Legislature(1997 - 1998)

03/20/1998 03:17 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE                                   
                                                                               
Number 1797                                                                    
                                                                               
CHAIRMAN BUNDE announced the next bill before the committee was                
HB 375.  He asked Susan Wibker from the Department of Law and Russ             
Webb from the Department of Health & Social Services to come                   
forward.  He noted there were a number of people in Juneau and on              
teleconference waiting to testify on this bill.                                
                                                                               
Number 1868                                                                    
                                                                               
CHAIRMAN BUNDE explained the committee's role is to research the               
child protection issues.  There seems to be a pattern of problems              
the public is experiencing with child in need of aid cases and with            
the Division of Family and Youth Services (DFYS).  Historically,               
the legislature has met the requirements of the department for                 
funding, but the problems are continuing.  It's important to                   
understand the cause of the problem and how this particular                    
legislation or any other legislation might address the problems.               
The committee is also attempting to get a better idea of the                   
management practices within the department.  The legislature cannot            
fix all the problems, but can address some of the proposed                     
legislative fixes such as HB 375.  His plan was to address specific            
questions about HB 375 followed by public testimony.                           
                                                                               
Number 1936                                                                    
                                                                               
CHAIRMAN BUNDE asked Ms. Wibker to address the issue of immunity               
for DFYS in HB 375.                                                            
                                                                               
Number 1936                                                                    
                                                                               
SUSAN WIBKER, Assistant Attorney General, Human Services Section,              
Civil Division, Department of Law, said the public has expressed               
repeated concern that DFYS has all the control, but no                         
accountability.  She reminded everyone of the judicial oversight               
and control of the cases by the court system, so the department is             
accountable to the courts.  There's also a review committee in the             
Department of Administration, external to DFYS, that serves a                  
review function.  The Division of Family and Youth Services is                 
subject to an annual federal audit wherein federal auditors review             
randomly selected files for compliance with federal law.  If found             
to be in noncompliance, the state loses federal funds.  In                     
addition, there are several teams such as the placement review                 
team, foster care review team and permanency planning committee                
that operate both external and internal to the DFYS, reviewing                 
decisions made in the division.  Additionally, the legislative                 
audit of the division has just been completed and released.  So                
when she hears comments like no accountability, no review, all DFYS            
control and no oversight, she feels compelled to point out there               
are a number of ways in which the department is audited and                    
subjected to oversight.                                                        
                                                                               
Number 2012                                                                    
                                                                               
MS. WIBKER said with respect to immunity, the Division of Family               
and Youth Services has no more or no less immunity than any other              
public servant.  It is her understanding that government officials             
- policeman, fireman, paramedic, social worker - are allowed to                
make good faith mistakes, but are not allowed to make malicious,               
intentional, deliberate acts that would be detrimental.  Based on              
conversations with tort attorneys, she understands it really                   
doesn't matter what the bill says; there is a level of governmental            
immunity which applies across the board.                                       
                                                                               
Number 2041                                                                    
                                                                               
CHAIRMAN BUNDE observed that perhaps it shouldn't be included in               
the legislation if it doesn't matter and it's causing people some              
angst.                                                                         
                                                                               
MS. WIBKER responded, "If you don't say it, my understanding is                
there's a -- public servants all have a comparable level."  She                
thought perhaps the public was assuming the language infers the                
DFYS cannot be sued or held accountable in a civil suit, but that's            
not the case; the DFYS gets sued and whether the language is                   
included in the legislation or not, that's going to happen.                    
                                                                               
Number 2069                                                                    
                                                                               
REPRESENTATIVE BRIAN PORTER asked what portion of the bill Ms.                 
Wibker was referring to.                                                       
                                                                               
MS. WIBKER directed him to page 42, line 27, which states, "Nothing            
in this title creates a duty or standard of care ...."  She thought            
this language was generating the public concern.                               
                                                                               
CHAIRMAN BUNDE commented, "While we need laws that are equitably               
applied, there is, I guess in the legal profession, the appearance             
of justice as well as the actuality of justice and we need to be               
aware of that."                                                                
                                                                               
REPRESENTATIVE PORTER commented he had conducted research on a bill            
establishing these kinds of protections for public employees in                
general and it is his understanding that public employees are, by              
policy, protected or indemnified, but not immune.                              
                                                                               
