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### 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 p rovid es: 1
The c ourt shall keepa re cord of al l chi ld pr otect ive proce eding s und er th is ch apter . Wr ittenrepo rts, photo graph s, x- rays, or o ther informatio n tha t are submi tted to th e cou rt ma y be made avail able to ot her appro priat e per sons, who are n ot pa rties , onl y upo n an orderof t he co urt. The court may issue this orde r upon determinin g tha t suc h acc ess i s in the b est inter ests of th e chi ld orserv es so me ot her l egiti mate purpo se. As se t for th inrule s ado pted pursu ant t o cha pter 91 by th e dep artme nt ofhuma n ser vices and consi stent with appli cable laws , the depa rtmen t maydisc lose informatio n in the c ourt recor d wit hout orderof t he court , unl ess o therw ise o rdere d by the c ourt. HRS § 587A -40 ( Supp. 2016 ). 

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### 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

“‘Fam ily s uperv ision ’ mea ns th e leg al st atus in wh ich achil d’s 2 legal cust odianis w illin g andable , wit h the assi stanc e of a ser vice plan, to provi de th e chi ld wi th a safe famil y hom e.” HRS § 587A -4 (S upp. 2016) . Wh en DHS o r ano ther autho rizedagen cy ha s fam ily s uperv ision , it has t he du ty to monit or an d sup ervis e the chil dren and t he ch ildre n’s f amilymemb ers w ho ar e parti es to the CPA p rocee ding. HRS § 58 7A-15 (Sup p. 20 16). 

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### 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 ) pro vides , in relev ant p art: 3
All r eport s to the d epart ment conce rningchil d abu se or ne glect made purs uant to th is ch apter , as well as all r ecord s of such repor ts, a re co nfide ntial . Th e direc tor m ay ad opt r ules, purs uant to ch apter91, to provi de fo r the conf ident ialit y of repor ts an d rec ords and f or th e aut horiz ed di sclos ure o f rep orts and recor ds. Any p ersonwho inten tiona lly m akes an unaut horiz ed di sclos ure o f a r eport or r ecordof a repor t mad e to the d epart ment shall be g uiltyof a misde meano r. HAR § 17-1 601-4 prov ides, in r eleva nt pa rt: 4 (a) A ll re cords and informatio n sha ll be conf ident ial and u nauth orize d dis closu re orre-d isclo sure shall be a vio latio n. R ecord s sha ll no t be acces sible for publi c ins pecti on ex cept as pr ovide d by this chapt er. Discl osure of r ecord s sha ll be prov ided in ac corda nce with depar tment al pr ocedu res; provi ded, howev er, t hat when the r ecordcont ains informatio n tha t the pers on is no t aut horiz ed to rece ive, that informatio n sha ll not b e pro vided

. (b) R ecipi ents of co nfide ntial info rmati on sh all b e boundby t he same co nfide ntial ity r estri ction s as the depar tment and shall main tain confi denti alityand preve nt un autho rizedre-d isclo sure. 

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### 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

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### 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 pr ovide s, inrele vant part: 5 (b) R estra iningOrde r; No tice; Hear ing; Durat ion. A restr ainin g ord er ma y be grant ed wi thout noti ce to the adver se pa rty w hen i t cle arly appea rs fr om sp ecifi c (cont inued ...) 

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### 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

(...c ontin ued) 5 facts show n by affid avit or de clara tion or bythe verif ied c ompla int o r cro ss-co mplai nt th at immedia te relie f to the a pplic ant i s app ropri ate. Ever y restr ainin g ord er gr antedwith out n otice shal l be filedfort hwithin t he cl erk’s offi ce an d ent ered of recor d, sh all b e acc ompan ied b y an appro priat e appli catio n forfurt her r elief , sha ll be set for a promp t hea ring, and shall be s ervedfort hwithuponany partyor p artie s aff ectedby t he or der. It s hall conti nue i n eff ect u ntil furth er or der o f the cour t. Upon notic e to the p arty who o btain ed th e res train ing orderwith out n otice , the adve rse p arty may m ove t o advan ce th e hea ring.

