Report Title:

Native Hawaiians; Child Welfare Act; Child Custody

 

Description:

Creates the Native Hawaiian Child Welfare Act (Act) that establishes the Na Kupuna Tribunal and grants it exclusive jurisdiction over child custody proceedings involving native Hawaiian children.  Establishes a pilot project as a trial run prior to the full implementation of the Act in 2008.  (HB1895 HD1)

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1895

TWENTY-FOURTH LEGISLATURE, 2007

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to NATIVE HAWAIIAN children.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


PART I

     SECTION 1.  The legislature, recognizing the special relationship between the United States, the State of Hawaii, and the native Hawaiian people, and the federal and state responsibility to native Hawaiians, finds:

     (1)  That clause 3, section 8, article 1 of the United States Constitution provides that: "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" and that, through this and other constitutional authority, Congress has plenary power over native Hawaiian affairs;

     (2)  That Congress, through statute, treaties, and the general course of dealing with native Hawaiians, has assumed the responsibility for the protection and preservation of native Hawaiians and their resources;

     (3)  That there is no resource that is more vital to the continued existence and integrity of native Hawaiians than their children, and that the United States has a direct interest as trustee in protecting native Hawaiian children;

     (4)  Approximately fifty per cent of the foster care cases under the jurisdiction of the department of human services involve native Hawaiian families; and

     (5)  Native Hawaiian communities and families have expressed concern that cultural needs are not considered as heavily as they should be in the placement of children in custody proceedings.

     The legislature hereby declares that it is the policy of this State to protect the cultural and traditional interests of native Hawaiian children and to promote the stability and security of native Hawaiian families by:

     (1)  Establishing standards for the removal of native Hawaiian children from their families and the placement of these children in hanai or lawe hanai homes that will reflect the unique values of native Hawaiian culture; and

     (2)  Providing assistance to native Hawaiians in the operation of child and family service programs.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

NATIVE HAWAIIAN CHILD WELFARE ACT OF 2007

PART I.  CHILD CUSTODY PROCEEDINGS

     §   -1  Short title.  This chapter may be cited as the "Native Hawaiian Child Welfare Act of 2007".

     §   -2  Definitions.  For the purposes of this chapter, except as may be specifically provided otherwise:

     "Ahupuaa" means native Hawaiian districts as defined in Kingdom of Hawaii law and any lands, not covered under such section, title to which is either held by the United States and the department of Hawaiian home lands in trust for the benefit of any native Hawaiian or held by any native Hawaiian subject to a restriction by the Nation of Hawaii against alienation.

     "Child custody proceeding" shall include hanai placement or lawe hanai placement of, or involuntary termination of parental rights to, a native Hawaiian child.

     "Extended family member" shall be as defined by the custom of the native Hawaiian child, and shall include a person who has reached the age of eighteen years and who is the native Hawaiian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, stepparent, or hanai or lawe hanai relation.

     "Hanai" means the native Hawaiian customary and traditional system of family in the nurture, care, and custody of their children.

     "Hanai or lawe hanai placement":

     (1)  Means any action to remove a native Hawaiian child from the child's parent or native Hawaiian or non-native Hawaiian custodian for temporary placement in a hanai or lawe hanai home or institution, or the home of a guardian or conservator.  In a hanai or lawe hanai placement, the parent or native Hawaiian or non-native Hawaiian custodian cannot have the child returned upon demand, but the parental rights of that parent or custodian have not been terminated; and

     (2)  Shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime; or upon an award in a divorce or similar proceeding of custody of the child to one of the parents.

     "Ho‘oponopono" means native Hawaiian customary and traditional philosophies of spiritual healing.

     "Lawe hanai placement" means related by blood or a blood relation.

     "Na Kupuna tribunal" means the Na Kupuna administrative body before which matters may be heard or tried but which is not necessarily presided over by judges as in a judicial forum.  The Na Kupuna tribunal exercises licensing, certifying, approval, or adjudication authority that affects the legal rights of all native Hawaiian people and includes the maximum participation of native Hawaiians in all phases of its activities.