MS. WIBKER said she's not a tort attorney and couldn't speak to                
that issue.                                                                    
                                                                               
REPRESENTATIVE PORTER continued that the state, as well as some                
municipalities, will defend any employee that is sued for a tort               
and indemnify their action assuming it was something done in the               
normal course of business; not gross or intentional.                           
                                                                               
CHAIRMAN BUNDE explained that he's bringing up questions that have             
been raised in public testimony and this issue will continue to be             
explored by the committee.                                                     
                                                                               
Number 2184                                                                    
                                                                               
REPRESENTATIVE JOE GREEN said, "You said there had been repeated               
audits and under current law is there a waiver of duty - is this               
implying or this portion is taking away something that there is now            
so that negligence could be brought under current law that this                
would evade because there's no duty established?"                              
                                                                               
MS. WIBKER suggested the committee ask that a tort attorney be                 
present at the next hearing to respond to those issue inasmuch as              
this language was drafted by the tort attorneys.                               
                                                                               
REPRESENTATIVE GREEN asked if any of the audits had identified any             
of these situations as a problem area or a potential problem area.             
                                                                               
MS. WIBKER replied she wasn't aware of any, but deferred the                   
question to Mr. Webb.                                                          
                                                                               
Number 2228                                                                    
                                                                               
RUSSELL WEBB, Deputy Commissioner, Department of Health & Social               
Services, said he was not aware that the focus was on a particular             
case or a particular act of wrong doing in any of the audits.  He              
added the division commonly faces about four to five civil suits               
annually, not all of which are found justified.                                
                                                                               
REPRESENTATIVE GREEN asked of the four to five civil suits                     
annually, do any relate to some type of negligence as opposed to a             
tort of intent.                                                                
                                                                               
MR. WEBB did not have an answer to that question.                              
                                                                               
REPRESENTATIVE GREEN said, "I'm just wondering why this -- this                
seems like this is going beyond, for the department, what would be             
held otherwise in private sector - they can't waive their duty."               
                                                                               
MS. WIBKER responded, "Based on my recent discussion with the tort             
attorneys, they are the ones that represent the agency and the                 
claims - they deal with the claims - they are almost external to               
the agency.  There were some recent Supreme Court Opinions that                
came down from civil suits and they used some of the language in               
those opinions to develop this."                                               
                                                                               
MR. WEBB pointed out for the committee the purpose of the language             
is certainly not, on the part of the department, to evade its                  
responsibilities or accountability, but simply to make certain the             
department is not subject to frivolous lawsuits or that employees              
have no protection and therefore, the department would be unable to            
get employees.  He said that's a critical issue.                               
                                                                               
Number 2316                                                                    
                                                                               
REPRESENTATIVE FRED DYSON advised a couple of tort attorneys had               
visited with him and his staff and as he recalls, the attorneys                
indicated they would have no problem with everything after the                 
first sentence being deleted in Section 47.  He said, "And as I                
understand it, the 47.14.985 - that sentence is there, I think in              
a defensive sense to not establish -- I think that they're worried             
about Cleary kinds of things where they might be sued if, you know             
optimum conditions that a child finds itself in are not being met."            
                                                                               
REPRESENTATIVE PORTER said in his opinion, the first line is a                 
precaution to make sure that higher standards aren't set for these             
employees than would be for any other public or private sector                 
employees.                                                                     
                                                                               
TAPE 98-28, SIDE B                                                             
Number 0009                                                                    
                                                                               
CHAIRMAN BUNDE noted there had been public concern expressed about             
the language in Section 1 on page 2 recognizing children as                    
individuals having legal rights.  He asked if that had changed from            
previous legislation.                                                          
                                                                               
MS. WIBKER referred to page 2, lines 11-16 and said the department             
isn't proposing this be law; it's designed to guide the courts in              
the interpretation of the law.                                                 
                                                                               
Number 0040                                                                    
                                                                               
REPRESENTATIVE PORTER asked if the department would be opposed to              
a Finding that children are individuals who have a right of                    
expectation of freedom and so forth as opposed to establishing a               
right.                                                                         
                                                                               
MS. WIBKER said the Department of Law tort attorneys reviewed this             
section as well as the immunity section and offered their advice on            
how it should be drafted.                                                      
                                                                               
REPRESENTATIVE PORTER speculated the second half of the immunity               
portion may not remain in the bill.                                            
                                                                               
