Legislature(2005 - 2006)BUTROVICH 205
02/14/2005 01:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB83 | |
| SB82 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 83 | TELECONFERENCED | |
| *+ | SB 82 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 83-TERM. PARENTAL RTS/CINA/DELINQUENCY CASES
CHAIR DYSON announced SB 83 to be up for consideration.
1:34:29 PM
STACIE KRALY, Senior Assistant Attorney General, Department of
Law (DOL) thanked the committee for the opportunity to present
SB 83. SB 83 relates to child protection systems. Specific
provisions include a proposal to amend AS 25.23.180 to permit
parents to relinquish their parental rights while retaining
certain privileges such as ongoing communication and visitation.
SB 83 adds language to AS 43.23.005 which allows for children
placed temporarily outside of the State of Alaska, but who are
in custody through either the Office of Children's Services
(OCS) or the Division of Juvenile Justice (DJJ), to maintain
their eligibility to receive their Permanent Fund Dividend
(PFD).
1:36:45 PM
CHAIR DYSON asked Ms. Kraly if she was referring to Section 2.
MS. KRALY answered yes. Sections 3 and 4 of SB 83 provide
language to AS 47.10.020, which clarifies the existing law to
allow OCS to obtain writ of assistance from the courts in
investigating reports of harm in other child related matters.
The second component of the section clarifies that the DOL or
OCS is not required to obtain authorization from the court prior
to initiating an investigation on a report of harm.
CHAIR DYSON asked if the clarification involves getting a
warrant.
MS. KRALY answered yes.
1:38:31 PM
MS. KRALY said Sections 5 and 6 would allow the DOL to dispense
with some of the evidentiary formalities in a court hearing and
would allow the DOL to create an offer of proof to the court
that it would be contrary to the welfare of the child to be
returned to an absent parent. Section 5 creates a limited
evidentiary premise for absent and unlocateable parents.
1:40:10 PM
The final provision of SB 83 relates to amending the term of
mental health professional to allow an out of state professional
to testify on behalf of an Alaskan child who is placed out of
state, but who is in state custody.
SENATOR OLSON joined the committee at 1:41.
1:41:56 PM
SENATOR GREEN asked Ms. Kraly to describe the out of state
facilities where children are being placed.
MS. KRALY said the placement facilities are out of state
residential psychiatric treatment facilities. They are the types
of residential secure facilities that do not currently exist in
Alaska.
SENATOR GREEN mentioned her concern about the acceptability of
allowing out of state mental health professionals to testify on
behalf of Alaskan children.
MS. KRALY said if a child has been at an out of state facility,
the professionals at that facility probably know the child best,
but under the current law, they cannot testify on behalf of that
child in Alaska as an expert witness.
1:43:52 PM
SENATOR GREEN said eliminating the requirement of a committee
referral might affect the state's ability to independently
assess whether or not these children should return to Alaska.
She said that she was concerned about deferring this ability to
an out of state organization that has an interest in maintaining
it's cliental.
MS. KRAILY said this statutory change would only relate to those
children who are in state custody. The OCS goes through a
thorough process to make a determination that a child needs
secure residential psychiatric treatment. Then the superior
court must approve the placement of that child after it reviews
expert testimony on the case. By statute, every 90 days the
child must come back before the superior court for an additional
review.
SENATOR GREEN asked whether a child who leaves Alaska falls
under Medicaid after 90 days.
MS. KRAILY answered they do.
SENATOR GREEN remarked the state put children on Medicaid and
children in state custody in the same classification; so it
should not make any difference whether a child starts out in
state custody and ends up on Medicaid. She asked if this bill
would affect children on Medicaid.
MS. KRALY answered no. It would require an internal review
within the DOL to ensure the child still meets medical necessity
to maintain Medicaid payments.
SENATOR GREEN remarked that review boards in other states do not
have the same committee concept of Alaska and this has created
difficulties. She said that she wants to be sure that this bill
does not further contribute to these difficulties.
MS. KENNAI, Department of Health and Social Services (DHSS) said
SB 83 only refers to children under custody, who consequently
have been through a long review process. The bill does not refer
to private-pay children at all.
1:49:47 PM
SENATOR ELTON asked the jurisdiction of a child placed out of
state transfers to the new state if the parent or guardian of
the child leaves the state. He noted under the provisions of the
Permanent Fund Dividend statutes, one must demonstrate one's
intent to return to the State of Alaska and it would be
difficult for a parent or guardian who leaves the state to
demonstrate their child's intent to return.
