Legislature(1993 - 1994)
01/14/1994 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 45 - MISC. LAWS RELATING TO MINORS Number 690 CHAIRMAN PORTER asked for amendments to SB 45. Number 702 REP. NORDLUND asked if the CS had been adopted. Number 706 CHAIRMAN PORTER asked for a motion. Number 710 REP. NORDLUND objected, saying he favored the original. Number 730 CHAIRMAN PORTER entertained a motion to move the CS and asked for a roll call vote: Rep. Davidson no Rep. Green yes Rep. Kott yes Rep. Nordlund no Rep. James yes Rep. Porter yes The MOTION was ADOPTED and the committee substitute was brought before the committee for consideration. REP. NORDLUND offered Amendment No. 1 , which would eliminate sections one and two, the purpose and intent sections of the bill. He said that purpose and intent sections don't stay in permanent law, and in this case, the purpose section only explains two sections of a long, complicated bill, which is misleading. Rep. Nordlund said either write a purpose section which explains what SB 45 does, or don't have it at all. Number 782 JERRY BURNETT, Legislative Aide to Senator Randy Phillips, Prime Sponsor of SB 45, agreed with Rep. Nordlund's amendment and said the sponsor had no significant objection with the amendment. Number 791 CHAIRMAN PORTER asked the committee to consider another issue involving emancipation which may subject a juvenile to criminal sanctions as an adult. He said that in statute the definition of majority allows that all the privileges and liabilities of an adult accrue to someone who has reached the age of majority, and another section says emancipation provides majority. Chairman Porter suggested that the committee put under Section 3 that it was not the intention (as it relates to Sections 3 through 8) of this legislation to approve adult responsibility for criminal actions, unless otherwise defined by law. REP. NORDLUND told the committee the amendment was in the wrong place and that it would not be put in statute. Number 820 CHAIRMAN PORTER responded that we will lose it in the law, but won't lose it when the court is reviewing the legislation to see what it meant. He went on to say that that's the reason for the amendment, so there is something formally on record besides the minutes for the courts to look at to see what it was the legislature was trying to do when passing the legislation. Chairman Porter indicated that he had spoken to Dean Guaneli, Criminal Division, Department of Law, at length on this, and it's unclear because no one has ever tried to treat an emancipated juvenile as an adult for the purposes of prosecution. He added that there isn't any specific prohibition, so that's why, from the intent standpoint, it's important to let the courts know that wasn't the intent. REP. NORDLUND asked to hear the opinion of Legal Services. Number 846 DONNA M. SCHULTZ, Associate Coordinator, Division of Family and Youth Services, asked about Section 9, where the committee was going to put in the piece about being under 19 years of age and having the disability of minor removed for general purposes under this. She said she understood that to mean contributing to the delinquency of a minor. She followed by asking if the committee is looking at intent by not being treated as adults, and asked if this section was in conflict. TAPE 94-3, SIDE B Number 000 CHAIRMAN PORTER said it would not specifically allow that. Number 028 JERRY BURNETT added that juveniles can be charged with the same crimes as adults in most cases. Number 035 CHAIRMAN PORTER responded that this does not relate to juveniles, it just means they have committed the offense, and having committed the offense, they would be treated as a juvenile. He concluded that the crime establishes the offense, but not the jurisdiction. Number 047 REP. JAMES asked if it didn't mean that the legislation lines them out, that a person contributing to the delinquency of a minor is a person that is over 19, or a person under 19 if they are considered adults. She said it does give them an adult status under that situation. Number 056 CHAIRMAN PORTER replied that it does not; it enhances the law that now says a person being 19 years of age or older commits the crime of contributing to the delinquency of a minor if, but what the legislation is saying is that you still will have committed that offense, which otherwise you would not have been able to commit whether you were an adult of 18 or an emancipated minor at 17 or below. Chairman Porter said that the jurisdiction of the court that would deal with the individual, if the individual committed that offense, would still be guided by age. Number 090 REP. JAMES went back to the issue of purpose or no purpose, and commented that if the purpose was there to explain the whole thing, then it should explain the whole thing. She said she really does see a benefit in having a purpose in legislation. She said that she had seen in statutes some abbreviated amount of purpose to more fully explain the statute. She added that sometimes it's not possible to fully explain the bill in the text. Number 115 REP. NORDLUND suggested that if the sponsor or committee wants to