MS. WIBKER said she expected the tort attorneys would advise that              
if language was removed from the immunity section, this section                
would also need to be revised; the two sections go hand in hand.               
                                                                               
Number 0084                                                                    
                                                                               
CHAIRMAN BUNDE next referred to the criminal nonsupport section of             
the HB 375 and asked if that section is essential to this                      
legislation or would it be better addressed in another piece of                
legislation.                                                                   
                                                                               
MS. WIBKER stated where it's addressed is certainly not as                     
important as the fact that it is addressed.  The criminal                      
nonsupport provision is in the bill because it's viewed as part of             
child protection and preventing child neglect in the current                   
climate of welfare reform, welfare to work.  She noted there are               
children whose ability to be covered by welfare is time limited and            
the only safety net for many of those children will be child                   
support collection.  It's designed to help fill a gap.                         
                                                                               
Number 0126                                                                    
                                                                               
CHAIRMAN BUNDE asked Ms. Wibker to define criminal nonsupport as               
opposed to nonsupport.                                                         
                                                                               
MS. WIBKER deferred that question to Dean Guaneli.                             
                                                                               
Number 0148                                                                    
                                                                               
DEAN GUANELI, Chief Assistant Attorney General, Legal Services                 
Section, Criminal Division, Department of Law, said "Let me phrase             
it in terms of the elements needed to prove a criminal case of                 
nonsupport.  First, we would need to prove that the person who owed            
the support was aware of the support order.  Second, that the                  
person failed to pay support and really the most important is the              
person had the ability to pay the support; either that the person              
had assets, was hiding assets, or was able to be gainfully employed            
and was simply not looking for work or not being gainfully                     
employed.  That third element is really the crucial one.  It's not             
simply falling behind in payments - we know that people all the                
time fall behind, but it's more really in making good faith                    
efforts.  It's you've got the ability to pay and you simply refuse             
to do so."                                                                     
                                                                               
CHAIRMAN BUNDE commented in his mind, the most egregious is the                
hiding of assets.                                                              
                                                                               
MR. GUANELI said it happens on a fairly regular basis that assets              
are hidden.                                                                    
                                                                               
CHAIRMAN BUNDE announced the committee would begin to take public              
testimony at this time.                                                        
                                                                               
Number 0222                                                                    
                                                                               
CHRIS HUTCHINSON testified from Kenai via teleconference in                    
opposition to HB 375.  She said with respect to immunity, the state            
is already covered under Title 9 and additional coverage isn't                 
needed under Title 47; it's helpful for the state but not for the              
people.  She said a multi-disciplinary is unnecessary; it's staffed            
with all professionals and no lay persons.  As Mr. Webb testified              
previously, that information is not available to the prosecutors to            
get back at the criminal, so what purpose does this team serve.                
                                                                               
Number 0271                                                                    
                                                                               
CHAIRMAN BUNDE asked if Ms. Hutchinson would have less opposition              
if the bill was crafted in such a manner that information would be             
available to prosecutors and law enforcement.                                  
                                                                               
MS. HUTCHINSON responded that was just one of many concerns she has            
with this legislation.  She suggested a commission could be used to            
review the entire area of child protection.  The money will be                 
coming in over a three year period, so there's no real hurry to                
revamp the DFYS, overturn Supreme Court decisions and so forth.                
                                                                               
CHAIRMAN BUNDE pointed out this legislation has no connection to               
the Medicaid money.  He asked if witnesses would identify specific             
fixes to the bill or to simply indicate there was no hope for the              
entire bill.  He thanked Ms. Hutchinson for her comments and asked             
Mr. Grimes to present his testimony.                                           
                                                                               
Number 0356                                                                    
                                                                               
JOHNNY GRIMES testified via teleconference from Anchorage in                   
opposition to HB 375.  He noted that SB 272 was identical to                   
HB 375, and the Senate is not going to support SB 272 because it's             
anti-father, big government and big spending.                                  
                                                                               
CHAIRMAN BUNDE asked Mr. Gauthier to present his comments on                   
HB 375.                                                                        
                                                                               
Number 0494                                                                    
                                                                               
WALTER GAUTHIER testified via teleconference from Homer.  He                   
referred to a newspaper article wherein a person was writing to                
Lynne Curry asking advice about an employment situation wherein a              
counselor backhanded a child.  He commented the counseling agency              
has promised a good reference just to get rid of the counselor.  He            
questioned if this case of child felony assault was being                      
investigated by DFYS or any other agency.                                      
                                                                               
