Legislature(2003 - 2004)

02/09/2004 01:39 PM Senate HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
             SB 288-EMERGENCY CHILD CUSTODY PLACEMENT                                                                       
                                                                                                                                
MS. JACQUELINE  TUPOU, staff to  Senator Lyda Green,  presented SB
288 on  behalf of  the sponsor.   Current  state law provides  for                                                              
the  court  to determine,  within  48  hours  of [a  child]  being                                                              
removed  from the home,  that there  is probable  cause to  remove                                                              
the child  from the  home; however,  the [courts]  can use  varied                                                              
language  when making  that  determination.   Federal  law  states                                                              
that the  judge, in his/her findings,  has to use the  phrase that                                                              
staying in  the home is  "contrary to the  welfare" of  the child.                                                              
If  that  doesn't  occur,  "we could  have  problems  getting  our                                                              
federal money  from the  government."  This  bill puts  the system                                                              
in  place  so that  the  judge  has  to determine  whether  it  is                                                              
contrary to the  welfare of the child  to remain in the  home.  It                                                              
is  estimated  that if  this  legislation  passes, there  will  be                                                              
$500,000 in federal Title IV-E receipts in FY 05.                                                                               
                                                                                                                                
SENATOR  GREEN moved  the [proposed]  CS [version  D, labeled  23-                                                              
LS1567\D, Mischel, 2/5/04] for purposes of discussion.                                                                          
                                                                                                                                
CHAIR DYSON asked  if there was any objection.   There being none,                                                              
version D was before the committee as the working document.                                                                     
                                                                                                                                
SENATOR GREEN  explained that  the first word  of the  sentence on                                                              
the last  line on  page 1  [line 14],  should be  "At" instead  of                                                              
"After".                                                                                                                        
                                                                                                                                
MS.  MARCIE  KENNAI, Deputy  Commissioner,  Office  of  Children's                                                              
Services,  DHSS,   testified  that   SB  288  is  very   important                                                              
regarding federal  Title IV-E dollars  coming into the state.   If                                                              
this language  is not in the court  order at the first  hearing, a                                                              
child is  not [Title]  IV-E eligible.   That  affects the  child's                                                              
eligibility  for foster  care and  also for  an adoption  subsidy,                                                              
                                                                 th                                                             
which means that  a child could be  "general fund through his  18                                                               
birthday."   Another point is that  the judge has  the opportunity                                                              
at the very first  hearing to tell parents "it is  contrary to the                                                              
welfare  of your  child" if  he/she stays  at home  at this  time.                                                              
Aside  from the  positive revenue  to  be achieved  from this,  it                                                              
also gives a very clear message to the biological parents.                                                                      
                                                                                                                                
CHAIR  DYSON  stated,  for  the  record,  that  he  and  his  wife                                                              
currently  do not have  any foster  children.   However his  three                                                              
children  have   four  foster  children   today  that   involve  a                                                              
subsidized guardianship,  so it may  be that his immediate  family                                                              
receives funds under this.                                                                                                      
                                                                                                                                
SENATOR GUESS  asked if the language  was more or  less stringent,                                                              
and wondered what the changes would be mean in court.                                                                           
                                                                                                                                
2:03 p.m.                                                                                                                       
                                                                                                                                
DEPUTY COMMISSIONER  KENNAI responded  that she didn't  think this                                                              
would  change  much for  the  court.    If the  first  hearing  is                                                              
continued  and the  judge  has not  made the  finding  that it  is                                                              
contrary to the welfare  of the child to remain in  the home, this                                                              
automatically  makes   the  child  ineligible  for   [Title]  IV-E                                                              
reimbursement.   Hopefully  judges  are not  removing children  or                                                              
giving permission  to remove children  from the home unless  it is                                                              
contrary  to the  welfare of  the child  to remain  at home.   She                                                              
said  that the  practice  is already  happening,  but the  federal                                                              
requirement  is stringent  about the  language  being included  in                                                              
the very first court order.                                                                                                     
                                                                                                                                
CHAIR  DYSON then  referred  to a  publication  he  had worked  on                                                              
several years ago  advising parents of their rights  and providing                                                              
information  about the  process; he  asked if  those efforts  were                                                              
still being continued.                                                                                                          
                                                                                                                                
DEPUTY COMMISSIONER KENNAI confirmed this to be so.                                                                             
                                                                                                                                
CHAIR DYSON  said this departmental  effort was important  because                                                              
a parent  who loses  a child needs  to know what  is going  on and                                                              
what his/her  rights are.   He mentioned  that in her  former life                                                              
[Deputy  Commissioner   Kennai]  probably   worked  with   similar                                                              
statutes, and  referred to page 1,  lines [8 and] 9,  "the child's                                                              
parents or guardian,  if they can be found, shall  be permitted to                                                              
be  present."    He  said he  reacted  to  the  word,  "permitted"                                                              
because of  course the parents should  be present.   He considered                                                              
deleting  "permitted" but  then re-considered  the situation  of a                                                              
child who has  been assaulted or traumatized by  the birth parents                                                              
and asked,  "What is the situation  under which the  parents might                                                              
not be  permitted to be  there.  What  process would the  judge go                                                              
through to exclude the parents from being there?"                                                                               
                                                                                                                                
