Legislature(1997 - 1998)

04/23/1998 02:30 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 committee would again hear 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 advised members that Susan Wibker would continue                
explaining the bill [Version H, CSHB 375(HES)].                                
                                                                               
Number 0056                                                                    
                                                                               
SUSAN G. WIBKER, Assistant Attorney General, Human Services                    
Section, Civil Division (Anchorage), Department of Law, referred to            
page 26.  She told members the statute has a specific abandonment              
definition; consistent with current case law, it is defined as a               
conscious disregard of parental responsibilities toward a child.               
That is expanded in some detail to include leaving a child with                
someone without provisions for support; not communicating with a               
child; not visiting a child; and not participating in a case plan              
or reunification plan through the department with a child.  It                 
includes any absence that creates a substantial risk of serious                
harm to a child.                                                               
                                                                               
Number 0144                                                                    
                                                                               
MS. WIBKER outlined an amendment to that definition proposed by                
Representative Dyson, which on lines 16 through 18 deletes the                 
phrase, "and the failure is accompanied by intention on the part of            
the parent or guardian to permit the failure to continue for an                
indefinite period".  Ms. Wibker explained, "We're recommending that            
deletion, because ... it's basically impossible to prove; to prove             
that someone intended to permit a failure to continue for an                   
indefinite period could basically be defeated by anybody who                   
disappeared for ten years and walked in and said, 'I intended to               
come back.'"                                                                   
                                                                               
MS. WIBKER advised members of another amendment to that section, on            
page 3 of Representative Dyson's amendments.  It includes a                    
subsection (b) that gives an exception to a battered woman who has             
to leave a child or theoretically abandon a child because she needs            
to protect herself or protect another child; if she is fleeing                 
violence to protect herself or another child, and has to leave a               
child in a dangerous situation, she would have a legal excuse.                 
                                                                               
Number 0226                                                                    
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ referred to subsection (4) on page              
26.  He asked what the standards are for assessing whether a plan              
or program is suitable, and who makes that determination.                      
                                                                               
MS. WIBKER replied that when a child is in the custody of the                  
state, the worker has 60 days after taking custody to complete a               
case plan, which is a written plan to reunite the child with the               
family that all parties sign and agree to.  The plan must be                   
reasonably related to the problem that brought the child into state            
custody.  Any party who believes the plan is not reasonable or                 
reasonably related to the problem in the home could request court              
review, and the court would make a determination.  Ms. Wibker noted            
that "plan" is a departmental term.                                            
                                                                               
Number 0331                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked what would happen if one party                  
didn't agree and refused to sign the plan.                                     
                                                                               
MS. WIBKER said a court order would be sought.  If the problem is              
alcoholism, the worker would develop a plan for alcohol screening              
and participation in whatever the screener recommends; but if the              
parent refuses to accept treatment, they may wait until there is a             
trial.  If the judge finds the child is in need of aid because of              
alcoholism, the judge will order that kind of treatment.  If the               
judge doesn't find that alcohol is the problem, however, the plan              
would be unreasonable and would be changed.                                    
                                                                               
Number 0427                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked who formulates these plans.                     
                                                                               
MS. WIBKER said the department, the caseworker.                                
                                                                               
REPRESENTATIVE BERKOWITZ asked whether there are standards by which            
the plans are formulated.                                                      
                                                                               
MS. WIBKER restated that there has to be a nexus between the plan              
and the problem that brought the child into custody.  If a worker              
investigates neglect and finds a child playing in the street,                  
unsupervised, with a parent passed out on the couch from alcohol,              
then the plan will be alcohol treatment and maybe a parenting                  
class.  It couldn't be cocaine treatment or sex offender treatment,            
which would be unreasonable.                                                   
                                                                               
Number 0496                                                                    
                                                                               
CHAIRMAN GREEN asked whether a plan might be tailor-made, rather               
than off the shelf.                                                            
                                                                               
MS. WIBKER replied that generally the plan will require a screening            
or evaluation by an alcohol treatment agency or expert.  The                   
resulting recommendation may be for inpatient or outpatient                    
treatment, or perhaps going to an Alcoholics Anonymous group once              
or twice a week, depending on the severity of the problem.  The                
caseworker will rely on the screening.                                         
                                                                               
Number 0568                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said implementation in urban areas is one             
thing, where there is more opportunity to participate in a program.            
He asked how these plans work in the rural areas.                              
                                                                               
MS. WIBKER agreed there are fewer resources in rural areas,                    
although there are some treatment programs.  Whereas in Anchorage              
a person may be able to choose a program, in a rural area there is             
likely no choice.  If community-based treatment is possible, they              
try to do that.  However, in smaller communities, a family may not             
want to do treatment there because it is so hard to feel that it is            
confidential.  "So, they may choose not to do treatment in the                 
community, but you try to work with what's in a community," she                
concluded.                                                                     
                                                                               
Number 0639                                                                    
                                                                               
MS. WIBKER discussed page 27.  She told members the definition of              
neglect is pretty clear.  For the definition of physical harm, the             
statutory citations correspond to the criminal statutes for violent            
crimes; if a child is the victim of a violent crime defined in                 
Alaska Statute, and the offender is a parent, guardian or                      
custodian, it would be treated as physical abuse.  In addition,                
subsection (2), regarding negligent acts or omissions, includes                
harm to a child because of failure to supervise properly.  Lines 17            
through 23 create a limitation on jurisdiction.  Ms. Wibker said               
this amendment proposed by Representative Dyson does not allow the             
state to take custody of children because a family is poor, lacks              
adequate housing, or lives a unique lifestyle.                                 
                                                                               
Number 0749                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked whether the statutes in the prior               
section relate essentially to assaults and sexual assaults.                    
                                                                               
MS. WIBKER specified that AS ll.41.100 is homicide and AS ll.41.455            
is sexual exploitation.  She stated, "And so, that includes all the            
violent crimes:  homicide, robbery, sexual assault and assault.                
And then 11.51 is the endangerment statute."                                   
                                                                               
MS. WIBKER pointed out that the limitations do not prevent the                 
state from taking legal custody if there is neglect or abuse, even             
if a family is poor.  But none of those conditions can be the sole             
grounds for taking custody, an important limitation.  At the bottom            
of page 27, she said that is not a substantive change in the law;              
it deals with the court's ability to direct inquiries about                    
children and to handle those.  It allows the court to ask a                    
guardian ad litem (GAL) to investigate something that comes to the             
court's attention, for example.                                                
                                                                               
MS. WIBKER next discussed page 28.  In the middle of the page, it              
outlines what should be in a petition filed with the court.  The               
only substantive change is adding that the child's tribal                      
affiliation should be part of the petition; she noted that the                 
child's tribe is a party to the proceeding.  At the bottom of page             
28, the addition of "foster parent or other out-of-home care                   
provider" is important because of changes in federal law that                  
require that any time there is a hearing in a child in need of aid             
(CINA) case, either the foster parent, the relative or whoever is              
providing care for the child out of the home should be given notice            
of that hearing, in order to attend and have an opportunity to be              
heard, even though that person is not a party.                                 
                                                                               
REPRESENTATIVE BERKOWITZ asked whether that would include people               
like grandparents and step-parents.                                            
                                                                               
MS. WIBKER replied, "Anybody the child is placed with.  If a child             
is placed with grandparents, it would be grandparents."                        
                                                                               
REPRESENTATIVE BERKOWITZ said only if it is a formal placement,                
then.                                                                          
                                                                               
MS. WIBKER said, "If the agency has placed the child there."                   
                                                                               
Number 0930                                                                    
                                                                               
REPRESENTATIVE JEANNETTE JAMES asked if they are talking about the             
hearing that has to do with whether the state is taking custody, or            
an appeal of the custody.                                                      
                                                                               
MS. WIBKER clarified that this particular statute refers to the                
first hearing, the so-called probable cause hearing.                           
                                                                               
REPRESENTATIVE JAMES posed a scenario where the parents' home is               
not a good place for the child, and the child is at the                        
grandparents' house, but not because the department had placed the             
child there.  She asked whether the grandparents would be involved             
at all in the proceedings.                                                     
                                                                               
MS. WIBKER noted that the statute requires a preference for a blood            
relative.  If the grandparents are adequate caretakers, the                    
department most likely would leave the children there, and would               
tell them about the hearing.                                                   
                                                                               
Number 1068                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ pointed out that this mentions the                    
possibility of termination of parental rights.  He expressed                   
concern, saying whenever the specter of termination starts to                  
become possible, even if it is in the initial stages, he believes              
someone in the extended family should be given notice of it.                   
                                                                               
MS. WIBKER responded, "What this statute does is at the first                  
hearing the court makes everybody aware that termination is a                  
possibility."                                                                  
                                                                               
REPRESENTATIVE BERKOWITZ pointed out that this particular section              
merely provides notice to the immediate guardians, in one capacity             
or another, rather than to the extended family.                                
                                                                               
MS. WIBKER agreed that no provision allows the department or the               
court to give notice to the extended family.                                   
                                                                               
REPRESENTATIVE BERKOWITZ mentioned that this is a policy call. He              
requested that they discuss the possibility of broadening that to              
include the family.                                                            
                                                                               
CHAIRMAN GREEN agreed to address it later.                                     
                                                                               
Number 1158                                                                    
                                                                               
MS. WIBKER next addressed page 29.  The middle of that page                    
requires the court to appoint a GAL and gives the option to the                
court of appointing a separate attorney for the child.  In CINA                
proceedings, every child is appointed a GAL. However, occasionally             
the child and the GAL disagree on what is in the child's best                  
interest; generally, that happens when a GAL says it is best that              
a teenager go home and live with her parents, for example, but the             
teenager wants to live with her boyfriend.  In such a case, the                
judge can appoint a separate attorney to represent what the child              
wants.  It is rarely done, but there is authority to do it.                    
                                                                               
MS. WIBKER told members that on the bottom of page 29, it again                
deals with hearings and how those are conducted.  The amendments               
reflect changes in law regarding persons required to get notice.               
It makes explicit here that the foster parent or out-of-home care              
giver can attend the hearing and be heard.  It also speaks to the              
child's best interests; there are limited situations where the                 
court would decide that perhaps it is not in the best interest for             
that person to sit throughout the entire hearing.  Ms. Wibker                  
explained, "The reason for that exception is anything that deals               
with the child - the child's welfare, what's best for the child -              
the out-of-home care giver is entitled to know all of that                     
information.  What the out-of-home care giver is not entitled to               
know is the parents' personal, private background.  So, you might              
ask that person to leave if you're discussing the parents' conduct,            
rather than the child."                                                        
                                                                               
MS. WIBKER next discussed page 30.  Noting that the adjudication               
hearing is the trial on the petition, she said a change in law here            
requires that the trial be completed within 120 days of the                    
probable cause finding.  This is important to avoid delays.  In                
many Alaska cases currently, they do probable cause and the state              
gets custody for 90 days, then comes back in 60 days and extends               
temporary custody.  Children can end up in state custody for                   
sometimes a year without a trial, which is for proving the                     
petition.  This makes the state prove the petition, because if the             
state shouldn't be in the case, or if the problem has been fixed               
within 120 days, the state could get out.                                      
                                                                               
Number 1319                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ noted that in a criminal case, the                    
consequence for failure to complete it within 120 days is                      
dismissal.  He asked what the consequence is here.                             
                                                                               
MS. WIBKER replied, "There's an insert here, an amendment, that                
deals with continuances, that might answer your question. ... The              
consequence would not likely be dismissal."                                    
                                                                               
REPRESENTATIVE BERKOWITZ said he wasn't suggesting that would be               
appropriate.                                                                   
                                                                               
MS. WIBKER said Representative Dyson has proposed an amendment that            
says when determining whether to grant a continuance for good                  
cause, the court shall consider the driving force to be the child's            
age and the potential adverse effects of a delay on the child.                 
                                                                               
Number 1366                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ responded that he doesn't know what it                
could be, but there should be an incentive to the parties to get               
this done as expeditiously as possible.  A time limit, of and by               
itself, is inadequate.  He suggested it would be good if they had              
a "carrot" out there, if not a stick.                                          
                                                                               
MS. WIBKER said the courts certainly have the power to do that.                
                                                                               
REPRESENTATIVE BERKOWITZ mentioned that sometimes the courts are               
the offenders.                                                                 
                                                                               
MS. WIBKER said they are dealing with a crowded court calendar,                
with limited time, and the court may have necessity, on its own, to            
do this.  She added that the court was certainly part of drafting              
this.  Ms. Wibker told members she believes other states have rules            
requiring that cases be adjudicated within 30 days; compared to                
other states, Alaska is still slow.                                            
                                                                               
CHAIRMAN GREEN commented, "And Representative Dyson is going to                
have an amendment, and I see him nodding and writing."                         
                                                                               
Number 1439                                                                    
                                                                               
MS. WIBKER continued with page 30, saying this is the part of the              
statute that deals with court orders, once the court finds that a              
child is a child in need of aid.  The first section is not a                   
substantive change, other than adding the GAL as a person who can              
petition for an extension in custody.  Under prior law, when the               
state proved the petition, it got legal custody for two years.                 
Under this proposal, that is cut back to one year, a good change in            
light of federal requirements that children have permanency                    
hearings once a year.  This requires that the court look at it for             
a year at a time, and custody can only be extended one year at a               
time, Ms. Wibker specified.                                                    
                                                                               
MS. WIBKER continued with page 30.  She said paragraph (1)                     
basically outlines the authority of the court when the court finds             
a child is a child in need of aid.  At the end of that paragraph,              
it talks about the department's ability to transfer children from              
one placement setting to another.  It makes clear that parties                 
should be given notice of changes and transfer in advance of a                 
move, and should be given an opportunity to request a hearing if               
there is an objection to that proposed change.  Ms. Wibker said she            
believes both Representative Dyson and the state have proposed                 
amendments to that section to try to put brakes on the department's            
ability to move children.  Now the department has fairly unfettered            
discretion to place children, which is often driven by emergency               
requests, where a foster parent calls and says, "Come get this                 
child."  Efforts are being made to change that, and to lower the               
number of placements.                                                          
                                                                               
Number 1564                                                                    
                                                                               
REPRESENTATIVE JAMES said she understands the desire not to move               
the child much.  But where the foster parent calls and asks that               
the department come get a child, she asked how this addresses such             
situations.  She inquired what this does that would make the child             
stay in one place longer, or whether there is any answer to that.              
                                                                               
MS. WIBKER replied that she thinks there is an answer that is not              
totally in statute.  Other states are trying to minimize                       
placements, increase the tenure of foster parents, and look at what            
to do to keep foster parents; what makes a difference are things               
like good training for foster parents, preparing them for the                  
behavior disorders, and providing needed information about a child             
before the placement, so they know if they are taking on a fire-               
setter, a sex offender, or a child with some conduct disorder.                 
                                                                               
MS. WIBKER advised members that this bill offers foster parents                
respite care for stress relief, which wasn't available before                  
unless a child had a special need or disability, or unless there               
was a family emergency. "Smart Start" also proposes a raise in pay             
for foster parents.  There are all sorts of things to try to better            
prepare foster parents, so that a child is able to stay in a                   
placement longer.   Ms. Wibker indicated this doesn't do all of                
that, but tries to put the brakes on just quickly moving kids.                 
                                                                               
Number 1663                                                                    
                                                                               
REPRESENTATIVE JAMES responded that she had asked because of her               
experience with a troublesome teenager.  When she had called the               
caseworker and said that if the behavior continued, she could no               
longer keep the child, the caseworker had insisted to that child               
that she stay there and do what she was told, or else the                      
consequences would be pretty dire.  That had worked out, and the               
child didn't have to leave.  In another case, however, the child               
had to go.  Representative James inquired if and how this deals                
with that.  She restated her belief that with the proper                       
caseworker, sometimes the child can be encouraged to stay.                     
                                                                               
MS. WIBKER replied, "You're exactly right.  What we want is some               
process to kick in ... where you try to maintain the placement,                
whatever it takes."                                                            
                                                                               
Number 1718                                                                    
                                                                               
REPRESENTATIVE FRED DYSON told members, "One of the complaints                 
we've heard in earlier public hearing is that a foster parent was              
complaining to DFYS [Division of Family and Youth Services] about              
policy and procedures, and so on and so forth.  And they were                  
threatened if they didn't shut up, that the foster child that they             
had would be taken from them.  And as you well know, Representative            
James, some of us develop a real bond with these kids. ... I'm                 
certain that's not a policy of the department."                                
                                                                               
REPRESENTATIVE DYSON explained that they are trying to have an                 
appeal procedure to eliminate arbitrary placement changes, plus a              
voice for foster parents in future placement, because the foster               
parent may have information that is very valuable to that decision             
process.  He concluded, "We're not there yet, and we haven't                   
figured out a perfect way to do all of that.  My desire has been to            
... give that foster parent a greater voice and greater control.               
And the department is rightly concerned that their hands not be                
tied, and that they not be subject to legal actions ... if we put              
something too stringent in there."                                             
                                                                               
Number 1773                                                                    
                                                                               
REPRESENTATIVE JAMES said she tends to agree, and she believes                 
having the caseworker work with the foster parent can help to                  
ensure that the child doesn't get repeatedly moved.                            
                                                                               
Number 1783                                                                    
                                                                               
MS. WIBKER continued with page 30.  She said subsection (2) deals              
with cases where the child is in the custody of the department, but            
placed with the child's own parents.  She emphasized that removal              
and custody are two different decisions.  The department initially             
gets custody for two years, but at the end of that time, custody               
expires; if need be, there can be one-year extensions.                         
                                                                               
MS. WIBKER next discussed page 31.  In the middle of the page, it              
deals with orders to terminate parental rights; there are                      
amendments there to reflect different statutory references.  But               
because they created a separate section on termination, the                    
language about burden of proof doesn't need to be there.  A change             
in the law is that this requires the department to make quarterly              
reports to the court on efforts to find a permanent placement for              
the child, once the parental rights are terminated.  "It used to be            
annually, but now that annual permanency hearings are required                 
anyway, it makes sense to have the reports to the court be more                
frequent," she concluded.                                                      
                                                                               
Number 1849                                                                    
                                                                               
CHAIRMAN GREEN asked whether quadrupling the number of reports                 
creates a significant burden.                                                  
                                                                               
MS. WIBKER said it does in preparing reports.  A worker must keep              
in a file documentation of all efforts to find a permanent                     
placement for a child.  What this means is every 90 days the worker            
will have to summarize that documentation in a report to the court.            
                                                                               
MS. WIBKER continued with page 31.  She said at the bottom is the              
section dealing with court orders.  This reflects a change in                  
statute.  Under existing law, the first permanency hearing was 18              
months after a child was in custody; now it must be 12 months.                 
                                                                               
MS. WIBKER discussed page 32.  Amendments to the notice provision              
reflect that foster parents and out-of-home care givers would                  
receive advance notice of a permanency hearing and would have an               
opportunity to attend and be heard.  The middle of page 32 deals               
with appeals; it expedites the appeal process and requires that if             
there is an appeal of a decision of the court, the decision must be            
issued no later than 90 days.  There are also provisos to                      
accommodate the schedule of the supreme court reviewing the                    
decision.                                                                      
                                                                               
MS. WIBKER told members that for the next section of the statute,              
there is a proposed amendment, included in Representative Dyson's              
amendments, dealing with AS 47.10.010(l).  She stated, "The                    
amendment was drafted by one of our children's masters and is very             
nicely done; it's on pages 2 and the top of page 3.  And it just               
makes the language a little clearer for the judges on what they                
have to find, and what steps they should go through in making                  
findings.  And it would be my recommendation that the committee                
adopt the amendment that Representative Dyson has proposed that                
deals with the court findings that have to made at a permanency                
hearing."                                                                      
                                                                               
MS. WIBKER advised members that at the bottom of page 33 is the                
section of the statute that deals with termination of parental                 
rights when a parent is incarcerated.                                          
                                                                               
REPRESENTATIVE BERKOWITZ asked whether termination can be based on             
the simple fact of incarceration, regardless of the offense.                   
                                                                               
