Child Protection

Protects children and youth from abuse and neglect.


HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that child abuse and
 2 neglect are a root cause of many serious social problems,
 3 including emotional and mental health problems, alcohol and drug
 4 abuse and addiction, delinquency, and crime.  Child abuse
 5 continues to escalate with fifteen thousand reports and over five
 6 thousand cases investigated annually in Hawaii.  The most severe
 7 cases continue to be among the youngest, most vulnerable
 8 children.
 9      During the interim of the regular session of 1998, child
10 protection legislative roundtable discussions were convened to
11 suggest statutory, guideline, rule, regulation, and other changes
12 to improve Hawaii's child protective system.  Legislators, the
13 departments of human services, health, and the attorney general,
14 the judiciary, private non-profit child and family serving
15 agencies, and concerned individuals communicated and collaborated
16 with one another, on behalf of abused and neglected children and
17 their families, to develop formal and informal mechanisms for
18 working together.
19      As a coordinated response to prevent and treat child abuse,
20 the roundtable cohesively suggested the following areas be
21 strengthened:


Page 2                                         274         
                                     H.B. NO.           

 1      (1)  A medical case management system for the medical
 2           oversight of children in the child protective services
 3           system;
 4      (2)  Standards for guardian ad litems charged to protect the
 5           best interests of the child;
 6      (3)  Mandated training for foster parents of licensed foster
 7           homes;
 8      (4)  Protective custody of a child without court order; and
 9      (5)  Required reporting of child abuse and neglect.
10      The purpose of this Act is to improve Hawaii's child
11 protection system.
12      SECTION 2.  Chapter 587, Hawaii Revised Statutes, is amended
13 by adding one new section to be appropriately designated and to
14 read as follows:
15      "587-    Medical/health case management.  (a)  There is
16 established a medical/health case management system in the
17 department of human services for the purpose of managing medical
18 and health needs of children in the foster care system.
19      (b)  The medical/health case management system shall:
20      (1)  Establish a system of services providing timely medical
21           and health information to key providers of care to
22           foster children and an identified health care manager
23           for consistent follow-up to ensure that medical and
24           health needs are met;


Page 3                                         274         
                                     H.B. NO.           

 1      (2)  Maintain a medical home as the constant for continuity
 2           of care;
 3      (3)  Maximize existing resources in the provision of medical
 4           and health services to foster children; and
 5      (4)  Research enhancement of federal reimbursement for care
 6           coordination services provided to foster children from
 7           birth to age twenty."
 8      SECTION 3.  Section 346-17, Hawaii Revised Statutes, is
 9 amended to read as follows:
10      "346-17  Child placing organizations, child caring
11 institutions, and foster boarding homes; authority over and
12 investigation of.  No child placing organization shall engage in
13 the investigation, placement, and supervision of minor children
14 in foster care unless it meets with the standards of conditions,
15 management, and competence set by the department of human
16 services.
17      No child caring institution shall be allowed to receive
18 minor children for care and maintenance unless it meets with the
19 standards of conditions, management, and competence to care for
20 and train children set by the department.
21      No foster boarding home shall receive for care and
22 maintenance any child unless it meets with the standards of
23 conditions, management, and competence set by the department[.]
24 and the applicants successfully complete foster parent training.


Page 4                                         274         
                                     H.B. NO.           

 1      The department shall make rules relating to:
 2      (1)  [standards] Standards for the organization and
 3           administration of child placing organizations[,];
 4      (2)  [standards] Standards of conditions, management, and
 5           competence for the care and training of minor children
 6           in child caring institutions and foster boarding homes
 7           [,]; and
 8      (3)  [standards] Standards of conditions and competence of
 9           operation of foster boarding homes as may be necessary
10           to protect the welfare of children.
11      All rules of the department shall have the force and effect
12 of law, and any violation thereof or of this section shall be
13 punishable by a fine of not more than $200.
14      As a condition for a certificate of approval, any
15 organization, institution, or home shall meet the standards to
16 assure the reputable and responsible character of its operators
17 and employees by complying with the requirements of a criminal
18 history record check under section 346-19.6.
19      Upon approval of any such organization, institution, or
20 home, the department or its authorized agents shall issue a
21 certificate of approval [which] that shall continue in force for
22 one year or for two years if the organization, institution, or
23 home meets the criteria established by the department, unless


Page 5                                         274         
                                     H.B. NO.           

