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Imagine a government agency going before a federal judge and arguing that it could not comply with the United States Constitution because, well, it was just too complicated and might require more staff and paperwork and blah blah blah.

That’s essentially the State of Hawaii’s position when it comes to the rights of parents accused of abusing or neglecting their children.

In a 2022 series, “Hawaii v. Parental Rights,” Civil Beat examined Hawaii’s practice of almost always removing children from their parents without first getting an order from a judge.

The series showed how Hawaii’s actions are clearly at odds with a series of decisions by the 9th U.S. Circuit Court of Appeals holding that children can only be taken from the home in child welfare cases if they’re likely to be seriously hurt in the time it would take to get a warrant. Hawaii gets warrants in fewer than 10% of cases, essentially saying that almost every child welfare case is an emergency.

But Hawaii is an outlier in this regard compared to other states and counties in the 9th Circuit, most of which have developed systems to quickly get court orders and actually do get warrants at far higher rates.

It matters because judges can put the brakes on overzealous child welfare workers and police, who in their ardor to protect children may discount the constitutional rights of parents. Judges know the Constitution and the law and how to balance competing interests.

With that in mind, four bills were introduced in the current session of the Legislature that would have required warrants in a far higher percentage of cases.

All four died. Three didn’t even get a hearing.

The written testimony for , the one that at least cleared one committee, is telling.

Cathy Betts, the director of the Department of Human Services, which runs the child welfare system, did not once mention the Constitution or the 9th Circuit decisions. Ditto the Attorney General’s Office, the agency charged with assuring the rule of law in Hawaii. (Oddly, though, the AG did cite a seminal 9th Circuit case in a footnote suggesting a wording change, so at least we know the state’s lawyers have read it.)

Implicit in these two agencies’ comments was the idea that Hawaii takes almost all children from their homes without getting a court order because almost all children in child welfare cases face immediate harm. Changing the system would endanger children.

But why would Hawaii be different in this regard than Orange County, Calif. — where judges signed off on 73% of child removals — or Arizona, or Washington state, or Oregon – all of which somehow have the time to get court orders far more often before taking the drastic and damaging step of removing children from their homes? 

Civil Beat has asked this question repeatedly over the past year. No one has given us an answer.

And then there are the excuses – paperwork, staff, etc. But since when does complying with the Constitution hinge on such manini considerations?

The state Judiciary took no official position on SB 407. But unlike its cohorts, the court system addressed the constitutional question head-on.

“This bill seeks to balance constitutional requirements with child safety. Its approach is sound. Basically, it allows the police to fulfill one of their primary civic responsibilities — to protect a person in danger. The bill also provides good guidance to the considerations of constitutional privacy interests and due process. 

“This is an important first step to minimizing what could be unnecessary abrupt removals of children from their homes. Research is clear that removals, including necessary ones, are harmful to children. The psychological and emotional harm is real and must always be considered throughout the children’s contact with a system meant to protect them.”

Keep in mind that this is from the branch of government that would actually be issuing the court orders. Maybe the executive branch, in the person of Gov. Josh Green, needs to tell his DHS to take heed.

Throughout Civil Beat’s reporting on this issue, we have repeatedly asked DHS a simple question – how do you square your practice with the Constitution? Do you have some other reading of the 9th Circuit decisions and what they require? 

No answer.

So we are asking again, publicly. If you have an explanation, we genuinely want to hear it and we will publish it. 

If you don’t, then we have a more troubling question – do you care about constitutional rights?