have a purpose, then write it before it gets to the Finance Committee and offer it as an amendment in Finance. Number 136 CHAIRMAN PORTER replied that was a very good alternative to what the committee had discussed, and if it was agreeable to the committee, then the committee would do that. Number 180 REP. NORDLUND offered Amendment No. 1 . Number 172 CHAIRMAN PORTER said that he thought the statement purpose was given in lieu of Amendment No. 1 and that the committee had agreed that an amendment would be offered in Finance incorporating an entire statement of purpose for the entire bill. Number 180 REP. NORDLUND said he thought the committee had stripped the purpose section and it would go to Finance without any purpose section and it would be reintroduced at that time. Number 185 CHAIRMAN PORTER responded that was fine, and entertained a motion. AMENDMENT NO. 1 PASSED WITHOUT OBJECTION. Number 193 REP. NORDLUND introduced Amendment No. 2, which he said would in no way radically alter the attempt of the emancipation sections of the bill, and the legislation would still allow for custodian to initiate petition to begin the emancipation process. But in Section 8, before the court could actually issue an order for emancipation, they would have to get on the record consent from the minor that the minor does want to be emancipated. He said this would be a safeguard in the legislation so that the parent isn't taking the kid out of the home when the kid isn't ready for that, and it might in some way help the parent and child come together, and if the child is confronted with this, he/she might decide to move back in the house. Number 234 REP. KOTT objected to the amendment for the purpose of hearing the sponsor's position on the amendment. Number 236 JERRY BURNETT said that the problem the sponsor has with this is if there is a case where the minor would refuse consent where the judge might otherwise find it's in the best interest of every one involved, including the minor. Mr. Burnett said the minor might refuse for some other reason, and that might not lead to a good result. Number 258 REP. JAMES responded the petition was being filed by the minor, so this wouldn't be applicable. Number 268 MR. BURNETT replied that an alternative whereby the parents or legal guardians could file was also language in SB 45. Number 274 REP. NORDLUND said generally it's not good to see minors emancipated before 18 years of age; however, allowing the parents to file was a good addition to the law, assuming the minor would agree it's a good idea. REP. DAVIDSON stated he agrees with the amendment, because he would rather err on behalf of the child, and doesn't see any situations where this would be a problem. He also said he thought one last effort to get some sort of agreement between the parent and child was not a bad investment. He added that he was afraid the law would make it too easy on the parents to abdicate responsibility on behalf of their children. Number 320 REP. JAMES commented that any court making a decision without determining that the minor gives permission, and even putting the amendment in there is not necessary, although it doesn't hurt to have it in there. She said she tried to imagine a dispute between a child and legal guardian, and couldn't believe that being the case, that the court wouldn't find out from that child what the child wants. Number 238 REP. GREEN noted that the parents don't have to consent for emancipation in the first section of the bill, but the amendment would require the child to consent, and he wondered if the committee should add that both parties have to consent. Number 350 MR. BURNETT said that Section 6 does require parental consent unless the court finds it in the best interest of the minor, and that it would be perfectly reasonable to put the same language in with regard to the minor, where if the court finds the minor to unreasonably withhold consent, the court acting in the best interest in the minor may waive the requirement. Number 370 CHAIRMAN PORTER said he was going to speak against the amendment, but Mr. Burnett's suggestion placates his problem with it. Chairman Porter further stated that this is supposed to be an opportunity for the parents, but if this provision says the minor has to consent unless the court overrides the decision, then he would agree with the amendment. Number 388 REP. NORDLUND said he would consider that a friendly amendment to the amendment. Number 399 CHAIRMAN PORTER agreed and said the committee staff would work on the language to see that it's correct. REP. NORDLUND stated that the committee could add the language and pass it out without his seeing it prior to the event. Number 418 REP. NORDLUND offered Amendment No. 3 , which he said under the current version of SB 45, the officer is allowed the discretion in terms of bringing the child back to the legal custodian, a shelter, or DFYS, and the concern is that you don't want to return a child back to an abusive home. He said that the amendment is added language to ensure that doesn't happen. Number 443 REP. GREEN concurred with Mr. Nordlund with the possible exception of the word "alleged." He