 1 sooner revoked for cause.  The certificate shall be renewed by
 2 the department or its authorized agents, after annual or biennial
 3 investigation, if the investigation discloses that the
 4 organization, institution, or home continues to meet with the
 5 standards set by the department.  The certificate of approval
 6 shall be a permit to operate the child placing organization,
 7 child caring institution, or foster boarding home, and no person
 8 or organization shall operate or maintain such organization,
 9 institution, or home without the certificate.
10      Any child placing organization, child caring institution, or
11 foster boarding home shall be subject to investigation at any
12 time and in such manner, place, and form as may be prescribed by
13 the department or its authorized agents."
14      SECTION 4.  Section 350-1.1, Hawaii Revised Statutes, is
15 amended by amending subsection (a) to read as follows:
16      "(a)  Notwithstanding any other state law concerning
17 confidentiality to the contrary, the following persons who, in
18 their professional or official capacity, have reason to believe
19 that child abuse or neglect has occurred or that there exists a
20 substantial risk that child abuse or neglect may occur in the
21 reasonably foreseeable future, shall immediately report the
22 matter orally to the department or to the police department:


Page 6                                         274         
                                     H.B. NO.           

 1      (1)  Any licensed or registered professional of the healing
 2           arts and any health-related occupation who examines,
 3           attends, treats, or provides other professional or
 4           specialized services including[,] but not limited to[,]
 5           physicians, including physicians in training,
 6           psychologists, dentists, nurses, osteopathic physicians
 7           and surgeons, optometrists, chiropractors, podiatrists,
 8           pharmacists, and other health-related professionals;
 9      (2)  Employees or officers of any public or private school;
10      (3)  Employees or officers of any public or private agency
11           or institution, or other individuals, providing social,
12           medical, hospital, or mental health services, including
13           financial assistance;
14      (4)  Employees or officers of any law enforcement agency
15           including[,] but not limited to[,] the courts, police
16           departments, correctional institutions, and parole or
17           probation offices;
18      (5)  Individual providers of child care, or employees or
19           officers of any licensed or registered child care
20           facility, foster home, or similar institution;
21      (6)  Medical examiners or coroners; [and]
22      (7)  Employees of any public or private agency providing
23           recreational or sports activities[.]; and
24      (8)  Members of the clergy or priests."


Page 7                                         274         
                                     H.B. NO.           

 1      SECTION 5.  Section 587-22, Hawaii Revised Statutes, is
 2 amended by amending subsection (a) to read as follows:
 3      "(a)  A police officer shall assume protective custody of a
 4 child without a court order and without the consent of the
 5 child's family regardless of whether the child's family is
 6 absent, if in the discretion of such police officer, the child is
 7 in such circumstance or condition that the child's continuing in
 8 the custody or care of the child's family presents a situation
 9 [of imminent harm to the child.]:
10      (1)  Of imminent harm to the child;
11      (2)  Where the child has no legal custodian who is willing
12           and able to provide a safe family home for the child;
13           or
14      (3)  Where there is evidence that a parent or guardian of a
15           child has subjected a child to harm or threatened harm
16           and that parent or guardian is likely to flee the
17           jurisdiction of the court with the child."
18      SECTION 6.  Section 587-34, Hawaii Revised Statutes, is
19 amended as follows:
20      "587-34  Guardian ad litem; court appointed counsel.(a)
21 The court shall appoint a guardian ad litem for the child to
22 serve throughout the pendency of the child protective proceedings
23 under this chapter.  The court may appoint additional counsel for


Page 8                                         274         
                                     H.B. NO.           

 1 the child pursuant to subsection (c) or independent counsel for
 2 any other party if [the]: 
 3      (1)  The party is an indigent[, counsel];
 4      (2)  Counsel is necessary to protect the party's interests
 5           adequately[,] and [the];
 6      (3)  The interests are not represented adequately by another
 7           party who is represented by counsel.
 8      (b)  A guardian ad litem shall:
 9      (1)  Be allowed access to the child by the caretakers of the
10           child whether caretakers are individuals, authorized
11           agencies, or health care providers;
12      (2)  Have the authority to inspect and receive copies of any
13           records, notes, and electronic recordings concerning
14           the child that are relevant to the proceedings filed
15           under this chapter without the consent of the child or
16           individuals and authorized agencies who have control of
17           the child; and
18      (3)  Be given notice of all hearings and proceedings, civil
19           or criminal, including[,] but not limited to[,] grand
20           juries, involving the child and shall protect the best
21           interests of the child therein, unless otherwise
22           ordered by the court.
23      (c)  A guardian ad litem appointed pursuant to subsection
24 (a) shall report to the court and all parties in writing at six
25 month intervals, or as is otherwise ordered by the court,


Page 9                                         274         
                                     H.B. NO.           

 1 regarding such guardian ad litem's activities on behalf of the
 2 child and recommendations concerning the manner in which the
 3 court should proceed in the best interests of the child; provided
 4 that such guardian ad litem shall make face to face contact with
 5 the child in the child's family or foster home at least once
 6 every three months.  A guardian ad litem shall inform the court
 7 of the child's perceived interests if they differ from those
 8 being advocated by the child's guardian ad litem.  If the child
 9 and the child's guardian ad litem are not in agreement, the court
10 shall evaluate the necessity for appointing special counsel for
11 the child to serve as the child's legal advocate concerning such
12 issues and during such proceedings as the court deems to be in
13 the best interests of the child.
14      (d)  When the court determines, after such hearing as the
15 court deems to be appropriate, that a party is incapable of
16 comprehending the legal significance of the issues or the nature
17 of the child protective proceedings, the court may appoint a
18 guardian ad litem to represent the interests of that party;
19 provided that a guardian ad litem appointed pursuant to this
20 section shall investigate and report to the court in writing at
21 six month intervals, or as is otherwise ordered by the court,
22 regarding the current status of the party's disability,
23 including[,] but not limited to[,] a recommendation as to
24 available treatment, if any, for the disability and a


Page 10                                        274         
                                     H.B. NO.           

