Legislature(2005 - 2006)BUTROVICH 205

05/04/2005 01:30 PM HEALTH, EDUCATION & SOCIAL SERVICES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Rescheduled to 2:15 pm --
+= HB 214 ANATOMICAL GIFTS & REGISTRY TELECONFERENCED
Moved SCS CSHB 214(STA) Out of Committee
+ HJR 20 PROSTATE CANCER DRUGS TELECONFERENCED
Moved HJR 20 Out of Committee
+= HB 53 CHILDREN IN NEED OF AID/ADOPTION/GUARDIAN TELECONFERENCED
Moved SCS CSSSHB 53(HES) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
   CSSSHB  53(FIN)-CHILDREN IN NEED OF AID/ADOPTION/GUARDIAN                                                                
                                                                                                                                
CHAIR DYSON announced HB 53 to be up for consideration.                                                                         
                                                                                                                                
RYNNIEVA   MOSS,  staff   to  Representative   Coghill,  sponsor,                                                               
explained  that  HB  17, HB  113,  HB  114  and  HB 53  were  all                                                               
consolidated  into  HB 53  to  prevent  any overlap  or  conflict                                                               
between them. She said this  bill eliminates the no-duty language                                                               
in As.47.10.960, which  states that there is no  duty or standard                                                               
of care for  children in state custody.  She  said that while the                                                               
intent of this language was to  ensure that the state wouldn't be                                                               
held liable  for failing to  meet a timeline that  was introduced                                                               
with HB 375, parents took  offence, because they understood it to                                                               
mean that there was a duty  and standard of care for parents, but                                                               
not for the  state.  This bill ensures that  if timelines are not                                                               
met, the state has no civil liability.                                                                                          
                                                                                                                                
SENATOR GREEN joined the committee at 2:28:00 PM.                                                                             
                                                                                                                                
2:31:07 PM                                                                                                                    
                                                                                                                                
MS. MOSS  said a  State Supreme Court  case established  that the                                                               
state does  have a duty  and standard  for children it  has taken                                                               
into custody.                                                                                                                   
                                                                                                                                
CHAIR DYSON said:                                                                                                               
                                                                                                                                
     I assumed  that 'standard of  care' meant that  you had                                                                    
     to keep  the kid  warm, clothed and  reasonable medical                                                                    
     care.    What if  the  birth  parent or  the  custodial                                                                    
     parent thinks  that the child  who is in  state custody                                                                    
     isn't being  cared for in  a way that fits  the court's                                                                    
     definition?  Where  do you go to look to  see what that                                                                    
     is?                                                                                                                        
                                                                                                                                
MS. MOSS answered that it is not  written in law, but rather is a                                                               
determination  that is  made out  of common  sense.   The parents                                                               
have  a  standard and  duty  of  care  and the  state  determines                                                               
whether or  not they are  competent to keep their  children based                                                               
upon whether  or not they have  met it. The state  should be held                                                               
to that same standard of care.                                                                                                  
                                                                                                                                
2:33:02 PM                                                                                                                    
                                                                                                                                
CHAIR  DYSON asked  if  the standard  of care  is  defined by  an                                                               
explicit set of conditions.                                                                                                     
                                                                                                                                
2:33:47 PM                                                                                                                    
                                                                                                                                
MS.   MOSS replied that  it is not and  said that a  provision in                                                               
this bill gives priority to an  adult relative who has taken care                                                               
of  a child  for  12  consecutive months.  They  would also  have                                                               
priority  for adoption  preference  if the  state terminates  the                                                               
parental  rights   of  the  child's   parents.  This   bill  also                                                               
establishes  a hierarchy  of preferential  placement that  starts                                                               
with  family members,  followed by  a family  member's friend,  a                                                               
licensed foster home and finally a licensed institution.                                                                        
                                                                                                                                
CHAIR DYSON  asked if a family  member's friend would have  to go                                                               
through the  foster care licensing  process before a  child could                                                               
be placed with them.                                                                                                            
                                                                                                                                
MS.  MOSS  replied  that  the  family friend  would  have  to  be                                                               
licensed, but a family member would not.                                                                                        
                                                                                                                                