     "Native Hawaiian":

     (1)  Means any person who is a linear descendant of the people who exercised sovereignty in Hawaii prior to 1778; and

     (2)  Includes any native Hawaiian nation, or native Hawaiian organized group or native Hawaiian community, which is recognized as eligible for the special programs and services provided by the United States to native Hawaiians because of their status as native Hawaiians.

     "Native Hawaiian child" means any unmarried or married person who is under the age of eighteen.

     "Native Hawaiian or non-native Hawaiian custodian" means any native Hawaiian or non-native Hawaiian person who has the responsibility for the care, custody, and control of a native Hawaiian child under standards and policies adopted by the Na Kupuna tribunal, or to whom temporary physical care, custody, and control has been transferred by the parent of the child.

     "Native Hawaiian organization" means any group, association, partnership, corporation, or other legal entity owned or controlled by native Hawaiians.

     "Parent" means any biological parent or parents of a native Hawaiian child or any native Hawaiian or non-native Hawaiian person who has lawfully adopted a native Hawaiian child, including hanai or lawe hanai customs.

     §   -3  Na Kupuna tribunal; establishment.  There shall be established the Na Kupuna tribunal, which is a body corporate and politic.  The Na Kupuna tribunal shall be placed within the First Hawaiian Nation for administrative purposes only.

     The Na Kupuna tribunal shall consist of            members.

     Notwithstanding section 26-34, members of the Na Kupuna tribunal shall be selected by each Na Kupuna island council.  The members of the tribunal shall serve without compensation, but shall be reimbursed reasonable expenses in connection with their duties.

     §   -4  Na Kupuna tribunal; jurisdiction over native Hawaiian child custody proceedings.  (a)  The Na Kupuna tribunal shall have exclusive jurisdiction over any child custody proceeding involving a native Hawaiian child in this state, and may petition for the transfer of proceedings involving a native Hawaiian child from any other state to its jurisdiction pursuant to this chapter.  Where a native Hawaiian child is a ward of a native Hawaiian or non-native Hawaiian entity, the Na Kupuna tribunal shall retain exclusive jurisdiction over the child, notwithstanding the residence or domicile of the child.  The department of human services shall take necessary action to assist in the proceedings under this section.

     (b)  In any court proceeding for the hanai or lawe hanai placement of, or involuntary termination of parental rights to a native Hawaiian child in this state, the court shall transfer the proceeding to the jurisdiction of the Na Kupuna tribunal, absent objection by either parent, and upon the petition of either parent or the native Hawaiian or non-native Hawaiian custodian.

     (c)  The Na Kupuna tribunal may decline jurisdiction over any case at any time.

     §   -5  Right of intervention.  The native Hawaiian or non-native Hawaiian custodian of the child and the Na Kupuna tribunal shall have a right to intervene at any point in any state court proceeding for the hanai or lawe hanai placement of, or involuntary termination of parental rights to a native Hawaiian child.

     §   -6  Proceedings in other states and jurisdictions.  (a)  The native Hawaiian or non-native Hawaiian custodian of the native Hawaiian child and the Na Kupuna tribunal may petition to intervene at any point in any court proceeding for the hanai or lawe hanai placement of, or involuntary termination of parental rights to a native Hawaiian child, in any other state or jurisdiction.

     (b)  In any court proceeding for the hanai or lawe hanai placement of, or involuntary termination of parental rights to a native Hawaiian child, the native Hawaiian or non-native Hawaiian custodian of the child and the Na Kupuna tribunal may petition the court for transfer of the proceedings to this state.

