HOUSE OF REPRESENTATIVES

H.B. NO.

1291

THIRTY-SECOND LEGISLATURE, 2023

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO FAMILY COURT.

 

 

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

 


SECTION 1. The legislature finds that, according to the department of human services, 2,782 children were in foster care during the fiscal year of 2019. The State serves as the legal custodian and representative for a significant number of children in foster care due to their age. If a child in foster care suffers an injury caused by a third party, the State will cover the child's medical costs. However, that child is unable to obtain legal representation to file a tort claim to seek any additional damages, such as damages for pain and suffering. In this event, a class of children is, in effect, disenfranchised from a right to counsel simply because they are in foster care with the State serving as their legal custodian.

The legislature further finds that the Hawaii state supreme court's standing committee on children in family court has considered and discussed a tort claim procedure or policy to provide outside legal representation on behalf of a child who is in foster care subject to chapter 587A, Hawaii Revised Statutes, and may have a cause of action and seek damages for any injuries sustained. The standing committee declined to adopt a procedure or policy but acknowledged that a process should be established in family court.

The purpose of this Act is to:

(1) Require certain persons to immediately report a potential tort claim to the family court when that person has reason to believe that a child in foster custody has suffered an injury that may arise to a tort claim; and

(2) Establish procedures for the family court to follow when appointing a master to investigate a potential tort claim and when authorizing the filing of a tort claim on behalf of an injured child, including the opportunity for an injured child to obtain outside legal representation.

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

"587A-    Reporting of injured child in foster custody; tort claim; court-appointed master. (a) In the event that a guardian ad litem, court-appointed special advocate, resource family, party, social worker, or attorney has reason to believe that a child in foster custody has suffered a physical, emotional, or psychological injury that may arise to a tort claim under federal or state law, these persons shall immediately report the matter to the court in writing.

(b) Upon receiving a written notice pursuant to subsection (a), the court shall immediately set a hearing and provide a copy of the written communication to all parties. At the hearing, the court shall consider whether issuing an order to appoint a master pursuant to family court rules is necessary to investigate the reported potential tort claim.

(c) If the court issues an order appointing a master, the order shall set forth the following:

(1) All parties shall cooperate with the master, including gathering and furnishing any records, reports, and data requested by the master;

(2) The master shall meet and consult with outside counsel on behalf of the injured child regarding the merits of the potential tort claim;

(3) The master shall submit a written report to the court by the date set by the court;

(4) The report submitted by the master shall describe the actions taken by the master and provide any recommendations regarding filing a tort claim;

(5) A copy of the report submitted by the master shall be submitted to all parties;

(6) The court shall set a hearing following the submission of the report by the master; and

(7) Any other requirements that the court may deem necessary to assist the master in determining the merits of the reported potential tort action.

(d) At the hearing scheduled by the court following the submission of the master's report, the court, upon hearing from all parties and the master, and based on the master's report, shall consider whether:

(1) Further action is necessary; or

(2) To issue an order authorizing the filing of a tort claim on behalf of the injured child.

(e) If the court issues an order authorizing the filing of a tort claim on behalf of the injured child, the court shall:

(1) Appoint outside counsel to represent the injured child if the court determines that the appointment is in the best interest of the child;

(2) Determine whether the master should continue to serve during the tort action;

(3) Set periodic hearings to review the tort action; and

(4) Issue any other orders that are in the best interest of the injured child during the tort action."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Family Court; Minors; Foster Custody; Tort Action

 

Description:

Requires certain persons to immediately report a potential tort claim to the family court when that person has reason to believe that a child in foster custody has suffered an injury that may arise to a tort claim. Establishes procedures for the family court to follow when appointing a master to investigate a potential tort claim and when authorizing the filing of a tort claim on behalf of an injured child, including the opportunity for an injured child to obtain outside legal representation.

 

 

 

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