Legislature(2005 - 2006)BUTROVICH 205

02/24/2005 08:30 AM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 83 TERM. PARENTAL RTS/CINA/DELINQUENCY CASES
Moved CSSB 83(JUD) Out of Committee
= SB 84 CHILD PROTECTION CONFIDENTIALITY
Heard & Held
                                                                                                                                
        SB 83-TERM. PARENTAL RTS/CINA/DELINQUENCY CASES                                                                     
                                                                                                                                
CHAIR SEEKINS announced SB 83 to be up for consideration.                                                                       
                                                                                                                                
SENATOR HUGGINS moved  Version \G as the  working document before                                                               
the committee. Hearing no objections, the motion carried.                                                                       
                                                                                                                                
8:41:28 AM                                                                                                                    
CHAIR SEEKINS  noted no  additional witnesses  were signed  up to                                                               
testify on the bill.                                                                                                            
                                                                                                                                
8:42:23 AM                                                                                                                    
MS. STACEY  KRALY, senior assistant attorney  general, Department                                                               
of  Law  (DOL)  and  Ms.   Marcia  Kennai,  deputy  commissioner,                                                               
Department   of  Health   and  Social   Services  (DHSS)   seated                                                               
themselves at the witness table.                                                                                                
                                                                                                                                
SENATOR HUGGINS asked  the witnesses whether there  was a problem                                                               
involving military service personnel  regarding child custody. He                                                               
referred to Section 2.                                                                                                          
                                                                                                                                
8:43:33 AM                                                                                                                    
Senator Therriault joined the committee.                                                                                        
                                                                                                                                
MS. KRALY  admitted the language  in Section 2 was  baffling. She                                                               
offered to research it and get back to the committee.                                                                           
                                                                                                                                
SENATOR  GUESS  explained  the  language  was  moved  to  another                                                               
paragraph  so as  to keep  the language  referring to  a national                                                               
military emergency in the bill.                                                                                                 
                                                                                                                                
8:45:28 AM                                                                                                                    
MS.  LINDA WILSON,  attorney, public  defender agency,  asked for                                                               
the working version.                                                                                                            
                                                                                                                                
CHAIR SEEKINS had his aide fax the document to her.                                                                             
                                                                                                                                
8:47:59 AM                                                                                                                    
MS. WILSON said  she supervises the handling of child  in need of                                                               
aid  (CINA)  cases. Section  1  [allowing  the parent  to  retain                                                               
conditional privileges]  re-establishes old  practice. It  can be                                                               
used to  the best interest of  the child but needs  to go further                                                               
because it  is not enforceable.  If a parent  relinquishes rights                                                               
and  then is  not  allowed  visitation they  are  not allowed  to                                                               
withdraw   their  relinquishment.   The  termination   proceeding                                                               
happens  in the  CINA  courts  but the  adoption  is a  different                                                               
proceeding. Section 1  is commendable but should do  more for the                                                               
parents.                                                                                                                        
                                                                                                                                
8:50:33 AM                                                                                                                    
CHAIR SEEKINS  asked Ms. Wilson  whether it would be  a detriment                                                               
to adoptive parents if termination were enforceable.                                                                            
                                                                                                                                
MS. WILSON  said possibly. A  mechanism in the  adoption statutes                                                               
for the parents to stay involved post-termination would help.                                                                   
                                                                                                                                
CHAIR SEEKINS  said people are  trying to  look out for  the best                                                               
interest  of the  child and  a  certain amount  of authority  for                                                               
adoptive parents should  go along with that. He does  not want to                                                               
cause  prospective  adoptive  parents  to be  deterred  from  the                                                               
adoption.                                                                                                                       
                                                                                                                                
MS.  WILSON   said  the  adoptive   court  would   consider  that                                                               
circumstance.                                                                                                                   
                                                                                                                                
CHAIR SEEKINS noted often adults  twist the minds of children for                                                               
their own benefit.                                                                                                              
                                                                                                                                
