Legislature(2005 - 2006)BUTROVICH 205
02/16/2005 01:30 PM HEALTH, EDUCATION & SOCIAL SERVICES
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* first hearing in first committee of referral
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SB 82-CHILD PROTECTION INTERVIEW/TRANSPORT CHAIR FRED DYSON announced SB 82 to be up for consideration and asked for a motion to adopt proposed Amendment 1. 1:35:14 PM SENATOR WILKEN moved Amendment 1 and objected for discussion purposes. STACIE KRALY, senior assistant attorney general, Department of Law (DOL), explained the reason the DOL proposed the amendment stemmed from the fact that "forensic interview" was not defined in the original bill. Amendment 1 provides that it is a specialized kind of interview that is employed by advocacy centers to elicit information for use in criminal or civil court proceedings. 24G-1 A M E N D M E N T 1 HEALTH EDUCATION AND SOCIAL SERVICES COMMITTEE TO: SB 82 Page 1, line 8, following "cause": Insert ", as documented by the department, " Page 2, following line 14: Insert the following new material: "(2) "forensic interview" means a structured interview that employs objective and age-appropriate questioning techniques to elicit accurate and reliable facts that may be used in court proceedings;" Page 2, line 15: Delete "(2)" Insert "(3)" CHAIR DYSON read the proposed change on page 1, line 8, and commented that the wording needed further clarification so the amendment would be conceptual. 1:36:25 PM CHAIR DYSON noted the objection was withdrawn and [conceptual] Amendment 1 was adopted. CHAIR DYSON recalled a question about the immunity section on page 2, paragraph (e), and asked Ms. Kraly to comment. MS KRALY recapped saying the discussion on Monday related to the scope of the immunity provision stated on page 2, lines 5-8. After much discussion, the Department of Law (DOL) and the Office of Children's Services (OCS) decided that the entire paragraph could be removed. CHAIR DYSON remarked it would revert to the standards in Title 9. MS. KRALY agreed that it reverts to the general immunity provisions under Title 9. 1:38:20 PM CHAIR DYSON moved to remove paragraph (e) from page 2, line 5 and subsequently renumber the paragraphs. Hearing no objection, Amendment 2 was adopted. CHAIR DYSON referenced the amendment concerning findings and noted Senator Green's concern is that the language implies a duty for the state to provide child advocacy center (CAC) type services. He noted the last line in the first (a) subsection says that no child shall be denied comprehensive services because of inability to pay. CHAIR DYSON recalled several years ago sexual assault victims were required to pay for their own investigation. Although that issue had been addressed, he was concerned about the possibility of the state failing to gather admissible evidence because a victim wasn't able pay for the investigation. He asked Senator Green whether she was concerned that the implication was that the state would provide CAC type services everywhere. 1:40:29 PM SENATOR GREEN said she didn't want to create an entitlement. CHAIR DYSON said this section of statute isn't the place to imply the use of remedial services. MARCIA KENNAI, deputy commissioner, Office of Children's Services (OCS), Department of Health and Social Services (DHSS), expressed agreement and said if the final sentence is read in entirety, it appears the intent is that the issue be related to the ability to pay in those circumstances where OCS engages in an investigative circumstance and not remedial services. CHAIR DYSON asked whether the intent would be clarified if "forensic services" or "investigative services" were inserted and "therapeutic" removed from the paragraph. MS. KRALY said since forensic interview is defined, the phrase should say: No child in Alaska should be denied access to a forensic interview during a child abuse investigation including a medical assessment because of inability to pay. 1:43:01 PM CHAIR DYSON recapped saying delete, "comprehensive services" and insert, "forensic interview" to the phrase "during a child abuse investigation including medical assessment". SENATOR ELTON said it wouldn't work to strike "comprehensive services" and insert "forensic interview" and also include, "including medical assessment" because medical assessment wouldn't be included in a forensic interview. MS. KRALY concurred with the interpretation. If the purpose of the limitation is to create a forensic interview, then the medical assessment is a separate issue from the forensic interview as it is defined. 1:44:05 PM CHAIR DYSON asked if it should read: No child in Alaska should be denied access to a forensic interview and medical assessment during a child abuse investigation because of inability to pay. SENATOR GREEN asked whether he intended to include legislative intent in the findings amendment. CHAIR DYSON responded that was yet to be determined. 1:44:52 PM MS. KRALY said used as legislative intent, she would suggest changing the medical assessment language to match the language in AS.47.17.064. Because "medical assessment" isn't defined, the phrase should read: No child in Alaska should be denied access to a forensic interview or a medical or radiological examination [during a child abuse investigation because of inability to pay.] 1:46:24 PM CHAIR DYSON drew attention to subsections (b) and (c) and asked Senator Green if a duty or an obligation was still inferred. SENATOR GREEN opined it implies a huge obligation and emphasized the danger in being too specific with entitlements. CHAIR DYSON acknowledged his history is different than hers. He asked where she sees the entitlement language. SENATOR GREEN replied it's the "No child shall be denied..." language. CHAIR DYSON said that phrase is qualified with the phrase "because of inability to pay for an investigation." SENATOR GREEN pointed out it's subject to the interpretation. 