Legislature(2005 - 2006)

05/07/2005 05:45 PM FIN


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* first hearing in first committee of referral
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= bill was previously heard/scheduled
                                                                                                                                
     SENATE CS FOR CS FOR SS FOR HOUSE BILL NO. 53(JUD)                                                                         
     "An Act relating to  child-in-need-of-aid proceedings; amending                                                            
     the construction of  statutes pertaining to children in need of                                                            
     aid;    relating   to    guardianships;    relating   to    the                                                            
     confidentiality   of  investigations,  court  hearings,   court                                                            
     records, 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                                                            
     proceedings regarding  voluntary relinquishment and termination                                                            
     of  a  parent  and  child  relationship,   to  eligibility  for                                                            
     permanent  fund dividends for  certain children in the  custody                                                            
     of  the state,  and  to juvenile  delinquency  proceedings  and                                                            
     placements;  reestablishing and  relating to a state  citizens'                                                            
     review  panel; amending  the obligation  of a public agency  to                                                            
     disclose  agency information  pertaining to a child  in need of                                                            
     aid;  relating  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;  relating   to  consent  for  the  medication  of                                                            
     children  in state custody;  prescribing  the rights of  family                                                            
     members   related   to   child-in-    need-of-aid   cases   and                                                            
     establishing   a familial  priority   for adoption;   modifying                                                            
     adoption and placement  procedures in certain child-in-need-of-                                                            
     aid cases;  relating to the admissibility into  evidence of the                                                            
     prior recorded  statement of a crime victim less  than 16 years                                                            
     of age; amending  Rules 9 and 13, Alaska Adoption  Rules, Rules                                                            
     3,  17.2, 18,  and 22,  Alaska Child  in Need  of Aid Rules  of                                                            
     Procedure, Rules 14  and 15, Alaska Rules of Probate Procedure,                                                            
     and Rule  801, Alaska Rules of  Evidence; and providing  for an                                                            
     effective date."                                                                                                           
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
6:40:21 PM                                                                                                                    
                                                                                                                                
REVINA  MOSS,  Staff to  Representative  John  Coghill,  the  bill's                                                            
sponsor,  accompanied  by TAMMY  SANDOVAL, Deputy  Commissioner  and                                                            
Manager,  Office  of Children  Services,  Department  of Health  and                                                            
Social Services,  characterized  this bill  as being "an example  of                                                            
excellent  committee work  and collaboration  between" the  Governor                                                            
Frank Murkowski Administration  and the Legislature. The Division of                                                            
Public  Advocacy,  the  Public  Defenders   Office,  the  Office  of                                                            
Children's Services, the  Alaska Court System, and the Department of                                                            
Law worked diligently  in the effort to develop the  bill. She noted                                                            
that Representative  Coghill has a  special interest in the  subject                                                            
of this legislation  and that interest is what spurred  his decision                                                            
to become a Legislator.                                                                                                         
                                                                                                                                
Ms. Moss  stated that  this bill  would remove  language from  State                                                            
Statute  AS  47.10.960,  which  allowed  there  to be  "no  duty  or                                                            
standard in care for children  in State custody". The intent of that                                                            
language was  to free the Department  of Health and Social  Services                                                            
from any "civil  liability if they couldn't abide  by timelines that                                                            
were  imposed by  HB  375". However,  whenever  a parent  read  that                                                            
language they  were "insulted that  they were held to a standard  of                                                            
duty for  the care  of their children  but the  State had  language"                                                            
exempting  them from that  standard. The  bill's sponsor  determined                                                            
that language  like that should not  be included in State  Statutes.                                                            
                                                                                                                                
Ms. Moss communicated  that, in addition  to this bill, three  other                                                            
bills had  been introduced  this Legislative  Session in regards  to                                                            
the Office  of Children's  Services (OCS):  Governor's bills  SB 83-                                                            
TERM.   PARENTAL  RTS/CINA/DELINQUENCY    CASES   and  SB   84-CHILD                                                            
PROTECTION CONFIDENTIALITY  which addressed making  the process more                                                            
open to the public  and voluntary relinquishment,  respectfully; and                                                            
Representative  Rokeberg's bill, HB 17-CINA; ADOPTION;  FOSTER CARE,                                                            
which "dealt  with public  disclosure of  information and a  working                                                            
relationship  between the  Legislature and  OCS in representing  the                                                            
interests of  constituents and their  children". In addition,  there                                                            
was  also the  expectation  that Representative  Mike  Chenault  and                                                            
Representative  Lesil McGuire would be introducing  OCS legislation.                                                            
                                                                                                                                
