Current Through April 2016

Circumstances That Constitute Witnessing

Citation: Rev. Stat. § 706-606.4  In criminal law: The term ‘in the presence of a minor’ means in the actual physical presence of a child or knowing that a child is present and may hear or see the offense.

Consequences

Citation: Rev. Stat. § 706-606.4  The court shall consider the following aggravating factors in determining the particular sentence to be imposed:

• The defendant has been convicted of committing or attempting to commit an offense involving abuse of a family or household member.
• The defendant is or has been a family or household member of either a minor or the victim of the offense.
• The offense contemporaneously occurred in the presence of a minor.

Current Through February 2016

Physical Abuse

Citation: Rev. Stat. § 350-1  ‘Child abuse or neglect’ means acts or omissions that have resulted in the physical health or welfare of the child who is under age 18 to be harmed or to be subject to a reasonably foreseeable, substantial risk of being harmed. The acts or omissions are indicated for the purposes of reports by circumstances that include, but are not limited to:

• When the child exhibits evidence of any of the following injuries, and such injury is not justifiably explained, or when the history given concerning such condition or death is inconsistent with the degree or type of such condition or death, or circumstances indicate that such condition or death may not be the product of an accidental occurrence:
  • Substantial or multiple skin bruising or other internal bleeding
  • An injury to skin causing substantial bleeding
  • Malnutrition or failure to thrive
  • Burns or poisoning
  • Fracture of any bone
  • Subdural hematoma or soft tissue swelling
  • Extreme pain or mental distress
  • Gross degradation
  • Death
• When the child is provided with dangerous, harmful, or detrimental drugs; provided that this paragraph shall not apply when such drugs are provided to the child pursuant to the direction or prescription of a practitioner
• When the child has been the victim of labor trafficking under chapter 707

Neglect

Citation: Rev. Stat. § 350-1  ‘Child neglect’ occurs when a child is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision.

Sexual Abuse/Exploitation

Citation: Rev. Stat. § 350-1  The term ‘child abuse or neglect’ includes instances when the child has been the victim of:

• Sexual contact or conduct including, but not limited to, sexual assault
• Molestation or sexual fondling
• Incest
• Prostitution
• Obscene or pornographic photographing, filming, or depiction, or other similar forms of sexual exploitation
• Other similar forms of sexual exploitation, including, but not limited to, acts that constitute an offense pursuant to § 712-1202(1)(b) [promoting prostitution of a person younger than age 18]

Emotional Abuse

Citation: Rev. Stat. § 350-1  The term ‘child abuse or neglect’ includes acts or omissions that have resulted in injury to the psychological capacity of a child as is evidenced by an observable and substantial impairment in the child’s ability to function.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Rev. Stat. § 350-1.1
A report is required when a mandatory reporter, in his or her professional or official capacity, has reason to believe that child abuse or neglect has occurred or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future.

Persons Responsible for the Child

Citation: Rev. Stat. § 350-1  A ‘responsible person’ is any person who, or legal entity that, is:

• In any manner or degree related to the child
• Residing with the child
• Otherwise responsible for the child’s care

Exceptions

No exceptions are specified in statute.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Rev. Stat. § 586-1  ‘Domestic abuse’ means:

• Physical harm, bodily injury, or assault; the threat of imminent physical harm, bodily injury, or assault; extreme psychological abuse; or malicious property damage between family or household members
• Any act that would constitute an offense under § 709-906 (abuse of family or household members), or under part V (sexual offenses), or VI (child abuse) of chapter 707 committed against a minor family or household member by an adult family or household member

‘Extreme psychological abuse’ means an intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer extreme emotional distress.

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation: Rev. Stat. § 709-906  It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer.

Persons Included in the Definition

Citation: Rev. Stat. §§ 586-1; 709-906  In civil law: ‘Family or household member’ means spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, persons jointly residing or formerly residing in the same dwelling unit, and persons who have or have had a dating relationship.

‘Dating relationship’ means a romantic, courtship, or engagement relationship, which is often, but not necessarily, characterized by actions of an intimate or sexual nature, but does not include a casual acquaintance or ordinary fraternization between persons in a business or social context.

In criminal law: ‘Family or household member’ means spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, persons in a dating relationship as defined under § 586-1, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

Current Through March 2015

Citation: Rev. Stat. § 350-3

Anyone participating in good faith in making a report pursuant to the reporting laws shall have immunity from any civil or criminal liability that might otherwise be incurred, imposed by, or result from making the report. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report.

Any individual who assumes a duty or responsibility pursuant to statute shall have immunity from civil liability for acts or omissions performed within the scope of the individual’s duty or responsibility.

Current Through February 2013

Individual Responsibility to Report

Citation: Rev. Stat. § 350-1.1  A mandated reporter who has reason to believe that child abuse or neglect has occurred shall immediately report the matter orally to the Department of Human Services or the police department. The initial oral report shall be followed as soon as possible by a report in writing to the department.