1:47:40 PM CHAIR DYSON said this doesn't refer to someone with a need; it refers to a victim of a crime. He intended this to be a narrowing to include investigation of the crime and recording of the evidence rather than treatment of the person. SENATOR ELTON said he would like to assume that a criminal investigation wouldn't be interrupted because someone couldn't pay for the interview. Rather, he'd like to think that the language is a restatement of current department practices, which is that an investigation wouldn't stop because a victim couldn't pay. MS. KRALY agreed with the statement and reminded members that the advocacy center proposed the amendment. Nevertheless, she didn't believe that criminal or child abuse investigations are held at bay to determine who might pay for the service. CHAIR DYSON moved, as Amendment 3, a new Section 1, with subsequent renumbering. He said it's the legislative intent findings and it changes just the last sentence in subsection (a). It would read: No child in Alaska should be denied access to forensic interview or medical assessment or radiological examination because of inability to pay. CHAIR DYSON asked whether there was objection to Amendment 3. SENATOR GREEN objected. SENATOR ELTON asked whether he moved the entire page and suggested the findings component be one amendment and the language change on community partnership be a second amendment. CHAIR DYSON acknowledged the two paragraphs were separated on his sheet and he announced the motion to adopt Amendment 3 included just the findings. CHAIR DYSON asked for a roll call on proposed Amendment 3. Amendment 3 failed 2-2 with Senator Elton and Chair Dyson voting yea and Senators Green and Wilken voting nay. 1:52:26 PM CHAIR DYSON asked for a motion to adopt the definition language. SENATOR ELTON moved to accept the definition language on page 2 lines 10 - 14. A M E N D M E N T 4 Page 2, lines 10, delete "-based program" Add, "partnership committed to a multidisciplinary team approach". CHAIR DYSON questioned whether it was worthwhile voting on a definition since the amendment talking about child advocacy failed. SENATOR ELTON suggested it replaces similar language already in the bill on page 2, subsection (f)(1) and is purely definitional. Instead of saying "community-based program" as it does in the bill, it would say, "...community partnership committed to a multi-disciplinary team approach..." CHAIR DYSON asked whether there was objection. SENATOR GREEN objected to discuss the definition further. She asked if the use of the term "multi-disciplinary team" might commit the state to certain standards and expectations regarding the function of child advocacy centers. SENATOR OLSON joined the committee at 1:56 PM. MS. KENNAI said the term is also used in places that don't have child advocacy centers. When child sexual abuse cases are reported the multi-disciplinary team meets. SENATOR GREEN asked if a standard and expectation is established that may not exist some places in the state. MS. KENNAI replied her understanding is that the fields of law enforcement, child protection, criminal prosecution, victim advocacy, and medical and mental health helped develop the protocols and those fields are available in the communities where child advocacy centers are in place. SENATOR GREEN asked whether the definition of a child advocacy center is in the new language. CHAIR DYSON pointed to page 2, line 10. SENATOR GREEN asked where the primary reference to child advocacy center resides in statute. MS. KENNAI pointed to Section 1, lines 10-11. CHAIR DYSON asked whether there was objection to Senator Elton's motion. Hearing none, Amendment 4 was adopted. SENATOR WILKEN moved Amendment 5. Strike the sentence in Section 1, line 5 that begins: "No child in Alaska..." and ends in "...because of an ability to pay." The balance of the section would remain. He explained he agrees with Senator Green about not creating an entitlement, but he didn't want to lose the entire findings. CHAIR DYSON clarified the proposed amendment offers a modified Section 1. He asked whether there was objection to Amendment 5. SENATOR DONNY OLSON apologized for his late arrival and asked what would happen if a child was abused physically or sexually and didn't have the ability to pay. SENATOR WILKEN replied: "I'm not in this business, but I can't imagine how we would turn someone away without saying it in the law." Furthermore, he didn't believe a child would be turned away because of an inability to pay. 2:01:53 PM SENATOR OLSON said his interpretation is different. The sentence doesn't turn someone away as much as it denies access. CHAIR DYSON asked whether there was objection to Amendment 5. SENATOR OLSON objected. SENATOR ELTON summarized the previous discussion for Senator Olson. 