MS. WIBKER said no.                                                            
                                                                               
REPRESENTATIVE JAMES added, "We fixed that a few years ago."                   
                                                                               
MS. WIBKER referred to the top of page 34 and pointed out that the             
period of incarceration must be a significant portion of the                   
child's minority, considering the child's age and need for adult               
care and supervision, that there is no other parent willing and                
able to care for the child, and that the incarcerated parent has               
failed to make adequate provisions for the care of the child.                  
                                                                               
Number 2033                                                                    
                                                                               
REPRESENTATIVE NORMAN ROKEBERG commented that this is the first                
time he had seen the language he had sponsored in legislation a                
couple of years ago.  He expressed concern about the words "willing            
and able" being back in here, which he believed to be difficult for            
the courts to define.                                                          
                                                                               
MS. WIBKER explained that the problematic language was "willing or             
able"; a supreme court decision had interpreted that to mean they              
could not evaluate ability.  "Willing and able" is an important                
change, because clearly the court has the ability to decide whether            
the other parent is able to care.  Ms. Wibker suggested that "able"            
is what is important.  She recommended that if an amendment is made            
here, it would just take out "willing and," because she believes it            
is the ability that matters, not the willingness.                              
                                                                               
Number 2107                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked whether that was the In Re S.A. case.            
                                                                               
MS. WIBKER said yes.                                                           
                                                                               
Number 2123                                                                    
                                                                               
REPRESENTATIVE JAMES noted that there are times when the other                 
parent is able but not willing.  She said she believes "willing" is            
equally important.                                                             
                                                                               
CHAIRMAN GREEN said they would get to that debate later.                       
                                                                               
Number 2168                                                                    
                                                                               
MS. WIBKER returned to page 34, paragraph (p), which deals with                
visitation.  She said all of this is new and would be pretty                   
difficult for the department to do.  However, visitation is a very             
important part of the policy and the procedure; by law, the                    
department must provide visitation unless there is clear and                   
convincing evidence that visits are not in the best interest of the            
child.  "And we just suggested some alternate language to deal with            
that," she added.                                                              
                                                                               
MS. WIBKER said at the bottom of page 34 is a section dealing with             
the information that the department should provide to a placement              
home prior to, and after, taking a child.  That is part of making              
sure that placement homes get the information they need to care for            
children and meet the child's needs.                                           
                                                                               
Number 2231                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ suggested adding e-mail to this.                      
                                                                               
MS. WIBKER replied that Representative Dyson proposes an amendment             
to that section, but she believes it is mostly housekeeping, rather            
than a substantive change.                                                     
                                                                               
MS. WIBKER next addressed page 35.  She said subsection (r) talks              
about information that the court can order the family to give to               
the department.  This is new.  The family has background                       
information, and this provides continuity of care if the child has             
a counselor or pediatrician, for example.  Subsections (s) and (t)             
deal with changes in placement.  The department has a proposed                 
amendment that differs from this, for the same reason she had                  
discussed relating to visitation:  It is very detailed and puts a              
duty on the department that would be difficult to meet.                        
                                                                               
MS. WIBKER discussed page 36, best interests of the child.  She                
told members the primary amendment there is to make the child's                
health and safety paramount.  Also on page 36, there are minor                 
changes to the existing statute.  She said this is the statute that            
talks about the relationship of legal custody, and it spells out               
the responsibilities of the department, as well as the residual                
responsibilities of the parent when the child is in the legal                  
custody of the department.                                                     
                                                                               
MS. WIBKER advised members that on pages 37 through 40 is a new                
section called "Reasonable efforts" that reflects major changes in             
federal law.  Under prior law, there was always a federal and state            
duty to make reasonable efforts to prevent removal and to return               
the child to the home.  The changes in federal law no longer                   
require reasonable efforts in every case.  In so-called aggravated             
situations where there has been a homicide of a child, a felony                
assault on a child, sexual abuse, torture, chronic abuse or                    
neglect, the department is now required to look for a safe,                    
permanent placement and not make efforts to try to reunite that                
child with the family.  That is an important change.                           
                                                                               
Number 2388                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked how this reconciles with                        
termination, which goes by clear and convincing evidence.                      
                                                                               
MS. WIBKER replied that termination is one possible permanent plan.            
In an aggravated case, where the department feels it should not                
have to make reasonable efforts, they would request a reasonable               
efforts hearing and present evidence of why they should not be                 
required to reunite this child with the family, because the case               
meets one of those conditions.  If the judge ruled it was not in               
the child's best interest to return home, then 30 days after that              
ruling there would have to be a permanency hearing, and the                    
department would have to present the court with a permanent plan               
for the child.  Ms. Wibker concluded, "There are many permanent                
plans.  One option is termination and adoption."                               
                                                                               
Number 2432                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ responded, "That's the option, though,                
that requires clear and convincing evidence.  Any other option that            
would remove a child - effectively, permanently - from a home here,            
under this standard, is preponderance.  Is that right, or am I                 
missing something?"                                                            
                                                                               
MS. WIBKER replied, "Your standard to stop making reasonable                   
efforts is preponderance.  And then, once you stop making                      
reasonable efforts, you've got to decide:  Is Grandma going to                 
become the legal guardian and raise this child?  Is there another              
relative?  Is there a close family friend that's willing to be the             
legal guardian?  The department must come up with a permanent plan.            
But you're correct, the burden of proof is much higher to terminate            
parental rights, because that's a much more serious decision."                 
                                                                               
Number 2461                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ expressed concern about a parent losing a             
child and termination of parental rights [comments cut off by tape             
change].                                                                       
                                                                               
TAPE 98-64, SIDE B                                                             
Number 0006                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ mentioned high legal protection when doing            
a permanent placement.  He asked if there is an articulation of the            
policy distinction being made that he could read somewhere.                    
                                                                               
MS. WIBKER replied that the burden of proof to stop making                     
reasonable efforts is lower than the burden of proof to terminate.             
"Terminate is the highest in the CINA statutes," she added.                    
                                                                               
CHAIRMAN GREEN said they would discuss this when debating the bill.            
                                                                               
Number 0019                                                                    
                                                                               
REPRESENTATIVE JAMES said, "Just continuing on with Representative             
Berkowitz' question, so that you've done the preponderance, and                
you've decided to stop the reasonable efforts, and now you're going            
to the next step.  Did I understand [you] to say that if the next              
step, then, is termination, that you do have to have the clear and             
convincing evidence at that point in time?  And if you don't have              
clear and convincing evidence, then you could find a permanent                 
place somewhere else?  And if you do find a permanent place                    
somewhere else, and someplace ... down the line things change, is              
there any option for those parents to come back and have a hearing?            
Or is it over and finished and done until the child is of age?"                
                                                                               
MS. WIBKER replied that it is not over and finished and done.  If              
the state stops making reasonable efforts and places the child, for            
instance, the parents would participate in the decision of where               
the child should be.  For older children, there generally isn't                
termination, because there is a relationship with those parents.               
There can be legal guardianships, for example, where the children              
still have visits with their parents; those can be overturned, or              
parents can come in and attack those later and get their children              
back.  They are not permanent.                                                 
                                                                               
MS. WIBKER continued, "If you proceeded to termination, what you               
would have to do is file the petition, do the trial, prevail at                
trial, prove your case by clear and convincing evidence.                       
Termination is ... then permanent.  The child would be adopted."               
She said the option to the parents depends on the child's age.  She            
told members, "With very young children, usually ... you just want             
a clean break.  With older children, where there's already a                   
relationship, they frequently do open adoptions, where there's                 
visitation with the parent, even though the child has been adopted             
by someone else.  That is permanent.  But a guardianship or some               
other kind of permanent placement would not necessarily be                     
permanent."  She asked whether that answered the question.                     
                                                                               
REPRESENTATIVE JAMES said sort of, adding that she would make a                
note.                                                                          
                                                                               
Number 0135                                                                    
                                                                               
MS. WIBKER discussed the termination section, beginning on page 40.            
She stated, "As Representative Berkowitz pointed out, the burden of            
proof to terminate parental rights, if it's a non-Native child,                
it's clear and convincing.  If it's a Native child, it's proof                 
beyond a reasonable doubt; that's in ICWA, the Indian Child Welfare            
Act."                                                                          
                                                                               
REPRESENTATIVE BERKOWITZ told members he had discussed with Ms.                
Wibker the language here, and he would be proposing amendments that            
would clarify that it is a clear and convincing standard.                      
                                                                               
CHAIRMAN GREEN took note of that.                                              
                                                                               
Number 0162                                                                    
                                                                               
MS. WIBKER said the statute requires the court to consider whether             
termination is in the best interest of the child; that is not a                
change.  An earlier statute referenced, on best interest, requires             
the court to consider health and safety always paramount.  This                
clarifies the various grounds to proceed to termination.  It is a              
change because of federal law; in some cases it is mandatory that              
the state file a petition to terminate parental rights, which is               
new.  In the past, it was a discretionary decision.                            
                                                                               
MS. WIBKER indicated that under the proposed changes, if there is              
foster care for 15 of 22 months, if there is an abandoned infant,              
or if the court has decided reasonable efforts aren't required -               
the situations where there has been a homicide, a felony assault,              
sexual abuse, chronic abuse or neglect, or torture - the state must            
then must proceed to termination or give the court a compelling                
reason why they did not.  A compelling reason not to terminate may             
be that some other permanent arrangement has been made, such as                
care by a relative or a legal guardian, for example.                           
                                                                               
Number 0247                                                                    
                                                                               
CHAIRMAN GREEN asked how much of this is federally mandated, and               
whether it is the entire section or sections.                                  
                                                                               
MS. WIBKER replied, "The federal sections are foster care 15 of 22             
months, abandoned infant, and there's two other explicit ones ...              
that are escaping me right now, that are included in the grounds               
where you stop reasonable efforts.  The state has added here three             
or more attempts within a 15-month period and no effort whatsoever             
at the time of the first permanency hearing, which is a year.                  
Those are state-proposed additions."                                           
                                                                               
MS. WIBKER told members the other reason that the department may               
not proceed to termination is if it has not made the required                  
reasonable efforts.  For example, the department must provide                  
reunification services to the family, and if it has not done so,               
that would be grounds not to proceed to termination.                           
                                                                               
MS. WIBKER explained that the rest of the statute on termination               
relates to concurrent planning, a federally required change whereby            
even if the state is providing services to return a child home, it             
should have some alternative permanent plan.  It also requires the             
court to set the termination hearing within six months of filing of            
the petition, and to issue an order within 90 days after the                   
conclusion of a trial.  This is to keep cases moving; Ms. Wibker               
said that has mostly been a problem in Anchorage, where it takes               
about a year to get a trial date.                                              
                                                                               
MS. WIBKER next addressed page 43.  She said there is an amendment             
to the statute that allows parents to call and give confidential               
information about their case to legislators, to the ombudsman, or              
to various others.  In addition, a provision allows the department             
to make documents available for inspection when there has been a               
request by a parent.  At the bottom of page 43 are changes in the              
confidentiality statute.  Currently, there is a confidentiality                
statute regarding the department's records, with some exceptions.              
This does some clarification with the exceptions, including a                  
specific exception for foster parents, so they can get information             
needed to care for a child and to protect their own families.                  
                                                                               
Number 0374                                                                    
                                                                               
CHAIRMAN GREEN asked whether anything in this new edition                      
conflicts with the work done last year about opening up DFYS                   
records.                                                                       
                                                                               
MS. WIBKER said no.                                                            
                                                                               
MS. WIBKER continued with page 44, saying there are confidentiality            
exceptions so that members of teams can work together; she                     
mentioned the child fatality review team and the multidisciplinary             
team.  She explained, "Frequently, we have people who will make a              
report of harm, and they'll keep calling because they think nobody             
did anything.  And maybe the case was investigated and something               
was done. ... Or they just want to know what happened.  This allows            
the worker to get back to the person and tell them the outcome.                
And then there's an exception so that Child Support [Enforcement               
Division] can collect child support.  Children who are in the legal            
custody of the state, their parents are still required to pay child            
support, to pay the state for their support and care.  And so                  
there's an exception to confidentiality for Child Support."                    
                                                                               
Number 0434                                                                    
                                                                               
CHAIRMAN GREEN asked whether there was a way to briefly cover the              
remaining 20-some pages.  He indicated his intention of taking up              
the bill, with amendments, when the committee returned at 7 p.m.               
                                                                               
MS. WIBKER said most of the next pages just amend the statutes so              
that the word "minor" is replaced with "child."  The definitions               
section starts on page 47.  Then most of the amendments after that             
they had already discussed; these include respite care, placement              
changes and placement decisions.  In addition, there is a creation             
of a multidisciplinary child protection team that would serve in an            
advisory capacity, doing consulting with the department; she                   
doesn't believe any significant amendments are currently proposed              
relating to that.                                                              
                                                                               
Number 0500                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked whether that is a pilot program.                 
                                                                               
MS. WIBKER said multidisciplinary teams are new.  They can be set              
up to serve any purpose but generally are set up to assist in                  
investigations, as this is.  The investigative stage is critical in            
the case.  Ms. Wibker explained, "Say, if a worker had to make a               
decision if there was an assault or an accident, this would be a               
team of professionals that would, say, include a doctor that could             
look at x-rays or look at photographs of bruises and give some                 
technical assistance.  It's to help the department ... make their              
conclusions, to make sure that they have all of the information."              
                                                                               
REPRESENTATIVE ROKEBERG asked for confirmation that this is                    
different from the child fatality team.                                        
                                                                               
MS. WIBKER affirmed that, saying the child fatality team would do              
death investigations.                                                          
                                                                               
Number 0545                                                                    
                                                                               
REPRESENTATIVE DYSON added that one thing that came out of the                 
Governor's task force is that the right people weren't talking to              
each other.  For example, the DFYS personnel weren't talking to law            
enforcement officials when there was a child abuse case with                   
domestic violence filings on the same household, plus outstanding              
warrants.  This multidisciplinary team sets up a mechanism for                 
continuing communication between different agencies and community              
groups, and it removes the confidentiality barriers that kept them             
from talking to each other.                                                    
                                                                               
Number 0569                                                                    
                                                                               
REPRESENTATIVE JAMES expressed support for having these teams, but             
asked whether they would be set up for a specific case or would be             
already identified.  She further asked how many would there be.                
                                                                               
MS. WIBKER replied that they current operate all over the state,               
but they are not in statute.  One of the most active teams is in               
Bethel, and there is one in Fairbanks, for example.  They are                  
assembled with a diverse group of professionals that bring various             
expertise to the table.  A member of the team can present a case to            
the team, and then a meeting would be called.  If some specific                
expertise is needed that is not represented, that expertise can be             
added to the team for a particular case.                                       
                                                                               
Number 0630                                                                    
                                                                               
REPRESENTATIVE JAMES asked whether there is any payment for this               
service.                                                                       
                                                                               
MS. WIBKER said people are just doing it as part of their jobs.                
                                                                               
REPRESENTATIVE JAMES asked whether there was any reimbursement for             
costs.                                                                         
                                                                               
MS. WIBKER said they are troopers, VPSOs [village public safety                
officers], pediatricians, and people in Head Start, for example.               
"They're just doing it," she restated.                                         
                                                                               
CHAIRMAN GREEN suggested it is done locally, so there is no travel             
expense.                                                                       
                                                                               
MS. WIBKER affirmed that.                                                      
                                                                               
Number 0662                                                                    
                                                                               
MS. WIBKER told members there is just one more important change, to            
licensing foster homes, coming from federal law.  Whenever the                 
department pays someone or licenses a home to care for a child,                
they are now required to do a full criminal background check,                  
including a fingerprint check; that is on page 55.  It also gives              
the department the authority to do criminal background checks on               
parents and perpetrators.  She noted that the section on licensing             
starts on page 57.                                                             
                                                                               
REPRESENTATIVE BERKOWITZ asked whether Social Security numbers are             
kept confidential somewhere.                                                   
                                                                               
CHAIRMAN GREEN said that may be an item of debate, noting that it              
is a hot issue.                                                                
                                                                               
MS. WIBKER responded that these are people going to the department             
and saying that they want to care for this child, and they want to             
get paid to do so.  "And that means the department has to license              
that home," she explained.  "So the department is going to ask for             
information about the people in that family over 16 for the purpose            
of finding out what's in their background, because under this law,             
if you find certain kind of crimes, you cannot license that home,              
and you cannot place children there."                                          
                                                                               
Number 0727                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ suggested it would be more appropriate to             
give privacy protections, essentially the equivalent of in camera              
review, where the department keeps this information in a                       
confidential, secure area, for Social Security numbers and                     
fingerprints, if there is no problem.  He added, "If there is a                
problem related to an application, then you proceed accordingly.               
But I think the privacy interests of everyone involved would                   
suggest to me that you don't want to disseminate Social Security               
numbers."                                                                      
                                                                               
CHAIRMAN GREEN restated that this is a hot issue.  He asked whether            
there is a way that the Social Security number, and perhaps even               
the fingerprints, could be kept in a place in the file that                    
wouldn't be a public record.                                                   
                                                                               
MS. WIBKER said this would be in a licensing file, and a licensing             
unit does this.  She suggested that someone from the department who            
knows how licensing works could explain the protections.                       
                                                                               
Number 0774                                                                    
                                                                               
REPRESENTATIVE JAMES commented, "Once you give your fingerprints               
and you do the background check - and I assume file with FBI                   
[Federal Bureau of Investigation] - the fingerprints are there."               
She expressed concern about the Social Security number but noted               
that people put it on driver's licenses, unless they refuse to do              
so.                                                                            
                                                                               
REPRESENTATIVE BERKOWITZ said he had refused.                                  
                                                                               
CHAIRMAN GREEN indicated they may want to hear from someone on this            
during debate.  He thanked Ms. Wibker.                                         
                                                                               
REPRESENTATIVE JAMES also thanked Ms. Wibker for her time.                     
                                                                               
Number 0861                                                                    
                                                                               
CHAIRMAN GREEN recessed the meeting at 3:36 p.m.                               
                                                                               
TAPE 98-65                                                                     
Number 0001                                                                    
                                                                               
CHAIRMAN GREEN reconvened the House Judiciary Standing Committee               
meeting at 7:07 p.m.  Present at that time were Representatives                
Green, Bunde, Porter and James.  Representatives Rokeberg and                  
Berkowitz arrived at 7:09 p.m. and 7:11 p.m., respectively.                    
Representative Croft was excused.                                              
                                                                               
[TAPE 98-65 is blank, but handwritten log notes were taken.  A copy            
of the log notes may be obtained by contacting the House Records               
Office at 130 Seward Street, Suite 211, Juneau, Alaska, 99801-1182,            
(907) 465-2214, or after adjournment of the second session of the              
Twentieth Alaska State Legislature, in the Legislative Reference               
Library.]                                                                      
                                                                               
During this 90-minute portion of the meeting, the following persons            
besides committee members spoke:                                               
                                                                               
SUSAN G. WIBKER, Assistant Attorney General, Human Services                    
Section, Civil Division (Anchorage), Department of Law, testified              
about the amendments and answered questions.                                   
                                                                               
REPRESENTATIVE FRED DYSON explained proposed amendments.                       
                                                                               
LISA TORKELSON, Legislative Assistant to Representative Fred Dyson,            
Alaska State Legislature, explained proposed amendments.                       
                                                                               
KEVIN JARDELL, Legislative Administrative Assistant to                         
Representative Joe Green, Alaska State Legislature, as committee               
aide, provided information and answered questions.                             
                                                                               
RUSSELL WEBB, Deputy Commission, Office of the Commissioner,                   
Department of Health and Social Services, answered questions                   
regarding proposed amendments.                                                 
                                                                               
DOUG WOOLIVER, Administrative Attorney, Office of the                          
Administrative Director, Alaska Court System, discussed amendments             
proposed by the court system.                                                  
                                                                               
During this 90-minute portion of the meeting, the following action             
was taken:                                                                     
                                                                               
