Legislature(2005 - 2006)BUTROVICH 205

05/06/2005 08:30 AM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to a Call of the Chair --
Heard & Held
Moved SCS CSSHB 53(JUD) Out of Committee
Moved CSHB 268(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
    CSSSHB 53(FIN)-CHILDREN IN NEED OF AID/ADOPTION/GUARDIAN                                                                
10:29:09 AM                                                                                                                   
CHAIR RALPH    SEEKINS   announced   HB   53   to   be   up   for                                                               
MS.  RYNNIEVA  MOSS,  legislative  aide  to  Representative  John                                                               
Coghill, introduced  HB 53, which  consolidates 3  current bills,                                                               
SB  83,  SB  84  and  HB 17,  along  with  items  anticipated  in                                                               
prospective legislation.  Representative Coghill met with  all of                                                               
the previously  mentioned bill sponsors  and took on  the project                                                               
of  consolidating the  bills  so as  to be  sure  to capture  the                                                               
desired end product.                                                                                                            
10:30:48 AM                                                                                                                   
The  Department  of  Health  and   Social  Services  (DHSS),  the                                                               
Department of  Law (DOL),  the public  defender's office  and the                                                               
Office of Public Advocacy (OPA) have  all worked closely on HB 53                                                               
to ensure it is good for  children and families. HB 53 eliminates                                                               
language  in AS  47.10.960,  which  said there  was  no duty  for                                                               
standard of care for children in state custody.                                                                                 
HB  53   strengthens  families  by  giving   them  priority  over                                                               
placement  and  adoption  and  a  special  priority  over  family                                                               
members  who  have raised  the  child  more  than 12  months.  It                                                               
establishes  a   priority  list   and  requires  the   Office  of                                                               
Children's Services  (OCS) to do  everything possible  to provide                                                               
visitation for  the children and  the parents and to  reunify the                                                               
10:33:10 AM                                                                                                                   
HB 53 establishes poverty is not  a reason to deny placement with                                                               
relatives.  Parental rights  cannot be  terminated solely  on the                                                               
basis they  have not  received treatment required  by OCS.  HB 53                                                               
encourages  OCS  to train  foster  parents  to mentor  biological                                                               
10:34:26 AM                                                                                                                   
HB  53  amends  the  definition of  major  medical  treatment  to                                                               
include  medication  that is  used  for  diagnosed mental  health                                                               
disorders. HB  53 creates transparency  of the process.  It opens                                                               
hearings to  the public, while  containing sideboards  that would                                                               
allow a judge  to close the hearings. It  establishes a grievance                                                               
process for  when parents disagree  with what the state  is doing                                                               
with  their  child  and  also  establishes  a  review  panel.  It                                                               
provides  that OCS  could  disclose  confidential information  in                                                               
certain  circumstances. When  parents have  disclosed information                                                               
OCS has a right to explain their part of it.                                                                                    
10:36:30 AM                                                                                                                   
HB 53 encourages  the use of child advocacy  centers. It requires                                                               
mandatory videotaping  of suspected  victims of sexual  abuse. It                                                               
defines  child  advocacy  centers and  establishes  criteria  for                                                               
schools  to follow  when children  are to  be interviewed.  HB 53                                                               
requires OCS  to report back  to voluntary reporters in  20 days.                                                               
It  requires  OCS  to  work  with  legislative  offices  and  the                                                               
ombudsman's office and to continue  to participate after parental                                                               
rights have been terminated.                                                                                                    
10:37:54 AM                                                                                                                   
In  conclusion,  HB  53  goes   a  long  way  in  protecting  and                                                               
preserving families  in Alaska and making  government accountable                                                               
while children are  in state custody. Dealing with  OCS should be                                                               
a good  process and  transparent so that  everyone knows  what is                                                               
going on in the case.                                                                                                           
Chair Seekins recessed the meeting at 10:39:06 AM.                                                                            
Chair Seekins reconvened the meeting at 3:58:54 PM.                                                                           
MS MOSS offered to answer questions.                                                                                            
MS.  TAMMY  SANDERVALL,  acting deputy  commissioner,  Office  of                                                               
Children's Services (OCS), reiterated  earlier testimony from Ms.                                                               
Moss regarding all of the  different departments working together                                                               
on HB 53 to make it good legislation.                                                                                           
SENATOR FRENCH  referred to  Page 21, lines  22-23 and  asked Ms.                                                               
Sandervall to comment on inadequate or crowded housing.                                                                         
4:01:33 PM                                                                                                                    
MS. SANDERVALL  answered there are  times when OCS enters  a home                                                               
that  appears too  crowded  but if  the family  can  show a  safe                                                               
environment, the child  would not be removed  based on inadequate                                                               
housing alone. Further factors should be considered.                                                                            
CHAIR SEEKINS said  Senator Guess had a question  but had stepped                                                               
out of the room.                                                                                                                
MS. MOSS knew the question and  offered to answer it. She said SB                                                               
83  and  SB  84  incurred  amendments  in  the  Senate  Judiciary                                                               
