Legislature(2005 - 2006)CAPITOL 106
03/01/2005 08:00 AM STATE AFFAIRS
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 114-TERM. PARENTAL RTS/CINA/DELINQUENCY CASES 9:14:32 AM CHAIR SEATON announced that the next order of business was HOUSE BILL NO. 114, "An Act relating to the retaining of certain privileges of a parent in a relinquishment and termination of a parent and child relationship proceeding; relating to eligibility for permanent fund dividends for certain children in the custody of the state; relating to child in need of aid proceedings and juvenile delinquency proceedings; and providing for an effective date." 9:14:59 AM DIANNE OLSEN, Chief Assistant Attorney General - Statewide Section Supervisor, Human Services Section, Civil Division (Anchorage), Department of Law, testifying on behalf of the department, introduced HB 114. She noted that the proposed legislation includes several distinct provisions relating to the child protection system; each constitutes a step toward making Alaska's children safer, healthier, and more secure, without unreasonably expanding governmental powers. MS. OLSEN said [HB 114] would amend AS 25.23.180, to permit parents to relinquish their parental rights to a child, while retaining certain privileges, such as ongoing communication or visitation with the child. The amendment is in response to a recent Alaska Supreme Court decision, holding that the current law prohibits a parent from retaining any rights or privileges in a relinquishment. She said that in some cases ongoing contact with the parent is in the child's best interest, especially when that child is adopted by a relative or a family acquaintance. MS. OLSEN noted that the proposed amendment would also add language to AS 43.23.005, to allow children - who are placed temporarily by the Department of Health & Social Services outside of the state - in out-of-state treatment facilities, in order to maintain eligibility for Alaska permanent fund dividends (PFDs). She noted that some children require long- term treatment of a nature that is currently unavailable in Alaska, and such children are in risk of losing the PFD eligibility if they remain out of the state in excess of the statutorily proscribed period of time and are unable to return to the state. She said the department feels that these Alaskan children should not loose the privilege [of receiving a PFD] as a result of having been placed in the treatment facility which is not available in the state. MS. OLSEN said HB 114 would also add language to AS 47.10.020, to clarify that the court may issue any orders necessary to aid the department in its investigation of an allegation of child abuse and neglect. She noted that the language would resolve any ambiguity toward the ability of judges to issue orders across the state through various jurisdictions. A new subsection would also be added to the statute to clarify that the department is not required to obtain authorization from the court to conduct an investigation of a protective services report, formerly know as a "report of harm," or to file a petition in court. MS. OLSEN stated that existing federal law requires the testimony of a qualified expert witness in order for the court to authorize the out-of-home placement of or termination of parental rights to an Indian child. A new section would be added to AS 47.10.145 to permit the courts to conclude, as a matter of law, that the testimony of a qualified expert witness would support a finding that placing a child with a parent that cannot be located, is absent, or is unknown, would place that child at substantial risk of harm. MS. OLSEN concluded that [HB 114] would amend the definition of the term "mental health professional" in AS 47.30.915, for purposes of child in need of aid (CINA) and juvenile delinquency proceedings. In order to authorize placement of children in secure residential psychiatric treatment facilities, the court must hear the testimony of a mental health professional. The current definition excludes professionals who may be licensed to practice in states other than Alaska. The testimony of such a professional is often critical in cases involving Alaska children who are already placed out-of-state by the department. Ms. Olsen said the expansion of the existing definition is necessary to ensure that Alaska children who are placed outside of the state receive the psychiatric treatment that they need. 9:19:13 AM CHAIR SEATON said no one has had a chance to read the committee substitute (CS) for HB 114, Version 24-GH1108\G, Mischel, 2/28/05; therefore, he plans to hold the bill after the committee has asked questions of the witnesses. 9:19:34 AM REPRESENTATIVE GARDNER asked Ms. Olsen to clarify how HB 114 would change the ability of the expert witness to give testimony. 9:20:00 AM MS. OLSEN responded that under the Indian Child Welfare Act it is currently required that, in order to place a child in foster care, or to terminate parental rights, there must be evidence supported by a qualified expert witness that returning the child to the parent is likely to result in serious physical or emotional harm. In the case of an absent parent, she said it's simply a matter of common sense that the child can't be put back with that parent, because the department has no idea where they are. She offered further details. 9:22:31 AM REPRESENTATIVE GARDNER stated her understanding that, in summary, Ms. Olsen was saying that the bill would eliminate the necessity of having an expert witness and would codify the assumption that if a parent is absent, an expert witness would not be necessary. 9:22:46 AM MS. OLSEN said yes. 9:22:51 AM REPRESENTATIVE GRUENBERG indicated he was uncomfortable with the language of Section 5, but not certain why. He asked Ms. Olsen to provide him with the court cases to which Sections 1 and 5 pertain. 9:25:01 AM REPRESENTATIVE GRUENBERG directed attention to page 1, line 13 [of the CS that was not yet adopted], which read: "A relinquishment may not be withdrawn or invalidated". He observed, "It seems to divest the court of jurisdiction to invalidate such a relinquishment." He said he would have serious problems with divesting a court of its jurisdiction. He turned to the language beginning on the top of page 2, which read: "that a retained privilege has been withheld from the relinquishing parent". He said there could be a child in state custody, whose parent was promised visitation, and the state could deliberately withhold visitation from that parent. The parent would have no legal recourse, at all. He said, "I think that's terrible public policy. Why would you justify that?" 9:26:12 AM MS. OLSEN responded that the section to which Representative Gruenberg referred is intended to apply to a relinquishment that is taken prior to an adoption. The relinquishments, as a matter of policy by both the department and the attorney general's office, would not be taken unless they were agreed to by the adopted parent. She stated her belief that there is currently a state statute that does not allow an adoption to be overturned for any reason after one year, and, under the Indian Child Welfare Act, it's two years "if it's a matter of duress." 