Ms. Moss  stated that arrangements  were made  for the various  bill                                                            
sponsors  to meet  with OCS  in order  to satisfy  the concerns  and                                                            
change the "system  to make it work better without  stepping on each                                                            
other or canceling each  other out". As a result, it was agreed that                                                            
HB 53 would become  an omnibus bill comprised of all  the provisions                                                            
included in other OCS legislation.                                                                                              
                                                                                                                                
Ms.  Moss  stated  that  the  overlying  goal  of  the  bill  is  to                                                            
"strengthen families".  She noted that until recently,  OCS had been                                                            
named the  Division  of Family and  Youth Services.  To that  point,                                                            
Representative  Coghill held strong convictions to  include families                                                            
in the process.  "This legislation  strengthens the rights  of adult                                                            
family  members" … it  places them  before foster  homes". It  would                                                            
require  OCS  to identify  family  members  in  order  to  determine                                                            
whether  a family  member "could  take  the child  into their  home"                                                            
after a child is taken  into State custody. The bill also contains a                                                            
family member  preference provision. For instance,  grandparents who                                                            
had previously  taken  care of a  grandchild, who  was now in  State                                                            
custody, for  12 consecutive months  could not only receive  custody                                                            
of the child,  but they could adopt the child. This  provision would                                                            
also apply to other adult family members.                                                                                       
                                                                                                                                
Ms. Moss communicated  that the bill  would specify that  efforts to                                                            
place a child  with relatives or family friends should  occur before                                                            
the  child was  placed in  the home  of a  stranger.  The bill  also                                                            
provides  that a child  should be  placed in  the least restrictive                                                             
placement in close proximity  to the parents. The bill also includes                                                            
an order of placement preference.                                                                                               
                                                                                                                                
Co-Chair Green asked which  section of the bill was being discussed.                                                            
                                                                                                                                
Ms. Moss  responded that  her recent comments  refer to language  in                                                            
Sec. 34, page  20 line 20, through  page 21 line three. Continuing,                                                             
she noted  that the  first placement  preference  would be an  adult                                                            
family member  followed by  a family friend.  "The third would  be a                                                            
foster home and last resort would be an institution."                                                                           
                                                                                                                                
Ms. Moss  voiced that rather  than explaining  the bill, section  by                                                            
section, the decision  had been made to address the  bill by subject                                                            
matter.                                                                                                                         
                                                                                                                                
Ms. Moss  informed that Sec.  13 page ten,  lines three through  18,                                                            
would  require that  OCS endeavor  to  provide parental  and  family                                                            
visitations for the children.  The family must be notified as to the                                                            
reason a visitation was  denied, were that the OCS decision. In that                                                            
case, the family  must also be informed  that they had a  right to a                                                            
hearing in the matter.                                                                                                          
                                                                                                                                
Ms. Moss explained  that Sec. 4, page three, line  nine through page                                                            
four line  17, and  Sec. 17 page  12 line two  through page  14 line                                                            
four,  "place into  Statute voluntary  relinquishments  of  parental                                                            
rights"  with  the   ability  to  retain  certain   things  such  as                                                            
visitation  rights or written communication  with the child.  Again,                                                            
were OCS to deny the voluntary  relinquishment, they must notify the                                                            
parent as  to the reason  and alert  them to their  right to  have a                                                            
hearing.                                                                                                                        
                                                                                                                                
Co-Chair  Green   asked  the  reason   for  there  being   "parallel                                                            
references" in these sections.                                                                                                  
                                                                                                                                
Ms. Moss responded  that Sec. 4 would address adoption  law and Sec.                                                            
17 would  address the Alaska  Child in Need  of Aid (CINA)  Rules of                                                            
Procedure law.                                                                                                                  
                                                                                                                                
Ms. Moss  explained that  Sec. 37  page 21 line  23 through  page 24                                                            
line three,  would clarify "that poverty  by itself is not  a reason                                                            
to deny placement  with relatives". This section would  also specify                                                            
that parental  rights  could not be  terminated  due to OCS  ordered                                                            
treatment not being received  by the parent. At times that treatment                                                            
might not be  available and at times,  even without such  treatment,                                                            
the parent "is able to  straighten out their lives". However, were a                                                            
parent  not to  get treatment  and not  to change  their  lifestyle,                                                            
other reasons to terminate parental rights would come into play.                                                                
                                                                                                                                
