Tuesday, August 16, 2011

 

Non-enforcement of mandatory reporting law against Dept. of Education personnel endangers Hawaii’s children


by Larry Geller

In Hawaii, there are plenty of examples of laws that aren’t enforced. A perennial issue is the failure to close illegal vacation rentals in Kailua, for example. Another broad category is traffic law—the police do virtually nothing to enforce stop before right turn on red, the speed laws, etc.

A biggie for me is the mandatory reporting law, HRS §350. I am not aware of any instance when it has been enforced against Department of Education personnel who are aware of child abuse. There have been numerous instances.

If the mandatory reporting law were enforced, perhaps the alleged sexual assaults at the Hawaii Center for the Deaf and the Blind would have come to police attention sooner. Years ago, in fact. The illicit activity could have been nipped in the bud.

Most people are aware that certain professions, for example, social workers or psychologists, are mandated to report child abuse. The same mandate applies to any employee of the Department of Education—from the Superintendent, to principals, right down to the janitor.

As to enforcement–at the state level, the Attorney General is the DOE’s attorney, fat chance that they will prosecute their own client. This leaves the city prosecutor.  In the past, when I sent an inquiry, I did not get a response. I’ll try again this time. See these articles for other instances in Hawaii.

Let me walk you through this. First, we need definitions. Here is that section, with my emphasis in red. Remember that at the HSDB the students are residential. The DOE is also in loco parentis:

§350-1 Definitions. For the purposes of this chapter, unless the context specifically indicates otherwise:

"Child abuse or neglect" means the acts or omissions of any person who, or legal entity which, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care, that have resulted in the physical or psychological health or welfare of the child, who is under the age of eighteen, to be harmed, or to be subject to any reasonably foreseeable, substantial risk of being harmed. The acts or omissions are indicated for the purposes of reports by circumstances that include but are not limited to:

(1) When the child exhibits evidence of:

(A) Substantial or multiple skin bruising or any other internal bleeding;

(B) Any injury to skin causing substantial bleeding;

(C) Malnutrition;

(D) Failure to thrive;

(E) Burn or burns;

(F) Poisoning;

(G) Fracture of any bone;

(H) Subdural hematoma;

(I) Soft tissue swelling;

(J) Extreme pain;

(K) Extreme mental distress;

(L) Gross degradation;

(M) Death; and

such injury is not justifiably explained, or when the history given concerning such condition or death is at variance with the degree or type of such condition or death, or circumstances indicate that such condition or death may not be the product of an accidental occurrence; or

(2) When the child has been the victim of sexual contact or conduct, including, but not limited to, sexual assault as defined in the Penal Code, molestation, sexual fondling, incest, or prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation; or

(3) When there exists injury to the psychological capacity of a child as is evidenced by an observable and substantial impairment in the child's ability to function; or

(4) When the child is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision; or

(5) When the child is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; provided that this paragraph shall not apply when such drugs are provided to the child pursuant to the direction or prescription of a practitioner, as defined in section 712-1240.

"Department" means the department of human services.

"Report" means the initial oral statement and, if required by section 350-1.1(c), the subsequent written account concerning the facts and circumstances which cause a person to have reason to believe that child abuse or neglect has occurred or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future. [L 1982, c 77, §1; am L 1983, c 171, §5; am L 1987, c 204, §3 and c 339, §4; am L 1988, c 141, §29]

Moving on to who must report:

§350-1.1  Reports.  (a)  Notwithstanding any other state law concerning confidentiality to the contrary, the following persons who, in their professional or official capacity, have reason to believe that child abuse or neglect has occurred or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future, shall immediately report the matter orally to the department or to the police department:

(1)  Any licensed or registered professional of the healing arts or any health-related occupation who examines, attends, treats, or provides other professional or specialized services, including but not limited to physicians, including physicians in training, psychologists, dentists, nurses, osteopathic physicians and surgeons, optometrists, chiropractors, podiatrists, pharmacists, and other health-related professionals;

(2)  Employees or officers of any public or private school;

(3)  Employees or officers of any public or private agency or institution, or other individuals, providing social, medical, hospital, or mental health services, including financial assistance;

(4)  Employees or officers of any law enforcement agency, including but not limited to the courts, police departments, department of public safety, correctional institutions, and parole or probation offices;

(5)  Individual providers of child care, or employees or officers of any licensed or registered child care facility, foster home, or similar institution;

(6)  Medical examiners or coroners; and

(7)  Employees of any public or private agency providing recreational or sports activities.

(b)  Whenever a person designated in subsection (a) is a member of the staff of any public or private school, agency, or institution, that staff member shall immediately report the known or suspected child abuse or neglect directly to the department or to the police department and also shall immediately notify the person in charge or a designated delegate of the report made in accordance with this chapter.

(c)  The initial oral report shall be followed as soon as possible by a report in writing to the department.  If a police department or the department of public safety is the initiating agency, a written report shall be filed with the department for cases that the police or the department of public safety takes further action on or for active cases in the department under this chapter.  All written reports shall contain the name and address of the child and the child's parents or other persons responsible for the child's care, if known, the child's age, the nature and extent of the child's injuries, and any other information that the reporter believes might be helpful or relevant to the investigation of the child abuse or neglect.  This subsection shall not be construed to serve as a cause of action against the department, the police, or the department of public safety.

(d)  Any person subject to subsection (a) shall, upon demand of the department or any police department, provide all information related to the alleged incident of child abuse or neglect, including, but not limited to, medical records and medical reports, which was not included in the written report submitted pursuant to subsection (c).

(e)  The director may adopt, amend, or repeal rules, subject to chapter 91, to further define or clarify the specific forms of child abuse or neglect enumerated in section 350-1 for use in implementing this chapter; provided that rules adopted under this subsection shall be limited to such further or clarifying definitions. [L 1967, c 261, §2; HRS §350-1; am L 1970, c 21, §1 and c 105, §5; am L 1975, c 147, §1; am L 1977, c 81, §2; am L 1979, c 171, §1; am L 1981, c 59, §1; ren and am L 1982, c 77, §2; am L 1985, c 17, §1 and c 208, §3; am L 1987, c 204, §4 and c 339, §4; am L 1988, c 323, §2; am L 1998, c 134, §4; am L 1999, c 271, §4; am L 2000, c 248, §1; am L 2006, c 159, §1 and c 193, §2]

This law should have helped to protect the children. According to the complaint filed in this case, the sexual assaults and bullying were known to school officials. Therefore they should have immediately called the police, etc., according to the law.




Comments:

I wonder what Pat Hamamoto's reaction was when confronted with this issue. Biggest problem with the DOE is everyone there are old buddies from their teaching days. Tough to confront anyone down the chain of command in that situation.
 

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