Legislature(1997 - 1998)

04/17/1998 02:39 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE                                   
                                                                               
CHAIRMAN GREEN announced the next item of business would be HB 375,            
"An Act relating to children in need of aid matters and                        
proceedings; relating to murder of children, criminally negligent              
homicide, kidnapping, criminal nonsupport, the crime of indecent               
exposure, and the crime of endangering the welfare of a child;                 
relating to registration of certain sex offenders; relating to                 
sentencing for certain crimes involving child victims; relating to             
the state medical examiner and reviews of child fatalities;                    
relating to teacher certification and convictions of crimes                    
involving child victims; relating to access, confidentiality, and              
release of certain information concerning the care of children,                
child abuse and neglect, and child fatalities; authorizing the                 
Department of Health and Social Services to enter into an                      
interstate compact concerning adoption and medical assistance for              
certain children with special needs; authorizing the establishment             
of a multidisciplinary child protection team to review reports of              
child abuse or neglect; relating to immunity from liability for                
certain state actions concerning matters involving child protection            
and fatality reviews and children in need of aid; relating to                  
persons required to report suspected child abuse or neglect;                   
relating to foster care placement and to payment for children in               
foster and other care and the waiver of certain foster care                    
requirements; relating to the access to certain criminal justice               
information and licensure of certain child care facilities;                    
amending Rule 218, Alaska Rules of Appellate Procedure; amending               
Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and             
providing for an effective date."                                              
                                                                               
CHAIRMAN GREEN called on Representative Dyson to explain the bill              
[Version H, CSHB 375(HES)].                                                    
                                                                               
Number 0376                                                                    
                                                                               
REPRESENTATIVE DYSON, who had helped to revise the original                    
version, told members this is an ongoing process, and what is                  
before them still needs work.  The amendments fall into two                    
categories.  He believes there is agreement with the Administration            
on the first group of amendments, but if they have a problem with              
any portion, he wants to ensure them the chance to speak to that.              
For the second group of amendments, Representative Dyson and his               
staff have honest disagreements with the Administration; he wants              
to ensure the Administration a clear chance to present their                   
perspective, which he believes is an informed and largely                      
reasonable one.  He noted that HB 375 came out of the Governor's               
task force and was significantly revised in the House Health,                  
Education and Social Services Committee.                                       
                                                                               
Number 0573                                                                    
                                                                               
REPRESENTATIVE DYSON offered Amendment 1, labeled 0-GH2009\H.1.                
                                                                               
Number 0621                                                                    
                                                                               
LISA TORKELSON, Legislative Assistant to Representative Fred Dyson,            
Alaska State Legislature, explained that H.1 and H.2 are two parts             
of the memorandum she had passed around to committee members the               
previous evening.                                                              
                                                                               
REPRESENTATIVE CON BUNDE said he would move Amendment 1 for                    
discussion purposes.                                                           
                                                                               
CHAIRMAN GREEN objected, also for discussion purposes.  He                     
specified that Amendment 1 is the 4/17/98 version [0-GH2009\H.1,               
Lauterbach, 4/17/98].  He asked Ms. Torkelson to explain what the              
three-page amendment does.                                                     
                                                                               
Number 0683                                                                    
                                                                               
MS. TORKELSON referred to the first change and told members there              
is duplicate wording:  On page 21, line 31, it says, "the right and            
responsibility to protect, nurture, train and discipline the                   
child"; and on page 23, line 18, it says, "(5) parents and                     
guardians have the right to direct the upbringing of their                     
children, including their medical care and the right to exercise               
reasonable corporal discipline".  Ms. Torkelson said rather than               
having it in two separate places, this puts it into one.                       
                                                                               
CHAIRMAN GREEN requested confirmation that it is just                          
housecleaning.                                                                 
                                                                               
Number 0738                                                                    
                                                                               
MS. TORKELSON said it moves the language to Section 1, under the               
rights and responsibilities of the parent.  She had requested the              
drafters to either move both into the same place or delete one, as             
she hadn't been sure whether it was duplicative.  On page 2 of the             
amendment, line 5, it then deletes all material from page 23, lines            
18 through 20, of the bill.                                                    
                                                                               
MS. TORKELSON explained the second change, relating to page 22,                
lines 9 through 23.  That was a wording change recommended by the              
department.  "We read over it and didn't see any problems with it,"            
she said, indicating they may have made a couple of small changes              
but that it is a "mutual version."                                             
                                                                               
Number 0852                                                                    
                                                                               
REPRESENTATIVE BUNDE requested confirmation that this is one of the            
amendments that have mutual consent.                                           
                                                                               
REPRESENTATIVE DYSON said yes, expressing confidence that the                  
people present from the Administration would let him know if there             
is a difference of opinion.                                                    
                                                                               
Number 0870                                                                    
                                                                               
MS. TORKELSON returned to Amendment 1 and the wording relating to              
page 22, lines 9 through 23; she said that is tightened up wording             
regarding visitation, especially.  Much of the language is the                 
same, but it was easier to delete it and rewrite it, rather than               
take out certain words and replace them.                                       
                                                                               
REPRESENTATIVE DYSON explained, "It is certainly our conviction                
that if a child is removed from his home, particularly a young                 
child, being able to have regular visits ... soon with their                   
parents ... is really important to the kid.  And we squabbled with             
the department here for the last week and a half about spelling out            
how often, and so on, and how soon those visitations should start.             
And the department takes the position that ... they recognize it as            
very important.  They don't want the frequency and the immediacy               
spelled out in law.  And I have a promise from them that it will be            
spelled out in regulation."                                                    
                                                                               
MS. TORKELSON added, "Or policy."                                              
                                                                               
REPRESENTATIVE DYSON continued, "And policy statements."  He                   
indicated that would relate to both training and literature given              
to the foster parents about visitation.  "And we will be watching              
that," he added.                                                               
                                                                               
Number 1010                                                                    
                                                                               
MS. TORKELSON advised members that in her office were copies of the            
comparison between Version H and the Governor's original bill that             
was done by the department.  In addition, she had done a comparison            
by section number.                                                             
                                                                               
CHAIRMAN GREEN agreed that might be a quick way to bring up to                 
speed those members who are not also members of the House Health,              
Education and Social Services Committee.                                       
                                                                               
REPRESENTATIVE JAMES and REPRESENTATIVE NORMAN ROKEBERG expressed              
the need to review the bill.                                                   
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ said he had skimmed it and was                  
generally happy with it.  However, there are a couple of tweaks                
that he believes would strengthen it.                                          
                                                                               
CHAIRMAN GREEN suggested before getting into the amendments that               
Representative Dyson lead the committee through the bill briefly               
and then be ready for questions.                                               
                                                                               
Number 1141                                                                    
                                                                               
REPRESENTATIVE BUNDE withdrew Amendment 1.                                     
                                                                               
Number 1147                                                                    
                                                                               
REPRESENTATIVE DYSON offered to make a summary statement about the             
bill and then let better-informed people from the department                   
explain it.  He stated his belief that most of this began in the               
Governor's task force on child protection, which started meeting               
the previous August.  There are two or three things it aims at,                
which are fairly critical.  Changes in federal law require                     
conformity by the states if they want federal participation and                
funding.  "And I think the price is about $10 million here," he                
noted.  The federal law requires making protection of the child                
preeminent.  It puts a real emphasis on getting children out of                
state custody, either reunited with their families or in a                     
permanent placement, and on minimizing the number of placements, so            
that children don't get shuffled from home to home.                            
                                                                               
REPRESENTATIVE DYSON said as he understands it, the federal law                
requires a multi-disciplinary team working on child protection                 
issues.  There are problems in Alaska's law about confidentiality,             
particularly relating to different departments' ability to share               
relevant information pertaining to juvenile records; this bill                 
purports to take care of that.  The five departments working on                
this are affected by this bill in how those things are handled, in             
trying to come into conformity with federal law, in trying to                  
eliminate problems with sharing information, and in putting the                
emphasis on protecting children.                                               
                                                                               
Number 1267                                                                    
                                                                               
CHAIRMAN GREEN asked whether the changes made in the House Health,             
Education and Social Services Committee, as well as the proposed               
amendments, were because of differences among departments,                     
differences between Representative Dyson and the department, or                
both.                                                                          
                                                                               
REPRESENTATIVE DYSON said both, noting that the department had                 
worked with them very cooperatively.  He also noted that a lot of              
parents had called, concerned about parental rights and preemptive             
actions by the state.  "Most of our concerns have been taken care              
of," he added.                                                                 
                                                                               
Number 1305                                                                    
                                                                               
MS. TORKELSON informed members that she was having the two                     
comparisons she had mentioned earlier brought from her office.                 
                                                                               
Number 1328                                                                    
                                                                               
CHAIRMAN GREEN advised members that Susan Wibker of the Department             
of Law would lead them through the bill.  He then confirmed that               
participants at the four teleconference sites of Homer, Anchorage,             
Mat-Su and Fairbanks had copies of Version H.                                  
                                                                               
Number 1384                                                                    
                                                                               
SUSAN G. WIBKER, Assistant Attorney General, Human Services                    
Section, Civil Division (Anchorage), Department of Law, came                   
forward.  She explained that the first 21 pages or so of the bill              
deal with changes to the criminal law that increase the penalties              
for homicides of children and make it easier to charge more serious            
crimes when there is a death of a child.  Many of these provisions             
are contained in other bills, including bills sponsored by Senator             
Halford and Senator Pearce.  The intent of the changes to the                  
criminal law is to make it easier for prosecutors to get sentences             
in homicides of children that are comparable to the sentences                  
received for homicides of adults.                                              
                                                                               