Ms. Moss  noted that the  bill would "encourage  OCS to train  their                                                            
foster parents  to be mentors". While  numerous letters from  foster                                                            
parents  had been  received  in opposition  to this  provision,  the                                                            
language was included as  permissive rather than mandatory language.                                                            
OCS  would  have the  responsibility  of  identifying  which  foster                                                            
parents  would  be good  mentors.  She  characterized  the  language                                                            
included in the Judiciary  committee substitute before the Committee                                                            
as "compromise"  language, in order  to address those situations  in                                                            
which the foster  family might also be the adoptive  parents, as, in                                                            
such  a  case,  "there  was  no  incentive  for  them  to  encourage                                                            
visitation  with the biological  parents".  The Judiciary  Committee                                                            
language  in this bill  would allow  for that  situation, but  would                                                            
also promote placing  a child with a foster or adoptive  family with                                                            
a mentor who  would encourage visitation  and reunification  for the                                                            
child and the parents.                                                                                                          
                                                                                                                                
6:49:56 PM                                                                                                                    
                                                                                                                                
Ms. Moss  informed the Committee  that language  in Sec. 15  page 11                                                            
lines one through  11 would change "the definition  of major medical                                                            
treatment to  include medication used  to treat and diagnose  mental                                                            
health disorder".  She opined that  "OCS has done a fairly  good job                                                            
of trying  to do this  anyway", but Representative  Coghill  desired                                                            
that  language  be placed  in  Statute  that  would require  OCS  to                                                            
consult with the parents  and receive their permission to administer                                                            
mental health  disorder medication to children in  OCS custody. Were                                                            
OCS  to  determine  that the  parents  had  "unwisely  denied"  such                                                            
medicine administration, the matter could be taken to Court.                                                                    
                                                                                                                                
Co-Chair   Green  asked   for  further  clarification   as   to  the                                                            
circumstances to which this provision would apply.                                                                              
                                                                                                                                
Ms.  Moss responded  that  this  would apply  to  a child  in  State                                                            
custody  to whom  OCS  has determined  that  medication  for  mental                                                            
disorder  should   be  prescribed.  Parental  permission   would  be                                                            
required in  order to administer that  medication. This would  occur                                                            
prior to termination of parental rights.                                                                                        
                                                                                                                                
Ms. Moss  stated that Sec.  10 page six line  18 through page  seven                                                            
line 24  would further  the process' transparency  by opening  court                                                            
proceedings  to  the  public.  Sideboards  to  the  proceedings  are                                                            
specified  so that a  Judge could  order the  proceedings closed  in                                                            
situations  where  a child  might  "be  stigmatized  or emotionally                                                             
damaged, if it would interfere  with a criminal investigation, or if                                                            
the disclosure would violate State or federal law".                                                                             
                                                                                                                                
6:52:04 PM                                                                                                                    
                                                                                                                                
Ms.  Moss continued  that  the first  order  of business  in a  CINA                                                            
hearing  proceeding  is that  the Judge  would issue  an order  with                                                            
complete  instructions   as  to  how  the  hearing  would   operate;                                                            
including what  information a person could or could  not disclose to                                                            
the public.  No information  could be provided  that would  identify                                                            
"in  any  way"  who  the  involved  parties  were.  Were  the  Court                                                            
instructions disobeyed,  the Judge could impose sanctions that could                                                            
include prohibiting  a person from  attending another CINA  hearing,                                                            
regardless of who the parties were.                                                                                             
                                                                                                                                
Ms. Moss stated that language  in Sec. 28, page 19 lines one through                                                            
11 would  require the Department  to provide  each parent a  copy of                                                            
the grievance  procedures.  A supervisor  would review  the case  in                                                            
which a grievance was filed  in objection to the manner in which OCS                                                            
was handling a case. Were  the supervisor to determine that the case                                                            
was being  handled properly,  the parent  could further petition  to                                                            
the new State  Review Panel that would be established  by this bill.                                                            
                                                                                                                                
Ms.  Moss  informed   that,  in  addition  to  conducting   hearings                                                            
regarding complaints  against OCS,  the State Review Panel  would be                                                            
responsible  with  adopting  policy and  procedures  by regulation.                                                             
Reports would  be compiled "about  how OCS was operating"  including                                                            
what  their  "good"  and  "bad"  points  were,  and  what  potential                                                            
legislation might be considered in the future.                                                                                  
                                                                                                                                
