In re FG, AG, PG. , 421 P.3d 1267 ( 2018 )

*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
28-JUN-2018
08:40 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
In the Interest of FG, AG, PG
SCAP-XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CAAP-XX-XXXXXXX; FC-S NOS. 16-001K and 16-056K)
JUNE 28, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. Introduction
This 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.
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Parents 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-40,1 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.
First, 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
challenge.
1
HRS § 587A-40 provides:
The court shall keep a record of all child protective
proceedings under this chapter. Written reports,
photographs, x-rays, or other information that are
submitted to the court may be made available to other
appropriate persons, who are not parties, only upon an
order of the court. The court may issue this order
upon determining that such access is in the best
interests of the child or serves some other legitimate
purpose.
As set forth in rules adopted pursuant to chapter 91
by the department of human services and consistent
with applicable laws, the department may disclose
information in the court record without order of the
court, unless otherwise ordered by the court.
HRS § 587A-40 (Supp. 2016).
2
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Second, 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 issuance.
II. Background
In January 2016, the family court awarded DHS family
supervision2 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.
On July 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
2
“‘Family supervision’ means the legal status in which a child’s
legal custodian is willing and able, with the assistance of a service plan, to
provide the child with a safe family home.” HRS § 587A-4 (Supp. 2016). When
DHS or another authorized agency has family supervision, it has the duty to
monitor and supervise the children and the children’s family members who are
parties to the CPA proceeding. HRS § 587A-15 (Supp. 2016).
3
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
home.
On July 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 350-1.43 and Hawai#i
Administrative Rule (HAR) 17-1601-4,4 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
3
HRS § 350-1.4 (Supp. 2016) provides, in relevant part:
All reports to the department concerning child abuse
or neglect made pursuant to this chapter, as well as
all records of such reports, are confidential. The
director may adopt rules, pursuant to chapter 91, to
provide for the confidentiality of reports and records
and for the authorized disclosure of reports and
records. Any person who intentionally makes an
unauthorized disclosure of a report or record of a
report made to the department shall be guilty of a
misdemeanor.
4
HAR § 17-1601-4 provides, in relevant part:
(a) All records and information shall be confidential
and unauthorized disclosure or re-disclosure shall be
a violation. Records shall not be accessible for
public inspection except as provided by this chapter.
Disclosure of records shall be provided in accordance
with departmental procedures; provided, however, that
when the record contains information that the person
is not authorized to receive, that information shall
not be provided.
(b) Recipients of confidential information shall be
bound by the same confidentiality restrictions as the
department and shall maintain confidentiality and
prevent unauthorized re-disclosure.
4
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
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.”
On 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
5
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
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.
Parents 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.
On 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.”
Counsel 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 655 because the State did not submit evidence that
5
HFCR Rule 65 provides, in relevant part:
(b) Restraining Order; Notice; Hearing; Duration. A
restraining order may be granted without notice to the
adverse party when it clearly appears from specific
(continued...)
6
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Parents had released family court records. He argued further
that Parents did not intend to release records.
Counsel 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.”
The 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
5
(...continued)
facts shown by affidavit or declaration or by the
verified complaint or cross-complaint that immediate
relief to the applicant is appropriate. Every
restraining order granted without notice shall be
filed forthwith in the clerk’s office and entered of
record, shall be accompanied by an appropriate
application for further relief, shall be set for a
prompt hearing, and shall be served forthwith upon any
party or parties affected by the order. It shall
continue in effect until further order of the court.
Upon notice to the party who obtained the restraining
order without notice, the adverse party may move to
advance the hearing.
. . . .
(d) Form and Scope of Restraining Order. Every
restraining order shall set forth the reasons for its
issuance; shall be specific in terms; shall describe
in reasonable detail, and not by reference to the
complaint or other document, the act or acts sought to
be restrained; and is binding only upon the parties to
the action, their officers, agents, servants,
employees, and attorneys, and upon those persons in
active concert or participation with them who receive
actual notice of the order by personal service or
otherwise.
