Legislature(2003 - 2004)

03/17/2003 01:35 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
          SB   2-PARENT LIABILITY FOR DAMAGE BY CHILD                                                                       
                                                                                                                              
CHAIR  SEEKINS invited  Mr. Wes  Keller to  introduce SB  2.   He                                                               
explained that a blank committee  substitute (CS) was in members'                                                               
packets.   There  was no  objection stated  and work  draft SB  2                                                               
version \I was before the committee as the working document.                                                                    
                                                                                                                                
MR.  KELLER, staff  for Senator  Fred Dyson,  testified that  the                                                               
core purpose of SB  2 is to remove the $10  thousand limit on the                                                               
amount  that can  be recovered  from parents  when a  minor child                                                               
intentionally  destroys  property  or  commits  vandalism.    The                                                               
Alaska  Association of  School Boards  and  the Anchorage  School                                                               
District  support SB  2.   The  legislation was  introduced as  a                                                               
result of  damage that occurred  in Anchorage that was  less than                                                               
$1 million, but considerably more than $10 thousand.                                                                            
                                                                                                                                
During hearings  on the  House version of  this bill,  and during                                                               
the  previous Senate  hearing, there  was discussion  that raised                                                               
the  question of  whether it  was more  appropriate to  raise the                                                               
limit rather than eliminate it.   The sponsor wants to remove the                                                               
limit  completely so  when damage  occurs the  minor can  be held                                                               
liable for the  actual cost of the damage.   If the state removes                                                               
responsibility from the  parents, and then if the  state does not                                                               
take the responsibility  for the damage, the cost  gets passed to                                                               
the victim.   That is not  appropriate nor is it  appropriate for                                                               
the state to assume that kind of parental responsibility.                                                                       
                                                                                                                                
MR. KELLER assured the committee that  this does not mean that if                                                               
there is  $1 million  in damage  done that $1  million has  to be                                                               
collected.   The judge may consider  mitigating circumstances and                                                               
the  situation could  be worked  out in  court.   There are  laws                                                               
involving bankruptcy  protection so  a parent wouldn't  be ruined                                                               
because of a child's actions.                                                                                                   
                                                                                                                                
MR. KELLER explained  the CS before the committee  came about due                                                               
to an  inconsistency in  the law.   Section 13.26.070  states the                                                               
guardian of  a minor is not  liable for the action  of the child.                                                               
Yet, legal  guardians are held  responsible for the actions  of a                                                               
minor in  Section 34.50.020.  The  intent of the CS  is to remove                                                               
the  legal guardian  language to  make the  two laws  consistent.                                                               
This  is consistent  with how  the Division  of Family  and Youth                                                               
Services  (DFYS) is  doing business  and  page 25  of the  Alaska                                                               
Foster Parent Handbook explains  that the state carries liability                                                               
insurance  to  cover foster  parents  if  a foster  child  causes                                                               
damage.                                                                                                                         
                                                                                                                                
MR.  KELLER  said  an additional  amendment  is  being  suggested                                                               
because several Senators  noted that the child  is left harmless.                                                               
They  asked about  recovery from  the child's  permanent fund  or                                                               
other assets.   The Department  of Law determined that  if damage                                                               
is  done,  there   is  no  protection  of   the  child's  assets.                                                               
Typically, going  after a child's  assets isn't done  because the                                                               
revenue per  year is  small compared to  legal costs.   Amendment                                                               
\I.1 would  require the  victim to  get a  judgment on  the child                                                               
before seeking the assets of the parent.                                                                                        
                                                                                                                                
SENATOR  FRENCH  asked how  much  liability  insurance the  state                                                               
carries for foster parents.                                                                                                     
                                                                                                                                
MS.  JOANNE  GIBBENS,  Division of  Family  and  Youth  Services,                                                               
program  administrator  didn't  know,  but  offered  to  get  the                                                               
information.   She said she  did know that the  state indemnifies                                                               
foster  parents against  any physical  harm a  child might  do to                                                               
another individual.                                                                                                             
                                                                                                                                
SENATOR FRENCH said, "But you don't  know the amount, it could be                                                               
$5 thousand it could be $1 million."                                                                                            
                                                                                                                                
