§571-41 Procedure in children's cases. (a) Cases of children in proceedings under section 571-11(1) and (2) shall be heard by the court separate from hearings of adult cases and without a jury. Stenographic notes or mechanical recordings shall be required as in other civil cases in the circuit courts, unless the parties waive the right of such record or the court so orders. The hearings may be conducted in an informal manner and may be adjourned from time to time.

(b) Except as provided in section 571-84.6, the general public shall be excluded and only such persons admitted whose presence is requested by the parent or guardian or as the judge or district family judge finds to have a direct interest in the case, from the standpoint of the best interests of the child involved, or in the work of the court; provided that:

(1) Upon request by a party, hearings initiated pursuant to chapter 587A may be opened to the public if a judge determines that doing so would be in the best interests of the child;

(2) Parties involved in hearings initiated pursuant to chapter 587A shall be allowed to be accompanied by an adult advocate to provide support, unless the court finds that the presence of the advocate would not be in the best interests of the child. The advocate need not be a licensed attorney. The State shall not be required to pay, directly or through reimbursement, for any fees, costs, or expenses related to the advocate. No person shall act as an advocate who has an interest in the matter beyond the protection of the child and the healing and rehabilitation of the family; and

(3) The victim of the alleged violation and all other witnesses who are younger than eighteen years of age shall be entitled to have parents, guardians, or one other adult and may have an attorney present while testifying at or otherwise attending a hearing initiated pursuant to section 571-11(1) or 571-11(2).

Prior to the start of a hearing, the parents, guardian, or legal custodian, and, when appropriate, the child, the child victim, or witness shall be notified of the right to be represented by counsel and the right to remain silent.

(c) Findings of fact by the judge or district family judge of the validity of the allegations in the petition shall be based upon a preponderance of evidence admissible in the trial of civil cases except for petitions alleging the court's jurisdiction under section 571-11(1) which shall require proof beyond a reasonable doubt in accordance with rules of evidence applicable to criminal cases; provided that no child who is before the court under section 571-11(1) shall have admitted against the child any evidence in violation of the child's rights secured under the constitution of the United States or the State of Hawaii. In the discretion of the judge or district family judge the child may be excluded from the hearing at any time. When more than one child is alleged to have been involved in the same act, the hearing may be held jointly for the purpose of making a finding as to the allegations in the petition and then shall be heard separately for the purpose of disposition except in cases where the children involved have one common parent.

(d) In the disposition part of the hearing any relevant and material information, including information contained in a written report, study, or examination, and the results of a risk and needs assessment of the child conducted pursuant to section 571-45, shall be admissible, and may be relied upon to the extent of its probative value; provided that the maker of the written report, study, or examination shall be subject to both direct and cross-examination upon demand and when the maker is reasonably available. The disposition shall be based only upon the admitted evidence, and findings adverse to the child as to disputed issues of fact shall be based upon a preponderance of such evidence.

(e) Upon a final adverse disposition, if the parent or guardian is without counsel the court shall inform the parent or guardian of the parent's or guardian's right to appeal as provided for in section 571-54.

(f) The judge, or the senior judge if there is more than one, may by order confer concurrent jurisdiction on a district court created under chapter 604 to hear and dispose of cases of violation of traffic laws or ordinances by children, provision to the contrary in section 571-11 or elsewhere notwithstanding. The exercise of jurisdiction over children by district courts shall, nevertheless, be considered noncriminal in procedure and result in the same manner as though the matter had been adjudicated and disposed of by a family court. [L 1965, c 232, pt of §1; Supp, §333-19; HRS §571-41; am L 1973, c 211, §1(e) and c 219, §2; am L 1976, c 85, §9; am L 1980, c 262, §1; am L 1983, c 199, §1; gen ch 1985; am L 1997, c 317, §3; am L 2004, c 211, §1; am L 2010, c 135, §7; am L 2014, c 201, §13]

Rules of Court

Juvenile proceedings, see Hawaii Family Court Rules, part D.

Evidence; proof, see HFCR rule 143.

Findings by court, see HFCR rule 52.

Transcripts, see HFCR rule 80.

Case Notes

Preponderance of evidence standard applies only to adjudicatory and post-adjudicatory proceedings. 61 H. 48, 594 P.2d 1084 (1979).

Probation revocation hearing, procedural requirements. 62 H. 70, 610 P.2d 509 (1980).

Provision relating to admissibility of evidence at the dispositional phase of hearing is consistent with due process. 62 H. 70, 610 P.2d 509 (1980).

Right to counsel; waiver. 63 H. 162, 623 P.2d 86 (1981).

District court has concurrent jurisdiction with family court in DUI cases where defendant is a minor. 69 H. 455, 746 P.2d 82 (1987).

District court may not impose a sentence of imprisonment for a traffic offense. 70 H. 328, 770 P.2d 418 (1989).

Because subsection (c) lacks any express standards governing the exercise of the court's discretion to join cases or to account for situations where joinder may result in unfair prejudice to one of the minors, family court's use of HRPP rules 8, 13, and 14, in and of itself, did not conflict with subsection (c) and thus, was not reversible error. 79 H. 265 (App.), 900 P.2d 1332 (1995).