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State to go to trial
Buentipo is brain-damaged, the result of a violent shaking and beating by his "ice"-addicted mother, Kimberly Pada, on Labor Day weekend 1997.
A civil suit filed by the boy's estate against the state and city will go to trial March 14 over the injuries he received from his mother while in foster care and after the Family Court returned him to her.
Yesterday, Circuit Court Judge Victoria Marks denied the state's third request to dismiss the case, clearing the way for trial. Buentipo's case has led to changes in the way the state reunites abused children with their abusive parents.
Marks ruled yesterday that the state Department of Human Services had a "special relationship" with Buentipo and that it had a duty to ensure his safety while under its custody.
The state contends it acted reasonably under the circumstances. They argue that the plaintiffs' claims are barred under the doctrine of sovereign immunity and that the state can be sued only if a private individual would be liable for doing what the state did.
They argue that social workers who handled Buentipo's case and provided information that the Family Court relied on in deciding whether to reunite him with his mother were "an arm of the court" and were entitled to immunity as witnesses in judicial proceedings because they were doing what the court ordered them to do.
While the state does not dispute there was a special relationship, the state is only liable when it has custody of the child and control over his environment and individuals who might pose a danger, said deputy attorney general Howard Glickstein.
When Buentipo was born at Kapiolani Hospital on Aug. 14, 1993, a team concluded that Pada had a substance abuse problem and personality disorder and that any child in her care was at high risk of abuse or neglect. DHS took custody of Buentipo on Oct. 28, when he was still in the hospital.
Family Court ended its jurisdiction over him on July 2, 1997, after the DHS decided Pada was able to provide a safe home for her son.
From July 3, 1997, until Aug. 31, 1997, when Buentipo was brought to the emergency room, "The child and mother were not in the custody and control of the state, and there was no control over the environment, therefore the duty is missing," Glickstein said. "Without that special relationship, there is no duty."
Francis O'Brien, one of Buentipo's attorneys, disputed that everything was done by court order. "The court didn't order the department to give Reubyne back after multidisciplinary teams said not to give him back," O'Brien said.
There were up to five instances where DHS received reports that Pada had abused her son, but did not confirm it or follow up, he said. When the boy was no longer under Family Court supervision, there were at least two reports that he had been assaulted, O'Brien said. The last call came from Molokai on the Friday before Labor Day weekend 1997.
The caller said she had spoken to Buentipo's siblings, who were concerned their mother was using drugs again. Social workers on Molokai tried to contact Oahu officials but were unable to reach anyone, so a report was faxed to Oahu. Buentipo's social worker did not see the report until Sept. 2, 1997, the day after Labor Day.
The 4-year-old boy was unconscious when Pada took him to the Castle Medical Center emergency room on Aug. 31, 1997, when he lapsed into a coma.
Doctors noted that he had multiple bruises, cuts, wounds and cigarette burns all over his body. At her trial in February 1999, Pada admitted she had beaten her son about 10 times on Aug. 31, 1997. She was convicted of manslaughter and sentenced to a 20-year term.
Today, Buentipo remains in a vegetative state. The suit seeks damages that will allow him to be placed in a mainland facility to get the best care, said Collin "Marty" Fritz, another of Buentipo's attorneys.
The state is spending "hundreds of thousands of dollars" annually to care for Buentipo. It will likely cost millions of dollars to care for him for the rest of his life, Fritz said.
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