Legislature(1997 - 1998)
04/30/1998 03:10 PM House HES
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* first hearing in first committee of referral
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+ teleconferenced
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SSHB 340 - TESTIMONY AT CINA HEARINGS; CHILD ABUSE Number 1085 CHAIRMAN BUNDE announced the next item on the agenda was HB 340, "An Act relating to child abuse and neglect, child-in-need-of-aid proceedings, delinquency hearings, and review of cases involving certain children who are in the custody of the state; relating to the crime of endangering the welfare of a minor; relating to disclosure of information about children and their families; amending Rules 3, 7, 10, 15, 17 - 19, and 22, Alaska Child in Need of Aid Rules; amending Rules 3, 7, 10, 12, 21, 23, and 25, Alaska Delinquency Rules; and providing for an effective date." Gary Cadd, Researcher for Representative Mark Hodgins, Sponsor, came before the committee to explain SSHB 340. Number 1128 GARY CADD, Researcher for Representative Mark Hodgins, Alaska State Legislature, said HB 340 implements an enforceable penalty for false reporting of child abuse or neglect and endangering the welfare of a child with respect to intoxicating liquor or a controlled substance, gives notice to the child's grandparents, child's current and previous foster parents and the child's health care providers of all hearings and an opportunity to be heard at all hearings for a child in need of aid. This legislation also gives a foster parent or grandparent the right to disclose confidential or privileged information about a child in need of aid to a government official or their employee. The court cannot find a child in need of aid solely on the basis that the child's family is poor, lacks adequate housing or lives a lifestyle that is different from the generally accepted lifestyle of the community. Number 1188 CHAIRMAN BUNDE asked at what point does endangering the welfare of a child with respect to intoxicating liquor or a controlled substance become a factor. For example, would providing drugs to a 14-year-old child be endangering the welfare of a child? MR. CADD said the legislation relates to the person in charge of the child. CHAIRMAN BUNDE understood that; however, if a child is born with alcohol in its bloodstream, is the parent then guilty of endangering the welfare of the child. Number 1231 REPRESENTATIVE DYSON said in his opinion, the parent is absolutely endangering the welfare of the child, but he didn't think that was covered under law. CHAIRMAN BUNDE said it is for controlled substances, but not alcohol. He said for the record, giving a child intoxicating liquor after it is a viable human being, born or present on this earth is considered endangering the welfare of a child. He stated, "I think I've heard from you say that yes, at any time you've given a child intoxicating liquor, you are endangering the welfare of a child." MR. CADD replied, "Yes sir, you would be." Number 1276 REPRESENTATIVE PORTER asked in which section of the bill is that stated? MR. CADD responded Section 1, page 2, line 2, "with criminal negligence, has the child in the person's care and the person's physical or mental condition is impaired as a result of the introduction of an intoxicating liquor or a controlled substance into the person's body;". REPRESENTATIVE PORTER commented that's not quite the same; that language indicates it's a crime if the person in charge of the child is impaired by drugs or alcohol. The question was is it a crime if the mother drinks and then imparts that alcohol to her newly born child. REPRESENTATIVE DYSON interjected that his comment may have caused the confusion in that Chairman Bunde had asked the question is that harming the child and Representative Dyson had responded absolutely it's harm to the child; however, he did not believe there is anything in the law or in this legislation that makes it a criminal act. CHAIRMAN BUNDE conceded he had misread the sponsor statement and had jumped to conclusions. He noted there were individuals wishing to testify via teleconference and asked Diana Buffington to present her comments at this time. Number 1382 DIANA BUFFINGTON, President, Childrens' Rights Council of Alaska, testified via teleconference from Kodiak in support of SSHB 340. She advised the committee that a lot of mothers give their children little bits of alcohol to help through the teething process. She said according to the Executive Director of the Child Welfare League of America, 62 percent of allegations of abuse and neglect are false allegations and for that reason she believes it's important this legislation be passed. She noted that according to the Director of the Division of Family & Youth Services, there are no false allegations, which she certainly takes issue with. A number of false allegations are made specifically during custody and domestic violence situations where women have been enticed to make those types of allegations in order to gain control and seek sole custody of their children. She advised there are protocols in practice across the United States which the agency could put into place and by simply questioning the person reporting the abuse and neglect, the division could easily determine