Legislature(1997 - 1998)
03/24/1998 03:07 PM House HES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL
SERVICES STANDING COMMITTEE
March 24, 1998
3:07 p.m.
MEMBERS PRESENT
Representative Con Bunde, Chairman
Representative Joe Green, Vice Chairman
Representative Brian Porter
Representative Fred Dyson
Representative J. Allen Kemplen
Representative Tom Brice
MEMBERS ABSENT
Representative Al Vezey
COMMITTEE CALENDAR
HOUSE BILL NO. 375
"An Act relating to children in need of aid matters and
proceedings; relating to murder of children, criminally negligent
homicide, kidnapping, criminal nonsupport, the crime of indecent
exposure, and the crime of endangering the welfare of a child;
relating to registration of certain sex offenders; relating to
sentencing for certain crimes involving child victims; relating to
the state medical examiner and reviews of child fatalities;
relating to teacher certification and convictions of crimes
involving child victims; relating to access, confidentiality, and
release of certain information concerning the care of children,
child abuse and neglect, and child fatalities; authorizing the
Department of Health and Social Services to enter into an
interstate compact concerning adoption and medical assistance for
certain children with special needs; authorizing the establishment
of a multidisciplinary child protection team to review reports of
child abuse or neglect; relating to immunity from liability for
certain state actions concerning matters involving child protection
and fatality reviews and children in need of aid; relating to
persons required to report suspected child abuse or neglect;
relating to foster care placement and to payment for children in
foster and other care and the waiver of certain foster care
requirements; relating to the access to certain criminal justice
information and licensure of certain child care facilities;
amending Rule 218, Alaska Rules of Appellate Procedure; amending
Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and
providing for an effective date."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 375
SHORT TITLE: CRIMES AGAINST CHILDREN/FOSTER CARE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
2/02/98 2200 (H) READ THE FIRST TIME - REFERRAL(S)
2/02/98 2201 (H) HES, JUDICIARY, FINANCE
2/02/98 2201 (H) INDETERMINATE FN (GOV/VARIOUS DEPTS)
2/02/98 2201 (H) GOVERNOR'S TRANSMITTAL LETTER
2/26/98 (H) HES AT 3:00 PM CAPITOL 106
2/26/98 (H) MINUTE(HES)
3/03/98 (H) HES AT 3:00 PM CAPITOL 106
3/03/98 (H) MINUTE(HES)
3/05/98 (H) HES AT 3:00 PM CAPITOL 106
3/05/98 (H) MINUTE(HES)
3/12/98 (H) HES AT 3:00 PM CAPITOL 106
3/12/98 (H) MINUTE(HES)
3/20/98 (H) HES AT 3:00 PM CAPITOL 106
3/20/98 (H) MINUTE(HES)
3/24/98 (H) HES AT 3:00 PM CAPITOL 106
WITNESS REGISTER
KAREN PERDUE, Commissioner
Department of Health & Social Services
P.O. Box 110601
Juneau, Alaska 99811-0601
Telephone: (907) 465-3030
POSITION STATEMENT: Testified on HB 375 via teleconference.
LISA TORKELSON, Legislative Assistant
to Representative Fred Dyson
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801-1182
Telephone: (907) 465-3467
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
SUSAN WIBKER, Assistant Attorney General
Human Services Section
Civil Division
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
SUSAN COX, Chief, Assistant Attorney General
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
ACTION NARRATIVE
TAPE 98-32, SIDE A
Number 0007
CHAIRMAN CON BUNDE called the House Health, Education and Social
Services Standing Committee meeting to order at 3:07 p.m. Members
present at the call to order were Representatives Bunde, Porter,
Dyson and Kemplen. Representatives Green and Brice arrived at 3:13
p.m. and 3:14 p.m., respectively. Representative Vezey was absent.
HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE
Number 0020
CHAIRMAN BUNDE announced the first item on the agenda was HB 375.
The meeting was teleconferenced for listen only and Commissioner
Perdue was available to testify offnet. Chairman Bunde said, "As
you've heard, we've had some heated testimony on this bill and I
want to, I guess, establish why at least in my mind we are working
in this arena and to also establish how this bill will work toward
accomplishing what I think we all acknowledge are some problems in
the child protection system." He asked Commissioner Perdue to
bring the committee up to date on the present status of child
protection. He asked if he was correct that statutorily, the
Department of Health & Social Services, through the Division of
Family and Youth Services (DFYS) is required to investigate all
reports of harm.
Number 0224
KAREN PERDUE, Commissioner, Department of Health & Social Services,
testifying offnet, said Chairman Bunde was correct, the statute
states each report of harm shall be investigated.
CHAIRMAN BUNDE commented the realities, however, are the department
is at the point of not being able to obey the law.
COMMISSIONER PERDUE affirmed that. She pointed out that over the
course of the years, the department has done what is referred to as
"workload adjusting" which prioritizes the calls as they come in.
Over time it has become more pronounced so now about 3,700 reports
of harm are workload adjusted which Commissioner Perdue believes
should, under statute, be investigated.