MS. GIBBENS agreed.                                                                                                             
                                                                                                                                
SENATOR  FRENCH  said  he  wanted  to be  crystal  clear  on  the                                                               
amendment  because there  were markings  on it.   He  pointed out                                                               
that  the CS  before the  committee is  \I version  and not  \I.1                                                               
version.  He  referred to Section 34.50.020  where subsection (d)                                                               
contained handwriting.  He asked  if this exempts legal guardians                                                               
or adoptive parents from liability.                                                                                             
                                                                                                                                
MR.  KELLER  explained  the  un-amended Section  3  is  meant  to                                                               
address adoptive parents  that are receiving a  state subsidy for                                                               
adopting a  hard to place  child.  The  goal is to  hold adoptive                                                               
parents harmless when an older child is adopted.                                                                                
                                                                                                                                
The  amendment adds  a  new  Section 2,  and  allows recovery  of                                                               
damages only after  the person bringing a civil  action has first                                                               
obtained a judgment against the child's assets.                                                                                 
                                                                                                                                
CHAIR SEEKINS asked if there was a motion on the amendment.                                                                     
                                                                                                                                
SENATOR FRENCH asked if the amendment was \I.1.                                                                                 
                                                                                                                                
CHAIR SEEKINS said that was correct.                                                                                            
                                                                                                                                
SENATOR  THERRIAULT  asked  if  the prime  sponsor  of  the  bill                                                               
brought the amendment to the committee.                                                                                         
                                                                                                                                
MR. KELLER said that was correct.                                                                                               
                                                                                                                                
SENATOR THERRIAULT  asked if  it clarifies  that people  can't go                                                               
after the assets  of the legal guardians until a  judgment on the                                                               
child is attained.                                                                                                              
                                                                                                                                
MR. KELLER  clarified it is  actually the assets of  the parents.                                                               
The intent of  the amendment is to put the  child's assets on the                                                               
line first.                                                                                                                     
                                                                                                                                
SENATOR  FRENCH asked  if the  original  bill and  the CS  exempt                                                               
legal guardians.                                                                                                                
                                                                                                                                
MR. KELLER said the original  language that exists in law exempts                                                               
legal guardians.                                                                                                                
                                                                                                                                
SENATOR FRENCH asked whether the CS maintains that exemption.                                                                   
                                                                                                                                
MR.  KELLER said  yes.   The  terminology on  legal guardians  is                                                               
being removed  because it  is confusing in  both laws  before the                                                               
committee.                                                                                                                      
                                                                                                                                
SENATOR FRENCH asked him to explain it from the beginning.                                                                      
                                                                                                                                
MR. KELLER referred to the  handout containing Sec. 13.26.070 and                                                               
Sec. 34.50.020.  He said Sec.  13.26.070 says the guardian is not                                                               
liable to third persons, by  reason of the parental relationship,                                                               
for the acts of  the ward or the acts of the  child.  Current Sec                                                               
34.50.020  language allows  recovery  of damages  from the  legal                                                               
guardian.  The CS goes way  beyond the purpose of the bill, which                                                               
is to  get rid of the  cap on the  liability.  The CS  fixes this                                                               
section of law  to reflect both what the department  is doing and                                                               
what is reflected in other parts of the law.                                                                                    
                                                                                                                                
SENATOR  FRENCH asked  if the  reform is  to keep  foster parents                                                               
liable or not liable.                                                                                                           
                                                                                                                                
MR. KELLER answered not liable.                                                                                                 
                                                                                                                                
SENATOR FRENCH reiterated that foster  parents are not liable for                                                               
the damage of their charges.                                                                                                    
                                                                                                                                
MR. KELLER said that is correct.                                                                                                
                                                                                                                                
CHAIR SEEKINS  read from  page 2,  line 19,  (B).   "The adoptive                                                               
parents of  an unemancipated  minor if  the adoptive  parents are                                                               
receiving  financial assistance  from the  state as  a result  of                                                               
that  adoption."   He  asked  if  children suffering  from  fetal                                                               
alcohol   syndrome  (FAS)   are  normally   adopted  under   this                                                               
provision.                                                                                                                      
                                                                                                                                