The first amendment, H.1 [0-GH2009\H.1, Lauterbach, 4/17/98] was               
amended in three sections and adopted as Amendments 1, 2 and 3.                
Although sometimes there was reference to amending the bill itself,            
rather than amending the amendment, the following contains the                 
changes that were adopted.  [The line numbers at the left                      
correspond with the beginnings of key points in amendment H.1,                 
although the lines do not fall identically here.]                              
                                                                               
AMENDMENT 1.  Page 1, lines 1 through 21, of amendment H.1                     
originally read:                                                               
                                                                               
1    Page 21, line 31, following "child":                                      
          Insert ", including the right to direct the child's                  
     medical care and the right to exercise reasonable corporal                
     discipline"                                                               
                                                                               
4    Page 22, lines 9 - 23:                                                    
          Delete all material and insert:                                      
          "(2) it is the policy of the state to strengthen families            
     and to protect children from child abuse and neglect; the                 
     state recognizes that, in some cases, protection of a child               
     may require removal of the child from the child's home;                   
     however,                                                                  
9              (A) except in those cases involving serious risk to             
          a child's health or safety, the Department of Health and             
          Social Services should provide time-limited family                   
          support services to the child and the child's family in              
          order to offer parents the opportunity to remedy parental            
          conduct or conditions in the home that placed the child              
          at risk of harm so that a child may return home safely               
          and permanently; and                                                 
15             (B) the state also recognizes that when a child is              
          removed from the home, visitation between the child and              
          the child's parents or guardian and immediate family                 
          members reduces the trauma for the child and enhances the            
          likelihood that the child will be able to return home;               
          therefore, whenever a child is removed from the parental             
          home, the Department of Health and Social Services should            
          encourage frequent, regular, and reasonable visitation of            
          the child with the child's parent or guardian and                    
          immediate family members;"                                           
                                                                               
The above was amended to strike the word "immediate" before "family            
members" on lines 17 and 21 of H.1, subsection (2)(B); the                     
committee aide indicated there had been discussion that it should              
be similarly stricken throughout the amendments.                               
                                                                               
The foregoing was adopted as Amendment 1.                                      
                                                                               
AMENDMENT 2.  Page 1, line 22, through page 2, line 4, of amendment            
H.1 originally read:                                                           
                                                                               
22   Page 23, line 10:                                                         
          Delete "immediate and regular"                                       
          Insert "reasonable"                                                  
                                                                               
2    Page 23, line 11:                                                         
          Delete "extended"                                                    
          Insert "immediate"                                                   
                                                                               
This was deleted, then replaced by "Amendment to Amendment #1",                
which originally read:                                                         
                                                                               
     Page 23, line 10-11                                                       
          Delete (E)                                                           
          Replace with "frequent, regular, and reasonable                      
     visitation with the parent or guardian and immediate family               
     members should be encouraged; and [no end quotation marks                 
     provided]                                                                 
                                                                               
The above replacement was amended by deleting the word "immediate".            
It was then adopted as Amendment 2.                                            
                                                                               
AMENDMENT 3.  Page 2, line 5, through page 3, line 21, of amendment            
H.1 originally read:                                                           
                                                                               
[Page 2]                                                                       
5    Page 23, lines 18 - 20:                                                   
          Delete all material.                                                 
                                                                               
7    Renumber the following paragraph accordingly.                             
                                                                               
8    Page 25, line 9, following "injury":                                      
          Insert ", as evidenced by an observable and substantial              
     impairment in the child's ability to function"                            
                                                                               
11   Page 25, line 29, following "child":                                      
          Insert ", as evidenced by an observable and substantial              
     impairment in the child's ability to function, or have                    
     resulted in exposure of the child to domestic violence as                 
     defined in AS 18.66.990"                                                  
                                                                               
15   Page 26, lines 8 - 10:                                                    
          Delete "has caused substantial physical harm to the child            
     or creates a risk of substantial physical harm to the child"              
          Insert "places the child at substantial risk of physical             
     harm or mental injury"                                                    
                                                                               
19   Page 26, line 13, following "Abandonment.":                               
          Insert "(a)"                                                         
                                                                               
21   Page 26, lines 16 - 17:                                                   
          Delete "and the failure is accompanied by intention on               
     the part of the parent or guardian to permit the failure to               
     continue for an indefinite period"                                        
                                                                               
[Page 3]                                                                       
1    Page 27, following line 3:                                                
          Insert a new subsection to read:                                     
               "(b) For purposes of (a) of this section, a parent              
          or guardian who is a victim of domestic violence, or who             
          has a child in the parent's or guardian's care who is the            
          victim of domestic violence, is considered to have                   
          justifiable cause to take an action or to fail to take an            
          action that would otherwise be considered to be                      
          abandonment of a child under (a) of this section if the              
          action or failure to act is necessary to protect the                 
          parent or guardian, or a child in the care of the parent             
          or guardian, from further acts of domestic violence.                 
          However, a parent or guardian who initially had                      
          justifiable cause to act or fail to act as described in              
          this subsection may be considered to have abandoned the              
          child without justifiable cause for purposes of (a) of               
          this section if the parent or guardian does not take                 
          reasonable steps to reunify with or provide care for the             
          abandoned child after becoming secure from further acts              
          of domestic violence or after providing that another                 
          child in the care of the parent or guardian is secure                
          from further acts of domestic violence."                             
                                                                               
16   Page 30, line 7, following "hearing.":                                    
                                                                               
          Insert "When determining whether to grant a continuance              
     for good cause, the court shall take into consideration the               
     age of the child and the potential adverse effect that the                
     delay may have on the child."                                             
                                                                               
20   Page 30, lines 24 - 25:                                                   
          Delete "the child's health care providers."                          
                                                                               
The above from H.1 was amended as follows:                                     
                                                                               
On page 2, beginning on line 9, the phrase "as evidenced by an                 
observable and substantial impairment in the child's ability to                
function" was deleted.  It was replaced with the phrase, "as                   
defined in [AS] 47.17.290".                                                    
                                                                               
On page 2, line 14, subsection "(3)(a)" was added following "AS                
18.66.990".  However, lines 12 through 14 were then deleted                    
entirely and replaced with the phrase, "or placed the child at                 
substantial risk of mental injury".                                            
                                                                               
The foregoing was adopted as Amendment 3.                                      
                                                                               
AMENDMENT 4.  There was a motion to adopt Amendment 4 [0-                      
GH2009\H.2, Lauterbach, 4/16/98] for discussion purposes.  [Five               
pages long, it is not provided herein but is in the committee                  
packet and is attached to the hard copy of the committee minutes.              
The first two and a half pages were proposed by the Alaska Court               
System and offered by Representative Dyson.  Doug Wooliver of the              
court system addressed permanency hearings and other topics, and               
the committee went through the first page.  The third tape begins              
nine or ten minutes after Amendment 4 was first brought up.]                   
                                                                               
TAPE 98-66, SIDE A                                                             
Number 0001                                                                    
                                                                               
MS. TORKELSON referred to page 2, Amendment 4, continuing to page              
3, line 3.  She told members Section 41 is rewritten to group like             
areas together.                                                                
                                                                               
CHAIRMAN GREEN asked whether that just replaces everything removed             
on the prior page [which says, "Page 32, line 27, through page 33,             
line 25:  Delete all material and insert:"].                                   
                                                                               
Number 0041                                                                    
                                                                               
REPRESENTATIVE DYSON said yes, adding that William Hitchcock,                  
Children's Master, Alaska Court System, had looked at this section,            
which had been amended several times, from the perspective of a                
judge; he had reordered and reorganized it so that it makes more               
sense to read through.  The changes are not substantive.                       
                                                                               
CHAIRMAN GREEN asked whether there was any objection; there was                
none.  He next called members' attention to page 3, line 4,                    
Amendment 4, which says, "Page 34, lines 26 - 27:  Delete all                  
material".                                                                     
                                                                               
MS. TORKELSON said she believes that completes the court-requested             
amendments.                                                                    
                                                                               
REPRESENTATIVE JAMES asked about line 25 of the bill, then noted               
that the subsequent change to page 34, line 28, completes that.                
                                                                               
REPRESENTATIVE BRIAN PORTER asked what it does.                                
                                                                               
Number 0275                                                                    
                                                                               
MS. WIBKER referred to page 34, lines 26 and 27, of the bill.  She             
said the court commits children to the custody of the department               
but doesn't have authority to place children.  The drafter                     
clarified this to say that if the court orders a child committed to            
the department under (c) of this section for placement in licensed             
foster care, the court shall order the department to provide the               
foster parents with information in subsection (1).  And then in                
subsection (2), the foster parents are ordered to do certain things            
for the department.  This section is broken into (1), with                     
subsections (A), (B) and (C), and (2), with subsections (A), (B)               
and (C).  Ms. Wibker said when children are committed to the                   
custody of the department, the department will give certain                    
information to the foster parent, who in turn will maintain                    
records, provide records to the department, and maintain the                   
confidentiality of records.  She concluded, "So, to understand the             
amendment, you really have to go through the rest of the page.  The            
amendment is just better organized."                                           
                                                                               
Number 0380                                                                    
                                                                               
MS. TORKELSON commented that it is Legislative Legal Services'                 
version of her own memorandum.                                                 
                                                                               
CHAIRMAN GREEN inquired about Representative Berkowitz' suggestion             
about electronic mail in this section.                                         
                                                                               
REPRESENTATIVE BERKOWITZ indicated it is on page 35, line 7, of the            
bill that he is considering adding e-mail.                                     
                                                                               
MS. TORKELSON asked if his suggestion is "names, addresses,                    
telephone numbers and e-mail."                                                 
                                                                               
REPRESENTATIVE BERKOWITZ said yes.                                             
                                                                               
Number 0450                                                                    
                                                                               
REPRESENTATIVE ROKEBERG objected, expressing concern that e-mail               
may be out of date soon.                                                       
                                                                               
REPRESENTATIVE BERKOWITZ said he wouldn't pursue it at this point.             
                                                                               
Number 0480                                                                    
                                                                               
CHAIRMAN GREEN asked whether there was any objection to page 3,                
lines 4 - 15, Amendment 4.                                                     
                                                                               
MS. TORKELSON indicated it would be through line 28, to include                
subsection (B).  She noted that it is Legislative Legal Services'              
reworking of sections and subsections.                                         
                                                                               
Number 0513                                                                    
                                                                               
REPRESENTATIVE PORTER asked whether that means there is no                     
substantive change.                                                            
                                                                               
MS. WIBKER responded that the substantive change just adds in that             
the foster parent will maintain records for the department.  Other             
than that, it is just better organized.  However, there is a                   
technical error on page 3, line 8, Amendment 4, which inserts                  
"section for placement in licensed foster care, the court shall                
order the ".  That should read, "section and the department places             
the child in licensed foster care, the department shall provide".              
Ms. Wibker said it is a duty the department should do, without a               
court order; part of that is a suggestion from Mr. Webb.                       
                                                                               
REPRESENTATIVE JAMES pointed out the need to remove "department to             
provide" from subsection (1), then.                                            
                                                                               
Number 0720                                                                    
                                                                               
MS. TORKELSON asked whether they could provide it to Legislative               
Legal Services as a conceptual amendment that says they don't want             
the court to order it.                                                         
                                                                               
CHAIRMAN GREEN agreed to that.                                                 
                                                                               
Number 0803                                                                    
                                                                               
MS. TORKELSON next referred to page 4, lines 1 - 2, Amendment 4,               
which says:                                                                    
                                                                               
     Page 35, line 13:  Delete ", without a court order,"                      
                                                                               
MS. TORKELSON explained, "As we understood, the problem with both              
(s) and (t) of the bill was ... putting the court within these two             
sections.  And so, ... of the amendment, lines 1, 3, 6 are just                
basically taking out the court:  'the department may not change the            
placement of a child' in line 13 of the bill; and in line 25 of the            
bill, 'return receipt requested, of an intent to change the                    
placement of a child whose change of placement is not governed'.               
It takes the court out of that section but leaves the basic idea."             
                                                                               
Number 0866                                                                    
                                                                               
REPRESENTATIVE DYSON added, "What we were after here - and it's an             
honest point of contention between my office and the department -              
is to minimize the number of changes of placement of the child.                
The department argues that what we have before you here, in the                
committee substitute, is too rigorous and puts an undue burden on              
the department.  We have absolutely agreed to take out the court               
order here, so that they don't have to go to court to get a change             
of placement; and we agree on that.  Now, later in the evening I               
will certainly petition you to hear from the department that all of            
section (s) and (t) should be changed. ... So, the first three                 
changes here, on top of page 4, are just getting the court out of              
the pipeline here."                                                            
                                                                               
CHAIRMAN GREEN asked whether there was any objection to those first            
three sets of changes.  Hearing none, he asked Ms. Torkelson to                
continue.                                                                      
                                                                               
Number 0954                                                                    
                                                                               
MS. TORKELSON referred to page 36, line 1 [page 4, lines 8 - 10,               
Amendment 4].  She said "timely" has been indicated to be an                   
important inclusion, keeping in mind that time is a big factor in              
a child's life.                                                                
                                                                               
MS. TORKELSON then referred to page 37, line 17 [page 4, lines 11 -            
13, Amendment 4].  She said Legislative Legal Services had noted               
that "parents" should be "parent or guardian", because not every               
child has two parents.  A similar change is made to page 37, line              
19, of the bill [page 4, lines 14 - 16, Amendment 4].                          
                                                                               
REPRESENTATIVE DYSON told members the last portion adds, "if                   
community services are available and desired by the parent or                  
guardian".                                                                     
                                                                               
Number 1058                                                                    
                                                                               
MS. TORKELSON referred to page 38, line 6 [page 4, line 20 - 21,               
Amendment 4].  Page 38, lines 5 and 6, read:  "(2) the parent or               
guardian has (A) committed homicide under AS 11.41.100 - 11.41.130             
of a child;".  She said this insertion of "a parent of the child or            
of" following the word "of", suggested by Legislative Legal                    
Services, combines into one concise sentence the homicide of a                 
child and the homicide of a parent.                                            
                                                                               
Number 1101                                                                    
                                                                               
MS. TORKELSON referred to page 39, line 8 [page 4, lines 22 - 23,              
Amendment 4].  She said "or" is being deleted in (8) because of the            
addition of (10) on page 5 of the amendment.  On page 5, "or" is               
added to (9), followed by "(10) the parent or guardian is                      
incarcerated and is unavailable to care for the child during a                 
significant period of the child's minority, considering the child's            
age and need for care by an adult".  Ms. Torkelson noted that this             
is all talking about reasonable efforts.  If the parent is in jail             
the whole time of the child's youth, until age 18, there is really             
not an easy time to reunify the child with the parent.                         
                                                                               
MS. TORKELSON next discussed page 46, lines 29 through 32 [page 5,             
lines 5 - 10, Amendment 4].  She said these change "minor" to                  
"child" for consistency within this title.                                     
                                                                               
Number 1194                                                                    
                                                                               
REPRESENTATIVE DYSON said he sensed agreement with the housekeeping            
changes just discussed, but he pointed out that the last change on             
page 5 is substantive.                                                         
                                                                               
MS. TORKELSON addressed that change.  Page 5, lines 11 - 13,                   
Amendment 4, read:                                                             
                                                                               
     Page 59, lines 23 - 24:                                                   
          Delete "an additional period of up to 90 days"                       
          Insert "one or two additional periods of up to 90 days               
     each"                                                                     
                                                                               
MS. TORKELSON said they understand from the Department of Public               
Safety that they cannot always get federal fingerprint information             
within 180 days.  She explained, "We're talking about an emergency             
foster home license.  Emergency means they have everything but the             
fingerprint check by the federal government."                                  
                                                                               
Number 1258                                                                    
                                                                               
REPRESENTATIVE CON BUNDE asked whether they hadn't covered this in             
the House Health, Education and Social Services Committee (HES).               
                                                                               
MS. TORKELSON said they had put 90 days in there.                              
                                                                               
REPRESENTATIVE DYSON indicated they had suggested a renewal for                
another 90 days, but the department is now saying that still isn't             
enough.  Therefore, this provides a third 90-day period, if                    
necessary.  Representative Dyson reminded members that the state               
would have already gone through all its criminal records; this is              
waiting for the federal information.                                           
                                                                               
MS. TORKELSON added that it is fingerprint information.                        
                                                                               
REPRESENTATIVE DYSON noted indications that the federal                        
government's performance in this area is likely to improve.                    
                                                                               
REPRESENTATIVE PORTER commented, "One of the problems is that                  
sometimes they reject the prints; you'd have to start all over                 
again.  And that really is a problem."                                         
                                                                               
REPRESENTATIVE BUNDE said he removes his objection to Amendment 4,             
as modified.                                                                   
                                                                               
Number 1350                                                                    
                                                                               
CHAIRMAN GREEN asked whether there was any other objection.  There             
being none, Amendment 4, as amended, was adopted.                              
                                                                               
Number 1380                                                                    
                                                                               
REPRESENTATIVE BUNDE made a motion to adopt Amendment 5, a 3-page              
amendment (hand-labeled 4B), which said at the top, "Proposed                  
Amendments to CS to HB 375 after 4/17 hearing."                                
                                                                               
REPRESENTATIVE PORTER objected for discussion purposes.                        
                                                                               
Number 1501                                                                    
                                                                               
MS. WIBKER explained that after the previous Friday's hearing, she             
had highlighted things that had come to her attention.  The first              
is a housekeeping change on page 3, line 7, so that it reads "child            
or minor"; that is because that statute refers to both a child in              
need of aid and juvenile delinquency.                                          
                                                                               
CHAIRMAN GREEN asked why one wouldn't suffice.                                 
                                                                               
Number 1561                                                                    
                                                                               
MS. WIBKER replied, "Because when you're talking about 47.10, it's             
proper to use 'child'; when you're talking about 47.12, it's proper            
to use 'minor.'  And that statute is talking about both."                      
                                                                               
MS. WIBKER referred to the second proposed change in Amendment 5,              
which read:                                                                    
                                                                               
     Page 15, line 7, line 9, line 26, line 28, delete "AS                     
     11.41.460"                                                                
                                                                               
MS. WIBKER explained that AS 11.41.460 is misdemeanor indecent                 
exposure; she isn't sure whether the committee wishes, in the                  
statutes dealing with teaching certificates, to refuse to give a               
teaching certificate, or to revoke one, if a person has a                      
misdemeanor conviction for indecent exposure.                                  
                                                                               
MS. WIBKER mentioned the hearing on April 17, 1998, where the                  
committee had discussed that; noting that the existing statute                 
includes misdemeanor indecent exposure, she corrected her own                  
statement from that meeting.  She told members, "Senator Pearce has            
the same amendment in a different bill, and there was some debate              
in her bill, whether or not to include misdemeanor indecent                    
exposure.  I thought that she took it out, but I went to double-               
check, just to be sure, and it is still in there."                             
                                                                               
REPRESENTATIVE PORTER asked, "Didn't we determine that misdemeanor             
indecent exposure was intentional exposure, and other acts, as                 
opposed to getting caught behind the bush?"                                    
                                                                               
MS. WIBKER said it requires an exposure with also a reckless                   
disregard for the offensive disregard on the person.                           
                                                                               
REPRESENTATIVE PORTER paraphrased as he read from AS 11.41.460,                
which says, "intentionally exposes the offender's genitals to                  
another person with reckless disregard for the offensive,                      
insulting, or frightening effect the act may have on that person."             
                                                                               
REPRESENTATIVE BERKOWITZ said that is in this jurisdiction, but the            
City of Seward has statutes where public urination is indecent                 
exposure.  In other states, without going into the litany of                   
exposures possible, some are youthful folly or exuberance.                     
                                                                               
CHAIRMAN GREEN asked the committee's wish about leaving in or                  
removing AS 11.41.460.                                                         
                                                                               
REPRESENTATIVE BERKOWITZ said he wishes to remove it.                          
                                                                               
Number 1693                                                                    
                                                                               
REPRESENTATIVE PORTER objected.  He explained, "I think that is the            
specific reference that should stay in, because that's the one that            
defines what I just read."  He noted that it would exclude Seward's            
ordinance.                                                                     
                                                                               