Content of Reports

Citation: Rev. Stat. § 350-1.1  All written reports shall contain, if known:

• The name and address of the child and the child’s parents or other persons responsible for the child’s care
• The child’s age
• The nature and extent of the child’s injuries
• Any other information that the reporter believes might be helpful or relevant to the investigation

Reporting Suspicious Deaths

Citation:This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

Citation:This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Citation: Rev. Stat. § 350-2  The department shall receive reports concerning child abuse or neglect.

The department shall inform the appropriate police department or office of the prosecuting attorney of the relevant information concerning a case of child abuse or neglect when the information is required for the investigation or prosecution of that case.

Initial Screening Decisions

Citation: Code of Rules § 17-1610-17  Upon receipt of a report, the department immediately shall assess the validity of the report, the safety of the child, and the agency response to the report.

If the department determines the report involves high or severe harm or severe threatened harm, the report shall be accepted for further assessment. If the report involves a low or moderate level of harm or threatened harm, the family may be diverted to community resources for short-term counseling, outreach, and/or support services.

Agency Conducting the Assessment/Investigation

Citation: Rev. Stat. § 587A-11  Upon receiving a report that a child is subject to imminent harm, has been harmed, or is subject to threatened harm, the department shall conduct an investigation as it deems to be appropriate.

Assessment/Investigation Procedures

Citation: Rev. Stat. § 587A-11; Code of Rules § 17-1610-23  In conducting the investigation, the department may:

• Enlist the cooperation and assistance of appropriate State and Federal law enforcement authorities, who may conduct an investigation and, if an investigation is conducted, shall provide the department with all preliminary findings, including the results of a criminal history record check of an alleged perpetrator
• Interview the child without the presence or prior approval of the child’s family and temporarily assume protective custody of the child for the purpose of conducting the interview

In regulation: The department shall assess each report accepted by the department in accordance with departmental procedures. The assessment, which will continue throughout the duration of the case, will determine whether or not the child has been harmed or is threatened with harm and the action that will be taken by the department.

The department shall determine and initiate any needed services necessary to complete the assessment, including but not limited to multidisciplinary team consultation, psychological, psychiatric, psychosexual, or other needed evaluations.

When additional facts are needed to thoroughly evaluate the family and child’s current situation, the department shall contact other persons or agencies that may possess knowledge of the family without consent.

A written medical assessment of the child’s physical condition shall be obtained when sexual abuse is suspected or there is a report of severe abuse, neglect, or medical neglect.

The department may obtain a criminal history record check on an alleged perpetrator.

Timeframes for Completing Investigations

Citation: Code of Rule § 17-1610-24  For those reports accepted for assessment, a disposition shall be made in accordance with departmental procedures and documented in the department’s information system within 60 working days of the acceptance of the report as to whether the child has been harmed.

Classification of Reports

Citation: Code of Rules § 17-1610-19  Records of reports shall be maintained by the department to assist in risk and safety assessments of a child who has been reported to be harmed or at risk of harm, provided that:

• A report that is unsubstantiated shall be expunged within 90 working days.
• A report that was investigated and found to be not confirmed shall be maintained by the department for use in future risk and safety assessments and for no other purpose.
• A report that was investigated and found to be confirmed when the department finds after a review of the circumstances and facts of the case that there is evidence of substantial rehabilitation or an erroneous confirmation may be expunged.
• A report that was investigated and found to be confirmed shall be maintained by the department for future risk and safety assessments.

Current Through April 2015

Citation: Rev. Stat. § 350-1‘Child abuse or neglect’ means the acts or omissions of any person or legal entity in any manner or degree related to the child, residing with the child, or otherwise responsible for the child’s care, that have resulted in harm to the physical or psychological health or welfare of the child, who is under age 18, or have subjected the health or welfare of the child to any reasonably foreseeable, substantial risk of being harmed.

The acts or omissions are indicated for the purposes of reports by circumstances that include, but are not limited to, when the child is provided with dangerous, harmful, or detrimental drugs, provided that this paragraph shall not apply when such drugs are provided to the child pursuant to the direction or prescription of a practitioner.

Citation: Rev. Stat. § 587A-4  ‘Harm’ means damage or injury to a child’s physical or psychological health or welfare, such as when the child is provided with dangerous, harmful, or detrimental drugs as defined in § 712-1240, except when a child’s family administers drugs to the child as directed or prescribed by a practitioner.

Citation: Rev. Stat. § 712-1240.5  Except as provided below, any person convicted of manufacturing a controlled substance in violation of this chapter, who commits the offense knowing that a child under age 16 is present in the structure where the offense occurs, shall be sentenced to a term of 2 years imprisonment to run consecutively to the maximum indeterminate term of imprisonment for the conviction of any offense involving the manufacturing of a controlled substance.

