Legislature(1999 - 2000)
01/25/2000 08:05 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 259-PUBLIC DEFENDER CHILDREN'S PROCEEDINGS CHAIR JAMES announced that the committee would next hear HOUSE BILL NO. 259, "An Act relating to a parent's eligibility to be represented by the public defender before and during the probable cause and temporary placement hearing that is held after the state takes emergency custody of a child." Number 2869 REPRESENTATIVE COGHILL, sponsor, explained that HB 259 is the result of a meeting sponsored by Chair James among the Department of Administration, the Department of Law, Judge Steinkruger, and legislative staff from the Interior. From this meeting it became apparent that a 48-hour hearing is required when a child in need of aid (CINA) is taken into custody. It was his observation that when summoned to a 48-hour hearing, many parents hadn't had the opportunity to obtain counsel or were unaware that they could even have counsel present at the hearing. The Office of Public Advocacy (OPA) saw that lack of knowledge as a shortfall in the current system. REPRESENTATIVE COGHILL noted that Representative Whitaker also held several meetings in Fairbanks regarding this subject. Representative Coghill had met with different family groups and found that a family summoned into a 48-hour CINA hearing actually did not know what they were getting into. Representative Coghill said he feels there was a grave misunderstanding of how important the 48-hour hearing is when a determination of CINA exists. He believed HB 259 provided an opportunity to extend representation to a parent who did not understand what was going on, since there seems to be much confusion in the first minutes when a child has been taken into custody and the parents are summoned to court. House Bill 259 attempts to supply the representation that parents need, regardless of their financial status because many parents do not even know to call a lawyer in this situation. REPRESENTATIVE COGHILL pointed out that HB 259 had no fiscal note at this time. He offered a written amendment, labeled Amendment 1, which read as follows: Page 1, line 6, after the word "person": Delete: [, whether or not indigent,] Page 1, line 8, after the word "represented": Insert: , pending a determination of indigence, TAPE 00-1, SIDE B Number 2958 REPRESENTATIVE COGHILL commented that HB 259 is a straightforward bill. He agreed, as Amendment 1 states, that there has to be a determination of indigence somewhere along the line, which he felt would probably ensure a zero fiscal note. Number 2943 REPRESENTATIVE GREEN expressed concern that a disproportionate number of low-income people, who are not necessarily indigent, might be having their children taken into custody in comparison to people who are financially secure. That was his observation as a result of information-gathering visits to the Division of Family and Youth Services (DFYS). Representative Green asked: Would enactment of HB 259 provide notification to the parents that they do have the right to request a public defender, or are the parents under obligation to know they have that right? REPRESENTATIVE COGHILL replied that it was his intention that the parents be notified. CHAIR JAMES surmised that the notification requirement would be implemented by the court system, and that the court would ask the parents whether they want to be represented by counsel. Number 2856 REPRESENTATIVE COGHILL acknowledged that was his intention. He mentioned that he and Representative Whitaker have worked together regarding responsibility and rights measures that should be presented as a briefing in a court. However, that is a separate measure, not to be confused with HB 259. Representative Coghill said he believed that if a person did come before a judge at a 48-hour hearing without counsel, HB 259 would require the judge to advise the person of his or her right to counsel. House Bill 259 has not expressly said that, but Representative Coghill said he did not want a directive to that effect either. Number 2796 DOUG WOOLIVER, Administrative Attorney, Alaska Court System, explained that even now people do have the right to counsel at 48-hour hearings. According to most of the judges with whom he had spoken, many parents qualify for public defender services. Under the current statute, if parents appeared at a 48-hour hearing without an attorney, they have the option to either proceed without an attorney through the probable cause hearing (which does not happen often), or request a continuance. Continuance occurs when a parent indicated they wanted to obtain an attorney and either they did not know they could do so or they had not taken steps yet to do so. The continuance then allows the hearing to be postponed for another two or three days. Meanwhile, the child in custody stayed wherever the child had been placed, which was an incentive for the parents to act quickly so they could regain custody of their child. When parents obtained representation, they returned to court for the hearing. MR. WOOLIVER informed the committee that at present, when DFYS takes custody of a child, DFYS provides a brochure to parents which explains their rights as parents. One of those rights is the right to a public defender. Mr. Wooliver observed that according to the Anchorage Police Department, it was not uncommon for the parent to have already taken the step of requesting a public defender. To request a public defender, the court has to make an indigence determination, a public