Foster kids sue Hawaii, abusers

By Jim Dooley

Children who were abused by state-approved caregivers in a Wai'anae "House of Torture" have sued the state Department of Human Services and their victimizers.

The Circuit Court lawsuit was filed on behalf of three minor children who were repeatedly assaulted when in the care of Rita Makekau and Gabriel and Barbara Kalama.

The lawsuit alleges the state "acted negligently" when it approved the Kalamas as legal guardians.

The state also failed to monitor and oversee the condition of the children after they were placed in the Kalamas' care, the suit charged.

Toni Schwartz, spokeswoman for DHS director Lillian Koller, said the department had not yet received a copy of the lawsuit and could not comment.

DHS officials have previously said that once the Kalamas became legal guardians of the children, the state was no longer involved in their oversight.

In previous lawsuits involving child abuse, the state has denied liability if the victim was not in state custody when the abuse took place.

But in a ruling last year, the Hawai'i Supreme Court said the DHS has a duty to protect a child when given notice that the child has been a victim of abuse.

Last year, Koller strongly criticized the 2008 high court ruling and predicted that it would expose the state to costly legal claims.

"In effect, this decision means that whenever there is a bad outcome for a child ... the state will be held liable," Koller said. "While making the state pay as a 'deep pocket' is one way to get compensation for an injured child, it is unfair to Hawai'i's taxpayers and it is exasperating for our social workers, whose conduct may be condemned no matter what they do."

Rita Makekau, 58, began serving a five-year prison sentence in January after she pleaded no contest to eight counts of assaulting the children. The Kalamas — Makekau's daughter and son-in-law — were convicted of multiple charges of abuse, child endangerment and assault and were sentenced to a year in prison and five years of probation.

The criminal case involved five children. The lawsuit was filed on behalf of three minor children; two of the victims are now adults.

The lawsuit names the Kalamas and Makekau as defendants, as well as Makekau's husband, Allen R. Makekau, who was never charged in the criminal proceedings.

On numerous occasions between September 2000 and February 2005, the children were "physically, sexually and psychologically assaulted and abused by the Kalamas and Makekaus," the suit said.

'criminal histories'

The suit alleges that from 1996 to 1999, the five children were removed from their mother's custody by DHS, placed in foster homes and then moved back home with their mother.

In July 1999, the children were permanently removed from their mother's custody and placed a month later in the care of the Makekaus, according to the suit. The children are nieces and nephews of the Makekaus.

In late September 1999, DHS removed the children from the Makekaus' home after officials "became aware that they had criminal histories which rendered them unsuitable to be foster parents," the suit alleged.

In July 2000, the children were transferred to the custody of the Kalamas after DHS approved the couple as legal guardians.

This arrangement was approved despite the fact that DHS personnel "knew full well" that the Makekaus were "a part of the Kalama nuclear family and that the Makekaus would be involved in the care and custody of the (children) on a regular and continuing basis," the suit alleged.

sex assault alleged

The lawsuit also leveled new allegations that one or more of the children was sexually assaulted by their state-approved caregivers.

State records show that Allen Makekau, 70, was convicted of having sex with an underage girl in 1953 but was pardoned for that offense by Gov. Ben Cayetano on Dec. 2, 2002.

Allen Makekau was 19 years old at the time of the the conviction, which was classified as a misdemeanor. He was sentenced to a year of probation, according to court files.

Cayetano's pardon of Makekau, granted just before he left office, also covered several other misdemeanor offenses Makekau committed in 1953 and 1984. Cayetano said yesterday he had no recollection of granting the pardon to Makekau.

Allen Makekau could not be reached for comment.

Attorney Dennis Potts filed the lawsuit on behalf of the three children. He would not say how many of the children were sexually abused or by whom.

"Because of the unusual nature of the case, there is more investigation to be done. Our access to the minors is somewhat limited since they remain in foster care," Potts said.

He said there is "a possibility" that criminal charges of sex assault may still be pursued in the case.

During the criminal proceedings against the Kalamas and Makekau, Deputy Prosecutor Lori Wada said, "Life was torture for the children."

Makekau struck the children in the mouths with a hammer, breaking and chipping their teeth, according to court files.

Makekau also struck the children on their heads with a wooden spoon and a knife, causing "cuts, bleeding and scarring," Wada said.

One boy was forced to sleep under the house "with the dogs," according to court files.

"No child should have to endure the cruelties that these children did," Wada said.

"The children were never taken to a doctor or a dentist until they were finally removed from the house" by the state, the prosecutor said.

According to court files, the Kalamas and Rita Makekau sometimes fed the children dog food sprinkled with hot sauce. Sometimes they were fed leftovers from meals eaten by the Kalamas and their own five children.

Rita Makekau, who prosecutors called "the worst offender" in the abuse case, is appealing her conviction on grounds that as a Native Hawaiian she is not subject to the authority of state courts.

During her trial, Makekau served as "Royal Minister of Foreign Affairs" for a sovereignty group called Hawaiian Kingdom Government.

The lawsuit did not specify the amount of damages being sought, but is seeking triple damages because the children suffered permanent "physical and emotional injuries" and because the conduct of the Kalamas and Makekaus was "aggravated, malicious and willful."

Reach Jim Dooley at jdooley@honoluluadvertiser.com.