Standing  Committee  and  Senator Guess  wondered  whether  those                                                               
amendments were incorporated  into HB 53. She  reported they were                                                               
except for  the amendment, which  added language saying  only the                                                               
commissioner  or  the   commissioner's  designee  could  disclose                                                               
confidential   information   to   the  public.   She   said   the                                                               
commissioner  of the  Department  of Health  and Social  Services                                                               
(DHSS) should  not be making  policy calls for the  Department of                                                               
Administration  (DOA). She  suggested  changing  the language  to                                                               
include the commissioner of the DOA.                                                                                            
4:06:21 PM                                                                                                                    
SENATOR  GUESS asked  the reason  the DOA  would be  discussing a                                                               
report of harm.                                                                                                                 
MS. MOSS  answered the  Office of Public  Advocacy (OPA)  and the                                                               
public  defender's   office  represent   parents  and   OPA  also                                                               
represents children.                                                                                                            
SENATOR GUESS asked whether the  language is different than in SB                                                               
83 and SB 84 in that the DOA is added to Section 27 (k).                                                                        
MS. MOSS responded yes.                                                                                                         
4:09:49 PM                                                                                                                    
MS. STACEY  KRALY, senior assistant attorney  general, Department                                                               
of  Law (DOL),  advised the  committee the  Office of  Children's                                                               
Services investigates reports of harm.                                                                                          
CHAIR SEEKINS  asked the reason the  Department of Administration                                                               
(DOA) would disclose any information regarding reports of harm.                                                                 
MS. JAN RUTHERDALE, assistant attorney  general, DOL, advised the                                                               
DOA was added because they requested to be.                                                                                     
4:10:54 PM                                                                                                                    
CHAIR  SEEKINS said  the intent  on  the disclosure  side was  to                                                               
protect a department from unrighteous accusation.                                                                               
MS.   KRALY  advised   Section  27   Paragraph  (2)   contains  a                                                               
circumstance where  the DOA would  be involved. The  inclusion of                                                               
the DOA was in  response to a request made by  OPA and the public                                                               
defender agency who are queried by  the press and want to be able                                                               
to respond.                                                                                                                     
4:13:16 PM                                                                                                                    
CHAIR SEEKINS aired  the provision allows for a  low level person                                                               
to  disclose  sensitive information.  It  is  the intent  of  the                                                               
committee to exclude that.                                                                                                      
MS. RUTHERDALE  advised it wouldn't  be a low level  employee; it                                                               
would  be someone  from  the central  office  involved in  public                                                               
CHAIR SEEKINS pointed out that  wasn't identified in the bill. He                                                               
advised Ms. Rutherdale the committee  previously restricted it to                                                               
either the commissioner or the  commissioner's designee. He asked                                                               
whether there would be any objection  from the sponsor or the DOL                                                               
to restate  on Page 18 that  it would be either  the commissioner                                                               
of the DOA or the commissioner  of the DHSS or the commissioner's                                                               
SENATOR FRENCH agreed.                                                                                                          
4:17:19 PM                                                                                                                    
CHAIR SEEKINS moved Amendment 1.                                                                                                
     Page 17 line 24 delete "Department of Health and Social                                                                    
Services  and  the  Department   of  Administration"  and  insert                                                               
"commissioner of the Department of  Health and Social Services or                                                               
the  commissioner's   designee;  or   the  commissioner   of  the                                                               
Department of  Administration or  the commissioner's  designee as                                                               
Hearing no objections, the motion carried.                                                                                      
SENATOR FRENCH proposed Amendment 2.                                                                                            
     Page 18, Paragraphs (1) and (2) delete the word "may",                                                                     
insert "shall" in its place.                                                                                                    
Hearing no objection, the motion carried.                                                                                       
4:19:26 PM                                                                                                                    
SENATOR FRENCH proposed Amendment 3.  He voiced approval from the                                                               
sponsor of HB 53.                                                                                                               
                      A M E N D M E N T 3                                                                                   
OFFERED IN THE SENATE                         BY SENATOR FRENCH                                                                 
     TO:  SCS CSSSHB 53(HES)                                                                                                    
Page 2, line 7, following "Probate Procedure;":                                                                               
     Insert "relating to the admissibility into evidence of the                                                               
prior recorded statement of a crime victim less than 16 years of                                                              
age; and amending Rule 801, Alaska Rules of Evidence."                                                                        
Page 30, following line 29:                                                                                                     
     Insert a new bill section to read:                                                                                         
   "* Sec. 59.  The uncodified law of the State of Alaska is                                                                
amended by adding a new section to read:                                                                                        