8:54:04 AM                                                                                                                    
CHAIR SEEKINS  said if  the court  has terminated  a relationship                                                               
there is  a problem with  the relationship.  Prospective adoptive                                                               
parents  can  offer  stronger   relationships.  Children  can  be                                                               
manipulated by their birth parents.                                                                                             
                                                                                                                                
SENATOR FRENCH said in terms  of finality it seems inefficient to                                                               
add provisions that undo all the  work of the conditions to which                                                               
the parents are allowed visitation.                                                                                             
                                                                                                                                
MS. KRALY  said the purpose of  the sentence is to  have finality                                                               
with the relinquishment in the  proceedings. The CINA proceedings                                                               
are separate and distinct from the adoption proceedings.                                                                        
                                                                                                                                
8:57:04 AM                                                                                                                    
CHAIR SEEKINS asked Ms. Wilson the solution to her concern.                                                                     
                                                                                                                                
MS.  WILSON said  Section 1  was good  but somewhat  illusory. It                                                               
would allow  the parent to retain  a privilege but in  reality it                                                               
is not  enforceable. She suggested  putting a  retained privilege                                                               
in the  adoption decree  so the  biological parent  could address                                                               
their court appointed visitation rights.                                                                                        
                                                                                                                                
CHAIR SEEKINS  asked whether she  was suggesting an  amendment to                                                               
SB 83.                                                                                                                          
                                                                                                                                
MS. WILSON said no.                                                                                                             
                                                                                                                                
8:59:38 AM                                                                                                                    
MS. WILSON continued  Section 6 would present  problems with ICWA                                                               
law [Indian  Child Welfare Act],  which requires that  before you                                                               
can terminate parental rights, the  state must show evidence. You                                                               
cannot  terminate  parental rights  unless  the  state can  prove                                                               
beyond a reasonable  doubt (and it has to include  testimony of a                                                               
qualified  expert witness)  that continued  custody is  likely to                                                               
result  in serious  emotional or  physical damage  to the  child.                                                               
That  is  federal  law.  Allowing an  offer  of  proof  situation                                                               
without having an expert could be challenged legitimately.                                                                      
                                                                                                                                
9:01:39 AM                                                                                                                    
MS. WILSON continued there were  many conditions in Section 6 for                                                               
someone to reach some sort of judicial notice.                                                                                  
                                                                                                                                
CHAIR SEEKINS clarified  her interpretation is a  court could say                                                               
"A qualified  witness would  have found this  way so  therefore I                                                               
rule this way."                                                                                                                 
                                                                                                                                
MS. WILSON said  that is exactly what the paragraph  is trying to                                                               
do and that is inappropriate.  An expert witness is not difficult                                                               
to get.                                                                                                                         
                                                                                                                                
SENATOR FRENCH said he thinks it  pertains to a narrow finding in                                                               
a  set of  narrow circumstances.  The parent  would be  willfully                                                               
absenting himself or herself from  the child and the situation is                                                               
that the parent cannot be found.                                                                                                
                                                                                                                                
9:04:30 AM                                                                                                                    
CHAIR SEEKINS agreed.                                                                                                           
                                                                                                                                
SENATOR THERRIAULT suggested  changing the wording on  line 20 to                                                               
say "...the court may conclude  that the continued custody of the                                                               
child is not in the child's best interest."                                                                                     
                                                                                                                                
CHAIR  SEEKINS speculated  there  was tension  between state  and                                                               
federal law.                                                                                                                    
                                                                                                                                
SENATOR FRENCH said that was his guess.                                                                                         
                                                                                                                                
CHAIR  SEEKINS  said they  would  be  accomplishing the  step  by                                                               
allowing the court  to insert its judgment as  a qualified expert                                                               
witness.                                                                                                                        
                                                                                                                                
SENATOR FRENCH agreed.                                                                                                          
                                                                                                                                