if it's a false allegation or an allegation that needs further investigation. She said false allegations lead to other investigations, the uninvestigation or simply having children slip through the cracks because the agency is unable to attend to all allegations. She remarked that for far too long the agency has treated foster parents as child care providers or babysitters and should recognize that foster parents are actively involved or have been involved in a child's life and it's important their testimony concerning that child be brought out in a hearing. CHAIRMAN BUNDE thanked Ms. Buffington for her comments and asked Jeanine Reep to come before the committee. CHAIRMAN BUNDE stated there are a number of people that are required by law to report suspected child abuse and wondered if anything in this legislation would have a dampening effect on that requirement. Number 1545 JEANINE REEP, Assistant Attorney General, Human Services Section, Civil Division, Department of Law, responded there's a high likelihood this legislation could have a dampening effect on all reports of harm. It's been her experience over the past 10 years that people already are hesitant to make reports of harm, often thinking they don't have enough facts. She indicated there are a number reports of harm that turn out to be unsubstantiated and she suspected that social workers had a protocol for screening reports of harm to determine the gravity, the urgency and the basis for the report. There are situations, usually in divorce cases, of parents frequently calling in reports which are investigated to the degree needed. It's pretty clear if there are a number of unsubstantiated reports, the case isn't going too far with the Division of Family & Youth Services. She said simply making a report really doesn't benefit anyone if there's no harm. Number 1607 CHAIRMAN BUNDE asked if there was a semantic problem in that according to Ms. Buffington the division says there are no false reports in Alaska, yet Ms. Reep said there are a number of unsubstantiated reports. He asked "Would it be easier if we got some common agreement on a definition here and on a unsubstantiated report is still a report but it's if you want to look at it from their side, it's false because it didn't indicate any harm." MS. REEP agreed that it is an issue of semantics, but it's not a false report. She thought there may be a small percentage of totally false reports, but that more often if a report is unsubstantiated, it is not necessarily a false report. She noted there's a legal problem in determining what's false in that someone could have a concern with hearing a constant screaming child upstairs and often calls in a report of harm, which should be done. It could be the child is very difficult to manage and the parent is acting appropriately; it's not a child in need of aid, but neither is it a false report. Number 1666 REPRESENTATIVE DYSON said he believed it was the sponsor's intention to deal only with the knowingly, spurious and for an evil purpose situations, most of which he thought arise out of spite; e.g., custody cases. He said whatever the percentage, the department has to screen through these reports and in his opinion they do a pretty good job. However, there are laws against tripping a fire alarm and knowingly calling the fire department just because a person enjoys seeing the fire engine. It takes a lot of resources to respond to the report, just as it takes DFYS resources to respond to all the reports of harm. Again, it is his belief the sponsor is after individuals who knowingly make a false report for another purpose besides the child. He did, however, think these cases would be very difficult to prosecute. MS. REEP agreed these cases would be difficult to prosecute. Number 1731 REPRESENTATIVE PORTER views this as a deterrent to the second knowingly false report. He said it's a very high standard to meet in "knowing I know that what I'm saying is false" - it's a state of mind and it's difficult, but it is not difficult the second time the person makes the same report - once the individual has been advised not to do it again, there's almost prima facie evidence and the individual is guilty of making a false report. So, to the extent it does require "knowingly" he didn't see it anywhere close to having a "chilling effect" on reports of harm. MS. REEP, in response to Representative Dyson's question regarding the difficulty of prosecuting these cases, said it would be difficult to prosecute anytime there's gray areas. There are many reports that may not be unsubstantiated - there's an in between where the department isn't really sure. For example, a mother may think her child has been sexually abused and even though there isn't any evidence of it, the mother may genuinely feel that and should not be criminally punished with a Class C felony if she's mistaken. She also believed a great deal of manpower would have to be expended to prosecute these cases. Number 1840 CHAIRMAN BUNDE observed there were numerous, as well as substantial fiscal notes. MR. CADD said the Criminal Division had submitted a $235,000 fiscal note and he questioned if there weren't going to be any or many of these cases, why the $235,000 fiscal note. Secondly, when a case comes forward, it will be different than