DEPUTY  COMMISSIONER KENNAI  responded,  "I don't  think there  is                                                              
ever  a  case where  the  parents  aren't  permitted."   She  said                                                              
sometimes  the  parents cannot  be  found,  are  in jail,  or  are                                                              
unable to attend the hearing.                                                                                                   
                                                                                                                                
CHAIR DYSON asked, "And the child is normally not present?"                                                                     
                                                                                                                                
DEPUTY COMMISSIONER  KENNAI said this depends on  the child's age.                                                              
Children are generally  present unless the child is  too young, or                                                              
cannot understand.                                                                                                              
                                                                                                                                
CHAIR DYSON asked, "Who makes that decision?"                                                                                   
                                                                                                                                
DEPUTY  COMMISSIONER  KENNAI said,  "I  believe our  workers  make                                                              
that decision."                                                                                                                 
                                                                                                                                
CHAIR DYSON asked,  "If the child was able to understand,  and had                                                              
allegedly  been  assaulted  by  the   parents,  and  it  would  be                                                              
traumatic  for  them to  be  confronted  with their  abuser,  what                                                              
happens?"                                                                                                                       
                                                                                                                                
DEPUTY  COMMISSIONER KENNAI  responded  that  sometimes the  judge                                                              
sees  the child  in [the]  chambers.   Often the  children can  be                                                              
kept separated from  the parents until it's time for  the child to                                                              
go in, if  the judge wants to  see the child.  Every  situation is                                                              
different.    Generally, if  a  parent  has assaulted  the  child,                                                              
he/she is in  custody.  "Of course  we will keep the  child safe,"                                                              
she added.                                                                                                                      
                                                                                                                                
CHAIR DYSON  asked if deleting the  word "permitted" would  do any                                                              
harm to the statute.                                                                                                            
                                                                                                                                
SENATOR GREEN  commented that  this would  imply that parents  are                                                              
being  required to  be  there because  it  would  read, "shall  be                                                              
present" and  parents may not want  to be present.  She  said this                                                              
requirement  would  set  a different  parameter,  whereas  current                                                              
statute  implies that  it's a  choice.   She said,  "I don't  even                                                              
know that  you'd want  a parent there  if they  didn't want  to be                                                              
there."                                                                                                                         
                                                                                                                                
MS. TUPOU  informed members that  it had been relayed  anecdotally                                                              
that, sadly enough,  most of the parents don't want  or care to be                                                              
present.  She  pointed out that the  desire was not to  hinder the                                                              
process by requiring parents to be present.                                                                                     
                                                                                                                                
CHAIR  DYSON commented  that it  was  probably the  flavor of  the                                                              
language.   He said he  preferred "shall  be allowed to  be there"                                                              
rather than  "permitted" and  said, "I am  not going to  mess with                                                              
it.  I can assure  you that most of the parents  won't have looked                                                              
at the statute."                                                                                                                
                                                                                                                                
DEPUTY  COMMISSIONER KENNAI  said  that when  parents don't  come,                                                              
that  is  often the  reason  why  the judge  continues  the  case;                                                              
that's when  you don't get  these "contrary to welfare"  findings.                                                              
Most often, that  has been the problem.  At the  first hearing the                                                              
parents  may  not  show  up and  the  court  continues  the  case.                                                              
Unfortunately this  means that if  the judge has not  very clearly                                                              
stated that it is  contrary to the welfare of the  child to remain                                                              
in that  home, then  the child  is not  eligible for [Title]  IV-E                                                              
funds.                                                                                                                          
                                                                                                                                
CHAIR DYSON  asked if  in her former  life she  ever had  a parent                                                              
who thought  that the state took  custody when [the  state] should                                                              
not have.                                                                                                                       
                                                                                                                                
DEPUTY COMMISSIONER KENNAI said yes.                                                                                            
                                                                                                                                
CHAIR  DYSON said  that  interestingly  enough he  has  not had  a                                                              
single call  like that  since "you've been  here," noting  that he                                                              
didn't know if there was any cause and effect relationship.                                                                     
                                                                                                                                
DEPUTY  COMMISSIONER KENNAI  said  she would  like  to think  that                                                              
there was, but it is still [indisc.].                                                                                           
                                                                                                                                
CHAIR DYSON asked how long she had been on the job.                                                                             
                                                                                                                                
DEPUTY  COMMISSIONER KENNAI  responded,  "almost  six months,  not                                                              
quite."                                                                                                                         
                                                                                                                                
CHAIR DYSON  asked how many  kids the state  has taken  custody of                                                              
during that period of time.                                                                                                     
                                                                                                                                
DEPUTY  COMMISSIONER   KENNAI  said  that  since   September,  she                                                              
doesn't know; daily  and yearly counts are maintained.   She asked                                                              
for that  data from [an unidentified  person in the  audience] who                                                              
also didn't know the answer.                                                                                                    
                                                                                                                                
CHAIR  DYSON  asked  if  there  were   any  further  questions  or                                                              
comments.    There  being  none, he  said  he  would  entertain  a                                                              
motion.                                                                                                                         
                                                                                                                                
SENATOR GREEN moved  to report the CS for SB 288  out of committee                                                              
with  individual  recommendations   and  the  accompanying  fiscal                                                              
note.                                                                                                                           
                                                                                                                                
CHAIR  DYSON asked  if  there were  any  objections.   Seeing  and                                                              
hearing none, it was so ordered.                                                                                                

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