2:04:15 PM SENATOR OLSON asked the department to comment on the proposed amendment. MS. KENNAI clarified the department would never deny a child a medical exam or an investigation because they weren't able to pay. CHAIR DYSON added there is no impediment in law and the department has the authorization to do what is needed during a criminal investigation. He asked Senator Olson if he maintained his objection. SENATOR OLSON replied just to further the discussion. He asked about the procedure for getting a child to a facility from a remote area. MS. KENNAI replied if a disclosure happened in a village school and a child needed to fly to a child advocacy center, DHSS would fly the child in at department expense as part of the investigation. SENATOR OLSON withdrew his objection to Amendment 5. 2:06:29 PM SENATOR GREEN objected to Amendment 5 and stated, "I'm not going to support this because I still think this totally changes the focus of what this legislation is. It's become a definition of a child advocacy center in my mind. And for the record, I object." CHAIR DYSON asked for a roll call vote. Amendment 5 passed 4-1 with Senators Elton, Wilken, Olson and Chair Dyson voting yea and Senator Green voting nay. 2:07:17 PM LINDA WILSON, deputy director, Alaska Public Defender Agency (APDA), Department of Administration reported that the agency handles the representation of parent and child protective proceedings and children in juvenile delinquency proceedings. Furthermore, APDA has participated in the Children's Justice Task Force with members of OCS and is familiar with the child advocacy centers. Although she looks forward to working toward a resolution, APDA wants to put their concerns on the record. The following is verbatim: I was able to listen in to most of the testimony on Monday and so while I'm not going to be specifically addressing the amendments that you discussed today, I did want to just share some of our concerns about what the purpose of this bill does and maybe look to ways that we could possible shore up some of it so that some of those concerns might go away. I think what you have to start out with is understanding the importance of parental rights - that parents have a right to custody of their children and to parent their children. We have to understand that that's a given. And I think there was testimony Monday also about our right against unreasonable searches and seizures. What this bill does is grant an extraordinary power to OCS that is not something that is typically done. What it's allowing OCS to do is to seize a child - to take physical control of a child and take them somewhere without notifying the parent. And it does this without any judicial oversight at all. The parts of the bill that do that are in Section 1 - again I'm looking at the version without those recent amendments done. So it's [subsection] (c) and (d) that are going to be added to [AS] 47.17.064. Wanting to do this without officially taking the child into emergency - that was the goal - not requiring them to take emergency custody but yet to physically transport children to have either a forensic interview that may or may not include a very invasive gynecological exam. This is very concerning, I think, to parents out there that they're not notified about this type of thing. What we would like to see at least in here is some judicial oversight. When you don't take official custody - and we can call that emergency custody that's provided for in [AS] 47.10.142 - in 47.10.142 when you do take official emergency custody, within 24 hours you have to file something with the courts. Let the court know if you decided during that 24 hours to release the children. You at least have to report to the court what you did, why and what your reasons were. In this bill, there's no requirement to do that. So if you were to take the children and go have them do this forensic interview - which may or may not include an invasive genealogical exam - if they return the children, there's no reporting, no accounting, no judicial process, no oversight by the courts and that's very concerning. In criminal cases, if somebody wants to [indiscernible] or do a glass warrant, all they have to is call the on-duty magistrate, present their case to them and the magistrate gives their blessing to it. Why wouldn't we want them to be doing that? Why wouldn't we want some sort of judicial oversight before they're taking this drastic measure? If there's reasonable cause, why shouldn't they be willing to present that to an on-duty magistrate? All it would take is a telephone call; it could be done in a matter of minutes. It's not that onerous of a hoop to jump through. 2:13:09 PM So those are our concerns. We would certainly like to see some sort of judicial oversight component in this bill for this type of drastic action. SENATOR OLSON asked Ms. Wilson whether she favored the legislation or not. MS. WILSON replied she didn't support the legislation without amendment because there is no judicial oversight. Referencing the end of subsection (d) she read: "Transportation of a child under this section does not constitute the child being taken into emergency custody of the state under AS 47.10.142." Without SENATOR GREEN asked whether DOL might be available to respond to Ms. Wilson's testimony because in the previous hearing it was stated that troopers already have this authority. MS. KRALY responded she and Ms. Wilson had a detailed conversation earlier regarding the fact that "this was not a vast departure from current practice." She said Ms. Wilson remained concerned and they agreed to continue the discussion to try and find common ground. SENATOR ELTON noted Ms. Wilson identified this as an extraordinary step and he was curious if other states require some sort of judicial oversight before removing and/or transporting a child. 