CHAIRMAN BUNDE couldn't speak for the Division of Family and Youth             
Services.  He wasn't sure if something appearing in a newspaper is             
considered a valid complaint of child abuse, but if Mr. Gauthier               
wanted to make the charge, Chairman Bunde said he would insist the             
division investigate.                                                          
                                                                               
MR. GAUTHIER said with respect to HB 375, he wanted to read the                
following excerpts he received from Rick Toma (sp) concerning the              
state of Illinois concerning the death of a child:  "Subsequently,             
the Governor and the legislature raced to outdo each other to see              
who could write in the phrase 'the best interest of the child' in              
its new legislation.  They wrote it in 28 times into statute.  In              
1987, Illinois had 14,000 children in foster care; as of 1994, they            
have 45,000 children in foster care.  This best interest of the                
child is not just another feel good social worker slogan.  It is               
specific legal language with specific consequences."  If this bill             
is enacted into law, he predicted the number of children in foster             
care will double, along with a concurrent increase in demands for              
so-called nonprofit service provider that is funded by the                     
government through the Department of Health & Social Services.  He             
stated this bill has no redeeming value; it is nothing more than               
the expansion of a system whose biggest problem is the darkness of             
confidentiality.  No one can review anything DFYS does because it's            
all confidential.                                                              
                                                                               
CHAIRMAN BUNDE spoke of the challenge facing the committee  -                  
recently children have died of child abuse, children are born with             
FAS and FAE, children are born to drug addicts and so on.  The                 
committee is motivated to try and solve these problems and it's a              
challenge to do that without trampling on a person's rights.  He               
said the committee would welcome any advice the public could offer.            
                                                                               
MR. GAUTHIER said the system has plenty of power; the problem is a             
monopoly of the system.  If an agency budget is increased every                
time there's a report of a child death, the agency need only ignore            
certain situations purposefully.                                               
                                                                               
CHAIRMAN BUNDE asked if Mr. Gauthier was suggesting that DFYS is               
killing children to make money.                                                
                                                                               
MR. GAUTHIER said he is suggesting that DFYS is deliberately                   
leaving some children in situations they know will result in cases             
which will make the newspapers.                                                
                                                                               
CHAIRMAN BUNDE thanked Mr. Gauthier for his comments and asked Ms.             
Downs to present her testimony.                                                
                                                                               
Number 0744                                                                    
                                                                               
DEBORAH DOWNS, Social Worker and Program Officer, Division of                  
Family and Youth Services, Department of Health & Social Services,             
testified via teleconference from Petersburg in support of the                 
portion of HB 375 establishing the multi-disciplinary teams.  Child            
abuse investigators, such as herself, would greatly benefit from               
having access to the resources that a multi-disciplinary team would            
provide.  She believed that emphasis should be placed on the term              
"resource" versus review.  As Ms. Wibker pointed out, there are                
many reviews that evaluate different functions, but people in the              
field need resources to do a better job relating to investigation              
of child abuse.  Although she is usually able to delineate when                
doing an investigation whether an injury has occurred or a child is            
at risk of harm, there are cases that have come to her attention               
where those definitive lines are not as clear.  That's when she                
relies heavily on a multi-disciplinary team as she goes through the            
investigation process.  In her 25+ years experience in child                   
protection, she has relied on multi-disciplinary teams working                 
closely with law enforcement, prosecutors and medical personnel,               
both in urban and rural settings.  The two things she wanted to                
stress to the committee for consideration were that by doing a                 
collaborative and coordinated approach to child abuse                          
investigations, the trauma to children is significantly minimized              
and secondly, allowing the field personnel such as herself, to draw            
on the expertise and experience of other people is a valuable                  
resource.  She urged the committee to pass the section of HB 375               
dealing with multi-disciplinary teams.                                         
                                                                               
CHAIRMAN BUNDE asked if Ms. Downs had a problem with information               
from a multi-disciplinary team being made available to law                     
enforcement personnel in the case of criminal activity.                        
                                                                               
MS. DOWNS said she would hope that law enforcement would be an                 
active participant in the process and therefore, would have total              
access to the information.                                                     
                                                                               
