Legislature(1999 - 2000)
02/23/2000 01:50 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 259
"An Act relating to a parent's eligibility to be
represented by the public defender before and during
the probable cause and temporary placement hearing that
is held after the state takes emergency custody of a
child."
REPRESENTATIVE JOHN COGHILL testified in support of HB 259.
He explained that HB 259 is the result of a meeting with
agency representatives in Fairbanks, last spring. He noted
that concerns were expressed that some persons are unable to
obtain legal representation for the 48-hour child in need of
assistance (CINA) hearing. The Division of Family and Youth
Services is required to hold a CINA hearing within 48 hours
after a child is taken into custody. The ability to receive
services from the Alaska Public Defender Agency is not
uniform across the state. The legislation would provide for
representation. Provision would be made for indigent
determination or pro-rated pay back for services.
BLAIR MCCUNE, PUBLIC DEFENDER'S OFFICE testified via
teleconference in support of HB 259. He observed that the
legislation would allow the Agency to start their work on
CINA cases earlier. He stressed the importance of the
language "may be represented, pending a determination of
indigency" on page 1, line 7. He explained that the Agency
must be careful not to enter a situation were a conflict of
interest exists. The Alaska Public Defender Agency would
want to take the more serious case if multiple charges were
involved. He did not anticipate additional costs with the
legislation.
Vice Chair Bunde noted that the language is permissive. He
questioned if the Alaska Public Defender Agency would be
liable if they were unable to immediately respond to a case,
due to their caseload. Mr. McCune noted that they would not
be liable and added that the Agency is required to represent
zealously and competently when they begin working on a case.
He expressed confidence that cases would be well represented
and stated that his concern is with possible conflicts of
interest that could arise when a more serious charge is
involved in the same case. The Alaska Public Defender Agency
has not had sufficient funding for staff to be on-call. Vice
Chair Bunde clarified that his concern would be that the
Agency not be in violation if they did not having an
attorney available to respond to a case.
HARRY NIEHAUS, GUARDIANS OF FAMILY RIGHTS, NORTH POLE
testified via teleconference. He observed that page 1, line
6 refers to a "person who is the natural or adoptive
parent." He questioned why legal guardian was not included.
He stressed the need to include guardians in the
legislation. He referred to legislation that would allow a
continuance in cases where a public defender is not
available.
Representative Coghill noted that the question of a
continuance would be addressed in other legislation and felt
that it was out of the scope of HB 259. Parents can ask for
a continuance under current law. He indicated that he would
be willing to consider the addition of guardians.
MARCI SCHMIDT, MATSU testified via teleconference in support
of HB 259. She emphasized that it is crucial for parents in
CINA hearings to have representation. She maintained that
many parents do not receive representation because they do
not know that it is available. She noted that there are not
sufficient private attorneys available to take on CINA
cases.
Vice Chair Bunde questioned if the House Judiciary Committee
discussed guardians or the need to broaden the legislation
to cover those with temporary custody of children.
Representative Coghill responded that the addition of
guardians or those with temporary custody was not discussed
in the House Judiciary Committee.
Mr. McCune observed the state statute does not contain
specific language, but refers to court rules: "an indigent
person who is under formal charge of having committed a
serious crime, or if entitled to representation under the
Supreme Court delinquency or child in need of aid rules". He
observed that there can be problems relating to the addition
of guardians because there can be temporary guardianship
where a parent is out of town in addition to legal
guardians. Temporary guardians may not be included under the
rules. He did not have a suggestion for language to add long
term guardianship.
Representative Austerman noted that the Administration does
not have a policy relating to guardians and theorized that,
if there were a problem, there would be a policy. Mr. McCune
explained that the court system decides that a child should
be represented and appoints the Alaska Public Defender
Agency to represent them. He did not think that the Agency
should be in the situation of representing short-term
guardians.
Vice Chair Bunde questioned if there is a legal definition
of "legal guardian" as opposed to a short-term guardian such
as a baby sitter.
Representative Austerman spoke in support of the
legislation. He suggested that the issue be researched.
Mr. Niehaus clarified that his concern is in regards to long
term guardians and noted that the issue is addressed in
Court Rule 22.
HB 259 was heard and HELD in Committee for further
consideration.
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