One evening in November 2020, Jennifer Chapman’s estranged husband called the Hawaii government agency in charge of protecting children to report that she was using methamphetamines and unable to care for her infant, then nearly 2 months old.
Child Welfare Services called Honolulu Police Department dispatch to ask for help taking custody of the baby, according to a police report.
After meeting briefly with a CWS caseworker in a McDonald’s parking lot, an HPD officer drove to where Chapman was living in Aina Haina and knocked on the door, announcing he was there to take Chapman’s baby. But Chapman, who said her husband had concocted the meth accusation, refused to cooperate.
“You are not coming into my house,” she said, according to the police report. “You need a warrant!”
As another officer approached the door, Chapman held out her arm to block him. The first officer grabbed her right arm and Chapman went to the ground, the report says. The officers took the baby and handed him over to CWS, which placed him in foster care.
It was one of nearly 1,000 cases each year in which Hawaii authorities take a child into “police protective custody” to prevent abuse or neglect.
In more than 80% of foster custody cases in Hawaii, as in Chapman’s, officials remove children from their parents without first seeking a court order – finding, in effect, that the danger is so great that there’s no time to go before a judge.
A Civil Beat investigation found that Hawaii relies on warrantless removals far more than many other jurisdictions in the Western U.S., depriving parents of the right to have their cases reviewed by a judge before officials resort to the drastic and traumatic step of taking their children.
In the nine Western states and two Pacific territories in its jurisdiction, the U.S. Court of Appeals for the 9th Circuit has drawn very narrow criteria for taking children without a court order. The federal appellate court has found that the constitutional rights of parents and children require judicial review unless there’s reasonable cause to believe a child will be seriously injured in the time it would take to go before a judge, often just a matter of hours.
In keeping with these decisions, child protection officials elsewhere limit the use of warrantless removals.
In Orange County, Calif., for instance – with a population of more than 3 million – judges signed off on 73% of child removals in the past year, according to figures the county provided to Civil Beat. That compares to fewer than 10% in Hawaii over the most recent two years.
While most jurisdictions have set up systems that allow judges to issue a warrant to remove a child within several hours, Hawaii officials told Civil Beat that the state lacks a system that would allow such quick action. As a result, they say, it can take days to get a warrant.
“If Hawaii’s judiciary were to have a system in place so that CWS could go and request those types of orders prior to removing a child, and it could be done in a timely manner, then I don’t believe the department would oppose that,” said Daisy Hartsfield, administrator of the Department of Human Service’s Social Services Division.
Not only that – Hawaii statute defines “imminent harm” as the possibility of a child being injured in the next 90 days. While many places bypass a judge only if something bad is likely to occur in the next few hours, Hawaii law sets that horizon of danger at three months.
“That seems unconstitutional,” said Diana Redleaf, an Illinois family defense attorney, author and policy advocate for more than three decades, after a reporter described Hawaii’s 90-day definition of imminent harm.
Chapman argued in her ensuing Family Court case that the circumstances did not rise to the level of imminent harm that justified removal without a court order.
First, there was the context. Earlier that day, police — including an officer who a couple of hours later helped remove Chapman’s infant — had responded to her home after she reported that the husband had violated a restraining order. At that time, Chapman told one officer that she was afraid her husband would try to frame her for using drugs, according to Dara Carlin, a domestic violence counselor who was there for both incidents. That officer told Chapman he had no concerns about her sobriety, Carlin said.
When it decided to take Chapman’s baby, CWS failed to take into account that her accuser husband had recently burglarized her home, vandalized her car, stolen her telephone and hacked her email, her lawyer said in a later court filing.
“DHS made no reasonable efforts to corroborate or verify Father’s false allegations and did absolutely nothing with respect to Mother’s safety. Instead, DHS believed Father, despite his history of mental illness, substance abuse, and domestic violence,” Chapman’s lawyer wrote.
Ten days later, the husband, appearing remotely at a Family Court hearing, apologized to all involved and “explained that he was very sick, and that he had falsified the allegations against Mother,” according to that court filing.
Several months later, Chapman regained custody of the infant and the court ordered the return of two older boys who had been in foster care. But for reasons shrouded in the secrecy of Family Court proceedings, she was never reunited with the older children and now faces the permanent termination of her parental rights. Chapman spoke repeatedly to Civil Beat but in recent weeks could not be reached for updates or further comment.
