Legislature(2007 - 2008)BUTROVICH 205
03/31/2008 01:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB179 | |
| HB319 | |
| HB354 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 354 | TELECONFERENCED | |
| + | SB 179 | TELECONFERENCED | |
| + | HB 319 | TELECONFERENCED | |
HB 354-CHILD IN NEED OF AID/ADOPTIONS
2:14:23 PM
CHAIR DAVIS announced consideration of HB 354. [Before the
committee was CSHB 354(JUD).]
RYNNIEVA MOSS, Staff to Representative Coghill, presented an
overview of HB 354 She explained that the bill started at the
request of Office of Children's Services (OCS) and the
Department of Law (DOL) to clarify some practices that were
being performed by OCS; it grew to address a constituent issue
and a concern that Representatives Gara and Coghill shared.
Sections 1 and 2 addressed a constituent concern. An 18 year old
in Fairbanks had been raised by a stepfather [who wished to
adopt him] and had never met his biological father; but there
was a contradiction in the law and because he wasn't 19, he was
required to try to locate and provide legal notice to the
father. This bill attempted to bring 2 sections of law together
on notification so that an 18 year old could be adopted without
trying to find a missing parent.
Section 3 transferred from the commissioner to the department,
the authority to adopt regulations to set the amount and [length
of] time that a subsidy for a hard-to-place child could be
granted. Under the current language it could be disputed that,
even if a child had no special needs, the department would be
required to pay a subsidy. This clarified that if there were no
special needs, it could be deferred to a later date. It also
corrected disparities so that every child would be treated
equally.
Section 4 clarified that if public officials or their employees
disclosed confidential information that was released to them
under HB 53 they could be charged with and convicted of a
misdemeanor.
Sections 5 and 7 would allow OCS to adjust child support orders
[for minors in state custody] in Child in Need of Aid (CINA) and
delinquent minor cases, through administrative order so they
would not have to go to court each time they had to adjust a
support order.
Section 6 rolled in HB 377, which made it very clear that the
state could be held civilly liable for the actions of an
employee when it resulted in the death or injury of a child in
state custody.
Finally there was an immediate effective date clause.
SENATOR DYSON asked under what circumstances a person would want
or need to adopt a child at 18.
MS. MOSS answered that in this case the 18 year old was very
close to the stepfather and wanted to carry his name.
SENATOR DYSON suspected that some high needs people might be
adopted by caring stepparents for the purpose of providing other
family benefits such as insurance.
MS. MOSS advised Senator Dyson that they had had this
conversation with Department of Law and that Jan Rutherdale was
present to answer questions. She also assured him that other
sections of the law would apply to protect special needs
individuals from abuse.
SENATOR DYSON was surprised by language on page 2, line 20,
which referred to "the spouse of the person to be adopted" and
asked under what circumstances that might come in to play.
2:19:51 PM
JAN RUTHERDALE, Assistant Attorney General, Civil Division,
Child Protection Section, Department of Law, Juneau, AK, asked
Senator Dyson to confirm that his question was under what
circumstances a spouse would need to consent to the adoption.
SENATOR DYSON explained that he was trying to understand what
circumstances would create a situation in which a child needing
adoption might have a spouse.
MS. RUTHERDALE responded that this bill was not limited to
children; the rules would apply to anyone who wanted to be
adopted. She guessed that, if the 18 year old in Ms. Moss'
example were married, the spouse would have to consent because
it would affect the laws of intestate succession and that sort
of thing.
SENATOR DYSON asked if there was an age limit on adoption in
present law.
MS. RUTHERDALE answered "No."
SENATOR DYSON related a hypothetical situation in which a man 89
was hospitalized for some months, drifting in and out of coma,
and eventually asked his young nurse to marry him. When he died,
his heirs were surprised to find he had married and that she
would inherit his substantial estate. It was later discovered
that her romantic partner was the doctor who had been
administering the medication to her elderly husband. He asked
what would keep a person with a substantial estate from adopting
someone under similar circumstances.
MS. RUTHERDALE said the short answer was "Nothing." But if a
person had a guardian, under AS 25.23.040(b) the court could
allow a petition to adopt only if there were written consent of
the adult, the adult's spouse and the guardian or conservator.
SENATOR DYSON agreed that should cover the situation. He
continued that he was surprised they were allowing a state
employee involved in a child's care to be sued under common-law
negligence.
MS. RUTHERDALE replied that subsection (b) clarified what
already existed in law. This would not change anything. What
would become Section (a) made clear that there would be no
statutorily-based liability under...
MS. MOSS interjected that it might help to provide Senator Dyson
with some history of this matter. She explained there had been a
disagreement on this matter in the Department of Law itself, as
to what the state's liability was. This would clarify that if a
child was injured or died while in state custody because of the
actions of a state employee, the state would clearly be civilly
liable.
SENATOR DYSON pointed out that it did not say in the bill
"because of the actions of the employee," it just said "on
behalf of a child who is injured or dies while in" and said he
would like a short discussion of the differences between gross
negligence, criminal negligence, negligence and common-law
negligence.
MS. RUTHERDALE wanted to qualify that her expertise was not in
tort law. She knew that Gail Voigtlander did have experience in
that area and offered to contact her.
SENATOR DYSON said he would be satisfied with what she could
remember from law school.
MS. RUTHERDALE said that certainly gross negligence was more
serious than regular negligence and rose to the criminal level;
so if a person drove drunk, had a car accident and killed
someone, that person might be liable for manslaughter.
SENATOR DYSON added that as he remembered, it became negligence
when an ordinary person using common sense would have known that
it was a dangerous activity.
MS. RUTHERDALE agreed it was a "reasonable person" standard.
2:27:25 PM
SENATOR DYSON conjectured that if a child in the custody of the
state was placed outside the home and was subsequently injured,
common-law negligence would apply against the case worker if a
reasonable person would have said that was a dumb place to put
the child.
MS. RUTHERDALE confirmed that it would have to be something a
reasonable person would have foreseen could be harmful.
SENATOR ELTON thought they had taken care of the situation in
which a state employee committed a misdemeanor if they revealed
confidential information.
JAN RUTHERDALE agreed that they had; this bill made clear that
it was only the release of information that made it a
misdemeanor. The criminal sanctions were limited to the
disclosure of confidential information.
SENATOR ELTON asked for clarification regarding what types of
disclosure constituted a misdemeanor. He questioned whether
someone who disclosed information to a legislator while
reporting a problem would be guilty of a misdemeanor.
MS. RUTHERDALE said no, the way it worked was that ordinarily
under AS 47.10.093, a state employee could not reveal any
information in a file; but a statutory exception was created in
AS 47.10.092, which allowed an OCS employee to release
information to a legislator or ombudsman who requested it to
assist with an investigation. The logic behind that was, if a
parent came to a legislator and said "look at what is happening
with my case" that parent had essentially waived the privacy
interest.
2:32:06 PM
SENATOR THOMAS moved to report committee substitute for HB 354,
Version \M, from the committee with individual recommendations
and accompanying fiscal notes. There being no objection, CSHB
354(JUD) moved from committee.
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