7
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
of[.]”
The 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.
After 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 passed away.
The Court will grant the -- I’m sorry, will sustain
the objection in part as follows. The Court order
8
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
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 information.
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.
Counsel 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.
On August 25, 2017, the family court entered its
Findings of Fact, Conclusions of Law, Decision and Order
(“Order”):
Finding of Fact/Conclusions of Law:
1. This is a proceeding under Chapter 587A, Hawaii
9
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Revised Statutes.
2. It is in the best interest of children and their
families that Chapter 587A proceedings are kept
confidential[.]
3. “The court shall keep a record of all child
protective proceedings under this chapter.
Written reports, photographs, x-rays, or other
information that are submitted to the court may
be made available to other appropriate persons,
who are not parties, only upon an order of the
court.” Hawaii Revised Statutes §587A-40.
4. The imposition of a protective order, ensuring
that all parties comply with §587A-40 is
granted. Pursuant to §587A-40, the Court will
consider releasing information about this case
to non-parties, if there is a showing that the
release of said information is either in the
best interests of the child or serves some other
legitimate purpose.
NOW, THEREFORE, IT IS HEREBY ORDERED as follows:
A. ALL PARTIES in this case are hereby
prohibited and restrained from releasing,
disclosing, disseminating, and
broadcasting written reports, photographs,
x-rays, or other information that have
been or will be submitted to the court
relating to the subject children and this
court case to the general public without
prior court authorization, pursuant to HRS
§587A-40.
B. ALL PARTIES in this case are hereby
prohibited and restrained from disclosing
the names of the two children still in
foster custody to the general public,
including but not limited to the media,
social media or internet postings.
On September 19, 2017, the parties stipulated to revoke
foster custody over the surviving children, and the family court
ordered family supervision over the children, concluding that
Mother could provide a safe home with the assistance of a service
plan.
10
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Parents timely appealed to the ICA and applied for
transfer, which this court granted. On appeal, Parents argue
that the portion of the family court’s Order prohibiting Parents
from disclosing their surviving children’s names is an
unconstitutional prior restraint that infringes their right to
freedom of speech. Parents also challenge the portion of the
Order that prohibits them from releasing records, arguing that
the statute on which the Order is based, HRS § 587A-40, is vague
and ambiguous.6
III. Standards of Review
A. Constitutional Law
“We review questions of constitutional law de novo,
under the right/wrong standard.” Jou v. Dai–Tokyo Royal State
Ins. Co., 116 Hawai#i 159, 164–65, 172 P.3d 471, 476–77 (2007)
(quoting Onaka v. Onaka, 112 Hawai#i 374, 378, 146 P.3d 89, 93
(2006)) (internal quotation marks omitted). Thus, this court
“exercises its own independent constitutional judgment, based on
the facts of the case.” State ex rel. Anzai v. City & Cty. of
Honolulu, 99 Hawai#i 508, 514, 57 P.3d 433, 439 (2002) (citing
State v. Jenkins, 93 Hawai#i 87, 100, 997 P.2d 13, 26 (2000)).
Whether speech is protected by the first amendment [to
the United States Constitution], as applied to the
6
Because we vacate the Order, we do not address Parents’ challenge
to HRS § 587A-40.
11
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
states through the due process clause of the
fourteenth amendment, is a question of law which is
freely reviewable on appeal. Correlatively, [o]ur
customary deference to the trial court upon
essentially a factual question is qualified by our
duty to review the evidence ourselves in cases
involving a possible infringement upon the
constitutional right of free expression.
State v. Viglielmo, 105 Hawai#i 197, 203, 95 P.3d 952, 958 (2004)
(citations and quotations omitted).
