ÌìÃÀÊÓƵ

Well, we tried doing this the easy way. Now comes the hard way.

For more than two years, the Department of Human Services has stonewalled in accounting for its actions in the horrific death of Ariel Sellers, the 6-year-old Waimanalo girl whose adoptive parents are accused of murdering her.

This, despite federal law and state regulations that require disclosure of at least minimal information when children die or nearly die as the result of abuse and neglect.

Now DHS can explain itself to a judge.

The has filed motions to unseal the foster and adoption records in the most notorious child abuse case in recent Hawaii history.

The law center is asking the Family Court to release the case dockets in the foster and adoption proceedings.

It also seeks records that would show the court’s factual and legal basis for placing Ariel with Isaac and Lehua Kalua, who renamed the girl Isabella. That would include the input the judge got from DHS and others.

Lastly, the law center wants to get any reports filed by a special master in the case. The special master, Steve Lane, was appointed by the court to ascertain whether Ariel’s estate or her surviving siblings had grounds to file a civil lawsuit.

The motions — one for the foster records and one for the adoptive — make a compelling case that the privacy interests that protect most child welfare records are moot here because Ariel, tragically, is dead.

And the public has a compelling interest in getting answers.

“What remains hidden from public view are the connecting facts that explain how this happened — how did a state-sponsored adoption place a young girl in the custody of a couple that murdered her … ?” according to the motion.

“Only by critical examination of what happened can our community ensure that no other child meets Isabella’s fate and start to restore public trust in an adoption process that from all appearances went horribly awry.”

‘Legitimate Purposes’ That Override Confidentiality

The law center undertook the motion on its own, but staff attorney Ben Creps said attorneys were motivated by a series of columns I wrote pointing out the state’s pigheadedness, as well as sustained public interest in the case.

While working on a different case, the law center delved into the standards for when Family Court cases can be unsealed.

In foster cases, for instance, records can be unsealed for “legitimate purposes.” A 1999 Hawaii Supreme Court case held that this includes furthering “the best interests of the children who come within the jurisdiction of the family court … i.e. purposes that will safeguard, treat, and provide services and plans for children in need of protection.”

This standard should be looked at through the lens of federal law and state regulation meant to reveal the circumstances of child abuse deaths, the law center says. The federal law was meant to allow the public to assess whether the child protection agencies they fund with their tax dollars fail to protect children.

Yet DHS has adamantly insisted that it has no obligation to release these records in the Kalua case.

Shifting Justifications

When I started reporting on this last year, DHS told me that it wouldn’t release the required information because, even though Ariel had been missing for almost two years, she had not officially been declared dead.

When a judge finally did that, DHS then said it hadn’t gotten the paperwork from the court. I got it myself and emailed it to them.

Then DHS told me that it didn’t need to comply with federal law because the court had not officially declared that her death resulted from abuse or neglect.

Multiple witnesses — doctors, teachers and others — reported that Ariel was being abused by her adoptive parents, Isaac and Lehua Kalua, according to a civil lawsuit. One of her sisters told police that they kept her in a dog cage in the bathroom, nose and mouth covered with duct tape to prevent her from seeking food at night. And a court found that Ariel died about a month before the Kaluas reported it.

But that suspicious behavior was not enough for the child welfare bureaucrats.

So what’s left when a public agency refuses to comply with the clear language of the law?

The courtroom.

“Something clearly went wrong here,” Creps said. “The public interest is understandably why and how and how that can be fixed.”

The motions raise the question of whose privacy is being protected by DHS’s continued refusal to release records. The basic facts of the foster placement and adoption have long ago been reported, as have the allegations and criminal charges against the Kaluas.

The surviving siblings do retain a privacy interest, but the motions stress that they are not seeking personal information about the siblings, the names of people who were required by law and did report their suspicions of Ariel’s abuse or other witnesses.

But this can all be handled quite easily by redacting any of that sensitive information.

Steve Lane, the special master in the Kalua case, has long pressed for greater transparency in Family Court.

“I’m delighted and I’m thrilled” by the law center’s motions, Lane said. “For too long, too many of the proceedings in Family Court have been held in secret, to the detriment of the people they’re supposed to be serving.”

A Family Court hearing is scheduled for Feb. 21.

The Public First Law Center, formerly the Civil Beat Law Center for the Public Interest, is an independent organization created with funding from Pierre Omidyar, who is also a co-founder of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.