Any person convicted of manufacturing a controlled substance in violation of this chapter, who commits the offense knowing that a child under age 18 is present in the structure where the offense occurs and causes the child to suffer serious or substantial bodily injury, shall be sentenced to a term of 5 years imprisonment to run consecutively to the maximum indeterminate term of imprisonment for the conviction of any offense involving the manufacturing of a controlled substance.

As used in this section, ‘structure’ means any house, apartment building, shop, warehouse, building, vessel, cargo container, motor vehicle, tent, recreational vehicle, trailer, or other enclosed space capable of holding a child and equipment for the manufacture of a controlled substance.

Current Through August 2014

Making The Appointment

Citation: Rev. Stat. § 587A-16  The court shall appoint a guardian ad litem (GAL) to serve the child throughout the pendency of the child protective proceedings.

If the child’s opinions and requests differ from those being advocated by the GAL, the court shall evaluate and determine whether it is in the child’s best interests to appoint an attorney to serve as the child’s legal advocate concerning such issues and during the proceedings as the court deems to be in the best interests of the child.

The Use of Court-Appointed Special Advocates (CASAs)

Citation:This issue is not addressed in the statutes reviewed.

Qualifications/Training

Citation:This issue is not addressed in the statutes reviewed.

Specific Duties

Citation: Rev. Stat. § 587A-16  A GAL shall, unless otherwise ordered by the court:

• Have access to the child
• Have the authority to inspect and receive copies of any records, notes, and electronic recordings concerning the child that are relevant to the case
• Be given notice of all hearings and proceedings involving the child, whether civil or criminal, including grand juries, and shall protect the best interests of the child
• Make face-to-face contact with the child in the child’s family home or resource family home at least once every 3 months
• Report to the court and all parties in writing at 6-month intervals, or as ordered by the court, regarding actions taken to ensure the child’s best interests, and recommend how the court should proceed in the best interests of that child
• Inform the court of the child’s opinions and requests

The authority to inspect and receive copies of records shall exist even without the consent of the child or individuals and authorized agencies that have control of the child, except that nothing in this section shall override any attorney-client or attorney work-product privilege.

How the Representative Is Compensated

Citation: Rev. Stat. §§ 587A-16; 571-87The fees and costs of a GAL appointed pursuant to this section may be paid by the court unless the party for whom counsel is appointed has an independent estate sufficient to pay such fees and costs. The court may order the appropriate parties to pay or reimburse the fees and costs of the GAL and any attorney appointed for the child.

Appointed counsel and the GAL shall receive reasonable compensation for necessary expenses, including travel, the amount of which shall be determined by the court, and reasonable fees. All of these expenses and fees shall be certified by the court and paid upon vouchers approved by the judiciary and warrants drawn by the comptroller.

The court shall determine the amount of reasonable compensation paid to appointed counsel and GAL, based on the following rates:

• $90 an hour for in-court services provided by an attorney licensed to practice law in the State
• $60 an hour for:
  • Out-of-court services provided by a licensed attorney
  • All services provided by a person who is not a licensed attorney, whether performed in court or out of court

The maximum allowable fee shall not exceed the following schedule:

• Predisposition: $3,000
• Postdisposition review hearing: $1,000

Payments in excess of any maximum provided for above may be made when the court in which the representation was rendered certifies, based upon representations of extraordinary circumstances attested to by the applicant, that the amount of the excess payment is necessary to provide fair compensation in light of those circumstances, and the payment is approved by the administrative judge of that court.

Current Through April 2014

When Case Plans Are Required

Citation: Rev. Stat. § 587A-27  A service plan is a specific written plan prepared by an authorized agency and child’s family.

After each term and condition of the service plan has been thoroughly explained to and is understood by each member of the child’s family whom the appropriate authorized agency deems to be necessary to the success of the service plan, the service plan shall be agreed to and signed by each family member.

A copy of the service plan shall be provided to each family member who signed the service plan.

Who May Participate in the Case Planning Process

Citation: Rev. Stat. § 587A-27  The plan will be prepared by:

• An authorized agency
• Members of the child’s family who have legal custody, guardianship, or permanent custody of the child at the time that the service plan is being formulated or revised

Contents of a Case Plan

Rev. Stat. § 587A-27  The service plan shall provide:

• The specific steps necessary to facilitate the return of the child to a safe family home if the proposed placement of the child is in foster care
• Treatment and services that will be provided, actions completed, specific measurable and behavioral changes that must be achieved, and responsibilities assumed
• Whether an ohana conference will be conducted for family finding and family group decision-making
• The respective responsibilities of the child, the parents, legal guardian or custodian, the department, other family members, and treatment providers
• A description and expected outcomes of the services required to achieve the permanency goal
• The required frequency and types of contact between the social worker, child, and family
• The timeframes for providing services, completing actions, and discharging responsibilities
• Notice to the parents that their failure to substantially achieve the objectives of the service plan within the timeframes established may result in termination of their parental rights
• Notice to the parents that if the child has been in foster care for a total of 15 out of the most recent 22 months from the child’s date of entry into foster care, the department is required to file a motion to set a termination of parental rights hearing, and the parents’ failure to provide a safe family home within 2 years from the date when the child was first placed under foster custody may result in the parents’ parental rights being terminated
• Any other terms and conditions that the court or the authorized agency deem necessary to the success of the service plan

