The exposé could well begin with William C. Darrah’s idealistic dictum “family law defends the integrity of the family and the state of the family determines the state of our society.” The problem is that neither Hawaiian law nor the Family Court “defends the integrity of the family.”
Instead, child placement is left largely to the discretion of DHS social workers or “evaluators”, whom, at least in your case, appear partial to licensed caregivers, and who have proven themselves unprofessional, lazy, biased, unfit and perhaps just plain stupid.
True, a DHS decision can be appealed to the Family Court, which can substitute its own discretion for that applied by the DHS, but where a party challenges DHS's permanent placement determination, that party bears the burden of proving, by a preponderance of the evidence, that DHS's permanent placement determination is not in the best interests of the child.
And again, even in the Family Court, permanent placement of a child is again a discretionary decision, which, adverse to family connection, may favor a licensed caregiver.
As explained by the Hawaii Supreme Court, this is because DHS is charged with administering child welfare services in the state, and its social workers are presumed to be experts on child protection and child welfare.
In re AS, 322 P.3d 263, 273, 132 Hawaii 368 (Haw. 2014).
Therein lies a problem. DHS’ social workers may actually have little expertise, may be of low IQ, may lack good judgment, may be socially maladjusted, or, as appears in your case, may be biased in favor of paid caregivers in the social workers’ economic class. Unfortunately, as an applied predicate, the presumption is irrebuttable.
Arguably, DHS, not a child’s relative, should carry the burden of proving its discretionary placement decision is in the best interest of the child.
But rather than quarreling over whom should carry the burden of proof, wouldn’t it be extremely good if the law removed both that issue and all discretion from the table, providing instead for a mandatory biological relative, permanent placement preference, subject, of course, to the relative meeting all relevant state child protection standards?
Relatives are preferred for child placement because that placement type maintains the child’s connections with his or her family. Virtually everyone agrees that placement of a child with a biological relative desiring to care for the child is better for the child than placing him in foster care. Much has been written on that subject and of the vital importance of maintaining the family connection.
As cited by the Hawaii Supreme Court, supra @ 282, the hesitance against such a law is that foster parents are licensed and have undergone extensive screening, while relatives may not have undergone a similar level of screening. The obvious answer is to screen relatives appropriately. If they meet all relevant child protection standards, it is in the best interest of the child, as well as the family and the state, that he be placed with such relative.
Aside from suggesting the foregoing reform, the exposé could well extend beyond DHS to the Hawaiian legislature’s pathetic neglect to at least incorporate Title IV–E, 42 U.S.C. § 671(a)(19) (2011)’s relative placement preference into Hawaiian Family Law pertaining to permanent placements as has been done only in the instance of temporary placements (HRS § 587A-9).
All but one other state has incorporated the preference consideration into their respective state law pertaining to permanent placement cases. So has the District of Columbia, Puerto Rico and Guam. What ails Hawaii?
The legislature should also take note of the ‘‘Adoption and Safe Families Act of 1997’’, 42 U.S.C. 1305, effective January 7, 1997, which amended 42 U.S.C. 671(a)(15) of the Social Security Act and requires in child adoption cases that “reasonable efforts shall be made to preserve and reunify families.”
In your case, what effort has DHS made to preserve and reunify your family? None.
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