Supreme Court overturns gag order in case of child who died in foster care

  • Three-year-old Fabian Garett-Garcia who died while in foster care. (Courtesy of Go Fund Me/Special to West Hawaii Today)

KAILUA-KONA — The Hawaii Supreme Court on Thursday overturned a Family Court’s ruling that prohibited the Kailua-Kona parents of a toddler boy, who died last year while in foster care, from speaking about the case.

Under the Family Court’s August 2017 gag order, 3-year-old Fabian Garett-Garcia’s parents were unable to speak publicly the names of their two surviving children, who were in foster care at the time, or publicly release reports or other information that “have or will” be submitted to the court relating to the case or the parents’ two surviving children.

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The parents appealed the ruling, with their attorney Jeffrey Foster, to the state’s high court.

“Over our objections, the State was allowed to impose a gag order prohibiting us from speaking even so much as the names of our surviving children to the ‘general public,’” the family said in a statement Thursday. “The order made it so that if we were to speak the names of our children in any public place or anywhere there were people, we faced the possibility of criminal prosecution.”

The family statement added, “Today, we were grateful and relieved to learn that the Hawaii Supreme Court ruled unanimously that the gag order imposed against us is in fact unconstitutional.”

Now, the family is awaiting results from the autopsy report to learn Fabian’s manner of death.

The Supreme Court ruled the Family Court failed to make the findings required to establish that the restriction against disclosing the children’s names could survive a First Amendment challenge and abused its discretion by prohibiting disclosure of records that have been 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,” according to the Supreme Court ruling released Thursday.

Fabian was pronounced dead July 25, 2017, at North Hawaii Community Hospital in Waimea. According to police, officers responded to a foster home in Waimea where the child was not breathing.

Hawaii Police Department Maj. Robert Wagner said at the time the foster parents gave police an indication of what happened to the toddler throughout the day. However, details of anyone’s statements are not being released due to the ongoing investigation.

The pathologist’s report, which the Hawaii Police Department said it received Feb. 22, determined Fabian’s cause of death to be “blunt force trauma to the head,” according to a media release. The manner of death was listed as “undetermined.”

On Thursday, Wagner said the case is being reviewed by a second doctor because the first doctor couldn’t determine a manner of death.

After their son’s death, his father Juben Garcia spoke to KHON2. The toddler’s mother, Sherri-Ann Garett wrote a post on Facebook. As a result, the court granted the state Department of Human Services’ request for a gag order until the case went before Family Court.

On Aug. 8, Family Court judge Aley Auna rescinded the gag order and replaced it with the restrictions of not allowing the parents to speak the names of their two surviving children in public or releasing reports relative to the case, including information that involved their two surviving children.

“We would like to express our gratitude and appreciation to the Hawaii Supreme Court justices who all ruled in our favor. Thank you for agreeing to hear our case and for promptly deciding in our favor after oral argument,” the family stated Thursday.

Looking forward, the family said it is hopeful that the autopsy is released and the investigation into Fabian’s death will be completed as soon as possible.

“We struggle every day not knowing what happened to our son,” the family said.

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Since the Hawaii Supreme Court’s ruling Thursday, the gag order will be lifted in 45 days and remanded back to Family Court for further proceedings consistent with the high court’s decision. This provides the Department of Human Services an opportunity to appeal the ruling.

Keopu Reelitz, spokeswoman for DHS, released the following statement: “The Department of Human Services is reviewing the Supreme Court decision with our counsel, the Attorney General’s Office. We will respond to the Court’s concerns when the case is remanded to Family Court.”

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