Current Through January 2016

Schedule of Hearings

Citation: Rev. Stat. §§ 587A-30; 587A-31  The court shall set a periodic review hearing to be conducted no later than 6 months after a child’s date of entry into foster care. Thereafter, the court shall conduct periodic review hearings every 6 months until the court’s jurisdiction is terminated unless the child is in the permanent custody of the department or an authorized agency.

If the child is in the permanent custody of the department or agency, the court shall conduct a permanency hearing every 6 months until the court’s jurisdiction is terminated.

A permanency hearing shall be conducted within 12 months of the child’s date of entry into foster care or within 30 days of a judicial determination that the child is an abandoned infant or that aggravated circumstances are present. A permanency hearing shall be conducted at least every 12 months thereafter for as long as the child remains in foster care under the placement responsibility of the department or an authorized agency, or every 6 months thereafter if the child remains in the permanent custody of the department or an authorized agency.

A permanency hearing may be held concurrently with a periodic review hearing.

Persons Entitled to Attend Hearings

Citation: Rev. Stat. § 587A-14  Notice of hearings shall be served on the parties. No further notice is required for any party that defaulted or was given actual notice of a hearing while present in court. Notice of hearings shall be served no less than 48 hours before the scheduled hearing, subject to a shortening of time as ordered by the court.

The child’s current resource family shall be served written notice of hearings no less than 48 hours before a scheduled hearing. The resource family is entitled to participate in the proceedings to provide information to the court, either in person or in writing, concerning the current status of the child in their care.

For purposes of this section, ‘party’ or ‘parties’ shall include the current foster parents.

Determinations Made at Hearings

Citation: Rev. Stat. §§ 587A-30; 587A-31  At the hearing, the court shall determine whether the child is receiving appropriate services and care and whether the case plan is being properly implemented. The court shall determine:

• Whether the child is safe
• The continued need for and appropriateness of the out-of-home placement
• The extent to which each party has complied with the case plan
• The family’s progress in making their home safe for the child and resolving the problems that caused the child harm or to be threatened with harm and, if applicable, the necessity for continued out-of-home placement of the child

At each permanency hearing, the court shall determine:

• The projected timetable for reunification or, if the current placement is not expected to be permanent, placement in an adoptive home, with a legal guardian, or under the permanent custody of the department
• Whether the department has made reasonable efforts, in accordance with the safety and well-being of the child, to:
  • Place siblings who have been removed from the family home in the same out-of-home placement
  • Provide for frequent visitation or other interactions with siblings who are not living in the same household
• The appropriate permanency goal for the child, including whether a change in goal is necessary
• Whether the department has made reasonable efforts to finalize the permanency goal
• The date by which the permanency goal for the child is to be achieved
• In the case of a child age 16 or older, the services needed to assist the child with the transition to independent living

Permanency Options

Citation: Rev. Stat. § 587A-31  At each permanency hearing, the court shall order:

• The child’s reunification with a parent or parents
• The child’s continued placement in foster care when:
  • Reunification is expected to occur within a timeframe that is consistent with the developmental needs of the child.
  • The safety and health of the child can be adequately safeguarded.
• A permanent plan with a goal of:
  • Placing the child for adoption with the department filing a motion for the termination of parental rights
  • Placing the child for legal guardianship if the department documents and presents to the court a compelling reason why termination of parental rights and adoption are not in the best interests of the child
  • Awarding permanent custody to the department or an authorized agency, if the department documents and presents to the court a compelling reason why adoption and legal guardianship are not in the best interests of the child

Current Through March 2016

Citation: Rev. Stat. § 587A-2The policy and purpose of this chapter is to provide children with prompt and ample protection from the harms detailed herein, with an opportunity for timely reconciliation with their families if the families can provide safe family homes, and with timely and appropriate service or permanent plans to ensure the safety of the child so they may develop and mature into responsible, self-sufficient, law-abiding citizens.

The service plan shall work toward the child’s remaining in the family home, when the family home can be immediately made safe with services, or the child’s returning to a safe family home. The service plan shall be carefully formulated with the family in a timely manner. Every reasonable opportunity should be provided to help the child’s legal custodian succeed in remedying the problems that put the child at substantial risk of being harmed in the family home. Each appropriate resource, public and private, family and friend, should be considered and used to maximize the legal custodian’s potential for providing a safe family home for the child. Full and careful consideration shall be given to the religious, cultural, and ethnic values of the child’s legal custodian when service plans are being discussed and formulated. Where the court has determined, by clear and convincing evidence, that the child cannot be returned to a safe family home, the child shall be permanently placed in a timely manner.

