Legislature(2005 - 2006)BUTROVICH 205

02/23/2005 08:30 AM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 83 TERM. PARENTAL RTS/CINA/DELINQUENCY CASES TELECONFERENCED
Heard & Held
+ SB 84 CHILD PROTECTION CONFIDENTIALITY TELECONFERENCED
Scheduled But Not Heard
*+ SB 109 INCREASE FINE FOR SCHOOL ZONE VIOLATIONS TELECONFERENCED
Moved CSSB 109(JUD Out of Committee
                                                                                                                                
        SB 83-TERM. PARENTAL RTS/CINA/DELINQUENCY CASES                                                                     
                                                                                                                                
9:31:06 AM                                                                                                                    
CHAIR SEEKINS announced SB 83 to be up for consideration.                                                                       
                                                                                                                                
9:33:20 AM                                                                                                                    
MS. STACIE KRALY, senior assistant attorney general, Department                                                                 
 Of  Law  (DOL),  introduced  the  bill,  which  would  amend  AS                                                               
25.23.180 to  permit parents to relinquish  their parental rights                                                               
while retaining certain privileges  such as ongoing communication                                                               
or visitation with the child.  The proposal also adds language to                                                               
AS 43.23.005 to allow children  who are placed temporarily by the                                                               
Department of  Health and Social  Services (DHSS) outside  of the                                                               
state  to  maintain  eligibility  for  permanent  fund  dividends                                                               
(PFDs).  SB  83  also  adds   language  to  AS  47.10.020,  which                                                               
clarifies the  court may  issue any orders  necessary to  aid the                                                               
DHSS  in its  investigation of  an allegation  of child  abuse or                                                               
neglect.                                                                                                                        
                                                                                                                                
9:36:31 AM                                                                                                                    
SB  83  amends   the  definition  of  the   term  "mental  health                                                               
professional" in  AS 47.30.915. The  DOL offered an  amendment to                                                               
sections 5  and 9 of the  bill, which would effectively  amend AS                                                               
47.10.080(L)  and would  directly affect  child in  need of  aide                                                               
(CINA) rule 17.2.  The amendment would require the  court to rule                                                               
on whether DHSS has made  reasonable efforts toward permanency of                                                               
the child.                                                                                                                      
                                                                                                                                
                                                                                                                                
                      A M E N D M E N T 1                                                                                   
                                                                                                                                
                                                                                                                                
Page 1, line 4, following "delinquency proceedings;":                                                                         
                                                                                                                                
     Insert "relating to findings in permanency hearings in                                                                   
                                                                                                                                
child  in need  of aid  proceedings; amending  Rule 17.2,  Alaska                                                             
                                                                                                                                
Child in Need of Aid Rules;"                                                                                                  
                                                                                                                                
                                                                                                                                
Page 3, following line 6:                                                                                                       
                                                                                                                                
     Insert a new bill section to read:                                                                                         
                                                                                                                                
   "* Sec. 5.  AS 47.10.080(l) is amended to read:                                                                            
                                                                                                                                
          (l)  Within 12 months after the date a child enters                                                                   
                                                                                                                                
     foster care as calculated under AS 47.10.088(f), the court                                                                 
                                                                                                                                
     shall hold a permanency hearing.  The hearing and permanent                                                                
     plan developed in the hearing are governed by the following                                                                
                                                                                                                                
     provisions:                                                                                                                
                                                                                                                                
               (1)  the persons entitled to be heard under                                                                      
                                                                                                                                
     AS 47.10.070 or under (f) of this section are also entitled                                                                
                                                                                                                                
     to be heard at the hearing held under this section;                                                                        
                                                                                                                                
               (2)  when establishing the permanent plan for the                                                                
                                                                                                                                
     child, the court shall make appropriate written findings,                                                                  
                                                                                                                                
     including findings related to whether                                                                                      
                                                                                                                                
                    (A)  and when the child should be returned                                                                  
                                                                                                                                
          to the parent or guardian;                                                                                            
                                                                                                                                