          DIRECT  COURT  RULE  AMENDMENT.   Rule  801(d),  Alaska                                                               
     Rules of Evidence, is amended by adding a new paragraph to                                                                 
               (3)  Recorded Statement by Child Victims of                                                                      
     Crime.  The statement is a recorded statement by the victim                                                                
     of a crime who is less than 16 years of age and                                                                            
                    (A)    the  recording  was  made  before  the                                                               
                    (B)    the  victim is  available  for  cross-                                                               
                    (C)     the   prosecutor  and   any  attorney                                                               
          representing the  defendant were  not present  when the                                                               
          statement was taken;                                                                                                  
                    (D)   the recording is on  videotape or other                                                               
          format  that   records  both   the  visual   and  aural                                                               
          components of the statement;                                                                                          
                    (E)   each  person  who  participated in  the                                                               
          taking   of  the   statement  is   identified  on   the                                                               
                    (F)  the  taking of the statement  as a whole                                                               
          was  conducted  in  a manner  that  would  avoid  undue                                                               
          influence of the victim;                                                                                              
                    (G)     the  defense  has  been   provided  a                                                               
          reasonable  opportunity to  view  the recording  before                                                               
          the proceeding; and                                                                                                   
                    (H)   the  court  has had  an opportunity  to                                                               
          view   the  recording   and   determine   that  it   is                                                               
          sufficiently  reliable  and  trustworthy and  that  the                                                               
          interests of  justice are best served  by admitting the                                                               
          recording into evidence."                                                                                             
Renumber the following bill sections accordingly.                                                                               
Page 32, line 28:                                                                                                               
     Delete "sec. 59(d)"                                                                                                        
     Insert "sec. 60(d)"                                                                                                        
Page 33, line 7:                                                                                                                
     Delete "60"                                                                                                                
     Insert "61"                                                                                                                
Page 33, line 20:                                                                                                               
     Delete "sec. 59(a)"                                                                                                        
     Insert "sec. 60(a)"                                                                                                        
Page 33, line 23:                                                                                                               
     Delete: "sec. 64"                                                                                                          
     Insert "sec. 65"                                                                                                           
Page 33, line 26:                                                                                                               
     Delete "sec. 65"                                                                                                           
     Insert "sec. 66"                                                                                                           
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
4:21:29 PM                                                                                                                    
SENATOR  FRENCH  advised  the amendment  would  allow  videotaped                                                               
statements made  by a  victim at  a child  advocacy center  to be                                                               
admissible in court.                                                                                                            
CHAIR  SEEKINS   removed  his   objection.  Hearing   no  further                                                               
objections, Amendment 3 was unanimously adopted.                                                                                
SENATOR  THERRIAULT asked  to have  the  immunity from  liability                                                               
restructure explained to him.                                                                                                   
4:26:27 PM                                                                                                                    
MS.  GAIL  VOITLANDER,  chief assistant  attorney  general,  DOL,                                                               
could not answer  the question, as she did not  have the previous                                                               
bill form.                                                                                                                      
CHAIR  SEEKINS  said his  analysis  is  the word  "improper"  was                                                               
removed  and changed  the words  "failure to  disclose" to  "non-                                                               
disclosure", making it a more  concise restatement without having                                                               
to add another section.                                                                                                         
MS. VOITLANDER  said the  exception is  when a  situation implies                                                               
that disclosure or non-disclosure is improper.                                                                                  
4:30:30 PM                                                                                                                    
SENATOR  GUESS  asked  Ms.  Moss  to  talk  about  "adult  family                                                               
member". She asked where the other parent and step parents rank.                                                                
MS. MOSS deferred the question to Ms. Rutherdale.                                                                               
MS. RUTHERDALE responded  the reason parent and  guardian are not                                                               
included as a family member is  those are the people the child is                                                               
being removed from.                                                                                                             
4:33:35 PM                                                                                                                    
SENATOR GUESS  asked the reason  the other  parent is not  on the                                                               
CHAIR SEEKINS asked the reason  for including the siblings' legal                                                               
guardian but not the child's legal guardian.                                                                                    
MS. RUTHERDALE responded because the  legal guardian is already a                                                               
party   to   the   proceedings.  The   preference   section   [AS                                                               
47.14.100(e)]  is  modeled after  the  Indian  Child Welfare  Act                                                               
