Legislature(2005 - 2006)CAPITOL 106

03/01/2005 08:00 AM STATE AFFAIRS

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Bill Postponed
Heard & Held
Moved CSHB 116(STA) Out of Committee
Heard & Held
Scheduled But Not Heard
Bills 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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                          

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