MS. GIBBENS answered yes.   There are federal guidelines for what                                                               
constitutes a  special needs child  for the purposes  of adoption                                                               
and  being  eligible for  an  adoption  subsidy.   Because  fetal                                                               
alcohol syndrome children  have a lot of  complicated medical and                                                               
or behavioral  issues, they would  qualify as a child  that would                                                               
be eligible for a subsidy.                                                                                                      
                                                                                                                                
SENATOR THERRIAULT said this bill is  an attempt to get these two                                                               
sections  of  statutes  to  jive.   He  said  he  worked  on  the                                                               
legislation  when the  cap was  raised  from $2  thousand to  $10                                                               
thousand and was trying to refresh  his memory on the things that                                                               
were brought up at that time.                                                                                                   
                                                                                                                                
He  asked  whether   he  would  be  exempt  if   his  sister  was                                                               
incapacitated or  had died and he  was acting in the  capacity of                                                               
legal  guardian  for his  nephew,  but  hadn't gone  through  the                                                               
adoption process and wasn't paid by the state.                                                                                  
                                                                                                                                
MR.  KELLER  replied, as  he  understood  it, Senator  Therriault                                                               
would be  exempt if he has  the legal position of  being guardian                                                               
of  the child.   The  legal guardian  of the  child, guardian  ad                                                               
litem or foster parent would be held harmless.                                                                                  
                                                                                                                                
CHAIR SEEKINS added Sec. 13.26.070  exempts Senator Therriault as                                                               
a legal guardian.   This section is kind of  a Revisor's bill and                                                               
would  remove blame  from a  legal  guardian.   A legal  guardian                                                               
would  not  be  responsible,  only  the  blood  parent  would  be                                                               
responsible.                                                                                                                    
                                                                                                                                
SENATOR THERRIAULT asked  if Sec. 13.26.070 is  applicable in all                                                               
guardianship  relationships or  was  that a  specific section  of                                                               
statute that dealt with state foster parent situations.                                                                         
                                                                                                                                
MR. KELLER  said it  is a  clumsily placed  section of  law under                                                               
children  and  adults  with  disabilities.    The  pure  straight                                                               
language of  the bill  looks like there  is an  obvious conflict.                                                               
The  Department of  Health and  Social  Services (HESS)  referred                                                               
them to  the section  and they presumed  that foster  parents and                                                               
legal guardians  were not liable.   He checked a court  rule that                                                               
found guardians ad litem are not  held responsible.  He said that                                                               
was not  a very  good answer.   He didn't  think that  section of                                                               
law, Sec.  13.26.070, would  be a  problem in court.   As  far as                                                               
DFYS knew, it had not been tested                                                                                               
                                                                                                                                
CHAIR  SEEKINS  told Senator  Therriault  they  could request  an                                                               
opinion from the Department of Law and hold another hearing.                                                                    
                                                                                                                                
SENATOR THERRIAULT  said he was  trying to figure out  the policy                                                               
call.  The state has children  in foster homes and wants to place                                                               
them in  a good setting.   The state wants loving  adults to take                                                               
those children and doesn't want those  adults to have the risk of                                                               
taking in  a troubled  teen that might  break out  the neighbor's                                                               
window and place the adult's assets at risk.                                                                                    
                                                                                                                                
SENATOR THERRIAULT  then posed  a scenario in  which he  took his                                                               
nephew  under guardianship  for  most  of his  life  and let  him                                                               
completely run amuck.   He was acting as a  parent in every sense                                                               
of the word  and asked if he should be  completely exempt because                                                               
he is not the parent.   Some discussions on that type of scenario                                                               
occurred when  this legislation was dealt  with in the past.   He                                                               
said he was trying to figure out the sensible policy call.                                                                      
                                                                                                                                
1:55 pm                                                                                                                       
                                                                                                                                
SENATOR  FRENCH  understood there  is  an  insurance policy  that                                                               
covers foster parents.   If an individual takes  in this troubled                                                               
youth and he or she goes  next door and breaks out the neighbor's                                                               
windows then the  individual's assets are not at  risk because of                                                               
the  insurance policy.    He  asked if  the  insurance policy  no                                                               
longer applies if the individual  subsequently adopts that foster                                                               
child.                                                                                                                          
                                                                                                                                
