Legislature(2005 - 2006)CAPITOL 120
04/13/2005 01:00 PM JUDICIARY
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* first hearing in first committee of referral
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HB 53 - CHILDREN IN NEED OF AID/REVIEW PANELS 2:32:41 PM CHAIR McGUIRE announced that the next order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 53, "An Act relating to child-in-need-of-aid proceedings; amending the construction of statutes pertaining to children in need of aid; relating to a duty and standard of care for services to children and families, to the confidentiality of investigations, court hearings, and public agency records and information in child-in-need-of-aid matters and certain child protection matters, to immunity regarding disclosure of information in child-in- need-of-aid matters and certain child protection matters, to the retention of certain privileges of a parent in a relinquishment and termination of a parent and child relationship proceeding, to eligibility for permanent fund dividends for certain children in the custody of the state, and to juvenile delinquency proceedings and placements; establishing a right to a trial by jury in termination of parental rights proceedings; reestablishing and relating to state citizens' review panels for certain child protection and custody matters; amending the duty to disclose information pertaining to a child in need of aid; authorizing additional family members to consent to disclosure of confidential or privileged information about children and families involved with children's services within the Department of Health and Social Services to officials for review or use in official capacities; relating to reports of harm and to adoptions and foster care; mandating reporting of the medication of children in state custody; prescribing the rights of grandparents related to child-in-need-of-aid cases and establishing a grandparent priority for adoption in certain child-in-need-of-aid cases; modifying adoption and placement procedures in certain child-in-need-of-aid cases; amending treatment service requirements for parents involved in child-in- need-of-aid proceedings; amending Rules 9 and 13, Alaska Adoption Rules; amending Rules 3, 18, and 22, Alaska Child in Need of Aid Rules of Procedure; and providing for an effective date." [Before the committee was CSSSHB 53(STA).] REPRESENTATIVE COGHILL, speaking as the sponsor of SSHB 53, said that he has prepared a proposed committee substitute (CS). He opined that there is need for a jury trial whenever a parental right is terminated. He relayed that members' packets contain information about the 1982 U.S. Supreme Court case, Santosky v. Kramer, which discussed "the process and the evidence levels." He offered his belief that severing the relationship between a parent and child is a big issue, and although sometimes the process works well, sometimes it doesn't, particularly when departmental employees have either not been diligent, or have had an ax to grind, or have gotten into personality conflicts with [parents]. REPRESENTATIVE COGHILL relayed that he is willing to go forth with the proposed CS because the department has been agreeable to the provisions that will "open up the process"; however, he is not comforted by the "huge timeline issues," which can result in parents having as little as 120 days before going from one court proceeding to the final determination regarding parental rights. He stated his concern that "if there is a doubt that that family should be forever severed from that child, that there should be one more look." He expressed his belief that there should be one more level to reach "beyond a reasonable doubt," adding that he had hoped this would be an issue that the committee could work on. He opined that many times the compelling interest for the safety of the child has ignored the importance of the family even those that are dysfunctional. 2:39:17 PM REPRESENTATIVE ANDERSON moved to adopt the proposed committee substitute (CS) for SSHB 53, Version 24-LS0251\P, Mischel/Chenoweth, 4/11/05, as the work draft. REPRESENTATIVE GRUENBERG objected for the purpose of discussion. REPRESENTATIVE COGHILL explained that in Version P, every reference to a jury trial has been removed. REPRESENTATIVE GRUENBERG removed his objection. CHAIR McGUIRE announced that Version P was before the committee. 2:39:51 PM RYNNIEVA MOSS, Staff to Representative Coghill, Alaska State Legislature, concurred that [Version P] no longer contains reference to a jury trial. REPRESENTATIVE COGHILL turned the committee's attention to Section 13 on page 21 regarding civil liability. MS. MOSS explained that the original bill said that there was a duty or standard of care for children in state custody, while [the current Section 47.10.960] said that there is not. She said that the Department of Law objected to the language in the original bill because it would create a very expensive fiscal note for civil suits. REPRESENTATIVE COGHILL read Section 47.10.960 in its current form: Nothing in this title creates a duty or standard of care for services to children and their families being served under AS 47.10. REPRESENTATIVE COGHILL stated that he strongly objects to this language because it could be misinterpreted. REPRESENTATIVE GRUENBERG stated he would like to offer an amendment that would keep that language in and add a clause that says that failure to comply does not create a civil liability. He said he agrees with Representative Coghill, adding that there can be a duty or standard of care that's essential for dealing with the adjudication and disposition phase. 