Legislature(1997 - 1998)
05/02/1998 09:35 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE BILL NO. 375 "An Act relating to children in need of aid matters and proceedings; relating to murder of children, criminally negligent homicide, kidnapping, criminal nonsupport, the crime of indecent exposure, and the crime of endangering the welfare of a child; relating to registration of certain sex offenders; relating to sentencing for certain crimes involving child victims; relating to the state medical examiner and reviews of child fatalities; relating to teacher certification and convictions of crimes involving child victims; relating to access, confidentiality, and release of certain information concerning the care of children, child abuse and neglect, and child fatalities; authorizing the Department of Health and Social Services to enter into an interstate compact concerning adoption and medical assistance for certain children with special needs; authorizing the establishment of a multidisciplinary child protection team to review reports of child abuse or neglect; relating to immunity from liability for certain state actions concerning matters involving child protection and fatality reviews and children in need of aid; relating to persons required to report suspected child abuse or neglect; relating to foster care placement and to payment for children in foster and other care and the waiver of certain foster care requirements; relating to the access to certain criminal justice information and licensure of certain child care facilities; amending Rule 218, Alaska Rules of Appellate Procedure; amending Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and providing for an effective date." REPRESENTATIVE FRED DYSON stated that the proposed version of HB 375 is a combination of months of effort undertaken in response to the Governors Child Protection Review Team. It is a step toward protecting children. Representative Dyson advised that the proposed legislation would not: ? Guarantee that the Division of Family and Youth Service (DFYS) workers would not make mistakes; ? Guarantee that Court hearings for DFYS to take custody of a child would be fair; ? Guarantee that each out-of-home child placement would be successful; ? Force DFYS to shape up, although, it would establish performance standards; ? Guarantee that parents will "get their acts together". Representative Dyson explained that if the legislation is passed, the State will have taken a large step in protecting children. He stressed that if this bill is not passed in some form, the following situations could occur: ? Some $10 million dollars in federal funds will be in jeopardy because new federal law requires states to come into conformity by the next legislative session; ? State confidentiality laws will continue to limit the necessary cooperation between state agencies; ? Courts will continue to have problems with our inadequate, confusing, and obsolete definitions in State law; ? We will not have changed the emphasis of our child protection laws in order to make the safety of the child paramount; ? We will not have set, in law, the standards for DFYS to place children into safe and permanent homes within a year; ? We will not have tightened our criminal law related to child murder and abuse; ? We will not have mandated that foster parents get the information that they need to care for the children in their charge; ? We will not have empowered DFYS to intervene before a child is killed or badly abused. Representative Dyson continued, the bill will: ? Increases penalties and closes loopholes that allow child-killers to get light sentences; ? Eliminates confidentiality barriers to inter- agency communications and cooperation and mandates cooperation and communication; ? Allows for earlier intervention in cases of child abuse and neglect when the child is in a dangerous home; ? Makes child protection the highest priority for DFYS, even higher than "family reunification" at the expense of child safety; ? Purports to meet the requirement of new federal law and should qualify Alaska to continue to receive approximately $10 million dollars in funding annually; ? Creates a statewide Child Fatality Review Team and facilities the formation of local multidisciplinary teams to coordinate the dealing with local child abuse cases; ? Provides for foster parents and other care givers to get all relevant information about the child in their care including criminal background, behavioral problems and medical history; ? Sets firm deadlines for proceedings and permanent placement; ? Clarifies definitions of vague terms that have troubled the courts and produced inconsistent protection of children; ? Provides for criminal checks for prospective caregivers. Co-Chair Therriault questioned what language was dropped through the Senate version. Representative Dyson noted the criminal penalty portions for crimes against children, as well as confidentiality concerns were addressed. Representative Kelly inquired which portion of the bill would remove the child from custody of the home "before" that the child was hurt. SUSAN G. WIBKER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, replied that there are parts in the jurisdictional section that address "harm to the child" and "conditions that place a child at substantial risk of harm". The language in the existing statute is "imminent and substantial risk of harm". The imminent was removed. The basis of that change resulted from an audit requested last September by Commissioner Perdue to be undertaken by the Kemp Center. That audit resulted from a report that a young girl in care had been sexually assaulted. The Kemp Center reviewed a random selection of state cases and then provided advice to the Department. One of the recommendations of the Kemp Center advised that the State laws were written to narrow and restrictive, and that social workers were handicapped in their ability to assess ongoing, high risk, and dangerous situations. The Kemp Center concluded that Alaska's laws were some of