Bill Text: HI SB1042 | 2024 | Regular Session | Introduced
Bill Title: Relating To Child Search And Seizure.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced) 2023-12-11 - Carried over to 2024 Regular Session. [SB1042 Detail]
Download: Hawaii-2024-SB1042-Introduced.html
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THE SENATE |
S.B. NO. |
1042 |
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THIRTY-SECOND LEGISLATURE, 2023 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to child search and seizure.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
The legislature believes that one of the reasons for the high rate of child removals without a warrant or court order is the overly broad and confusing language of the governing statute. The statute allows immediate removal of a child when there is reasonable cause to believe that the child will suffer harm within the following ninety days. However, the ninety-day threshold provides more than sufficient time for the police or child protective services to petition for a warrant or court order for removal.
The legislature recognizes that many parents or guardians are not aware of their legal rights at the time their child is involuntarily removed by the State. Parents and children have a well-established constitutional right to live together without governmental interference. The fourteenth amendment of the United States Constitution guarantees that a parent will not be separated from their child without due process of law except in emergencies. Law enforcement officials violate the fourteenth amendment right of both the parent and the child if they remove the child from the home absent information at the time of the removal that establishes reasonable cause to believe there is imminent harm. Parents should also be made aware that they are not required to sign any document or speak to police or department investigators and that they have the right to have an attorney present when questioned. Many states, including Connecticut, Arizona, Idaho, Colorado, and New York have enacted, or are considering, legislation requiring that parents be presented with a written notification of their rights when a child welfare investigation is initiated.
Accordingly, the purpose of this Act is to ensure that the State's laws for child removal comply with United States Constitution and United States Supreme Court precedent by:
(1) Clarifying the definition of "imminent harm";
(2) Requiring police officers to comply with exigency requirements when removing a child from the child's home and to promptly submit a police report documenting specific, articulable evidence of imminent harm to the child that warranted the child's immediate removal;
(3) Requiring the State to provide written notice to a parent of the parent's rights when conducting an investigation of reported child abuse or neglect; and
(4) Requiring police officers to have parental consent, a court order, or evidence of exigent circumstances, when interviewing a child at school or removing the child to protective custody to complete an investigation.
SECTION 2. Section 587A-4, Hawaii Revised Statutes, is amended by amending the definition of "imminent harm" to read as follows:
""Imminent
harm" means [that without intervention within the next ninety days,
there is reasonable cause to believe that harm to the child will occur or
reoccur.] an immediate, significant, and clearly observable family
condition or situation that is actively occurring at the point of contact with
a family and risks serious injury or death to a child."
SECTION 3. Section 587A-8, Hawaii Revised Statutes, is amended to read as follows:
"[[]§587A-8[]] Protective
custody by police officer without court order. (a) A
police officer shall assume protective custody of a child without a court order
and without the consent of the child's family if [in the discretion of the
police officer, the officer determines that:] there is no time to obtain
a court order, and the officer observes and can articulate in the initial
police report that:
(1) The child is subject to imminent harm at the point of contact with the family and while in the custody of the child's family;
(2) The child has no parent, as defined in this chapter, who is willing and able to provide a safe family home for the child;
(3) The child has no caregiver, as defined in this chapter, who is willing and able to provide a safe and appropriate placement for the child; or
(4) The child's parent has subjected the child to harm or threatened harm and the parent is likely to flee with the child.
(b) The department shall assume temporary foster custody of the child when a police officer has completed the transfer of protective custody of the child to the department as follows:
(1) A police officer who assumes protective custody of a child shall complete transfer of protective custody to the department by presenting physical custody of the child to the department; or
(2) If the child is or will be admitted to a hospital or similar institution, the police officer shall immediately complete the transfer of protective custody to the department by notifying the department and receiving an acknowledgment from the hospital or similar institution that it has been informed that the child is under the temporary foster custody of the department.
(c) A police officer who assumes protective custody of a child pursuant to subsection (a) shall, within twenty-four hours of assuming protective custody, submit to the department an initial written report articulating the imminent harm that the officer observed that caused the officer to reasonably believe that immediate removal of the child was necessary."