                    (B)  the child should be placed for adoption                                                                
                                                                                                                                
          or  legal  guardianship  and  whether  a  petition  for                                                               
                                                                                                                                
          termination of  parental rights should be  filed by the                                                               
                                                                                                                                
          department; and                                                                                                       
                                                                                                                                
                    (C)  the child should be placed in another                                                                  
                                                                                                                                
          planned,  permanent living  arrangement and  what steps                                                               
                                                                                                                                
         are necessary to achieve the new arrangement;                                                                          
                                                                                                                                
               (3)  if the court is unable to make a finding                                                                    
                                                                                                                                
     required under (2) of this subsection, the court shall hold                                                                
                                                                                                                                
     another hearing within a reasonable period of time;                                                                        
                                                                                                                                
               (4)  in addition to the findings required by (2)                                                                 
                                                                                                                                
     of this subsection, the court shall also make appropriate                                                                  
                                                                                                                                
     written findings related to                                                                                                
                                                                                                                                
                    (A)  whether the department has made the                                                                    
                                                                                                                                
          reasonable  efforts  required   under  AS 47.10.086  to                                                               
                                                                                                                                
          offer  appropriate family  support  services to  remedy                                                               
                                                                                                                                
          the  parent's or  guardian's conduct  or conditions  in                                                               
                                                                                                                                
          the home  that made the  child a  child in need  of aid                                                               
                                                                                                                                
          under this chapter;                                                                                                   
                                                                                                                                
                    (B)  whether the parent or guardian has made                                                                
                                                                                                                                
          substantial   progress  to   remedy  the   parent's  or                                                               
                                                                                                                                
          guardian's conduct or conditions  in the home that made                                                               
          the child a child in need of aid under this chapter;                                                                  
                                                                                                                                
          [AND]                                                                                                                 
                                                                                                                                
                    (C)  if the permanent plan is for the child                                                                 
                                                                                                                                
          to remain in out-of-home care, whether the child's                                                                    
                                                                                                                                
          out-of-home placement continues to be appropriate and                                                                 
                                                                                                                                
          in the best interests of the child; and                                                                           
                                                                                                                                
                    (D)  whether the department has made                                                                    
                                                                                                                                
          reasonable efforts to finalize the permanent plan for                                                             
                                                                                                                                
          the child;                                                                                                        
                                                                                                                                
               (5)  the court shall hold a  hearing to review                                                                   
                                                                                                                                
     the  permanent  plan  at  least  annually  until  successful                                                               
                                                                                                                                
     implementation  of the  plan; if  the plan  approved by  the                                                               
                                                                                                                                
     court  changes  after  the  hearing,  the  department  shall                                                               
                                                                                                                                
     promptly apply to the court  for another permanency hearing,                                                               
                                                                                                                                
     and  the court  shall  conduct the  hearing  within 30  days                                                               
                                                                                                                                
     after application by the department."                                                                                      
                                                                                                                                
                                                                                                                                
Renumber the following bill sections accordingly.                                                                               
                                                                                                                                
                                                                                                                                
Page 3, following line 28:                                                                                                      
                                                                                                                                
     Insert new bill sections to read:                                                                                          
                                                                                                                                
   "* Sec. 9.  The uncodified law of the State of Alaska is                                                                   
                                                                                                                                
amended by adding a new section to read:                                                                                        
                                                                                                                                
          DIRECT COURT RULE AMENDMENT.  Rule 17.2(f), Alaska                                                                    
                                                                                                                                
     Child in Need of Aid Rules, is amended to read:                                                                            
                                                                                                                                
          (f)  Additional Findings.  In addition to the findings                                                              
                                                                                                                                
     required  under paragraph  (e),  the court  shall also  make                                                               
                                                                                                                                
     written findings related to                                                                                                
                                                                                                                                
               (1)  whether the Department has made reasonable                                                                  
                                                                                                                                
     efforts required  under AS 47.10.086 or,  in the case  of an                                                               
                                                                                                                                
     Indian  child,  whether  the   Department  has  made  active                                                               
                                                                                                                                
     efforts  to  provide  remedial services  and  rehabilitative                                                               
     programs as required by 25 U.S.C. Sec. 1912(d);                                                                            
                                                                                                                                