2:36:03 PM                                                                                                                    
                                                                                                                                
SENATOR   ELTON  said   one  of   the  criteria   to  help   with                                                               
reunification is  close proximity to  the parents and  asked what                                                               
the priority is if a family  member is in Fairbanks and the child                                                               
and his parents are in Anchorage.                                                                                               
                                                                                                                                
MS.  MOSS replied  that the  department should  answer that,  but                                                               
unification is a priority, so  the proximity to the parents would                                                               
probably be that priority.                                                                                                      
                                                                                                                                
TAMMY  SANDOVAL,   Deputy  Commissioner,  Office   of  Children's                                                               
Services (OCS), Department of Health  and Social Services (DHSS),                                                               
responded:                                                                                                                      
                                                                                                                                
     Therein lies  the struggle with this  business of doing                                                                    
     this kind  of work.  The balance  of proximity,  who is                                                                    
     the best placement and the  best resource for the child                                                                    
     and keeping  kids in  close enough  area. So,  we would                                                                    
     balance all  those things in a  decision-making process                                                                    
     with  supervisors and  staff that  we  have that  would                                                                    
     help  us decide  that along  with inviting  the parents                                                                    
     and the extended family members  to the table - so that                                                                    
     family  members are  included in  what's the  best plan                                                                    
     for the child.                                                                                                             
                                                                                                                                
CHAIR DYSON  asked if the  courts get involved with  placement if                                                               
the placement decision is challenged.                                                                                           
                                                                                                                                
MS. MOSS  replied that there is  now a grievance process  and the                                                               
right of  a family member  to request  a hearing if  he disagrees                                                               
with what the  department is doing. HB 53 has  transparency and a                                                               
clear process that  the adult family members and  friends will be                                                               
able to follow. This has not been the case in the past.                                                                         
                                                                                                                                
CHAIR DYSON asked  if parents are provided  with information that                                                               
informs them of their rights.                                                                                                   
                                                                                                                                
MS.   MOSS  replied   that  parents   are   provided  with   that                                                               
information.  She  said  that  HB   53  directs  the  OCS  to  do                                                               
everything  that  it can  to  provide  visitations to  a  child's                                                               
family and  relatives.  This  bill requires  the OCS to  advise a                                                               
child's family and relatives that they  have a right to request a                                                               
hearing  if  they  are  denied their  visitation  rights  and  it                                                               
requires the OCS to tell them why these rights were denied.                                                                     
                                                                                                                                
CHAIR DYSON asked:                                                                                                              
                                                                                                                                
     If indeed  the parent is being  investigated for either                                                                    
     neglect  or   crimes  against  the  child,   the  court                                                                    
     decision will be  always what is in  the best interests                                                                    
     of the  child and  the offending  parent may  be denied                                                                    
     visitation for cause.                                                                                                      
                                                                                                                                
MS. MOSS replied that that is correct.                                                                                          
                                                                                                                                
CHAIR DYSON asked if that decision is made by a judge.                                                                          
                                                                                                                                
MS. MOSS replied that initially the  decision is made by OCS, but                                                               
if  the  parents disagree  with  its  decision  they can  have  a                                                               
hearing in which a judge will  either confirm or override the OCS                                                               
decision. This  bill has  a provision  that says  parental rights                                                               
cannot  be  terminated  solely   because  they  did  not  receive                                                               
treatment  that was  required by  the department.  She said  that                                                               
this is because sometimes that treatment is not available.                                                                      
                                                                                                                                
CHAIR DYSON queried:                                                                                                            
                                                                                                                                
     Suppose  the problem  is that  the parent  is a  drunk?                                                                    
     It's a  CINA [child in need  of aid] case and  a kid is                                                                    
     being left  lying on the  floor with dirty  diapers for                                                                    
     20 hours  at a time  and the department says  that part                                                                    
     of the reunification plan is,  'You gotta get dry.' And                                                                    
     the   treatment  is   not  available?   So  then,   the                                                                    
     department  has some  responsibility to  ascertain that                                                                    
     the  parent   is  no  longer  incompetent   because  of                                                                    
     alcohol? How does that work?                                                                                               
                                                                                                                                
2:41:46 PM                                                                                                                    
                                                                                                                                
MS. MOSS replied:                                                                                                               
                                                                                                                                
     Mr. Chairman,  no that is  not what  I am saying.  If a                                                                    
     parent has  an alcohol problem,  first of all  you have                                                                    
     to  determine  whether  they  could  afford  to  do  it                                                                    
     themselves and if that was available....                                                                                   
                                                                                                                                