CHAIRMAN BUNDE thanked Ms. Downs for her comments and asked Ms.                
Buffington to present her remarks at this time.                                
                                                                               
Number 0890                                                                    
                                                                               
DIANA BUFFINGTON testified via teleconference from Kodiak.  She                
said, "I'd like to point out several things in this bill, Mr.                  
Chairman.  Section 1 and a lot of this has been reviewed and put up            
against the U.N. Children's Bill of Rights which was not, I repeat,            
not ratified by the U.S. Congress, although the Children's Bill of             
Rights (indisc.) by the U.N. looked on the outside, many of these              
things - the ramifications of that bill -the reason Congress did               
not pass it, is written up in this bill."  She noted House Bill 375            
will overturn several Supreme Court and Superior Court rulings that            
she felt need to stay in place.  She referred to Section 11                    
regarding criminal nonsupport and said public assistance is added              
to a child support order and it would be very easy to get up to                
$10,000 in criminal nonsupport.  She noted there are over 53,000               
child support cases in this state of which 30,000 are Aid to                   
Families with Dependent Children (AFDC).  She believed that                    
Representative Ryan and Senator Ellis had received information from            
CSED indicating that anywhere from 39,000 to 49,000 cases are in               
arrears and yet if CSED can pull some money out, they will                     
certainly file nonsupport.  With respect to the immunity issue, she            
said no one should have immunity and DFYS and CSED are good at                 
creating omission intentionally to win a favorable court review.               
In conclusion, she said this bill needs to be defeated in its                  
entirety.                                                                      
                                                                               
CHAIRMAN BUNDE thanked Ms. Buffington for her comments and asked               
Debbie Nelson to present her remarks.                                          
                                                                               
Number 1077                                                                    
                                                                               
DEBBIE NELSON testified from Kenai via teleconference in opposition            
to HB 375.                                                                     
                                                                               
CHAIRMAN BUNDE thanked Ms. Nelson for her remarks and asked Trooper            
Ellis to testify at this time.                                                 
                                                                               
Number 1111                                                                    
                                                                               
WILLARD S. ELLIS, Trooper, Alaska State Troopers, Department of                
Public Safety, testified via teleconference from Petersburg                    
regarding the multi-disciplinary teams.  He's been a trooper for               
17+ years working in Palmer, Cold Bay and Petersburg working child             
investigations in all three locations.  He's had specialized                   
training on child abuse investigation and sexual assault response              
team training.  He said the purpose of the team is to facilitate               
civil investigations between two or more agencies over a specific              
incident and the use of a team helps to protect a child from                   
further traumatization.  By having the agencies work together as a             
team, the victim isn't asked to tell the story to each agency at               
different times.  These teams are usually made up of an individual             
from the police department, a social worker, a medical                         
professional, hopefully a victims' advocate and perhaps a                      
representative of the District Attorney's Office.  He emphasized               
the team is not for agency oversight; it's to protect the victim.              
If the purpose of the team was to provide oversight of an agency,              
he would be inclined to not participate on a team that wasn't to               
protect the victim and help prosecute a case.  With regard to the              
district attorney being in charge of the team, he thought it should            
be developed locally.                                                          
                                                                               
Number 1237                                                                    
                                                                               
REPRESENTATIVE DYSON asked who had taken the leadership in setting             
up the multi-disciplinary team in the rural areas.                             
                                                                               
TROOPER ELLIS replied it's been his experience that law enforcement            
would take the leadership.                                                     
                                                                               
CHAIRMAN BUNDE thanked Trooper Ellis for commenting and asked Gene             
Altig to comment.                                                              
                                                                               
Number 1256                                                                    
                                                                               
GENE ALTIG testified from Fairbanks via teleconference and said                
HB 375 can't work and should be scrapped.  He added that juries                
handle murder cases; not the DFYS.                                             
                                                                               
CHAIRMAN BUNDE commented he didn't see anything in HB 375 that                 
would supplant the jury system or an investigation by law                      
enforcement.  He thanked Mr. Altig for commenting and asked Anita              
Alves to testify at this time.                                                 
                                                                               