defender is then appointed and the parents appear at the hearing with counsel. Mr. Wooliver felt HB 259 facilitates the current process. Under HB 259, parents would not have to first appear in court to obtain an indigence determination. The notification provision of HB 259 allows the parents to request a public defender at the time the child is taken into custody. Therefore, parents can appear at the 48-hour hearing with representation even if a court determination of indigence has not yet been declared. REPRESENTATIVE GREEN asked if obtaining an attorney quickly under HB 259 would save money and reduce the caseload, given the fact that deferments, postponements, or continuances do add to case costs. Number 2659 MR. WOOLIVER answered that it was possible there might be fewer continuances. On the other hand, a parent might still not understand that he or she did have the right to a public defender. He offered his observation that the DFYS brochure advises people of their right to counsel, but that people do not always avail themselves of that right. Mr. Wooliver reiterated that the family is in a crisis situation, so the system will continue to have cases where people do not obtain representation in a timely manner, which causes some continuances. However, HB 259 is expected to reduce the number of times someone comes in without an attorney, and thus reduce the need for a continuance. REPRESENTATIVE WHITAKER asked how many continuances occur and whether Mr. Wooliver had data to support his answer. Number 2605 MR. WOOLIVER said he might be able to obtain the data. REPRESENTATIVE WHITAKER reiterated that the point of HB 259 is to protect every individual's rights. He expressed concern for that percentage of people who do not understand their circumstances and for which HB 259 ensures protection of their rights. He believed HB 259 to be an important piece of proposed legislation. Number 2531 REPRESENTATIVE KERTTULA expressed uncertainty regarding the reason for a zero fiscal note. She surmised perhaps it was because OPA assumed HB 259 would be amended so that OPA did not represent non-indigent people; she asked when that might happen. It sounded to her as if OPA would ask the appropriate questions right upfront during the first custody hearing to determine whether the parents were indigent and would qualify for representation. However, she saw a problem if OPA allowed people to have OPA representation and proceed through the system, only to find out later that the people involved did not, in fact, qualify for public defender representation. She felt this scenario would create a budget increase for OPA, contrary to the zero fiscal note. Number 2485 REPRESENTATIVE OGAN made a motion to adopt Amendment 1 [text provided previously]. Number 2465 REPRESENTATIVE COGHILL reiterated that it is desirable for counsel to be present at 48-hour hearings. Nevertheless, somewhere along the line there has to be a determination of indigence or a continuance. Amendment 1, which was forwarded to Representative Coghill's office from OPA, makes it more emphatic that counsel from the public defender's office is available, regardless of a determination of indigence. Number 2424 REPRESENTATIVE HUDSON asked if it was easy to make a determination of indigence. MR. WOOLIVER replied that the Alaska Court System required people seeking a determination of indigence to meet certain financial criteria in order to be appointed to a public defender. There are forms to submit and court procedures for making that determination. It is not an instant process. Number 2387 REPRESENTATIVE GREEN questioned whether HB 259 will create a burden on OPA before an indigence determination has been made. Number 2347 MR. WOOLIVER answered that under HB 259, OPA would be responsible for representing people who may or may not meet indigent standards. In that sense, OPA's workload might increase. He did not know how much difference Amendment 1 would make. Number 2309 CHAIR JAMES said she believes people should have counsel at 48- hour hearings, since counsel is an important protection. She had seen people after a court hearing who still did not know what had happened to them or why they were at the hearing. It was her understanding that a public defender is a state employee. If that assumption is correct, a public defender ought to be present at a 48-hour CINA hearing. Number 2243 MR. WOOLIVER agreed that a public defender ought to be present, but for that to occur, the assigned attorney has to be notified of the case within 48 hours. Although parents are not required to have an attorney, they are entitled to an attorney and still need somebody to initiate the request for a public defender. Also, OPA has to check whether a conflict exists for the assigned public defender regarding the applicant. Number 2190 REPRESENTATIVE SMALLEY agreed with Representative Kerttula that there will be an additional cost to OPA. Number 2153 BLAIR MCCUNE, Deputy Director, Alaska Public Defender Agency, testified from Anchorage via teleconference. He said the public defender process varied in different areas around the state. He cited the example of Anchorage, where OPA currently does not accept intake calls. If someone needed a public defender, OPA refers the applicant to the court. At the court, the applicant fills out an application for a public defender and waits for a formal determination of indigence. Upon receipt of a determination of indigence, OPA could then represent an applicant. This process takes time, but it can be done