MS. WIBKER explained, "The reason you get lesser charges against               
the offender that kills a child, and a lesser sentence, is because             
you can almost never prove intent to kill a child.  As a                       
prosecutor, often what you have is an intent to make a child be                
quiet, to control a child, to make a child stop crying.  So, what              
these changes do is allow a prosecutor to bring charges that would             
get a sentence commensurate with the sentence you would get for                
killing an adult.                                                              
                                                                               
MS. WIBKER continued, "A good example is the case you just had in              
Anchorage last week, where the woman took a child less than two and            
slammed it against a surface hard enough to fracture its skull and             
kill it.  If anybody did that to an adult, I don't think we'd                  
hesitate to say there was an intent to kill."  Ms. Wibker said the             
jury in that case had to decide whether it was murder II or                    
manslaughter, which is comparable to killing someone while drunk               
driving.                                                                       
                                                                               
Number 1482                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked whether she is talking about Section            
12.                                                                            
                                                                               
MS. WIBKER said she is talking about the Title 11.41 crimes that               
deal with homicides.  It is about the first four to five pages of              
the bill.  "Across the board, they increase the penalty and make it            
easier to get more serious charges," she explained.  "One of the               
things the bill does that's very important is it increases                     
criminally negligent homicide from a C felony to a B felony.                   
That's very important, because most of your shaken baby cases ...              
are settled as criminally negligent homicides.  A first offender is            
facing a maximum of five years, but with sentencing benchmarks,                
it's more like two.  Under this bill, a first offender would really            
be facing ten years."                                                          
                                                                               
MS. WIBKER told members the bill also creates a felony indecent                
exposure statute, which Alaska did not have before, and it makes it            
a more serious crime when the victim is a child.                               
                                                                               
Number 1571                                                                    
                                                                               
REPRESENTATIVE ERIC CROFT referred to pages 5 and 6; he asked what             
the aggravators are for indecent exposure in the first degree.                 
                                                                               
MS. WIBKER replied, "The victim is a child, and there is knowing               
masturbation in the presence of a child, which would make it a                 
felony rather than a misdemeanor."  She added, "You'd be amazed at             
some of the defenses to these charges we've heard."                            
                                                                               
MS. WIBKER next referred to pages 6 and 7, where endangering the               
welfare of a minor is expanded and broken into both a felony and a             
violation level of offense.  She said it is basically Alaska's                 
criminal neglect statute.  It is a crime of omission, of neglect               
against a child.  Under existing statute, it was only a crime to               
intentionally desert a child.  This expands the criminal penalties             
into things like knowingly leaving a child with a sex offender or              
with somebody known to be violent toward children.                             
                                                                               
Number 1636                                                                    
                                                                               
REPRESENTATIVE CROFT indicated that was in the original bill, but              
for children under age six.  He asked what changes besides the                 
increase in age had been made.                                                 
                                                                               
MS. WIBKER replied that some amendments in the House Health,                   
Education and Social Services Committee had dealt with the age of              
the victim and whether or not having a babysitter on the premises              
would serve as a defense.                                                      
                                                                               
REPRESENTATIVE CROFT asked, "And it no longer does?"                           
                                                                               
MS. WIBKER said it does not at the felony level; it does at the                
misdemeanor level.  Those were the amendments made.                            
                                                                               
Number 1669                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ referred to Section 9, stating his                    
understanding that it is a B felony if the child dies and a C                  
felony if there is sexual contact, sexual penetration.  He asked,              
"And the predicate elements are that you leave the child with                  
somebody, essentially?  Or you intentionally desert the child?"                
                                                                               
MS. WIBKER replied that it is intentional desertion, or what they              
would call the crime of poor supervision, knowingly leaving a child            
with someone that is going to be dangerous to that child.                      
                                                                               
Number 1702                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ indicated his understanding that it is not            
in any way an accessory type of crime.  He added, "And it seems to             
me you were in the accessory zone."                                            
                                                                               
MS. WIBKER replied, "No. ... You're getting at a problem in the                
criminal law that we feel this solves, which is when you have a                
child that dies or gets seriously injured, most of the time you                
have two suspects.  And under existing criminal law, you have to               
prove beyond a reasonable doubt that one or the other did it, and              
usually it's going to be two parents, parent/step-parent,                      
parent/boyfriend/girlfriend, whatever."                                        
                                                                               
MS. WIBKER noted that in many cases, the police have a difficult               
time proving who did it.  There may be insufficient evidence to                
prove conspiracy, aiding and abetting, or other crimes that might              
apply to the person who is guilty of poor supervision.  There have             
been at least a handful of cases where a child has died or been                
seriously injured but two people have walked Scot-free, or have                
made a deal where one would get immunity, one would go to trial,               
and then they would implicate each other and both walk.  Or else               
one would end up with some kind of a "little dinky plea bargain"               
because the state didn't have proof beyond a reasonable doubt as to            
who did it.                                                                    
                                                                               
MS. WIBKER explained, "What this does, when a child dies and the               
evidence shows that both people caring for this child knew that the            
child was in a dangerous situation with the other person and didn't            
do anything, the state could then charge both, rather than have                
both walk.  Not too long ago, there was a case in Anchorage, the               
early '90s, where a child died.  There were high-heel prints, shoe             
marks, on the child.  Both parents admitted to shaking the child,              
hitting the child.  Neither one ever 'fessed up' to anything close             
to what happened to the child, and ... I think one ended up plea               
bargaining to a misdemeanor assault, and the other one walked Scot-free.  This 
when you bring up aiding and abetting."                                        
                                                                               
Number 1798                                                                    
                                                                               
REPRESENTATIVE PORTER stated his understanding that they had taken             
out any third person, in terms of leaving a child in the proximity             
of a sex offender.                                                             
                                                                               
MS. WIBKER replied that on the first degree endangering, there is              
no babysitter defense anymore.                                                 
                                                                               
Number 1814                                                                    
                                                                               
REPRESENTATIVE CROFT asked what AS 17.30 is.                                   
                                                                               
MS. WIBKER answered that it is the statute that would allow a                  
prescription for a controlled substance.  If a person has a                    
controlled substance authorized under AS 17.30, that person has a              
prescription for legal use of it.                                              
                                                                               
REPRESENTATIVE CROFT said he understands the first degree                      
endangering the welfare, and on page 7, the second degree.  He also            
understands the 'incapacitated,' (2) and (3).  However, in (1) is              
a person guilty of this crime if that person simply possesses                  
drugs?                                                                         
                                                                               
MS. WIBKER said that is correct.  That is one reason it is a                   
violation, which is like a ticket and a fine, a citation.  It is               
not a misdemeanor.                                                             
                                                                               
REPRESENTATIVE CROFT asked about the first degree offense.                     
                                                                               
MS. WIBKER said for the first degree, the level of offense depends             
on the outcome to the child.                                                   
                                                                               
Number 1862                                                                    
                                                                               
CHAIRMAN GREEN asked whether possession would apply even if that               
substance were not involved in whatever happened.                              
                                                                               
MS. WIBKER explained that it would be a person caring for a child              
while possessing cocaine, for example.  It is the possession, not              
the abuse or use, that becomes the problem.  "But notice, it's a               
violation," she added.                                                         
                                                                               
REPRESENTATIVE CROFT emphasized that it is not use or impairment,              
nor does it have to be tied to the harm to the child.                          
                                                                               
Number 1890                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said he wants to be clear:  If someone has            
a bag of dope and is taking care of his or her four-year-old child,            
that person has just broken two laws.                                          
                                                                               
MS. WIBKER said that person would have committed a violation, which            
would result in a ticket, a citation.                                          
                                                                               
Number 1915                                                                    
                                                                               
REPRESENTATIVE PORTER asked whether they had negated the ability to            
charge that person with a felony, if another felony crime existed.             
                                                                               
MS. WIBKER replied, "If you could prove possession of cocaine,                 
obviously the prosecutor is going to prove possession of cocaine.              
If you can't prove that, what this does ...."                                  
                                                                               
REPRESENTATIVE PORTER suggested this is a general statement.  He               
stated, "I mean, you're barred from a general if there is a                    
specific."                                                                     
                                                                               
MS. WIBKER replied, "Right.  You wouldn't want this to be a 'lesser            
included,' that would bar you from getting a C felony possession of            
[cocaine]."                                                                    
                                                                               
Number 1929                                                                    
                                                                               
REPRESENTATIVE CROFT said, "The other way around, ... the simple               
possession isn't a 'lesser included' of this, because it's not                 
lesser.  It is included.  It has fewer elements, just knowingly                
possessing cocaine.  This adds the additional element of 'while you            
have control of the child.'"  He said it is written in such a way              
that it is not stepping on the general possession statutes.                    
                                                                               
Number 1953                                                                    
                                                                               
REPRESENTATIVE PORTER said this is knowingly possessing a                      
controlled substance, which is general in terms of drugs.                      
                                                                               
MS. WIBKER agreed, adding, "without a prescription."                           
                                                                               