2:43:59 PM JOHN McKAY, Anchorage Daily News, opined that the bill is "good as far as it goes, but it needs to go a bit further in terms of presumptions of openness." He noted that when other states have opened these proceedings up, everyone seems to be glad that they did it. He commented that he would like to supplement his remarks with articles, including a particular newspaper series that looked at the effect of opening these proceedings up. He said that he would either fax or email these articles to the committee within the next day. 2:47:28 PM MR. McKAY stated that he felt it was important for [the committee] to also look at opening the records that relate to the proceedings, which he thought were not adequately addressed in the bill. He pointed out that some comments were filed by a man named Mr. Wexler from the Coalition for Child Protection and Reform; Mr. McKay commented that he agreed with those comments, and recommended that the committee review them. Mr. McKay also asked that the committee look at some language that would help create a stronger presumption of openness. He offered to work with the committee to determine language that everyone would be satisfied with. CHAIR McGUIRE suggested that Mr. McKay forward his suggestions on to Representative Coghill. She noted that she too was concerned about maintaining the balance between confidentiality and public access to information. MR. McKAY remarked: I think it enhances the awareness that the public is interested in this, that there's an extra dimension to what they're doing every day, even though somebody's not sitting there [observing]. ... I think it's really helpful to know that there is experience in other states that have tried this and have found not only that there weren't bad effects, ... but [that] the experience is so universally the opposite. 2:51:18 PM CHERYL TRAIL relayed that she lives in Nebraska and has cared for her granddaughter from infancy until the age of two and a half years old. She said that her granddaughter is a ward of the State of Alaska who was placed with her on a "foster adopt" basis on an interstate compact. She shared with the committee her experiences with Alaska's Department of Health and Social Services (DHSS), Office of Children's Services (OCS), and charged that the OCS took her granddaughter from her by subterfuge and under pretext. MS. TRAIL pointed out that when her granddaughter was removed from her care by the OCS, she was not told why this action was taken, but was instead told by the OCS that she wasn't a party to the case and therefore did not have a right to the information. She said that it took six months for her attorney to get a hearing, and only at the time of discovery did she find out that the OCS had a lot of erroneous information. MS. TRAIL stated that because of her experience, she strongly supports the strengthening of the rights of grandparents who have been involved in rearing their grandchildren. She remarked that in her experience, the OCS did not follow many of its own policies and procedures, and "actually lied under oath during the hearing in front of a judge"; therefore, she supports the establishment of an opportunity for a trial by jury in cases of parental rights determination. She also stated that she supports the establishment of the citizens' review board, and commented, "I think this bill will go a long way in changing an agency that's known by the citizens of their state to be corrupt." CHAIR McGUIRE asked Ms. Trail if she has any information about where her [granddaughter] is now. MS. TRAIL replied that her granddaughter was placed in a foster home and that the OCS is pushing through an adoption. 2:57:12 PM MS. TRAIL, in response to further questioning by Representative Dahlstrom, explained the circumstances under which the OCS took custody of her granddaughter, her granddaughter's diagnosis and medication prescriptions, and her own personal background. 3:06:22 PM CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on SSHB 53. REPRESENTATIVE COGHILL made a motion to adopt Amendment 1, which read [original punctuation provided]: Page 5, Line 18 Delete: Lines 18 through line 24 Insert: (2) follow the findings set out in AS 47.05.65. REPRESENTATIVE KOTT objected for the purpose of discussion. REPRESENTATIVE COGHILL explained that he'd wanted to assert family primacy in the bill, but then he learned that AS 47.05.65 covered his concerns. REPRESENTATIVE KOTT removed his objection. REPRESENTATIVE GARA asked if he could make a friendly amendment to Amendment 1, as follows: Page 5, Line 17: After "child" Insert ", when in the child's best interests" REPRESENTATIVE COGHILL objected, stating that AS 47.05.65 is "replete with that whole discussion." 3:10:20 PM JAN RUTHERDALE, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law (DOL), noted that she has the same concern as Representative Gara. She remarked that there are times when there's a conflict between ensuring the safety of the child and ensuring the parents' participation in the upbringing of the child. REPRESENTATIVE COGHILL, agreeing that there can be such a conflict, then stated: But remember, this is a conflict. We're asking the state to insert itself into a family for the child's welfare. And in AS 47.05.65, which I'm asking us to amend into here, it says, "It is the policy of the state to strengthen families and to protect children from child abuse and neglect." I have no problem that that's the purpose of what I'm doing here. I'm just asking that the parents' participation in the upbringing of the child be included when we're talking about promoting the child's welfare. REPRESENTATIVE COGHILL maintained his objection to the amendment to Amendment 1. REPRESENTATIVE GARA commented that he certainly wanted to advocate the concept that parents should be able to participate throughout the process, but remarked that "you don't want to tell the department that a parent who's a danger to the child should keep participating, and if we just say, 'the parents shall participate,' then I think we're taking away the department's leeway to prevent that [participation] if a parent is a danger to the child." REPRESENTATIVE COGHILL replied that he didn't think this "construction" language changes the intent regarding the best interests of the child; rather it simply includes the family "At a higher level." He said, "To me, this is one of the key reasons for me doing this bill." REPRESENTATIVE GARA withdrew his suggestion to amend Amendment 1. 