 Welcome, and aloha. My name is Mark Shklav, and I am the host of Think Tech Hawaii's Law Across the Sea program. Today, the title of our program is If This Child Was Yours. My guests are Stephen Lane, Bridget Morgan Dickerton, and Crystal Glendon. Stephen Lane is a paralegal consultant who has been appointed special master in many cases involving abused and neglected children. Bridget Morgan Dickerton is an attorney who handles a wide range of civil and commercial litigation with an emphasis on consumer class action. Crystal Glendon is also an attorney who practices criminal, defense, family law, appeals, and civil litigation. All three of my guests are also advocates for abused and neglected children. The focus of our discussion today is on the protections afforded under Hawaii law for these children, including the right of foster children who have legal counsel appointed to represent them. Steve Lane recently submitted testimony in support of a proposed Hawaii law that would require certain persons to report abuse of a foster child to the family court and would also provide the family court with the authority to appoint legal counsel to represent the abused child. In essence, Steve's testimony to the legislators was, if this child was yours, this is what you would do for your child. Steve, Crystal, Bridget, welcome. Good to see you all today, and this is a serious topic. And Steve, I want to start with you. Why do we need these protections? What are we talking about? For abused and neglected children, especially for foster children? Well, there are about 2,100 foster children in Hawaii each year, some 3,500 to 4,000 children each year, except for abuse or neglect of some sort. A child who's in foster care who's under the supervision of the court does not have access to a lawyer because one, the minority status, they're too young. If you're under 18, you can't hire an attorney of your own. And two, their ward status, they are effectively a guardian, the state of Hawaii is their guardian. So that's why foster children need access to counsel, otherwise it would be unrepresented, fundamentally enfranchised. They have no one to stand up for them as a lawyer. No one to speak for them? Correct. Okay. And Bridget and Crystal, would you add anything to what Steve has said? It sums it up pretty well. That's a major hole in the system, or at least it was, until a protocol that we'll talk about in a little bit was implemented. Foster children really didn't have a voice in the legal system. Okay. I absolutely agree. And without that voice, without the protocols that have been set in place, we would continue to have no voice, but we're hoping to rectify that. And when we talk about abuse and neglect, just generally, what is that type of thing? It covers a wide spectrum of that, right? It does. And this protocol is intended to provide access to counsel for children who suffer physical abuse or even emotional abuse. And under this protocol, various court officers, passive workers, social workers, others who are officers of the court are required to report any instance of abuse to the family court judge, so a special master can be appointed to represent them. What currently exists in the state of Hawaii, what is the status now of the protections afforded under law for abused and neglected children, especially foster children? Well, typically, if a child is injured, abused, or neglected, and is still in the care of their parents, their parents can initiate illegal action on their behalf, they can seek out an attorney, and they can pursue a tort claim on their own child's behalf. If this child was yours. However, for foster children, it's a little bit different. There has been implemented a foster tort protocol in the family court that was adopted by Judge Browning that requires guardians of the item, CASA workers, social workers, Department of Human Services workers to immediately report to the family court any injury that they suspect may give rise to a tort claim. These individuals are already required by statute to report injuries to the court, but what the protocol does is require them to immediately make those reports. The court is then required to appoint a special master to investigate, to collect records, to interview individuals, to ascertain and determine whether or not a colorful tort claim exists. And the master is kind of what you've been doing, Steve, on some occasions, right? Yes. And this new protocol, how long has that been in practice approximately? I believe we're going on two years now. I think it was adopted in early 2018. Crystal, you're familiar with this protocol, and how is it in actual practice what happens? What have you discovered in actual cases? Well, I guess the number one thing would be that the reason why the tort protocol is so important and getting things moving along quickly and having those reports made is because we're dealing with a statute of limitations when it comes to tortuous conduct, and that statute of limitations is two years. So that's why it's very important. And what I've experienced personally is actually Mr. Lane here is a special master in one of the cases that I'm handling, and what happened was he was notified of a situation, was appointed special master through a petition of his own. And from there, completed the investigation, was able to get records, talk to witnesses, primarily talk to the client, and from there hired me to file a complaint on behalf of a minor who is currently in foster care, falls within the tort protocol, and ultimately we were able to accomplish the filing of her complaint. When you talked about abuse that these children have suffered for this particular case, and I will not mention any names because of her status as a minor, this poor young woman was within the care of the Department of Human Services when she was sexually assaulted, and this would have been by someone who had access to her while she was in the foster home that she was in. So ultimately we are proceeding with her case, and that's essentially how it's worked in my experience. Okay, now in all of you, I mean what happens? I mean somebody reports something, and then what's the next