Citation: Rev. Stat. § 587A-2  The policy and purpose of this chapter includes the protection of children who have been harmed or are threatened with harm by:

• Providing assistance to families to address the causes for abuse and neglect
• Respecting and using each family’s strengths, resources, culture, and customs
• Ensuring that families are meaningfully engaged and children are consulted in an age-appropriate manner in case planning
• Enlisting the early and appropriate participation of family and the family’s support networks
• Respecting and encouraging the input and views of caregivers
• Ensuring a permanent home through timely adoption or other permanent living arrangement, if safe reunification with the family is not possible

The child protective services under this chapter shall be provided with every reasonable effort to be open, accessible, and communicative to the persons affected by a child protective proceeding without endangering the safety and best interests of the child under this chapter.

This chapter shall be liberally construed to serve the best interests of the children affected and the purpose and policies set forth herein.

Citation: Rev. Stat. § 587A-2  This chapter creates within the jurisdiction of the family court a child protective act to make paramount the safety and health of children who have been harmed or are in life circumstances that threaten harm. Furthermore, this chapter makes provisions for the service, treatment, and permanent plans for these children and their families.

The legislature finds that children deserve and require competent, responsible parenting and safe, secure, loving, and nurturing homes. The legislature finds that children who have been harmed or are threatened with harm are less likely than other children to realize their full educational, vocational, and emotional potential and become law-abiding, productive, self-sufficient citizens, and are more likely to become involved with the mental health system, the juvenile justice system, or the criminal justice system, as well as become an economic burden on the State. The legislature finds that prompt identification, reporting, investigation, services, treatment, adjudication, and disposition of cases involving children who have been harmed or are threatened with harm are in the children’s, their families’, and society’s best interests because the children are defenseless, exploitable, and vulnerable. The legislature recognizes that many relatives are willing and able to provide a nurturing and safe placement for children who have been harmed or are threatened with harm.

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Rev. Stat. §§ 571-61; 587A-4  The family courts may terminate the parental rights to a child of any legal parent:

• Who has deserted the child without affording means of identification for a period of at least 90 days
• Who has voluntarily surrendered the care and custody of the child to another for a period of at least 2 years
• Who, when the child is in the custody of another, has failed to communicate with the child or provide care and support for the child when able to do so for a period of at least 1 year
• Whose child has been removed from the parent’s physical custody and who is found to be unable to provide now and in the foreseeable future the care necessary for the well-being of the child
• Who is found by the court to be mentally ill or intellectually disabled and incapacitated from giving consent to the adoption of or from providing now and in the foreseeable future the care necessary for the well-being of the child
• Who is found not to be the child’s natural or adoptive father

The court may also hold a permanency hearing to determine a placement for the child outside the parent’s home when the parent has subjected the child to aggravated circumstances. ‘Aggravated circumstances’ means that:

• The parent has murdered, or has solicited, aided, abetted, attempted, or conspired to commit the murder or voluntary manslaughter of, another child of the parent.
• The parent has committed a felony assault that results in serious bodily injury to the child or another child of the parent.
• The parent’s rights regarding a sibling of the child have been judicially terminated or divested.
• The parent has tortured the child.
• The child is an abandoned infant.
• The parent has committed sexual abuse against another child of the parent.
• The parent is required to register with a sex offender registry.

Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

Citation: Rev. Stat. § 587A-34  The child, the child’s guardian ad litem or attorney, or the department may file a motion to reinstate the terminated parental rights of the child’s parents when the child has been in permanent custody for at least 12 months and the child is age 14 or older.

At a preliminary hearing on the motion, the court may order a trial home placement and a temporary reinstatement of parental rights upon finding that:

• There has been a material change in circumstances.
• A parent is willing to provide care for the child.
• A parent is able to provide a safe family home or the home can be made safe with the assistance of services.
• A trial home placement is in the child’s best interests.

If the court issues a temporary order of reinstatement of parental rights:

• The child shall be conditionally placed in the physical care of the parent for no longer than 6 months.
• The department shall develop a permanent plan for reunification and ensure that transition services are provided to the family, as appropriate.

At a final hearing on the motion, the court may issue a final order of reinstatement of parental rights if the trial home placement has been successful. In making its final decision, the court shall determine whether:

• Reinstatement of parental rights is in the best interests of the child, taking into consideration:
  • Whether a parent has remedied the conditions that caused the termination of parental rights
  • The age and maturity of the child and the child’s ability to express a preference
  • The likelihood of risk to the health, safety, or welfare of the child
• The parent is able to provide the child with a safe family home.
• Both the parent and child consent to the reinstatement of parental rights.
• The permanent plan goals for the child have not been and are not likely to be achieved.