     §   -7  Court proceedings.  (a)  In any child custody proceeding in a court of this state, where the court knows or has reason to believe that a native Hawaiian child is involved, the party seeking the hanai or lawe hanai placement of, or involuntary termination of parental rights to, a native Hawaiian child shall notify the parent or native Hawaiian or non-native Hawaiian custodian and the Na Kupuna tribunal by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.  If the identity or location of the parent, native Hawaiian or non-native Hawaiian custodian, or the Na Kupuna tribunal cannot be determined, the notice shall be given to the governor, who shall have fifteen days after receipt to provide the requisite notice to the parent or native Hawaiian or non-native Hawaiian custodian and the Na Kupuna tribunal.

     (b)  No child custody proceeding involving a native Hawaiian child shall be held until at least ten days after receipt of notice by the parent or native Hawaiian or non-native Hawaiian custodian and the Na Kupuna tribunal; provided that the parent or native Hawaiian custodian or the Na Kupuna tribunal shall be granted, upon request, up to twenty additional days to prepare for the proceeding.

     (c)  Where it appears to the court that a person requesting the appointment of counsel satisfies the requirements of chapter 802 for determination of indigency, the parent or native Hawaiian custodian shall have the right to counsel provided by the Na Kupuna tribunal.  Compensation for counsel shall be as provided in section 571-87.

     (d)  Each party to a hanai or lawe hanai placement, or involuntary termination of parental rights proceeding involving a native Hawaiian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to the action may be based.

     (e)  Any court entering a final decree or order for hanai or lawe hanai placement of a native Hawaiian child after the effective date of this Act, shall provide the Na Kupuna tribunal with a copy of such decree or order together with such other information as may be deemed necessary to show:

     (1)  The name and genealogy of the child;

     (2)  The names and addresses of the biological parents;

     (3)  The names and addresses of the hanai or lawe hanai parents; and

     (4)  The identity of any agency having files or information relating to the hanai or lawe hanai placement.

     Where the court records contain an affidavit of the biological parent or parents requesting that their identity remain confidential, the court shall include the affidavit with the other information.  The Na Kupuna tribunal shall ensure that the confidentiality of the information is maintained and the information shall not be subject to chapter 92F or the Freedom of Information Act (5 U.S.C. 552), as amended.

     §   -8  Remedial services and rehabilitative programs; preventive measures.  (a)  Any party seeking to effect a hanai or lawe hanai placement of, or involuntary termination of parental rights to a native Hawaiian child shall immediately be referred to the Na Kupuna tribunal to provide customarily traditional remedial services and culturally sensitive rehabilitative programs designed to prevent the involuntary breakup of the native Hawaiian family.

     (b)  No hanai or lawe hanai placement may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, and by testimony of native Hawaiian family members and the Na Kupuna tribunal that the continued custody of the child by the parent or native Hawaiian custodian is likely to result in serious emotional or physical damage to the child.

     §   -9  Parental rights; involuntary termination prohibited.  No involuntary termination of parental rights may be ordered.

     §   -10  Parental rights; consent to voluntary termination.  (a)  Where any parent or native Hawaiian custodian voluntarily consents to a hanai or 1awe hanai placement, or to the voluntary termination of parental rights to a native Hawaiian child, the consent shall not be valid unless executed in writing and recorded before the Na Kupuna tribunal or other competent jurisdiction, and accompanied by the Na Kupuna tribunal's certification that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or native Hawaiian custodian.  The explanation and consent may be in the English language if understood by the parent or native Hawaiian custodian, or at the request of the parent or native Hawaiian custodian, shall be in any language the parent or native Hawaiian custodian understands.

     (b)  Any consent given prior to, or within twelve months after, the birth of the native Hawaiian child shall not be valid.

     §   -11  Parental rights; withdrawal of consent to voluntary termination.  (a)  Any parent or native Hawaiian or non-native Hawaiian custodian may withdraw consent to a hanai or lawe hanai placement at any time, and upon the withdrawal, the child shall be returned to the parent or native Hawaiian or non-native Hawaiian custodian.

     (b)  In any voluntary proceeding for termination of parental rights to, or voluntary adoptive placement of a native Hawaiian child, the consent of the parent may be withdrawn for any reason, and the child shall be returned to the parent upon completion of ho‘oponopono process in its entirety.