step? Somebody says something to the court, they're required to do that, does it always happen I guess? It doesn't always happen, what's supposed to happen is one of these individuals enumerated in Judge Browning's protocol are required as mandated reporters to report any instance of physical or emotional suspected abuse. When that report is made to the judge, the judge then customarily appoints a special master to obtain records, to examine the cases to whether or not there appears to be a claim, and that special master, if he finds evidence of a claim, is empowered to hire counsel to represent the child. So there's actually a court hearing held to make that initial determination? Yes. Okay. Unfortunately that is not what usually happens, and I think that's a product of a lack of education and knowledge about the protocol. The implementation of this protocol has been irregular at best. In fact I do not know- Do you mean within the courts? Within the courts, right? I think that is a lack of education, I would say mainly about the tort protocol. I'll say that I was a public defender for almost 15 years and I practice a bulk, the bulk of my practice was in family court and I had a lot of cases that crossed over between juvenile as well, children who are also in the foster care system. This isn't something that I was aware of while I was a public defender and I believe that under the tort protocol I would have been one of the ones who could have reported as well as made referrals to the court to have special masters appointed because what I saw was a lot of the children who happened to be within the juvenile system so charged with either law violations or status offenses. They were also foster children and a lot of them did suffer abuse and that's why they ended up there. But you didn't know about- I didn't. And so how do we get- Well on the other end of things there are attorneys who would be capable, willing to bring these cases and I don't think the plaintiff's bar, the personal injury bar is aware of it either. So one thing that the court will need is a list of attorneys who are willing and ready to serve both as masters and as attorneys for the children and I think that we need to educate everybody in all the different realms that we've been discussing to disseminate this. Judge Browning came up with this protocol, I hear you telling me. Well I think Mr. Lane came up with the protocol and then chopped it around. But Bridget and I worked on designing a protocol basically modeled on the Los Angeles County protocol several years ago. We presented to the Y Supreme Court Standing Committee on Children and Family Court. They rejected the protocol. In response I went to talk to Judge Browning, expressed my displeasure and he said that I'll adopt it. Thank goodness for that. Had Judge Browning not done so on his own motion he was a senior family court judge. It wouldn't have been any protocol. Like an administrative rule. That's correct. It's become an administrative rule. And has he published that? Is that out there for the lawyers or how do you get it out there? I'm reliably informed that copies of this protocol were sent to every judge in every circuit in the state of Hawaii some time ago. There needs to be more education as Ms. Morgan has mentioned, both within the bar and on the bench. The Guardian Ad Lighting Committee community needs to be educated about this. There are lots and lots of people who appear on a regular basis in Family Court who need to know about this protocol more fully than they do now. The courts should do something. I guess the bar association should be doing something. And the state of Hawaii, Crystal, I mean how do we get the word out there to people? Well, we start with programs like this. And so my hope is that this is one of the I guess leaping ads for more people to find out about the protocol. I think that continuing legal education for the attorneys that could be involved would be important and training perhaps within the Family Court, not just for the judges themselves, but for the many staff members who are connected with the courts and who are mandated reporters under the protocol. Educating and I guess proliferating the information so that there's no mystery about it. I think a lot of people might be hesitant because you start talking lawyers and suing and people get a little hesitant to speak up and or make the referrals. But I think ultimately it comes down to the advocacy for the children. And if this child was yours, right? And I mean you want someone to be an advocate for your child. Now, why was the proposal rejected when you folks first proposed it? Oh, I can't speculate on that. I think it was, I don't know. I think there are probably a lot of reasons and I don't know. It wasn't something that was developed at the time. I wouldn't want to speculate on why it was rejected. The majority of the committee members of the committee of Children and Family Court were state employees. Many of them were DAGs. Many of them were social workers with the Department of Human Services. And I think they were frankly fearful that if such a policy became official that their agencies would be on the short end of a lawsuit. I think that's probably the reason why the committee rejected the proposal. I think it should be pointed out on the favorable side. To the best of my knowledge, Hawaii is the only state in the nation that has an equivalent protocol in place that provides access to counsel for children who otherwise voiceless for foster children. And we should be proud of that. So we've got to start is what you're all saying. We need to educate, get the word out there and people can take that and run with it and protect the children as if they were their own children. Is that what I'm hearing you tell me? And so that's an optimistic viewpoint, although there's been some downsides. I think that's a good summation. I think I'd add one more thing. I think right now we have basically an administrative rule. I'd like to see this codified by way of a statue. I would like to see this become an official statue within the next year so it's a matter of law. And we're going to take a break right now and come back. And