               (2)  whether the parent or guardian has made                                                                     
                                                                                                                                
     substantial progress to remedy the parent's or guardian's                                                                  
                                                                                                                                
     conduct or conditions in the home that made the child a                                                                    
                                                                                                                                
     child in need of aid; [AND]                                                                                                
                                                                                                                                
               (3)  if the permanent plan is for the child to                                                                   
                                                                                                                                
     remain in out-of-home care, whether the child's out-of-home                                                                
                                                                                                                                
     placement continues to be appropriate and in the best                                                                      
                                                                                                                                
     interests of the child; and                                                                                            
                                                                                                                                
               (4)  whether the Department has made reasonable                                                              
                                                                                                                                
     efforts to finalize the permanent plan for the child.                                                                  
                                                                                                                                
   *  Sec. 10.   The  uncodified law  of the  State of  Alaska is                                                             
                                                                                                                                
amended by adding a new section to read:                                                                                      
                                                                                                                                
     CONDITIONAL EFFECT.  Section 5 of this Act takes effect                                                                    
                                                                                                                                
only if sec. 9 of this  Act receives the two-thirds majority vote                                                               
                                                                                                                                
of each house  required by art. IV, sec. 15,  Constitution of the                                                               
                                                                                                                                
State of Alaska."                                                                                                             
                                                                                                                                
                                                                                                                              
                                                                                                                                
Renumber the remaining bill section accordingly.                                                                                
                                                                                                                                
                                                                                                                                
SENATOR  THERRIAULT asked  whether the  bill related  to criminal                                                               
incarceration.                                                                                                                  
                                                                                                                                
9:39:12 AM                                                                                                                    
MS. KRALY  responded there are  two provisions within SB  83 that                                                               
address  children  in  state  custody. They  deal  with  the  PFD                                                               
dividend  and  allow  the  child   to  remain  eligible  for  the                                                               
dividend. The bill does not relate to criminal incarceration.                                                                   
                                                                                                                                
SENATOR HUGGINS asked  Ms. Kraly to describe  the PFD restitution                                                               
process.                                                                                                                        
                                                                                                                                
MS. KRALY  informed the state applies  for the PFD for  the child                                                               
in custody and  the dividend goes into a trust  account. When the                                                               
child  is  released,  the  PFD  goes  to  their  legal  guardian,                                                               
adoptive parents, or  to them if they have aged  out. The DOL may                                                               
request  permission to  use the  PFD to  repay restitution  for a                                                               
criminal infraction.                                                                                                            
                                                                                                                                
9:42:18 AM                                                                                                                    
SENATOR  FRENCH  asked the  Alaska  Supreme  Court decision  that                                                               
brought  about the  first  part  of SB  83  [allowing parents  to                                                               
retain communication with the child.]                                                                                           
                                                                                                                                
MS. KRALY responded it was Keith MW79P3rd 6/23/2003.                                                                            
                                                                                                                                
SENATOR FRENCH asked what happened.                                                                                             
                                                                                                                                
MS. KRALY  said the  general premise was  there was  no mechanism                                                               
within  the  current  statutory frame  for  a  relinquishment  to                                                               
contain   any  residual   privileges  or   rights  to   a  parent                                                               
relinquishing.                                                                                                                  
                                                                                                                                
SENATOR  FRENCH  noted  the relinquishment  is  voluntary  and  a                                                               
termination is caused through action  by the department. He asked                                                               
whether they were two different processes.                                                                                      
                                                                                                                                
MS. KRALY said historically the  DOL and the Office of Children's                                                               
Services (OCS)  have looked at  them as two  different processes.                                                               
There are  instances where it  makes sense to allow  for parental                                                               
contact, such as when another family member adopts the child.                                                                   
                                                                                                                                
9:45:47 AM                                                                                                                    
The relinquishment  with the conditions  is an effort to  allow a                                                               
parent to  make a difficult  decision easier and still  allow for                                                               
some contact.                                                                                                                   
                                                                                                                                
CHAIR SEEKINS  asked whether the  foster parents could  choose to                                                               
allow the contact and could they also discontinue the contact.                                                                  
                                                                                                                                