Current Through February 2013

Infant’s Age

Citation: Rev. Stat. § 587D-2

A child who is no more than 72 hours old may be relinquished.

Who May Relinquish the Infant

Citation: Rev. Stat. § 587D-2

A person may leave the child with a safe haven provider.

Who May Receive the Infant

Citation: Rev. Stat. § 587D-2

The child may be left with the personnel of a hospital, fire station, police station, or emergency services provider.

Responsibilities of the Safe Haven Provider

Citation: Rev. Stat. §§ 587D-3; 587D-4

When a person leaves a newborn child with a safe haven provider, the provider:

• Shall make every reasonable effort to solicit the following information:
  • The child’s name
  • The name and address of the parent or person dropping off the child
  • Where the child was born
  • The child’s medical history
  • The child’s birth family’s medical history, including major illnesses and diseases
  • Any other information that might reasonably assist the Department of Human Services in determining the best interests of the child, including whether the parents plan to seek custody of the child in the future
• May provide the person leaving the newborn child with information on how to contact relevant social service agencies
• Shall notify appropriate law enforcement agencies that a child was received for purposes of matching the child with missing children reports

Refusal of the person leaving the child to provide personal information shall not prevent personnel from accepting the child.

If a safe haven provider receives a child, the provider shall perform any act necessary, in accordance with generally accepted standards of their respective professional practice, to protect, preserve, and aid the physical health and safety of the child during the temporary physical custody.

Within 24 hours of receiving an unharmed newborn child, the provider shall inform the department that a child has been left at the premises. The department shall not be informed until the person leaving the child has left the premises. If the child is received in a harmed condition, the provider shall notify appropriate law enforcement agencies, regardless of whether the person or persons leaving the child has left the premises.

Immunity for the Provider

Citation: Rev. Stat. § 587D-5

A hospital, health-care provider, hospital personnel, fire station, firefighter, fire personnel, police station, police officer, police personnel, and emergency services personnel acting in good faith in receiving a newborn child shall be immune from:

• Any criminal liability that otherwise might result from their actions
• Any civil liability that otherwise might result from merely receiving a newborn child

A hospital, health-care provider, hospital personnel, fire station, firefighter, fire personnel, police station, police officer, police personnel, and emergency services personnel who are mandated reporters under § 350-1.1 shall be immune from any criminal or civil liability that otherwise might result from the failure to make a report if the person is acting in good faith in complying with this chapter.

Protection for Relinquishing Parent

Citation: Rev. Stat. § 587D-2

A person may leave a newborn child at a safe haven without being subject to prosecution for abandonment of a child pursuant to § 709-902 provided that the newborn child is left in an unharmed condition.

Effect on Parental Rights

Citation: Rev. Stat. §§ 587D-6; 587D-7

Upon receiving custody of a newborn child who has been discharged from a hospital that received the newborn child pursuant to § 587D-3, the Department of Human Services may reunite the newborn child with the newborn’s parents.

The department may search for relatives of the newborn child as a placement or permanency option or implement other placement requirements that give a preference to relatives provided that the department has information as to the identity of the newborn child, the newborn child’s mother, or the newborn child’s father.

For purposes of proceedings under this chapter and adoption proceedings, a newborn child left at a hospital, fire station, police station, or emergency services provider shall be considered an abandoned child.

Current Through December 2014

Definitions

Citation: Ann. Stat. § 587A-4; Code of Rules § 17-1621-3.  The term ‘hanai relative’ means an adult, other than a blood relative, whom the court or Department of Human Services has found by credible evidence to perform or to have performed a substantial role in the upbringing or material support of a child, as attested to by the written or oral designation of the child or of another person, including other relatives of the child.

The term ‘relative’ means a person related to a child by blood or adoption, or a hanai relative as defined in this chapter, who, as determined by the court or the department, is willing and able to safely provide support to the child and the child’s family.

In regulation: The term ‘caregiver’ means the child’s legal guardian(s) or permanent custodian(s).

The term ‘legal guardian’ means any adult who has been awarded legal guardianship of a child as the result of a judicial determination made at the time the department had placement responsibility of the child.

Purpose of Guardianship

Citation: Code of Rules § 17-1621-9  A caregiver may be awarded legal guardianship of a child for whom the department has placement responsibility when:

• A court has determined that the child cannot be reunified with the legal parents.
• The department has determined that adoption is not a viable goal for the child due to factors that may include, but are not limited to, the child’s desire not to be adopted and/or the existence of significant ties to the current caregiver(s) who are unable or unwilling to adopt the child.