SENATOR THERRIAULT  noted the witness  has to actually  come into                                                               
court.                                                                                                                          
                                                                                                                                
CHAIR SEEKINS said no.                                                                                                          
                                                                                                                                
SENATOR FRENCH said, "Not if we pass this law."                                                                                 
                                                                                                                                
SENATOR THERRIAULT  asked if  the extra  verbiage was  to satisfy                                                               
the federal law.                                                                                                                
                                                                                                                                
MS. KRALY said yes.                                                                                                             
                                                                                                                                
9:06:38 AM                                                                                                                    
CHAIR SEEKINS  asked Ms.  Kraly whether  it was  the department's                                                               
opinion  the extra  verbiage would  satisfy  tension between  the                                                               
state and federal law.                                                                                                          
                                                                                                                                
MS.  KRALY said  we  believe so.  ICWA requires  a  finding by  a                                                               
qualified expert and the offer  of proof, which is basically what                                                               
this would be.                                                                                                                  
                                                                                                                                
CHAIR SEEKINS asked Ms. Wilson the best interest of the child.                                                                  
                                                                                                                                
MS. WILSON responded  to run the proceedings the  way federal law                                                               
set them  up. The bill does  not specify a time  frame or whether                                                               
it was a reasonable search for the parent.                                                                                      
                                                                                                                                
9:08:32 AM                                                                                                                    
CHAIR SEEKINS  asked whether  the opinion  of a  qualified expert                                                               
witness could be done by affidavit.                                                                                             
                                                                                                                                
MS. WILSON stated the bill says testimony.                                                                                      
                                                                                                                                
MS. KRALY said she hadn't thought  it out. There are other issues                                                               
regarding affidavits. The premise under  Section 6 is four months                                                               
to  a year.  The  court  would also  make  the  burden of  proof.                                                               
Conditions safeguard the absent parent.                                                                                         
                                                                                                                                
9:11:19 AM                                                                                                                    
SENATOR FRENCH asked the number of notices sent to a parent.                                                                    
                                                                                                                                
MS.  KRALY informed  currently they  attempt contact  through the                                                               
Department of  Corrections both in  state and out;  child support                                                               
enforcement, PFDs,  taxes, and they contact  other jurisdictions.                                                               
They use certified mail and the public defenders.                                                                               
                                                                                                                                
CHAIR SEEKINS noted there was no one else slated to testify.                                                                    
                                                                                                                                
SENATOR HUGGINS said Section 6  needs clarification regarding the                                                               
presence of the expert witness.                                                                                                 
                                                                                                                                
9:16:49 AM                                                                                                                    
CHAIR SEEKINS noted the only  thing being eliminated was physical                                                               
presence of the expert witness.                                                                                                 
                                                                                                                                
MS. KRALY agreed. The DOL offers numerous proofs in CINA cases.                                                                 
                                                                                                                                
CHAIR SEEKINS said  he is satisfied the safety  and best interest                                                               
of  the child  was being  provided for  because qualified  expert                                                               
witnesses would have already made their conclusions.                                                                            
                                                                                                                                
SENATOR FRENCH  added expert witnesses  were not  being dispensed                                                               
of. It is just on one narrow point about absent parents.                                                                        
                                                                                                                                
SENATOR  HUGGINS  asked Ms.  Kennai  whether  there is  generally                                                               
prior  evidence  of  the  parents  history  that  would  leave  a                                                               
reasonable person to conclude the  parents did not care about the                                                               
child's fate.                                                                                                                   
                                                                                                                                
MS.  KENNAI said  many cases  are  looking at  parents who  could                                                               
never be found from the very beginning.                                                                                         
                                                                                                                                
9:20:24 AM                                                                                                                    
SENATOR  THERRIAULT  moved  CSSB   83(JUD)  from  committee  with                                                               
individual considerations  and attached zero fiscal  notes. There                                                               
being no objections, the motion carried.                                                                                        

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