REPRESENTATIVE BERKOWITZ responded that it wouldn't exclude                    
streaking or perhaps something in another jurisdiction that would              
be mooning.                                                                    
                                                                               
REPRESENTATIVE PORTER said no, mooning is not genitals.                        
                                                                               
REPRESENTATIVE BERKOWITZ replied that in another jurisdiction, it              
could be construed as substantially similar.                                   
                                                                               
REPRESENTATIVE JAMES said it depends on how far one bends over.                
                                                                               
Number 1801                                                                    
                                                                               
CHAIRMAN GREEN requested a roll call vote on that portion of                   
Amendment 5, saying the motion was to remove AS 11.41.460 in four              
places on page 15, and a "yes" vote would be to take it out.                   
Voting "yes" was Representative Berkowitz.  Voting "no" were                   
Representatives Bunde, James, Porter, Rokeberg and Green.                      
Representatives Croft was excused.  Therefore, the motion failed by            
a vote of 5-1.  [Amendment 5 was therefore amended by removing the             
portion that would have deleted "AS 11.41.460" on page 15.]                    
                                                                               
Number 1812                                                                    
                                                                               
MS. WIBKER referred to the next proposed change in Amendment 5,                
which read:                                                                    
                                                                               
     Page 26, line 1-2 should read:  "the parent, guardian or                  
     custodian's ability to parent has been substantially impaired             
     by the addictive or habitual use of an intoxicant and the                 
     addictive or habitual use of the intoxicant has resulted in a             
     substantial risk of harm to the child;"                                   
                                                                               
MS. WIBKER said she believes that was suggested by Representative              
Croft at the April 17, 1998, hearing, and that Representative                  
Porter may have come up with the language.  It deals with the                  
statute on addiction to substances.  There had been concern that               
they add that the addictive or habitual use of the intoxicant has              
resulted in a substantial risk of harm to the child.  The first                
clause would be replaced with this language.                                   
                                                                               
MS. TORKELSON added that after "intoxicant" on line 2, it would                
say, "and the addictive or habitual use of the intoxicant has                  
resulted in a substantial risk of harm to the child;".                         
                                                                               
Number 1888                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said if he recalls the conversation, one              
concern was that the other parent also had to be absent.  There was            
concern about one parent having a substance abuse problem when the             
other parent did not.                                                          
                                                                               
MS. WIBKER said she believes this was the proposal after that                  
discussion, as a way to resolve the concerns.  This would require              
a substantial risk of harm to the child.                                       
                                                                               
Number 1917                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ told members it is not his intent that if             
one parent has a substance abuse problem, but the other doesn't,               
the problem of one parent can be used as a vehicle for initiating              
proceedings, of and by itself.                                                 
                                                                               
MS. WIBKER replied, "That's why that language was added.  Only if              
their ability to parent is substantially impaired and there is a               
substantial risk of harm to the child."                                        
                                                                               
Number 1970                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said Representative Berkowitz brings up a              
good point.  In this whole section, which is very important, it is             
written in the singular, as to a parent.                                       
                                                                               
MS. WIBKER said the law is that the conduct of one parent may bring            
the child under the jurisdiction of the court.                                 
                                                                               
REPRESENTATIVE asked, "Notwithstanding the other parent is ready,              
willing and able to provide that care?"                                        
                                                                               
MS. WIBKER said that is correct.  It becomes a placement issue,                
rather than a jurisdiction issue.  Generally, the conduct of one               
parent does bring the child under the jurisdiction of the court,               
such as when one parent sexually abuses or batters the child, or is            
an alcoholic.  Separate from that is a placement issue.  Both state            
and federal law require that the state make efforts to prevent the             
need for removal and have what they call a kinship preference,                 
which is placement with a relative.                                            
                                                                               
REPRESENTATIVE ROKEBERG asked what happens to the other parent                 
here.                                                                          
                                                                               
MS. WIBKER replied, "You place the child with that parent if you               
can."                                                                          
                                                                               
REPRESENTATIVE PORTER said, "Which induces the bad one to leave."              
                                                                               
REPRESENTATIVE JAMES noted that the state is still supervising the             
family.                                                                        
                                                                               
REPRESENTATIVE ROKEBERG expressed concern.  He asked, "If there's              
a parent there willing to take the child, what's the business of               
the state have to do with anything, injecting themselves in there?"            
                                                                               
CHAIRMAN GREEN said, "Except that we've added that if there is a               
substantial risk to the child."                                                
                                                                               
REPRESENTATIVE ROKEBERG said it is only from one parent.                       
                                                                               
CHAIRMAN GREEN said that is all it takes.                                      
                                                                               
MS. WIBKER agreed that if one parent is endangering the child, it              
is enough.                                                                     
                                                                               
Number 2042                                                                    
                                                                               
REPRESENTATIVE BUNDE posed a situation where there are two parents,            
one of whom is a crack addict and dealer, and that behavior causes             
gunfire in the home.  That person would have to leave the home,                
which couldn't be done unless the child was found in need of aid               
and placed with the other parent.  Then the first parent couldn't              
come back.                                                                     
                                                                               
REPRESENTATIVE ROKEBERG said the logic escapes him, suggesting it              
is a philosophical debate.                                                     
                                                                               
Number 2073                                                                    
                                                                               
MS. WIBKER brought up the next proposed change in Amendment 5,                 
which read:                                                                    
                                                                               
     page 28, line 26 should read:  "the child, each parent, the               
     tribe, the foster parent...... [no end quotation marks                    
     provided]                                                                 
                                                                               
MS. WIBKER explained that this just adds the tribe to the list of              
people that would be notified.  She said the reason is that tribes             
are parties, whereas foster parents are not.  It didn't seem right             
to list foster parents as getting formal service and notice of a               
procedure without including the tribe.                                         
                                                                               
CHAIRMAN GREEN asked whether there was any objection; none was                 
heard.                                                                         
                                                                               
Number 2096                                                                    
                                                                               
MS. WIBKER addressed the next proposed change in Amendment 5, which            
read:                                                                          
                                                                               
     page 34, lines 10 - 24 should be replaced with:                           
                                                                               
     (p) if a child is removed from the parental home, the                     
     department shall provide reasonable visitation between the                
     child and the child's parents, guardian, and immediate family.            
     The court may require the department to file a visitation plan            
     with the court.  The department may deny visitation to the                
     parents, guardian or immediate family members if there is                 
     clear and convincing evidence that visits are not in the                  
     child's best interests.  Any parent or guardian who is denied             
     visitation may request a review hearing.                                  
                                                                               
MS. WIBKER informed members this is alternative language proposed              
by the state.  The language in CSHB 375(HES) has a lot of detail               
about the time and frequency of visits.  This makes a more general             
statement, without locking the department into a specific time                 
schedule; it basically reflects the current state of the law.                  
                                                                               
Number 2119                                                                    
                                                                               
REPRESENTATIVE DYSON indicated this has been a contentious point.              
He said the department, probably rightly, feels that if there are              
specific times like 72 hours or at least once a week, they may be              
subject to action when it doesn't happen for one reason or another.            
They don't want that kind of vulnerability, although they say they             
are committed to early, frequent visitation from the family                    
members.  Representative Dyson stated, "This is one of those cases             
where Mr. Webb has promised me that in the training for the staff,             
and in their policy and so on, early, regular visitation by parents            
will be a part of it.  And I've asked him to make that a part of               
the reporting that they do to us on how they're doing with these               
kids."                                                                         
                                                                               
Number 2165                                                                    
                                                                               
REPRESENTATIVE BUNDE asked if the three levels of evidence are                 
preponderance, clear and convincing, and beyond a reasonable doubt.            
He stated his understanding that this elevates the level of proof              
to the highest civil level.                                                    
                                                                               
MS. WIBKER affirmed that, adding that this is the current state of             
the law.  By law, the department must provide visits unless there              
is this level of evidence to stop it.                                          
                                                                               
REPRESENTATIVE BUNDE said that mollifies some of his concerns.                 
                                                                               
Number 2203                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ pointed out that "immediate" is in here,              
which they had exorcised earlier; he asked whether they are going              
to do that again.  He then asked what happens when there is one                
Caucasian parent and one Native parent.                                        
                                                                               
MS. WIBKER replied that if it is an Indian child, it falls under               
the Indian Child Welfare Act and the standard is (indisc.).                    
                                                                               
REPRESENTATIVE BERKOWITZ asked whether it is based on the child,               
not the parent.                                                                
                                                                               
MS. WIBKER said it is the child that the court has jurisdiction                
over.                                                                          
                                                                               
CHAIRMAN GREEN asked if the child of one Caucasian parent and one              
Indian parent would still be considered an Indian child.                       
                                                                               
MS. WIBKER said yes.                                                           
                                                                               
REPRESENTATIVE ROKEBERG asked what the standard is.                            
                                                                               
MS. WIBKER said it is whatever the federal law is that defines it.             
                                                                               
Number 2250                                                                    
                                                                               
REPRESENTATIVE BUNDE announced that he would like to withdraw his              
three amendments, which hadn't been formally offered, as well as               
himself.  He indicated he may reintroduce one of those amendments              
later.                                                                         
                                                                               
CHAIRMAN GREEN asked whether there was any objection to the                    
proposed change in (p) just discussed.                                         
                                                                               
REPRESENTATIVE BERKOWITZ mentioned removal of "immediate."                     
                                                                               
REPRESENTATIVE ROKEBERG pointed out that it occurs twice there.                
                                                                               
Number 2338                                                                    
                                                                               
CHAIRMAN GREEN next brought up the proposed change that read:                  
                                                                               
     Page 35, lines 4-5, delete "for placement in licensed foster              
     care or for placement with a relative of the child,"                      
                                                                               
MS. WIBKER advised members to ignore that, as the change had been              
made when going through Representative Dyson's amendments; she                 
indicated that was confirmed by Mr. Webb.                                      
                                                                               
CHAIRMAN GREEN next asked whether there was any objection to                   
deleting "or custodian" from page 35, line 5; none was heard.                  
                                                                               
Number 2407                                                                    
                                                                               
CHAIRMAN GREEN brought up the next proposed change in Amendment 5,             
which read [original punctuation provided]:                                    
                                                                               
     Page 35, lines 12-31 and page 36, lines 1-4 should be replaced            
     with:                                                                     
                                                                               
     (s) the department may transfer a child, in the child's best              
     interests, from one placement setting to another, and the                 
     child, the child's parents or guardian, the child's foster                
     parents or out of home caregiver, the child's guardian ad                 
     litem, the child's attorney, and the child's tribe, are                   
     entitled to advance notice of any non-emergency transfer.  Any            
     party opposed to the proposed transfer may request a hearing              
     and must prove an abuse of discretion by the department for               
     the court to deny the transfer.  A foster parent or out of                
     home caregiver who requests a change in placement of the                  
     child, should provide the department with reasonable advance              
     notice of the requested change.                                           
                                                                               
MS. WIBKER advised members that Representative Dyson had referred              
to this earlier.  It relates to changes in placement, such as from             
one foster home to another, or from one relative to another.  In               
CSHB 375(HES) there are sections (s) and (t), which have a great               
deal of detail on the procedure for doing that.  She said the                  
department is proposing some broader language that doesn't lock the            
department into the procedure.                                                 
                                                                               
MS. WIBKER continued, saying that as proposed by the department,               
(s) generally represents current law, which is that the department             
has discretion to place; generally, the department moves a child,              
and if somebody objects, there is a hearing to see whether the                 
department abused its discretion.  Ms. Wibker stated, "What we're              
proposing is, prior to the move, the department should give people             
notice.  People should have a chance to object, and there should be            
a hearing prior to the move on whether or not it's an abuse of                 
discretion, to prevent precipitous moves. ... I believe the same               
policy is in both ... provisions, but this is a broader statement;             
it just doesn't have as much detail."                                          
                                                                               
CHAIRMAN GREEN suggested in effect they are taking (s) and (t) both            
out, then substituting a new (s).                                              
                                                                               
MS. WIBKER replied, "That's our proposal.  Under the existing (s)              
in the committee substitute, it talks about situations where the               
department ... can move a child.  It talks about a procedure that              
would require 14 days' written notice by certified mail before a               
move.  And I think the way that the alternative (s) is proposed,               
for example, the department could call all of the parties or                   
immediately fax them something, and allow them to object to a                  
proposed change in placement."  She said it is less secretarial                
work for the department.                                                       
                                                                               
Number 2460                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ pointed out that abuse of discretion is a             
pretty high standard.  He asked what the consequence would be of               
going to a lesser standard.                                                    
                                                                               
MS. WIBKER replied that abuse of discretion is the current state of            
the case law, because the way the statutes are set up, the                     
legislature gave the department discretion to place and took that              
away from the courts.                                                          
                                                                               
REPRESENTATIVE BERKOWITZ suggested that because the overarching                
principle is the best interest of the child, the transfer request              
should be tied to that.                                                        
                                                                               
TAPE 98-66, SIDE B                                                             
Number 0001                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said he doesn't want to set up a situation            
where the child's interests are subsumed by the department's.  He              
suggested something along the lines of, "the party opposed must                
prove that it is not in the best interests of the child to approve             
the transfer," proved by a preponderance of the evidence, or by                
clear and convincing evidence.                                                 
                                                                               
MS. WIBKER stated her understanding that he was talking about what             
the opposing party must prove to stop the move.                                
                                                                               
REPRESENTATIVE BERKOWITZ replied, "Right. ... You have to prove                
that it's not in the best interest of the child.  In other words,              
the department has to prove that it is in the best interests of the            
child."                                                                        
                                                                               
MS. WIBKER said they have to do that anyway.  The first line is                
existing law; the move can be made in the child's best interest.               
                                                                               
Number 0060                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ pointed out that it is the interest as                
determined at the department's discretion, not the interest as                 
validated by the objective court, an important distinction.  For an            
outside party to challenge the department based on abuse of                    
discretion, that is nearly impossible to prove.  Representative                
Berkowitz explained, "But for them to assert that it's not in the              
best interests of the child - which is what the litigation should              
be about - is a threshold we can reach either with clear or                    
convincing, with beyond a reasonable doubt, with preponderance.                
And that's where the focus ought to be."                                       
                                                                               
MS. WIBKER asked whether Representative Berkowitz was suggesting a             
party opposed to the proposed transfer may request a hearing and               
must prove, by clear and convincing evidence, that it is not in the            
child's best interest.                                                         
                                                                               
REPRESENTATIVE BERKOWITZ replied that he would say it is by a                  
preponderance that it is not in the best interest, because all of              
the standards they have used so far have been the preponderance                
that it is in the best interest.                                               
                                                                               
Number 0104                                                                    
                                                                               
REPRESENTATIVE DYSON said Representative Berkowitz, with his usual             
clarity, has gotten right to the heart of the matter.  He noted                
that the decision about that is a judgment call.                               
                                                                               
Number 0150                                                                    
                                                                               
CHAIRMAN GREEN asked whether all the department has to do is prove             
it is in the best interest, but for an objection there must be                 
proof that the department abused its discretion.                               
                                                                               
MS. WIBKER said that is the current state of the law.                          
                                                                               
CHAIRMAN GREEN replied that it seems a little one-sided.                       
                                                                               
MS. WIBKER said she thinks it is because the department has the                
liability for the placement.  The department has to license the                
home, pay for the home, inspect the home, make the home visits, and            
train the people.  If another party can come in and object, saying             
the child should be put elsewhere, then the department is still                
liable for the placement.                                                      
                                                                               
Number 0180                                                                    
                                                                               
REPRESENTATIVE DYSON objected, saying that is not his reading of               
it.  He noted that they are talking about a challenge of a change              
of placement.  The child would already be in a department-approved             
situation.                                                                     
                                                                               
Number 0190                                                                    
                                                                               
REPRESENTATIVE JAMES suggested that if the department would have               
made a decision to change the placement, with the argument then                
being whether there should have been a change, it is not the                   
situation Ms. Wibker described.                                                
                                                                               
MS. WIBKER responded that if it is from one department-approved                
home to another, she believes Representative Dyson makes a good                
argument.  However, if the parent convinces the court that the                 
child should be at the parent's home or with the parent's sister,              
and the child is in the legal custody of the department, it puts               
the department in an awkward position of being liable for a                    
placement they didn't choose.  "Under Representative Dyson's                   
suggestion, it works, because the department has clearly approved              
of both placements; but if a party can challenge a placement, and              
go in and suggest another placement, it doesn't work so well," she             
concluded.                                                                     
                                                                               
Number 0229                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ noted that this section just says the                 
department may transfer a child from one placement setting to                  
another.  The child would be in a department-approved setting, and             
now the department would be getting ready to move it to another                
setting.  He said it isn't as if the other interested party can                
come in and say, "I want it to come to me" or "I want it to go to              
my aunt," for example.                                                         
                                                                               
REPRESENTATIVE JAMES asked, "But what if they wanted to leave it               
there?"                                                                        
                                                                               
REPRESENTATIVE BERKOWITZ responded, "If I understand correctly                 
Representative James' question, if you're challenging the move                 
because you don't think it's in the best interests of the child to             
move, and you want the child to remain where he or she is, then you            
can challenge on the best interests of the child, under this                   
section."                                                                      
                                                                               
Number 0261                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said to Representative Dyson that it seems             
he is setting down some specific time frames, whereas the                      
department, at its discretion, now can remove the child without any            
notification.  He asked if that is correct.                                    
                                                                               
MS. WIBKER said that is correct, and that is not a good situation.             
                                                                               
REPRESENTATIVE ROKEBERG responded that there is essentially a 30-              
day period for notification, then a response, and it could actually            
go beyond that because of time for an adjudicative hearing.  He                
asked what kind of court is assumed to be taking this matter up,               
and whether it would normally be done by a master.                             
                                                                               
MS. WIBKER replied that sometimes it is a children's master, and               
sometimes those cases are set in superior court for a contested                
evidentiary hearing before a superior court judge.                             
                                                                               
REPRESENTATIVE ROKEBERG said it may be a practical time period, but            
perhaps too protracted.  In addition, when he read subsection (t),             
he didn't believe the burden of proof and the level of evidence                
were addressed.  He stated, "I would tend to prefer your (s) and               
(t), but (t) is not perfected here, I don't think, as it should be,            
as I look at it.  Would that be a correct analysis?"                           
                                                                               
REPRESENTATIVE DYSON said yes.                                                 
                                                                               
Number 0355                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked if there is a way to shorten it, add             
what he'd been talking about, and maybe expedite it but still make             
it reasonable.  He mentioned an ex-foster parent constituent who               
had written him about the yo-yo effect of having a child go back               
and forth.  Representative Rokeberg then stated, "I would prefer               
not to adopt this amendment, and ask the Representative to look                
into it further and bring it back to the committee, on this one."              
                                                                               
Number 0373                                                                    
                                                                               
MR. WEBB told members subsections (s) and (t) are problematic for              
a number of practical reasons.  There are other reasons why section            
(s) is particularly problematic.  For instance, the department                 
would not be able to remove a child under the language in (indisc.)            
in the existing bill.  If the care being given by a licensed foster            
parent weren't adequate, the state would have to wait until there              
was a report of harm, of abuse or neglect, on the part of a foster             
parent.  The fact of the care not being adequate, and not meeting              
the child's need, wouldn't be enough to enable the department to               
remove a child from a placement.                                               
                                                                               
MR. WEBB said the policy agreement is that the department ought to             
limit the number of placements that children have to go through.               
And the language suggested in (s) does that, and sets up a                     
standard.  He stated, "Then the question gets to, I think, what                
Representative Berkowitz has said:  What's the standard for                    
removing the child?  And it ought to be the child's best interests.            
And that's a much better construction, it seems, from a practical              
standpoint.  It focuses on the purpose, which is to focus on the               
interests of the child, ... and gives people with an interest in               
that child's well-being the ability to call into question an action            
by the department.  But it doesn't set up ... a  very cumbersome               
process that both is, I think, harmful to the child, as in (s), and            
very, very cumbersome in terms of trying to practically implement,             
as those things are in (t)."                                                   
                                                                               