     If the treatment  is available and they can  pay for it                                                                    
     and if  they don't,  then that is  clearly a  sign that                                                                    
     they  don't want  to get  any  better. But  there is  a                                                                    
     shortness of  alcohol treatment  in this  state.... And                                                                    
     if they can't afford it,  instead of just throwing them                                                                    
     out to the wolves and  saying we're going to take their                                                                    
     children away,  more of an  effort is going to  be made                                                                    
     to see  that that  treatment is  made available  to the                                                                    
     parent. If they  choose to not take  the treatment when                                                                    
     it's available, then that is  clearly another sign that                                                                    
     they don't want to change.                                                                                                 
                                                                                                                                
CHAIR  DYSON asked  if there  is an  alternative way  for such  a                                                               
person to  demonstrate their recovery besides  graduating from an                                                               
alcohol treatment program.                                                                                                      
                                                                                                                                
MS. SANDOVAL replied:                                                                                                           
                                                                                                                                
     Absolutely. If a  person can get clean or  they can get                                                                    
     in control  of whatever is  going on in their  lives in                                                                    
     order  to safely  care for  their  own children,  we'll                                                                    
     welcome  and  entertain any  ideas  people  have to  do                                                                    
     that.                                                                                                                      
                                                                                                                                
2:43:58 PM                                                                                                                    
                                                                                                                                
MS. MOSS  continued saying that  this bill encourages the  OCS to                                                               
provide training for foster parents  to become mentors to parents                                                               
of  CINA children.  It is  not mandatory  since the  OCS has  the                                                               
right to say that a parent is  a risk to expose to foster parents                                                               
and it can  require supervised visitations, but it  does say that                                                               
OCS should attempt  to work with the Department  of Public Safety                                                               
and schools to  train teachers and foster parents  to be mentors.                                                               
Children  have  sometimes  been placed  into  foster  homes  that                                                               
become  adoptive  homes.  Some  foster parents  who  want  to  be                                                               
adoptive  parents  discourage  visitation with  parents,  because                                                               
their goal is to adopt the child.                                                                                               
                                                                                                                                
2:45:15 PM                                                                                                                    
                                                                                                                                
She said that there has been  significant concern about a lack of                                                               
parental  involvement in  decisions regarding  the administration                                                               
of psychotropic  drugs to  children and  that the  bill redefines                                                               
"major  medical treatment"  to include  medication used  to treat                                                               
diagnosed mental  heath disorders.   The  bill says  that parents                                                               
will   participate   in   decisions   regarding   major   medical                                                               
treatments, which includes psychotropic drugs.                                                                                  
                                                                                                                                
CHAIR  DYSON  asked if  the  term  "major medical  treatment"  is                                                               
defined in law.                                                                                                                 
                                                                                                                                
STACIE  KRALY, Assistant  Attorney  General,  Department of  Law,                                                               
said that the term "major medical treatment" is not defined.                                                                    
                                                                                                                                
2:47:05 PM                                                                                                                    
                                                                                                                                
CHAIR DYSON said that in a  recent case, the department could not                                                               
release information  to defend itself  because of  the stringency                                                               
of the  confidentiality requirements  that surrounds  CINA cases.                                                               
He said  that there are  provisions in  this bill that  allow the                                                               
OCS to  release some  information to  protect itself  while still                                                               
protecting the child.                                                                                                           
                                                                                                                                
MS.  MOSS explained  that the  bill provides  some sideboards  to                                                               
pubic hearings.   The hearings are open, but the  judge can close                                                               
the hearing  if he feels that  the child could be  stigmatized or                                                               
emotionally  damaged,  if  it could  interfere  with  a  criminal                                                               
investigation  or if  disclosure would  violate state  or federal                                                               
law.  She said  that this bill allows a judge to  bar a person in                                                               
violating a court order in a  CINA case from participating in any                                                               
future CINA proceedings. It also  creates a grievance process for                                                               
parents who disagree  with what OCS is doing with  their child. A                                                               
department supervisor  would review  the case. Once  his decision                                                               
was  made  and  the  parent  still disagreed,  he  could  file  a                                                               
complaint with  the State  Review Panel  that this  bill creates.                                                               
That  panel   would  review  policies   and  procedures   of  the                                                               
department, suggest  changes as  well as  sit as  a panel  for an                                                               
appeal of a  grievance. It would be subject to  the Open Meetings                                                               
Act so it could meet in executive session.                                                                                      
                                                                                                                                