9:27:34 AM REPRESENTATIVE GRUENBERG said a provision already exists that "allows conditions for retaining privileges," so he questioned if Section 1 would be necessary. He noted that there is a one- year statute of limitations in the Adoption Act, and "this would seem to run contrary to that." He also remarked, "This may very well be unconstitutional if it were intended to conflict with the federally enacted Indian Child Welfare Act, which would retain supremacy under the supremacy clause." 9:29:15 AM CHAIR SEATON reiterated that the [unadopted] CS was just received by the committee. He asked the witness to get back to the committee with answers to Representative Gruenberg's questions in writing. Chair Seaton said he would like to get a synopsis of "where we're going with that section and how you interpret that, as well." The committee took an at-ease from 9:30:22 AM to 9:30:47 AM. 9:31:41 AM REPRESENTATIVE RAMRAS said other groups outside of Alaska, such as athletes training out-of-state and Peace Corps volunteers, do not qualify for the Alaska permanent fund dividend (PFD). He asked why a distinction is being drawn between them and an individual who is in custody of the Department of Health & Social Services and placed outside of the state for medical and behavioral treatment. 9:32:19 AM MS. OLSEN replied that she doesn't know if the department has considered that or thought that there was a distinction. She said primarily the focus has been on the children who were in custody of the department and sent out of the state, sometimes against their will or the will of their parents, and thought that "this would be a good opportunity to resolve that issue for them." 9:32:41 AM CHAIR SEATON opened public testimony. 9:32:58 AM LINDA WILSON, Deputy Director, Central Office, Public Defender Agency, Department of Administration, said she currently supervises the Family Law Section of the department, which is a section that includes attorneys who represent parents in child protective proceedings in cases that [HB 114] would affect. She said she also supervises attorneys who represent juveniles in juvenile delinquency cases. MS. WILSON stated that [the agency] supports some aspects of the bill, particularly Section 2, that would allow for PFD eligibility. She said the "spirit of Section 1," regarding retaining privileges in a relinquishment, is well intended; however, it doesn't do as much as it could. She said, "Retaining a privilege that really is not enforceable - has no teeth in it - is ... almost like false advertisement; you're telling the parent, 'You can retain a privilege, but it's non- enforceable, and you can't void the relinquishment or the adoption with it.'" She opined that it would be better to "put something in the adoption decree." She said she thinks the policy behind finality in adoption is a sound one. She clarified as follows: The fact that you maybe couldn't void the relinquishment or the adoption may be a sound policy, but I think there needs to be something in the adoption decree to require that visitation - if it's in the best interest of the child - be enforceable, so that, down the road, if the adopted parents are withholding visitation, and that's not in the child's best interest, ... a biological parent could initiate some action in the probate court that handles the adoption, to try to get that visitation that they thought they were going to get when they relinquished. 9:36:42 AM MS. WILSON turned to Section 5, regarding the expert witness. She said Section 5 would take away the qualified expert from the scene. She noted that, under the federal Indian Child Welfare Act, the state has to "put on an expert witness." To eliminate that requirement is problematic. She said Ms. Olson had previously remarked that "in cases currently, it may be stipulated." She emphasized that stipulated is different than having the court "impose it without a stipulation." She offered further details. Ms. Wilson said she thinks there are good reasons for having a qualified expert. 9:38:38 AM CHAIR SEATON said the issue before the committee is a complicated one and a subcommittee may be formed to look at the problems in more detail. 9:39:08 AM REPRESENTATIVE GARDNER asked if an attorney appointed to an absent parent, who may never have met that parent, could stipulate to an agreement to dispense with the requirement of an expert witness in the absence of the parent. 9:39:32 AM MS. WILSON said she suspects the attorney could do so, but she said she thinks there are many attorneys who would have a problem with that. 9:40:07 AM REPRESENTATIVE GRUENBERG stated that he thinks an attorney cannot stipulate on behalf of a client he/she has never met. In regard to the standard of clear and convincing evidence, he recollected that the Indian Child Welfare Act requires "proof beyond a reasonable doubt." He questioned whether grafting in state law a lessor standard of clear and convincing evidence would violate the supremacy clause. 9:40:52 AM MS. WILSON offered her belief that the standard of clear and convincing evidence has to do with the specific fact of whether or not the parent can be located. She said, "I don't think language in the statute affects the 'beyond a reasonable doubt' requirements that are in the Indian Child Welfare Act for other things that need to be determined under a 'beyond a reasonable doubt' standard." 9:41:50 AM REPRESENTATIVE GRUENBERG recommended that the Office of Public Advocacy and the Family Law Section be involved with hearings regarding [HB 114]. 9:42:07 AM CHAIR SEATON asked Representative Gatto, Gardner, Gruenberg, and Seaton to serve on a subcommittee. He said he would also take part, but Representative Gatto would chair the subcommittee. 9:43:05 AM MS. WILSON, in response to a request from Chair Seaton, said she would be available to the subcommittee, and she said she would contact the Office of Public Advocacy. 9:43:28 AM CHAIR SEATON announced that HB 114 was heard and held.