The Importance Of Judicial Review
Relying on social workers rather than judges to decide whether to remove children is much more than a legal technicality. Judges are steeped in the law and accustomed to weighing contradictory evidence.
Social workers, on the other hand, are trained to investigate as thoroughly as possible regardless of parents’ protests that their privacy is being invaded, according to “Storming The Castle To Save The Children,” a 2005 article in the William and Mary Law Review.
“Injecting a neutral arbiter into the equation enhances the likelihood … that these two competing values will be more properly balanced,” the article states.
By the time judges get involved – Hawaii law requires a hearing within two business days of the state filing a petition for foster care, which can occur three days after the child was taken – the dynamic is far different, experts say.
“Judges are much more reluctant to be the ones ordering the child removed, but ratifying what someone else did – much easier for judges,” Redleaf said.
Research has documented the ill effects of separating children from their parents, even very briefly.
Perhaps because of this dynamic, some jurisdictions that began requiring warrants before a child could be taken saw a reduction in the number placed in foster care.
Research has documented the ill effects of separating children from their parents, even very briefly.
“Highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health,” Colleen Kraft, president of the American Academy of Pediatrics, said in 2018 regarding the Department of Homeland Security separating children from parents at the U.S. border. “This type of prolonged exposure to serious stress — known as toxic stress — can carry lifelong consequences for children.”
Also addressing the border separations, Charles Nelson, a pediatrics professor at Harvard Medical School, told the Washington Post: “The effect is catastrophic. There’s so much research on this that if people paid attention at all to the science, they would never do this.”
Of course, the traumatic potential of removal is clearly justified when children face even more dire consequences from being abused or neglected by their parents.
Still, with the ill effects of separation in mind, some scholars have argued that child protection agencies should weigh the damage of removing children against the perils of leaving them with potentially abusive or neglectful parents. And some states require such a balancing test.
Yet Hawaii largely relies on CWS social workers and police to make this decision, absent the oversight of a judge.
Nationally, many critics of child welfare systems have argued that social workers have an incentive to remove children to avoid risk, regardless of the damage it could cause – a phenomenon they call “defensive social work.”
A social worker who needlessly removes 100 children is unlikely to suffer any consequences, said Richard Wexler, executive director of the National Coalition for Child Protection Reform in Virginia. But if that same social worker fails to remove one child who is later injured or killed, it could mean the end of a career.
“They’re only damned if they don’t,” he said.
Numbers Tell The Story
Family Court proceedings involving the removal of children and placement in foster care are confidential, making it difficult to review individual cases.
But numbers provided by the Department of Human Services, the parent agency of Child Welfare Services, show the extent to which Hawaii relies on social workers and police to decide when to remove a child.
In the fiscal year that ended in June 2021, for instance, 85.3% of the 966 children who entered foster care statewide came in through police protective custody – that is, police or social workers deemed the circumstances so perilous that there was no time to get a court order. (CWS says it is unable to provide data differentiating cases initiated by police versus those that begin with a social worker calling police to ask for assistance.)
Another 5.5% of children entered foster care by something CWS calls “worker action.” In these cases, CWS argues, social workers already have authority to remove the child without going to a judge because their parents are in “family supervision.” A judge has allowed the children to remain at home as long as the parents comply with conditions, like attending classes or drug rehab. If they fail, CWS believes it can intervene on its own, with an expedited review by a judge. The other difference, Hartsfield said, is that the social workers do not have to involve the police.
But that practice also appears to run afoul of the Constitution, according to Shawn McMillan, a California attorney who has successfully sued child welfare departments in several jurisdictions on the mainland for removing children without court orders.
“At least that is the argument I would make if I had a case there,” McMillan wrote in an email.
CWS says another 2.2% came into foster care when the parents voluntarily consented.
Civil Beat spoke to one parent whose children went into foster care after she signed what’s called a “voluntary foster custody agreement.”
But the mother, Shana Logan, said she only signed the agreement two days after her children were removed without a court order. In other words, the initial separation was done without a court order or consent, raising the same constitutional questions as the other categories.
Told about that case, McMillan responded, “That’s like trying to unrob a bank.”
Hartsfield said that some voluntary consent agreements, like Logan’s, are done after a child is removed and some are done before.
In all, only 7% of 966 children went into foster care after a judge signed an order.
These numbers are in stark contrast to several other child protection agencies surveyed by Civil Beat.
In Washington state, with more than five times Hawaii’s population, 43% of children entered foster care through a court order in 2021, according to Jason Wettstein, spokesman for the Washington Department of Children, Youth and Families. That’s more than six times Hawaii’s use of court orders.