     (c)  After the entry of a final decree of voluntary adoption of a native Hawaiian child in any court, the parent may withdraw consent thereto upon the ground that consent was obtained through fraud or duress and may petition the court to vacate the decree.  Upon a finding that the consent was obtained through fraud or duress, the court shall vacate the decree and return the child to the parent.  Any adoption that has been obtained through fraud or duress shall be invalidated under this subsection.

     §   -12  Petition to court of competent jurisdiction to invalidate action upon showing of certain violations.  Any native Hawaiian child who is the subject of any action for hanai or lawe hanai placement or involuntary termination of parental rights, any parent or native Hawaiian custodian from whose custody the child was removed, and the Na Kupuna tribunal may petition any court of competent jurisdiction to invalidate the action upon a showing that the action violated any provision of this chapter.

     §   -13  Placement of native Hawaiian children.  (a)  In any hanai or lawe hanai placement of a native Hawaiian child under this chapter, preference shall be given, in the absence of good cause to the contrary, to a placement with:

     (1)  A member of the child's extended family;

     (2)  Other members of the native Hawaiian child's family;

     (3)  Other native Hawaiian families;

     (4)  A hanai or lawe hanai home licensed, approved, or specified by the Na Kupuna tribunal;

     (5)  A native Hawaiian hanai or lawe hanai home licensed or approved by a non-native Hawaiian licensing authority authorized by the Na Kupuna tribunal; or

     (6)  An institution for children approved by the Na Kupuna tribunal or operated by a native Hawaiian organization that has a program suitable to meet the native Hawaiian child's needs.

The Na Kupuna tribunal may establish a different order of preference by resolution.

     (b)  Any child accepted for hanai or lawe hanai placement shall be placed in the least restrictive setting that most approximates a family and in which the child's special needs, if any, may be met.  The child shall also be placed within reasonable proximity to the child's former home, taking into account any special needs of the child.

     (c)  Where appropriate, the preference of the native Hawaiian child or parent shall be paramount; provided that where a consenting parent evidences a desire for anonymity, the Na Kupuna tribunal or authorized agency shall give weight to the desire in applying the preferences.

     (d)  The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the native Hawaiian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.

     (e)  A record of each placement of a native Hawaiian child shall be maintained by the Na Kupuna tribunal in which the placement was made, evidencing the efforts to comply with the order of preference specified in this section.  The record shall be made available at any time upon the request of the Na Kupuna tribunal.

     §   -14  Return of custody.  (a)  Whenever a final decree of adoption of a native Hawaiian child has been vacated or set aside, or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior native Hawaiian custodian may petition for return of custody of the child.  The Na Kupuna tribunal shall grant the petition unless there is a showing, in a proceeding subject to this chapter, that the return of custody is not in the best cultural interests of the child.

     (b)  Whenever a native Hawaiian child is removed from a hanai home or lawe hanai home or institution for the purpose of further hanai placement, the placement shall be in accordance with this chapter, except in the case where a native Hawaiian child is being returned to the parent or native Hawaiian custodian from whose custody the child was originally removed.

     §   -15  Genealogical information; disclosure by the Na Kupuna tribunal.  Upon application by a native Hawaiian individual who has reached the age of eighteen and who was the subject of a hanai or lawe hanai placement, or the hanai or lawe hanai parents of a native Hawaiian child, the Na Kupuna tribunal shall disclose such information as may be necessary for the determination of any rights or benefits the individual or child may have that is associated with the child's genealogy.  Where the documents relating to the child contain an affidavit from the biological parent or parents requesting anonymity, the Na Kupuna tribunal shall certify to the native Hawaiian child's family, where the information warrants, that the child's parentage and other circumstances of birth entitle the child to all rights and benefits of that lineage.