MS. KENNAI said no, the child is in the custody of the State of
Alaska. If a parent moves out of state and the child returns to
the State of Alaska, a hearing is held to either reunify the two
or to relinquish custody. In either case, the PFD trust follows
the child.
SENATOR ELTON said it seems that if the state relinquishes
custody and there is no one in the state for whom to assign
custody, the child may be released to someone outside the state.
1:53:05 PM
MS. KENNAI acknowledged that although it could happen, it would
only happen rarely. In any event a permanent fund dividend in
trust for that child would go wherever that child goes.
CHAIR DYSON asked if Section 2 is subject to a best interest
finding by the court.
MS. KRALY answered yes. It is also subject to a determination by
the foster or adoptive parent.
CHAIR DYSON referred to the last sentence of Section 1 and asked
Ms. Kraly to clarify what the language means.
MS. KRALY said it means that a parent's failure to utilize a
certain privilege is not sufficient to invalidate his
relinquishment.
1:55:53 PM
CHAIR DYSON said he reads it to say the relinquishment may not
be withdrawn or invalidated.
MS. KRALY advised she would look at it again.
SENATOR GREEN asked, "In the decision making of best interest,
do you open yourself to determinations, appeals, and lawsuits
from a parent who is not pleased with the court's best interest
findings?"
MS. KRALY admitted it was always a possibility and added the
parent has a right to appeal a decision by the court. The
current status of the law says you can have no conditional
relinquishments. She noted that there are not very many appeals
for relinquishment rulings.
1:59:17 PM
SCOTT CALDER, Fairbanks resident, stated his concern that the
term relinquishment is used in such a way that it makes the
process seem voluntary despite other language in the bill which
indicates that it is not always voluntary. He said that the
language of the bill conflicts with the 4th amendment rights of
children and parents since it allows seizure without due
process. He suggested replacing the term "reasonable search"
with "diligent search" on page 2, section 5, lines 7 to 10. He
suggested including an explicit definition of the word
"diligent" in the bill.
2:04:49 PM
CHAIR DYSON asked whether the term "diligent" is a term of art
in the legal field.
MS. KRALY answered it is not.
The premise through which the department can establish
proceeding against an absent parent through the court
rules is very prescribed. There are due process
requirements for those kinds of proceedings. We have
to provide notice to parents and relatives. If we are
looking for a termination prescription we have to file
a petition with the court. We make extraordinary
efforts to find parents and if we can't find them,
then per the Civil Rules, we must conduct a diligent
inquiry. We file an affidavit with the court and ask
the court for permission to provide service by
publication, which is authorized under Civil Rule 4 of
the Code of Civil Procedure rules. If the parent is
still not found after publication, we provide the
court with an affidavit of diligent inquiry to
establish that the parent is not locatable. This would
include an affidavit from the social worker involved
in the case, a department paralegal, a department
attorney, who will indicate that they have worked with
child enforcement, the state troopers, the department
of corrections, the local police, et cetera. We have
to present all of that to the court before the court
will agree that the parent is unlocateable. It's not a
term of art, but a reasonable search is not just a
social worker saying, "Well, we can't find them", or
an attorney standing up and saying, "We can't find
them" We have to go through a very thorough process
through the civil rules to establish that.
2:07:13 PM
CHAIR DYSON asked whether that was established in Alaska court
rules.
MS. KRALY answered it was established in the Child In Need of
Aid (CINA) and Civil Rules.
MR. CALDER agreed with the aforementioned explanation and asked
if there could be some reference made to it in SB 83.
CHAIR DYSON advised he would send a note with SB 83 so that the
Judiciary Committee could consider it.
2:08:57 PM
BETTY ROLLINS, Fairbanks resident, testified in agreement with
Mr. Calder. She expressed concern with Section 1 and asked if it
negated case law that says the child shall become a stranger to
the biological family. She shared Senator Dyson's hesitation
over the last section because it has no teeth. She disagreed
with the assertion in section 4 saying the court would order an
investigation, since she has never seen a court order any type
of investigation.
2:10:06 PM
SENATOR WILKEN moved SB 83 out of committee with individual
recommendations and zero fiscal note. There being no objections,
the motion carried.
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