Report Title:

Child Protection; Independent Advocates

Description:

Permits families subject to child protection proceedings to use an independent advocate for assistance with the proceedings. Indemnifies the Department of Human Services from the actions and costs associated with independent advocates. (HB1810 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

1810

TWENTY-SECOND LEGISLATURE, 2004

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO FAMILIES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Families, including traditional families and foster care families, play a vital role in a free society. Government should support and reaffirm all families and not undermine and be hostile to them or merely send a message of neutrality.

The economic and social costs of family breakdown, including increased poverty, crime, substance abuse, adolescent promiscuity, and teenage pregnancies, is significant. Persons who are raised in loving and nurturing family environments, with both maternal and paternal role models, have a greatly reduced risk of dropping out of school, becoming juvenile delinquents, and using illegal drugs.

These children also have the best chance of completing their education, finding meaningful employment, and establishing their own stable marriages and families. Government action should not interfere with the formation and maintenance of healthy, nurturing families, but instead should strengthen and support families. In so doing, government should guard against taking pervasive, intrusive, and unnecessary action that, although technically authorized by law, might be detrimental to the structure, development, stability, and longevity of families.

The legislature reaffirms its intent, as set forth in chapter 346, Hawaii Revised Statutes, concerning the desired balance between strengthening family ties and removal of a child from the custody of the child's family. However, there have been occasions in which the removal of a child from the custody of the family and the initiation of dependency and neglect proceedings by child welfare agencies have been undertaken in a mechanical fashion as a reflex reaction to a report of alleged child abuse or neglect. These reports periodically are unfounded. Although the legislature's paramount concern is the best interests of the child, the legislature declares that unnecessary government intrusion, if undertaken as a matter of course, into family relationships, and particularly the custodial relationship between parent and child, is undesirable.

The legislature declares that it is in the best interests of Hawaii's children and their families, including families with birth children, adoptive children, and foster care children:

(1) To acknowledge that state intervention into families is often emotionally traumatic, financially devastating, and confusing to all members of the subject family, especially the children;

(2) To acknowledge the heightened need for the family members to have uncritical support, guidance, advocacy, and encouragement during this trying time;

(3) To acknowledge that, often, affected family members are under so much stress, fear, and anxiety that their emotional, mental, and cognitive functions are temporarily affected to their detriment in these cases; and

(4) To acknowledge that the laws, procedures, and practices employed during the State's efforts to protect children are not a matter of common knowledge but represent a highly specialized area of expertise to which most family members are not privy and, as a result, families can easily be taken advantage of, especially if they cannot afford an attorney or their attorney does not exercise due diligence in representing them.

It is the intent of the legislature to promote the best interests of the child and to also make provisions to monitor and document government actions that otherwise run the risk of becoming intrusive and counterproductive toward the goal of preserving the family's structure, growth, integrity, and longevity.

To accomplish monitoring and documentation without imposing further financial or administrative burdens on already overburdened state or child welfare agencies, and to avoid a conflict of interest or the appearance of a conflict of interest or a violation of dual role prohibitions, the legislature recognizes and validates the absolute right of any family member to seek and obtain the services of any independent, non-attorney individual or organization to provide the family member with family advocacy services during a dependency and neglect investigation or proceeding without hindrance, retaliation, recrimination, retribution, or refusal of services by any agency, service provider, or officer of the court.

The legislature further recognizes that no agency or service provider can ethically provide protective or placement services, assessments, or therapeutic or treatment services to client families, while also providing advocacy services for an interested person without creating a conflict of interest, or the appearance of one, that would jeopardize the efficacy or integrity of either of those services or without violating the dual role prohibitions on treating professionals. Therefore, it is the intent of the legislature to restrict the role of a family advocate and the practice of family advocacy services to independent individuals or organizations who do not offer protective or placement services, assessments, or therapeutic or treatment services to client families under any family services plan for the department of human services or any other state or county agency or who do not contract under the department of human services or any state or county agency to provide protective or placement services, assessments, or therapeutic or treatment services under any family services plan.

The legislature finds that secrecy and denial of access to knowledge and information is counterproductive to the best interests of the child, the integrity of the family, and public confidence in the related judicial processes and that public scrutiny of government functions promotes fairness and honesty. The legislature therefore declares that the independent family advocate shall be permitted to assist the family in any way necessary, as permitted by law, to achieve the purpose of this Act.

The purpose of this Act is to permit independent family advocates to assist families who are subject to proceedings under the Child Protective Act.

SECTION 2. Chapter 587, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"587-   Independent family advocate. (a) Any family member who becomes a party to a proceeding under this chapter shall have the right to the assistance of an independent family advocate. At a minimum, the independent family advocate shall be allowed to perform the following functions on behalf of the requesting family member:

(1) Upon the family member's signed release of confidentiality, to have equal access to all information shared with the family's other qualified service organizations and service providers;

(2) To attend and participate in all supervised parent-child visitations, staffing, meetings, reviews, conferences, mediations, and hearings with the family member;

(3) With the exception of court hearings or mediations, to be allowed to make an audio recording of any interaction between the family member and any other party or service provider acting in an official capacity. Any person who objects to the audio recording shall provide a court reporter, at the person's own expense, to create a verbatim record of the communication, and the objecting party shall make the transcript available to any requesting party without charge;

(4) To be allowed to make a video recording of all visitations between parent and child for documentation purposes;

(5) To otherwise document and preserve evidence and information on behalf of the family member for use by the family member's attorney or for the purposes of substantiating a grievance;

(6) Any party or service provider or officer of the court who inhibits the ability of a family member to seek or obtain the services of an independent family advocate or who retaliates against or otherwise harms any family member when one family member seeks or obtains the services of an independent family advocate shall be presumed to be acting in bad faith and outside the scope of their authority and the offending person shall not be immune from suit arising from denial of, interference with, or reprisal for the use, or attempted use, of an independent family advocate; and

(7) An independent family advocate shall not be joined as a party to a case against the advocate's will.

For the purposes of this section, an independent family advocate shall be regarded in the same manner as any other independent service provider.

(b) Notwithstanding any other law to the contrary, the State shall not be liable for the actions of any independent family advocate.

(c) Any fees or expenses incurred or charged by the independent family advocate as a result of representing the family member shall not be reimbursed by the State and shall be the sole responsibility of the independent family advocate or the family member who requested the services of the independent family advocate."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect on July 1, 2004.