1997, he was taken to Castle Medical Center unconscious, his body covered with bruises, cuts and cigarette burns.

He never regained consciousness, O'Brien said.

Reubyne, now 11, remains in a vegetative state at a rehabilitation facility in Honolulu with no prognosis of improvement. O'Brien said the boy will endure a "living death for the rest of his life."

Pada, 35, was convicted of attempted manslaughter and is serving a prison term of 6 2/3 to 20 years in prison.

O'Brien said Reubyne is under state care at a cost of about $1 million annually.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.