SECTION 4. Section 587A-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"§587A-9 Temporary foster custody without court order. (a) When the department receives protective custody of a child from the police, the department shall:
(1) Assume temporary foster custody of the child if, in the discretion of the department, the department determines that the child is subject to imminent harm while in the custody of the child's family;
(2) Obtain from the police officer who
assumed protective custody of the child a copy of the initial police report
pursuant to section 587A-8(c);
[(2)]
(3) Make
every reasonable effort to inform the child's parents of the actions taken, including
providing them with a copy of the initial police report, unless doing so
would put another person at risk of harm;
[(3)]
(4) Unless
the child is admitted to a hospital or similar institution, place the child in
emergency foster care while the department conducts an appropriate
investigation, with placement preference being given to an approved relative;
[(4)]
(5) With
authorized agencies, make reasonable efforts to identify and notify all
relatives within thirty days of assuming temporary foster custody of the child;
and
[(5)]
(6) Within
three days, excluding Saturdays, Sundays, and holidays:
(A) Relinquish temporary foster custody,
return the child to the child's parents, and proceed pursuant to section [587A-11(4),]
587A-11(b) and 587A-11(c)(4), (5), or (6);
(B) Secure a voluntary placement agreement
from the child's parents to place the child in foster care, and proceed
pursuant to section [587A-11(6)] 587A-11(c)(6) or (8); or
(C) File a petition with the court[.]
that shall include a copy of the initial police report."
SECTION 5. Section 587A-11, Hawaii Revised Statutes, is amended to read as follows:
"§587A-11
Investigation; department
powers. (a) Upon receiving a report that a child is
subject to imminent harm, has been harmed, or is subject to threatened harm,
and when an assessment is required by this chapter, the department shall cause [such]
an investigation to be made as it deems to be appropriate.
(b) In conducting the investigation, the
department [may:] shall:
(1) At the time of the initial
face-to-face contact, provide the parent with written notice of the parent's
rights and legal disclosures in a document entitled "Notice of Parent Rights",
which shall be developed by the department and shall state that:
(A) The department is investigating
suspected child abuse or neglect according to the law;
(B) The department is required to notify the
parent of the allegations before conducting any interview with the parent;
(C) The parent is not required to permit
the department or police officer to enter the parent's residence, unless presented
with a valid warrant;
(D) The parent is not required to speak
to the department; however, failure to cooperate may have serious consequences;
(E) The parent has the right to record
the parent's interview with the department;
(F) The parent is entitled to seek
representation by an attorney and have the attorney present when the parent is
questioned by the department;
(G) Neither the department's
representative nor the police officer is the parent's attorney, and neither may
provide legal advice to the parent;
(H) Any statement made by the parent, or
any family member, may be used against the parent in a hearing initiated
pursuant to this chapter; and
(I) The parent is not required to sign
any document presented by the department or a police officer, including a
release of claims or service agreement, and is entitled to have an attorney review
any document before the parent agrees to sign;
(2) Make reasonable efforts to ensure
that the notice provided to a parent under this section is written in a manner
that will be understood by the parent and in a language in which the parent is
fluent;
(3) Request that the parent sign and
date the notice as evidence of having received it. If the parent refuses to sign and date the
notice upon request, the department shall specifically indicate on the notice
the department's request and the parent's refusal to sign. The department shall sign the notice as a
witness to the parent's refusal to sign and shall provide the parent with a
copy of the signed notice at the time of the initial face-to-face contact with
the parent; and
(4) Except when an initial contact with
a parent results in the immediate or same-day placement of a child into
emergency foster care, the notice provided under this section shall be
implemented, retained in the child's case file, and attached to a court
petition if a subsequent removal to foster custody occurs.
(c) In conducting the investigation, the
department may:
(1) 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 of harm or threatened harm to the child;
(2) Conduct a criminal history record check of an alleged perpetrator and all adults living in the family home, with or without consent, to ensure the safety of the child;
(3) 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;]
at the child's school or take protective custody of the child for the
purpose of conducting an interview; provided the department has:
(A) Parental consent;
(B) A court order; or
(C) Evidence of exigent circumstances;
(4) Resolve the matter in an informal fashion that it deems appropriate under the circumstances;
(5) Close the matter if the department finds, after an assessment, that the child is residing with a caregiver who is willing and able to meet the child's needs and provide a safe and appropriate placement for the child;
(6) Immediately enter into a service plan:
(A) To safely maintain the child in the family home; or
(B) To place the child in voluntary foster care pursuant to a written agreement with the child's parent.
If the child is placed in voluntary foster care and the family does not successfully complete the service plan within three months after the date on which the department assumed physical custody of the child, the department shall file a petition. The department is not required to file a petition if the parents agree to adoption or legal guardianship of the child and the child's safety is ensured; provided that the adoption or legal guardianship hearing is conducted within six months of the date on which the department assumed physical custody of the child;
(7) Assume temporary foster custody of the child and file a petition with the court within three 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; or
(8) File a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter."
SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
Department of Human Services; Child Welfare; Child Removal
Description:
Clarifies the definition of "imminent harm". Requires police officers to comply with exigency requirements when removing a child from the child's home and to promptly submit a police report documenting specific, articulable evidence of imminent harm to the child that warranted the child's immediate removal. Requires the State to provide written notice to a parent of the parent's rights when conducting an investigation of reported child abuse or neglect. Requires police officers to have parental consent, a court order, or evidence of exigent circumstances, when interviewing a child at school or removing the child to protective custody to complete an investigation.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