I want to ask a little bit more about that and also about actual cases. I know you can't tell me the names of people, but I'd like to hear about some actual cases so that people that watch this program can touch base with reality. Well, thank you. We'll be right back in a minute. We're going to take a short break and come back and talk about if this child was yours. Thank you. Aloha. My name is Wendy Lowe. And I want you to join me as we take our health back. On my show, all we do is talk about things in everyday life, in Hawaii or abroad. I have guests on board that would just talk about different aspects of health in every way, whether it's medical health, nutritional health, diabetic health. You name it, we'll talk about it. Even financial health. We'll even have some of them Miss Hawaii's on board. And all the different topics that I feel will make your health and your lifestyle a lot better. So come join me. I welcome you to take your health back. Mahalo. Aloha, I'm Mellie James, host of Let's Mana Up. Tuesdays, every other Tuesday, from 11 to 1130. This show is meant to dive into stories of local product entrepreneurs and how they're growing their companies from right here in Hawaii. I'm so thrilled to have our show kicked off. And so please join us on Tuesdays at 11 o'clock as we talk to local entrepreneurs and hear their stories. Welcome back. I am Mark Shklav with Law Across the Sea with Steve Lane, Bridget Morgan, Crystal Glendon. We are talking about if this child was yours and protections afforded under Hawaii law for children, especially foster children. When we left off, Steve, we were talking about a couple things, and I want to kind of go back. What laws are out there that could be passed to protect children? And then I want to ask Bridget, Crystal, some actual cases. I think right now we're looking principally at the protocol as it stands now as a sort of an administrative rule. What I would like to see is that protocol converted into a statute. Bridget has some good information on that subject. Well, to add to that, there is a provision of the Child Protective Act, the Hawaii Child Protective Act that lists, enumerates all of the rights of foster children. It would be very simple to add to that specific subsection of 587 that all foster children shall enjoy the same rights with respect to being able to pursue tort claims that non-foster children enjoy. I think that would be a quick, simple way to revise the statute to implement the tort protocol and codify it. I've noticed that there has been a couple attempts for both Senate and House bills to pass laws in the state of Hawaii that resemble the family court protocol. But they never got out a committee from what I could see. They die in committee. And what's the base? Why do they die in committee? I mean, anybody have a knowledge of that? State agencies testify against it. The last time I testified before the legislature on behalf of one of these bills, the Attorney General's office came in and said it's not necessary. Some of the real issues are that the courts are already plagued with more cases they can handle. I think that a lot of people see this as something that would raise costs. So a lot of the testimony, I think, had to do with increased costs, practical things like that, that I think can be resolved if a push is made to resolve it. Well, I guess there was some concern I read in some testimony about the cost of masters. OK, well, OK. I'd like to add to that just briefly. The protocol in Los Angeles, which this was patterned after, has been successful largely because it's generated so much money for the city and county of Los Angeles in the recovery of third-party damage liability claims. Tor claims. The fact of the matter is most of the injuries that children suffer in fostered care aren't claims that arise against the state custodian. They're claims like any other kid suffers. Automobile accidents, products cases, any number of other situations that cause injury to children. But this is not simply a way to bring more cases against the state of Hawaii. Well, let's bring reality in here, Crystal. Please tell me, I understand you can't tell me who we're talking about, but give me some examples of cases of child neglect abuse that would benefit counsel. Absolutely. So I did mention the one that I'm handling right now. So that one, absolute benefit for counsel for this particular child who otherwise has been disenfranchised and has had to suffer. How old was the child? 16. But the allegations were at the time when she was 13. And so we're talking about a child who was under the legal age to consent to any kind of sexual contact. And we're talking about statutory rape, essentially, which is what happened. You were appointed as counsel in that case? Well, in this particular case, I was approached by Mr. Lane to evaluate the case, make contact with the client, and then from there to proceed with filing the claim on behalf of the client. Is that pursuant to the protocol? That's correct. OK, I see. Any other cases? Active, no. I mean, I can think of a couple of examples of foster children who I would have liked to have referred under this protocol to an attorney. Children who were my clients when I was a public defender who were within the foster care system just suffered abject, horrendous conditions by their foster parents. So I think they are the people that are contemplated within this tort protocol. One of the cases that I had, one of the children that I represented was beaten on a daily basis and subjected to what I would call slavery on a daily basis. And I mean, essentially came to me through a juvenile case. However, I think this would have been the perfect example for a referral. Steve? Well, the case is probably best known in Hawaii involving this protocol is a Peter Kema case on the Big Island, which I was appointed special master. This is a unique case. It presents some unique legal issues, including a statute of limitations issue. Peter Kema disappeared and we later learned was murdered by his parents some 20 years ago. And that case is presently in litigation. Bridget, how about you? I haven't actually done a case myself as an attorney