Number 0451                                                                    
                                                                               
REPRESENTATIVE PORTER inquired whether a determination that this               
transfer was not in the child's best interest would be an abuse of             
discretion by the department.                                                  
                                                                               
MS. WIBKER answered that a judge would have to make that finding.              
                                                                               
REPRESENTATIVE PORTER asked whether it didn't follow.                          
                                                                               
REPRESENTATIVE BERKOWITZ said not necessarily.                                 
                                                                               
MS. WIBKER added, "Abuse of discretion's pretty high."                         
                                                                               
REPRESENTATIVE BERKOWITZ agreed it is way up there.                            
                                                                               
Number 0475                                                                    
                                                                               
REPRESENTATIVE PORTER responded that if that wouldn't follow, he               
would suggest changing that.                                                   
                                                                               
MR. WEBB stated his belief that the proposed language would get                
where they need to go.                                                         
                                                                               
REPRESENTATIVE PORTER suggested that instead of having to prove                
there was abuse of discretion by the department, it should be                  
proving that the move was not in the best interests of the child.              
                                                                               
Number 0490                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ suggested it read that any party opposed              
to the proposed transfer may request a hearing and must prove, by              
a preponderance of the evidence, that it is not in the best                    
interests of the child for the court to approve the transfer.                  
                                                                               
CHAIRMAN GREEN asked whether they want a preponderance of the                  
evidence or clear and convincing evidence.                                     
                                                                               
REPRESENTATIVE DYSON said the court is not in the game.                        
                                                                               
REPRESENTATIVE JAMES asked who would conduct the hearing.                      
                                                                               
CHAIRMAN GREEN said, "If you had an objection, they are."                      
                                                                               
REPRESENTATIVE ROKEBERG said, "But no, they already got the child              
out of the house, before this all happens.  That's the point."                 
                                                                               
REPRESENTATIVE BERKOWITZ disagreed.                                            
                                                                               
Number 0533                                                                    
                                                                               
MS. WIBKER said, "Under current law, that's the case.  What we're              
proposing is ... a change, so that if the department wants to move             
a child, they have to notify everybody in advance.  If everybody               
agrees, you do it.  If somebody disagrees, they get a hearing and              
get a chance to stop it before it happens.  That is a change."                 
                                                                               
AN UNIDENTIFIED SPEAKER said, "Unless it's an emergency."                      
                                                                               
MS. WIBKER acknowledged that.                                                  
                                                                               
REPRESENTATIVE DYSON noted that they agree on that.                            
                                                                               
CHAIRMAN GREEN asked about the standard of proof again.                        
                                                                               
Number 0561                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said "preponderance," which is what they              
have been using.  The alternative is by clear and convincing                   
evidence.                                                                      
                                                                               
CHAIRMAN GREEN said that raises it, but it is not impossible.                  
                                                                               
REPRESENTATIVE BERKOWITZ added, "I just think, as a matter of                  
equity, if the department is going to be going after children by a             
preponderance, then they should be required to live by that                    
standard as well."                                                             
                                                                               
CHAIRMAN GREEN said that is a pretty good point.                               
                                                                               
Number 0584                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said it is a huge change for the department            
to set up this proceeding prior to transfer of a child, which he               
indicated may itself reduce the occurrences targeted by                        
Representative Dyson.  He stated that he doesn't believe they                  
should put up artificial hurdles by raising the standards so high              
that they must involve high-powered attorneys, rather than having              
a master handle it in a relatively informal setting.                           
                                                                               
CHAIRMAN GREEN mentioned that they are eliminating the exhaustive              
list that would be, as Mr. Webb indicated, a burden.  He suggested             
there should be some approach that wouldn't be an extremely high               
standard.  Even if something were questionable, it wouldn't                    
necessarily be an abuse, he noted.                                             
                                                                               
Number 0649                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said, "Abuse of discretion is not only did            
they do the wrong thing, but they did it in the wrong way."                    
                                                                               
CHAIRMAN GREEN agreed that is tough.                                           
                                                                               
Number 0659                                                                    
                                                                               
REPRESENTATIVE PORTER suggested that a compromise would be proving             
it is against the best interests of the child, but by clear and                
convincing evidence.                                                           
                                                                               
CHAIRMAN GREEN said he likes that one, because it is a fairly high             
standard but can at least be done.                                             
                                                                               
MS. WIBKER asked whether the proposal is, "The opposing party must             
prove by clear and convincing evidence that it is contrary to the              
best interest of the child."                                                   
                                                                               
CHAIRMAN GREEN affirmed that.                                                  
                                                                               
Number 0680                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ noted that they would already have a child            
in need of aid, which is why the department would have some form of            
custody.  He expressed his belief that the standard the state uses             
on parents should be clear and convincing evidence.  However, if               
the standard is going to be a preponderance of the evidence, he                
believes the state should be held to that same standard.                       
                                                                               
CHAIRMAN GREEN responded that here, they are talking about a child             
in custody, and this is a matter of moving the child around.  That             
is a little different from determining whether a child is in need              
of aid.  He said he could see where if they lowered the standard               
for placement too much, there would be arguments about every move.             
                                                                               
Number 0716                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked whether one of the most common                   
instances is where the parent requests the child back but it                   
doesn't work out, creating a yo-yo effect.                                     
                                                                               
MS. WIBKER answered that the most common move is from a foster                 
parent calling and saying, "I want this child out of here."                    
However, Representative Rokeberg is correct in that most contested             
hearings are because a parent has decided the child should be back             
with him or her, but the department is proposing that the child go             
elsewhere.  She added that there is then a placement review                    
hearing.                                                                       
                                                                               
Number 0762                                                                    
                                                                               
MR. WEBB pointed out that if the department moved to return a child            
home, they have now given a foster parent status to object to that,            
so that the foster parent now has virtually the same rights to                 
object to a return to the child's home that the parent has.                    
                                                                               
REPRESENTATIVE PORTER responded, "At this stage, ... I think it's              
not improper to give some degree of deference to the professional              
position here, that's not a foster parent that is now more attached            
than they should be, and those kinds of things.  So, clear and                 
convincing that it's in the best interest of the child, I think, is            
a ...."                                                                        
                                                                               
REPRESENTATIVE BERKOWITZ said he sees the logic.                               
                                                                               
Number 0807                                                                    
                                                                               
REPRESENTATIVE PORTER made a motion to amend the portion of                    
Amendment 5 dealing with page 35, lines 12 through 31, to read,                
toward the end, "Any party opposed to the proposed transfer may                
request a hearing and must prove, by clear and convincing evidence,            
that the transfer would be contrary to the best interests of the               
child."                                                                        
                                                                               
CHAIRMAN GREEN asked whether there was any objection.  There being             
none, that amendment to Amendment 5 was adopted.                               
                                                                               
REPRESENTATIVE PORTER noted that it would continue on, "A foster               
parent ...."                                                                   
                                                                               
CHAIRMAN GREEN asked about problems with inserting (s), as amended.            
                                                                               
Number 0858                                                                    
                                                                               
MS. WIBKER said it is not as complicated as it looks.  She                     
explained, "If you go back to page 30, the current statute talks               
about court orders on page 30.  And at the end of court orders,                
they stick in this stuff about moving children.  And so, since we              
just adopted (s) as the part of the statute that would deal with               
transferring children, lines 21, after the semicolon, through lines            
26 should be deleted.  We just took care of that in another place."            
She said that section is taken care of in (s), which they had just             
created.                                                                       
                                                                               
REPRESENTATIVE ROKEBERG asked whether that includes the existing               
statute as well.                                                               
                                                                               
MS. WIBKER replied, "Correct.  The existing statute really mixes up            
a custody order and a transfer of placement; it puts them all                  
together. ... And we just cleaned it up."                                      
                                                                               
Number 0916                                                                    
                                                                               
MS. WIBKER addressed the next portion of Amendment 5, which read               
[original punctuation retained]:                                               
                                                                               
     Page 36, lines 22-24, the added language should be deleted OR             
     delete line 22 "and the right and responsibility to obtain                
     legal representation for,."                                               
                                                                               
MS. WIBKER referred to the bold language on in the bill on page 36,            
lines 22 through 24, which read, ", and the right and                          
responsibility to obtain legal representation for, and make                    
decisions of legal or financial significance concerning, the                   
child".  She said these are things that generally the department               
would not have the responsibility to do.  A court would decide if              
a child needed a GAL or an attorney, and a guardian or GAL would               
make decisions of legal or financial significance.                             
                                                                               
CHAIRMAN GREEN noted that the amendment would take out all the bold            
language.                                                                      
                                                                               
Number 0956                                                                    
                                                                               
MS. TORKELSON responded that they are okay with taking it out as a             
duty of the department, but not as a right of the parent.  She said            
she doesn't know how Legislative Legal Services could work that.               
                                                                               
MS. WIBKER suggested moving it to the section on residual                      
responsibilities.                                                              
                                                                               
MS. TORKELSON referred to the findings in Section 27 and said they             
are trying to make this equal to the wording in the findings                   
section, where they had put that parents have the right and                    
responsibility to obtain legal representation for the child, as                
well as to protect, nurture, train, discipline the child, decide               
where and with whom the child shall live, and so forth.  She                   
suggested having a conceptual amendment.                                       
                                                                               
Number 1068                                                                    
                                                                               
REPRESENTATIVE DYSON objected to taking it out, saying that if the             
child is in the state's custody and is heir to an estate, for                  
instance, whoever has custody has a responsibility to prosecute                
that child's interests.  Similarly, if a child gets charged with a             
crime or a tort, the child needs representation; Representative                
Dyson said he had this put in here because he believes the state               
has the responsibility to get representation for the child.                    
                                                                               
REPRESENTATIVE BERKOWITZ commented, "In loco parentis, in the place            
of the parents."                                                               
                                                                               
CHAIRMAN GREEN asked the wish of the committee.                                
                                                                               
REPRESENTATIVE ROKEBERG said he would delete [the proposed changes             
relating to] page 36, lines 22 to 24, from the amendment.                      
                                                                               
CHAIRMAN GREEN asked whether there was any objection to deleting               
that from Amendment 5.  Hearing none, he announced that the bold               
language stays in.                                                             
                                                                               
Number 1151                                                                    
                                                                               
CHAIRMAN GREEN referred to the next line of Amendment 5, which                 
read:                                                                          
                                                                               
     Page 41, line 29 "take" should be "make" (typo).                          
                                                                               
MS. WIBKER said it is a typographical error.  It says "take                    
reasonable efforts" but should be "make reasonable efforts".                   
                                                                               
Number 1160                                                                    
                                                                               
MS. WIBKER addressed the next proposed change in Amendment 5, which            
read:                                                                          
                                                                               
     page 43, line 19 should read "may or shall upon request"                  
     disclose....                                                              
                                                                               
[Page 43, lines 19 and 20, read, "(b) A state or municipal agency              
or employee shall [MAY] disclose appropriate information regarding             
a case to".]                                                                   
                                                                               
MS. WIBKER told members the department is bound to keep things                 
confidential, with a specified list of exceptions in statute.  The             
committee substitute says "the department shall disclose," which               
turns an exception to confidentiality into a duty.  They propose               
that it read, "may or shall upon request".  That way, the                      
department is allowed to give information about a child to these               
particular people, as exceptions to confidentiality, and if there              
is a request, the department must answer the request.                          
                                                                               
Number 1208                                                                    
                                                                               
REPRESENTATIVE DYSON responded, "We put the 'shall' in here                    
intentionally."  He told members a consistent complaint he has                 
heard and dealt with personally is not getting necessary                       
information to foster parents, including behavioral problems,                  
occasionally medical problems, and certainly criminal activity.                
That is the reason it is put in the imperative.                                
                                                                               
MS. TORKELSON added that Legislative Legal Services had explained              
to her that putting in "appropriate information" helps with                    
confidentiality, because everything cannot be disclosed to                     
everybody.  Someone determines what is appropriate, and then each              
person to whom it is to be disclosed is "as may be necessary."                 
This gives the department the decision about what is appropriate               
and necessary, and then the department would have to disclose that.            
                                                                               
Number 1287                                                                    
                                                                               
REPRESENTATIVE DYSON said his [previous] amendment had put in                  
"shall disclose" but allowed the department to decide what is                  
appropriate or necessary.  He stated the belief that the department            
has a lot of discretion here.                                                  
                                                                               
REPRESENTATIVE PORTER asked where the "as necessary" is.                       
                                                                               
MS. TORKELSON said it is in each one.  For example, in (2) it says             
"a person or an agency requested by the department", and at the end            
of that it says, "as necessary to enable the provision of the                  
consultation or services".  She cited other examples, noting that              
what is necessary for a school may not be the same as for a foster             
parent.                                                                        
                                                                               
Number 1335                                                                    
                                                                               
REPRESENTATIVE PORTER said information that isn't necessary for                
that purpose may not be deemed appropriate, then.                              
                                                                               
MS. TORKELSON agreed, restating that if it is deemed appropriate               
and necessary, the department had better provide it to the person.             
                                                                               
REPRESENTATIVE DYSON requested that the department be allowed to               
speak to this, as they have a different opinion.                               
                                                                               
REPRESENTATIVE ROKEBERG pointed out that "as may be necessary" is              
in existing law; for example, it is in (4) and (5) on page 44.                 
                                                                               
Number 1363                                                                    
                                                                               
MR. WEBB stated, "I think we've dealt pretty satisfactorily in                 
other areas of the law, in terms of the ... information that foster            
parents require.  We've mandated that the department provide that,             
in another section that we amended earlier.  So, I think that's of             
a lesser concern."                                                             
                                                                               
MR. WEBB then indicated the department does not object to providing            
information upon request, but is concerned with the language,                  
"shall disclose appropriate information," as it is the department's            
discretion about what is appropriate.  He explained, "We'll be                 
constantly criticized for having exercised that discretion                     
inappropriately.  Somebody will conclude that we've not provided               
them with adequate information; we haven't sought them out and                 
provided them with information. ... I think the language that is               
drafted in our amendment here requires that we do it upon request;             
it doesn't mandate that we go out and provide people with                      
information they haven't asked for and don't want."                            
                                                                               
MS. TORKELSON asked, if DFYS has the information, how a school is              
supposed to know what to request.  She said in current law, it                 
states that they may disclose information to a foster parent.  She             
discussed an example where lack of disclosure by the department                
could have caused problems.  Ms. Torkelson stated, "So, we're just             
saying, ... if it's appropriate and necessary, then you should                 
disclose it."  She added that she couldn't imagine a school not                
wanting information, for example, that DFYS believes appropriate               
and necessary in order to protect other children.                              
                                                                               
Number 1508                                                                    
                                                                               
REPRESENTATIVE ROKEBERG suggested that what had been described                 
needs to be mandated, but this is a whole laundry list that will               
create a huge fiscal responsibility in the department.  He                     
suggested perhaps this could be redone so that information that                
needs to be appropriately transmitted by the department can be only            
in a certain sphere of information.                                            
                                                                               
REPRESENTATIVE DYSON responded that certainly the department will              
decide what is appropriate to be sent.                                         
                                                                               
REPRESENTATIVE ROKEBERG acknowledged the difference between                    
information requested by a party, with the mandate to provide it,              
and information that needs to be transmitted.                                  
                                                                               
Number 1593                                                                    
                                                                               
REPRESENTATIVE DYSON said they are dealing with eliminating the                
barriers to confidentiality.                                                   
                                                                               
REPRESENTATIVE ROKEBERG agreed, but said one size doesn't                      
necessarily fit all in this particular section.  He asked whether              
he is on the right track.                                                      
                                                                               
Number 1607                                                                    
                                                                               
MS. TORKELSON said that is why the "as necessary" was added in each            
section, because Legislative Legal Services said what is necessary             
for one isn't necessary for another, and perhaps some                          
confidentiality laws could be violated.  Not everything should be              
disclosed to everyone, because there could be potential harm to the            
child or others.                                                               
                                                                               
Number 1636                                                                    
                                                                               
MR. WEBB suggested the practical effect of what the department is              
proposing here is to do exactly what he believes Representative                
Dyson is trying to get at, which is to give the department                     
discretion to provide information that people need, but to make                
certain they give it to people when they request it from the                   
department.  He noted that foster parents are dealt with                       
separately, and there is a long list of things the department must             
give them; he restated that they have already amended the bill to              
do that.  Mr. Webb added, "I think practically we're ... within                
about that far of being in the same place."                                    
                                                                               
Number 1669                                                                    
                                                                               
REPRESENTATIVE PORTER responded, "It's a close call, but I think,              
considering the past history, I would rather leave it the way it               
is.  And then if it becomes a burdensome problem, come back and                
tell us about it."                                                             
                                                                               
CHAIRMAN GREEN said that would be his choice, as well.                         
                                                                               
REPRESENTATIVE ROKEBERG mentioned the possibility, as it moves                 
along, of identifying information that really needs to be  mandated            
with a "shall," leaving the rest as "may."                                     
                                                                               
Number 1700                                                                    
                                                                               
CHAIRMAN GREEN made a motion to strike the portion of Amendment 5              
relating to page 43, page 19; no objection was heard.                          
                                                                               
CHAIRMAN GREEN briefly mentioned the next line of Amendment 5,                 
which read:                                                                    
                                                                               
     Page 45, lines 17-22, "minor" should be replaced with "child."            
                                                                               
CHAIRMAN GREEN moved on to the next proposed change in Amendment 5,            
which read:                                                                    
                                                                               
     Page 48, line 11 should read:                                             
          "...consistent attempts made during a reasonable                     
     time....."                                                                
                                                                               
MS. WIBKER explained that it just needs to have "made" inserted.               
                                                                               
Number 1760                                                                    
                                                                               
REPRESENTATIVE ROKEBERG referred to the next proposed change in                
Amendment 5, which read:                                                       
                                                                               
     Page 48, line 23 should read "may or shall upon request"                  
     disclose...                                                               
                                                                               
REPRESENTATIVE ROKEBERG asked who they are trying to satisfy in                
Section 58 there.  He noted it is the same language previously                 
discussed.                                                                     
                                                                               
MS. WIBKER replied that it is the exact same issue, but with a                 
juvenile delinquency case instead of a CINA case.                              
                                                                               
REPRESENTATIVE PORTER made a motion to strike that from Amendment              
5.                                                                             
                                                                               
CHAIRMAN GREEN asked whether there was any objection; no objection             
was heard.                                                                     
                                                                               
Number 1802                                                                    
                                                                               
MS. WIBKER referred to the next proposed change in Amendment 5,                
which read:                                                                    
                                                                               
     Page 50, lines 27 through page 51, line 18 should be replaced             
     with:                                                                     
                                                                               
          (e) A child may not be placed in a foster home or in the             
     care of an agency or institution providing care for children              
     if a relative by blood or marriage requests placement of the              
     child in the relative home.  However, the department may                  
     retain custody of the child and provide for its placement in              
     the same manner as for other children if                                  
               (1) the department makes a determination, supported             
          by clear and convincing evidence, that placement of the              
          child with the relative will result in physical or                   
          emotional damage.  In making that determination.....de               
          novo; or                                                             
               (2) the department determines that a member of the              
          relative's household who is 16 years of age or older has             
          a criminal record or was the perpetrator in a                        
          substantiated report of abuse under AS 47.17; or                     
               (3) the department disqualifies the relative home               
          based on the results of a criminal background check from             
          criminal justice information available under AS 12.62.               
          The department must conduct a criminal background check              
          of available criminal justice information received under             
          AS 12.62.  The department may conduct a fingerprint                  
          background check of a relative requesting placement of               
          the the [sic] child.  The department shall not place a               
          child with any relative who does not meet the standards              
          required for placement in foster care as defined in AS               
          47.35.022(a) and (b).                                                
               For purposes of obtaining criminal justice                      
          information under this subsection, the department is a               
          criminal justice agency conducting a criminal justice                
          activity under AS 12.62.                                             
                                                                               