Number 1311                                                                    
                                                                               
ANITA ALVES, Office of Public Advocacy, testified via                          
teleconference from Anchorage in support of HB 375.  She wanted to             
briefly address the proposed changes to the court jurisdiction for             
the child in need aid cases.  She often represents delinquents as              
an attorney and as a guardian ad litem and too many times she's sat            
across from a young person awaiting court for angry acts of                    
property damage or assaultive behavior and listened to them                    
describe a childhood of anger and violence in their home.  The                 
emotional harm to children that results from living with and                   
viewing acts of violence is devastating.  The cost of treating                 
these children as teenagers, the cost of locking these children                
away and the cost of the damage these children afflict on the state            
is immense.  The state needs to be able to intervene early in a                
child's life when they are experiencing this type of emotional                 
harm, as well as when they are experiencing physical harm or                   
neglect.  The time to act is when a child is young, working with               
the family, providing resources that the child can live in that                
family as long as it's a safe, stable home.  Once the child becomes            
a delinquent, it's often too late for the children and too late for            
the family.  Passing HB 375 will give these children a chance in               
their life when they're young before it's too late.                            
                                                                               
CHAIRMAN BUNDE thanked Ms. Alves for testifying and asked Jane                 
Burchard if HB 375 should be fixed or scrapped.                                
                                                                               
Number 1417                                                                    
                                                                               
JANE BURCHARD testified via teleconference from Fairbanks and said             
HB 375 should be scrapped.                                                     
                                                                               
CHAIRMAN BUNDE asked Geraldine Brown to present her comments.                  
                                                                               
Number 1433                                                                    
                                                                               
GERALDINE BROWN testified via teleconference from Fairbanks and                
urged the committee not to pass HB 375 or anything that gives the              
DFYS any more power.                                                           
                                                                               
CHAIRMAN BUNDE thanked Ms. Brown and asked Harry Niehaus to                    
testify.                                                                       
                                                                               
Number 1481                                                                    
                                                                               
HARRY NIEHAUS testified from Fairbanks via teleconference in                   
opposition to HB 375.  He referred to a Supreme Court case that has            
granted social workers and others absolute quasi-judicial immunity;            
they are immune to perjury, manufacturing evidence, et cetera.  He             
said, "Therefore, if we are to sue them, we have to do it in their             
official and unofficial capacity."  There has never been a                     
successful prosecution or suit against the agency.                             
                                                                               
CHAIRMAN BUNDE inquired if the state has ever been sued and the                
people have prevailed.                                                         
                                                                               
MS. WIBKER said the DFYS gets sued five to six times a year and                
yes, people do prevail.                                                        
                                                                               
CHAIRMAN BUNDE commented he would continue with the public                     
testimony and asked Charles Rollins if HB 375 should be fixed or               
scrapped.                                                                      
                                                                               
Number 1597                                                                    
                                                                               
CHARLES ROLLINS testified via teleconference from Fairbanks and                
said HB 375 should be scrapped.  The bill is too long and is not               
well written.                                                                  
                                                                               
CHAIRMAN BUNDE asked Betty Rollins to present her comments next.               
                                                                               
Number 1686                                                                    
                                                                               
BETTY ROLLINS testified via teleconference from Fairbanks in                   
opposition to HB 375.  She said it attempts to cover far too many              
issues.                                                                        
                                                                               
CHAIRMAN BUNDE announced HB 375 would be heard again in committee              
on Tuesday, March 24 but teleconference would be restricted to                 
listen only, as the committee would be addressing the issues.                  
Public testimony would again be taken once the committee has worked            
on the bill.                                                                   
                                                                               
CHAIRMAN BUNDE thanked Ms. Rollins for her comments and asked Paul             
Nelson to present his statement.                                               
                                                                               
Number 1773                                                                    
                                                                               
PAUL NELSON testified offnet from Haines and said the Governor's               
transmittal letter that accompanied HB 375 states, "More than                  
15,500 reports of child abuse or neglect were filed last year in               
Alaska."  He said while this may be true, the Governor does not                
indicate how many of these reports were false nor how many                     
convictions actually occurred.  Despite the comments that have been            
made today, this bill seeks to grant total immunity to the DFYS.               
Even the President of the United States is not immune from                     
prosecution; the DFYS should be responsible for their actions.  He             
related his personal experience of having no criminal record,                  
paying child support and not seeing his daughter for 11 years                  
because he refuses to incriminate himself.  His civil rights are               
violated, yet no Alaska court will even address the civil rights               
issue.  He said there are families that live in fear of the DFYS               
and he requested the committee not grant DFYS more power by passing            
HB 375.                                                                        
                                                                               