Oregon and Arizona don’t have exact figures, but officials in those states say court orders are the norm.
“We do know anecdotally that the large majority of children enter foster care via a court order,” Jake Sunderland, press secretary for the Oregon Department of Human Services, said in an email.
In Arizona, “It’s standard to get a warrant,” said Darren DaRonco, spokesman for the state’s Department of Child Safety.
In California, counties administer child protection programs rather than the state. These jurisdictions, too, rely on court orders far more than Hawaii does.
In Alameda County, with a population bigger than Hawaii’s, 51% of removals were done with court orders in 2020 and ’21, according to figures provided by the county.
In Santa Clara County, with almost 2 million residents, child protection workers got judicial orders in 39% of removal cases in the first five months of 2022. Most of the other cases involved police taking children from parents after deciding that the danger was too great to seek a court order. But in almost two-thirds of these cases, a judge returned the child to parents within two business days, according to the Santa Clara Department of Family and Children’s Services.
In only three cases, or 4%, did Santa Clara child protection workers decide to take children from their parents without seeking an OK from a judge, the department said.
Other States Reexamine Their Warrantless Removals
Among the jurisdictions that replied to Civil Beat’s inquiries, only Idaho and Montana, with populations slightly bigger and a little smaller than Hawaii’s, rely to such an extent on warrantless removals.
“The vast majority (in the 75% to 85% range) of children in Idaho come into care through an imminent danger declaration made by law enforcement,” a spokesman for the state Department of Health & Welfare wrote in an email.
In Montana, getting a judge to sign off on removing a child is virtually unheard of, said Montana state Rep. Danny Tenenbaum.
The Democratic representative and attorney, along with a Republican colleague, have introduced legislation to change that, requiring child protection workers to get warrants unless they document imminent danger to the child.
“All we are doing with this bill is looking at what the Constitution currently requires and making sure every part of our statute complies with it,” Tenenbaum said.
As it stands, he said, social workers base removals on apparent risk of harm, which he likened to police taking suspects into custody on a hunch.
The intent of the new bill, Tenenbaum said, is to “make sure the system isn’t gummed up with tons and tons of cases based on unconstitutional investigations” so that social workers can focus on those that need close attention to prevent serious injury or death.
The bill recently cleared an initial hurdle and will be considered in the session that begins in January.
“It is astonishing to me that we have operated for so long outside the bounds of the Constitution,” Tenenbaum wrote in an email. “When I talk to people in this line of work in other states they are shocked by Montana’s system.”
Arizona went through a similar reckoning in 2017. The state was not seeking court orders before removing children, leaving the decision up to child protection workers and police.
Partly in response to lawsuits from attorneys like McMillan, the governor and lawmakers proposed requiring warrants unless the child was facing immediate danger. Arizona’s rate of children in foster care was comparatively high, and elected officials hoped the new law would bring it down.
In a 2017 article, the Arizona Republic cited several jurisdictions where foster rates fell after a warrant requirement was put in place, including Utah, Illinois, New York and several California counties.
Arizona’s foster care rate started declining when the idea was first floated, even before the law went into effect, according to figures provided by the state. In the 2017 fiscal year, for instance, which ended a year before the law took hold, 6.5 Arizona children per 1,000 went into foster care. That dropped to 5.5 the following year, just before the law went into effect, and 5.2 the year after. It has remained at similar levels since.
Hawaii’s child protection system stands out in other ways.
DHS officials said that the state lacks a procedure allowing judges to quickly approve a removal. Instead, they said, once a child has been taken, the law calls for CWS to file a petition in Family Court within three days, followed by a hearing in two days. Only at that hearing, they say, does a judge approve the removal.
Yet outside Hawaii, it’s common for judges to issue emergency ex-parte orders within hours.
In Santa Clara County, Calif., for instance, the child protection department is usually able to get an order within minutes of filing an application. “That is typically available to us 24 hours a day, all year,” the county wrote in an email.
In Alameda County, it takes 60 to 90 minutes. In Washington state, it’s a few hours to a day.
Arizona put a new system in place when it changed its laws to require warrants in most cases. Now, a judicial officer in Maricopa County, the most populous and home to Phoenix, is available 24/7 year-round.
“The process is electronic and tied into the tablets the caseworkers use in the field,” Maricopa courts spokesman Timothy Tait wrote in an email.