. . . . (d) F orm a nd Sc ope o f Res train ing O rder. Eve ry restr ainin g ord er sh all s et fo rth t he re asons for its issua nce; shall be s pecif ic interm s; sh all d escri be in re asona ble d etail , andnot by re feren ce to the compl aint or ot her d ocume nt, t he ac t or acts sough t to be re strai ned; and i s bin ding only upon the p artie s to the a ction , the ir of ficer s, ag ents, serv ants, emplo yees, and attor neys, and upon those pers ons i n activ e con cert or pa rtici patio n wit h the m who rece ive actua l not ice o f the orde r by perso nal s ervic e or other wise. 

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### 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:

Every thingthat we d o in these type of c ases are i n the b est i ntere st orshou ld be in t he be st in teres t of child ren. That ’s pa ramou nt inever ythin g. And so the Court ’s or der t oday is inthe best inter est o f the child ren. Of t hese child ren. Thes e thr ee ch ildre n, one w ho ha s unf ortun atelypass ed aw ay. The C ourt will grant the -- I’ m sor ry, w ill s ustai n the o bject ion i n par t as follo ws. The C ourt order



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will be mo difie d to say a s fol lows, and the C ourt reall y is track ing 5 87A-4 0. A ll ofthes e pro ceedi ngs are c onfid entia l. And so the Court will orde r tha t all r ecord s of these proc eedin gs, t hese prote ctive proce eding s, sh all b e kep t con fiden tial. Wri tten repor ts, p hotog raphs , X-r ays, or ot her i nform ation that are s ubmit ted t o the Cour t wil l onl y be made avail able to th e Par ties in th is ca se. And n ot an yone else unles s the re is an a pprop riate moti on orrequ est or st ipula tion submi tted to th e Cou rt. The C ourt makes this orde r tha t acc ess t o the se re cords or prohi bitin g acc ess t o the se re cords is i n the best inter est o f the chil dren invol ved i n thi s cas e. Unfor tunat ely t he Co urt d oes n ot ha ve an y fur ther informatio n on why t he gu ardia n ad litem ’s names o r name, or t he so cial worke rs’ n ames on wh y tha t wou ld be de trime ntal to th e bes t int erest of t hese child ren. Certa inly the g uardi an adlite m, orthe paren ts’ attor neys, or D HS ma y submit amoti on ifther e is any conce rn an d we’ ll de al wi th it at t hat t ime. But at this point it d oesn’ t hav e suf ficie nt in forma tion. Final ly -- but with regar ds to the child ren t hat a re the s ubjec t, th e rem ainin g two chil dren, I ha ve to find that it’s in th eir b est i ntere st th at th eir n ames not b e dis close d onl y bec ause there is apend ing c ase. I’m c oncer ned a bout the i mpact that it m ay ha ve up on these two child ren i f the ir names w ere d isclo sed. But certa inly that wouldn’t p reclu de th e par ents, if t hey wish to, t o tal k abo ut “w e hav e two othe r chi ldren .” But j ust t he names, for t heir prote ction , sho uld n ot be di sclos ed. So th at wo uld b e the orde r 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”):
Findi ng ofFact /Conc lusio ns ofLaw:

1. This is a proce edingunde r Cha pter 587A, Hawa ii


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Revis ed St atute s. 2. It is in t he be st in teres t of child ren a nd th eir famil ies t hat C hapte r 587 A pro ceedi ngs a re ke pt confi denti al[.] 3. “The court shal l kee p a r ecordof a ll ch ild prote ctive proc eedin gs un der t his c hapte r. Writt en re ports , pho togra phs, x-ray s, orothe r informatio n tha t are subm ittedto t he co urt m ay be ma de av ailab le to othe r app ropri ate p erson s, who a re no t par ties, onlyuponan o rder of th e court .” H awaii Revi sed S tatut es §5 87A-4 0. 4. The i mposi tion of a prote ctive orde r, en surin g that all p artie s comply w ith § 587A- 40 is grant ed. Pursu ant t o §58 7A-40 , the Cour t wil l consi der r eleas ing i nform ationabou t thi s cas e to no n-par ties, if t here is a showi ng th at th e relea se ofsaidinfo rmati on is eith er inthe best inter ests of th e chi ld orserv es so me ot her legit imate purp ose. NOW, THERE FORE, IT I S HEREBY O RDERE D as follo ws: A. ALL PARTIE S in this case are h ereby prohi bitedand restr ainedfromrele asing , discl osing , dis semin ating , and broad casti ng wr ittenrepo rts, photo graph s, x-ray s, orothe r inf ormat ion t hat h ave been or wi ll be subm ittedto t he co urt relat ing t o the subj ect c hildr en an d thi s court case to t he ge neral publ ic wi thout priorcour t aut horiz ation , pur suant to H RS §587A -40.
B. ALL PARTIE S in this case are h ereby prohi bitedand restr ainedfromdisc losin g the n ames of th e two chil dren still in foste r cus tody to th e gen eral publi c, inclu ding but n ot li mitedto t he me dia, socia l med ia orinte rnet posti ngs. 