A Guardian’s Rights and Responsibilities

Citation: Code of Rules § 17-1621-10  The legal guardianship shall be a judicially created relationship between the child and relative that is intended to be permanent and self-sustaining, as evidenced by the transfer to the legal guardian of the following parental rights with respect to the child:

• Protection
• Education
• Care and control of the person
• Custody of the person
• Decision-making

Qualifying the Guardian

Citation: Code of Rules § 17-1621-11  The Department of Human Services shall conduct criminal history record checks, child abuse and neglect registry checks, background checks, and any other checks of the prospective legal guardians and other adult household members that are deemed necessary. For each person, this background study shall include:

• Fingerprint-based clearances completed by the Federal Bureau of Investigation in accordance with Federal and State statutes and departmental procedures
• Checks of the State’s child abuse and neglect registry for all adult household members, including the registries in States where an adult resided within the preceding 5 years

The prospective legal guardians and other adult household members shall not have any of the following:

• A felony conviction, at any time, for child abuse or neglect; spousal abuse; a crime against children (including child pornography); or a serious crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery
• A felony conviction, within the last 5 years, for physical assault, battery, or a drug-related offense
• Convictions of any other crimes that indicate that the person poses a risk to the health, safety, or well-being of children
• An employment history indicating violence, alcohol or drug abuse, and any other violation of employer rule or policy that indicate that the person may pose a risk to the health, safety, or well-being of children

Background information that shows that the person has been confirmed to have committed child abuse or neglect or whose parental rights were terminated may be a basis for denial, unless the department determines that the person has established clear and convincing evidence of rehabilitation and does not pose a risk to the health, safety, or well-being of a child or children in the home.

Procedures for Establishing Guardianship

Citation: Ann. Stat. §§ 560:5-201; 560:5-204  A person becomes a guardian of a minor by parental appointment or upon appointment by the court.

A minor or a person interested in the welfare of a minor may petition for appointment of a guardian. The court may appoint a guardian for a minor if the court finds the appointment is in the minor’s best interests, the parents consent to the guardianship, all parental rights have been terminated, or the parents are unwilling or unable to exercise their parental rights.

Contents of a Guardianship Order

This issue is not addressed in the statutes and regulations reviewed.

Modification/Revocation of Guardianship

Citation: Ann. Stat. § 560:5-201  The guardianship continues until terminated, without regard to the location of the guardian or minor ward.

Eligibility for Guardianship Subsidy

Citation: Code of Rules §§ 17-1621-8; 17-1621-9  Federal title IV-E kinship guardianship assistance provides payments to relatives who assume legal guardianship of children for whom they have cared while foster parents. For a guardian to receive assistance, the following provisions apply:

• The child must have been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child
• The child must have been eligible for title IV-E foster care maintenance payments during a period of at least 6 consecutive months during which the child resided in the home of the prospective relative guardian who was unconditionally licensed as a foster family home
• The department must determine that:
  • Return home and adoption have been ruled out as appropriate permanency options.
  • The child demonstrates a strong attachment to the prospective relative guardian.
  • The relative guardian has a strong commitment to caring permanently for the child.
• The department must consult with a child who is age 14 or older regarding the kinship guardianship arrangement.

The eligible child and any sibling of the child may be placed in the same kinship guardianship arrangement if the department and the relative agree on the appropriateness of the arrangement for the siblings. Kinship guardianship assistance payments shall be paid on behalf of each sibling so placed, even if the sibling does not meet the eligibility criteria.

A guardian for a child who does not meet the criteria for title IV-E assistance may apply for State-funded permanency assistance.

Links to Agency Policies

Hawaii Department of Human Services, Comparison of Permanency Options (PDF – 66 KB)

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Rev. Stat. §§ 587A-4; 587A-9  The term ‘hanai relative’ means an adult, other than a blood relative, whom the court or department has found by credible evidence to perform or to have performed a substantial role in the upbringing or material support of a child, as attested to by the written or oral designation of the child or of another person, including other relatives of the child.

The term ‘relative’ means a person related to a child by blood or adoption, or a hanai relative who, as determined by the court or the department, is willing and able to safely provide support to the child and the child’s family.

The term ‘resource family’ means a person or family licensed by the Department of Human Services or another authorized agency to provide foster care services for children and can be used interchangeably with ‘foster parent’ and ‘foster family.’

When a child must be placed outside of his or her home, placement preference shall be given to an approved relative.

Requirements for Placement with Relatives

Citation: Rev. Stat. §§ 587A-9; 587A-10; 587A-11  When the department receives protective custody of a child from the police, the department shall:

• Place the child in emergency foster care, unless the child is admitted to a hospital or similar institution, while the department conducts an appropriate investigation, with placement preference being given to an approved relative
• Make reasonable efforts with authorized agencies to identify and notify all relatives within 30 days of assuming temporary foster custody of the child

The department shall provide the child’s relative with an application to be the child’s resource family within 15 days of the relative’s request to provide foster placement for the child. The department and authorized agencies shall make reasonable efforts to identify and notify all relatives of the child within 30 days after assuming foster custody of the child.