CHAIRMAN BUNDE thanked Mr. Nelson for his testimony and asked Mr.              
Calder to comment at this time.                                                
                                                                               
Number 1910                                                                    
                                                                               
SCOTT CALDER testified via teleconference from Fairbanks and agreed            
with all the testimony presented against this bill.  He said the               
whole idea of the legislation is wrong.  After years of problems               
with people talking about children being kidnaped, injured while in            
foster care, et cetera, nothing has ever been done to correct those            
problems.  The DFYS is an agency which, in combination with other              
agencies, severely victimizes human beings in the state of Alaska              
and until that's addressed he didn't think there could be any                  
discussion about spending more money on more promises.                         
                                                                               
CHAIRMAN BUNDE reiterated this bill does not propose to spend any              
more money.  He called Pamela Scott forward to present her                     
testimony.                                                                     
                                                                               
Number 2023                                                                    
                                                                               
PAMELA SCOTT said she was testifying on behalf of her son.  She's              
a new mother of six weeks; she brought her son home not from the               
hospital, but from his tenth foster care placement.  Her home will             
be his permanent home.  She wanted to address the termination of               
parental rights section of HB 375.  Her son is seven years old and             
has never lived with his biological mother; however, the system is             
set up so she has been able to maintain her parental rights,                   
although she hasn't provided for the child.  She emphasized this               
bill is about child protection and in all the testimony presented,             
no one has talked about the voice of the child.  She is enjoying               
the possibility of being this child's mother for the remainder of              
his minority life and this bill gives her that opportunity.  She               
said there are foster children who want permanent placement and                
there are people who are capable and able to provide permanent care            
homes - adoptive care as well as permanent guardianship for                    
children in the system - but children are not given that                       
opportunity because the way the system is set up now, the children             
are not protected and parents are given too many rights.  She said             
there are things in this bill that are essential to protecting                 
children.  Children need love, stability and consistency which they            
can't get through foster care placement when they are moved from               
place to place.                                                                
                                                                               
CHAIRMAN BUNDE on behalf of the committee congratulated Ms. Scott              
on becoming a parent.  He asked Don Dapcevich to come forward to               
present his remarks.                                                           
                                                                               
Number 2258                                                                    
                                                                               
DON DAPCEVICH, Executive Director, State Advisory Board on                     
Alcoholism and Drug Abuse, Department of Health & Social Services,             
said he had been instructed by the board to come before the                    
committee to testify in support of HB 375.  The board started off              
having some misgivings about this bill; some of the issues dealt               
with the seeming difference between 42 CFR, the federal                        
confidentiality rules, and this statute and there was also concern             
about the disincentive for treatment for parents that was present              
in the original bill.  There is, however, a proposed amendment that            
alleviates the fears of the board and they now support HB 375.  He             
said, "We try to walk that very delicate balance between ....                  
                                                                               
TAPE 98-29, SIDE A                                                             
Number 0007                                                                    
                                                                               
MR. DAPCEVICH continued " .... parents.  And the other side of that            
is to get rid of those parents - get those parents out of the lives            
of children when they refuse to or when they fail repeatedly to                
respond to treatment - and you have to make those hard decisions               
and I think this bill begins that process in getting to good                   
decisions with regard to protecting our children, which has to come            
first."                                                                        
                                                                               
CHAIRMAN BUNDE thanked Mr. Dapcevich for his comments and called               
Jayne Andreen forward to present her comments.                                 
                                                                               
Number 0064                                                                    
                                                                               
JAYNE ANDREEN, Executive Director, Council on Domestic Violence &              
Sexual Assault, Department of Public Safety, said the council is               
supportive of HB 375; it's definitely fixable.  She said,                      
"Yesterday I talked about the increasing realization we have of the            
impact that domestic violence has on children.  We know that they              
are too often primary victims of child abuse.  We are starting to              
also recognize and realize what an impact it has on them as                    
secondary victims - just being in the home where domestic violence             
exists.  One of the things I want to share with you is during the              
Domestic Violence Summit, the children and youth focus group which             
spent most of one day looking specifically at children and youth               
issues and how that pertains to domestic violence, said                        
specifically that we need to define the emotional harm and include             
in that the witnessing of domestic violence."  She worked at the               
front lines of domestic violence for 11 years in Alaska and her                
greatest frustration with the DFYS was the fact they could never do            
enough for far too many children and it had nothing to do with a               
lack of compassion of the social workers; it had to do with a lack             
of resources and the lack of appropriate laws and structure.  She              
thought this legislation does an excellent job of recrafting how               
the state approaches the protection of children, which has to be               
done.  At the same time, it's important to be careful about how to             
respond to children in situations where domestic violence exists.              
Similar to Mr. Dapcevich's comments, the council also had some                 
concerns about HB 375, but is comfortable those concerns will be               
addressed in the forthcoming amendment.                                        
                                                                               