MR. KELLER said,  as he understands this  legislation, the answer                                                               
is yes.   If a child  is adopted, the parental  responsibility is                                                               
taken  over   completely.    The  adoptive   parent  assumes  the                                                               
liability for  the actions of  the adopted  child unless it  is a                                                               
subsidized adoption, which would be  an adoption of somebody that                                                               
is hard to place.                                                                                                               
                                                                                                                                
SENATOR  FRENCH  asked  if  that is  addressed  in  the  proposed                                                               
legislation or  is that the way  the current law reads.   He read                                                               
that Sec.  34.50.020 subsection (a), does  not authorize recovery                                                               
of damages  from the adoptive  parents of an  unemancipated minor                                                               
if the  adoptive parents are receiving  financial assistance from                                                               
the state as a result of the adoption.   He asked if that was the                                                               
section.                                                                                                                        
                                                                                                                                
MR. KELLER said yes, that is  the section; it is a new subsection                                                               
and that is our wording.                                                                                                        
                                                                                                                                
SENATOR FRENCH asked  if this would cover any  adoption where the                                                               
parents are  getting public funds.   For example, food  stamps or                                                               
ATAP (Alaska Temporary Assistance  Program) or anything else like                                                               
that.                                                                                                                           
                                                                                                                                
MR. KELLER answered that was not the intent.                                                                                    
                                                                                                                                
SENATOR FRENCH  noted the intent  is to hold harmless  only those                                                               
people  who adopted  and are  getting financial  assistance as  a                                                               
result of  the adoption.   He  questioned why  that is  a special                                                               
category.                                                                                                                       
                                                                                                                                
MR. KELLER  said it  is a  special category  because they  do not                                                               
want  to discourage  loving adults  from taking  on difficult  to                                                               
place children. The intent is to hold those adults harmless.                                                                    
                                                                                                                                
CHAIR SEEKINS said  it is not uncommon for an  FAS child to reach                                                               
puberty  and to  develop aberrant  behavior.   It  might be  very                                                               
difficult for the child to tell  right from wrong.  Someone might                                                               
be discouraged  from trying  to help  that child  if they  had to                                                               
assume that kind  of liability.  He said he  could understand why                                                               
that provision might be there.                                                                                                  
                                                                                                                                
SENATOR THERRIAULT  questioned whether this bill  provides access                                                               
to  a  state  insurance  policy   for  a  state  placement  legal                                                               
guardianship where the child does damage.                                                                                       
                                                                                                                                
MR. KELLER said he did not know.   He thought the policy might be                                                               
directed just at foster parents.   He said it is addressed in the                                                               
foster  parent handbook,  but  he  did not  know  how broad  that                                                               
policy is.                                                                                                                      
                                                                                                                                
CHAIR SEEKINS asked Ms. Gibbens if she knew the answer.                                                                         
                                                                                                                                
MS.  GIBBENS said  she understands  there  is access  to a  state                                                               
insurance policy, but she would  verify that.  Sec. 34.50.020 (b)                                                               
currently holds  foster parents harmless  for any damage  a child                                                               
causes.  The  indemnification that the state  provides for foster                                                               
parents is for  any personal injury that a foster  child might do                                                               
to  another  individual.    It  might  not  cover  any  potential                                                               
property   damage.   However,   according  to   regulation,   the                                                               
department  does pay  foster parents  up to  $5 thousand  for any                                                               
damage that a child may cause.                                                                                                  
                                                                                                                                
CHAIR SEEKINS asked  if that would be paid to  the foster parents                                                               
or to anyone.                                                                                                                   
                                                                                                                                
MS. GIBBENS gave  and example where the child went  next door and                                                               
broke a  window.  The  division would  give funds to  that foster                                                               
parent to help pay  for the window repair.  She  said she did not                                                               
believe  there  was any  relationship  there  in terms  of  legal                                                               
guardian.  She  thought it was just for foster  parents but would                                                               
get that clarified from risk management.                                                                                        
                                                                                                                                