     §   -16  Reassumption of jurisdiction over child custody proceedings.  (a)  The Na Kupuna tribunal that became subject to state jurisdiction pursuant to the Admission Act or pursuant to any other federal law, may reassume jurisdiction over child custody proceedings.  Before the Na Kupuna tribunal may reassume jurisdiction over native Hawaiian child custody proceedings, the Na Kupuna tribunal shall present to the governor for approval a petition to reassume jurisdiction that includes a suitable plan to exercise jurisdiction.

     (b)  In considering the petition and feasibility of the plan of the Na Kupuna tribunal under subsection (a), the governor shall consider, among other things:

     (1)  Whether or not the Na Kupuna tribunal maintains a sovereign roster of native Hawaiians clearly identifying the persons who will be affected by the reassumption of jurisdiction by the tribunal;

     (2)  The size of the native Hawaiian land base that will be affected by retrocession and reassumption of jurisdiction by the Na Kupuna tribunal;

     (3)  The population base of the Na Kupuna tribunal, or distribution of the population in homogeneous communities or geographic areas; and

     (4)  The feasibility of the plan in cases of multicultural occupation of a single geographic area.

     (c)  In those cases where the governor determines that the jurisdictional provisions of this chapter are not feasible, the governor is authorized to accept partial retrocession to enable the Na Kupuna tribunal to exercise referral jurisdiction, or, where appropriate, may allow the Na Kupuna tribunal to exercise exclusive jurisdiction as provided in this chapter over limited community or geographic areas.

     (d)  If the governor approves any petition under subsection (a), the governor shall have notice of the approval published in the Federal Register and shall notify the affected states of the approval.  The Na Kupuna tribunal shall reassume jurisdiction sixty days after publication in the Federal Register of notice of approval.  If the governor disapproves any petition under this section, the governor shall provide technical assistance as may be necessary to enable the Na Kupuna tribunal to correct any deficiency that the governor identified as a cause for disapproval.

     (e)  Assumption of jurisdiction under this section shall not affect any action or proceeding over which the Na Kupuna tribunal already assumed jurisdiction.

     §   -17  Agreements between other states and Na Kupuna tribunal.  (a)  The Na Kupuna tribunal may enter into agreements with other states respecting care and custody of native Hawaiian children and jurisdiction over child custody proceedings, including agreements that may provide for the orderly transfer of jurisdiction of all cases affected by this chapter and agreements authorized by this section that provide for concurrent jurisdiction between the other states and the Na Kupuna tribunal.

     (b)  Agreements entered into pursuant to subsection (a) shall bind all parties upon ninety days' written notice to the other party and shall not affect any action or proceeding over which a court has already assumed jurisdiction, unless the agreement provides otherwise.

     §   -18  Improper removal of child from custody; return of child.  Where any petitioner in a native Hawaiian child custody proceeding before a state court has improperly removed the child from the custody of the parent or native Hawaiian custodian, or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and shall return the child to its parent or native Hawaiian custodian unless the court determines, based upon evidence beyond a reasonable doubt, that returning the child to its parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.

     §   -19  Na Kupuna tribunal standard applicable to protect rights of parent or native Hawaiian custodian of native Hawaiian child.  In any case where Na Kupuna tribunal law applicable to child custody proceedings provides a higher standard of protection to the rights of the parent or native Hawaiian custodian of a native Hawaiian child than the rights provided under this chapter, the state or federal court shall apply the Na Kupuna tribunal standard.

     §   -20  Emergency removal or placement of child; appropriate action.  (a)  Nothing in this chapter shall be construed to prevent the emergency removal of a native Hawaiian child from its parent or native Hawaiian or non-native Hawaiian custodian or the emergency placement of the child in a hanai or lawe hanai home or institution to prevent imminent physical damage or harm to the child.

     (b)  Any governmental authority, official, or agency involved in the emergency removal or placement shall ensure that the removal or placement terminates immediately when no longer necessary to prevent imminent physical damage or harm to the child, and shall expeditiously initiate a child custody proceeding subject to the provisions of this chapter, transfer the child to the jurisdiction of the Na Kupuna tribunal, or restore the child to the parent or native Hawaiian custodian, as may be appropriate.