MS. WIBKER told members this section deals with criminal background            
checks on relatives, which are not required by federal law.  She               
asked Representative Dyson to correct her if she was wrong, then               
said she believes they had agreed that the department would be                 
required to do the initial criminal background check of local                  
records on relatives, the kind of thing they would do for an                   
emergency placement.  However, doing a fingerprint FBI criminal                
background check on relatives would be permissive, at the                      
department's discretion.                                                       
                                                                               
MS. WIBKER explained, "And I believe the reason we decided to do               
that was because ... there is a requirement in statute that we use             
relatives unless there is clear and convincing evidence that                   
placement with a relative would result in physical or emotional                
damage to the child.  And the court does a de novo review of each              
one of those decisions.  That's the current law, and we're not                 
proposing to change that.  But we're proposing, I guess, to add to             
the tools that the department can use to make a decision as to                 
whether a relative is a good placement, is to allow the department             
to do APSIN [Alaska Public Safety Information Network] and the                 
local available criminal background check, check for sex offender              
registration, things like that, and then, at the discretion of the             
department, do the fingerprint background check.  There's some                 
concern that this would have a chilling effect on relatives'                   
stepping forward and taking care of children.  And by the same                 
token, we shouldn't be placing ... children with relatives if                  
there's a danger there.  So it's an attempt to balance those two               
priorities."                                                                   
                                                                               
Number 1926                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said they are talking about physical or               
emotional damage.  He asked whether the language they were using               
before wasn't physical or mental injury.                                       
                                                                               
REPRESENTATIVE PORTER asked why they had changed.                              
                                                                               
MS. WIBKER said this is the existing law, but if they want to                  
change it to be consistent, they could do that.  She added,                    
"Emotional damage is our definition of mental injury."                         
                                                                               
REPRESENTATIVE BERKOWITZ said, "But we don't know what that is."               
                                                                               
Number 1965                                                                    
                                                                               
REPRESENTATIVE PORTER asked whether there is a definition of                   
emotional damage.                                                              
                                                                               
MS. WIBKER said no.                                                            
                                                                               
REPRESENTATIVE DYSON said that is why they had used "mental                    
injury."                                                                       
                                                                               
MS. TORKELSON said "emotional harm" in the original version was a              
new term, with a new definition.  "And we felt is was a little                 
broad and could be construed, possibly, or abused, and so we                   
preferred, as long as the mental injury met with federal standards,            
we just left it as is," she added.                                             
                                                                               
REPRESENTATIVE DYSON stated, "And Ms. Wibker is right in that we               
concur in this amendment."                                                     
                                                                               
Number 2020                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to substitute "mental                   
injury" for "emotional damage" in this portion of Amendment 5.                 
                                                                               
CHAIRMAN GREEN asked whether there was any objection; none was                 
heard.  He then asked whether there was any objection to                       
substituting (e), as provided in Amendment 5, as amended.                      
                                                                               
REPRESENTATIVE BERKOWITZ stated that he wants to ensure that Social            
Security numbers and fingerprints are not part of the public                   
domain, but are just confidential records maintained by the                    
department.                                                                    
                                                                               
Number 2080                                                                    
                                                                               
MR. WEBB spoke to that, saying he had checked that day with one of             
the department's licensing staff.  He told members, "And indeed,               
fingerprints and Social Security numbers that are attendant to the             
criminal history checks are indeed confidential, and not part of               
the public licensing file, with one exception, and that is on the              
foster home license application; they do give their Social Security            
number.  They're aware that that's a part of the public file.  The             
department has no objection to redacting that piece of information             
from the public portion of the file.  So that should not be an                 
issue."                                                                        
                                                                               
CHAIRMAN GREEN said, "You would maintain it, but it wouldn't be in             
the public portion of the file."                                               
                                                                               
MR. WEBB said it would be blacked out.                                         
                                                                               
CHAIRMAN GREEN suggested that would comply with both federal                   
requirements and privacy requirements.                                         
                                                                               
Number 2133                                                                    
                                                                               
CHAIRMAN GREEN addressed the next line of Amendment 5, which read:             
                                                                               
     Page 51, lines 19-30 delete entirely.                                     
                                                                               
REPRESENTATIVE DYSON advised members, "Our Section 62 here, in the             
committee substitute, was a ... well-intended effort to get the                
perpetrator out of the house, if that was a possible solution, and             
leave the child in the home with the non-offending parent.  And, as            
I remember, the department has basically said that that's always               
their intention if that's possible, and that ... they will do that,            
and do that under existing law; and the way we wrote this was                  
cumbersome and not really kind of workable.  And, of course, we had            
words in here like their getting a protective order from the court,            
... and so on and so forth, that don't work."                                  
                                                                               
CHAIRMAN GREEN asked, "You have no objection, then, to this                    
removal?"                                                                      
                                                                               
REPRESENTATIVE DYSON replied, "We don't know how to do what we want            
to do, so ... the answer to your question is yes."                             
                                                                               
Number 2226                                                                    
                                                                               
MS. WIBKER said she believes there is another section that                     
basically lays out the same thing, under AS 47.35, where it talks              
about duties of the department in domestic violence cases.                     
                                                                               
Number 2254                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said he likes the intent; if there is one             
bad parent and one good parent, the child gets to stay with the                
good parent.  He suggested working on language to allow that to                
happen, and offered to do that, perhaps later.  He stated, "My                 
experience in those sort of situations has been, ... particularly              
in the situation where one parent doesn't believe that the other               
parent did something wrong, you're not going to have complete                  
compliance.  But if there were some sort of provision for at least             
visitations for the bad parent, this might be workable."                       
                                                                               
Number 2319                                                                    
                                                                               
MS. WIBKER referred members to page 56, Section 72.  She said, "It             
outlines the steps that you should take to keep the child with the             
non-offending parent, remove the offending parent."                            
                                                                               
REPRESENTATIVE ROKEBERG asked whether that is just for domestic                
violence cases or would include a "CINA kid."                                  
                                                                               
MS. WIBKER replied, "It's a child that's a CINA kid because of                 
domestic violence."                                                            
                                                                               
REPRESENTATIVE ROKEBERG suggested Section 62 has a broader                     
application.                                                                   
                                                                               
REPRESENTATIVE DYSON concurred.                                                
                                                                               
MS. WIBKER also concurred, adding that this is the current approach            
in all cases of child sexual abuse and domestic violence.                      
                                                                               
REPRESENTATIVE ROKEBERG suggested it is a template.                            
                                                                               
REPRESENTATIVE BERKOWITZ stated, "This is sort of hopscotching a               
little bit, but to maintain the intent of ... page 51, lines 19                
through 30, on page 56, if the department determines in an                     
investigation of abuse or neglect that a child is in danger, that              
a child is essentially someone under 47.10.011, the department                 
shall take appropriate steps for the protection of the child.                  
Appropriate steps includes all this other stuff.  And to sort of               
screen out the domestic violence, so it's more inclusive of just               
the basic CINA concept ...?"                                                   
                                                                               
MS. WIBKER replied, "You don't need to do that.  If you want to,               
you can.  But the current federal and state law that requires you              
to take steps to [ends mid-speech because of tape change]."                    
                                                                               
TAPE 98-67, SIDE A                                                             
Number 0006                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked whether that is in statute anywhere,            
then noted that it is for the domestic violence cases, but not for             
the sex offender cases or substance abuse cases.  He suggested                 
paralleling that language for the other instances.                             
                                                                               
MS. WIBKER replied, "You're correct.  It's specifically in statute             
for domestic violence, and that statute is the broad definition of             
domestic violence, which includes sexual abuse.  You're correct                
that it's specifically in statute for those cases, not for other               
things.  But it is ... required in other provisions of law,                    
although not specific."                                                        
                                                                               
REPRESENTATIVE BERKOWITZ asked, "Could you use, essentially,                   
Section 72 to allow the good, non-drug-addicted parent a reasonable            
efforts situation?"                                                            
                                                                               
MS. WIBKER answered that as written right now, no, because that is             
a specific statute on domestic violence.                                       
                                                                               
Number 0107                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said without some appropriate language to              
replace Section 62, he doesn't believe the bill will go anywhere.              
Whether needed statutorily or not, it will be needed for public                
relations throughout the entire state.                                         
                                                                               
Number 0152                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ offered a conceptual amendment, for when              
they come back to this, to have the drafters prepare something                 
"that parallels the language that's in Section 72 that matches the             
other conduct."                                                                
                                                                               
MS. WIBKER said one proposal would be, on page 51, line 22, to put             
a period after "with one parent".  She suggested that it say a                 
child may not be placed with an out-of-home care provider if the               
department determines that the child can remain safely at home with            
one parent or guardian.                                                        
                                                                               
CHAIRMAN GREEN asked if she was proposing to drop the rest.                    
                                                                               
TWO UNIDENTIFIED MALE SPEAKERS said yes.                                       
                                                                               
MS. WIBKER stated that the department has to do whatever it can do             
to avoid an out-of-home placement, and to make an in-home placement            
safe.                                                                          
                                                                               
REPRESENTATIVE BERKOWITZ said, "The parent or guardian."                       
                                                                               
MS. WIBKER affirmed that.                                                      
                                                                               
Number 0262                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked about a reference to this section in             
the CINA jurisdiction section, on page 24.                                     
                                                                               
MS. WIBKER replied, "47.14 deals with placements of children."                 
                                                                               
REPRESENTATIVE ROKEBERG responded, "So does 47.14.100 now.  Could              
we put a reference in ... Section 31 to Section 62?"                           
                                                                               
MS. WIBKER said, "You can."                                                    
                                                                               
Number 0300                                                                    
                                                                               
REPRESENTATIVE ROKEBERG noted that it would be a separate                      
amendment, which he would make when it was appropriate.                        
                                                                               
Number 0341                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to delete from Amendment 5              
the portion that says, "Page 51, lines 19-30 delete entirely."  He             
indicated it was because they had just amended the bill.                       
                                                                               
REPRESENTATIVE PORTER pointed out that it wasn't officially amended            
yet.                                                                           
                                                                               
REPRESENTATIVE BERKOWITZ started to make a motion to amend the                 
bill, then noted there was still a motion relating to Amendment 5.             
                                                                               
REPRESENTATIVE ROKEBERG asked that he hold off, indicating they                
would get to it later.                                                         
                                                                               
Number 0400                                                                    
                                                                               
MS. WIBKER brought up the next proposed change in Amendment 5,                 
which read:                                                                    
                                                                               
     Page 59, lines 17-25, should read, "may issue a provisional               
     foster home license on an emergency basis until the results of            
     the fingerprint background check required under AS                        
     47.35.017(b) are received by the department, provided the                 
     applicant meets the minimal requirements for emergency                    
     ......foster home.  Delete lines 22 - 25 sentence. [sic]                  
                                                                               
[The full sentence on page 59, lines 22 through 25, read:  "The                
department may extend a provisional foster home license issued                 
under this subsection for an additional period of up to 90 days in             
order to obtain the information from the national criminal                     
background check required under AS 47.35.017(b)(6)."]                          
                                                                               
MS. WIBKER said this is similar to, and basically subsumed in, what            
they just did.  She stated, "The department's position is that this            
is redundant to what we just did, which is you require the                     
department not remove a child if there is a way to keep a child at             
home safely with one parent; you do that, whatever that requires."             
                                                                               
Number 0474                                                                    
                                                                               
MS. TORKELSON stated her understanding that Section 70 was                     
automatically added by Legislative Legal Services through their                
revisor/drafter process.  She said, "I think that's how it got in              
the bill in the first place, is because we added this removal of               
the perpetrator ... in Section 62.  And so, by adding it there,                
they have to mess with this section.  So if we take only a portion             
of this out, it will probably get, maybe, automatically changed."              
                                                                               
REPRESENTATIVE PORTER noted that they had taken the language out               
regarding injunctions.                                                         
                                                                               
CHAIRMAN GREEN suggested leaving it up to the revisor, then, or                
perhaps making a note about it.                                                
                                                                               
MR. JARDELL told members, "My reading would be that you can take it            
out.  You've taken it out on the other one."                                   
                                                                               
Number 0544                                                                    
                                                                               
MS. WIBKER said, "And then, the only last thing is, if you'll                  
recall, this deals with the problem of having to issue a                       
provisional license to a foster home and then wait for the results             
of a fingerprint background check.  Public Safety says that can be             
anywhere from six weeks to six months, and that's to the time the              
fingerprints get back to Public Safety, and not necessarily to the             
department.  So, rather than a time limit, we just propose that the            
provisional license issue until the results of the fingerprints are            
back.  And the reason that we proposed that was because we were                
concerned that a license would lapse, and that we would have to                
possibly be put in a position of removing a child.  I believe that             
what Representative Dyson proposed were ... 90-days segments.  But             
... we need some fix, so that we don't have these placements lapse             
because fingerprints aren't back."                                             
                                                                               
Number 0612                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said he likes the department's language a              
little better, because it takes up less room in the statute books.             
                                                                               
MS. TORKELSON responded that this isn't a normal foster parent                 
license; they are talking about an emergency basis.  She suggested             
they might as well provide a regular license if it is going to take            
three-quarters of a year.  By requiring an active check every 90               
days, there would be an awareness that it is an emergency license.             
                                                                               
REPRESENTATIVE ROKEBERG asked, "Are we worried that the check will             
come back bad?  Is that the point?"                                            
                                                                               
Number 0700                                                                    
                                                                               
MS. WIBKER noted that they would have already done the local check,            
including courthouse records, APSIN, and the sex offender                      
registration.  She suggested the problem may be that these requests            
are a low priority for the FBI, with no guarantees as to time.                 
                                                                               
REPRESENTATIVE BERKOWITZ said he would think, though, that in order            
to avoid civil liability for bad placements, the department would              
be rather insistent, or at least as thorough as possible, to ensure            
that foster homes are as well-researched as possible.  He added,               
"My guess is that if you're negligent and place someone in a bad               
situation, you're liable."                                                     
                                                                               
MS. WIBKER agreed, "We'll get sued."                                           
                                                                               
Number 0747                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked how much administrative rigamarole is            
involved in issuing a temporary extension.                                     
                                                                               
MR. WEBB said there are two things about it.  It is an extra                   
burden; he doesn't know the specific amount of paperwork, but it               
requires tracking, filling out papers, and making sure it is in the            
payment system so payment gets made to the foster parent.  The                 
department's interest is in getting these completed as quickly as              
possible and making sure that, indeed, they have done everything               
they can, because they will be held liable if anything bad happens             
to a child in an emergency placement home.  However, they are not              
able to get the fingerprint checks, which are beyond their control.            
"So, to force us to ... go back and run through extra steps of                 
meaningless paperwork, based on something that's beyond our                    
control, with no real value added, seems to be unnecessary," Mr.               
Webb concluded.                                                                
                                                                               
Number 0832                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked whether they now issue provisional               
licenses.                                                                      
                                                                               
MR. WEBB affirmed that.                                                        
                                                                               
REPRESENTATIVE ROKEBERG inquired whether there has ever been a                 
"negative" return on the fingerprints, or a bad experience that                
otherwise wouldn't have occurred had the department finished the               
background check.                                                              
                                                                               
MR. WEBB replied, "I can't give you the specific numbers.  I'm sure            
that there has been an instance in which we've gotten a background             
check at some point down the line.  That happens on nonemergency               
licenses as well."                                                             
                                                                               
Number 0875                                                                    
                                                                               
REPRESENTATIVE DYSON stated, "This is not the end of the world.                
And I don't think that reviewing this every 90 days, and revisiting            
the decision, is an unbearable burden."  He acknowledged it is a               
piece of paper that needs to be looked at, but suggested that if               
there needs to be a renewal because the information hasn't come                
back, it can be done in conjunction with regular visits that DFYS              
should be making anyway.  Representative Dyson said he appreciates             
the department's desire to not have extra burden.  But there are               
also a lot of things that have caused problems in the last few                 
years because things have slipped.  At the task force level, there             
had been continual testimony of, "We used to do this, and we                   
drifted away from it."                                                         
                                                                               
REPRESENTATIVE ROKEBERG asked whether this is just paperwork or                
actually protects children.                                                    
                                                                               
REPRESENTATIVE DYSON indicated he believes that looking at it every            
90 days will prevent that "drift," and that a requirement that                 
somebody visit the home is not unreasonable.                                   
                                                                               
Number 0996                                                                    
                                                                               
REPRESENTATIVE PORTER said a previous amendment removed the real               
obstacle of having to actually terminate a temporary placement                 
because this wasn't back.  This is paperwork, and he would rather              
have the 90-day checks.  He said in addition, he doesn't know how              
they can pass an amendment that counteracts an amendment they just             
passed.  Representative Porter made a motion to delete from                    
Amendment 5 the portion addressing page 59, lines 17 - 25.                     
                                                                               
CHAIRMAN GREEN asked whether there was any objection; none was                 
heard.                                                                         
                                                                               
Number 1071                                                                    
                                                                               
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 5, as                 
amended.  There being no objection, it was so ordered.                         
                                                                               
REPRESENTATIVE BERKOWITZ said, "I move to make the motion that I'd             
made earlier regarding Section 62, the details which elude me at               
this moment."                                                                  
                                                                               
CHAIRMAN GREEN said, "That we stop with 'one parent' and add 'or               
guardian'.                                                                     
                                                                               
REPRESENTATIVE BERKOWITZ concurred.                                            
                                                                               
CHAIRMAN GREEN asked whether there was any objection.                          
                                                                               
REPRESENTATIVE ROKEBERG added, "And delete the balance of the                  
section."                                                                      
                                                                               
CHAIRMAN GREEN agreed.  Hearing no objection, he indicated                     
Amendment 6 was adopted.                                                       
                                                                               
Number 1179                                                                    
                                                                               
REPRESENTATIVE ROKEBERG made a motion to adopt a conceptual                    
amendment, Amendment 7, that on page 24, line 26, after "AS                    
47.10.019", they add the phrase "and AS 47.14.100".  He noted that             
they had just amended that in Section 62.                                      
                                                                               
CHAIRMAN GREEN asked whether there was any objection.  There being             
none, Amendment 7 was adopted.                                                 
                                                                               
Number 1289                                                                    
                                                                               
DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services              
Section-Juneau, Criminal Division, Department of Law, told members             
he had two amendments, hand-marked as 7 and 8.                                 
                                                                               
CHAIRMAN GREEN noted that those would now be Amendments 8 and 9.               
                                                                               
MR. GUANELI told members there had been a fairly good discussion,              
at the bill's first hearing in this committee, of the provision on             
page 7 relating to endangering the welfare of a child in the second            
degree.  He stated his understanding that Representative Berkowitz             
had expressed concern about having possession of a controlled                  
substance be a trigger for this offense in caring for a child;                 
Representative Porter had indicated he certainly wanted possessory             
offenses involving marijuana to stay; and Representative James had             
indicated she had concerns about children being in places where                
drugs are stored.  Mr. Guaneli stated, "And so, what I have                    
attempted to do, is try to - between these two amendments - create             
something of a compromise.  And I hope it doesn't alienate                     
everyone."                                                                     
                                                                               
Number 1395                                                                    
                                                                               
MR. GUANELI first discussed Amendment 8, which read:                           
                                                                               
     Page 7, line 24 to page 8, line 3, DELETE and REPLACE with:               
                                                                               
          Sec. 11.51.110.  Endangering the welfare of a child in               
     the second degree. (a) A person commits the offense of                    
     endangering the welfare of a child in the second degree if the            
     person, while caring for a child under 10 years of age,                   
               (1) causes or allows the child to enter or remain in            
     a dwelling or vehicle in which a controlled substance is                  
     stored in violation of AS 11.71; or                                       
               (2) is impaired by an intoxicant, whether or not                
     prescribed for the person under AS 17.30, and there is no                 
     third person present to care for the child who is at least 12             
     years of age and not impaired by an intoxicant.                           
                                                                               
     Page 8, lines 5-8, DELETE and REPLACE with ["lines 5-8 was                
     later discovered to be in error; it was specified that it                 
     should read "lines 5-7"]                                                  
                                                                               
     "impaired" means that a person is unconscious or a person is              
     physically or mentally affected so that the person does not               
     have the ability to care for the basic safety or personal                 
     needs of a child with the caution characteristic of a sober               
     person of ordinary prudence;                                              
                                                                               