before the 48-hour hearing, at which parents are advised of their rights. Child-in-need-of-aid rules governing these hearings require that parents be notified of their right to counsel at public expense. MR. MCCUNE answered Representative Hudson's question by saying sometimes it is easy to make an indigence determination and sometimes it is not. Often OPA can quickly determine whether someone is able to pass an indigence screening. OPA asks a few questions; for example, an important one would be whether the applicant is currently on public assistance. If the applicant is receiving public assistance, OPA can safely assume that the applicant has had indigence screening through one of the state or federal agencies. In questionable cases, OPA would be better advised to refer the applicant to the court system for a formal indigence determination. If an applicant can afford their own lawyer, then OPA can refer them to lawyers in private practice who can represent the applicant. MR. MCCUNE turned to the fiscal impact of HB 259. He referred to lines 7-8 on page 1, which read "may be represented ... by the Public Defender Agency." He acknowledged that OPA must exercise care regarding conflicts of interest in these cases. He said OPA tries to conserve state resources by assigning OPA staff attorneys - which are state employees - to those cases that will be the most time-consuming or serious. The Office of Public Advocacy also strives to conserve resources by representing both a CINA case and a criminal case if no conflict of interest exists. Mr. McCune believes OPA would not feel any fiscal impact due to HB 259 if the words "may be represented" provided OPA with flexibility in who they represent and delineated the scope of representation. Nevertheless, he reminded the committee that OPA did have limited resources and could not promise immediate response in every case. For example, if all OPA lawyers were attending court hearings, OPA might not be able to respond to an intake call right away. Mr. McCune endorsed the words "may be represented" as the correct interpretation. He agreed that HB 259 will help people who need help without resulting in further fiscal impact to OPA. Number 1890 REPRESENTATIVE GREEN posed a scenario in which 10 or 12 CINA children were taken into custody in the same timeframe. He asked if a defense was prepared for all the children at once. He also asked if OPA was notified at the time of intake or waited for someone to request representation and then provided a public defender at the first 48-hour hearing. He asked if the legislature was creating an additional burden on OPA by HB 259. He further asked whether OPA normally would provide representation anyway - the question just being who pays for it. Number 1811 MR. MCCUNE offered to explain the OPA process. OPA did not currently represent anyone until the court had made such an appointment. The court will call OPA and inform OPA that it has been appointed to represent "Mrs. Smith" in a CINA case. The Office of Public Advocacy then checks their conflicts material to see if OPA has any conflict in representing "Mrs. Smith." If so, OPA will call the court and say that due to conflict of interest, another OPA attorney needs to be appointed to represent "Mrs. Smith." When OPA does represent "Mrs. Smith" in a criminal case, OPA will read the petition, exercising care about whom they are representing and will begin work at that point. Mr. McCune said HB 259 will allow OPA to take some custody intake calls. "Mrs. Smith" can call the public defender office to report her children have been taken into custody. OPA would call the court and ask for a copy of the petition involving "Mrs. Smith" and review social workers' notes, medical reports, or police reports. MR. MCCUNE noted that often parents will agree with OPA that there are reasons why the state was involved in their lives. Not all cases go to contested hearings; only a small percentage do. If a case does go to a contested hearing, OPA must have more time to get the paperwork needed to represent the person in that hearing. House Bill 259 would allow OPA to take the custody intake call, get the petition sent to the court, verify what OPA was dealing with, and get started earlier. Mr. McCune did not anticipate more work; rather, he anticipated being able to do OPA's work earlier. MR. MCCUNE pointed out that most of OPA's workload is criminal cases. In 1996 the legislature passed a law that clarified OPA's responsibility to represent anybody in a criminal case only after being formally appointed. That law has also been applied to CINA cases. House Bill 259 would change the law so that OPA can get involved in CINA cases at an earlier stage, as opposed to criminal cases only. Number 1521 REPRESENTATIVE GREEN said it sounds to him, after listening to Mr. McCune's testimony, that with more people involved, OPA's workload could increase, which could impact its ability to do the job unless OPA hires more employees. REPRESENTATIVE GREEN posed a scenario in which people who were automatically represented at a 48-hour hearing were later found to be non-indigents. He asked: Do they reimburse OPA for the extra work OPA performed? Number 1479 MR. MCCUNE answered that in CINA cases there was no payback provision. There are payback provisions in criminal cases, and attorney fees are charged to citizens who use the public defender in appellate cases. Mr. McCune said he believed OPA would not start work on a case unless OPA was reasonably sure the person was