     §   -21  Rules.  Within ninety days after the effective date of this Act, the Na Kupuna tribunal shall adopt rules, pursuant to chapter 91, as may be necessary to carry out this chapter.

PART II.  OTHER PROGRAMS

     §   -31  Grants for native Hawaiian programs and child welfare codes.  (a)  The Na Kupuna tribunal is authorized to accept grants from the federal government to assist in the establishment and operation of native Hawaiian child and family service programs and in the preparation and implementation of child welfare codes.  The objective of every native Hawaiian child and family service program shall be to prevent the breakup of native Hawaiian families and, in particular, to ensure that the involuntary termination of parental rights of native Hawaiian families do not occur, thus preserving the native Hawaiian hanai custom, including lawe hanai.

     (b)  Child and family service programs of the Na Kupuna tribunal may include but are not limited to:

     (1)  Licensing or otherwise regulating native Hawaiian hanai or lawe hanai homes;

     (2)  Operation and maintenance of facilities for the counseling and treatment of native Hawaiian families and for the temporary custody of native Hawaiian children;

     (3)  Family assistance, including homemaker and home counselors, day care, after school care, employment, recreational activities, and respite care;

     (4)  Home improvement programs;

     (5)  Employment of native Hawaiian professionals and other trained native Hawaiian personnel to assist the Na Kupuna tribunal in the disposition of domestic relations and child welfare matters;

     (6)  Education and training of native Hawaiians, including Na Kupuna tribunal staff, in skills relating to child and family assistance and service programs;

     (7)  A subsidy program under which hanai or lawe hanai children may be provided support comparable to that for which they would be eligible as native Hawaiian children, taking into account the appropriate native Hawaiian cultural values of support for maintenance and medical needs; and

     (8)  Guidance, legal representation, and advice to native Hawaiian families involved in all child custody proceedings.

     (c)  Funding of programs in accordance with this section may be utilized as non-federal matching share in connection with funds provided under Titles IV-B and XX of the Social Security Act (42 U.S.C. sections 620 et seq., 1397 et seq.) or under any other federal financial assistance program that contributes to the purpose for which the funds are authorized to be appropriated for use under this chapter.  Assistance under this chapter shall not be a basis for the denial or reduction of any assistance otherwise authorized under Titles IV-B and XX of the Social Security Act or any other federal financial assistance program.  For purposes of qualifying for assistance under a federally assisted program, licensing or approval of hanai or lawe hanai homes or institutions by the Na Kupuna tribunal shall be deemed equivalent to licensing or approval by the State.

     (d)  In the establishment, operation, and funding of native Hawaiian child and family service programs, the Na Kupuna tribunal may enter into agreements with the Secretary of Health and Human Services; provided that authority to make payments pursuant to the agreements shall be effective only to the extent and in the amounts as may be appropriated in advance by the legislature."

     SECTION 3.  Chapter 571, Hawaii Revised Statutes, is amended by adding a new section to part VI to be appropriately designated and to read as follows:

     "§571-     Application to native Hawaiians.  (a)  A child custody proceeding that pertains to a native Hawaiian child, as defined in chapter     , shall not be subject to this chapter to the extent that it is governed by chapter     .

     (b)  A court of this State shall treat the Na Kupuna tribunal, established in chapter      , as if it were a state of the United States for the purpose of applying this chapter.

     (c)  A child custody determination involving a native Hawaiian child made pursuant to chapter      shall be recognized and enforced under this chapter."

     SECTION 4.  Chapter 578, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§578-     Application to native Hawaiians.  A child custody proceeding that pertains to a native Hawaiian child, as defined in chapter      , shall not be subject to this chapter to the extent that it is governed by chapter     ."