9:47:47 AM                                                                                                                    
MS. KRALY said  the foster parent always has the  ability to make                                                               
those kinds of decisions.                                                                                                       
                                                                                                                                
SENATOR  HUGGINS asked  Ms.  Kraly whether  SB 83  is  part of  a                                                               
larger strategy to modify how the DOL and OCS operate.                                                                          
                                                                                                                                
MS. KRALY advised  SB 83 is a technical amendment  to the current                                                               
statute. Over the course of hundreds  of court cases, the DOL has                                                               
discovered some hitches that need  fixed in order to successfully                                                               
litigate some  cases. The bill would  help the DOL more  than the                                                               
OCS as a tool to manage caseloads.                                                                                              
                                                                                                                                
9:50:37 AM                                                                                                                    
CHAIR SEEKINS  noted he  would ask the  drafters to  consider the                                                               
amendment for the next time the committee looks at SB 83.                                                                       
                                                                                                                                
SENATOR HUGGINS  moved Amendment 1  be adopted for  staff rewrite                                                               
for consideration.                                                                                                              
                                                                                                                                
SENATOR FRENCH objected  for the purpose of  discussion. He asked                                                               
Ms. Kraly to summarize the amendment.                                                                                           
                                                                                                                                
MS. KRALY  said currently the  court is required to  make certain                                                               
findings  in   CINA  hearings.  An  omission   that  the  federal                                                               
government  requires  for  foster care  funding  was  discovered.                                                               
Under state  and federal  law after  12 months  of a  child taken                                                               
into custody, it is required there  be a new hearing to discuss a                                                               
permanency plan.  The government requires  that the court  make a                                                               
special  judicial  finding  that  the  DOL  has  made  reasonable                                                               
efforts to  finalize the  permanency plan  for the  child. Judges                                                               
are uncomfortable to make those  findings. The amendment proposes                                                               
to make it  a required finding so the department  can continue to                                                               
receive foster care funding under Title 40.                                                                                     
                                                                                                                                
SENATOR FRENCH  assumed the department  wouldn't get  the funding                                                               
if the finding didn't occur.                                                                                                    
                                                                                                                                
MS. KRALY said correct.                                                                                                         
                                                                                                                                
9:53:58 AM                                                                                                                    
MS.  MARCIE KENNAI,  deputy  commissioner,  Office of  Children's                                                               
Services, said what the finding  is is irrelevant; they just need                                                               
a finding  to continue to  receive the  federal funding. It  is a                                                               
check and balance.                                                                                                              
                                                                                                                                
9:55:15 AM                                                                                                                    
SENATOR FRENCH removed his objection.                                                                                           
                                                                                                                                
MS. MARCY SCHMIDT testified in favor of SB 83.                                                                                  
                                                                                                                                
9:57:16 AM                                                                                                                    
MR. SCOTT CALDER testified in  favor of the proposed amendment to                                                               
SB 83. He expressed concern  with the word "privilege" in Section                                                               
1. He is not  in favor of Section 4. It  would be appropriate for                                                               
the   court   to  authorize   the   department   to  conduct   an                                                               
investigation to  the extent  of search and  seizure of  a child.                                                               
Section  5,  line 10  should  say  "diligent search"  instead  of                                                               
"reasonable search."                                                                                                            
                                                                                                                                
9:59:56 AM                                                                                                                    
SENATOR FRENCH asked  Mr. Calder to explain his  reference to the                                                               
US Constitution Fourth Amendment.                                                                                               
                                                                                                                                
MR. CALDER explained the department  could say that in conducting                                                               
an investigation they may want to  conduct an action to or upon a                                                               
person. That should  be a point where the  court should authorize                                                               
the action.                                                                                                                     
                                                                                                                                
CHAIR SEEKINS asked Mr. Calder  whether his concern is the extent                                                               
of the investigation.                                                                                                           
                                                                                                                                
MR. CALDER  said yes, if  the investigation amounts to  more than                                                               
just a phone  call. Search and seizure  requires greater scrutiny                                                               
and should be required through judicial oversight.                                                                              
                                                                                                                                
CHAIR SEEKINS held  SB 83 in committee and  adjourned the meeting                                                               
at 10:05:41 AM.                                                                                                               

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