### 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.

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### 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)).

Wheth er sp eech is pr otect ed bythe first amen dment [to the U nitedStat es Co nstit ution ], as appl ied t o the

Becau se we vaca te th e Ord er, w e do not a ddres s Par ents’ chal lenge 6 to HR S § 5 87A-4 0. 

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state s thr ough the due pr ocess clau se ofthe fourt eenthamen dment , is a que stionof l aw wh ich i s freel y rev iewab le onappe al. Corre lativ ely, [o]ur custo mary defer ence to th e tri al co urt u pon essen tiall y a f actua l que stionis qualif ied b y our duty to re view the e viden ce ou rselv es incase s invol ving a pos sible infr ingem ent u pon t he const ituti onal right of f ree e xpres sion. 

### 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 r eliefgran ted b y a c ourt [in] equit y is discr etion ary a nd wi ll no t be overt urnedon r eview unles s the [cir cuit] cour t abu sed i ts di scret ion b y issui ng a decis ion t hat c learl y exc eeds the b ounds of reaso n or disre garde d rul es orprin ciple s of law o r pract ice t o the subs tanti al de trime nt ofthe appel lant. 

### Pelosi v. Wailea Ranch Estates, 91 Hawai # i 478, 487, 985 P.2d 1045, 1054 (1999) (internal quotations omitted).

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### 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

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### 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

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### 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 Ba rnardv. S tate of Ha wai # i, No . 05- 00599 SPK- LEK, 2007 WL 7 95430 3,(D. Haw. Mar. 27, 2007) , the Unit ed St ates Distr ict C ourt for t he Distr ict o f Haw ai # i not ed th at th e Uni ted S tates Supr eme C ourt chara cteri zed a state ’s in teres t in prote ctinginfo rmati on ab out c hild abuse as c ompel ling. Id. a t *4 (citi ng Ri tchie , 480 U.S. at 6 0). 

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To al low f ull d isclo sure to de fense coun sel i n thi s type of ca se wo uld s acrif ice u nnece ssari ly th e Commo nweal th’s compe llinginte rest in pr otect ing i ts child -abus e inf ormat ion. If t he CY S rec ords were made avail able to de fenda nts, even throu gh co unsel , it couldhave a se rious ly adverse effe ct on Penns ylvan ia’s effor ts to unco ver a nd tr eat a buse. Childabus e is one o f the most diff icult crim es to detec t andpros ecute , in large part beca use t here oftenare no wi tness es ex cept the v ictim . A child 's feeli ngs o f vul nerab ilityand guilt and his o r her unwil lingn ess t o com e for ward are p artic ularl y acu te when the a buseris apare nt. It th erefo re is essen tial that the c hild have a sta te-de signa ted perso n to whom he ma y tur n, an d to do so withthe assur ance of co nfide ntial ity. Rela tives and neighbors who s uspec t abu se al so wi ll be more will ing t o com e forwa rd iftheyknowthat thei r ide ntiti es wi ll be prote cted. Rec ogniz ing t his, the C ommon wealt h—lik e all o ther State s—has made a co mmend able effor t to assur e vic tims and w itnes ses t hat t hey m ay sp eak t o the C YS co unsel ors w ithou t fea r of gener al di sclos ure. The C ommon wealt h’s p urpos e wou ld be frus trate d if this confi denti al ma teria l hadto b e dis close d[.] 

### 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 P eseti cour t, innot allow ing f ull d isclo sure, indi catedthat 8 the d efend ant’s due proce ss ri ghts to a fair trial were prot ectedbeca use t he famil y cou rt co nduct ed anin c amerarevi ew ofthe compl ainan t’s C PS fi le an d there afterproduced redac ted r eleva nt po rtion s of the f ile t o the defe ndant
. Id. a t 187 , 65 P.3d at 13 4.



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### 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).