said he was concerned that a child or youth may use that particular thing to bypass where he should be. Rep. Green asked if stronger language could be added rather than "alleged." Number 460 REP. NORDLUND said he understood the concern and there were kids out there that use that to get out of situations that aren't abusive, but he said it is better to err on the side of safety. Number 469 CHAIRMAN PORTER spoke against the amendment and suggested passing the amendment with the deletion of "minor, alleges, or." Chairman Porter discussed police picking up runaways and problems relating to the runaway population that manipulate the system. He said it requires some degree of faith in the efficient functioning of law enforcement, but when you think about it, it's done every day. Chairman Porter said he doesn't know of any case in this state where a police officer has returned a child to an abusive home, but he knows of many cases where children have used this allegation as a false accusation against their parents; and while saying the law should err on the side of the child, at the same time the law has to be practical. Number 508 REP. JAMES replied that she agreed with the Chairman's statements, and that we don't want to put children back in abusive homes, but we do have to have some faith in our officers. She said the whole problem we have, in this bill, is providing some sort of safe haven for the homeless and runaway children, and the goal is to find some sort of safe place for these people. She followed up by saying that we need to be selective, putting those most in need in legal custody or temporary shelters. Number 525 REP. DAVIDSON asked what happens when the average officer picks up a runaway. Number 537 CHAIRMAN PORTER said that under current law the officer has a conversation with the youth and says here are your options, you can go home, you can go to DFYS, or you can go to a shelter. He said under this scenario the vast majority don't want to go home, so there isn't a specific question of why did you run away, rather it most always comes up if the child is at all talkative. Chairman Porter added that this is in the case of an urban community. REP. DAVIDSON asked if in most instances the child takes his/her option with a third party, thus taking the option out of the home. Number 561 CHAIRMAN PORTER answered that if this bill were to pass, it would provide that this discussion would be different. He said the officer would say, I have the ability to take you home, or to DFYS, or foster care, and why shouldn't I take you home? Chairman Porter explained that then the officer has discretion, and the burden of the level of probable cause established here is not probable cause, it's reasonable cause to suspect, which is less. Number 593 REP. DAVIDSON asked in what circumstance would the officer have reason to suspect. Number 597 CHAIRMAN PORTER responded that there is instruction given to police officers that gives them an insight into profiling an abused child, but it's up to the officer to overcome the suspicion that is created by the allegation before he or she can take the child home. Chairman Porter added that the current system isn't working, which is why we are trying to fix it through this legislation. He said that while we haven't had any cases of returning a juvenile to an abusive home, the state has had a myriad of cases where the juvenile is jerking around the parents, and that's what we are trying to fix. Number 602 REP. DAVIDSON asked another question relating to kids using the law; and asked, if this legislation will change the law so they can't use it as easily, then what is the plan to get to the kids and tell them this option isn't open any more? Number 610 CHAIRMAN PORTER responded that these things easily get around. Number 618 REP. JAMES discussed an experience as a foster mother. Number 647 REP. DAVIDSON said that just to insert society's enforcers between parent and child is bad enough, but he knows things are not all that great out there these days. Number 650 CHAIRMAN PORTER said he thinks that is exactly what the existing statute is doing; it inserts the enforcers whether it be the police or DFYS, or whatever, in between the parent and child. He added that it seems implicit that a runaway is not going to go home, and that the intent of this bill is to reunite parents and children, and if the law functions against that role, it should be changed. REP. DAVIDSON asked, when that is not a viable option, does HB 45 take an unnecessary run at trying to accomplish that once again, and who's the expert that recognizes if that's not a viable option? Number 676 CHAIRMAN PORTER responded that what the committee is discussing within this amendment is giving the hammer back that the CS is trying to take away. He said for that reason he doesn't think this total amendment is appropriate. Number 685 REP. NORDLUND said his amendment takes away the discretion from the minor. Number 694 CHAIRMAN PORTER said that in all fairness, this amendment gives it right back, because most all minors will know about this exception in a matter of months. Number 706 REP. NORDLUND replied that he's not sure