2:15:47 PM MS. KENNAI replied some states do require temporary custody. The primary goal here is to take children who disclose for a forensic interview before they go home and get coached. Certainly, the parent would be notified so that they could meet at the child advocacy center if possible. Current emergency custody statutes do not allow it, but current statute does authorize transport of children to a hospital or examination without parental permission when there is evidence of physical abuse. SB 82 adds sexual abuse to statute. SENATOR ELTON mentioned a phone call could be made to a magistrate or judge and he questioned whether that would create difficulty for either the child or the department. MS. KENNAI replied it has caused some difficulty. Although they certainly have the authority to contact a judge to obtain emergency custody, on many occasions permission has been denied based on the fact that the disclosure may not be sufficient evidence. "If you look at the research, most children who disclose sexual abuse are telling the truth. There's a very small percentage that are false allegations." If a child is sent home and a parent begins to coach or intimidate, the child becomes afraid to speak up by the time they reach the advocacy center. CHAIR DYSON expressed concern and asked if DHSS or a peace officer is currently authorized to take custody. MS. KRALY replied the standard for taking emergency custody is under AS 47.10.142. She read: (a) The Department of Health and Social Services may take emergency custody of a child upon discovering any of the following circumstances: (1) the child has been abandoned as abandonment is described in AS 47.10.013; (2) the child has been neglected by the child's parents or guardian, as "neglect" is described in AS 47.10.014, and the department determines that immediate removal from the child's surroundings is necessary to protect the child's life or provide immediate necessary medical attention; (3) the child has been subjected to physical harm by a person responsible for the child's welfare, and the department determines that immediate removal from the child's surroundings is necessary to protect the child's life or that immediate medical attention is necessary; or (4) the child or a sibling has been sexually abused under circumstances listed in AS 47.10.011(7). MS. KRALY said the distinction is that it's a heightened standard to take emergency custody. As Ms. Kennai indicated, mere disclosure isn't always sufficient to establish discovery to support an emergency custody. The standard should be heightened to be able to remove a child from a parent's home without notifying the parent or without getting pre-judicial approval. Under the emergency custodies statutes, you must either file a petition or release within 24 hours. SENATOR DYSON questioned the reason a child's disclosure of sexual abuse wouldn't be enough to take emergency custody. 2:21:02 PM MS. KRALY replied it's certainly a complicated question, but a disclosure alone might not be sufficient depending on what disclosure is made, how it is made, and to whom it is made. "That's when we want to get more information before we make a mistake." CHAIR DYSON said he was uncomfortable with that and perhaps the issue ought to be addressed in the Senate Judiciary Standing Committee. 2:23:13 PM CHAIR DYSON stated his preference to send the bill to the Senate Judiciary Standing Committee then return it to this committee for review. SENATOR WILKEN moved CSSB 82(HES) out of committee with individual recommendations and attached fiscal notes. SENATOR OLSON said the point Ms. Wilson brought forward is cause for concern, but he was curious whether those concerns had ever been legitimized. MS. WILSON responded Ms. Kraly mentioned they haven't always gotten a writ of assistance when requested. "But I can guarantee you that the majority of the time, if there are allegations of sexual abuse, the state takes emergency custody." She assured members that this happens on a regular basis. What the bill does not provide, she said, is judicial oversight. Physically taking control of a child is emergency custody and most states don't have that extraordinary power without judicial oversight. What about the instances of false findings, she asked. "Don't we at least want there to be some judicial hoops that they have to jump through at some point in the process - especially if it results in no findings?" SENATOR OLSON remarked getting a 48-hour hold or a Title 47 commitment from a magistrate in the middle of the night is one of the last things he wants to worry about as a doctor. On the other hand, it's extremely invasive for a young child to have a gynecological examination when it isn't justified. 2:26:25 PM SENATOR ELTON said it would seem that the fiscal note would be greater than zero to reflect additional transportation expenses. MS. KENNAI said they would have to do an analysis on that but DHSS doesn't see there would be a large increase in the number of interviews. In some areas of the state it is a problem while in other areas they can call a judge and get permission to take the child for an interview. She explained once the child gets to the child advocacy center, the physical exam isn't conducted without parental consent so some checks and balances already exist even though they aren't in statute. 2:29:14 PM CHAIR DYSON asked whether there was objection to Senator Wilken's motion to move CSSB 82(HES) out of committee. Hearing none, the motion carried.