B. Injunctive Relief
“Generally, the granting or denying of injunctive
relief rests with the sound discretion of the trial court and the
trial court’s decision will be sustained absent a showing of a
manifest abuse of discretion.” Sierra Club v. Dep’t of Transp.
of State of Hawai#i, 120 Hawai#i 181, 197, 202 P.3d 1226, 1242
(2009) (quoting Hawai#i Pub. Employment Relations Bd. v. United
Pub. Workers, Local 646, AFSCME, AFL-CIO, 66 Haw. 461, 467-68,
667 P.2d 783, 788 (1983)).
The relief granted by a court [in] equity is
discretionary and will not be overturned on review
unless the [circuit] court abused its discretion by
issuing a decision that clearly exceeds the bounds of
reason or disregarded rules or principles of law or
practice to the substantial detriment of the
appellant.
Pelosi v. Wailea Ranch Estates, 91 Hawai#i 478, 487, 985 P.2d
1045, 1054 (1999) (internal quotations omitted).
12
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
IV. Discussion
A. The Family Court did not Properly Apply the Required First
Amendment Analysis in Issuing the Prohibition Against
Disclosure of the Children’s Names
Parents argue that the portion of the Order prohibiting
Parents from disclosing their surviving children’s names, Part B,
is an unconstitutional prior restraint of their First Amendment
rights to free speech. DHS does not dispute that part B of the
Order constitutes a prior restraint, but argues that the
restraint meets the three-prong test in Levine v. U.S. District
Court for the Central District of California, 764 F.2d 590, 593
(9th Cir. 1985). Parents agree with DHS that the Levine test is
the appropriate test, but contend that Part B of the Order fails
the test.
We agree with the parties that the Levine test applies
to the prohibition against disclosure of the children’s names,
and we hold that the family court failed to make findings
required to establish that the restraint met the test. “Prior
restraints are subject to strict scrutiny because of the peculiar
dangers presented by such restraints.” Levine, 764 F.2d at 595.
Quite simply, the family court did not engage in the required
constitutional analysis before impinging on Parents’ right to
free speech by entering part B of the Order.
The Levine test provides that a prior restraint on the
13
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
First Amendment right to free speech of a trial participant may
be upheld if “(1) the activity restrained poses either a clear
and present danger or a serious and imminent threat to a
protected competing interest,” “(2) the order is narrowly drawn,”
and “(3) less restrictive alternatives are not available.”
Levine, 764 F.2d at 595 (citations omitted). DHS correctly
argues that this court followed the Levine test in Breiner v.
Takao, 73 Haw. 499, 504-05, 835 P.2d 637, 640-41 (1992). There
we reiterated that the trial court must make specific findings
that the Levine test has been satisfied before imposing a prior
restraint on the free speech of trial participants. See Breiner,
73 Haw. at 505-07, 835 P.3d at 641-43.
The first prong of the Levine test requires a court to
make specific findings that: the competing interest is
compelling; the competing interest will be harmed or threatened
absent the court’s imposition of a restraint; and, in balancing
the competing interest with First Amendment rights, that the
competing interest deserves greater protection. See id. at 505,
835 P.3d at 641 (“the record must contain specific findings by
the trial court which demonstrate that the conduct is a serious
and imminent threat”); Landmark Commc'ns, Inc. v. Virginia, 435
U.S. 829, 843 (1978) (“the test requires a court to make its own
inquiry into the imminence and magnitude of the danger said to
14
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
flow from the particular utterance and then to balance the
character of the evil, as well as its likelihood, against the
need for free and unfettered expression”).
DHS argues that protecting the confidentiality of
children involved in child proceedings is an “overwhelmingly
important governmental interest.” It argues that the Hawai#i
legislature has enacted several statutes under the CPA to
preserve confidentiality, and that this court has issued rulings
to safeguard information contained in CPA proceedings. In
response, Parents argue that the family court did not make
findings that disclosure of their children’s names constituted a
threat to a protected competing interest.
The United States Supreme Court has recognized the
states’ compelling interest in protecting confidentiality of
child abuse information. See Pennsylvania v. Ritchie, 480 U.S.