a mother thinking her daughter has been sexually abused; this is a knowing situation, as Representative Porter had indicated, where someone maliciously causes a problem. He believed that when something like this comes forward, it's going to be easily recognizable; something that can be prosecuted because there won't be a gray area, and if there is a gray area, perhaps it's not a "knowingly" situation. Number 1877 REPRESENTATIVE DYSON commented that a nontrue accusation also causes the victim of the accusation to have to expend time and resources. The citizens suffer a bit - sometimes quite a bit - from the false accusations and he agrees with the sponsor's statement that "if the papers report once or twice a year that somebody got publicly hung up by their thumbs for trying to jerk people around with false accusations, I think that will have a chilling effect on some of the spurious ones." It's an absolute judgment call. Number 1921 REPRESENTATIVE BUNDE observed this would still allow for anonymous reporting; if anyone was going to "knowingly" give a false report, it would obviously be done anonymously. MS. REEP responded that was certainly a possibility. Number 1935 REPRESENTATIVE BRICE presented a hypothetical situation: A divorce case and the noncustodial parent has some serious concerns about the custodial parent - there are stories coming from the child, but not enough information to substantiate any of the stories. If the noncustodial parent makes a report, it could definitely look very spurious but someone with a true concern for the child may get hung up with this law. He said there needs to be some middle ground so a parent with honest concerns can have them addressed. MR. CADD said in the process of putting this section of the bill together, he had talked with law enforcement personnel and citizens in the Kenai in which a situation was brought up of two neighbors with a common driveway who had a right-of-way problem. One of the neighbors was continually turning the other neighbor in for child abuse which of course was causing problems for the department who was having to check out the reports. He explained it was these types of situations the legislation was aimed at; Representative Hodgins is not looking at creating a new class of criminal. REPRESENTATIVE PORTER noted the fiscal note prepared by the Department of Law, Criminal Division indicates this particular area is too speculative to even assign any associated cost; the large fiscal note deals with the other felony - intoxication. MS. REEP advised she works in the human services division and handles children in need of aid cases; not criminal cases so she is not the person to address the criminal issues involved with this legislation. CHAIRMAN BUNDE asked if there were additional individuals to testify. There being none, Chairman Bunde closed public testimony. Representative Dyson said he had an additional question for the sponsor's representative. Number 2055 REPRESENTATIVE DYSON referred to page 7, line 25, and asked why the sponsor chose to use "may" instead of "shall disclose information regarding a case...." MR. CADD said to be quite truthful, he thought "shall" had been in the original draft which was the sponsor's intent, but in the rewrite it got changed to "may". REPRESENTATIVE DYSON commented that in working with the Department of Law on HB 375, he prevailed in having it read "shall"; however, the department was concerned with being forced to give information to people who didn't want it, so the phrase "as appropriate" was added. He suggested amending the language in SSHB 340 to read, "A state or municipal agency or employee shall disclose appropriate information regarding a case ...." CHAIRMAN BUNDE asked if Representative Dyson wanted to propose that amendment. Number 2115 REPRESENTATIVE DYSON made a motion following "employee" delete "may", insert "shall" and following "disclose" insert "appropriate". CHAIRMAN BUNDE asked if there was any objection to the amendment. Hearing none, the amendment was adopted. Number 2155 REPRESENTATIVE PORTER inquired if there were provisions in SSHB 340 that had been passed in other bills. CHAIRMAN BUNDE responded, "lifestyle and ...." REPRESENTATIVE PORTER thought the issue of intoxicated parents, guardians and babysitters had also been addressed. REPRESENTATIVE DYSON said that was in HB 375. Number 2172 REPRESENTATIVE PORTER remarked that perhaps if there were provisions in SSHB 340 that were not already included in other legislative bills, this bill would have a better chance if those provisions were extracted. REPRESENTATIVE DYSON advised that Representative Hodgins and his staff had incorporated four of Representative Dyson's bills into SSHB 340, just as HB 375 includes provisions of other bills, and he hasn't pulled those bills just in case HB 375 goes astray during the legislative process. He suspected Representative Hodgins had that same strategy in mind with SSHB 340. CHAIRMAN BUNDE once again closed public testimony and asked the wishes of the committee. Number 2227 REPRESENTATIVE DYSON made a motion to pass SSHB 340 as amended from committee. There being no objection, CSSSHB 340(HES) moved from the House Health, Education and Social Services Standing Committee.
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