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Monday, April 28, 2003



Children’s legal
aide becomes
a foster dad

The case raises fresh concerns
about the child welfare system

One family's ordeal


A court-appointed advocate, who was a prime mover behind the state's efforts to remove two Waianae boys from their family, has become the children's foster parent, in an unusual move that has raised questions about conflicts of interest and fairness in the state Family Court system.

Last year, the Department of Human Services placed Joe and Angela Valdez's 6- and 7-year-old sons under the foster care of local attorney Thomas Haia after Haia persuaded the state to revoke the Valdezes' parental rights.

Family law experts say the apparent conflict of interest is not only unprecedented, but raises questions about Haia's handling of the case. But Hawaii court officials say his actions were legal and properly handled.

The case also has become a key example in the legislative debate pitting advocates of parental rights against the state's Child Protective Services system, which looks after the interests of 4,800 children in foster care each year.

Haia, 43, declined comment for this story, saying it involved confidential court matters. In court documents reviewed by the Star-Bulletin, Haia said his actions were in the children's best interests and that the boys would be harmed if they were returned to their parents.

Colleagues also said Haia received an opinion from the state Office of Disciplinary Counsel that said he could serve as the boys' foster parent after he resigned from their case.

Haia was appointed by the Family Court in 1999 to look after the boys' interests as their advocate, or guardian ad litem, after CPS workers charged the parents with neglect and took them under foster custody. He stepped down from the post in January 2001 but continues as the boys' foster parent.

While complaints about Hawaii's CPS system usually involve the outcomes of custody decisions, the Valdezes said their grievance is as much about the process by which they lost their children.

"How do we win something when everyone is against us and never gave us a chance?" Angela Valdez said in a May 2001 letter to the court. "We all have faults and fall short of the glory of God. But if no one listens to us or gives us a chance to prove ourselves, then all of the changes we made and all the schooling has been for nothing."

Last year, Joe Valdez's attorney, Jeffry Buchli, petitioned Family Court Judge Marilyn Carlsmith to set aside all custody orders, saying Haia's conflict of interest tainted the entire proceedings.

In closed proceedings, Buchli said Haia advocated that the state revoke his client's parental rights after the state concluded in June 2001 that the parents posed no risk of abuse and reunited them with their children.

"The appearance of impropriety by the children's former guardian ad litem has tainted the whole permanent-custody trial like the fruit from a poisonous tree," Buchli told the court.

Carlsmith denied Buchli's request last June, saying she had "every confidence" that Haia did "what was correct." The state Supreme Court dismissed an appeal by the parents one month later after refusing to consider the circumstances of Haia's potential conflict.

Lillian Koller, DHS director, and Deputy Attorney General Susan Brandon, who represented the DHS, declined comment on the case, citing confidentiality rules.

In closed-court proceedings, Brandon defended Haia's actions, saying they are legal because he withdrew before a conflict arose. According to Brandon, Haia's findings and recommendations were part of a large body of evidence showing that the parents should not have custody of their children.

"Mr. Haia did the right thing. He withdrew," Brandon said. "At least one court has found that it's not unusual for a guardian ad litem to have a relationship with the children such that they might want to subsequently foster them."

In Hawaii, guardians ad litem have served as foster parents for children they did not represent in custody proceedings.

Family law experts contacted by the Star-Bulletin said they are unaware of any case in the United States in which a guardian became the foster parent to children whom he helped remove from their family.

David Mitchell, executive director of the Reno, Nev.-based National Council of Juvenile and Family Court Judges, said that such a case would raise the appearance of a conflict of interest since the guardian played a role in the children's removal.

"The parents, of course, who have been divested of custody, are going to be suspicious of the situation," said Mitchell, a former family court judge in Baltimore. "Just on the surface, you see potential problems, and you want to investigate further."

Marvin Ventrell, executive director of the Denver-based National Association of Counsel for Children, said the scenario is analogous to a judge becoming a foster parent in a case in which he presided.

In theory, a guardian could set things up in court in a way that would give him an inside track on custody rights, said Ventrell, whose organization includes more than 2,000 attorneys and children's advocates.

"This is highly unusual, in my experience. I have never heard of a guardian ad litem who recommended taking custody away from a parent and ended up with custody," Ventrell said. "It's always going to raise a red flag in my mind."

State Rep. Michael Kahikina, chairman of the House Human Services and Housing Committee, said that it is a blatant conflict of interest for the guardian to be awarded foster custody of the Valdez kids.

"There's definitely something going on that we need to investigate," Kahikina said.

Brandon disagreed.

"(The) whole purpose of (the) appearance-of-impropriety law is to protect the judicial system from misunderstanding by the public. This is not a public proceeding. It's a private proceeding," Brandon said. "(How) can there be the appearance of impropriety in a confidential proceeding?"

For Angela Valdez, the decision to award foster custody to Haia shows how she and her husband were trapped in a hopeless battle once her family entered the state's CPS system.

"We are trying our very best, but no matter how good we do or try to do, in Mr. Haia's opinion, there are no significant changes, no progress whatsoever," she said. "They never gave us a chance."


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One family’s long,
labyrinthine ordeal


For the Department of Human Services, the Valdez family represented a difficult case.

What began as an anonymous complaint to the department's Child Protective Services division in September 1999 evolved into a lengthy ordeal involving three social workers, more than a dozen Family Court dates before six different judges and an appeal before the state Supreme Court.

Here is a synopsis based on a Star-Bulletin review of more than 2,000 pages of documents:

September 1999: CPS opened an investigation after receiving an anonymous allegation that Joe Valdez physically abused one of his stepsons. CPS workers later discovered that Valdez was convicted of misdemeanor spouse abuse. The mother, Angela Valdez, admitted that she had smoked marijuana for several years.

October 1999: After finding evidence of child neglect and unsafe living conditions, CPS workers placed the Valdezes' 6- and 7-year-old sons and three of Angela Valdez's older children from a previous marriage in temporary foster custody. They ordered the Valdezes to take part in substance-abuse treatment, anger management classes, psychological counseling and parenting courses as a condition of the children's return.

June 2001: After the Valdezes completed the required counseling and therapy, CPS returned the young boys to their parents, saying the parents made "positive progress" and posed no threat.

November 2001: The state reversed itself by filing a petition in Family Court to revoke the Valdezes' parental rights permanently. CPS workers faulted the parents after one of Angela Valdez's three older children, a 14-year-old son, accidentally hit his 12-year-old sister in the leg with a pickax during a weekend visit that August.

According to CPS, Angela Valdez was negligent because her daughter's leg became infected after she failed to take her in for a checkup the week of Aug. 13. Angela Valdez said she took her daughter for a checkup on Aug. 16. The girl had been with her foster parents until that day, she said.

The state's about-face also came after the children's court-appointed guardian ad litem, Thomas Haia, confronted the DHS about the children's return in a June 14 letter, saying the parents "pose a threat of harm." Haia told the Family Court that he and the family's therapists had concerns that the couple did not learn much from their counseling.

On Nov. 16, Family Court Judge Marilyn Carlsmith granted permanent custody of the Valdez boys to the DHS.

December 2001: The Valdezes filed a notice of appeal with the state Supreme Court.

January 2002: Haia withdrew as the Valdez boys' guardian ad litem, citing an undisclosed conflict of interest.

April 2002: The Valdezes discovered that Haia has been appointed the boys' foster parent.

August 2002: The State Supreme Court denied the parents' appeal.

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