about that, but he wants to make sure that the system err's on the side of safety for the kids. He also said that if the committee doesn't like the "minor alleges" part, it can be taken out and the committee can deal with the rest of it. Number 708 CHAIRMAN PORTER moved to amend the amendment by deleting the words "minor alleges or the." Number 717 REP. JAMES opened the discussion on the amendment by saying she doesn't see the need for it at all because SB 45 will exercise the officer's discretion. Number 741 CHAIRMAN PORTER asked to address the amendment to the amendment first, and asked if there was any objection to the amendment to the amendment. Objection was heard and a roll call vote was taken, with the following results: Rep. Green yes Rep. Kott no Rep. Nordlund no Rep. Phillips no Rep. Davidson yes Rep. James yes Rep. Porter yes THE MOTION TO AMEND THE AMENDMENT TO AMENDMENT NO. 3 PASSED. Number 794 Chairman Porter announced the committee had Amendment No. 3 as amended before the committee. Number 807 The committee discussed Amendment No. 3 AMENDMENT NO. 3 PASSED WITHOUT OBJECTION. REP. NORDLUND pointed out that the committee had not voted on Amendment No. 2. Number 826 CHAIRMAN PORTER entertained a motion to move Amendment No. 2 with the intent of the House Judiciary Committee counsel to draft it as the committee directed. Number 828 AMENDMENT NO. 2 WAS MOVED WITHOUT OBJECTION. Number 830 REP. NORDLUND introduced Amendment No. 4, which was in response to concerns expressed about the length of stay in facilities for minors: after seven days the minor can stay in the shelter for another seven days, but after 14 days the department has to go in there and make sure the kid is being well taken care of. Number 861 PAT O'BRIEN, Department of Health and Social Services, Division of Family and Youth Services (DFYS), testified against the amendment, stating the prohibitive cost, but agreed it is a concern that should be looked at. Number 870 DONNA SCHULTZ, DFYS Coordinator, added that most of these children would not be DFYS clients in the first place, so they are not clients or charges of DFYS, and so that would be a concern asking DFYS to perform this services. TAPE 94-4, SIDE A Number 031 REP. DAVIDSON asked about facilities: Once they have received a permit, can the department can make unannounced visits? Number 039 MS. O'BRIEN replied, yes, the department could. Number 059 CHAIRMAN PORTER asked Ms. O'Brien to expand on the subject of kids in shelters under the purview of DFYS. Number 079 MS. O'BRIEN said that only if there is abuse and neglect does the department get deeply involved and take custody of that child, and then the department would take custody and place them into a foster home, or if previously in a runaway shelter, they would upgrade that to a foster home. She said runaways usually fall into a middle category, and they hope to create something sort of intermediate, but it's not going to be easy to do. Number 138 CHAIRMAN PORTER said he understands, but what they are setting up is a formalized system for an informal treatment of runaway kids, but there would be no accountability, which would result in the state not knowing which kid was where, unless there was a reporting requirement. Chairman Porter said he found the reporting language in the legislation to be wanting and had prepared an amendment to shore it up so the shelter notifies DFYS, if for no other reason than the department knows where the child is. Number 165 REP. NORDLUND indicated he was willing to withdraw Amendment No. 4, but asked DFYS to come up with an alternate to have introduced in the Finance Committee. Number 203 REP. NORDLUND introduced Amendment No. 5, amending the liability section, starting on page 10, line 30, in which the first section is immunity from criminal activities, and Section B is the immunity for liability from civil activities. He said that a safe home is not immune from liability with his amendment if it violates the provisions of this law or the regulations that come from it. He said it takes the same language that applies to criminal liability and applies it to civil liability. Number 238 CHAIRMAN PORTER indicated he didn't have any problem with the amendment and explained that the immunities offered in the bill for the non-profits and mid-level certifiers and the safe homes are not immunities that preclude their liability for acts or omissions of their own. He went on to say they were only offered for the acts of the kids that they didn't otherwise control. Number 249 REP. JAMES discussed liability when there is damage to a third party, when they are under control of that person, and asked if the provider was responsible. Number 282 CHAIRMAN PORTER responded that normal tort law would apply. Number 299 REP. JAMES asked if the committee was saying that these two things have nothing to do with the acts of the child, but only apply to the acts of the people in the safe home. Number 300 CHAIRMAN PORTER replied that it had nothing to do with the acts of the youth that they could not ordinarily anticipate or control. Number 302 REP. JAMES asked who was responsible, and stated that it would have