Parents who get caught up in Hawaii’s child welfare bureaucracy often feel like strangers intruding on a chummy club of lawyers, judges, state social workers and nonprofit service providers.
Even their own lawyers can seem to be part of this group, parents told me when I was reporting last year on the effectiveness of court-appointed attorneys. Parents come and go, but the child welfare professionals form relationships over years and decades.
Daniel Robinson was one such parent. He had to appear before a Family Court judge on the Big Island when his ex-wife sought a temporary restraining order alleging that he hit and pushed one of their children during an argument. The restraining order was thrown out by a different judge after an evidentiary hearing — but not until several anxious months later.
At first, Robinson believed he would get a fair shake. But after a number of hearings, his faith began to crumble. He felt that the the state and the court were colluding to trample on his rights.
Stewing about this at 1 a.m. and unable to sleep, he started doing research on some of the players, including the judge, Mahilani Hiatt.
It didn’t take long for him to come upon something troubling: Hiatt was on the board of directors of a nonprofit organization, Children’s Law Project of Hawaii, paid to provide guardians ad litem to the Family Court where Hiatt serves as a judge. GALs are appointed by the court to represent the interests of children in foster custody and other cases involving alleged abuse and neglect.
Hawaii’s code of judicial conduct states that judges can serve on the board of a nonprofit “unless it is likely that the organization or entity will be engaged in proceedings that would ordinarily come before the judge.”
Judges are also barred from serving on a board if the organization will often take part in “adversary proceedings in the court of which the judge is a member.” This could include GALs, who can find themselves opposed to parents or other parties in child welfare cases.
This rule applies even to part-time judges who fill in as needed, such as Hiatt.
No GAL had been appointed in Robinson’s case, but he feared that might happen. He reported the apparent conflict to the Hawaii Commission on Judicial Conduct, along with all the documentation, in mid-October. He heard nothing. Around that same time, he also filed a motion in Family Court pointing out the conflict.
He later got in touch with me and I asked the Judiciary about it earlier this month.
That’s when things started to happen. One day after my inquiry, Hiatt resigned as a board member. One day after that, Hiatt reported the situation to the judicial conduct commission, which is looking into it, according to a Judiciary spokeswoman.
The Judiciary says that before all this, Hiatt had been verbally disclosing her role at the nonprofit “to attorneys handling GAL cases.” But the Judiciary could not say if she did so to all parties in every case involving a GAL from the children’s law center.
Hiatt is now filing written disclosures in all cases involving the children’s law project, going back to her appointment as a part-time judge on Aug. 31, 2022. Hiatt will also disclose in writing in the future that she was once a member of the law project’s board.
State judicial codes, many of which like Hawaii’s are based on a national model, are meant to avoid the unfairness that might result from an actual conflict of interest. They also aim to avoid situations that look bad. Appearances matter.
Many judges are public-minded people who want to serve. But even being on the board of an uncontroversial organization such as domestic violence victim advocates or a police charity can look to a defendant like the judge is predisposed to take a certain position.
“We have these codes and remedies to assure the public is confident they get fair judges,” said David Sachar, director of the Center for Judicial Ethics, part of the National Center for State Courts.
When ethical breaches such as conflicts of interest do occur, there are two different remedies. One is for the state judicial conduct board to recommend action. Hawaii’s commission can ask the state Supreme Court to reprimand judges privately, admonish them, order professional counseling or impose other conditions on their conduct.
The other remedy is within individual cases. A party that learns of a conflict of interest can appeal on those grounds.
“Depending on the particulars, that can be the basis for a reversal,” said Randy Roth, a law professor emeritus at the University of Hawaii.
Roth and other legal ethics experts in Hawaii and on the mainland, when told of Hiatt’s situation, said it didn’t sound all that serious, necessarily.
Ethical lines can be fuzzy and depend on the particulars. And in a small, isolated state like Hawaii, Roth said, “conflicts of interest are a potential almost all of the time.”
Roth said it appears Hiatt took all the right steps after I asked the Judiciary about the conflict.
I respect the experts’ judgment. But the year or more I spent reporting on the child welfare system, and some aspects of this case, give me pause.
First off, there’s the question of the coziness of the various actors in child welfare cases. Despite his initial faith in the system, Robinson ended up feeling that the whole process was “too planned out, too orchestrated.”
“It’s like they’re feeding you through some sort of assembly line,” he said.
Because of the secrecy of Family Court, I cannot dissect particular situations that may have arisen in Judge Hiatt’s courtroom. But for the sake of argument, imagine that you are a parent wrongly accused of abuse or neglect. Imagine that the GAL has submitted a report to the judge arguing that your child should be taken away and put in foster care. Imagine you then find out that the same judge is on the board of directors of the nonprofit who provided the GAL, and that several other courtroom players are on that same board.
Not much of a stretch to suspect you’re being railroaded.
Next, let’s take a closer look at the Commission on Judicial Conduct, Hawaii’s watchdog.
The commission’s most recent annual report posted publicly on its website is for the 2020-21 fiscal year — already three years old.
The commission got 274 inquiries about judicial conduct over that fiscal year — but it deemed only seven worthy of investigation.
It dismissed all seven.
Considering the fact that Robinson found a potential conflict of interest when he couldn’t sleep one night, it’s a little hard to believe that no instance of judicial conduct over the course of a year warranted even a private reprimand or admonishment.
I also have to wonder what would have happened to Robinson’s complaint about Hiatt in October if Hiatt, after being asked about it this month, had not reported it herself.
I’ve written about Hiatt before. That case hinged on Family Court secrecy, which I think can go hand in glove with the chumminess — a cozy little circle taking care of business behind closed doors.
The case involved a Big Island woman, Deborah Goodwin, trying to adopt her grandson after the death of her daughter. For various dubious reasons, Goodwin was blocked from fostering or adopting the boy, who was placed in foster care and eventually adopted by the foster parents.
In 2019, I wrote a story about Goodwin’s frustrations. Three years later, Judge Hiatt ruled against her in the contested adoption case.
Among the reasons Hiatt cited were that Goodwin had spoken to Civil Beat about her case three years earlier. In addition, Goodwin had vowed to write a book about her case and had taken every possible legal step to gain custody of her grandchild.
While Goodwin had the right to do all of that, Hiatt wrote, her actions “appear to confirm that she is prone to put her own needs in front of” her grandson’s.
I admit that as a journalist I am close to an absolutist on the First Amendment. But it seemed to me that Goodwin’s willingness to do everything possible to reunite with her grandson, even if it crossed some confidentiality line, was hardly grounds to deny her.
Hiatt, though, seemed affronted that Goodwin had pierced the secrecy of Family Court. Yes, children have a right to privacy. But the secrecy can also be used to block the public from scrutinizing the actions of the child welfare bureaucracy.
Lastly, I would point out the growing public interest in judicial conduct, driven in part by the coverage of U.S. Supreme Court Justice Clarence Thomas’ many questionable gifts. Sachar, director of the judicial ethics center, said cases that years ago would have gone almost unnoticed now make headlines.
So maybe Hawaii’s court watchdog should take a closer look at some of those complaints. They can start with Hiatt.
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