the most restrictive in all of the states, resulting in children being left in dangerous situations. The same recommendation was detected in a legislative audit done on DFYS. Ms. Wibker noted reference to that concern on Page 25, Section 47.10.011, Section (6) and (7), which interprets "substantial risk". Representative Kelly asked if there was a portion of the bill which referenced leaving a child in the custody of someone who poses a threat. Ms. Wibker noted that the bill places a requirement on the Department, as the first alternative, to determine if the child can be left safely with one of the parents. That reference is contained on Page 25, Lines 29-30, where the bill states that if you leave your child with a person who is a sex offender, the child is at substantial risk of sexual abuse. Representative Kelly asked for more concrete information regarding how the child would be at risk for "substantial" physical harm. He believed that was subjective. Representative G. Davis asked if the federal government was sanctioning how children should be raised, pointing out how restrictive the legislation was. Representative Dyson advised that his reading of the federal legislation combined the "carrot and the stick". If the child is not moved out of State custody, there is a penalty against keeping children in the system. He affirmed that there was nothing referencing lifestyle or family values. RUSSELL WEBB, DEPUTY COMMISSIONER, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, noted that the intent of Congress was to move children out of State custody quickly. This legislation is not an incentive to take kids into custody; the incentive comes at the tail end for kids that have been languishing for years, there is an incentive to get those children into adoptive homes. He pointed out that there is $10 million dollars at stake if the Department does not make the health and safety of children paramount. Representative J. Davies proposed that the stipulations, which Congress is requiring of the State are valid. Representative Kelly referenced #(8) on Page 26, "mental injury". He asked if "serious mental injury" was defined in the legislation. Ms. Wibker replied that the definition in the current version was not the same definition contained in the original version. (Tape Change HFC 98- 143, Side 2). Ms. Wibker explained that in current law, reference to "mental harm to children" identifies certain conditions. The original statute speaks of mental harm as evidenced by failure to thrive, depression, or aggressive behavior. This criteria is in existing law under medical neglect. Through the amendment process, there was a decision to use "mental injury". That definition is in existing statute, AS 47.17.290. In hearings during earlier House Committees, that language was preferred because there is an already existing definition which requires that injury to be observable and substantial. The injury must interfere with the child's ability to function. The limiting language was preferred and was used to replace any reference to emotional harm. Ms. Wibker advised that the vague language used on Page 26, Line 6, could open the door for problems. The intent of the House Judiciary version was to access those children growing up in violent homes and who are continually exposed to violence. Ms. Wibker recommended language such as "children exposed to violence" could be more beneficial. In response to Representative Kelly's query, Ms. Wibker responded that would not be grounds for emergency custody. Emergency custody can only be assumed if there is abandonment, serious neglect, physical or sexual abuse. The Department must file a petition which is taken to a magistrate before removing that child from a home. Mr. Webb interjected that in an emergency situation, the child would be removed from the home first and then there would be a petition filed. Representative Kelly expressed concern with the language "mental injury". Ms. Wibker stated that the thrust of the language was to get at the serious emotional harm being done to children. The next tier would be children with very serious psychological problems and who need institutional care. Representative Kelly commented that DFYS is not always the problem, although, some of their actions leave the public wondering. He believed that the problem is that even serious mental injury, is determined by a subjective review. He recommended placing in statute a definition of the diseases referenced by the Department to protect the child. Representative Kelly emphasized that the "children in need" portion of the bill should be the most important concern of the Committee. Representative Mulder asked if there was a definition of "substantial risk of mental injury". Ms. Wibker stated that there was not a definition; the House Judiciary Committee intended it to mean "exposure to domestic violence". Federal law has a floor that must be protected which requires that the State address serious emotional harm and imminent risk of serious emotional harm. Representative J. Davies asked if there were other classes of risk to mental injury besides exposurement to domestic violence, which might not be covered in that language. He suggested narrowing it, replacing the language with "imminent risk". Ms. Wibker stated that would require that the "risk" is immediate, closing the temporal gap between the risk, and the risk actually materializing, which would be consistent with federal language. Representative Kelly MOVED to adopt Amendment #1. [Copy on File]. Ms. Wibker explained that Amendment #1 would address the changes for the child in need of aid court rules. There being NO OBJECTION, it was adopted. Representative Kelly MOVED to adopt Amendment #2. [Copy on File]. Ms. Wibker explained that Amendment #2 would address the applicability of when the changes would go into effect. There being NO OBJECTION, it was adopted. Representative Kelly noted that he would not offer Amendment #3 and #4 at present time. [Copy on File]. HB 375 was HELD in Committee for further consideration.