39, 60 (1987).7 This court cited Ritchie with approval in State
v. Peseti, 101 Hawai#i 172, 65 P.3d 119 (2003), in holding that
the family court’s decision to seal a complainant’s Child
Protective Services (CPS) file did not violate the defendant’s
due process rights:
7
In Barnard v. State of Hawai#i, No. 05-00599 SPK-LEK, 2007 WL
954303,(D. Haw. Mar. 27, 2007), the United States District Court for the
District of Hawai#i noted that the United States Supreme Court characterized a
state’s interest in protecting information about child abuse as compelling.
Id. at *4 (citing Ritchie, 480 U.S. at 60).
15
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
To allow full disclosure to defense counsel in this
type of case would sacrifice unnecessarily the
Commonwealth’s compelling interest in protecting its
child-abuse information. If the CYS records were made
available to defendants, even through counsel, it
could have a seriously adverse effect on
Pennsylvania’s efforts to uncover and treat abuse.
Child abuse is one of the most difficult crimes to
detect and prosecute, in large part because there
often are no witnesses except the victim. A child's
feelings of vulnerability and guilt and his or her
unwillingness to come forward are particularly acute
when the abuser is a parent. It therefore is
essential that the child have a state-designated
person to whom he may turn, and to do so with the
assurance of confidentiality. Relatives and neighbors
who suspect abuse also will be more willing to come
forward if they know that their identities will be
protected. Recognizing this, the Commonwealth—like
all other States—has made a commendable effort to
assure victims and witnesses that they may speak to
the CYS counselors without fear of general disclosure.
The Commonwealth’s purpose would be frustrated if this
confidential material had to be disclosed[.]
Id. at 185-85, 65 P.3d at 132-33 (quoting Ritchie, 480 U.S. at
56-67) (emphasis added).8
In, Ritchie the Court also noted that “[t]he importance
of the public interest at issue in this case is evidenced by the
fact that all 50 States and the District of Columbia have
statutes that protect the confidentiality of their official
records concerning child abuse.” 480 U.S. at 60 n.17. Indeed,
the states’ maintenance of the confidentiality of child abuse
records is required as part of their compliance with the federal
8
The Peseti court, in not allowing full disclosure, indicated that
the defendant’s due process rights to a fair trial were protected because the
family court conducted an in camera review of the complainant’s CPS file and
thereafter produced redacted relevant portions of the file to the defendant.
Id. at 187, 65 P.3d at 134.
16
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Child Abuse Prevention and Treatment Act (CAPTA). CAPTA provides
federal grants to states for the purpose of assisting them in
improving the child protective services of the state. See 42
U.S.C.A. § 5106a(a). In order to receive funding, states must
submit plans which include how the state will “preserve the
confidentiality of all records in order to protect the rights of
the child[.]” Id. at (b)(1)(A), (b)(2)(B)(viii).
This compelling state interest in protecting the
confidentiality of child abuse information is reflected in
numerous Hawai#i statutes and regulations. The purpose of the
CPA is to serve the best interests of children. See HRS § 587A-2
(Supp. 2016) (“This chapter shall be liberally construed to serve
the best interests of the children[.]”). The CPA provides for
the confidentiality of records, and requires that its proceedings
be closed to the general public and held without a jury. HRS
§ 587A-40; HRS § 587A-25 (Supp. 2016). Further, family court
records in many types of cases involving children are not
available for public inspection. HRS § 571-84 (Supp. 2016).
Hawai#i also provides for the confidentiality of DHS records
regarding reports and investigations of child abuse or neglect,
and the intentional unauthorized disclosure of a report or record
of a report to DHS constitutes a misdemeanor. HRS § 350-1.4
(Supp. 2016).
17
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Thus, as recognized by the United States Supreme Court,
and as reflected in the extensive state and national statutory
protection of the confidentiality of child abuse records, there
is a constitutionally recognized compelling state interest in
keeping child abuse records confidential.
