*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

 

In the Interest of FG, AG, PG

SCAP-17-0000639

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT

(CAAP-17-0000639; 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. 

Electronically Filed

Supreme Court

SCAP-17-0000639

28-JUN-2018

08:40 AM
*** 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, releasing reports or 1

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. 

HRS § 587A-40 provides: 1

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

supervision of Parents and their children, based on DHS’s 2

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

“‘Family supervision’ means the legal status in which a child’s 2

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 350-1.4 and Hawai#i

3

Administrative Rule (HAR) 17-1601-4, which provide for the 4

confidentiality of CPA and DHS records. DHS included with its

motion the declaration of a DHS social worker who declared that

HRS § 350-1.4 (Supp. 2016) provides, in relevant part: 3

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. 

HAR § 17-1601-4 provides, in relevant part: 4

(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 65 because the State did not submit evidence that 5

HFCR Rule 65 provides, in relevant part: 5

(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

(...continued) 5

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

Because we vacate the Order, we do not address Parents’ challenge 6

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). This court cited Ritchie with approval in State 7

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:

In Barnard v. State of Hawai#i, No. 05-00599 SPK-LEK, 2007 WL 7

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

The Peseti court, in not allowing full disclosure, indicated that 8

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

In assessing Parents’ First Amendment rights, we note that this is

9

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

If DHS elects not to file a request for a restraint on remand, it 10

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. See Levine, 11

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.

We recognize that some cases may require less detailed, specific 11

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). See In re Guardianship of Carlsmith, 113 Hawai#i 211, 12

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. At the hearing, counsel 13

for Parents argued that the State did not submit evidence that

HRS § 571-8.5(a)(10) provides: 12

(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[.]

We note that the Order’s failure to set forth the reasons for its 13

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. See Wahba, 106 Hawai#i at 475, 106 P.3d at 14

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

Further, part B of the order prohibits disclosure of “information 14

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 

for appellants

Ian T. Tsuda

for appellee

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

24