Legislature(1997 - 1998)

05/02/1998 09:35 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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.                        

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