Legislature(2005 - 2006)CAPITOL 120

04/13/2005 01:00 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 257 STATE PROCUREMENT ELECTRONIC TOOLS TELECONFERENCED
Heard & Held
+= HB 183 CAMPAIGN FINANCE: SHARED EXPENSES TELECONFERENCED
Moved CSHB 183(JUD) Out of Committee
*+ HB 260 TOBACCO: BONDS; TAX; POSSESSION BY MINORS TELECONFERENCED
Moved CSHB 260(JUD) Out of Committee
+ HB 133 LOCAL BOUNDARY COMMISSION REGS & POWERS TELECONFERENCED
<Bill Hearing Postponed to 4/18>
Bills Previously Heard/Scheduled
= HB 53 CHILDREN IN NEED OF AID/REVIEW PANELS
Moved CSSSHB 53(JUD) Out of Committee
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.                                                                                                   
                                                                                                                                

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