2:49:11 PM                                                                                                                    
                                                                                                                                
CHAIR DYSON  asked if the  information that this bill  allows OCS                                                               
to release  would be  free of  any reference to  the name  of the                                                               
child.                                                                                                                          
                                                                                                                                
2:51:10 PM                                                                                                                    
                                                                                                                                
MS.  MOSS  replied  that  it  must be  free  of  all  identifying                                                               
information.  She  said  that this  legislation  recognizes  that                                                               
videotaping is the  best way to interview a child.  She said that                                                               
this  bill requires  videotaping  in all  cases involving  sexual                                                               
abuse  and it  requires  audio-taping when  video  taping is  not                                                               
available.                                                                                                                      
                                                                                                                                
CHAIR DYSON said that years ago  many people said that there were                                                               
serious  technical  difficulties  involved  in  conducting  video                                                               
recordings.  He asked  if anyone  has  mentioned this  difficulty                                                               
today.                                                                                                                          
                                                                                                                                
MS. MOSS answered  that no one has recently  complained about the                                                               
technical difficulties associated with video recording.                                                                         
                                                                                                                                
2:52:56 PM                                                                                                                    
                                                                                                                                
MS. MOSS  said that  this bill defines  the term  "child advocacy                                                               
center" and  it establishes criteria  for schools to  follow when                                                               
they interview  a child in a  school.  Today the  OCS is required                                                               
to respond to  a mandatory reporter within 10 days  and this bill                                                               
would require  OCS to respond  to a voluntary reporter  within 20                                                               
days.                                                                                                                           
                                                                                                                                
She said  that there  is a  provision in this  bill to  allow the                                                               
legislative office  to remain a  non-party participant in  a case                                                               
even after parental  rights have been terminated.   She said that                                                               
with regards  to Senator  Elton's earlier  question of  why these                                                               
cases were not referred to  the Ombudsman's office, the reason is                                                               
that since  the office has  been reduced  in size, more  and more                                                               
parents have gone to the legislative offices in search of help.                                                                 
                                                                                                                                
2:54:32 PM                                                                                                                    
                                                                                                                                
CHAIR  DYSON  asked  if  the  department  is  able  take  on  the                                                               
responsibilities assigned by this bill.                                                                                         
                                                                                                                                
MS.  SANDOVAL  replied that  the  Office  of Children's  Services                                                               
completely and wholeheartedly supports HB 53.                                                                                   
                                                                                                                                
JAN RUTHERDALE, Department  of Law, said it  offers legal support                                                               
to the Department of Health  and Social Services and any concerns                                                               
that  it had  with this  legislation have  been resolved  and the                                                               
department feels that the bill is legally sound.                                                                                
                                                                                                                                
2:58:56 PM                                                                                                                    
                                                                                                                                
CHAIR  DYSON announced  that three  potential amendments  were up                                                               
for consideration.                                                                                                              
                                                                                                                                
MS. MOSS  explained that  Amendment 1 deletes  the word  "may" on                                                               
page 18, line  19, and inserts the word "shall",  which makes the                                                               
adoption  of regulations  to implement  provisions  of this  bill                                                               
mandatory instead of just making them permissive.                                                                               
                                                                                                                                
CHAIR DYSON asked if the department supported Amendment 1.                                                                      
                                                                                                                                
MS.  SANDOVAL  replied  that  the  OCS  is  satisfied  with  this                                                               
amendment.                                                                                                                      
                                                                                                                                
SENATOR  ELTON  moved  to  adopt   Amendment  1.  There  were  no                                                               
objections and Amendment 1 was adopted.                                                                                         
                                                                                                                                
MS. MOSS explained that conceptual  Amendment 2 deletes the words                                                               
"legal guardian"  following the  word "uncle"  on page  10, lines                                                               
20-21 and lines 24-25. She  said that legal guardians are already                                                               
parties  to the  case  and Representative  Coghill believes  that                                                               
they should not be given the same status as family members.                                                                     
                                                                                                                                