REPRESENTATIVE PORTER commented, "Well, if Dean [Guaneli] says it's            
okay, I'll go for it."                                                         
                                                                               
CHAIRMAN GREEN asked Mr. Guaneli to come forward.                              
                                                                               
Number 1980                                                                    
                                                                               
DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services              
Section-Juneau, Criminal Division, Department of Law, explained                
that the purpose of this particular statute was to start                       
identifying people who were passed out from alcohol, having dope in            
their homes while the kids were there, and to start establishing a             
track record with these people and try to get them into counseling             
if appropriate.  As to the specific issue of whether, if someone               
has a pound of cocaine, this somehow precludes that charge being               
filed, no, it doesn't.  This says that if, in addition to that,                
there happens to be a child in the house, the person is guilty of              
an additional offense, in this case a violation.                               
                                                                               
MR. GUANELI said he doesn't think that adding an additional element            
to the possession of cocaine creates some legal or constitutional              
difficulty.  He acknowledged it is a little unusual when applied to            
cocaine, but when applied to marijuana and other offenses, it                  
doesn't look quite as unusual.  He believes the idea is to also                
give prosecutors some leeway when someone has a little dope in the             
house; he noted that this offense might be more palatable to some              
people than a drug offense.  It is a way to start keeping track.               
                                                                               
Number 2036                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said he is not condoning drug use by any              
stretch of the imagination.  But there is a world of difference                
between knowingly possessing and being incapacitated or under the              
influence.  Most of these are not going to be cocaine cases.  They             
will be marijuana cases, "just keeping it in the pocket, being                 
fully functional, taking care of the kids, putting the kids to bed             
and then smoking a joint later on."  Now, all of a sudden, they are            
endangering the welfare of their children?  It is not the same as              
having them take care of the kids while incapacitated or drunk.                
Representative Berkowitz questioned whether that is really the                 
direction they want to head.                                                   
                                                                               
CHAIRMAN GREEN suggested that if it happens in a house with no                 
external evidence, it won't be prosecuted anyway.  It would only be            
those places where this child has had some other problem occur.                
                                                                               
REPRESENTATIVE BERKOWITZ likened it to someone being pulled over               
for speeding in a car, then being patted down.                                 
                                                                               
REPRESENTATIVE PORTER questioned under what authority such a person            
would be patted down.  He said a person would have to be under                 
arrest for something.                                                          
                                                                               
REPRESENTATIVE BERKOWITZ suggested it may be for suspicion of drunk            
driving, or any number of reasons.  If there happens to be a child             
in the car, that person would be charged with endangering the                  
welfare of the child based on the marijuana, not anything else.                
"And I'm not sure that's the route we want to head," he restated.              
                                                                               
Number 2128                                                                    
                                                                               
REPRESENTATIVE BUNDE noted that in that analogy of being pulled                
over for suspicion of drunk driving, the person would certainly be             
endangering the welfare of a child.  He acknowledged there may be              
an analogy where a person is arrested for another offense, however.            
                                                                               
REPRESENTATIVE JAMES said she is somewhat sympathetic to what                  
Representative Berkowitz was saying.  She indicated she doesn't                
fully understand the scenario that could be happening.  She                    
referred to Chairman Green's suggestion that a person's possession             
of a controlled substance while caring for a child would not be                
evaluated unless there was another problem that would cause a                  
search, for example.                                                           
                                                                               
CHAIRMAN GREEN said there has to be some reason to trigger this.               
There would be some external manifestation before there would be a             
search like that.                                                              
                                                                               
REPRESENTATIVE JAMES asked about a child's crying.                             
                                                                               
CHAIRMAN GREEN said he doesn't know that crying by itself would be             
cause for an intrusion.                                                        
                                                                               
Number 2206                                                                    
                                                                               
MR. GUANELI said he'd thought Chairman Green's comment had meant               
there would have to be some triggering mechanism to get the police             
to the house or get authorities in the situation in the first                  
place.                                                                         
                                                                               
CHAIRMAN GREEN affirmed that.                                                  
                                                                               
MR. GUANELI said that usually means something involving the child.             
                                                                               
REPRESENTATIVE JAMES pointed out that a child can get hurt in the              
park, for example, and then everyone rushes in.                                
                                                                               
MR. GUANELI agreed with Representative Porter that it doesn't allow            
searching through purses or pockets.  However, if a law enforcement            
official is on the scene and smells marijuana, that may justify at             
least asking some questions.                                                   
                                                                               
REPRESENTATIVE JAMES asked:  What if it falls out of someone's                 
pocket?                                                                        
                                                                               
MR. GUANELI responded, "I think this generally reflects a feeling              
that illegal drugs in houses where there are young children is not             
a good idea.  I think that kids get into drugs, they find your                 
stash, they're more susceptible even to secondhand marijuana                   
smoke."                                                                        
                                                                               
Number 2249                                                                    
                                                                               
REPRESENTATIVE JAMES agreed, adding that she detests any use of                
illegal drugs.  However, she is a little uncomfortable about this.             
There may be more problems with this than they are anticipating.               
                                                                               
Number 2271                                                                    
                                                                               
REPRESENTATIVE PORTER said, to allay concerns, that if a law                   
enforcement officer discovers that someone possesses marijuana,                
that is an offense, in and of itself, whether there is a child                 
there or not.  If it were a lawful observation and determination               
that the possession occurred, the person would be charged with an              
offense.  This is just a violation that is tantamount to a parking             
ticket, and which can be used as "a little wedge with parents who              
otherwise might continue that behavior."  He stated, "Nobody's                 
going to take a child from a parent because of one violation.  It              
just isn't going to happen."                                                   
                                                                               
Number 2325                                                                    
                                                                               
REPRESENTATIVE DYSON said from his perspective, a major concern                
here is not that the person who is drunk or stoned is going to                 
necessarily deliberately harm the child.  Being incapacitated is               
the concern.  A person who smokes a joint after putting the child              
to bed will be incapacitated if there is a fire or another                     
emergency; it is irresponsible to be incapacitated when one has the            
responsibility for a child.  That is what they are aiming at.                  
                                                                               
REPRESENTATIVE BERKOWITZ clarified that he is distinguishing                   
between possessing and being incapacitated.  He has some                       
reservations about having possession as a trigger.                             
                                                                               
REPRESENTATIVE CROFT suggested it could be "under the influence                
of," a medium step from possession to incapacitated.  As it is,                
they haven't even tied it to any medium level of impairment or use.            
                                                                               
Number 2384                                                                    
                                                                               
CHAIRMAN GREEN noted that obviously possession would be easier to              
prove.  He asked whether "under the influence" creates problems                
with determining the amount necessary before being under the                   
influence.                                                                     
                                                                               
MR. GUANELI suggested it would help, if they use a term like "under            
the influence," to have a definition tied to something along the               
lines of our case law involving drunk driving, where it is                     
impairment to a certain degree; he said he would have to think                 
about what exactly that would be.  As long as there is a good                  
definition, it makes some sense and actually would apply to a                  
broader range of cases.  However, he would want that definition to             
be rather tight.                                                               
                                                                               
CHAIRMAN GREEN said he thinks that is a good point, that possession            
by itself may pose no harm at all.                                             
                                                                               
Number 2416                                                                    
                                                                               
REPRESENTATIVE BUNDE responded that he probably wouldn't argue                 
about marijuana possession.  But what about crack cocaine?  Anybody            
who possesses cocaine at home, with children there, is not                     
presenting a good home life for those children.  Such a person                 
should be counseled out of that behavior, and a violation would                
start that process and build a paper trail with the department for             
any future violations.  Representative Bunde acknowledged the                  
impossibility of crafting something that covers all situations,                
then restated his concerns about cocaine in the home.                          
                                                                               
TAPE 98-62, SIDE B                                                             
Number 0006                                                                    
                                                                               
CHAIRMAN GREEN asked whether they should change what they have,                
"controlled substance."                                                        
                                                                               
REPRESENTATIVE BERKOWITZ suggested Schedule 5 or above, or Schedule            
4 or above.                                                                    
                                                                               
Number 0032                                                                    
                                                                               
REPRESENTATIVE CROFT said it sounds like they are narrowing it, but            
as Mr. Guaneli noted, they actually would be broadening it.  There             
are situations where a person doesn't possess marijuana but is                 
under its influence, for example, without being incapacitated.  One            
could fall through the cracks of this, on a level that poses more              
harm to the child.  Being under the influence seems more directly              
related, and more culpable, than simply having it in one's                     
possession.                                                                    
                                                                               
CHAIRMAN GREEN said these are "ors," though.                                   
                                                                               
REPRESENTATIVE CROFT agreed there are three "ors":  (1) is                     
knowingly possessing; (2) is being incapacitated, which is                     
unconscious or incapable of making rational decisions; and (3) is              
again being incapacitated.  Therefore, somebody who was not                    
possessing but who had just used would not be included, while                  
somebody who possessed but wasn't using would be included.  He                 
suggested that is backwards from what they would like to have                  
happen.                                                                        
                                                                               
CHAIRMAN GREEN apologized, saying he had thought Representative                
Croft was arguing the other direction.                                         
                                                                               
Number 0056                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated his understanding that this doesn't            
take into account alcohol.                                                     
                                                                               
CHAIRMAN GREEN said it does, under (3), page 8.                                
                                                                               