     SECTION 5.  Chapter 587, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§587-        Cultural needs.  The cultural needs of a child shall be considered, as part of the best interests of the child standard, in the foster custody, placement, and permanent custody decisions made by the court under any proceeding under this chapter."

     SECTION 6.  Section 571-11, Hawaii Revised Statutes, is amended to read as follows:

     "§571-11  Jurisdiction; children.  Except as otherwise provided in this chapter, and except as related to child custody proceedings involving native Hawaiian children as provided by chapter      , the court shall have exclusive original jurisdiction in proceedings:

     (1)  Concerning any person who is alleged to have committed an act prior to achieving eighteen years of age which would constitute a violation or attempted violation of any federal, state, or local law or municipal ordinance.  Regardless of where the violation occurred, jurisdiction may be taken by the court of the circuit where the person resides, is living, or is found, or in which the offense is alleged to have occurred[.];

     (2)  Concerning any child living or found within the circuit:

         (A)  Who is neglected as to or deprived of educational services because of the failure of any person or agency to exercise that degree of care for which it is legally responsible;

         (B)  Who is beyond the control of the child's parent or other custodian or whose behavior is injurious to the child's own or others' welfare;

         (C)  Who is neither attending school nor receiving educational services required by law whether through the child's own misbehavior or nonattendance or otherwise; or

         (D)  Who is in violation of curfew[.];

     (3)  To determine the custody of any child or appoint a guardian of any child[.];

     (4)  For the adoption of a person under chapter 578[.];

     (5)  For the termination of parental rights under sections 571-61 to 571-63[.];

     (6)  For judicial consent to the marriage, employment, or enlistment of a child, when such consent is required by law[.];

     (7)  For the treatment or commitment of a mentally defective, mentally retarded, or mentally ill child[.];

     (8)  Under the Interstate Compact on Juveniles under chapter 582[.];

     (9)  For the protection of any child under chapter 587[.]; and

    (10)  For a change of name as provided in section 574-5(a)(2)(C)."

     SECTION 7.  Section 571-87, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  [When] Except as provided in chapter      , when it appears to a judge that a person requesting the appointment of counsel satisfies the requirements of chapter 802 for determination of indigency, or the court in its discretion appoints counsel under chapters 587 and 346, part X, or that a person requires appointment of a guardian ad litem, the judge shall appoint counsel or a guardian ad litem to represent the person at all stages of the proceedings, including appeal, if any.  Appointed counsel and the guardian ad litem shall receive reasonable compensation for necessary expenses, including travel, the amount of which shall be determined by the court, and fees pursuant to subsection (b).  All of these expenses shall be certified by the court and paid upon vouchers approved by the judiciary and warrants drawn by the comptroller."

     SECTION 8.  Section 577-25, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§577-25[]]  Emancipation of certain minors.  Any law to the contrary notwithstanding, a minor who has been married pursuant to chapter 572 shall be deemed to be emancipated and shall be regarded as though he or she were of legal age and shall have all the rights, duties, privileges, and responsibilities provided by the civil law to a person who has reached the age of majority under civil law; provided that:

     (1)  Nothing in this section shall be deemed to confer upon such person the right to vote in any federal, state, or county election or the right to purchase, possess, or sell alcoholic beverages; [and]

     (2)  Nothing in this section shall change the status of such persons as minors in connection with any criminal law, nor affect the exclusive original jurisdiction of the family court over such persons under section 571-11(1)[.]; and

     (3)  Nothing in this section shall change the status of a native Hawaiian under proceedings as provided in chapter      .

     For purposes of this section, "minor" means a person under the age of majority."

     SECTION 9.  Section 583A-104, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§583A-104[]]  Application to Indian tribes[.] and native Hawaiians.  (a)  A [child-custody] child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 United States Code section 1901 et seq., shall not be subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.

     (b)  A child custody proceeding that pertains to a native Hawaiian child as defined in chapter      , shall not be subject to this chapter to the extent that it is governed by chapter       .