     Page 47, line 31:  Insert                                                 
                                                                               
     "hazardous volatile material or substance" has the meaning                
     given in AS 47.37.270;                                                    
                                                                               
     Page 48, line 2:  Replace the word "inhalants" with "a                    
     hazardous volatile material or substance misused by inhaling              
     its vapors"                                                               
                                                                               
MR. GUANELI referred to the proposed changes to page 7 in Amendment            
8.  He pointed out that this is no longer limited to parents,                  
guardians, or persons in that situation, because a variety of                  
relatives or friends might care for children.  The possessory                  
offense is gone, which he said he would address later.  He noted               
that in (a)(1), it says causes or allows the child to enter or                 
remain in a dwelling or vehicle in which a controlled substance is             
stored in violation of our drug laws.                                          
                                                                               
REPRESENTATIVE ROKEBERG asked whether controlled substances are                
drugs only, not alcohol.                                                       
                                                                               
MR. GUANELI affirmed that, saying AS 11.71 is drug laws; there is              
a long list of controlled substances, starting with heroin,                    
cocaine, and so forth, and including prescription drugs that have              
abusive properties.  If it is in violation of AS 11.71, it means a             
person has no prescription for it or anything like that.  This is              
to prevent people from having illegal drugs in their homes where               
young children are present, with the idea that kids get into drugs.            
                                                                               
MR. GUANELI said the second subsection is similar to what there was            
before, broken into two subsections.  He stated, "And the word used            
to be 'incapacitated'.  It's now 'impaired', and there was some                
discussion of, I think, a preference for the use of the phrase                 
'impaired'.  And the offense would be committed by being impaired              
by an intoxicant, whether or not it's prescribed for you, and there            
is no third person present to care for the child who is at least 12            
years of age and not impaired by an intoxicant."                               
                                                                               
MR. GUANELI referred to the proposed changes to page 8 in Amendment            
8, again saying the definition of incapacitated has been changed to            
impaired.  He said he had offered at the previous hearing to draft             
something comparable to the court instructions for being under the             
influence for drunk driving purposes; the language from those                  
instructions is "with a caution characteristic of a sober person of            
ordinary prudence."  Mr. Guaneli explained that he'd thought it                
would be helpful to courts to use the language they are familiar               
with in terms of drunk driving cases, in the definition of                     
impaired.                                                                      
                                                                               
MR. GUANELI next discussed the proposed changes to pages 47 and 48             
in Amendment 8.  He said the crime is "impaired by an intoxicant."             
The definition of "intoxicant" on page 8 refers to a provision in              
Title 47 that says an intoxicant is any number of things:  alcohol,            
drugs or an inhalant.  The problem is that inhalant is not defined             
anywhere in that chapter.  He said he had looked around for some               
way to deal with "inhalant."  There happens to be a definition                 
elsewhere in Title 47, called 'hazardous volatile material or                  
substance,' which has a fairly detailed definition in current law.             
Mr. Guaneli stated, "And the phrase that is used in Title 47.37,               
which deals with people who are incapacitated by alcohol and other             
substances, is that you misuse a hazardous volatile material or                
substance.  And I can pass around exactly what that is."  [He                  
handed out copies of AS 47.37.270.]                                            
                                                                               
Number 1600                                                                    
                                                                               
MS. TORKELSON noted that people can get high on a number of things,            
including gas from pressurized whipping cream cans, markers and so             
forth.                                                                         
                                                                               
MR. GUANELI responded that in this definition of hazardous volatile            
material or substance, subsection (10) of the statute handed out,              
it says it is readily vaporizable, poses a threat, and includes but            
is not limited to gasoline, petroleum distillates, common household            
materials and substances whose containers bear notice warning that             
inhalation of vapors or gases may cause physical harm.  He stated,             
"So I guess the answer to the question is if whipping cream or                 
these other things have a notice saying 'don't inhale it; it would             
cause you harm,' that's something you shouldn't be doing.  So, this            
is the amendment that, I think, addressed a number of the concerns             
that I heard about the endangering the welfare provision."                     
                                                                               
Number 1679                                                                    
                                                                               
MR. GUANELI said he would skip to Amendment 9, as he believes it               
may address part of Representative Porter's concern about wanting              
to do something about people who possess drugs while caring for a              
child.  Amendment 9 read:                                                      
                                                                               
     Add a new section to the bill.                                            
                                                                               
     * Sec. ___.  AS 12.55.155(c)(23) is amended to read:                      
     (23) the defendant is convicted of an offense specified in AS             
     11.71 and (A) the offense involved the delivery of a                      
     controlled substance under circumstances manifesting an intent            
     to distribute the substance as part of a commercial                       
     enterprise; or (B) at the time of the conduct resulting in the            
     conviction, the defendant was caring for or assisting in the              
     care of a child under 10 years of age;                                    
                                                                               
MR. GUANELI explained that it adds to the list of aggravating                  
factors for sentencing purposes.  An offense specified in AS 11.71             
is a drug offense, covering everything from sale of heroin to                  
minors to possession of marijuana.  This would be guidance to the              
courts that among the conduct that makes a drug offense an                     
aggravated offense is being convicted of any kind of drug offense              
while caring for, or assisting in the care of, a child.  He                    
suggested that would cover concerns he had heard about possession              
of marijuana.                                                                  
                                                                               
MR. GUANELI added that because it is an aggravating offense in the             
presumptive sentencing system, and because misdemeanor possession              
of marijuana doesn't strictly come under presumptive sentencing, it            
isn't something the court is mandated to aggravate the sentence                
for.  However, it is among the things a prosecutor can point to,               
saying, "This is something you ought to consider as being an                   
aggravated offense and, therefore, adjust the sentence                         
accordingly."  Mr. Guaneli said this is an attempt to reconcile the            
sometimes-conflicting views he had heard at the previous hearing.              
                                                                               
Number 1763                                                                    
                                                                               
REPRESENTATIVE PORTER made a motion to adopt Amendment 8.                      
                                                                               
CHAIRMAN GREEN pointed out that the change to page 8, lines 5-8,               
would delete the definition of intoxicant altogether.                          
                                                                               
MR. GUANELI said that was not his intention.  He agreed it should              
read lines 5-7.                                                                
                                                                               
REPRESENTATIVE ROKEBERG noted that endangering the welfare of a                
child in the second degree is a violation.  He asked what the                  
punishment is.                                                                 
                                                                               
MR. GUANELI said no jail time and up to a $300 fine.  No public                
defender would be appointed, and there would be no jury trial.  It             
is simply a matter of identifying people who are careless in their             
care of children.                                                              
                                                                               
REPRESENTATIVE ROKEBERG suggested a mere violation could turn into             
an aggravator.                                                                 
                                                                               
MR. GUANELI explained that the violation in endangering the welfare            
of a child has to do directly with caring for children and doing               
any one of these other things.  The aggravating factor in the                  
additional amendment has to do with committing any type of drug                
offense, whether it is possession, sale, growing marijuana, et                 
cetera.                                                                        
                                                                               
REPRESENTATIVE BERKOWITZ said the aggravator only applies to                   
felonies.  Endangering the welfare of a child in the second degree             
is a misdemeanor.                                                              
                                                                               
MR. GUANELI said it also states that a person is convicted of a                
offense specified in AS 11.71, a drug offense.                                 
                                                                               
REPRESENTATIVE ROKEBERG acknowledged he had misread it.                        
                                                                               
Number 1889                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said his own concern with endangering the             
welfare of a child in the second degree is the phrase, "causes or              
allows a child to enter or remain in a dwelling."  There is no                 
requirement of knowledge.                                                      
                                                                               
MR. GUANELI responded, "The fact that the dwelling or vehicle                  
contains a controlled substance, the state would have to prove that            
the person is reckless as to that circumstance.  This would be a               
circumstance of the offense, and there's other statutes that say               
when you have a circumstance specified in the law, the state has to            
prove that, that the person is reckless.  In other words, they have            
to be aware of, and consciously disregard, a risk that ... the                 
drugs are there.  And I think that's appropriate in this                       
circumstance, because ... if we were required to prove that someone            
in fact knew that there were drugs, what we'd get is, 'Oh well, I              
sort of suspected my husband's been selling drugs and he's got them            
in the back room, but he didn't tell me, and I didn't know for                 
sure.'  And I think that ... as long as we can prove that they are             
reckless as to the fact of drugs, in most cases, it's going to be              
easy.  They're going to be there.  There's going to be a marijuana             
growing in the bathroom; it's going to be on the table.  But that's            
the way that would be interpreted."                                            
                                                                               
Number 1946                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ responded, "It's also going to be                     
situations where, 'I know my friend smokes dope, and I bring my kid            
over to his house just for a social visit, and we leave.'  I mean,             
I know he's got dope in the house; it has nothing to do with the               
visit."                                                                        
                                                                               
MR. GUANELI said this offense would technically apply in that case.            
                                                                               
Number 1974                                                                    
                                                                               
REPRESENTATIVE PORTER renewed his motion to adopt Amendment 8, with            
the amendment that was made.  There being no objection, it was so              
ordered.                                                                       
                                                                               
Number 1980                                                                    
                                                                               
REPRESENTATIVE PORTER made a motion to adopt Amendment 9, discussed            
previously.  There being no objection, it was so ordered.                      
                                                                               
Number 2004                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ offered Amendment 10, which read:                     
                                                                               
     Page 6, line 4, following "genitals":                                     
     Delete "to another person"                                                
                                                                               
     Page 6, line 5, following "have"                                          
     Delete "on that person"                                                   
                                                                               
REPRESENTATIVE BERKOWITZ explained that he had prosecuted a case               
once where someone was masturbating in front of the federal                    
building, and it was clear that other people had been observing                
that person.  After losing the case, Representative Berkowitz was              
told by the jury that because he hadn't shown that this act was                
directed at a given individual, he hadn't proven the elements.                 
"And they were right," he added.                                               
                                                                               
MR. GUANELI said there is merit in that point about the specific               
elements.                                                                      
                                                                               
REPRESENTATIVE PORTER asked about saying something like "to public             
view."                                                                         
                                                                               
REPRESENTATIVE BERKOWITZ replied that it is caught up because it is            
with reckless disregard for the offensive, insulting or frightening            
effect it could have.  He mentioned people doing things in their               
own rooms or own homes.                                                        
                                                                               
REPRESENTATIVE PORTER said this is supposed to be an intentional               
act.  He stated, "And I get along with reckless disregard for the              
natural and probable result of the act, but that doesn't happen out            
in the woods.  If you're taking a whiz and Betty Lou and her kid               
come by, and there's nobody else within 50 miles, and ... lo and               
behold, you know, your language says, basically, that I should have            
expected Betty Lou and her kid."                                               
                                                                               
Number 2130                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked about the wording, "that act might              
have on another person."                                                       
                                                                               
REPRESENTATIVE PORTER said he would go for that.                               
                                                                               
CHAIRMAN GREEN said, "And we'd still take it out of line 4."                   
                                                                               
REPRESENTATIVE BERKOWITZ agreed.                                               
                                                                               
REPRESENTATIVE PORTER inquired about replacing it with something.              
                                                                               
CHAIRMAN GREEN questioned whether they would need to.                          
                                                                               
REPRESENTATIVE PORTER said, "No, because if I'm intentionally                  
trying to hide, I have committed the offense ...."                             
                                                                               
CHAIRMAN GREEN disagreed, saying it is not reckless disregard if               
someone is trying to hide.                                                     
                                                                               
REPRESENTATIVE PORTER stated, "It just says if I have intentionally            
exposed my genitals ...."                                                      
                                                                               
CHAIRMAN GREEN added, "With reckless disregard."                               
                                                                               
MR. GUANELI suggested the phrase, "in the presence of other                    
persons."                                                                      
                                                                               
CHAIRMAN GREEN said that wouldn't help in the woods.                           
                                                                               
REPRESENTATIVE PORTER disagreed, saying, "That helps your                      
situation, and that helps my problem."                                         
                                                                               
REPRESENTATIVE ROKEBERG commented that it is "the window thing."               
                                                                               
MR. GUANELI then suggested, "in the presence of another person,"               
rather than making it plural.  He added, "So, scratch the word 'to'            
and 'in the presence of'."                                                     
                                                                               
REPRESENTATIVE BERKOWITZ commented that he'd been waiting for this             
for six years.  [There was laughter.]                                          
                                                                               
Number 2200                                                                    
                                                                               
CHAIRMAN GREEN, hearing no objection, indicated that was Amendment             
10.                                                                            
                                                                               
Number 2220                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 11, his              
own handwritten amendment, which read:                                         
                                                                               
     p.8 line 31                                                               
     Insert:  (after "16,")                                                    
     whose death has been caused by any of the conditions described            
     in AS 47.10.014 or AS 47.10.015,                                          
                                                                               
REPRESENTATIVE BERKOWITZ explained, "I'm not excusing manslaughter,            
and I'll put all those caveats out here, but this whole bill                   
addresses child abuse and child neglect.  And rather than open up              
the entire minimum sentence for manslaughter, for victims under the            
age of 16 - which would include victims who got caught up in drunk             
drivings, it would include accidental shootings, it would include              
all of the sort of tragic deaths that happen - I want to ensure                
that there's some causality with what we're trying to do in this               
bill."  He noted that the sections he is talking about relate to               
negligence and physical harm, particularly by the parent, guardian             
or custodian of a child, and there seems to be a causal                        
relationship between the added penalty and the amendment.                      
                                                                               
CHAIRMAN GREEN said he didn't see anything wrong with that.  He                
asked whether there was any objection.                                         
                                                                               
REPRESENTATIVE ROKEBERG asked what AS 47.10.014 and AS 47.10.015               
are.                                                                           
                                                                               
REPRESENTATIVE BERKOWITZ said they are neglect and physical harm of            
children, defined on page 27.                                                  
                                                                               
Number 2291                                                                    
                                                                               
MR. GUANELI told members he and Representative Berkowitz had                   
discussed this.  In general, he himself doesn't have much of a                 
problem with this as a concept.  However, by referencing 47.10.015,            
physical harm, among the acts described, it strikes him that they              
are excluding a shaken baby syndrome caused by a boyfriend,                    
grandparent or someone else.                                                   
                                                                               
REPRESENTATIVE BERKOWITZ said that would seem to be the custodian.             
                                                                               
MR. GUANELI mentioned that Senator Halford's bill, SB 218, deals               
with all of the homicide offenses covered in this bill, and he                 
recalled the question asked at the previous hearing about what                 
happens if both bills pass but there is some conflict.  He said one            
alternative, to speed this along, and if they think Senator                    
Halford's bill will move through the House, is to delete the                   
homicide provisions from this bill and take up that question in the            
context of that bill.  He noted that it was 11 p.m. and that he had            
just seen this language.                                                       
                                                                               
REPRESENTATIVE PORTER suggested they leave it in here, and if the              
other bill gets over and it is included, they can take this out in             
the Senate.                                                                    
                                                                               
REPRESENTATIVE ROKEBERG noted that this has a House Finance                    
Committee referral, as well.                                                   
                                                                               
Number 2387                                                                    
                                                                               
MR. GUANELI said in that case, he would prefer language on page 3              
of the bill, at line 14, which is in the second-degree murder                  
statutes and which he believes addresses Representative Berkowitz'             
concern.  That language says, "a person knowingly engages in                   
conduct directed toward a child under the age of 16".  That would              
be shaking a baby, or not providing food or some kind of care,                 
rather than driving down the road drunk and happening to "hit a car            
with children."                                                                
                                                                               
REPRESENTATIVE BERKOWITZ said that is fine by him.                             
                                                                               
Number 2445                                                                    
                                                                               
MR. GUANELI then suggested the language of the amendment should                
read:                                                                          
                                                                               
     On page 8, lines 30 and 31, it ought to read, "For                        
     manslaughter, where the conduct was directed towards a child              
     under the age of 16, seven years;"                                        
                                                                               
TAPE 98-67, SIDE B                                                             
Number 0006                                                                    
                                                                               
[A small portion of the discussion is missing because of the tape              
change.  However, the language provided by the committee aide to               
Legislative Legal Services following the hearing read:  "when the              
conduct was knowingly directed toward a child under the age of 16."            
Missing on tape is the motion to adopt Amendment 11.]                          
                                                                               
REPRESENTATIVE PORTER noted the friendly amendment to Amendment 11.            
                                                                               
CHAIRMAN GREEN asked whether there was any objection; none was                 
heard.                                                                         
                                                                               
Number 0039                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ next offered Amendment 12, on page 29,                
line 22, to delete "in the courtroom or in chambers".  He explained            
that a judge might want to go to a home or some other setting.                 
                                                                               
MS. WIBKER said she had never had a judge do that.                             
                                                                               
REPRESENTATIVE ROKEBERG asked whether they should say, "as                     
specified or selected by the judge."                                           
                                                                               
CHAIRMAN GREEN asked whether dropping that causes any problem.                 
                                                                               
MS. WIBKER said she doesn't think it changes anything, as the                  
courts have tremendous flexibility in conducting children's                    
proceedings.                                                                   
                                                                               
CHAIRMAN GREEN asked whether there was any objection to Amendment              
12.  Hearing none, he announced they would move on to the next                 
amendment.                                                                     
                                                                               
Number 0095                                                                    
                                                                               
CHAIRMAN GREEN noted that Representative Berkowitz had indicated               
earlier that he wanted some kind of notice to family members, at               
the top of that page.                                                          
                                                                               
Number 0126                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ responded that it regards Section 34,                 
notifying the family in some regard about the proceedings and the              
possibility of termination.  He didn't have specific language, just            
a conceptual amendment that the family be notified.                            
                                                                               
CHAIRMAN GREEN asked whether there was any objection to                        
notification of the family.                                                    
                                                                               
REPRESENTATIVE BERKOWITZ indicated the wish to include grandparents            
and step-parents.                                                              
                                                                               
CHAIRMAN GREEN asked whether it could become a burden to try to                
figure out who all those people are.                                           
                                                                               
Number 0161                                                                    
                                                                               
MS. WIBKER said they need to decide how they want social workers               
spending their time, whether it would be doing home visits, setting            
up rehabilitation plans and getting people into treatment or else              
sending out notice and so forth.                                               
                                                                               
REPRESENTATIVE PORTER said especially in this state, grandparents              
could be in Maine and might never have seen the child.                         
                                                                               
CHAIRMAN GREEN said, "You don't want to make that amendment."                  
                                                                               
REPRESENTATIVE BERKOWITZ responded, "I didn't; you brought it up,              
actually."  [There was laughter.]                                              
                                                                               
Number 0183                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ next discussed a subject that would turn              
into Amendment 13.  Noting that he had talked about this before                
with Ms. Wibker, he referred to page 40, lines 16 through 18, and              
read from (1)(A), which says, "(1) by clear and convincing evidence            
that (A) the child is a child in need of aid as described in AS                
47.10.011".  He said all that means to him is clear and convincing             
evidence that it is a CINA case, not clear and convincing evidence             
that any condition that made it a CINA case, such as that the                  
parent abandoned the child, or any of the laundry list of                      
conditions, exists; he believes it should be the latter.                       
                                                                               
REPRESENTATIVE ROKEBERG noted that it is a preponderance in the                
CINA case.                                                                     
                                                                               
Number 0268                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ agreed, saying the problem is they wind up            
in situation where they could bootstrap a termination based on a               
preponderance, instead of based on clear and convincing evidence.              
He said, "I want to amend, 'by clear and convincing evidence [that]            
the child is a child in need of aid, as shown ....'"                           
                                                                               
Number 0303                                                                    
                                                                               
REPRESENTATIVE ROKEBERG suggested they would have to change the                
standard in that one section.                                                  
                                                                               
MS. WIBKER disagreed.                                                          
                                                                               
REPRESENTATIVE BERKOWITZ said at a termination hearing, not an                 
adjudication, he wants to make sure the facts being used to                    
terminate have been shown by clear and convincing evidence, not                
simply by a preponderance of the evidence.  He explained, "I don't             
want the court to be able to reach back and say, 'Well, we showed              
by preponderance of the evidence at the adjudication that the kid              
had been abandoned.'"                                                          
                                                                               