REPRESENTATIVE BERKOWITZ said, "But that's an 'incapacitated.'"                
                                                                               
REPRESENTATIVE CROFT agreed; if someone is just somewhat drunk, it             
wouldn't apply.                                                                
                                                                               
CHAIRMAN GREEN suggested an intoxicant wouldn't necessarily be                 
limited to conventional booze.                                                 
                                                                               
MS. WIBKER said it includes inhalants.                                         
                                                                               
Number 0082                                                                    
                                                                               
REPRESENTATIVE PORTER said he thinks Representative Croft makes a              
good point.                                                                    
                                                                               
CHAIRMAN GREEN agreed.                                                         
                                                                               
REPRESENTATIVE PORTER suggested that could be easily accommodated              
by having the phrase "impaired or incapacitated" on both page 7,               
line 30, and on page 8, line 2, and then defining "impaired" along             
the lines Mr. Guaneli had discussed.                                           
                                                                               
CHAIRMAN GREEN asked about dropping (1).                                       
                                                                               
REPRESENTATIVE PORTER replied, "No, I would not drop (1).  It took             
30 damn years to get possession of marijuana to be considered                  
serious, and I'm not going to vote to put it back where it was."               
                                                                               
CHAIRMAN GREEN stated his understanding that the suggestion is to              
add "impaired or incapacitated" on (2) and (3).  He then suggested             
just putting "impaired," because one who is incapacitated is                   
impaired.                                                                      
                                                                               
REPRESENTATIVE PORTER agreed that "impaired" is sufficient.                    
                                                                               
Number 0148                                                                    
                                                                               
MS. WIBKER next referred to page 8, which deals with sentencing                
changes.  At the bottom of page 8, the important change is that                
currently a conviction for manslaughter comes with a minimum                   
sentence of five years.  This makes the minimum sentence seven                 
years when the victim is a child under age 16.                                 
                                                                               
REPRESENTATIVE BERKOWITZ suggested this would apply even in a DWI              
[driving while intoxicated] case.                                              
                                                                               
MS. WIBKER replied that it would apply across the board to a                   
manslaughter conviction if there is a child victim.                            
                                                                               
REPRESENTATIVE BERKOWITZ suggested that is not rationally related              
to child protection directly.  If they are trying to target child              
deaths that are the result of negligence, shaking babies, and so               
forth, that should be specified in here, rather than having the                
sweeping generality, the accident that results in the death of a               
child, as opposed to the death of an adult.                                    
                                                                               
Number 0203                                                                    
                                                                               
MS. WIBKER referred to page 9, line 7.  She told members that                  
language in bold print is a change in the law.  In a conviction for            
criminally negligent homicide, it allows the judge to aggravate the            
sentence up to the maximum, which would be ten years, with                     
criminally negligent homicide being a B felony.  Under current                 
sentencing guidelines, a first offender falls within a certain                 
range and normally gets one to four years; a second offender would             
normally get four to six years; and a third offender on a B felony             
would get six to ten years.  What this does is if the victim is a              
child under age 16, the judge can aggravate the sentence up to what            
a third offender would get, rather than being restricted to those              
guidelines.  It lets the age of the victim act as a sentencing                 
aggravator.                                                                    
                                                                               
MS. WIBKER noted that the rest of the changes in bold print on page            
9 deal with references, where changes have been made and the                   
references to those other statutes need to correlate with the                  
changes.                                                                       
                                                                               
MS. WIBKER next referred to page 10.  She said this part of the                
bill deals with the creation of a child fatality review team, which            
would be a team directed by the medical examiner to do death                   
investigations of children.  She explained that the child fatality             
review team has been operating, but not in statute; this creates               
statutory authority and allows the medical examiner to put together            
a review team for deaths.  When there is a death not investigated              
by the troopers, the report could go directly to the medical                   
examiner; otherwise, the medical examiner would come in after the              
law enforcement investigation.  This is to make sure that deaths of            
children are not too quickly written off as accidents, SIDS [sudden            
infant death syndrome] or natural causes.                                      
                                                                               
CHAIRMAN GREEN mentioned that some Senate bills are addressing                 
portions of this.  He asked whether there would be a dilemma if                
this is also addressed in another bill and both should pass with               
different provisions.                                                          
                                                                               
MR. GUANELI said that is a good question.  He noted that there is              
Alaska case law on that, but he couldn't immediately recall it.  He            
believes the courts have wrestled with that issue and resolved it              
in a way that reflects legislative intent, if that can be                      
discerned.  He added that if Senator Halford's bill relating to                
changes to the homicide laws were to pass both bodies, for                     
instance, he would hope that those comparable provisions here could            
simply be removed, eliminating any problem.                                    
                                                                               
Number 0401                                                                    
                                                                               
MS. WIBKER again referred to the child fatality review team.  She              
said based on the history available to the Department of Health and            
Social Services, perhaps 10 to 12 deaths of children per year may              
be prosecutable as homicides, if the medical examiner were able to             
do a thorough background search and take a second look.                        
                                                                               
MS. WIBKER next referred to page 15.  This part of the bill deals              
with the Department of Education (DOE), changing the law so that a             
person convicted of sex offenses cannot obtain a teaching                      
certificate; if a person with a teaching certificate gets                      
convicted, that person would lose the certificate.  Under the old              
law, after five years a person could try to re-obtain the                      
certificate; this eliminates that provision.  "Once you're a                   
convicted sex offender, that would be it, permanently," Ms. Wibker             
added.                                                                         
                                                                               
Number 0450                                                                    
                                                                               
CHAIRMAN GREEN asked whether that would hold because of the extreme            
difficulty in correcting a deviant's behavior in that regard.  He              
further asked whether this might be vulnerable to being struck down            
by some liberalized court.                                                     
                                                                               
MS. WIBKER said she doesn't know the answer, but she doesn't see               
any constitutional reason that the DOE would have to give a sex                
offender a teaching certificate.  In working on this bill, she had             
asked that department how many times they had given a convicted sex            
offender a teaching certificate after five years because of being              
convinced a person was rehabilitated; the DOE had told her they had            
never done it.  "This is not a change in practice," she concluded.             
                                                                               
Number 0484                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ noted that some concern has been raised               
with .460, indecent exposure, about a high school student caught               
"mooning," for example.                                                        
                                                                               
REPRESENTATIVE BUNDE agreed that is a valid point.  If one was                 
caught in a youthful indiscretion such as mooning or public                    
urination, could those qualify as sex offenses and bar that person             
from getting a teaching certificate for life?                                  
                                                                               
Number 0527                                                                    
                                                                               
MS. WIBKER said she doesn't believe a juvenile conviction would                
apply here, unless it were under an automatic waiver.  She noted               
that Senator Pearce has a bill with this same statutory provision,             
but has deleted the reference to AS 11.41.460, misdemeanor indecent            
exposure, while keeping in AS 11.41.458, felony indecent exposure.             
Ms. Wibker believes that is logical, because in reading the                    
definitions of those offenses, the misdemeanor is not necessarily              
a crime involving a child.  Ms. Wibker commented, "Who knows what              
really goes on, but most of the time when you find a misdemeanor               
conviction for indecent exposure, the story you get is, 'I'd been              
to a bar, I was urinating in public, the police saw me and popped              
me with this crime, that's all it was.'"  She suggested that if the            
concern is that people wouldn't be allowed to teach because of                 
that, they could delete the reference to AS 11.41.460, as Senator              
Pearce had done in her bill.                                                   
                                                                               
Number 0596                                                                    
                                                                               
REPRESENTATIVE PORTER commented, "Just so that there's no concern,             
mooning is out because it requires genitals, and ... taking a leak             
is not intentional exposure, as is required."                                  
                                                                               
MS. WIBKER agreed that urinating in public does not meet the                   
statutory definition, and the prosecutor would have to prove a lot             
more than that to get the conviction.  "But yet that's what they               
all say happened," she added.                                                  
                                                                               
MS. WIBKER referred to page 16 and said the references to statutes             
are changed there; these are not substantive.                                  
                                                                               
MS. WIBKER next referred to page 17, Section 21, amending AS                   
25.20.061.  She said that entire section dealing with AS 25.20 was             
added as an amendment in the House Health, Education and Social                
Services Committee.  It deals with custody decisions in divorces,              
not the parental statutes or the Division of Youth and Family                  
Services (DFYS) child protection system.  However, it does deal                
with domestic violence, creating presumptions and giving the courts            
guidelines for deciding the custody of children when there has been            
domestic violence in the family.  That entire section is set up so             
that if there has been domestic violence, that is factored in when             
decisions about custody and visitation are made.  The safety of the            
child is given priority and the appropriate weight.                            
                                                                               
Number 0712                                                                    
                                                                               
MS. WIBKER referred to page 21, line 24, Section 27.  She told                 
members this is where the statute begins to deal with the child                
protection system on the civil side of the law.                                
                                                                               
Number 0727                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked, "Lines 30 and 31, having been a                
child and expecting to have some at some point, what exactly is                
training a child and disciplining a child?"                                    
                                                                               
MS. WIBKER said that was the subject of some discussion in the                 
House Health, Education and Social Services Committee, and there               
had been a specific amendment.  She understands that "train" would             
be something like educate, guide and teach.                                    
                                                                               