After the program got started, 82% of child removal requests were approved in 30 minutes or less, DaRonco said. Almost all were OK’d in less than two hours, though a few took longer – if, for instance, the judge needed more information.
Though judges rejected some requests, the vast majority were approved the first time around.
“We think it’s a national model for how the judiciary and the child protection system can work together,” Tait said.
Hartsfield said her department would be open to getting court orders more often if it could be done quickly. “Timeliness makes a difference,” she said. “If we could get an order within 20 minutes, an hour, four hours, versus three days, a week, that’s significant. We all know it takes just a moment for a child to get hurt.”
Court’s Narrow Definition Of Imminent Harm
Hartsfield said that her department has discussed the possibility with court officials over the years but that the courts believe they lack the capacity to streamline the system of issuing court orders.
But the Hawaii State Judiciary, which runs the courts, said it had not been approached by Hartsfield’s department about it.
“The Family Court is open to considering new processes, provided what is proposed complies with existing laws, and does not compromise the safety of a child,” spokeswoman Jan Kagehiro wrote in an email. “To our knowledge, in the last 20-plus years, CPS has not asked us to discuss the possibility of establishing a different process for removal of a child in imminent danger.”
In any case, federal court decisions have made it clear — removing children without court orders is not a question of budgets and staffing, but rather of constitutional protections.
In the absence of a major U.S. Supreme Court decision on warrantless removals of children, federal circuit courts have come up with their own standards. And the 9th Circuit’s, which control in Hawaii, are strict.
At play are the Fourteenth and Fourth amendments of the Constitution. The Fourteenth assures that parents have a right to live with their children. That right cannot be taken away without due process except in an emergency. The Fourth gives children protection against unreasonable seizures without a warrant, again in the absence of an emergency.
The 11 U.S. circuit courts of appeal have come to different conclusions in applying these principles to child removals. The 2nd, 9th and 10th circuits have drawn very narrow exceptions, only allowing removals without a court order if the situation is so dire that judicial review isn’t possible, according to a 2020 article in the Journal of Law and Policy. The 1st and 11th circuits, on the other hand, give child protection workers far more flexibility, as long as they appear in court in a reasonable time after the child has been removed.
In one oft-cited 9th Circuit precedent, Rogers v. County of San Joaquin in 2007, the court reviewed a California case of children ages 5 and 3 removed from their parents 18 days after an anonymous complaint that they were being severely neglected. Among the allegations were that the children had not gotten medical or dental treatment, the home was dirty and infested with maggots and they had not been toilet trained. Though the case had been classified as a non-emergency, social workers decided to remove the children right away without a warrant after seeing the home and talking to the parents.
In an earlier decision, the 9th Circuit had found that child protection workers should go to a judge for a warrant unless they have “reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.”
Applying that standard in the Rogers decision, the court found that “bottle rot, malnourishment, and disorderly home conditions do not present an imminent risk of serious bodily harm.”
The social worker estimated it would have taken “a few hours” to get a warrant from a judge, and the 9th Circuit found that the chances of the Rogers children being harmed in that time was so low as to not establish reasonable cause.
Not only has the 9th Circuit drawn narrow exceptions, McMillan said. It also requires child protection workers to assess less intrusive ways than putting a child in foster care to address the situation, such as one parent leaving the home or a grandparent or other relative stepping in. Social workers must also conduct reasonable investigations, interviewing other parties and witnesses, such as neighbors.
A Few In Hawaii Have Sued Over Removals
In Hawaii, a handful of lawsuits identified by Civil Beat have challenged the state’s normal practice of warrantless searches. Two of them settled out of court for relatively small amounts, at least in part because government workers are often shielded against claims in their official duties by the concept of “qualified immunity.”
In one case, Natalie De Alcantara alleged the Honolulu Police Department and CWS illegally removed her three children in November 2015.
The case had started a few months earlier, when De Alcantara herself reported that the children had been sexually abused.
On Nov. 23, 2015, a CWS worker called HPD dispatch to ask for help removing De Alcantara’s children. The officer met the CWS worker at De Alcantara’s home, signed protective custody forms and transferred the children to the custody of the state.
It’s unclear from court records what prompted CWS to act, although the state repeatedly refers to a finding of “imminent danger” later ratified by a Family Court judge.
In a later civil complaint, De Alcantara said that four days after the removal, CWS submitted a report to the Family Court that failed to identify a clear reason.
“The report says that there was ‘imminent danger’ although no imminent danger was reported by the police … and no imminent danger is described in the report,” De Alcantara wrote.