CHAIRMAN BUNDE recalled that over the past four or five years,
there have been about 5,000 reported cases of harm per year that
were not investigated.
COMMISSIONER PERDUE stated that figure may be a little overstated.
She went on to explain that of those 5,000 reported cases, there's
probably about 1,000 - 1,500 for which the department didn't have
enough information. So realistically there's probably 3,000 -
4,000 reported cases each year that are not being looked into.
Number 0288
CHAIRMAN BUNDE reaffirmed that if a report of harm is received, the
department, statutorily, doesn't have the choice to not investigate
the report, but in some cases it can't be looked into because of a
lack of information.
COMMISSIONER PERDUE said that was correct; for example, sometimes
a caller isn't specific enough with the name, address or
whereabouts of the child.
Number 0319
CHAIRMAN BUNDE concluded that in the last five years there have
been approximately 15,000 - 20,000 reports of harm that have not
been investigated.
COMMISSIONER PERDUE thought that was a fair assumption.
CHAIRMAN BUNDE asked Commissioner Perdue to explain how this
legislation will reduce the number of reports of harm not being
investigated.
Number 0370
COMMISSIONER PERDUE replied, "In comparing our system with other
systems, we have a very high number of reports of child abuse in
our state per capita and many people believe it's because we let
some cases go where they're multiple reports of harm before we're
able to go and look in on the situation. In child protection
systems that are functioning effectively, there's a little bit
earlier intervention and over time there should be less crises that
come to the attention of the division and children are not as
damaged. There's not as much time gone by and I think what this
bill would do would put in place clearer laws that would allow for
instance, for the state to intervene in cases where there's serious
substance abuse or a child is living in a crack house, those kinds
of things. Those are areas where we may not be able to intervene
right now. So over time what we would have, I think, is a more
efficient system."
Number 0442
CHAIRMAN BUNDE noted there's an old expression in the legislature,
"Bad cases make bad law" and the cases that are brought to
legislature's attention are, of course, the worst cases. The other
side of that is the people who contact their legislator because
they feel they've been treated in an unfair manner. He asked
Commissioner Perdue if this legislation would address that
situation or do changes need to be made in basic managerial
procedures?
COMMISSIONER PERDUE said she believes there needs to be more
accountability for and more oversight of the system. There are
administrative changes in the bill that should lead to that; for
example, foster parents having a more formal role as another set of
eyes and ears for the child and having the multidisciplinary teams
reviewing situations. In other words, sharing the responsibility
and oversight will help to ensure there are checks and balances in
the system. She said that, by itself, probably isn't enough;
administrative reviews need to be in place to make sure that
consistent decisions are being made statewide to ensure that
children in all parts of the state are being treated under the same
standard.
Number 0565
CHAIRMAN BUNDE acknowledged the multidisciplinary teams are
addressed in this bill. However, constituents working in the child
care or medical field have expressed a high level of frustration
with the lack of interagency cooperation, some people referring to
it as a "turf battle." Chairman Bunde asked Commissioner Perdue
what changes the legislature could make that would help promote an
interdisciplinary approach.
COMMISSIONER PERDUE responded, "Well, I think, just off the top of
my head, I don't think that some of these important decisions
should be made in isolation by one person. I feel as though some
of these decisions are so important that we should, in the very
serious cases, have other levels of review - of course, we always
have the courts when we remove the child, but in terms of how long
we're taking to process a case and so on - I think that having
multidisciplinary teams and others involved in decision making is
important. You have to balance that against the issue of how
quickly the system needs to move because when you get more people
involved, it sometimes takes more time. So, you don't want to tie
up the system at the emergency point with all kinds of coordination
but you need to have regular points along way for somebody who is
looking at the system. Not inconsistent with federal changes that
happened in November, this bill has a situation where the court is
more heavily involved in a more frequent basis in the review time
on the cases where the child is in state custody."
Number 0706
CHAIRMAN BUNDE said another concern that's come to the committee's
attention is that of the lack of training, or sophistication of
some of the people who are hired and become social workers in name
only. He asked if Commissioner Perdue saw this as an issue that
should be and could be addressed and if hiring individuals with a
higher level of training would alleviate some of this problem.
COMMISSIONER PERDUE replied this is a labor intensive business and
the quality of the workforce is directly related to quality of
decision making and how much support and training is given to
workers. She explained about 90 percent of the workers have a
college diploma and about 44 percent have a master's degree or
bachelor's degree in social work. She wasn't convinced that an
individual needed to be a social worker in order to do this type of
work; frankly, some of the best workers are those with a lot of
time in the field and may not have the right degree on paper. The
common denominator as she sees it, is reducing the turnover thereby
reducing the vacancy, which means workers have to be supported
which in turn means they have to be trained. She agreed the
minimum qualifications should be revised upward, but she didn't
want to discount those long time workers who are doing excellent
work without having a degree in social work. The department's
training efforts have fluctuated over the years but it is currently
working to establish a permanent arrangement with the University of
Alaska for an ongoing academy much like the Alaska State Troopers
using some federal dollars.