indigent. Mr. McCune affirmed that most of the parents involved in CINA represented by OPA and who appear before the court are people determined to be indigent. He asserted that OPA is careful not to represent people that OPA would not represent anyway. Number 1427 REPRESENTATIVE GREEN requested affirmation that if HB 259 passed, OPA would not anticipate a budget increase next year. Number 1420 REPRESENTATIVE KERTTULA reiterated her belief that OPA is increasing its workload, since OPA does not represent such parents now. She said she understood that OPA is relying on its own schooling, pending a determination of indigence, to determine whether a parent involved in a CINA call is indigent. After listening to Mr. McCune's explanation, she believes that OPA is taking control of that step in the process and making its own indigence determination right then. She sought confirmation that her understanding is correct in that OPA will reject some people and take some people right at the point of call. Number 1381 MR. MCCUNE affirmed Representative Kerttula's understanding of the process. He said he believes HB 259's use of the language "may be represented" allows OPA to make an initial indigence determination. He reaffirmed his belief that OPA would have flexibility in its response to calls in the initial stages. Number 1355 REPRESENTATIVE KERTTULA said that is the reason she supports HB 259. However, she believes OPA will experience increased caseloads and will have a fiscal note in connection with HB 259. Number 1330 REPRESENTATIVE HUDSON renewed Representative Ogan's motion to adopt Amendment 1. There being no objection, Amendment 1 was adopted. REPRESENTATIVE OGAN read from Representative Coghill's sponsor statement, "This means a reduction in foster care, case worker, and health care costs, as well as long-term public defender, guardian ad litem, and attorney general expenses." Representative Ogan said he believed Representative Coghill was asserting that if parents' rights are addressed early on, then perhaps parents who have had their children taken away will get their children back sooner, which will cost less money to the state. Number 1218 REPRESENTATIVE COGHILL replied in the affirmative. He reiterated that many, many parents get caught up in 48-hour hearings. It is clear to him that parents suffer emotional trauma; because they do not understand the legal system, even if they knew to obtain counsel, they would not know whom to get. House Bill 259 attempts to make counsel available and let people have access to counsel. He felt that if parents were notified that they had access to counsel or did have counsel, then the CINA cases would be fewer, because once parents get involved in the child-in-need-of-aid system, they have to go through all steps of the system. A court timeline is set up from the first 48-hour hearing onward, and those timelines have to be fulfilled. There can be continuances, counsel, and foster care; however, if at the 48-hour hearing counsel determines there was no CINA case, then the case could end at that point. Representative Coghill said many times the only recommendations before a judge is an agency determination and a parent's frantic plea. He felt HB 259 was one more way of protecting the rights of both children and parents. Number 1077 CHAIR JAMES, in response to Representative Ogan, said it was difficult and speculative, when trying to change a system, to determine whether there would be a reduction in cost. She felt the numbers were not available. Number 1043 REPRESENTATIVE WHITAKER expressed concerned that the discussion was centered around dollars, as opposed to protecting individual, constitutionally guaranteed rights. He said he did not believe HB 259 concerns saving or spending a dollar. Rather, it is a question of absolutely demanding that individuals involved in this kind of situation know their rights are protected. Although the legislature cannot be irresponsible with spending, HB 259 is a much larger issue. CHAIR JAMES agreed. Number 0973 MR. CALDER testified again. He said he liked HB 259 and Amendment 1. However, he did not feel HB 259 got to the heart of the problem. He offered the following suggestions: Amend: A. Page 1, line 7; Delete "[AS 47.10.142]." Insert "AS 47.10 and AS 47.12". B. Line 9; Insert: "first" before "hearing." C. Line 13; (same as 'A' above). D. Page 2, line 10; Delete: "[upon request]" and "[All]". Insert: "not" before "release". E. and line 11; Delete: the words following "subsection" beginning "[except information...]" to the end. F. Add court rules change for notice requirements. CHAIR JAMES recognized Mr. Calder's concerns were legitimate. Number 0865 MR. CALDER reemphasized the necessity of including cases arising under AS 47.10 and AS 47.12. He agreed the issue should not be centered around dollars, but around the basic rights of people before the judicial branch. He concluded that it is reasonable for parents to be represented, always recognizing the appropriate separation of powers in this matter. Number 0408 REPRESENTATIVE HUDSON suggested that Mr. Calder put those proposed amendments in writing; they then could be forwarded with HB 259 to the House Judiciary Standing Committee. REPRESENTATIVE HUDSON made a motion to move HB 259, as amended, out of committee with the zero fiscal note and individual recommendations; he asked for unanimous consent. There being no objection, CSHB 259(STA) moved from the House State Affairs Standing Committee.
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