“The children have the Constitutional right to live with their parent without government interference and our rights have not been respected,” she wrote.
Two years later, in 2017, De Alcantara settled out of court with HPD for $5,000.
That settlement “may seem small at first glance,” the city’s attorneys wrote. But considering that the HPD officer was likely entitled to qualified immunity, the settlement was “more than adequate.”
De Alcantara could not be reached for comment, and documents in her ensuing Family Court case are not public.
Another case involved CWS’s decision to take custody of a newborn without a court order. The baby had been born prematurely at Tripler Army Medical Center to a teenage mother who had been in foster custody after accusing her stepfather, Rufus Robinson, of sexually abusing her two years earlier. A Family Court judge confirmed that allegation, though in later court filings, Robinson said his daughter recanted and that police had found insufficient evidence to refer the case to prosecutors. He said he later reconciled with the stepdaughter, who has since had three children and has recently been living in his home.
After the baby’s birth, Robinson and his wife adopted the infant so he would be entitled to medical coverage at Tripler. But a couple of days later, a CWS worker and police took the baby into protective custody without a court order, arguing that the mother lacked the means to care for the child and that a Family Court judge had confirmed that Robinson had abused his teenage stepdaughter a couple of years before. The baby, in critical condition, remained in the hospital and died several days later.
The Robinsons sued, saying CWS’s assertion of custody prevented them from making medical decisions on behalf of their grandson.
The 9th Circuit and U.S. District Court in Hawaii both agreed with the Robinsons that CWS had failed to establish that the baby had been in enough danger to justify the state taking custody without a court order. They said that the Robinsons could reasonably argue that the newborn would not be in danger in the time it took to get a warrant — he was in critical condition in the hospital and Tripler would not allow him to be moved. And there was no reason to believe that Rufus Robinson, the grandfather and adoptive father, would abuse him.
The Robinsons settled out of court in 2010 for $12,000.
The experience led Rufus Robinson to join a group, Parents For Righteousness, founded in 2004 to advise parents whose children had been taken on how to deal with CWS.
“We told parents if they don’t have a warrant, don’t let them in,” Robinson said. That seemed to have an effect. “The police really weren’t that interested in taking children that maybe were or maybe weren’t being abused,” he said. The group now is largely dormant, but Robinson said recent calls from parents show that CWS’s practice of warrantless removals has not changed.
Others whose children have been taken have not sued the state, but believe it should never have happened based only on CWS’s suspicions.
Big Island resident Shana Logan’s case started in August, 2016, when her daughter called CWS alleging that her mother was abusing her autistic brother.
Logan said her daughter made the report because she was unhappy about being enrolled in Kamehameha Schools. CWS looked into it and in short order dismissed it.
But a few weeks later, the daughter called the police, alleging that her mother was abusing her autistic brother sexually and that she herself had been sexually abused by a different family member. After talking to the daughter, the police transferred her to the custody of CWS.
Logan said she had been texting with her daughter during the day and was surprised when she got home to find her gone. Frightened that she had been abducted, she walked through the neighborhood asking if anyone had seen her. Finally, a couple of hours later, her daughter’s best friend told her what had happened.
“The most traumatizing thing is that they didn’t even call me,” Logan said.
The next day, CWS placed her autistic son, who had been visiting a different family on Oahu, with Logan’s ex-husband.
She believes that police and CWS, without the oversight of a judge, failed to take into account the context of the accusations – a teenage girl very unhappy about her school – or to try to verify them by talking to her or considering whether there was any evidence.
“My daughter was going through something that CWS totally misread,” she said.
Logan was never charged or even investigated for sexual abuse of her son.
More than three years later, a counselor who had seen her wrote that Logan “is not a perpetrator of abuse in my professional assessment, and I am one of several therapists who have concluded the same after having (Logan) tested and assessed.”
Logan also had testimonials from people declaring she had been a good mother.
“What did they have?” she asked. “Social workers with assumptions.”
CWS never tried to terminate her parental rights. In the end, her daughter aged out of the foster system.
Child protection cases like Logan’s are often complicated, with many twists and turns, but one thing is clear, McMillan said — at the outset, when the course of the case may be determined, parents have a constitutional protection against their children being taken for arbitrary reasons such as a social worker disliking a parent.
“The Constitution is the filter,” he said. “They can’t just come in and take your kid. That’s one of the fundamental concepts of liberty.”
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