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In re FG

Supreme Court of Hawaii

June 28, 2018

In the Interest of FG, AG, PG

          APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CAAP-17-0000639; FC-S NOS. 16-001K and 16-056K)

          Jeffrey E. Foster for appellants.

          Ian T. Tsuda for appellee.



          RECKTENWALD, C.J.

         I. Introduction

         This case arises from a Hawai'i Revised Statutes (HRS) Chapter 587A Child Protective Act (CPA) proceeding. Parents and their children have been under the supervision of the Department of Human Services (DHS) since 2016. In July 2017, Parents' three-year-old child, FG, died while in foster care.

         Parents shared information related to the foster placement and FG's death on social media and with a local news organization. The family court thereafter issued an order which prevented all parties to the CPA proceeding from: disclosing the names of the two children still in foster custody to the general public, and, pursuant to HRS § 587A-40, [1] releasing reports or other information that "have been or will be" submitted to the family court relating to the case or the Parents' two surviving children. On appeal, Parents challenge both portions of the family court's order.

         First, we hold that the family court failed to make the findings required to establish that the prohibition against disclosure of the children's names survives a First Amendment challenge.

         Second, we hold that the family court abused its discretion in entering the portion of the order prohibiting disclosure of records that have or will be submitted to the family court. The family court failed to adequately explain the basis for the order, and the record was insufficient to support its issuance.

         II. Background

         In January 2016, the family court awarded DHS family supervision[2] of Parents and their children, based on DHS's petition asserting that Parents had substance abuse issues and that there were "hazardous and dangerous" physical living conditions on Parents' property. In July 2016, the family court awarded DHS foster custody, based on DHS's representations that Parents were not complying with the family court ordered service plan. Parents' three children were eventually placed in a general licensed foster home.

         On July 26, 2017, three-year-old FG died while in foster care. DHS and the Hawai'i Police Department initiated an investigation, and DHS removed Parents' two surviving children from the home, and placed them in a different DHS licensed foster home.

         On July 31, 2017, DHS filed an "Ex-parte motion for TRO to prevent unauthorized disclosure of confidential information." DHS moved to prevent Parents from disclosing confidential information "relating to the subject children and this court case" to the general public without prior court authorization. DHS based its motion on HRS §§ 587A-40 and 350-1.4[3] and Hawai'i Administrative Rule (HAR) 17-1601-4, [4] which provide for the confidentiality of CPA and DHS records. DHS included with its motion the declaration of a DHS social worker who declared that Mother had posted confidential information on Facebook. She attached Mother's posting, which identified FG and one of Parents' surviving children, then age one and a half, by name. The posting provided that the children were in DHS custody, that FG had died while in foster care, and that one of the two surviving children had been injured while in foster care, and also included the names of the social workers and foster parents. Father was interviewed by KHON2 News and the interview was broadcast on the evening news and posted on the KHON2 website. Father did not disclose the names of Parents' surviving children, but mentioned that they were still in foster custody. The social worker declared that DHS was concerned that Parents would continue to release confidential information unless the family court issued an order "that clearly prohibited [Parents] from engaging in that type of activity."

         On August 1, 2017, the family court granted the ex parte motion and entered a temporary restraining order (TRO). The family court's August 1 TRO provided that, pending a hearing on the matter, Parents were prohibited from disclosing confidential information relating to the CPA case and the subject children to the general public without prior court authorization. The confidential information which the TRO prohibited Parents from disclosing included, but was not limited to, information relating to: the children's foster custody status, the children's resource caregivers, the involvement of DHS, the involvement of service providers, and any administrative or law enforcement investigation into FG's death.

         Parents filed a memorandum in opposition to the TRO, arguing that it was an unlawful prior restraint of their First Amendment rights, and that there was no evidence that Parents had released family court or DHS records.

         On August 8, 2017, the family court held a hearing. The family court agreed that the TRO "should somehow be changed" and explained to the parties its role of balancing the confidentiality of the case with the rights of Parents in the hopes of reaching a "happy medium."

         Counsel for Parents argued that the TRO was an unconstitutional prior restraint. He argued that the TRO had resulted in serious practical consequences for the investigation into FG's death, explaining that Parents had been unable to talk to police detectives about the death. Counsel for Parents further argued that the TRO violated Hawai'i Family Court Rules (HFCR) Rule 65[5] because the State did not submit evidence that Parents had released family court records. He argued further that Parents did not intend to release records.

         Counsel for DHS requested that the TRO be drawn more narrowly by preventing Parents from releasing only the records and "the names." DHS argued that such a revised order, narrowly drawn, would be constitutional. Counsel for DHS argued that the new order it requested "merely tracks the language of section [HRS §] 587A-40."

         The court asked whether there was anything "in statute or rule or case law that precludes one from disclosing the names of children," and counsel for DHS responded, "not that I'm aware of [.]"

         The court asked whether, if it were to issue a revised order which tracked the language of HRS § 587A-40, Parents would abide by the statute. Counsel for Parents confirmed that Parents would abide by HRS § 587A-40, and reiterated that Parents had not released records. Counsel for DHS clarified that it was not claiming that Parents had released any records, but that, based on the Facebook posting and the KHON2 interview, DHS had a concern that Parents might release records, and so, were "asking for this order to remind the parents not to release those records." Counsel for DHS further argued that the foster parents named in Mother's Facebook posting had received death threats.

         After hearing the parties' arguments, the family court rescinded the TRO and entered a new order that prohibited from disclosure only the records of the proceedings pursuant to HRS § 587A-40, and the names of Parents' two other children. Disclosure of the names of the social workers, guardian ad litem, and the resource parents would no longer be enjoined. The family court explained:

Everything that we do in these type of cases are in the best interest or should be in the best interest of children. That's paramount in everything. And so the Court's order today is in the best interest of the children. Of these children. These three children, one who has unfortunately passed away.
The Court will grant the -- I'm sorry, will sustain the objection in part as follows. The Court order will be modified to say as follows, and the Court really is tracking 587A-40. All of these proceedings are confidential. And so the Court will order that all records of these proceedings, these protective proceedings, shall be kept confidential. Written reports, photographs, X-rays, or other information that are submitted to the Court will only be made available to the Parties in this case. And not anyone else unless there is an appropriate motion or request or stipulation submitted to the Court. The Court makes this order that access to these records or prohibiting access to these records is in the best interest of the children involved in this case.
Unfortunately the Court does not have any further information on why the guardian ad litem's names or name, or the social workers' names on why that would be detrimental to the best interest of these children. Certainly the guardian ad litem, or the parents' attorneys, or DHS may submit a motion if there is any concern and we'll deal with it at that time. But at this point it doesn't have sufficient information.
Finally -- but with regards to the children that are the subject, the remaining two children, I have to find that it's in their best interest that their names not be disclosed only because there is a pending case. I'm concerned about the impact that it may have upon these two children if their names were disclosed. But certainly that wouldn't preclude the parents, if they wish to, to talk about "we have two other children." But just the names, for their protection, should not be disclosed. So that would be the order of the Court.

         Counsel for Parents requested that the court issue an order with specific findings to support the imposition of the injunction, pursuant to HFCR 65(d). The family court agreed, and asked DHS to draft the order.

         On August 25, 2017, the family court entered its Findings of Fact, Conclusions of Law, Decision and Order ("Order"):

         Finding of ...

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