MS. WIBKER mentioned that Representative Dyson had a proposed                  
amendment addressing the bottom of page 21, so that it would read,             
"the right and responsibility to protect, nurture, train and                   
discipline the child, including the right to direct the child's                
medical care and the right to exercise reasonable corporal                     
discipline".  She noted that the section deals with parental rights            
and responsibilities; the attempt was to clean it up and keep all              
of the language dealing with parental rights and responsibilities              
together.                                                                      
                                                                               
MS. WIBKER told members that pages 21 through 23 are the so-called             
legislative findings, a policy statement.  The first section deals             
with parental rights and responsibilities, and then it addresses               
the state's responsibilities when a child has been abused or                   
neglected.  It points out that in cases where there is very serious            
risk to the health or safety of the child, the state should be                 
finding a safe, permanent home for the child.  If the child can be             
safely reunited with the family, or if the state can do something              
to prevent removal from the family, the state should do that by                
offering the family appropriate rehabilitative services.  In                   
addition, the state should be providing visitation between the                 
child and the parent.                                                          
                                                                               
Number 0844                                                                    
                                                                               
CHAIRMAN GREEN asked, when talking about reasonable efforts and                
reasonable safety, if "reasonable" is a standard of law that                   
doesn't need a description.                                                    
                                                                               
MS. WIBKER explained that "reasonable efforts" is a federal legal              
term that applies to the Department of Health and Social Services.             
By law, that department must make reasonable efforts to prevent the            
removal of the child from the family and, if removed, must make                
reasonable efforts to return the child to the family home.  "So,               
you hear the term 'reasonable efforts' thrown around; that's what              
it means, to prevent removal and to reunite," she concluded.                   
                                                                               
CHAIRMAN GREEN inquired whether it is something upon which                     
litigation could turn.                                                         
                                                                               
MS. WIBKER answered, "It's pretty clear.  It's been required in                
every case.  What this bill, in federal law, does now is pull out              
the very, very serious cases of abuses, and no longer requires the             
department to do that, but requires the department to find a                   
permanent, safe home for the child.  That comes later."                        
                                                                               
MS. WIBKER discussed guidelines for the state listed at the bottom             
of page 22 and on page 23.  When the department removes a child and            
sets up a rehabilitative plan for the family, it sets out that the             
parents are expected to participate in that plan, to try to get                
their children home.  The last part of page 23 deals with the                  
importance of bonding and attachment, especially in children under             
age six, who need to form a bond with some adult care-giver.  If               
that doesn't happen, there are greater risks later on that a child             
will have very serious problems, such as lack of a conscience, lack            
of empathy, inability to bond and a very high risk of criminal                 
behavior.  Ms. Wibker concluded, "This is a policy statement about             
the importance of getting fast permanent, safe homes for children              
younger than six, and a policy statement about how important it is             
for young children to be able to bond."                                        
                                                                               
Number 0956                                                                    
                                                                               
CHAIRMAN GREEN asked whether, with that guideline, a person could              
be prosecuted for being an aloof parent.                                       
                                                                               
MS. WIBKER indicated there is no crime.  It is just a directive to             
the courts, when they review a case, of how to interpret this                  
statute and this law.  Noting that the state can define "very young            
children,"  she said one reason it is important to have that there             
is that federal law wants the states to treat cases involving very             
young children, especially when they have been abandoned, as more              
serious than other cases, putting a priority into getting those                
children into safe, permanent homes.  Therefore, it is important to            
deal with very young children a little differently.                            
                                                                               
MS. WIBKER next referred to page 24, Section 28, relating to                   
authorization of the Interstate Compact on Adoption and Medical                
Assistance, a compact that 37 states have entered.  She said that              
basically it means that states accept each others' Medicaid                    
eligibility determination on a child.  Ms. Wibker explained, "And              
the reason that's important is because when special needs children             
are adopted by people in another state, currently Alaska may cover             
the child under Medicaid.  And if a couple in Arizona adopts the               
child, their Medicaid has to be stopped in Alaska and then they                
have to reapply in Arizona.  If you're part of this compact, it                
will just carry uninterrupted.  This is an important part of                   
getting special needs children adopted into permanent, safe homes.             
This only applies to adoptions that are special needs, which are               
going to be things like kids that are HIV-positive and fire-setters.  These are
adoptions to get snagged or held up because of something like not              
being able to get the medical coverage the child needs."                       
                                                                               
MS. WIBKER pointed out that Alaska has already been accepting the              
Medicaid eligibility determinations of other states, when people               
adopt children from elsewhere.  By joining the compact, the state              
is not incurring any more expenses.  "We're getting the benefit of             
our bargain," Ms. Wibker said.  "We're getting other states to pick            
up our kids."                                                                  
                                                                               
MS. WIBKER next referred to page 24, saying it moves into the                  
standards under which the state could take legal custody of                    
children, "what we call the jurisdictional part of the statute,                
jurisdiction meaning there are certain fact patterns that would                
allow the state to have legal jurisdiction over a child and to take            
legal custody of that child."  The first 5 of the 12 situations                
listed are abandonment; an incarcerated parent when the other                  
parent is not available to care for the child; the child left with             
a babysitter or neighbor, when no one returned to pick up the                  
child; and medical neglect, where the parents know the child needs             
medical treatment for either a physical or mental injury but fails             
to get that treatment for the child.                                           
                                                                               
Number 1151                                                                    
                                                                               
CHAIRMAN GREEN suggested that lack of knowledge of that special                
need would be a defense.                                                       
                                                                               
MS. WIBKER confirmed that, saying it requires that the person                  
knowingly fails to provide the treatment, such as after a doctor               
has said the child needs treatment.  She noted that there are other            
defenses that would keep the department out of parents' lives, such            
as "spiritual treatment," if that is the family belief; that is in             
another part of the statute.  Another would be poverty, in which               
case the state's job is to help parents get the means, rather than             
to take their children.  So, poverty or spiritual beliefs and                  
practices would keep the state from intervening.                               
                                                                               
Number 1194                                                                    
                                                                               
REPRESENTATIVE CROFT mentioned Christian Scientists.                           
                                                                               
Number 1235                                                                    
                                                                               
MS. WIBKER said there is a specific statutory exception for that.              
She read from AS 47.10.085, medical treatment by religious means,              
which says, "In a case in which the minor's status as a child in               
need of aid is sought to be based on the need for medical care, the            
court may, upon consideration of the health of the minor and the               
fact, if it is a fact, that the minor is being provided treatment              
by spiritual means through prayer in accordance with the tenets and            
practices of a recognized church or religious denomination by an               
accredited practitioner of the church or denomination, dismiss the             
proceedings and thereby close the matter.  This may be done, in the            
interests of justice and religious freedom, on the court's own                 
motion or upon the application of a party to the proceedings, at               
any stage of the proceedings after information is given to the                 
court under AS 47.10.020(a)."                                                  
                                                                               
REPRESENTATIVE CROFT said he is a little more comfortable with                 
that; it is not a "must" but a "can."  He suggested it may be a                
tough call for a judge.                                                        
                                                                               
MS. WIBKER clarified that these are not grounds for automatic                  
removal.  When the department investigates, these provisions allow             
the department to make a decision.  If they substantiate grounds               
under this statute, they first decide whether there is something to            
be done to prevent removal, such as offering treatment or family               
counseling, or getting a violent person to leave the home.  Second,            
they consider whether to take legal custody; these 12 grounds are              
grounds for doing that.  Once the department has legal custody,                
they can decide where to place the child, but that can be in the               
home if they can get the parents to do some kind of treatment that             
will result in the child being safe there.  A third step is when               
they need to remove the child; there is a burden of proof for that             
which is separate from the burden of proof for taking legal                    
custody.                                                                       
                                                                               
Number 1371                                                                    
                                                                               
CHAIRMAN GREEN noted that it was almost 4 p.m. and they were                   
halfway through the bill.  He suggested having the people standing             
by on teleconference testify before continuing the overview.  He               
asked that testifiers limit their comments to three minutes each.              
                                                                               
Number 1404                                                                    
                                                                               
HARRY NIEHAUS testified via teleconference from Fairbanks.  He                 
assured members he doesn't use marijuana, but noted that possession            
or use of it is a criminal offense.  Expressing concern about                  
family rights, he said that many times people are charged with                 
criminal offenses, such as assault on their children or physical               
abuse; under this bill, possession of marijuana would be included.             
These people are never taken to criminal court, or else the charges            
are dismissed, yet the children are still held in protective state             
custody.  He said there needs to be a balance, so if charges are               
dismissed or a parent is found innocent, the children are returned.            
                                                                               
MR. NIEHAUS next referred to recognized religion.  He asked, "What             
if you're an American Native, and you want a shaman to pray over               
your child?  The U.S. Supreme Court has recognized the American                
Indians' religion as a viable religion. ... Be specific.  What is              
a recognized religion?  I find a problem with that statement                   
there."  He thanked members for listening.                                     
                                                                               
Number 1546                                                                    
                                                                               
MS. WIBKER pointed out that to protect a child doesn't require a               
criminal prosecution.  There are very different standards and                  
burdens of proof because nobody goes to jail in a child abuse case.            
"You get rehab," she stated.  "That's the only consequence, is you             
get rehab.  So, it's different."                                               
                                                                               
