Legislature(2005 - 2006)
05/07/2005 05:45 PM FIN
Download Mp3. <- Right click and save file as
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.