CHAIR  SEEKINS referred  to the  case  Senator Therriault  talked                                                               
about where  he took over  as the  legal guardian of  his nephew.                                                               
If the  nephew was a rascal,  Senator Therriault might not  be so                                                               
inclined to be  the guardian. Unless there was  some exemption on                                                               
Senator  Therriault's behalf,  the  nephew might  end  up in  the                                                               
state foster  care program.  He  said he could see  why the state                                                               
might try to  keep that child in the family  rather than make the                                                               
child a ward of the state.                                                                                                      
                                                                                                                                
SENATOR THERRIAULT said  he could understand that,  but you don't                                                               
really care  if you are the  person whose house was  burned down,                                                               
car was stolen or cat was killed.                                                                                               
                                                                                                                                
2:02 pm                                                                                                                       
                                                                                                                                
CHAIR  SEEKINS said  that is  a concern  that probably  should be                                                               
addressed as they look  to see where the risk and  reward is.  An                                                               
individual could say  the child is not his child  and exercise no                                                               
restraint on the  activities of the minor, which is  not good for                                                               
society either.                                                                                                                 
                                                                                                                                
SENATOR ELLIS asked the Chair for his plan for the bill.                                                                        
                                                                                                                                
CHAIR SEEKINS  said the  committee would hear  the bill  a second                                                               
time after receiving some clarification from DFYS.                                                                              
                                                                                                                                
MR.  TIM STEELE,  Vice  President and  Legislative  Chair of  the                                                               
Anchorage School Board, testified in support  of SB 2.  He didn't                                                               
believe  the board  would  have any  problems  with the  proposed                                                               
amendment, but he would take it back for them to review.                                                                        
                                                                                                                                
Damage  recovery   is  one  of   the  Anchorage   School  Board's                                                               
priorities.   The school  district is in  need of  financial help                                                               
due  to  vandalism  and  they   support  this  legislation  as  a                                                               
deterrent.  The Anchorage School  Board is self-insured after the                                                               
first $1  million and they  typically budget about  $250 thousand                                                               
annually to clean up, replace and repair damage.                                                                                
                                                                                                                                
MR. STEELE explained the Anchorage  School District suffered from                                                               
a number  of high profile  cases in a little  over a year.   They                                                               
went over the  $1 million limit and have been  unable to collect.                                                               
The parents  and children  assumed the liability  in one  case at                                                               
Chugiak  Elementary School  where there  was significant  damage.                                                               
They  performed community  service  and accepted  responsibility.                                                               
On the  other side of the  coin, there was significant  damage at                                                               
the maintenance yard  south of town.  Vandals got  into the yard,                                                               
took a  tractor and  ran it  into machinery  and buildings.   The                                                               
tractor  was  destroyed  and  there  was  significant  damage  to                                                               
buildings.   They also broke  all the windows  out of all  of the                                                               
vehicles.                                                                                                                       
                                                                                                                                
MR.  STEELE reported  64 buses  in  Eagle River  had their  brake                                                               
lines  cut today.   That  liability is  not the  Anchorage School                                                               
District's because they  are contractor buses.   There might have                                                               
been  some very  significant liability  had the  brake lines  not                                                               
been completely severed.  As it was, the  brake failures occurred                                                               
while in  the yard  rather than on  the road.   There was  no bus                                                               
transportation in the  Eagle River area this  morning and parents                                                               
had to get their children to school as best they could.                                                                         
                                                                                                                                
MR.  STEELE concluded  there  is  a lot  of  ancillary cost  with                                                               
vandalism.   The  Anchorage School  Board feels  SB 2  would help                                                               
them seek restitution and would  also provide a deterrent.  There                                                               
is a  lot of cost for  the Anchorage Municipality and  for police                                                               
enforcement.   There is  a lot  of cost for  parents in  this bus                                                               
case where  they had to take  extra effort and time  to get their                                                               
kids to school.  The Anchorage  School Board does not want to see                                                               
the good kids of Anchorage have  to subsidize those very few that                                                               
don't  accept  responsibility.     They  are  in   favor  of  the                                                               
legislation and hope the Judiciary Committee moves the bill.                                                                    
                                                                                                                                
CHAIR SEEKINS  asked Mr.  Keller to  have the  proposed amendment                                                               
incorporated  into the  \I  version CS  and  the committee  would                                                               
address it at a future meeting.                                                                                                 
                                                                                                                                
SB 2 was held in committee.                                                                                                     

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