FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CAAP-17-0000639;
FC-S NOS. 16-001K and 16-056K)
Jeffrey E. Foster for appellants.
Tsuda for appellee.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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.
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,  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.
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
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
January 2016, the family court awarded DHS family
supervision 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.
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.
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 and Hawai'i
Administrative Rule (HAR) 17-1601-4,  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."
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.
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.
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."
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 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.
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."
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 [.]"
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.
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
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
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.
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.
August 25, 2017, the family court entered its Findings of
Fact, Conclusions of Law, Decision and Order