Protocol increases protection for injured children

Advocates are lauding a new court protocol that is designed to ensure that any Hawaii child seriously injured in foster care gets legal help to determine whether to pursue damages.

Judge R. Mark Brow­ning, who heads Oahu’s Family Court, implemented the new tort protocol for that court Monday, and the family courts on the neighbor islands are expected to adopt the new procedures as well.

"This is a sea change in Hawaii for children’s rights," said paralegal Steve Lane, who co-authored a similar proposal that was rejected by a Hawaii Supreme Court advisory committee earlier this year. "It’s a big, big deal."

The protocol that Brow­ning implemented requires those involved in the Child Protective Services system — from foster parents to attorneys and social workers — to notify the court if they become aware that a child has suffered a physical or psychological injury that could be grounds for a tort lawsuit.

The court would then consider whether to appoint an independent "master" to further investigate the matter and, if recommended by the master, whether an attorney with expertise in personal injury claims should be appointed for the child. That would lead to a decision on whether to file a lawsuit on behalf of the child.

Until the new process was adopted Monday, the courts had no formal system for dealing with such cases.

Although incidents of serious injury are not common in Hawaii’s foster system, critics said some cases fell through the cracks, leaving children with no means for pursuing damages, especially when the harm was due to the negligence of the state or another party and the statute of limitations had lapsed.

"I think this is something that’s been a long time coming," said Frank O’Brien, a private attorney who handles CPS cases. "I’ve seen too many kids get hurt in the system."

Browning told the Hono­lulu Star-Advertiser the need to establish a standard process for dealing with injury cases became evident when the advisory committee was considering whether to adopt the policy authored by Lane and attorney Bridget Morgan.

That need also was mentioned in several recent Star-Advertiser stories.

The protocol that Brow­ning developed — with feedback from others involved in the CPS system — borrows from the proposal that Lane and Morgan submitted, the judge said.

"Fundamentally, the concern always has to be the child," Brow­ning said.

Lane said the recently publicized case of a 6-year-old foster child who was sexually abused in 2012 by a teenage foster child living in the same Hawaii island home illustrated the need for a tort policy. The case was detailed in a front-page story in Sunday’s Star-Advertiser.

The court in that case did not appoint a master to consider whether the child, who was traumatized by the assault, might have a legitimate personal injury claim to pursue, according to the boy’s mother.

When the advisory committee earlier this year rejected the proposed policy authored by Lane and Morgan, the panel, which included representatives from the court, Department of Human Services, attorney general’s office and others, cited a variety of reasons.

One was the belief that court-appointed guardians ad litem, who represent the interests of the child and often are attorneys, already have the authority to bring such matters to the court’s attention.

In practice, however, that rarely happens, according to Lane and others, leaving injured children without legal representation to pursue a claim.

And Browning, who was on the advisory committee, said a lot of attorneys don’t have expertise in personal injury law, underscoring the need for a new protocol.

Under that system, the court would be notified whenever a foster child suffers an injury believed to be "actionable" under state or federal law, triggering the possible appointment of a master. The master would make recommendations to the court, presumably free of any conflict of interest with the involved parties, including DHS, which oversees the foster care system.

If the process works as designed, proponents say, all cases would get a fair review well before the statute of limitations expires.

"That’s the whole idea — to prevent cases from falling through the cracks," O’Brien said.