Legislature(2003 - 2004)
02/09/2004 01:39 PM Senate HES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 288-EMERGENCY CHILD CUSTODY PLACEMENT
MS. JACQUELINE TUPOU, staff to Senator Lyda Green, presented SB
288 on behalf of the sponsor. Current state law provides for
the court to determine, within 48 hours of [a child] being
removed from the home, that there is probable cause to remove
the child from the home; however, the [courts] can use varied
language when making that determination. Federal law states
that the judge, in his/her findings, has to use the phrase that
staying in the home is "contrary to the welfare" of the child.
If that doesn't occur, "we could have problems getting our
federal money from the government." This bill puts the system
in place so that the judge has to determine whether it is
contrary to the welfare of the child to remain in the home. It
is estimated that if this legislation passes, there will be
$500,000 in federal Title IV-E receipts in FY 05.
SENATOR GREEN moved the [proposed] CS [version D, labeled 23-
LS1567\D, Mischel, 2/5/04] for purposes of discussion.
CHAIR DYSON asked if there was any objection. There being none,
version D was before the committee as the working document.
SENATOR GREEN explained that the first word of the sentence on
the last line on page 1 [line 14], should be "At" instead of
"After".
MS. MARCIE KENNAI, Deputy Commissioner, Office of Children's
Services, DHSS, testified that SB 288 is very important
regarding federal Title IV-E dollars coming into the state. If
this language is not in the court order at the first hearing, a
child is not [Title] IV-E eligible. That affects the child's
eligibility for foster care and also for an adoption subsidy,
th
which means that a child could be "general fund through his 18
birthday." Another point is that the judge has the opportunity
at the very first hearing to tell parents "it is contrary to the
welfare of your child" if he/she stays at home at this time.
Aside from the positive revenue to be achieved from this, it
also gives a very clear message to the biological parents.
CHAIR DYSON stated, for the record, that he and his wife
currently do not have any foster children. However his three
children have four foster children today that involve a
subsidized guardianship, so it may be that his immediate family
receives funds under this.
SENATOR GUESS asked if the language was more or less stringent,
and wondered what the changes would be mean in court.
2:03 p.m.
DEPUTY COMMISSIONER KENNAI responded that she didn't think this
would change much for the court. If the first hearing is
continued and the judge has not made the finding that it is
contrary to the welfare of the child to remain in the home, this
automatically makes the child ineligible for [Title] IV-E
reimbursement. Hopefully judges are not removing children or
giving permission to remove children from the home unless it is
contrary to the welfare of the child to remain at home. She
said that the practice is already happening, but the federal
requirement is stringent about the language being included in
the very first court order.
CHAIR DYSON then referred to a publication he had worked on
several years ago advising parents of their rights and providing
information about the process; he asked if those efforts were
still being continued.
DEPUTY COMMISSIONER KENNAI confirmed this to be so.
CHAIR DYSON said this departmental effort was important because
a parent who loses a child needs to know what is going on and
what his/her rights are. He mentioned that in her former life
[Deputy Commissioner Kennai] probably worked with similar
statutes, and referred to page 1, lines [8 and] 9, "the child's
parents or guardian, if they can be found, shall be permitted to
be present." He said he reacted to the word, "permitted"
because of course the parents should be present. He considered
deleting "permitted" but then re-considered the situation of a
child who has been assaulted or traumatized by the birth parents
and asked, "What is the situation under which the parents might
not be permitted to be there. What process would the judge go
through to exclude the parents from being there?"
DEPUTY COMMISSIONER KENNAI responded, "I don't think there is
ever a case where the parents aren't permitted." She said
sometimes the parents cannot be found, are in jail, or are
unable to attend the hearing.
CHAIR DYSON asked, "And the child is normally not present?"
DEPUTY COMMISSIONER KENNAI said this depends on the child's age.
Children are generally present unless the child is too young, or
cannot understand.
CHAIR DYSON asked, "Who makes that decision?"
DEPUTY COMMISSIONER KENNAI said, "I believe our workers make
that decision."
CHAIR DYSON asked, "If the child was able to understand, and had
allegedly been assaulted by the parents, and it would be
traumatic for them to be confronted with their abuser, what
happens?"
DEPUTY COMMISSIONER KENNAI responded that sometimes the judge
sees the child in [the] chambers. Often the children can be
kept separated from the parents until it's time for the child to
go in, if the judge wants to see the child. Every situation is
different. Generally, if a parent has assaulted the child,
he/she is in custody. "Of course we will keep the child safe,"
she added.
CHAIR DYSON asked if deleting the word "permitted" would do any
harm to the statute.
SENATOR GREEN commented that this would imply that parents are
being required to be there because it would read, "shall be
present" and parents may not want to be present. She said this
requirement would set a different parameter, whereas current
statute implies that it's a choice. She said, "I don't even
know that you'd want a parent there if they didn't want to be
there."
MS. TUPOU informed members that it had been relayed anecdotally
that, sadly enough, most of the parents don't want or care to be
present. She pointed out that the desire was not to hinder the
process by requiring parents to be present.
CHAIR DYSON commented that it was probably the flavor of the
language. He said he preferred "shall be allowed to be there"
rather than "permitted" and said, "I am not going to mess with
it. I can assure you that most of the parents won't have looked
at the statute."
DEPUTY COMMISSIONER KENNAI said that when parents don't come,
that is often the reason why the judge continues the case;
that's when you don't get these "contrary to welfare" findings.
Most often, that has been the problem. At the first hearing the
parents may not show up and the court continues the case.
Unfortunately this means that if the judge has not very clearly
stated that it is contrary to the welfare of the child to remain
in that home, then the child is not eligible for [Title] IV-E
funds.
CHAIR DYSON asked if in her former life she ever had a parent
who thought that the state took custody when [the state] should
not have.
DEPUTY COMMISSIONER KENNAI said yes.
CHAIR DYSON said that interestingly enough he has not had a
single call like that since "you've been here," noting that he
didn't know if there was any cause and effect relationship.
DEPUTY COMMISSIONER KENNAI said she would like to think that
there was, but it is still [indisc.].
CHAIR DYSON asked how long she had been on the job.
DEPUTY COMMISSIONER KENNAI responded, "almost six months, not
quite."
CHAIR DYSON asked how many kids the state has taken custody of
during that period of time.
DEPUTY COMMISSIONER KENNAI said that since September, she
doesn't know; daily and yearly counts are maintained. She asked
for that data from [an unidentified person in the audience] who
also didn't know the answer.
CHAIR DYSON asked if there were any further questions or
comments. There being none, he said he would entertain a
motion.
SENATOR GREEN moved to report the CS for SB 288 out of committee
with individual recommendations and the accompanying fiscal
note.
CHAIR DYSON asked if there were any objections. Seeing and
hearing none, it was so ordered.
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