Legislature(1999 - 2000)
02/09/2000 01:20 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
HB 259 - PUBLIC DEFENDER CHILDREN'S PROCEEDINGS CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL No. 259, "An Act relating to a parent's eligibility to be represented by the public defender before and during the probable cause and temporary placement hearing that is held after the state takes emergency custody of a child." Before the committee was CSHB 259(STA). Number 1003 REPRESENTATIVE JOHN COGHILL, Alaska State Legislature, sponsor, explained that HB 259 addresses getting counsel to parents who have to deal with a system that is sometimes very difficult to understand. Many times a child is taken into protective custody and there is a statutorily mandated 48-hour hearing. In Anchorage, he noted, people are previewed to see whether they are indigent, and then are given counsel before a judge at the 48-hour hearing; however, that is not always the case. He has proposed a bill, therefore, that will get counsel to people at that 48-hour hearing, because once the determination is made that a child needs assistance, the family enters into a system that is a whole new world, and they need to understand what is going on at that juncture. He explained that HB 259 is intended for getting counsel as easily as possible for people that are in need. Number 1156 REPRESENTATIVE CROFT made a motion to adopt Amendment 1, which read: Page 1, line 6: Delete "A" Insert "Subject to the other provisions of this subsection, a" Page 1, lines 7-8: Delete ",pending a determination of indigency," Page 1, line 10: Delete "under this subsection" Insert "in connection with the hearing" Page 2, line 2, following "expense.": Insert "If a person who was represented by the Public Defender Agency at public expense without a court order in connection with a hearing held under AS 47.10.142(d) is not later determined to be eligible for court-appointed counsel at public expense under applicable laws and court rules, the court shall assess against the represented parent the cost to the Public Defender Agency of providing the representation." CHAIRMAN KOTT objected for the purpose of discussion. REPRESENTATIVE COGHILL explained that Amendment 1 simply says that the expense can be prorated back to a person who is found, after the hearing, to be able to afford it. Number 1237 CHAIRMAN KOTT withdrew his objection and announced that without objection, Amendment 1 had been adopted. Number 1258 HARRY NIEHAUS testified via teleconference from Fairbanks, specifying that he was speaking on behalf of the Guardians of Family Rights, in support of HB 259. He referred to page 2, line 7, where it reads, "any income source the person has had for a period of three years." He asked if it is three years or one year. REPRESENTATIVE COGHILL indicated it is three years in existing law. Number 1319 MARCI SCHMIDT testified via teleconference, encouraging the passage of HB 259. She explained that many parents and other family members that have entered into the Division of Family and Youth Services (DFYS) process have felt that they needed representation during the first hearings. She indicated that a lot of people have been beguiled into admitting probable cause without knowing what they are saying. She believes HB 259 would be cost-effective and would help out in the long run in getting people to cooperate, getting some cases dismissed and clearing up some workloads. REPRESENTATIVE GREEN asked Ms. Schmidt whether she believes it would help or hinder the process to have a notification made that an attorney will be provided, but that if it is found later that the person can afford the attorney, that person will be charged for the service. MS. SCHMIDT indicated that she doesn't think it will hinder the process. She explained that it is very hard to find a private attorney in child-in-need-of-aid (CINA) cases, which are long, expensive and dragged out. She said it would be cost-effective and also might encourage privatized attorneys to come forward and represent a client. She added that currently it is about $10,000 to get an attorney in the private sector. Number 1460 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He pointed out that his agency had submitted a fiscal note with an analysis. His agency believes that they could start earlier in cases, which is better; it is important to have some leeway in their duties here, however, and the words "may be represented" are very important to them. Mr. McCune noted that conflicts of interest are tricky in these cases; the agency may sometimes have to sort out a conflict before determining whether to represent someone. He added, "And also I think we have to be careful we take the most serious case in order to save money and time down the road." MR. McCUNE advised members that his agency doesn't anticipate doing additional work on those cases. He stated, "We'd be working sooner and hopefully get things resolved quicker, but I can't promise 24- hour-a-day coverage and unlimited resources devoted to this. But within our resources, I think getting parents representation sooner in these cases is a good idea." Mr. McCune expressed agreement with the amendment adopted. As far as eligibility and recoupment of costs, he said that is up to the legislature. He added: Of course, we don't want to represent people who are financially able to hire their own attorneys. We can recommend some attorneys. I know in Anchorage there are some attorneys who do take these cases and charge maybe a little less than the previous speaker said, but I know in other areas of the state it is difficult. But if we find somebody who's presumptively eligible - in other words, somebody who has currently received some public assistant or has had counsel appointed for them in the past - I think we'd feel real comfortable going ahead and representing them without a determination of indigency. Number 1602 CHAIRMAN KOTT wondered if the zero fiscal note is derived from the assumption that few indigent people will have to be accommodated or if the assumption is that the few numbers out there will be absorbed in the current budget. MR. BLAIR responded: What I anticipate is that the people who we would work with under this would be people who we would eventually be appointed to represent in the course of business the way things usually are going under the current legislation. ... We could represent people we would eventually be appointed to represent, but start with them earlier. And that's my assumption. CHAIRMAN KOTT requested clarification on the fiscal note analysis where it reads, "The Public Defender Agency does not anticipate any fiscal impact from this legislation if it is amended so that we are not obligated to represent non-indigent parents." MR. BLAIR responded that the language was in the analysis before the committee substitute (CS) was adopted for HB 259. He said he would proofread it better and take the language out. CHAIRMAN KOTT wondered how much discretion the Public Defender Agency has in representing the people that are in these type of cases. MR. BLAIR replied that the answer is none. He explained that once they are appointed by the court to represent the person, unless there is a conflict of interest or some reason for them to withdraw, the agency will take the case. CHAIRMAN KOTT, noting that there were no further testifiers, closed public testimony. Number 1765 REPRESENTATIVE CROFT made a motion to move CSHB 259(STA), as amended, with individual recommendations and the attached zero fiscal note from the committee. There being no objection, CSHB 259(JUD) was moved out of the House Judiciary Standing Committee.
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