Legislature(2003 - 2004)
02/18/2004 08:13 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 288-EMERGENCY CHILD CUSTODY PLACEMENT
MS. JACQUELINE TUPOU, staff to Senator Green, sponsor, explained
to members that current law provides that the court must
determine within 48 hours of removing a child from the home
whether continued placement in the home is contrary to the
welfare of the child. However, judges use varied language when
making that determination. SB 288 says that judges must
specifically state that it is contrary to the welfare of the
child to remain in the home. That language is Title IV-E
compliant and will result in an increase of Title IV-E funding
of $500,000 in FY 05.
MS. JOANNE GIBBENS, Program Administrator for the Office of
Children's Services, Department of Health and Social Services
(DHSS), affirmed that SB 288 requires the court to make a
specific judicial determination at the very first hearing when
emergency custody of a child is taken. He explained that the
federal purpose for this requirement is to protect the rights of
parents and children by ensuring that states are not removing
children unnecessarily. The federal government ties funding to
this requirement. SB 288 codifies what should be and, in most
cases, is current practice. The purpose of the bill is simply to
make sure the court enters findings that are already required by
federal law. It does not change the standards used by the court
to make out of home placement decisions.
CHAIR SEEKINS announced that Senators Therriault and Ogan had
joined the committee.
SENATOR ELLIS asked why the state is not complying with the
federal law now.
MS. GIBBENS said ideally this would be happening in every first
court hearing, but it does not. SB 288 is a trigger to remind
judges of this requirement. It also aligns Alaska statute with
the federal requirement.
SENATOR ELLIS noted that Senator Green has expressed concern in
the past about depending on receipt of federal funds and the
possible need to use state funds if the federal funds are cut.
He noted with the huge federal deficit, there may be cutbacks in
the future. He asked if she has any concerns about accepting
these federal funds.
CHAIR SEEKINS said he would expect Senator Green to defend her
own history.
MS. TUPOU said she does believe this is a good program and not
only will this determination make a difference for Title IV-E
funds, it will make a difference in the child's entire placement
in the program, i.e., with adoption subsidies. She added that
many times the court will grant a continuance if the parents
cannot be found, so no language is put on the record at the
first hearing. SB 288 will require the court to tighten up the
language.
SENATOR ELLIS asked Ms. Tupou if she believes that accepting the
federal funds would benefit Alaska.
MS. TUPOU said in this situation, where children are in such
dire need that they need to be removed from the home, the state
should use the resources that are available.
SENATOR SEEKINS said he sees this bill as accomplishing two
purposes. First, it brings Alaska statute into compliance with
federal law, which could be the primary intent. Second, it could
assist in obtaining federal funds.
MS. TUPOU agreed.
SENATOR FRENCH asked Ms. Gibbens what happens if the judge does
not have enough information at the first hearing to make a
finding.
MS. GIBBENS said a social worker might file a petition with the
court at the first hearing and the parents are not present and
cannot respond to the petition. In many of those cases, the
judge will order a continuance. In that case, the judge may say
that based on the evidence available at that time, the child
should remain in an out of home placement until the continuance
hearing. At the next hearing, the judge will make another
hearing.
MS. TUPOU informed members that she distributed a copy of a
response from Assistant Attorney General Nemecek to Senator
Green that answered three questions. She noted that the second
response directly relates to Senator French's question. She said
Senator Green was very concerned about usurping due process
rights and would be agreeable to an amendment to change the
words "shall determine" to "shall make a preliminary
determination" to emphasize the transitory nature of the first
hearing.
She then pointed out the first answer in Mr. Nemecek's response
pertains to the word, "emergency" on page 1, line 14 of the bill
("remains in the emergency custody of the department"). She was
told that word was originally included because it was required
for federal compliance but that is incorrect and is actually
legally confusing. She said Senator Green would also be
agreeable to removing that word.
SENATOR FRENCH pointed out the word "after" on page 1, line 14,
on version A, differs from the word "at" used in the DHSS
letter. He questioned whether the word "at" is more appropriate
to emphasize the fact that you want the judge to make the
determination now not after the hearing.