 1 recommendation concerning the manner in which the court should
 2 proceed in order to best protect the interests of the party in
 3 conjunction with the court's determination as to the best
 4 interests of the child.
 5      (e)  A guardian ad litem or counsel appointed pursuant to
 6 this section for the child or other party may be paid for by the
 7 court, unless the party for whom counsel is appointed has an
 8 independent estate sufficient to pay such costs.  The court may
 9 order the appropriate parties to pay or reimburse the costs and
10 fees of the guardian ad litem and other counsel appointed for the
11 child.
12      (f)  No guardian ad litem shall be appointed to represent
13 any child unless the guardian ad litem:
14      (1)  Meets the standards of licensing and competence set by
15           the judiciary; and
16      (2)  Has successfully completed guardian ad litem training
17           or has equivalent experience as determined by the lead
18           family court judge.
19      The judiciary shall make rules pursuant to chapter 91
20 relating to standards of training and practice for the
21 representation of minor children by a guardian ad litem.
22      All rules of the judiciary shall have the form and effect of
23 law, and any violation thereof or of this section shall be
24 punishable by a fine of not more than $200."


Page 11                                        274         
                                     H.B. NO.           

 1      SECTION 7.  Section 587-72, Hawaii Revised Statutes, is
 2 amended by amending subsection (c) to read as follows:
 3      "(c)  Upon each review hearing, the court shall consider
 4 fully all relevant prior and current information pertaining to
 5 the safe family home guidelines, as set forth in section 587-25,
 6 including[,] but not limited to[,] the report submitted pursuant
 7 to section 587-40, and:
 8      (1)  Determine whether the child's family is presently
 9           willing and able to provide the child with a safe
10           family home without the assistance of a service plan
11           and, if so, the court shall terminate jurisdiction;
12      (2)  Determine whether the child's family is presently
13           willing and able to provide the child with a safe
14           family home with the assistance of a service plan and,
15           if so, the court shall return the child or continue the
16           placement of the child in the child's family home under
17           the family supervision of the appropriate authorized
18           agency;
19      (3)  If the child's family home is determined, pursuant to
20           subsection (c)(2), not to be safe, even with the
21           assistance of a service plan, order that the child
22           remain or be placed under the foster custody of the
23           appropriate authorized agency; if the child has been


Page 12                                        274         
                                     H.B. NO.           

 1           residing without the family home for a period of twelve
 2           months or if there has been a [court ordered] court-
 3           ordered service plan for a period of one year, the
 4           court [may] shall set the case for a show cause hearing
 5           at which the child's family shall have the burden of
 6           presenting evidence to the court regarding the reasons
 7           and considerations as the family has to offer as to why
 8           the case should not be set for a permanent plan
 9           hearing.  Upon a show cause hearing that the court
10           deems to be appropriate, the court shall consider the
11           criteria set forth in section 587-73(a)(1), (2), and
12           (4), or section 587-73(e), and:
13           (A)  Set the case for a permanent plan hearing and
14                order that the authorized agency submit a report
15                pursuant to section 587-40; or
16           (B)  Proceed pursuant to this section;
17      (4)  Determine whether the parties have complied with,
18           performed, and completed every term and condition of
19           the service plan that was previously court ordered;
20      (5)  Order revisions to the existing service plan, after
21           satisfying section 587-71(h), as the court, upon a
22           hearing that the court deems to be appropriate,
23           determines to be in the best interests of the child;


Page 13                                        274         
                                     H.B. NO.           

 1           provided that a copy of the revised service plan shall
 2           be incorporated as part of the order;
 3      (6)  Enter further orders as the court deems to be in the
 4           best interests of the child; and
 5      (7)  Determine whether aggravated circumstances are present
 6           and, if so, the court shall set the case for a show
 7           cause hearing at which the child's family shall have
 8           the burden of presenting evidence to the court
 9           regarding the reasons and considerations as to why the
10           case should not be set for a permanent plan hearing."
11      SECTION 8.  If any provision of this Act, or the application
12 thereof to any person or circumstance is held invalid, the
13 invalidity does not affect other provisions or applications of
14 the Act which can be given effect without the invalid provision
15 or application, and to this end the provisions of this Act are
16 severable.
17      SECTION 9.  Statutory material to be repealed is bracketed.
18 New statutory material is underscored.
19      SECTION 10.  This Act shall take effect upon its approval.
21                         INTRODUCED BY:___________________________