(ICWA).  Under  the  jurisdiction  scheme  of  AS  47.10.011,  it                                                               
assumes the other parent is considered.                                                                                         
4:36:38 PM                                                                                                                    
SENATOR GUESS expressed concern with  Page 20 line 22, which puts                                                               
into statute a following order of preference.                                                                                   
MS.  RUTHERDALE  relayed the  judge  always  considers the  other                                                               
parent before the order of preferences.                                                                                         
MS.  MOSS  added Page  8  line  3  refers  to the  other  parents                                                               
SENATOR  GUESS asked  whether HB  53  includes stepsiblings.  She                                                               
continued to express concern that  the best interest of the child                                                               
might be lost.                                                                                                                  
MS.  RUTHERDALE  responded  an  option  could  be  to  amend  the                                                               
4:40:28 PM                                                                                                                    
CHAIR SEEKINS  asked whether the  sibling's legal  guardian would                                                               
include a stepparent.                                                                                                           
MS. KRALY responded that it could.                                                                                              
4:41:41 PM                                                                                                                    
SENATOR  GUESS referred  to Page  11 line  7 and  stated for  the                                                               
record  the country  is over-medicating  children. She  expressed                                                               
worry  about a  legal guardian  deciding the  child should  be on                                                               
medication  with the  parent objecting.  She asked  Ms. Kraly  to                                                               
explain the reason for addressing the situation in the bill.                                                                    
MS. KRALY  said the impetus  was a discussion between  DHSS, OCS,                                                               
and the  DOL about  what actually  constitutes major  medical. AS                                                               
47.10.084  is a  provision, which  says the  residual rights  and                                                               
responsibilities  of a  parent  include but  are  not limited  to                                                               
consent for major medical treatment.  HB 53 clarifies that if the                                                               
parent is  available they will  be involved  but if they  are not                                                               
available it leaves an option.                                                                                                  
4:44:24 PM                                                                                                                    
SENATOR  GUESS asked  the difference  between current  procedures                                                               
and the proposition of Section 17.                                                                                              
MS. KRALY advised Section 17 was  drafted by the DOL in an effort                                                               
to codify current practice.                                                                                                     
SENATOR GUESS asked how HB 53 interacts with ICWA.                                                                              
MS. RUTHERDALE advised ICWA always  trumps state law. HB 53 would                                                               
mainly apply to non-Native children.                                                                                            
4:47:29 PM                                                                                                                    
CHAIR SEEKINS  noted HB 53  was written as  if any child  was the                                                               
topic of discussion and wasn't written to exclude anyone.                                                                       
4:49:00 PM                                                                                                                    
SENATOR  GUESS  asked whether  the  department  would ensure  the                                                               
child attends  the same school and  stays in the same  area after                                                               
being taken from the home.                                                                                                      
MS.  SANDERVALL   agreed  that  is  the   current  practice.  The                                                               
department tries to  keep the child in as  many familiar settings                                                               
as possible.                                                                                                                    
CHAIR SEEKINS noted a good  social worker generally tries to keep                                                               
the child in close proximity to familiar surroundings.                                                                          
4:53:18 PM                                                                                                                    
SENATOR GUESS  asked what HB 53  does to ensure the  children get                                                               
into permanent homes.                                                                                                           
MS. MOSS said  Representative Coghill feels HB 53  makes sure the                                                               
child is  in good care  but does  not endanger making  the family                                                               
whole again.                                                                                                                    
4:57:15 PM                                                                                                                    
SENATOR GUESS asked the recourse if treatment is not funded.                                                                    
MS. MOSS  advised the House  Health and Social  Services Standing                                                               
Committee increased  funding for  training of social  workers and                                                               
for treatment.                                                                                                                  
SENATOR GUESS asked how HB 53 deals with foster care.                                                                           
MS.  MOSS  responded OCS  trains  foster  parents for  mentoring.                                                               
Section 14, subsection (u) addresses that.                                                                                      
SENATOR GUESS  asked whether the  bill slows down the  process of                                                               
getting kids into permanent placement.                                                                                          
MS. MOSS said  it does not but it places  emphasis on looking for                                                               
ways to fix the family as a whole.                                                                                              
5:03:28 PM                                                                                                                    
SENATOR  GUESS addressed  the issue  of reimbursement  for foster                                                               
parents and  the lag time  for repayment. She  suggested measures                                                               
be taken to try and fix the issue.                                                                                              
5:04:59 PM                                                                                                                    
SENATOR  HUGGINS moved  SCS CSSSHB  53(JUD)  from committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         

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