Number 1570                                                                    
                                                                               
SCOTT CALDER testified via teleconference from Fairbanks.  He told             
members, "Here we go again with House Bill 375.  We were just                  
trying to make our way through the amendments here earlier, and it             
looks like the suggested tweaking and tuneups all sort of skew                 
things in the direction of covering every possible base for the                
politically constituted entities such as the state or some agency.             
And there don't seem to be any protections for individual people               
who are falsely accused or maliciously prosecuted or otherwise -               
even unintentionally - mistreated."                                            
                                                                               
MR. CALDER suggested there should be language here that protects               
people from the agencies involved in implementing this.  He said               
some of these agencies have been responsible for numerous injuries             
to people, and there have been complaints for decades about                    
excesses.  The burden is always on the individual, who could spend             
$10,000 to $50,000 to sue a government in order to protect the                 
family.  Mr. Calder said this is not what we have government for.              
                                                                               
MR. CALDER told members that Ralph Nader's characterization of the             
Corvair being unsafe at any speed applies to the DFYS at this                  
point.  He doesn't want legislation that essentially forces a                  
person to own a Corvair, or in this case to be subject to state                
agencies with apparently unlimited power.  A balance would be                  
appropriate, so that individuals who are adversely impacted could              
get some type of relief.  If the standards suggested here for the              
care of children were equally or more incumbent upon the state, one            
might conclude there is a fair process.  But since they are talking            
about public funding of these functions of government, it seems                
they should talk first about accountability of the agencies to                 
people, rather than accountability of the agencies to the                      
designated projects of the agencies.  "I'd like to get this outside            
of the agency," Mr. Calder concluded, indicating he would have                 
liked to make further comments.                                                
                                                                               
Number 1787                                                                    
                                                                               
MARCI SCHMIDT, Volunteer, Hear My Voice; and Representative,                   
Parents United for Custodial Justice, testified via teleconference             
from Mat-Su.  She told members that Hear My Voice is presenting an             
award to U.S. Representative Dave Camp, one of the authors of                  
Public Law 105-89, which is scattered within this bill.  She asked             
in what part of the new federal law the multi-disciplinary task                
force and the confidentiality language are found, stating her                  
understanding that Representative Dyson or Ms. Torkelson had                   
indicated that.                                                                
                                                                               
Number 1832                                                                    
                                                                               
MS. WIBKER replied that she believes Representative Dyson and Ms.              
Torkelson were referring to the Governor's child protection review             
team that issued a report in December, with about 24                           
recommendations for changes in practice and the law.  One                      
recommendation in that report was that there be more ability for               
the different agencies to talk to each other and work cases                    
together.                                                                      
                                                                               
MS. SCHMIDT suggested it is not in the public federal law, then.               
                                                                               
MS. WIBKER affirmed that.                                                      
                                                                               
MS. SCHMIDT expressed concern about doing too much at once.  With              
so many fingers stirring the pot, the intent of the federal law may            
be totally lost, and the state will not be in compliance.  She                 
asked whether anyone had talked with Representative Dave Camp's                
office in Michigan.                                                            
                                                                               
CHAIRMAN GREEN replied that he doesn't know, adding that nobody at             
the meeting had done so.                                                       
                                                                               
Number 1922                                                                    
                                                                               
MS. SCHMIDT noted that Representative Camp was the main sponsor of             
PL 105-89, which some of this must comply with, at least by 1999.              
She expressed concern that this legislature would be back in                   
another session, trying to correct the damage that will be done                
with this bill if they don't just stop, comply with the federal                
law, and leave it at that.  Children will be the ones to suffer if             
someone doesn't just take time to stop, look and listen, she                   
concluded.                                                                     
                                                                               
Number 1992                                                                    
                                                                               
CHAIRMAN GREEN asked Ms. Schmidt, "When you refer to damage, are               
you suggesting that there may be problems between federal and state            
law?  Or damage due to premature actions ... by the agencies?  What            
do you mean by damage?"                                                        
                                                                               
MS. SCHMIDT suggested looking at past performance.  A report on the            
DFYS says things are not getting done.  She has a 15-year-old                  
friend in crisis whom she can't even get a social worker to take a             
look at, and it has been two months since the school counselor made            
a report.  Ms. Schmidt stated, "And now, you're going to have all              
these laws, regulations and rules suddenly come into effect with               
this particular bill, where you have domestic violence in the                  
courts; everything is so meshed in here that the intent that was               
designed with PL 105-89 is just going to be lost.  You won't be in             
compliance, because everybody's just stirring their fingers in the             
pot and nobody's looking.  Children are dying or have died to get              
federal law passed."                                                           
                                                                               
Number 2080                                                                    
                                                                               
MS. WIBKER explained that this bill does incorporate the federal               
law, and more.  She said, "And that was the intent.  And everything            
that the department has done in the way of implementing the federal            
changes, all of our proposals are sent to federal attorneys that               
review it and advise us on whether we're in compliance."                       
                                                                               
Number 2118                                                                    
                                                                               
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department              
of Administration, testified via teleconference from Anchorage.  He            
first addressed Section 9 on page 6, AS 11.51.100(a)(1), referring             
to the current law, which states, "(a) A person commits the crime              
of endangering the welfare of a minor if, being a parent, guardian,            
or other person legally charged with the care of a child under 10              
years of age, the person intentionally deserts the child in any                
place under circumstances creating a substantial risk of physical              
injury to the child."                                                          
                                                                               
MR. McCUNE explained that physical injury is a broadly defined term            
that could include any kind of pain or physical impairment.  Noting            
the raised age limit of 16 years in CSHB 375(HES), he suggested                
that if a parent got fed up with a 14-year-old daughter and went               
away from the Dimond Mall, for example, there may be some risk of              
physical injury.  He suggested instead that for a felony-level                 
offense, perhaps "serious physical injury" would be more                       
appropriate.                                                                   
                                                                               
Number 2259                                                                    
                                                                               
MR. McCUNE next pointed out that the changes in Section 21 relate              
to child custody in divorce-type situations, rather than to the                
child in need of aid (CINA) laws in Title 47.  He said he doesn't              
know how they apply to the rest of the bill.                                   
                                                                               
REPRESENTATIVE BERKOWITZ referred to page 17, line 12, subsection              
(a).  He asked whether Mr. McCune was thinking it would be best if             
that said, "If the court finds in a proceeding involving child                 
custody, other than in a CINA proceeding ...."                                 
                                                                               
MS. WIBKER commented that there is no need to say that.                        
                                                                               
Number 2360                                                                    
                                                                               
MR. McCUNE said he hadn't read through it, but he wanted to point              
out that it wouldn't involve CINA proceedings, and he isn't sure               
why Title 25 amendments are included in this bill.  He then                    
referred members to Section 27, beginning on page 21, noting its               
great length.                                                                  
                                                                               
TAPE 98-63, SIDE A                                                             
Number 0006                                                                    
                                                                               
MR. McCUNE referred to subsection (10) at the top of page 26.  He              
suggested that if one parent's ability to parent has been impaired             
by addictive or habitual use of alcohol, another parent could be               
perfectly willing and able to take care of the child.  Therefore,              
there would be no child protection issue in that case.  He                     
suggested it could read something like subsection (2), Section 31.             
                                                                               
MR. McCUNE noted that Section 27 has a long statement of intent                
regarding balancing of rights and duties of parents and duties of              
the department.  He questioned what a lot of that language means,              
such as page 22, line 5, which states, "(E) the right to obtain                
representation for the child in legal actions".  He then referred              
to page 2, lines 9 through 11, and asked whether Section 1 doesn't             
say the same thing.  He indicated he had other concerns but would              
wrap up because of the lateness of the hour.                                   
                                                                               
Number 0267                                                                    
                                                                               
MS. TORKELSON explained that the intent language in Section 1 is               
from the Governor's bill; once it gets passed into law, it won't go            
into the Alaska Statute books.  They had wanted to make sure the               
intent doesn't disappear, and to show parental rights and                      
responsibilities, as well as the duties of the department.                     
Therefore, they had requested that Legislative Legal Services                  
codify Section 1 of the Governor's bill, which then became Section             
27 in Version H.  There are no ramifications in Section 27 per se;             
it just lays out what is intended by the rest of the bill.                     
                                                                               
Number 0374                                                                    
                                                                               
MR. McCUNE said it is difficult to set out all the rights and                  
responsibilities of all the parties with regard to children.  This             
is an admirable effort to do that, and he is certainly glad to see             
things in there, from his clients' perspective, about visitation,              
reasonable efforts, and so on.  However, he wonders about this                 
difficult and time-consuming exercise.  He said he is suggesting               
that if they boil the three pages of intent down, it says the same             
thing as Section 1, which reads in part:  "The intent of this Act              
is to protect children from abuse and neglect without prohibiting              
the use of reasonable methods of parental discipline or prescribing            
a particular method of parenting."                                             
                                                                               
CHAIRMAN GREEN asked whether it is just the length that bothers                
him.                                                                           
                                                                               
MR. McCUNE replied that it is the length, but also these cases are             
difficult to do, as they involve the age-old problem of when the               
state is able to get involved.  As the committees have heard, there            
are very strong views about these issues.  A shorter section would             
say the same thing but not be so difficult for the courts to deal              
with in balancing the rights and responsibilities set forth.                   
                                                                               
CHAIRMAN GREEN indicated the committee would look at that.                     
                                                                               