to go back to the parent. Number 312 REP. GREEN asked the committee counsel, if under this language, would there be any court that would tend to move towards liability because of this? Number 322 DANIELLA LOPER, House Judiciary Counsel, replied that if the shelter merely shows negligence, then they will not be held liable. She discussed the terms reckless and intentional misconduct and discussed degrees of liability and intent. Number 311 AMENDMENT NO. 5 WAS MOVED AND PASSED WITHOUT OBJECTION. Number 345 CHAIRMAN PORTER offered Amendment No. 6 from DFYS. Number 359 PAT O'BRIEN, DFYS staff, said the department did not give an amount for increasing the amount of counseling for runaways and their families in their fiscal note. She explained that as HB 45 had moved through the legislative system, there were expectations that DFYS would either provide counseling or provide the money for counseling for runaways and their families. Ms. O'Brien said the amendment would formalize DFYS's plan by adding the concept of availability, and specifically the change would be on page 7, line 22, and instead of "counseling services for the custodian and the minor's household are available," the amendment would change it to read "may be available under AS 47.10." Ms. O'Brien said, in addition, on line 24, "the department shall offer", DFYS suggests adding the words "available counseling service..."; and on page 8, line 3, the amendment adds the word "available" before counseling. She said the department simply does not have the funds to be mandated to provide these services. Number 379 CHAIRMAN PORTER agreed that the fiscal note would be quite large, and said his understanding already was to use available services. REP. DAVIDSON asked, Since the services wouldn't be available outside the urban areas, what happens? Number 383 MS. O'BRIEN replied that DFYS would have to investigate, and they might use a village peace officer to do a safety check and find out what's going on, or in the case of medium size communities, there are often mental health centers, and in large facilities there are runaway services that offer mediation to families. She said DFYS would never do nothing, but would take whatever services are available there and let them know what services are available in the community that they can avail themselves of. REP. DAVIDSON asked what level of service would be available for a child in Bethel in comparison to a child in Anchorage. Number 411 MS. O'BRIEN said not a whole lot, but DFYS has an office there and that would give DFYS the opportunity to do this, even though they are not obligated to do this, but they might say you have someone out there through either one of the health organizations or place that you could refer that child so the child is getting services, or at least are available and made known to them, but DFYS won't have to physically do this. Number 460 MS. SCHULTZ added that the department would definitely assess the child for abuse and neglect issues, or any other real serious issues, and if those are the case, then a case would be opened on it and put into their priority system. Number 475 AMENDMENT NO. 6 WAS MOVED AND PASSED WITHOUT OBJECTION. Number 478 CHAIRMAN PORTER said he had three amendments starting with Amendment No. 7, page 2, line 20, regarding one of the concerns about the criteria for emancipation relating to the ability for self-support. He said the amendment adds the word "sustained self-support." Discussion ensued on the concept of "self-support" and the ability of self-support on a sustained basis throughout the period of time the minor would have been under the age of majority. CHAIRMAN PORTER continued with his discussion of Amendment No. 7, referring to page 12, line 7 and line 27, the sections dealing with non-profit corporations as the entity that's licensed. He cited Sections C and D, saying the entity named here are the non-profits, and clarified the use of the word person. Number 478 AMENDMENT NO. 7 PASSED WITH UNANIMOUS CONSENT. Number 545 CHAIRMAN PORTER moved Amendment No. 8, referring to page 5, lines 2 and 4, which prohibits a minor working after 10:00 p.m. on school nights, unless the minor has graduated from secondary school. He explained that the amendment would take out "without permission of the minor's legal custodian." Chairman Porter stated that currently there is no such provision in the law, and if the legislation required written permission of a parent, it would cause a nightmare for businesses. Number 597 MR. BURNETT said the provision was in SB 45 in order to prevent the child from not going home because of working. Discussion ensued about child labor laws and the intent of the committee not to make any changes in that area. Number 614 CHAIRMAN PORTER discussed the difficulty of enforcing such a provision. The committee discussed the amendment further. Number 770 AMENDMENT NO. 8 PASSED WITH NO OBJECTION. Number 790 REP. GREEN made a motion to move SB 45 out of committee with individual recommendations. There being no objection, it was so ordered. CHAIRMAN PORTER adjourned the meeting at 4:40 p.m.
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