     [(b)] (c)  A court of this State shall treat a tribe as if it were a state of the United States for the purpose of applying parts I and II.  A court of this State shall treat the Na Kupuna tribunal established in chapter     , as if it were a state of the United States for the purpose of applying parts I and II.

     [(c)] (d)  A [child-custody] child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under part III.  A child custody determination made by the Na Kupuna tribunal under chapter       shall be recognized and enforced under part III."

PART II

     SECTION 10.  The legislature finds that the absence of culturally sensitive native Hawaiian schools and programs contribute to the breakup of native Hawaiian families.

     The Na Kupuna tribunal shall prepare, in consultation with appropriate agencies in the departments of health, education, and human services, a report on the feasibility of providing native Hawaiian children with schools and programs that promote traditional and customary rights, and native Hawaiian national history.  In developing this report, the Na Kupuna tribunal shall give particular consideration to the provision of educational facilities for native Hawaiian children in the elementary grades.

     The Na Kupuna tribunal shall submit this report to the governor, the legislature, the Select Committee on Indian Affairs of the United States Senate, and the Committee on Interior and Insular Affairs of the United States House of Representatives within one year of the effective date of this Act.

PART III

     SECTION 11.  (a)  There is established a one-year pilot project to implement chapter      , Hawaii Revised Statutes, established under section 2 of this Act.  As part of this pilot project, the department of human services shall coordinate with the Na Kupuna tribunal established under chapter      , Hawaii Revised Statutes, to develop procedures and protocols that will assist the Na Kupuna tribunal in carrying out its responsibilities with respect to child custody proceedings involving native Hawaiian children in this State.

     (b)  For the purposes of the pilot project, no more than twenty-five cases shall be handled by the Na Kupuna tribunal in accordance with the requirements of section 2 of this Act.  The department of human services shall enter into any necessary agreements and develop necessary procedures and protocols to allow the handling of cases in the pilot project, and only those cases, as required by this section.  The services provided by the department of human services to Na Kupuna tribunal cases shall be limited to programs and services under the department's differential response system.

     (c)  The department of human services, with input from the Na Kupuna tribunal, shall submit a final report on the pilot project, including its status, procedures and protocols developed, outcomes, and findings and recommendations, including proposed legislation, if any, to the legislature no later than twenty days prior to the convening of the regular session of 2008.

PART IV

     SECTION 12.  (a)  The department of human services shall convene a tribunal oversight task force to oversee the Na Kupuna tribunal's functions and review the manner in which courts handle cases involving children with cultural needs.

     (b)  The task force may include but shall not be limited to the representatives of the following:

     (1)  The office of Hawaiian affairs;

     (2)  The Hawaii Foster Parent Association;

     (3)  The Hawaii Foster Youth Coalition;

     (4)  The Hawaii Youth Services Network;

     (5)  The attorney general, or designee;

     (6)  HCAP Leeward District;

     (7)  Na Kupuna O Waianae;

     (8)  The Legacy Coalition;

     (9)  Na Kupuna O Kahana; and

    (10)  Any other individuals or organizations the department of human services deems necessary.

     (c)  The task force shall terminate upon completion of the pilot project under section 11.

     (d)  The department of human services shall submit a report to the legislature no later than twenty days prior to the convening of the regular session of 2007 on its findings and recommended legislation.

PART V

     SECTION 13.  If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 14.  This Act shall take effect upon its approval; provided that:

     (1)  Sections 2 to 8 shall not be operative for any purposes or matters except for the cases being handled by the pilot project pursuant to section 11(b) of this Act.  Sections 2 to 8 shall become fully operative on July 1, 2008; and

     (2)  The child custody procedures in chapter      , Hawaii Revised Statutes, contained in section 2 of this Act shall not affect a proceeding for hanai or lawe hanai placement that was initiated or completed prior to October 1, 2008, but shall apply to any subsequent proceeding in the same matter or subsequent proceedings affecting the custody or placement of the same child.

     SECTION 15.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 16.  This Act shall take effect on July 1, 2112.