In 2012, a 6-year-old foster child was sexually assaulted by a 17-year-old foster youth living in the same home. It was believed to be one of three cases since 2010 in which a Hawaii child was sexually abused while in foster care.

In this case, though, the young boy’s mother worked for the state agency responsible for protecting Hawaii’s foster children.

She says her own employer, the Department of Human Services, failed her son by keeping him in the same home with a teenager who DHS knew had a history of inappropriate sexual behavior.

Even after she urged the department to place the two youths in separate homes, it failed to do so; a few weeks later, her son was sexually assaulted by the teen, according to the DHS worker.

"This should have never happened," she told the Honolulu Star-Advertiser.

The woman, a social services assistant for the agency’s Child Welfare Services branch, spoke to the newspaper on the record about the case. But the Star-Advertiser is not naming her so that her son’s identity, even indirectly, is not revealed. The newspaper has a policy of not identifying sex abuse victims.

The assault raises concerns about the agency’s oversight of Hawaii’s foster care system and what happens once a child under DHS jurisdiction is harmed. The case is also noteworthy because the department had been put on notice three years earlier, as part of a 2009 federal review, that it had failed to meet a national standard for keeping foster children free from maltreatment.

Federal data show that Hawaii continued to fall short of the standard in fiscal 2010 and 2011 but surpassed it in 2012 — just after DHS says it improved its process for assessing safety factors in foster homes. With the improved tools, the agency also exceeded the national standard in the two most recent fiscal years, according to DHS.

The sex assault case also raises questions because the Child Welfare Services worker, who DHS determined in 2012 was a confirmed perpetrator of child abuse, still works with foster kids as part of her regular job duties, including driving them to appointments.

The woman disputes the department’s 2012 abuse finding.

The woman, who has worked for DHS since 2001, said the sexual assault of her son reflects what can go wrong when the agency fails in its duty to protect Hawaii’s foster kids.

This happens often enough, she added, that she decided to go public with her son’s story — even though it reveals details that reflect poorly on her. The woman, who provided the Star-Advertiser with confidential court records from her case, said she hopes the publicity will lead to changes within the system.

A DHS spokeswoman said the agency could not comment on individual cases because of confidentiality regulations designed to protect a child’s privacy and identity. By law, all CPS cases are considered confidential.

But in written responses to Star-Advertiser questions, the DHS spokeswoman said the agency "will not place a child in any home where there is a known potential for harm of any kind," adding, "Ensuring a child’s safety is of utmost concern to DHS. If for any reason the home is unsafe, DHS will take immediate action to address the concern."

She also noted that federal regulations and state policy require child welfare staff to make monthly face-to-face visits to ensure the safety of foster children and assess their well being.

From fiscal year 2010 to 2014, DHS investigated 24 reports of a child suffering abuse or harm while in foster care and confirmed abuse in 19, according to the department. Three cases involved sexual abuse.

More than 1,100 children typically are in Hawaii foster homes each month.

Many attorneys, foster parents, children advocates and others who are familiar with Hawaii’s child protective services system say it is much improved from a decade ago. Federal data also show improvements, and by some measures the system is among the top performers nationally.

"I would rate it at about 60 percent," said Raelene Tenno, an advocate for parents and families who have children in the CPS system, referring to the job DHS does in protecting foster children. "Ten years ago, I would have rated it at 10 percent."

Despite significant improvements in the overall system, a recent Star-Advertiser series found that gaps continue to plague it. The sex assault case reflects that, critics say.

In late January 2012, the woman’s son and daughter, then 7, were placed in foster care on Hawaii island after the girl told authorities that scratch marks on her arm were caused by her mother, according to the court records.

The mother, who already had a finding of threatened abuse in her CPS file from 2009, denied hurting her daughter, saying the special-needs child has a tendency to concoct stories to get back at someone she’s mad at. Her therapist records confirm that.

But the two children, both of whom were adopted by the single mother, were removed as the agency investigated the latest allegation.

While in foster care, the boy was sexually assaulted in March 2012, according to the mother and court documents.

After a Family Court judge determined the older youth had committed third-degree sexual assault, the juvenile was placed on probation until the age of 19, ordered to participate in a sex-offender treatment program and prohibited from being alone with any child under 12, according to the court document outlining those and other conditions of his probation.

The mother told the Star-Advertiser that DHS to this day has never explained to her in writing or verbally what led to the 2012 incident and what type of abuse her son endured. Nor has the agency apologized for what happened under its watch.

She said she learned general details of the assault, which included oral sex, from a prosecutor.

In a sworn affidavit filed in court this year, the mother said DHS in early 2012 placed her son in the same foster home as the teenager even though the agency was aware that the older boy had "a previous history of sexual behavior on other children."

The woman told the newspaper that she knew from her work duties that the teen had been removed from several prior foster homes because of behavior issues, including accessing pornographic websites.

When she learned in 2012 that her son was in the same home as the teenager, she said she urged the DHS social worker assigned to the case to separate the two. The social worker replied that the mother had no say on where her son was placed, according to the mother. Less than a month later, the mother added, the assault occurred.

"It was clearly their fault," the woman said, referring to DHS. "But they can’t even look me in the eye. They can’t even acknowledge it."

Her son has become angrier since the assault, underwent therapy as a sex-abuse victim and to this day will only use a women’s restroom when away from home, the mother said.

Bill Grimm, senior attorney at the National Center for Youth Law in Oakland, Calif., said details of the case as described by the Star-Advertiser suggest that the young victim has grounds for a claim against the state.

"There’s a good argument to be made that his constitutional rights were violated," Grimm said, noting a state’s obligation under the U.S. Constitution to protect foster children from harm.

If a state is deliberately indifferent to a substantial risk of harm and the child subsequently suffers serious harm, that is the threshold that the 9th Circuit Court of Appeals, which covers Hawaii, has established for determining whether a child’s constitutional rights are violated, according to Grimm.

The statute of limitations clock for filing a federal civil rights claim does not start until the child turns 18, he added, but someone approved by the court as an adult "next friend" or a guardian ad litem could file one on his behalf before then.

The Hawaii Island sex assault case is a good example of why Hawaii needs a new tort policy on dealing with foster children injured due to someone else’s negligence, according to paralegal Steve Lane, a former volunteer guardian ad litem who co-wrote a proposed policy that was rejected earlier this year by a Hawaii Supreme Court advisory committee.

If that policy had been in place, a judge, once notified of the assault, would have automatically referred the case to a group of volunteer attorneys with expertise in personal injury claims to determine whether the child had a claim to pursue, according to Lane.

Because the assault happened more than two years ago, the statute of limitations for pursuing such a claim under state law likely has lapsed.

"That’s what’s so disappointing," Lane said. "The boy’s claim is dead."

The case also highlights an issue of oversight.

Even though DHS confirmed that the mother abused her daughter in the 2012 incident and threatened abuse of her children in 2009 — findings the woman disputes — she has been allowed to resume her normal duties, which include dealing with foster children, the mother said.

"There seems to be a kind of disconnect there," said Grimm, the California attorney.

But DHS, while not addressing this specific case, said it has to follow all employment laws, policies and procedures and follow applicable collective bargaining agreements. It also said the agency has no policy for preventing an employee previously determined by DHS to be a perpetrator of child abuse to return to their duties after successfully completing rehabilitation services.

"Decisions to retain a Child Welfare Services branch employee are based on whether or not the employee poses a safety concern to children and families or whether or not there exists an adverse nexus between the character and conduct in question and the duties and responsibilities assigned to the employee," the agency spokeswoman wrote.

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