Number 0560                                                                    
                                                                               
REPRESENTATIVE JAMES responded, saying it is from her own                      
perspective and experience with families' concerns with DFYS and               
children in need of aid.  She said if the language is not                      
definitive, it leaves a lot unspoken.  "And since that is one of               
the areas that is so controversial, I think they wanted to put                 
everything down; and I think that's probably for good reason," she             
concluded.                                                                     
                                                                               
REPRESENTATIVE CROFT requested that Mr. McCune put his other                   
concerns in writing.                                                           
                                                                               
MR. McCUNE noted that he had sent a memorandum to the House Health,            
Education and Social Services Committee.  A lot of those concerns              
had been addressed in this new version.  He offered to revise that             
memorandum and send it in.                                                     
                                                                               
Number 0650                                                                    
                                                                               
CHAIRMAN GREEN called on Patricia Arnold in Homer, but was told Ms.            
Arnold had had to leave.                                                       
                                                                               
Number 0680                                                                    
                                                                               
WALTER GAUTHIER testified via teleconference from Homer.  He first             
asked whether the House Health, Education and Social Services                  
Committee had received two faxes from him, one concerning a                    
domestic violence charge against an eight-year-old boy, and another            
concerning a counselor who had slapped a child.                                
                                                                               
CHAIRMAN GREEN replied that he remembers the first but not the                 
second.  He asked whether they had been sent together.                         
                                                                               
MR. GAUTHIER said they were faxed for two different meetings.  He              
asked that the current committee distribute what they could find of            
those.                                                                         
                                                                               
CHAIRMAN GREEN agreed to do that.                                              
                                                                               
Number 0750                                                                    
                                                                               
MR. GAUTHIER called members' attention to the legislative audit                
report just done for DFYS.  He stated, "There was much ballyhoo                
about how they need more social workers.  I want to make the point             
that the budgets that have already been through the House and                  
Senate both provide for more money for more social workers."  He               
referred to pages 26 through 28 of the audit and stated, "On page              
26, it says, 'Applicants, despite scoring well, were not considered            
desirable candidates by hiring managers.'  On page 27, it states               
that DFYS left 21 positions vacant for all of fiscal year '97.  On             
page 28, it said, at the top, 'As a result, the agency has                     
sufficient funding to cover retirement incentive program costs, not            
only for staff within the agency's appropriation' - that is, DFYS -            
'but for other agencies within the Department of Health and Social             
Services."                                                                     
                                                                               
MR. GAUTHIER said it is the position of Guardians of Family Rights             
that DFYS has deliberately created this shortage of social workers.            
It has deliberately created these dangerous situations with                    
children, and has purposefully used the money they save by not                 
filling these positions to fund the early retirement incentive                 
program for their fellow bureaucrats.                                          
                                                                               
MR. GAUTHIER next addressed the domestic violence provisions of the            
bill, which he said directly relate to the fax he had sent.  He                
stated, "No matter what these people from the various bureaus tell             
you, in front of you, to get this legislation passed, the only                 
reality is what the law says.  Now, that eight-year-old boy charged            
with domestic violence can never own a gun, can never possess a                
gun, can never grow up to be a policeman or serve in any of the                
armed forces of the United States, because he was eight years old              
and chased his mom.  No matter what these bureaucracies tell you               
about how they're not going to enforce this law, and this law is               
only going to be used in this situation, the fact is if the law                
exists, they will use it as often as they can, because the agencies            
are driven by caseload.  They need caseload, just like McDonald's              
needs customers."                                                              
                                                                               
MR. GAUTHIER continued, "One more thing about this is for 20 years             
we have been funding more and more social workers, more laws, more             
interference by the government in the family.  And in Alaska, the              
only thing that we seem to have received for 20 years of investment            
in interference is the highest child abuse rate in the nation?  I              
submit to the committee that social workers are not the solution to            
our problems with families.  Social workers are the problem.  Thank            
you."                                                                          
                                                                               
CHAIRMAN GREEN thanked Mr. Gauthier and said he would distribute               
that memorandum.  He noted that no one was signed up locally to                
testify.                                                                       
                                                                               
Number 0979                                                                    
                                                                               
JODI OLMSTEAD testified via teleconference from Fairbanks, speaking            
on her own behalf and indicating she had put time into issues with             
the DFYS and the Child Support Enforcement Division.  She told                 
members she doesn't want to see this bill, or its companion bill,              
pass.  She doesn't believe that legislators are aware of the total             
issue.  There is no check and balance when there is a false                    
allegation, when families are hurt or people are destroyed.                    
                                                                               
MS. OLMSTEAD recounted how she had been promised a grievance                   
procedure by the DFYS in 1994, and she asked why the DFYS had the              
power to just not follow through.  She told members that now all               
kinds of negative, uneducated third parties have written materials,            
and this has been thrown in her face again.  Her son was injured,              
and now she is charged with medical neglect; she believes if she               
had dealt with the doctor and his instructions, her son wouldn't be            
with her today, yet the DFYS takes information from this                       
professional because he is a doctor.                                           
                                                                               
MS. OLMSTEAD said that social workers generally provide a list, A              
to Z, of what to do when getting out of the hospital, which used to            
be their goal before they started extracting kids from homes.  She             
suggested looking at Public Law 96-272 to see why we have foster               
care homes and why the citizens review panel was put into place to             
begin with; she believes that never should have been changed.  She             
also suggested looking at mandatory video reporting.  She would                
like to see a real change in here, instead of a lot of fluff.                  
"Don't pass that bill; it's got too many things, and you guys don't            
know all about each of those issues, which is unfair to the                    
people," she concluded.                                                        
                                                                               
CHAIRMAN GREEN thanked Ms. Olmstead, indicating DFYS acknowledges              
there may have been some past problems that are in the process of              
being corrected now.  He then asked Ms. Wibker to continue going               
through the bill for another half hour or so.                                  
                                                                               
Number 1189                                                                    
                                                                               
REPRESENTATIVE CROFT referred to Mr. McCune's indication, on the               
top of page 26, subsection (10), that it should read something like            
the language in Section 31, subsection (2), page 25.  He asked why             
that wouldn't apply to the habitual use.                                       
                                                                               
Number 1226                                                                    
                                                                               
MS. WIBKER said that is a good question, for which there is a good             
answer.  Under the law, the conduct of one parent can bring a child            
under the jurisdiction of the court; in almost every case involved             
in the CINA system, the conduct of one parent has brought the child            
under the jurisdiction of the court, whether that conduct is sexual            
abuse, domestic violence, or neglect.  The exception is                        
abandonment; the  department does not take jurisdiction of a child             
who is well cared for by one parent if the other parent has                    
abandoned the child, although abandonment by one parent can                    
eventually become important in a case, when the parent there is                
engaging in problematic conduct.                                               
                                                                               
MS. WIBKER suggested Mr. McCune's point mixes up jurisdiction to               
have legal custody over a child and placement.  If the department              
goes into a home and finds sexual abuse, domestic violence, crack              
cocaine addiction or alcohol addiction, for example, it is the                 
conduct by one parent that allows the department to have legal                 
jurisdiction over the case.  In this particular instance, the                  
department would have to prove, by a preponderance of the evidence,            
that a parent's ability to parent is substantially impaired by the             
addictive or habitual use of an intoxicant.  The placement                     
decision, which she believes is Mr. McCune's point, is separate.               
                                                                               
MS. WIBKER stated, "If you have one parent who cannot properly care            
for a child because of intoxication, and you have another parent               
who is not a drinker and provides good care for a child, you don't             
just walk away and trust that, the same as if one parent is                    
sexually abusing a child and one parent could never dream of that.             
You don't just walk away.  What you do is, in this particular case,            
you may take legal custody of the child but leave the child there              
and use legal custody to get the one parent to get treatment.  The             
reason you don't just walk away is because if one parent is                    
condoning, enabling, going along with this, letting this dangerous             
parent drive with the child, letting this dangerous parent babysit,            
you have to do something ... to make this a safe situation for the             
child."                                                                        
                                                                               
MS. WIBKER continued, "You may not remove the child, but you want              
legal custody to do something about the home situation.  Probably              
in 90 percent of the cases, one parent's conduct is problematic,               
but you don't just walk away and -- I mean, many, many mothers will            
say, 'Don't take my child away; I won't ever leave her alone with              
him; I won't ever let him sexually abuse her again; I can make sure            
he's never alone ... with her.' ... You still take legal custody,              
and then separate from that, you make a decision about whether the             
child has to be removed.  The point that Mr. McCune makes, I think,            
deals with removal.  You may not remove that child, but you would              
still want to take legal custody."                                             
                                                                               
Number 1395                                                                    
                                                                               
REPRESENTATIVE CROFT disagreed.  He pointed out that except for                
(10), all 12 factors listed relate to harm to the child, or even               
potential harm to the child.  That makes sense, because they are               
making the determination that this is a child in need of aid.                  
However, (10), which is a parent who cannot parent because of the              
use of intoxicants, doesn't necessarily mean the child is in need              
of aid.  The other parent may be doing everything fine, and there              
is no link stated of having substantial contact with the child, of             
being the custodian at times, or that the other parent is incapable            
under some other criteria.  It doesn't establish what seems to be              
necessary before stepping in.                                                  
                                                                               