Ms. Moss stated  that a component  of the aforementioned  Governor's                                                            
bills is  included in Sec.  27, page 17, lines  26 through  page 18,                                                            
line 31. This  section would establish provisions  that would "allow                                                            
OCS  to  disclose  confidential  information  to  the  public  under                                                            
certain circumstances". Disclosure is currently prohibited.                                                                     
                                                                                                                                
6:54:36 PM                                                                                                                    
                                                                                                                                
Ms. Moss  continued that  this Section would  allow disclosure  when                                                            
"the parents  have disclosed information  about OCS's participation                                                             
in a case;  it would allow  disclosure when  a perpetrator  has been                                                            
charged with  a crime; and it would  allow disclosure when  a report                                                            
of harm has resulted in  a death or near-death fatality" of a child.                                                            
She noted that  this Section was amended in the Judiciary  Committee                                                            
in order to assure that  "the release of information was kept at top                                                            
level   of  management"   by   either   the  Commissioner   or   the                                                            
Commissioner's  designee  of the  Department  of Health  and  Social                                                            
Services or the Department of Administration.                                                                                   
                                                                                                                                
Ms.  Moss   stated  that   this  legislation   would  also   further                                                            
Legislators' desire  that as many interviews "as possible"  with the                                                            
child be audio or video  taped. Mandatory videotaping is required of                                                            
suspected  victims  of  sexual abuse.  Child  Advocacy  Centers  are                                                            
defined  in relation to  this endeavor  because it  is not,  of yet,                                                            
defined in  State Statute.  The bill would  also establish  criteria                                                            
for schools  when interviewing children  at school and would  direct                                                            
OCS to  work with  law  enforcement and  schools  to establish  such                                                            
procedures.                                                                                                                     
                                                                                                                                
Ms. Moss stated that language  in Sec. 59 page 31 lines four through                                                            
24 was amended in the Judiciary  Committee to allow for a Court rule                                                            
change "that would allow  videotape interviews of children under the                                                            
age of 16 in  criminal investigations  to be admissible in  Court as                                                            
evidence  under  certain  circumstances".   Those  conditions  would                                                            
include that  "the recording was made  prior to the proceeding;  the                                                            
victim be available  for cross-examination;  the prosecutor  and any                                                            
attorney  representing  the  defendant  were  not present  when  the                                                            
statement  was taken;  recording must  be both  visual and  audible;                                                            
each  person  participating  in  the  taking  of  the  statement  is                                                            
identified on  the recording; videotaping was taken  in avoidance of                                                            
undue influence  of the victim;  the defense  has been afforded  the                                                            
opportunity  to observe the tape,  and the Court had an opportunity                                                             
to view the tape and deem it reliable and trustworthy".                                                                         
                                                                                                                                
Co-Chair  Green voiced  concern to  Sec. 59. In  recognition  of the                                                            
fact that observers would  be prohibited, she asked how many times a                                                            
recording  could be conducted  and specifically  whether  rehearsals                                                            
would be prohibited.                                                                                                            
                                                                                                                                
Ms. Moss responded that, "it would prohibit rehearsal".                                                                         
                                                                                                                                
Co-Chair Green asked for further confirmation.                                                                                  
                                                                                                                                
Ms. Moss  stated  that the  intent of  the legislation  would be  to                                                            
promote the  audio and video taping  of all interviews. There  would                                                            
not be  an opportunity  to  rehearse. The  Department  of Law  could                                                            
provide further testimony in this regard.                                                                                       
                                                                                                                                
Co-Chair Green  asked whether all the recordings would  be available                                                            
for the Court hearing.                                                                                                          
                                                                                                                                
Ms. Moss  affirmed  that had "all"  of the  aforementioned  criteria                                                            
been adhered to, the answer would be "yes".                                                                                     
                                                                                                                                
Co-Chair  Green asked  whether a hearing  officer  or a judge  would                                                            
view this information.                                                                                                          
                                                                                                                                
Ms. Moss specified that a Judge would view it.                                                                                  
                                                                                                                                
Co-Chair  Green understood  therefore that  a Judge, rather  than "a                                                            
Trial by Jury  or a panel of regular  people", would be viewing  the                                                            
information.                                                                                                                    
                                                                                                                                
Ms. Moss deferred  to the Department of Law to provide  the specific                                                            
information being sought.                                                                                                       
                                                                                                                                
Due to  time constraints,  Co-Chair Green ordered  the bill  HELD in                                                            
Committee.                                                                                                                      
                                                                                                                                

Document Name Date/Time Subjects