Number 0329                                                                    
                                                                               
MS. WIBKER said, "For termination, it's clear and convincing.  For             
adjudication, it's preponderance.  And the burden on the state is              
to prove the facts by clear and convincing evidence that made the              
child a child in need of aid.  That is, if the child is a child in             
need of aid because of abandonment, for termination you must prove             
that by clear and convincing evidence."                                        
                                                                               
REPRESENTATIVE BERKOWITZ responded, "But this language doesn't                 
necessarily indicate that you have to show abandonment by 'clear               
and convincing.'"                                                              
                                                                               
Number 0358                                                                    
                                                                               
REPRESENTATIVE ROKEBERG proposed adding a reference in Section 31              
that these must be raised to the clear and convincing standard to              
be applicable in the .088 termination section.                                 
                                                                               
REPRESENTATIVE BERKOWITZ referred to page 40, line 16.  He stated,             
"It would be by clear and convincing evidence that the conditions              
described in AS 47.10.011, subsections (1) through (12), exist."               
                                                                               
MR. WEBB pointed out that they would have to prove all of (1)                  
through (12), then.                                                            
                                                                               
Number 0450                                                                    
                                                                               
MS. WIBKER told members that what Representative Berkowitz desires             
is what is happening in the way the courts interpret this.  She                
explained, "I can adjudicate by a preponderance that there's sexual            
abuse.  If I want to terminate, I have to prove by clear and                   
convincing evidence that the child is at risk of sexual abuse in               
the home.  So, I have to prove the facts at a higher level, higher             
burden of proof.  That is how it works in practice."                           
                                                                               
REPRESENTATIVE ROKEBERG referred to page 40, line 17, and suggested            
it say, "a child in need of aid, as in each subsection described in            
...."                                                                          
                                                                               
REPRESENTATIVE PORTER interjected, "Well, if you're going to do                
that, you just changed by a preponderance to clear and convincing              
on page 24, line 27, if that's what you want to do."                           
                                                                               
REPRESENTATIVE BERKOWITZ disagreed, saying that page 24 is at the              
adjudication stage, which is the finding that there is a CINA case.            
When they move down the road to termination, he wants to make sure             
that the facts that led to the adjudication are shown again, to a              
clear and convincing standard, rather than to the preponderance                
standard.                                                                      
                                                                               
REPRESENTATIVE PORTER asked whether Representative Berkowitz cares             
that they are established by a preponderance.                                  
                                                                               
REPRESENTATIVE BERKOWITZ said no.                                              
                                                                               
Number 0539                                                                    
                                                                               
REPRESENTATIVE ROKEBERG suggested on page 40, line 17, saying, "by             
clear and convincing evidence that (A) the child is a child in need            
of aid in one or more of the subsections in [AS] 47.10.011".                   
                                                                               
MR. JARDELL told members, "If you took the language out of                     
47.10.011 that says if the court 'finds by a preponderance that the            
child has been subjected to', and you just take that language out              
and put it in here, and say, 'if the court finds by clear and                  
convincing evidence that the child has been subjected to any of the            
provisions in 47.10.011', it would get you where you want to be."              
                                                                               
REPRESENTATIVE PORTER restated his opinion that they were already              
there.                                                                         
                                                                               
Number 0596                                                                    
                                                                               
REPRESENTATIVE ROKEBERG offered the above as a conceptual                      
amendment.                                                                     
                                                                               
CHAIRMAN GREEN, hearing no objection, labeled that as Amendment 13.            
                                                                               
Number 0638                                                                    
                                                                               
MR. JARDELL referred to page 17, Section 21, relating to                       
presumptions of custody.  He advised members that this deals with              
subject matter that isn't particularly relevant to the rest of the             
bill:  custody determinations if there were prior domestic violence            
proceedings.  Mr. Jardell said it may be a good idea, but they are             
not hearing from the family law bar, nor have they heard anybody               
speak to this except for Blair McCune of the Public Defender                   
Agency, who had inquired why this was tacked onto the bill.  Mr.               
Jardell agreed this is not the place to address these provisions               
and suggested they should be in another bill in order to determine             
whether these presumptions are a good idea or not.                             
                                                                               
Number 0702                                                                    
                                                                               
REPRESENTATIVE PORTER asked why he doesn't believe this is relevant            
to the bill.                                                                   
                                                                               
MR. JARDELL replied that this would be in any divorce action or                
custody dispute from the courts, but not foster care.                          
                                                                               
REPRESENTATIVE PORTER noted that it involves a domestic violence               
proceeding.                                                                    
                                                                               
MR. JARDELL agreed but said it is not a CINA case issue.  Rather,              
it is an issue in making a custody decision, in or after a divorce             
proceeding; if there is domestic violence involved, then these                 
presumptions kick in.  "And it's just not consistent with the                  
subject matter of the bill, and I think you could probably have                
three or four hours of discussions on it, if it was in a separate              
bill, by itself," he concluded.                                                
                                                                               
CHAIRMAN GREEN asked whether this is covered elsewhere in law.                 
                                                                               
MR. JARDELL replied that he doesn't think these actual presumptions            
are covered in law, and it may be a great idea to do so.  Nor is he            
sure it is covered under the title, although that is quite long.               
But it is strange to see AS 25.20 in this bill, dealing with                   
custody determinations and proceedings that aren't CINA cases and              
that aren't regulated by DFYS.                                                 
                                                                               
MS. WIBKER said she didn't have a position on this.                            
                                                                               
Number 0793                                                                    
                                                                               
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and            
Sexual Assault, Department of Public Safety, disagreed with Mr.                
Jardell's position, saying this was amended in the House Health,               
Education and Social Services Committee after some discussion.  She            
said she believes it very much has to do with the protection of                
children, if one accepts the premise that domestic violence in a               
family situation is harmful to children, and it increases the risk             
to them of child abuse.                                                        
                                                                               
Number 0822                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked whether this had been in another bill            
at one time.                                                                   
                                                                               
MS. ANDREEN restated that this was amended in the previous                     
committee, adding that it hadn't been introduced elsewhere.                    
                                                                               
MR. JARDELL explained that Chapter 25 is child support and custody             
provisions.  He reiterated that it may be a very good idea, but                
most of the testimony has been on DFYS aspects of the bill.  He                
expressed concern that those most affected by it, including family             
lawyers and family bar members, may not be aware of it.  He said it            
is only in Section 21, plus the following four or five pages of                
conforming language.                                                           
                                                                               
REPRESENTATIVE PORTER stated his belief that it fits within the                
title, which includes child abuse and neglect, as this is a                    
presumption of neglect.                                                        
                                                                               
Number 0914                                                                    
                                                                               
MR. JARDELL indicated there are issues, whether or not                         
substantiated, about how much deference judges have in domestic                
violence cases.  He said he doesn't take away from the real need of            
stopping domestic violence, but this lends itself to some abusive              
situations of the law when someone goes after custody.  He believes            
automatic presumption of custody should be looked into on its own.             
                                                                               
REPRESENTATIVE ROKEBERG read from page 17, beginning at line 12,               
"If the court finds in a proceeding involving child custody that               
domestic violence has occurred, rebuttable presumptions arise".  He            
noted that it doesn't say a crime of domestic violence, then asked,            
"That's a pretty easy go, isn't it?"                                           
                                                                               
Number 0978                                                                    
                                                                               
MR. JARDELL replied, "My first impression would be that it is, that            
if you called and made a complaint, that there was a domestic                  
violence charge, even if it wasn't prosecuted, using that in a                 
civil matter - that it has occurred - you have a burden of                     
preponderance of the evidence."  He restated that it is something              
that deserves some attention and looking into.                                 
                                                                               
REPRESENTATIVE PORTER responded that the presumption is rebuttable.            
If two people divorce, and if at some time past one was involved in            
domestic violence against the other, that could be brought up as a             
presumption that custody would not be a good idea for the offending            
parent.  He suggested if the offending parent had gone through                 
awareness training and so forth, it would not be that difficult to             
overcome the presumption.                                                      
                                                                               
MR. JARDELL said in that case, it may not be.  Furthermore, right              
now judges look to the best interests of children in placement, and            
will not place a child where they believe the child will be harmed.            
He said he couldn't speak to the need for this, or its practical               
effects, but this deals with a matter that wouldn't be under DFYS,             
although it relates to children.  He restated his opinion that it              
is not necessarily consistent with the rest of the bill in subject             
matter and would be better approached in another bill.  He                     
acknowledged that it is for the committee to decide.                           
                                                                               
CHAIRMAN GREEN asked Ms. Torkelson whether she remembers the                   
discussion about this in the House Health and Social Services                  
Committee.                                                                     
                                                                               
Number 1120                                                                    
                                                                               
MS. TORKELSON replied, "Jayne Andreen came to our office and                   
requested it be put in.  [Representative Dyson] and I both looked              
at it.  It sounded good. ... We were a vehicle for them.  And we               
don't really have a position one way or the other, as far as taking            
it out now, leaving it in; that would be the will of the committee.            
It sounded good to us at the time, and it was discussed, and it                
made sense."                                                                   
                                                                               
Number 1153                                                                    
                                                                               
CHAIRMAN GREEN asked Ms. Andreen, "The fact that this may be a good            
idea, is it because this bill is available?  Would there be another            
opportunity to put this in law through a different vehicle?"                   
                                                                               
MS. ANDREEN said she is not aware of another vehicle this would fit            
into.  One reason the council felt this is a good vehicle is                   
because it focuses on the protection of children.  She referred to             
the rebuttable presumption, which she said comes out of the model              
code put together by the National Council of Juvenile and Family               
Court Judges, and which says this is important in domestic violence            
cases as a way to further protect children.  Ms. Andreen pointed               
out that Legislative Legal Services had looked at it for single-               
subject requirements.  She indicated she is pleased that only one              
group has come forward to say they don't know whether it belongs               
here, and she said it has already gone through that test.                      
                                                                               
MS. ANDREEN continued, saying what is important is that a whole                
court process has to take place, including a determination that                
domestic violence occurred.  She stated, "Right now, what happens              
in the nonoffending parent - who most often has been threatened                
with loss of the children or injury to the children or the                     
nonoffending parent if they object in any way to anything that the             
batterer wants to have happen - has to prove to the court that it's            
not in the best interests of the child to have contact or to be                
given custody to the batterer.  This, in our minds, merely shifts              
that focus to, 'It's up to that batterer, that proven offender, to             
say, "No, it is okay; I have been through the treatment" or "I have            
done this" or "I have done that" or "It occurred ten years ago and             
nothing has happened since then,"' which we think is a more                    
appropriate way to approach it."                                               
                                                                               
Number 1277                                                                    
                                                                               
REPRESENTATIVE DYSON told members that his sense of the House                  
Finance Committee is that they are into stripping extraneous things            
from bills.  He said Senate members have told him they have a                  
similar predisposition.  He suggested this committee could pass the            
bill out with some confidence that the appropriateness of these                
pieces in the bill would be addressed on the Senate side.                      
                                                                               
REPRESENTATIVE BERKOWITZ asked what the inspiration was for the                
language in these sections.                                                    
                                                                               
MS. ANDREEN replied that it came in part from the language in the              
model code.  In addition, this language was originally in the                  
Governor's domestic violence bill in 1996.                                     
                                                                               
Number 1329                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked what deviations there are from the              
model code.                                                                    
                                                                               
MS. ANDREEN said she hadn't brought that with her, but as she                  
recalls, this goes into more detail in terms of laying out what                
would be looked at.                                                            
                                                                               
REPRESENTATIVE PORTER said it had been discussed quite a bit in the            
previous committee, of which he is a member; he was satisfied that             
it was generally topical, and he felt comfortable leaving it in.               
                                                                               
Number 1367                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked whether there had been adverse                  
testimony in the previous committee.                                           
                                                                               
CHAIRMAN GREEN said he didn't recall any about applicability.                  
                                                                               
Number 1415                                                                    
                                                                               
MS. TORKELSON replied that a lot of amendments presented in the                
House Health, Education and Social Services Committee were not                 
given much time beforehand for study by groups.  The Office of                 
Public Advocacy (OPA) had indicated uncertainty about the                      
rebuttable presumption, and Ms. Torkelson had suggested they get               
together with Ms. Andreen's office, then come back with a solution.            
Ms. Andreen had told her OPA is okay with this wording, to Ms.                 
Torkelson's understanding.                                                     
                                                                               
Number 1489                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Ms. Andreen whom she had talked to              
at OPA.                                                                        
                                                                               
MS. ANDREEN said it was Barbara Malchick, who had told Ms. Andreen             
that OPA's one concern was whether it fit here.  When asked whether            
OPA had concerns or problems with the content, Ms. Malchick had                
said no.                                                                       
                                                                               
REPRESENTATIVE BERKOWITZ said that is good enough for him.                     
                                                                               
Number 1519                                                                    
                                                                               
REPRESENTATIVE ROKEBERG referred to an unspecified letter in                   
committee packets, which he described as lucid and clear, and which            
made some interesting points.  He read as follows:  "These                     
sections, 21 to 25, need to be in an independent bill or combined              
into House Bill 307, Section 3.  These sections are not part of any            
federal law or regulation. ... The custody issues involving                    
marriage or a relationship or similar to a marriage really have no             
place in a child protection bill.  The CRC, this organization,                 
fully agrees with the rebuttable presumption in custody hearings.              
... To date, 29 states have adopted some form of presumed joint                
custody.  (Indisc.) local chapter says in presumed joint hearings              
and in interim custody decisions, the decision maker shall presume             
that both parents are equally good parents .... When invoking a                
rebuttable presumption, the clear and convincing evidence standard             
of proof shall apply in all cases where one parent is wanting to               
have sole custody for any reason."                                             
                                                                               
REPRESENTATIVE ROKEBERG said that seems to make some sense.  He                
asked whether his understanding is correct that, as this bill is               
drafted, the rebuttable presumption would be for any kind of                   
domestic violence offendee, even if there was a prayer for sole                
custody.                                                                       
                                                                               
Number 1607                                                                    
                                                                               
MS. ANDREEN replied, "That's correct; I think I'm following you."              
                                                                               
REPRESENTATIVE ROKEBERG suggested that isn't a fair playing field;             
the 29 states that have a rebuttable presumption do so for joint               
custody, not sole custody.  He said if there is no distinction made            
here on that, it is a question the committee should look at.  If               
someone wants sole custody, there should be a higher standard.                 
                                                                               
Number 1696                                                                    
                                                                               
MS. ANDREEN referred to page 17, line 15.  She said the rebuttable             
presumption applies but would not preclude the court's ability to              
order joint legal custody.                                                     
                                                                               
REPRESENTATIVE ROKEBERG agreed it doesn't preclude it, but said it             
certainly affects the balance of the whole proceeding.                         
                                                                               
REPRESENTATIVE BERKOWITZ told members he isn't utterly convinced of            
this.  Because there is provision for sole, joint legal and joint              
physical custody, it allows a court to make a determination based              
on the best interests of the child.  He agreed this section doesn't            
belong in here, but said it isn't too far afield from the subject              
matter.  He offered to check and bring any problems to the                     
attention of the House Finance Committee.  He suggested this is as             
good as they could do at this late hour.                                       
                                                                               
CHAIRMAN GREEN commented, "Well, the only concern is that we                   
complain about the Finance Committee rewriting bills, and then we              
kick bills up to them to get them rewritten."                                  
                                                                               
CHAIRMAN GREEN asked the wish of the committee on this issue.                  
                                                                               
REPRESENTATIVE ROKEBERG suggested that the more there is in the                
bill, the less chance it has of making it.                                     
                                                                               
Number 1852                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to move CSHB 375(HES), as               
amended, from committee with attached fiscal notes and individual              
recommendations.                                                               
                                                                               
CHAIRMAN GREEN asked whether there was any objection.  There being             
none, CSHB 375(JUD) moved from the House Judiciary Standing                    
Committee.                                                                     
                                                                               
Number 1871                                                                    
                                                                               
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department              
of Administration, spoke up via teleconference from Anchorage.                 
                                                                               
CHAIRMAN GREEN apologized, indicating he didn't know anyone was                
still listening.                                                               
                                                                               
MR. McCUNE informed members he is concerned about adding the                   
substantial risk of mental injury to the key subsection regarding              
CINA jurisdiction, starting on page 24, which he believes was added            
to subsection (8) [Section 31 of the bill], where it deals with                
domestic violence.  He read the definition of mental injury, saying            
it means the injury to the emotional well-being or mental alacrity             
or psychological capacity of the child, as evidenced by an                     
observable and substantial impairment of the child's ability to                
function in a developmentally appropriate manner.                              
                                                                               
MR. McCUNE said that is a fairly broad definition, and if they are             
talking about specifics of that, they are casting a pretty broad               
net.  He noted the department's concern with domestic violence and             
its effects.  He said in the earlier versions of the bill, it was              
prima facie evidence and so on.  His expressed a preference for                
"mental injury of the child," but indicated he preferred prima                 
facie evidence rather than "risk or substantial risk of mental                 
injury".                                                                       
                                                                               
CHAIRMAN GREEN asked whether Mr. McCune could provide anything in              
writing.                                                                       
                                                                               
Number 2043                                                                    
                                                                               
MR. McCUNE replied that he had sent a fax the previous Monday to               
Mr. Jardell.                                                                   
                                                                               
MR. JARDELL said he didn't recall it.                                          
                                                                               
CHAIRMAN GREEN requested that Mr. McCune fax another copy, if                  
possible.                                                                      
                                                                               
MR. McCUNE told members there is one more technical issue.  He                 
referred to subsection (10) [Section 31 of the bill], which says,              
"the parent, guardian, or custodian's ability to parent".  He                  
inquired whether the committee wants to take custodian out of                  
there, on page 26, line 1, as a custodian would be someone like a              
babysitter.                                                                    
                                                                               
CHAIRMAN GREEN indicated he would try to telephone Mr. McCune about            
these issues.                                                                  
                                                                               
Number 2266                                                                    
                                                                               
MR. McCUNE referred to page 27, line 16, which says [beginning on              
line 15], "(2) a negligent act or omission by a parent, guardian,              
or custodian creates a substantial risk of injury to the child."               
He stated, "In an earlier version of the bill, they went into                  
detail on that, and the detail that's found ... on page 7, at the              
tops of section (2) and so on. ... That seems like a pretty broad              
definition when we say physical harm."                                         
                                                                               
CHAIRMAN GREEN noted that they have the same "custodian" language              
in there, as well, acknowledging it is fairly much throughout.  He             
asked whether Mr. McCune's concern is that it is too broad.                    
                                                                               
Number 2352                                                                    
                                                                               
MR. McCUNE affirmed that, adding that subsection (1) is clear.  He             
then advised members that he also has concerns about Section 43 on             
page 35, subsections (s) and (t), including concerns about its                 
effect on a statute, which they are not amending here, that                    
provides placement of the child with a relative.  He stated, "What             
would happen is if the child's in foster care, and then the social             
worker or someone involved in the case says, 'Oh, there's a                    
relative who's ready, willing and able to take care of the child,'             
that that would have a whole process and involve a lot of notice,              
when the relative is a preferred placement."                                   
                                                                               
CHAIRMAN GREEN asked what the problem is.                                      
                                                                               
MR. McCUNE explained that sometimes they aren't able to find                   
relatives right away, and there could be a placement in a foster               
home.  He said he hopes he is reading this right, but he is seeing             
14 days' notice, for example.                                                  
                                                                               
TAPE 98-68, SIDE A                                                             
Number 0006                                                                    
                                                                               
MR. McCUNE said he hadn't received all the amendments, although he             
had a few.                                                                     
                                                                               
CHAIRMAN GREEN suggested the best thing would be to provide Mr.                
McCune a copy of CSHB 375(JUD), so that he wouldn't have to go                 
through the amendments.  He asked whether anyone else was waiting              
on teleconference, then concluded the hearing.  [CSHB 375(JUD) had             
already been moved from committee.]                                            

Document Name Date/Time Subjects