CHAIRMAN GREEN noted that (10) says "the parent," whereas most                 
others say "a parent."  He asked whether that is because of a                  
presumption that there is only one parent there.                               
                                                                               
MS. WIBKER restated that under the law, the conduct of one parent              
can bring a child under the jurisdiction of the court.                         
                                                                               
Number 1494                                                                    
                                                                               
REPRESENTATIVE PORTER referred to page 26, line 2, and suggested               
the difference is that the determination has already been made.                
[The language, beginning on line 1, read:  "(10) the parent,                   
guardian, or custodian's ability to parent has been substantially              
impaired by the addictive or habitual use of an intoxicant; if a               
court has previously found that a child is a child in need of aid              
under this paragraph, the resumption of use of an intoxicant by a              
parent, guardian, or custodian within one year after rehabilitation            
is prima facie evidence that the ability to parent is substantially            
impaired as described in this paragraph."]                                     
                                                                               
Number 1512                                                                    
                                                                               
REPRESENTATIVE CROFT stated his understanding to the contrary, that            
the part before the semicolon stands alone.  The part                          
Representative Porter was referring to is additional.                          
                                                                               
CHAIRMAN GREEN agreed.                                                         
                                                                               
Number 1529                                                                    
                                                                               
MS. WIBKER responded, "The intent was as you've described.  If the             
parent, guardian or custodian's ability to parent is substantially             
impaired by the addictive use of an intoxicant, the state has                  
jurisdiction there.  But then, the second part is where there's a              
relapse.  And the reason this is written this way is because under             
existing law, ... 83 percent of the open cases right now are open              
because of substance abuse, either addiction to crack or alcohol.              
Under existing law, the department cannot do anything unless the               
child ... has been harmed, or at imminent and substantial risk of              
harm because of the substance abuse.  So, what happens is you can't            
do anything 'til somebody gets drunk and hits a child.  You can't              
do anything 'til someone gets drunk and throws a lamp and the                  
child's in the line of fire.  That's too late."                                
                                                                               
Number 1571                                                                    
                                                                               
REPRESENTATIVE CROFT said this is a substantive change; it adds the            
idea that the habitual addictive use of an intoxicant by one parent            
is sufficient, without a showing that the child has yet been                   
harmed.                                                                        
                                                                               
MS. WIBKER responded, "No, you have to prove that the ability to               
parent is impaired.  So, you've got to have proof that they have               
made bad judgment decisions about the care of their child."                    
                                                                               
CHAIRMAN GREEN asked whether it is one parent or both.                         
                                                                               
MS. WIBKER said only one parent's conduct is enough.  She added,               
"If you've got one sober parent, and you've got one parent whose               
ability to parent is impaired because of substance abuse, you have             
a child in a dangerous situation."                                             
                                                                               
REPRESENTATIVE CROFT said his question is whether this is a major              
change in law, or at least a change.                                           
                                                                               
MS. WIBKER replied that this change allows the state to do                     
something before the child gets hurt.                                          
                                                                               
Number 1612                                                                    
                                                                               
REPRESENTATIVE CROFT acknowledged it is two steps:  A habitual or              
addictive use of an intoxicant, plus the substantially impaired                
ability to parent.  He asked for confirmation that there is not the            
third step, of any showing that it has ever affected the child.                
                                                                               
MS. WIBKER restated that there is none, other than that the ability            
to parent has been substantially impaired.  "No, you don't have to             
show that the child is suicidal, homicidal, a fire-setter, or has              
been hit," she said.  "You do have to show this person is getting              
in the car, driving drunk, and taking this child with them."                   
                                                                               
Number 1636                                                                    
                                                                               
REPRESENTATIVE CROFT pointed out that would be harm to the child.              
He asked:  If a person is drunk constantly, which substantially                
impairs the ability to parent, but if that drunk person is never               
the custodian of the child and the other spouse takes care of the              
child, must no other link to the child be drawn?                               
                                                                               
MS. WIBKER replied, "The department should not be doing nothing in             
those cases."                                                                  
                                                                               
Number 1683                                                                    
                                                                               
REPRESENTATIVE PORTER asked, "Wouldn't it be okay, though, to throw            
in some language that, 'and this presents a substantial risk' or               
something?"                                                                    
                                                                               
MS. WIBKER asked, "In lieu of, 'the ability of the parent has been             
substantially impaired'?"                                                      
                                                                               
REPRESENTATIVE PORTER said no, in addition to it.                              
                                                                               
MS. WIBKER said it would then read, "the parent, guardian, or                  
custodian's ability to parent has been substantially impaired by               
the addictive or habitual use of an intoxicant, and ...."                      
                                                                               
REPRESENTATIVE PORTER suggested finishing with, "this has placed               
the child in substantial risk."                                                
                                                                               
Number 1722                                                                    
                                                                               
REPRESENTATIVE CROFT said he was just trying to understand it.  He             
asked whether that then puts the department in the situation where             
it is now, with an extra hoop that they don't want to jump through.            
                                                                               
MS. WIBKER replied, "Not quite.  The current law is 'imminent and              
substantial risk,' so ... you've literally got to catch a parent               
with the fist raised to do anything.  And that's the problem.                  
That's too late.  When the neighbors call and say, 'Hey, those                 
people next door are drunk every night, partying, and those kids               
are wandering around outside, they're coming over here begging for             
food, they're hungry, nobody gets up and takes them to school in               
the morning,' whether it's one parent or two, the state should be              
doing something about that."                                                   
                                                                               
REPRESENTATIVE CROFT suggested they don't even have to say                     
'substantial,' then.  He agreed there can be some logical                      
assumptions about somebody who is so impaired by habitual and                  
addictive use of intoxicants that it substantially impairs the                 
ability to parent.  However, he wants to see some logical link to              
a potential harm or a substantial risk of harm.                                
                                                                               
Number 1787                                                                    
                                                                               
MS. WIBKER suggested, "and the addictive or habitual use presents              
a substantial risk of harm to the child."                                      
                                                                               
REPRESENTATIVE CROFT asked whether Ms. Wibker had any problem with             
that.                                                                          
                                                                               
MS. WIBKER said off the top of her head, no.  However, she believes            
that is what they'd thought they were doing by saying that the                 
ability to parent has been substantially impaired.  "But maybe                 
not," she added.                                                               
                                                                               
Number 1808                                                                    
                                                                               
CHAIRMAN GREEN asked whether they should continue with a new                   
sentence, instead of the semicolon, as this would imply it has to              
be a second time if they put "and" in there.                                   
                                                                               
MS. WIBKER agreed, adding that this reflects what social workers               
deal with every day, where the parent with the problem stays in                
treatment a week, then goes home and continues to get drunk.  She              
said once the state has proved the first time that the inability to            
parent creates a risk to the child, then if the parent relapses,               
they want the worker to be able to do something quickly and                    
efficiently, without having to file a new petition, start a new                
case, do a new trial and prove all this again.                                 
                                                                               
Number 1869                                                                    
                                                                               
CHAIRMAN GREEN referred to item (11) on page 26, beginning at line             
7.  He noted that it talks about a mental illness that has caused              
substantial physical harm.  Emphasizing the "has caused," he asked             
why the difference exists.                                                     
                                                                               
MS. WIBKER replied that Representative Dyson has proposed an                   
amendment to that.  She stated, "One of our concerns is that one of            
the greatest risks to a child growing up in a home with a mentally             
ill parent is not just the risk of physical harm but the risk of               
serious emotional problems.  And what the amendment does is deal               
with the risk to the child of both physical harm and emotional                 
harm."                                                                         
                                                                               
Number 1900                                                                    
                                                                               
CHAIRMAN GREEN asked whether it removes the fact that there has to             
have been some physical harm.                                                  
                                                                               
MS. WIBKER said yes.  Under the amended version, it would read, "of            
a nature and duration that places the child at substantial risk of             
physical harm or mental injury."                                               
                                                                               
Number 1934                                                                    
                                                                               
MS. WIBKER briefly touched on the other jurisdictional grounds on              
page 25, saying 5) deals with runaways; (6) deals with children who            
have been physically abused or at substantial risk; (7) deals with             
sexual abuse, with the parallel phrase of having suffered the abuse            
or being at substantial risk, plus a proviso that parallels the                
"endangering" statute, explaining that parents should not be                   
leaving children with known sex offenders, and that when they do               
that, the child is considered to be at substantial risk; (8) deals             
with mental injury to the child, and Representative Dyson has a                
proposed amendment on that, which deals with domestic violence and             
which fixes the amendment that Representative Bunde was referring              
to at the beginning of the hearing; (9) deals with neglect; (10)               
they had just talked about, substance abuse; (11) is mental                    
illness; and (12) deals with a parent actually pressuring or                   
encouraging a child to commit an act of delinquency.                           
                                                                               
MS. WIBKER advised members that the major changes here deal with               
the specific provisions about domestic violence and substance                  
abuse.  She stated, "Other than that, there is not a major break               
from the statute that we had.  Mental illness is specifically                  
addressed more clearly here, but it's broken out and more                      
specifically defined than before."                                             
                                                                               
Number 2060                                                                    
                                                                               
REPRESENTATIVE JAMES expressed appreciation for this review, which             
she said had been exceptionally helpful.                                       
                                                                               
CHAIRMAN GREEN concurred, noting the length of the bill.  [HB 375              
was held over.]                                                                

Document Name Date/Time Subjects