3:14:55 PM REPRESENTATIVE COGHILL reiterated that one of the main reasons he sponsored this bill is for family protection. CHAIR McGUIRE asked whether there were any further objections to Amendment 1. There being none, Amendment 1 was adopted. 3:15:39 PM REPRESENTATIVE DAHLSTROM made a motion to adopt Amendment 2, to remove subsection (n) from Section 5 on page 4, lines 19-26, regarding adoption. She pointed out that this was not in the original governor's bill that was introduced, but was added in by the House State Affairs Standing Committee. She offered her understanding that during the House State Affairs Standing Committee meeting, the Department of Law testified that it knew this was a potential issue, but it didn't think this would affect OCS adoptions. However, she said, "We heard in the testimony yesterday that it will affect many other permanent adoptions." CHAIR McGUIRE asked whether there were any objections to Amendment 2. There being none, Amendment 2 was adopted. REPRESENTATIVE COGHILL made a motion to adopt Amendment 3, which read [original punctuation provided]: Page 17, line 7, after the word "capacities.": Delete: the remainder of Line 7 through line 20. MS. MOSS noted that the language contained in the aforementioned lines would require certain departments to disclose confidential information to family members other than parents, and explained that Legislative Legal Services had pointed out that the federal government would have a problem with that language and it could cost the state $29 million per year. REPRESENTATIVE GARA asked for clarification that "we're just deleting the changes ... starting at line 7, and so we're not deleting the rest of the statutory language." CHAIR McGUIRE concurred. MS. MOSS suggested that Amendment 3 be a conceptual amendment such that it would merely delete the proposed new language on page 17, lines 7-20. REPRESENTATIVE COGHILL restated Conceptual Amendment 3 as taking out the proposed new language on lines 7-20 of page 17. CHAIR McGUIRE asked whether there were any objections to Conceptual Amendment 3. There being none, Conceptual Amendment 3 was adopted. 3:18:52 PM REPRESENTATIVE COGHILL made a motion to adopt Amendment 4, which read [original punctuation provided]: Page 27, line 5: Delete: "may" Insert: "shall" REPRESENTATIVE COGHILL explained that Amendment 4 would ensure that the initial interviews are audiotaped always and vidoetaped when possible. MS. RUTHERDALE said that the Department of Health and Social Services objects to Amendment 4. TAMMY SANDOVAL, Acting Deputy Commissioner, Office of Children's Services (OCS), Department of Health and Social Services (DHSS), elaborated: In working through this bill, ... it changed to "may" and then today it's back to "shall", and we're not sure how that happened because we'd had conversations about that. And we just have some concerns about the logistics of that: what it means to children in the interview process. While I agree that it does protect ..., I think it raises so many other issues. REPRESENTATIVE COGHILL suggested that the issue of the cost incurred by the requirements of Amendment 4 be discussed in the House Finance Committee. CHAIR McGUIRE asked whether there were any objections to Amendment 4. There being none, Amendment 4 was adopted. 3:21:03 PM REPRESENTATIVE ANDERSON moved to report the proposed committee substitute (CS) for SSHB 53, Version 24-LS0251\P, Mischel/Chenoweth, 4/11/05, as amended, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE COGHILL relayed that he had one other issue to address. CHAIR McGUIRE expressed a preference that that issue be addressed in the House Finance Committee. REPRESENTATIVE COGHILL agreed to do so. REPRESENTATIVE DAHLSTROM asked that Representative Coghill consider the comments that she received from foster parents who expressed concern about being mandated to have relationships with the family. 3:23:12 PM MS. MOSS noted that the language in the bill is permissive, and said she'd been assured by the OCS that it wouldn't put foster parents or the children in harm's way. REPRESENTATIVE COGHILL offered his belief that [maintaining a relationship with the family] is not mandated. REPRESENTATIVE ANDERSON again moved to report the proposed CS for SSHB 53, Version 24-LS0251\P, Mischel/Chenoweth, 4/11/05, as amended, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GARA objected for the purpose of discussion. He said that he thinks generally the amendments are good changes to the law. He stated his intention to keep working with the sponsor on additional changes. REPRESENTATIVE GARA then removed his objection. CHAIR McGUIRE asked whether there were any further objections to reporting the proposed CS for SSHB 53, Version 24-LS0251\P, Mischel/Chenoweth, 4/11/05, as amended, from committee. There being no objection, CSSSHB 53(JUD) was reported from the House Judiciary Standing Committee.