under the protocol, but we do, my firm handles personal injury cases on behalf of children all the time. And those are cases that would be subject to the protocol if they occurred, if the tort had occurred to a foster children. We have cases where parents have sued preschools on behalf of their children for abuse at the preschool. We have products liability cases where the parents have to bring in on behalf of the child because they're a minor. And it has to be brought through a parent. So those are cases that you could imagine if those kids had just been in foster care without this protocol, there would be no recourse for them. And these are kids who are injured and require lifelong care and resources because of their injuries. Foster kids should have the same rights as kids who are not in the foster system to bring those claims and to get some sort of recovery for their injuries. And that kind of shows the disparity, right? I mean, people who are not foster children, they hire you to represent the children, take care of the children. And foster children don't have those same opportunities. That's correct. Is that right? Absolutely. All right, why do you guys do this? Steve, why do you be a master? And what motivates you? I was a foster parent with a state of life for some 20 years, raised four foster kids myself as a single parent. And I've seen firsthand some of the challenges that foster children face. And I think this is another way to deal with that issue. Crystal, what's your thoughts? Well, as I said, my background as a public defender in the juvenile section, my heart goes out to these children and watching them suffer and being able to assist them as a public defender was one way to help. And now that I can take on a new role and represent them and advocate for them in a civil capacity, that's why I do it. You've moved into private practice now. Yes. I can see you're doing a wide range of cases. Perhaps a little too wide. But I do appreciate Mr. Lane learning me to the protocol and bringing me on board. Like I said, I see it as one more way of advocating for the children who otherwise don't have a voice. Bridget, what are your thoughts? I mean, you don't have to be involved in this. You're in private practice. Well, I am now. I got my feet wet in the legal profession with a legal aid, legal aid society of Hawaii as a guardian of light. And that's where I was first introduced to the law and represented foster kids throughout the islands and actually met Mr. Lane during that work as a guardian of light. And so we just saw a lot of holes in the system and saw a lot of injuries that were going unreported and unprosecuted. And since I've been in private practice, but it's always been an issue that's near and dear to my heart and needs to be addressed. So what is the status now? Where do we go from here? What's lacking? And what needs to be done going forward with respect to the courts? And also, I'm a little disturbed about the state not taking action in cases where they knew about something going on. Well, we're going to give them a hand. All right, so excuse me. I think education is one of the first things that needs to be done. I think members of the bar and the bench need to be more familiar with this protocol. I think the suggestion Bridget made to amend some of the HRS revisions is something that could be done comparatively easily. So this becomes a matter of law, not just administrative rule. And I think those are some things that can be accomplished in the next year or so. And that's where we're going. Is that where you see the emphasis of this? I think so. I mean, ultimately, that's the only way to get this word out so that more people are aware of it, so that the people who are stakeholders, as well as the ones who can report, know what to do. Bridget, you're going to advocate? I will advocate. And I think the biggest place that I can have an impact is just to educate the bar and try to get that list of attorneys who are willing to serve, both as masters and attorneys, get those lists out to the court. Let them know that there are people out there willing to serve who are court attorneys who've been practicing for decades. And they can call on us when needed. I like what Steve said, too. You make a lot of money in a tort case when you prevail. And that should not then be a drawback that is often seen in state concerns about money. Well, states, especially in foster care, it's really the state that has a lien against a case. And for the medical care that the child would have received, and they will get that money back, or at least a portion of it, if the case is pursued and if funds are realized on that case. We've got about a minute left. In a few seconds, could you each briefly tell me what you have learned from being involved in this with these foster kids and abused kids? I have learned that foster kids are some of the most resilient people on this earth. And that we owe it to them. We, as a society that has a voice and has power, we owe it to them to have the same rights that any other kid has. And in particular, what we're discussing today is the right to pursue claims if they've been injured, just like a child who's not in foster care. This is not an inconsequential problem. We have 3,500 children a year in Hawaii who suffer abuse and neglect. 2,400 kids a year in foster care. This needs more attention. As foster children, they deserve our compassion and they deserve access to whatever tools we have in our toolbox to assist them. And that's something that I know I'm willing to do. Everyone here on this panel is willing to do. There are a lot more people out there who are willing to do it. And I guess if they knew this, they knew what was happening. And they realized that if this child was theirs, this is what they would want. They'd want counsel to represent them and protect them and help them. Hopefully, we can move forward with that. I'd like to thank all of you. Steve, Bridget, Crystal, thank you all for being here. Thank you for having us. Thank you very much. Yeah, we'll look forward to the next time we get together to talk about the progress we've made. Aloha. Aloha. Thank you very much.