MS. SANDOVAL and MS. RUTHERDALE both supported Amendment 2.                                                                     
                                                                                                                                
CHAIR DYSON moved to adopt Amendment  2 as explained by Ms. Moss.                                                               
There were no objections and Amendment 2 was adopted.                                                                           
                                                                                                                                
CHAIR DYSON moved to adopt Amendment 3.                                                                                         
                                                                                                                                
MS.  MOSS explained  that Amendment  3 adds  "or whose  safety or                                                               
welfare  may be  endangered  by public  release of  information."                                                               
after  "violence" on  page 27,  line 15.  This makes  language in                                                               
section  10 consistent  with language  in section  52, the  court                                                               
rule that deals with section 10.                                                                                                
                                                                                                                                
MS. SANDOVAL and MS. RUTHERDALE both supported Amendment 3.                                                                     
                                                                                                                                
3:01:58 PM                                                                                                                    
                                                                                                                                
SENATOR  GREEN  moved  to  adopt   Amendment  3.  There  were  no                                                               
objections and Amendment 3 was adopted.                                                                                         
                                                                                                                                
CHAIR  DYSON   said  that   years  ago   the  concern   was  that                                                               
establishing a  standard of  care for  children in  custody would                                                               
invite  lots of  lawsuits.  He  asked if  the  Department of  Law                                                               
wanted to comment on that.                                                                                                      
                                                                                                                                
GAIL  VOIGHTLANDER,   Department  of  Law,  responded   that  the                                                               
concerns arose when the language in  AS 47.10.960 was going to be                                                               
changed.                                                                                                                        
                                                                                                                                
     You  were  going  to  create  a  cause  of  action  for                                                                    
     children,  parents, other  people who  are involved  in                                                                    
     the  CINA proceedings  to file  litigation against  the                                                                    
     department  and  the  social  workers  based  upon  the                                                                    
     statute and  the various steps and  procedures that are                                                                    
     supposed  to be  followed....  It was  for that  reason                                                                    
     that AS 47.10.960  was put into place which  was to say                                                                    
     that the intent was to  say that failure to comply with                                                                    
     the provisions of  the title would not be  the basis to                                                                    
     make a claim for damages.                                                                                                  
                                                                                                                                
     And over the years, with  that AS 47.10.960 there was a                                                                    
     way that  lay people  would read  that language  and it                                                                    
     caused them  concern. But  the underlying  legal reason                                                                    
     was that it  was not to create a statutory  claim to be                                                                    
     made by  parents or grandparents or  others for damages                                                                    
     - because this  is an entire statutory  scheme where if                                                                    
     there  are  problems  with   placement,  if  there  are                                                                    
     problems  with resources  being provided  or not  being                                                                    
     provided,  the appropriate  place to  bring that  is to                                                                    
     the court  in the  CINA proceeding.  The court  has the                                                                    
     ability  to  address those  issues  and,  in fact,  the                                                                    
     parties   have  the   ability  to   take  them   to  an                                                                    
     interlocutory, which  means like  an interim  appeal on                                                                    
     those issues if they are unhappy....                                                                                       
                                                                                                                                
     What  section 29  of this  bill achieves  is that  same                                                                    
     result  of  what  [AS]   47.10.960  had  intended,  but                                                                    
     because of  the use of  language it was  causing people                                                                    
     concern.                                                                                                                   
                                                                                                                                
     Our  Supreme Court  has  said that  in  terms of  child                                                                    
     protection,  the department  and its  employees have  a                                                                    
     duty that  they owe to  the child  and not a  duty that                                                                    
     they  owe  to other  parties  in  the CINA  proceeding,                                                                    
     because everyone  is represented in  these proceedings.                                                                    
     Everyone advocates  for their own  particular position.                                                                    
     The  parent   may  not  want   to  have   their  rights                                                                    
     terminated, but it may be  in the best interests of the                                                                    
     child that those parental rights are terminated....                                                                        
                                                                                                                                
CHAIR DYSON noted that there were no questions or further                                                                       
testimony.                                                                                                                      
                                                                                                                                
3:07:01 PM                                                                                                                    
                                                                                                                                
SENATOR GREEN moved to report SCS CSSSHB 53(HES) out of                                                                         
committee with individual recommendations and zero fiscal notes.                                                                
There were no objections and it was so ordered.                                                                                 

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