HOUSE OF REPRESENTATIVES

H.C.R. NO.

185

TWENTY-FIRST LEGISLATURE, 2002

H.D. 1

STATE OF HAWAII

 
   


HOUSE CONCURRENT

RESOLUTION

 

REQUESTING VOLUNTEER LEGAL SERVICES HAWAII TO CONDUCT A STUDY ON SECTION 587-81, HAWAII REVISED STATUTES.

 

 

WHEREAS, Peter Kema, Jr., also known as "Peter Boy", has not been seen by his relatives since February 1997; and

WHEREAS, Peter Boy was allegedly given by his father, Peter Kema, Sr. to an old family friend named "Auntie Rose Makuakane" (Makuakane) during a trip to Oahu in August 1997; and

WHEREAS, no one can be found who has seen Peter Boy since that time; and

WHEREAS, police have been unable to prove the existence of Makuakane, and the case is being actively investigated as a missing person's case; and

WHEREAS, while Peter Boy's parents have maintained that they have never harmed the child, the boy's three siblings, who have been placed in foster custody, have provided a disturbing portrait of alleged abuse, including allegations that Peter Boy was starved, forced to sleep outside, driven around in the locked trunk of the family car, and sometimes handcuffed to his bed; and

WHEREAS, despite reports of abuse, Peter Boy was still allowed by the Department of Human Services (DHS) to remain with his family; and

WHEREAS, despite investigation by the Hawaii County Police Department, there has been no apparent progress in the case, and the whereabouts of Peter Boy are still unknown with his body not discovered; and

WHEREAS, the interests of justice and confidence in our system of child protection begs resolution of the mystery of Peter Boy's fate and a closure to his case; and

WHEREAS, in 2001, at the request of Representative Dennis Arakaki, Na Keiki Law Center, a program under the auspices of Volunteer Legal Services Hawaii (VLSH), conducted an investigation of the "Peter Boy" Kema case; and

WHEREAS, VLSH assigned two intern law students to work in conjunction with local attorney Keith Peck on the case; and

WHEREAS, from the outset, VLSH experienced difficulties that made it impossible to determine whether Peter Kema's rights had been violated; and

WHEREAS, there were two problems that VLSH faced:

(1) Because VLSH was not named a party to the case, VLSH was unable to obtain any information concerning the actual case records from DHS; and

(2) Because of the Hawaii Supreme Court's ruling in Kema v. Gaddis, 91 Haw. 200 (1999), VLSH found that court action to require the release of information would not likely be fruitful;

and

WHEREAS, in Kema, the Hawaii Supreme Court invalidated a Family Court (Third Circuit) order that authorized the release of information pertaining to a protection proceeding; and

WHEREAS, in response to this, VLSH worked with lawmakers, government agencies, community organizations, volunteer attorneys, and clients to draft proposed legislation that was intended specifically to address the Kema ruling; and

WHEREAS, the proposed legislation sought to give extra weight to the needs of a missing child when determining whether to allow persons other than the parties access to protective proceeding records by establishing the following rebuttable presumptions in the Child Protective Act:

(1) That concerns as to the whereabouts and well-being of the missing child outweigh concerns as to the confidentiality of information raised on behalf of other family members; and

(2) That concerns as to the whereabouts and well-being of the missing child outweigh concerns of the potential harmful effects that access may have to the missing child's family members, including a sibling who is a minor and who may be the subject of a protection case that is interrelated with the missing child's case;

and

WHEREAS, two bills based on VLSH's proposed legislation, House Bill No. 2099, and Senate Bill No. 2149, were heard and reported by legislative committees, but failed to be enacted during the Regular Session of 2002; and

WHEREAS, concerns were raised on the establishment of rebuttable presumptions in family law; and

WHEREAS, the establishment of rebuttable presumptions in the Child Protective Act would ultimately require the release of information in all missing child cases regardless of whether such release would be harmful to the siblings of the missing child; and

WHEREAS, under existing case law, the evidentiary standard to overturn a rebuttable presumption is unclear at best; and

WHEREAS, it is not the Legislature's intent to place the siblings of a missing child at risk of harm, but rather to craft a statutory scheme that would provide the courts with adequate flexibility to release records in such a manner that would mitigate the harmful effects that such release might have on the siblings; and

WHEREAS, to resolve the "Peter Boy" Kema case, it is necessary to first clarify laws pertaining to the release of confidential information to third parties under the Child Protective Act, and in particular, section 587-81, Hawaii Revised Statutes; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-first Legislature of the State of Hawaii, Regular Session of 2002, the Senate concurring, that the Legislature requests Volunteer Legal Services Hawaii, in conjunction with the University of Hawaii William S. Richardson School of Law, to examine section 587-81, Hawaii Revised Statutes, for the purpose of drafting proposed legislation that would allow the release of information to third parties in light of the Hawaii Supreme Court's ruling in Kema v. Gaddis, 91 Haw. 200 (1999); and

BE IT FURTHER RESOLVED that VLSH submit proposed legislation to the Legislature no later than 20 days prior to the convening of the Regular Session of 2003; and

BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the Executive Director of Volunteer Legal Services Hawaii, Dean of the University of Hawaii William S. Richardson School of Law, Director of Human Services, and the Chief of the Hawaii County Police Department.

Report Title:

VLSH; Peter Kema, Jr.