In conducting an investigation of harm to a child, the department may assume temporary foster custody of the child and file a petition with the court within 3 days, excluding Saturdays, Sundays, and holidays, after the date on which the department assumes temporary foster custody of the child, with placement preference being given to an approved relative.

Requirements for Placement of Siblings

Citation: Rev. Stat. §§ 587A-26; 587A-31  At a foster custody hearing, the court shall determine whether every reasonable effort has been or is being made to place siblings or psychologically bonded children together, unless such placement is not in the children’s best interests.

At each permanency hearing, the court shall make written findings as to whether the department has made reasonable efforts, in accordance with the safety and well-being of the child, to:

• Place siblings who have been removed from the family home with the same resource family, adoptive placement, or legal guardians
• Provide for frequent visits or other on-going interactions with siblings who are not living in the same household

Relatives Who May Adopt

This issue is not addressed in the statutes reviewed.

Requirements for Adoption by Relatives

This issue is not addressed in the statutes reviewed.

Current Through March 2016

What Are Reasonable Efforts

Citation: Rev. Stat. §§ 587A-2; 587A-27  The service plan shall be carefully formulated with the family in a timely manner. Every reasonable opportunity should be provided to help the child’s legal custodian to succeed in remedying the problems that put the child at substantial risk of being harmed in the family home. Each appropriate resource, public and private, family and friend, should be considered and used to maximize the legal custodian’s potential for providing a safe family home for the child. Full and careful consideration shall be given to the religious, cultural, and ethnic values of the child’s legal custodian when service plans are being discussed and formulated.

The service plan shall provide the specific steps necessary to facilitate the return of the child to a safe family home, if the proposed placement of the child is in foster care under foster custody. These specific steps shall include treatment and services that will be provided, actions completed, specific measurable and behavioral changes that must be achieved, and responsibilities assumed.

When Reasonable Efforts Are Required

Citation: Rev. Stat. § 587A-2  The service plan shall effectuate the child’s remaining in the family home, when the family home can be immediately made safe with services, or the child’s returning to a safe family home.

When Reasonable Efforts Are NOT Required

Citation: Rev. Stat. §§ 587A-28; 587A-4  The court need not order a service plan if the court finds that aggravated circumstances are present. The term ‘aggravated circumstances’ means that:

• The parent has murdered or has solicited, aided, abetted, attempted, or conspired to commit the murder or voluntary manslaughter of another child of the parent.
• The parent has committed a felony assault that results in serious bodily injury to the child or another child of the parent.
• The parent’s rights regarding a sibling of the child have been judicially terminated.
• The parent has tortured the child.
• The child is an abandoned infant.
• The parent has committed sexual abuse against another child of the parent.
• The parent is required to register with a sex offender registry under the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. § 16913(a)).

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Rev. Stat. § 560:5-202  A parent may appoint a guardian for any minor child.

How to Establish a Standby Guardian

Citation: Rev. Stat. § 560:5-202  A parent may appoint a guardian in a will or another signed writing. Before the appointment becomes effective, the court may confirm the parent’s selection of a guardian and terminate the rights of others to object upon:

• Petition of an appointing parent
• A finding that the appointing parent will likely become unable to care for the child within 2 years
• Notice, as provided in § 560:5-205(a), has been given

How Standby Authority is Activated

Citation: Rev. Stat. § 560:5-202  The appointment of a guardian becomes effective upon one of the following:

• The appointing parent’s death
• An adjudication that the parent is an incapacitated person
• A written determination by a physician who has examined the parent that states that the parent is no longer able to care for the child

The guardian becomes eligible to act upon the filing of an acceptance of appointment. This acceptance must be filed within 30 days after the guardian’s appointment becomes effective. The guardian shall:

• File the acceptance of appointment and a copy of the will with the court or, in the case of another appointing instrument, file the acceptance of appointment and the appointing instrument with the court
• Give written notice of the acceptance of appointment to the appointing parent, if living, the minor, if the minor has attained 14 years of age, and a person other than the parent having care and custody of the minor

Involvement of the Noncustodial Parent

Citation: Rev. Stat. § 560:5-203
Until the court has confirmed an appointee under § 560:5-202, a minor who is the subject of an appointment by a parent and who is age 14 or older, the child’s other parent, or a person other than a parent or guardian having care or custody of the minor, may prevent or terminate the appointment at any time by filing a written objection in the court in which the appointing instrument is filed and giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment.

Authority Relationship of the Parent and the Standby

Citation: Rev. Stat. § 560:5-202  The appointment may specify the desired limitations on the powers to be given to the guardian. The appointment of a guardian by a parent does not supersede the parental rights of either parent.

Withdrawing Guardianship

Citation: Rev. Stat. § 560:5-202  The appointing parent may revoke or amend the appointment before confirmation by the court.

The authority of a guardian appointed under this section terminates upon the appointment of a guardian by the court or the giving of written notice to the guardian of the filing of an objection pursuant to § 560:5-203, whichever occurs first.