However, as DHS conceded at the family court hearing on
the Order, there is no statutory protection in Hawai#i against
parents disclosing their children’s names to the public. Thus,
we must apply the Levine test to assess the validity of the
family court’s prohibition on Parents’ disclosure of their
children’s names. That test requires that courts make specific
findings that there is a threat to a competing interest before
entering a prior restraint. See Levine, 764 F.2d at 595; see
also Care & Prot. of Edith, 421 Mass. 703, 706, 659 N.E.2d 1174,
1177 (1996) (“A general rule that bars any parent from directly
or indirectly revealing the names of children subject to a care
and protection proceeding will not do. There must be evidence
and findings as to what effect the disclosure of the names of the
particular children will or might have on them.”)
Here, the family court’s findings in its written Order
were limited to stating, “It is in the best interest of children
and their families that Chapter 587A proceedings are kept
confidential[.]” The Order did not explicitly find that
18
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
confidentiality would serve the best interest of Parents’
children. The family court also failed to make findings that
Parents’ conduct posed a serious and imminent threat to the best
interests of their children. See Breiner, 73 Haw. at 505, 835
P.2d at 641 (“the record must contain specific findings by the
trial court which demonstrate that the conduct is a serious and
imminent threat[.]”) (quotation omitted). Finally, the family
court did not identify or assess Parents’ First Amendment
interests. See Levine, 764 F.2d at 595.9
In short, the family court failed to make sufficient
written findings that the first prong of the Levine test was met,
and accordingly, it did not discharge its duty to find that there
was a “clear and present danger or a serious and imminent threat
to a protected competing interest[.]” See Levine, 764 F.2d at
595.
Further, the family court did not find that the Order
met the second and third prongs of the Levine test–-i.e., it did
not find that the Order was narrowly drawn or that less
9
In assessing Parents’ First Amendment rights, we note that this is
a case in which a child has died while in foster care. State statutes which
provide for review of child deaths that occur in state custody demonstrate
that Hawai#i has an interest in ensuring accountability in the foster care
system. See HRS § 321-341 (Supp. 2016)(providing that the Department of
Health (DOH) may conduct multidisciplinary and multiagency reviews of child
deaths); HRS § 321-345.5 (Supp. 2016) (requiring the DOH to submit an annual
written report to the legislature on the status of child death reviews
conducted by the department, and the report must include the number of
children in state custody and the cause of those deaths).
19
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
restrictive alternatives were available. See id. Here, the
family court’s Order prohibits Parents from disclosing their
children’s names to the general public. The family court did not
make clear what it meant by including the term “general public”
in its Order. Further, the family court did not explicitly
consider whether its Order was narrowly drawn to ensure that it
was no more restrictive than necessary to protect the State’s
interests. See id.
In summary, the family court did not engage in the
requisite constitutional analysis to support a prohibition
against disclosure of Parents’ children’s names.
Accordingly, the family court’s Order must be vacated.
However, we provide that the Order will remain in effect for
forty-five days after the filing of the judgment for this opinion
to provide DHS with an opportunity to renew its request for a
restraint on remand. The family court’s Order will automatically
vacate at the end of the forty-five-day period.10
If DHS moves on remand to enter a new restraining
order, it shall present evidence, and the family court must make
specific findings, that the requirements of the Levine test are
met prior to issuing a new order. The Levine test states in the
10
If DHS elects not to file a request for a restraint on remand, it
shall immediately notify the family court, which shall forthwith rescind the
Order.
20
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
first prong that the prior restraint may be upheld if the
activity restrained poses either a clear and present danger or a
serious and imminent threat to a protected competing interest.
So, the family court would determine on remand whether the
release of the children’s names poses a clear and present danger
or serious and imminent threat to the children’s best interests
from the disclosure of the family court records.11 See Levine,
764 F.2d at 595 (the court must determine whether “the activity
restrained poses either a clear and present danger or a serious
and imminent threat to a protected competing interest[.]”)
(citations omitted). The family court must also make findings
that the second and third prongs of the Levine test are met. See
id.
B. The Family Court Abused its Discretion in Ordering an
Injunction that Prohibits the Release of CPA Records
The other portion of the family court’s order presents
a distinct issue: whether the family court abused its discretion
in ordering Parents not to disclose records that are already
protected from release by HRS § 587A-40.