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### 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

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### 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 as sessi ng Pa rents ’ Fir st Am endme nt ri ghts, we n ote t hat t his i s 9 a cas e in whicha ch ild h as di ed wh ile i n fos ter c are. Stat e sta tutes whic h provi de fo r rev iew o f chi ld de aths that occurin s tate custo dy de monst rate that Hawai # i has an i ntere st inensu ring accou ntabi lity in th e fos ter c are syste m. S ee HR S § 3 21-34 1 (Su pp. 2 016)( provi ding that the D epart ment of Healt h (DO H) ma y con duct multi disci plina ry an d mul tiage ncy r eview s of child death s); H RS § 321-3 45.5 (Supp . 201 6) (r equir ing t he DO H to submi t an annua l writt en re port to th e leg islat ure o n the stat us ofchil d dea th re views condu cted by th e dep artme nt, a nd th e rep ort must i nclud e the numb er of child ren i n sta te cu stodyand the c ause of th ose d eaths ). 

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### 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. 1 0



### 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 DH S ele cts n ot to file a re quest for a res train t on reman d, it 10 shall imme diate ly no tify the f amilycour t, wh ich s hall forth with resci nd th e Order
. 

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### 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, 1 1 

### 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 re cogni ze th at so me ca ses m ay re quire less deta iled, spec ific 11 factu al fi nding s tha t the chil dren wouldsuff er ha rm fr om di sclos ure o f the ir names , forinst ance, in c ases invol ving alleg ation s of sexua l abu se. See, e.g., In r e J.S ., 26 7 Ill .App. 3d 14 5, 15 0, 64 0 N.E .2d 1 379, 1383 (1994 ) (hold ing t hat t he co urt d id no t nee d to make speci fic f indin gs th at di sclos ure of co nfide ntial info rmati on wo uld c ause a chi ld ha rm be fore enter ing a nondi sclos ure o rder in a case where the mothe r hadphys icall y abu sed t he mi nor for t he pu rpose of a ttemp ting to pr ove t hat t he fa ther sexua lly a busedthe minor ). 

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### 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,

1 2 

### 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 1 3 

### for Parents argued that the State did not submit evidence that

HRS § 571- 8.5(a )(10) prov ides: 12 (a) T he di stric t fam ily j udges may:

. . . . (10) Make and a ward judgm ents, decr ees, order s, an d manda tes, issue exec ution s andothe r pro cesse s, an d do otheracts and take otherstep s as may b e nec essar y to carryinto full effe ct th e pow ers t hat a re orshal l be givento t hem b y lawor f or th e pro motio n of justi ce in ma tters pend ing b efore them [.]

We no te th at th e Ord er’s failu re to set forththe reaso ns fo r its 13 issua nce p rovid es anaddi tiona l bas is fo r vac atingthe Order . InWahb a, th is court inva lidat ed a restr ainin g ord er th at fa iled to st ate t he re asons for its issua nce a nd th e fac tual basis that woul d sup port the e njoinment. 106 Hawa i # i at 47 6, 10 6 P.3 d at 1119. We expla ined, “Bec ause a res train ing o rder is an extra ordin ary w rit, subje ct to cont empt for f ailur e to compl y, it must be s et out i n spe cificterm s.” Id. a t 475 -76, 106 P .3d a t 111 8-19 (cita tions omitt ed). Beca use t he or der f ailedto s tate the r eason s forits issua nce, the injun ction“acc ordin gly w as pr ocedu rallydefe ctive , andthus , voi d.” Id. a t 476, 106 P .3d a t 111 8-19. Her e, si milar ly, t he family court ’s Or der d id no t set f orth the f actua l bas is ofthe Orderor s uffic ientl y sta te th e rea sons for the O rder’ s iss uance , andacco rding ly, i s pro cedur ally defec tive. See id. 

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### 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 1 4 

### 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

Furth er, p art Bof t he or der p rohib its d isclo sure of “i nform ation 14 that “will be s ubmit ted t o the cour t rel atingto t he su bject chil dren[ .]” This prohi bitio n is uncle ar an d, ac cordi ngly, prov ides an ad ditio nal b asis for inval idati ng th e ord er. See W ahba, 106 Hawai # i at 475-7 6, 10 6 P.3 d at 1118- 19 (“Bec ause a res train ing o rder is anextr aordi nary writ, subj ect t o con tempt for f ailur e to compl y, it must be s et ou t in speci fic t erms” ) (ci tatio ns omitt ed). 

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### 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

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