MS. TUPOU explained that the revisor switched the words
accidentally but that was corrected in version H.
CHAIR SEEKINS called an at-ease and, upon reconvening, clarified
that version H, the Senate Health, Education, and Social
Services Committee version, was before the committee.
SENATOR THERRIAULT moved to adopt CSSB 288(HES) as the working
document before the committee.
CHAIR SEEKINS announced that without objection, the motion
carried and noted the HES version contains the word "at".
SENATOR OGAN pointed out that the committee referrals on version
A and version H are different.
CHAIR SEEKINS affirmed that SB 288 picked up a Senate Finance
Committee referral. He then closed public testimony, as no one
else wished to testify.
8:19 a.m.
CHAIR SEEKINS asked Ms. Tupou to clarify the amendments she
suggested.
MS. TUPOU told members the first conceptual amendment [Amendment
1] would be to remove the word "emergency" on line 14, page 1,
where it reads:
...remains in the emergency custody of the department.
The second amendment [Amendment 2] is to change the language on
line 1 of page 2 to read:
The judge shall make a preliminary determination
SENATOR FRENCH asked if the second change will make a big
difference.
MS. TUPOU said, according to Mr. Nemecek's response, it will
not.
SENATOR FRENCH said the question of what is contrary to the
welfare of the child would come up in every hearing conducted in
the course of the placement. He said he would not insist on that
language because every finding is preliminary and never final.
He maintained that the change is only a matter of housekeeping
and not a change to procedure.
MS. TUPOU said that is correct and referred to Mr. Nemecek's
response to question 3, which states, "This does not alter
current legal standards for those children."
SENATOR FRENCH asked if it will make any changes to legal
procedure.
MS. TUPOU said not that she is aware of.
SENATOR OGAN referred to the removal of the probable cause
language in Section 1 and asked, "...why is having that probable
cause language a problem in existing law and is there a probable
cause finding for removing a child that's required under due
process?"
MS. TUPOU responded the probable cause determination is
determined in a temporary custody hearing. Section 1 refers to
an instance of a continuance, during which there is a probable
cause finding. If the hearing is not a continuance, the
temporary custody hearing will take place simultaneously.
SENATOR OGAN questioned why that language needs to be removed
and what problem will be fixed.
SENATOR THERRIAULT clarified that the language was removed from
subsection (d) but placed in subsection (e) as the drafter felt
that to be the more appropriate placement, so nothing will be
lost.
CHAIR SEEKINS entertained a motion to remove the word
"emergency" on page 1, line 14.
SENATOR THERRIAULT asked whether there is any significance to
the term "emergency custody" versus just "custody."
MS. TUPOU deferred to Mr. Nemecek.
MR. VENNIE NEMECEK, Assistant Attorney General, Department of
Law, explained that the problem with using the word "emergency"
is that generally that refers to both an assumption of legal and
physical custody. The intent of that sentence is to refer to
legal custody because the physical placement is dealt with in
the subsequent sentence. He recommended removing the word
"emergency" because it confuses the matter.
SENATOR THERRIAULT asked which is clearer in the legal world.
MR. NEMECEK said in his experience, it will not make a
difference.
CHAIR SEEKINS asked if by eliminating the modifier "emergency"
or "temporary," the language will say whenever, at this point
during a continuance, that child will remain in the custody,
whatever type that may be, and that will cover all bases.
MR. NEMECEK said it does and explained that in general, when
custody is viewed from AS 47.10, it refers to legal custody.
SENATOR FRENCH pointed out this is about a temporary custody
hearing yet that phrase is used the least in the two
subsections. He believes replacing the word "emergency" with the
word "temporary" might ease the concerns of the parents whose
child was taken away and make the language more consistent. He
so moved.
CHAIR SEEKINS asked Mr. Nemecek and Ms. Tupou if that solution
would satisfy their concern.
MR. NEMECEK and MS. TUPOU said it would.
SENATOR FRENCH repeated his motion to replace the word
"emergency" with the word "temporary" on page 1, line 14.
CHAIR SEEKINS announced that the motion carried without
objection. He then noted that with no further discussion, he
would hold the bill for a second hearing and announced an at-
ease.
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