11
We recognize that some cases may require less detailed, specific
factual findings that the children would suffer harm from disclosure of their
names, for instance, in cases involving allegations of sexual abuse. See,
e.g., In re J.S., 267 Ill.App.3d 145, 150, 640 N.E.2d 1379, 1383 (1994)
(holding that the court did not need to make specific findings that disclosure
of confidential information would cause a child harm before entering a
nondisclosure order in a case where the mother had physically abused the minor
for the purpose of attempting to prove that the father sexually abused the
minor).
21
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
As a threshold matter, the family court has the power
to issue injunctive relief under HRS § 571-8.5(a)(10) (Supp.
2016).12 See In re Guardianship of Carlsmith, 113 Hawai#i 211,
228, 151 P.3d 692, 709 (2006). “[A] restraining order is an
extraordinary writ subject to contempt for failure to comply[.]”
Wahba, LLC v. USRP (Don), LLC, 106 Hawai#i 466, 475, 106 P.3d
1109, 1118 (2005) (quotations omitted).
However, we hold that the family court abused its
discretion in entering the injunction prohibiting parties from
releasing family court records because the record is insufficient
to support the issuance of the Order.13 At the hearing, counsel
for Parents argued that the State did not submit evidence that
12
HRS § 571-8.5(a)(10) provides:
(a) The district family judges may:
. . . .
(10) Make and award judgments, decrees, orders, and
mandates, issue executions and other processes, and do
other acts and take other steps as may be necessary to
carry into full effect the powers that are or shall be
given to them by law or for the promotion of justice
in matters pending before them[.]
13
We note that the Order’s failure to set forth the reasons for its
issuance provides an additional basis for vacating the Order. In Wahba, this
court invalidated a restraining order that failed to state the reasons for its
issuance and the factual basis that would support the enjoinment. 106 Hawai#i
at 476, 106 P.3d at 1119. We explained, “Because a restraining order is an
extraordinary writ, subject to contempt for failure to comply, it must be set
out in specific terms.” Id. at 475-76, 106 P.3d at 1118-19 (citations
omitted). Because the order failed to state the reasons for its issuance, the
injunction “accordingly was procedurally defective, and thus, void.” Id. at
476, 106 P.3d at 1118-19. Here, similarly, the family court’s Order did not
set forth the factual basis of the Order or sufficiently state the reasons for
the Order’s issuance, and accordingly, is procedurally defective. See id.
22
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Parents released family court records, and that Parents did not
intend to release records. The court asked whether, if it were
to issue an order tracking HRS § 587A-40, Parents would abide by
the statute. Counsel for Parents confirmed that they would abide
by HRS § 587A-40, and reiterated that Parents had not released
records. Counsel for DHS conceded that it was not claiming that
Parents had released records, but based on the Facebook posting,
had a concern that they may do so.
While parents are statutorily required by HRS § 587A-40
not to release records, the concerns raised by DHS are too
speculative to support the issuance of an injunction, an
extraordinary remedy which would subject Parents to contempt for
failure to comply.14 See Wahba, 106 Hawai#i at 475, 106 P.3d at
1119. Accordingly, we vacate the portion of the order
prohibiting the parties from releasing CPA records.
V. Conclusion
For the foregoing reasons, we vacate the family court’s
August 25, 2017 Order, effective forty-five days following the
filing of the judgment on appeal, and the case is remanded to the
14
Further, part B of the order prohibits disclosure of “information
that “will be submitted to the court relating to the subject children[.]”
This prohibition is unclear and, accordingly, provides an additional basis for
invalidating the order. See Wahba, 106 Hawai#i at 475-76, 106 P.3d at 1118-19
(“Because a restraining order is an extraordinary writ, subject to contempt
for failure to comply, it must be set out in specific terms”) (citations
omitted).
23
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
family court for further proceedings consistent with this
opinion.
Jeffrey E. Foster /s/ Mark E. Recktenwald
for appellants
/s/ Paula A. Nakayama
Ian T. Tsuda
for appellee /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
24