CHAIRMAN BUNDE announced the committee would be addressing the                 
amendments the following Tuesday.  He thanked Ms. Andreen for her              
comments and asked Lauree Hugonin to come forward.                             
                                                                               
Number 0237                                                                    
                                                                               
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence &                
Sexual Assault, said the network supports several sections of                  
HB 375; those relating to the child murder reclassification, the               
redefining of indecent exposure, the increased sentencing for a                
conviction of criminally negligent homicide when the victim is a               
child, the revisions to the sex offender registration laws and the             
development of the child and fatality review teams.  She                       
specifically wanted to address the emotional harm when children                
witness domestic violence and express some concerns the network has            
with the legislation.  She, too, felt confident the forthcoming                
amendments will address the network's concerns.                                
                                                                               
MS. HUGONIN noted there have been several studies done to see the              
tie-in between child abuse and domestic violence.  A lot of the                
research suggests that as many as 90 percent of children from                  
violent homes actually witness the abuse being perpetrated.  One               
study showed that some fathers deliberately arrange for their                  
children to witness the violence; other studies have shown violence            
occurs only when the children are present.  Unfortunately, male                
children who witness the abuse of mothers by their fathers are more            
likely to become men who batter the male children from homes where             
there's violence.  The decision to leave or stay often depends on              
the mother's assessment of what will be in the best interest of her            
children.  Understanding the mother's reasoning and the many forces            
that shape her decision is really important when looking at                    
ensuring safety for herself and her children.  She informed the                
committee of a couple of studies available in her office; the                  
American Bar Association study called "The Impact of Domestic                  
Violence on Children" and a study entitled "The Overlap Between                
Child Maltreatment and Woman Abuse".  She read the following                   
excerpts from "In the Best Interest of Women and Children; A Call              
for Collaboration Between Child Welfare and Domestic Violence                  
Constituencies:  "He hit me in the stomach when I was pregnant.                
Then he threatened to beat my daughter and you don't ever hit my               
kids.  I tried before, but when it comes to my kids, no more."  It             
was found in this particular study that women would decide to leave            
the home, not when necessarily the abuse was upon themselves, but              
when they felt they could no longer protect their children.  Other             
studies have indicated that some women choose to remain in abusive             
relationships in order to protect their children.                              
                                                                               
MS. HUGONIN stressed there's not this one easy answer to just leave            
and the children will be safe or just stay and the children will be            
safe; it's very situation specific.  She said it's important to                
realize that and to be careful when deciding what to do and how to             
respond in child abuse cases.  If a mother with no resources leaves            
the home, she may not have a choice to be find shelter in a                    
situation that's less than ideal for children, so she may leave her            
children with the abuser because there's a roof over their head,               
they're getting fed and clothed and sometimes the Child Protection             
Agency will step in and say she hasn't protected her child.  On the            
other hand if she stays, she may have that same failure to protect.            
So in both situations, without proper training and experience and              
carefully listening to what the adult victim is saying regarding               
her best safety interest and that of her children, things can be               
done which create more harm.                                                   
                                                                               
MS. HUGONIN stated that with the passage of the Domestic Violence              
Act in 1996, the DFYS was required to start looking at adult                   
victims of domestic violence.  If an adult victim of domestic                  
violence was observed while investigating a report of harm, the                
DFYS case worker would get information and referrals to the adult              
victim.  It's important that all victims in the family and in the              
situation be protected.                                                        
                                                                               
Number 0672                                                                    
                                                                               
CHAIRMAN BUNDE thanked Ms. Hugonin for her testimony.                          
                                                                               
CHAIRMAN BUNDE announced HB 375 would be held in committee and                 
heard the following Tuesday.                                                   

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