Number 0858
CHAIRMAN BUNDE commented that while HB 375 doesn't address the
issue of training, he's hopeful Commissioner Perdue had indicated
the department would be trying to hire more highly qualified
people. Obviously, it's less expensive to hire someone who has the
education and training than to hire someone who requires all the
training. He stressed it's not only important for the public to
have confidence in the process, but the Administration must be
comfortable the process is working.
COMMISSIONER PERDUE added that in terms of frustration, when
turnover is high, there's a number of different people working on
the same case which translates to interruption in continuity for
the families, the children and the foster parents. Therefore, a
reduction in turnover and vacancy should result in better
efficiencies for the public. She pointed out the department is the
best it's been in seven years in terms of vacancies.
Number 0949
CHAIRMAN BUNDE noted the legislature has been concerned that funded
vacant positions be filled in a timely manner. In an earlier
hearing, Chairman Bunde had asked who was the one person
responsible when these children "fall through the cracks" or who
should be complimented when the system works properly. While HB
375 doesn't address that issue, he had thought Commissioner Perdue
had indicated that from a management point of view, there will be
people specifically responsible for following a child through the
process and reducing the number of workers families have to talk
to, reducing the number of times children have to be interviewed
and attempting to reduce the opportunities for a child to "fall
through the cracks."
COMMISSIONER PERDUE recalled that her answer to Chairman Bunde's
question was that she has the responsibility as a manager to make
improvements to the system and is very committed and serious about
that. It's a big job and while there's a lot to do, the department
is reducing vacancies, improving training, hoping to have foster
parents more actively involved in the process and the long term
goal is to intervene more productively with families earlier and
not to have children waiting in the system for long periods of
time.
Number 1045
CHAIRMAN BUNDE stressed that obviously was the goal of the
committee as well. He commented this problem has been building and
ongoing for a number of years and while no answers or conclusions
have been reached, this legislation attempts to work with the
department to help solve the problems. If this bill becomes law,
the legislature will be following to see that it does, along with
some managerial changes, allow the department to meet the statutory
requirement to investigate all reports of harm.
COMMISSIONER PERDUE wanted to point out that even though this isn't
an issue for consideration in this committee, the third part of the
equation, beyond accountability and new laws, is there's simply
not enough bodies to investigate all reports of harm. She said
that issue will be addressed in the budget.
CHAIRMAN BUNDE reiterated frustration on the part of the
legislature because the department has been slow to fill positions
which have been funded. The legislature will be watching with
interest to see that the department is able to fill the positions
more rapidly. He emphasized it's Commissioner Perdue's
responsibility to keep the legislature aware of the challenges
facing the department and the problems with the system. It's
unfortunate the legislature had to wait this long and that it took
tragedies to encourage everyone to move on the issue. In summary,
Chairman Bunde said the legislature is committed to working with
the department on this piece of legislation and whatever iteration
it takes as it moves through the legislative process.
Additionally, the legislature, aware there's been problems with the
system, will be closely monitoring the system and asks the
commissioner to inform the legislature in a timely manner if this
doesn't correct the problems.
Number 1182
CHAIRMAN BUNDE announced that Representative Dyson had drafted a
committee substitute and Representative Brice had an amendment.
Number 1234
REPRESENTATIVE FRED DYSON made a motion to adopt proposed committee
substitute 0-GH2009\B, Lauterbach, 3/23/98, as a work draft.
REPRESENTATIVE TOM BRICE objected for discussion purposes.
CHAIRMAN BUNDE asked Representative Brice to speak to his
objection.
REPRESENTATIVE BRICE said, "Frankly, it is a 56-page committee
substitute; the original bill was only 49 - there's 7 or 8 pages of
other stuff that I'm just not sure that I want to be on record to
support or oppose one way another at this point in time and this
was the first day that I've gotten it. Just to get that on
record."
Number 1279
REPRESENTATIVE BRICE removed his objection after stating his
concerns.
Number 1299
REPRESENTATIVE DYSON apologized to committee members about the
lateness of the proposed committee substitute, but his office had
just received the document from Legislative Legal Services. He
noted that a number of individuals from the Administration had
spent an inordinate amount of hours working on the proposed
committee substitute and most of the differences between the
proposed committee substitute and the Governor's bill have been
agreed upon by the Administration with the exception of the
leadership of the multidisciplinary team.
CHAIRMAN BUNDE asked Susan Wibker and Lisa Torkelson to come
forward to the witness table.
Number 1385
LISA TORKELSON, Legislative Assistant to Representative Fred Dyson,
Alaska State Legislature, explained the rough summary of changes
distributed to committee members had actually been prepared prior
to the drafting of the proposed committee substitute and doesn't
reflect all the changes. She noted the sexual offender
registration sections were removed due to the single subject
requirement because it didn't relate to children.
CHAIRMAN BUNDE asked Representative Dyson to explain why Section 1
should be codified and remain in statute.
REPRESENTATIVE DYSON said the Division of Family and Youth Services
has indicated that part of the problem has been a change that was
made to the law in 1992 which places the primary emphasis and
states the intent to be the preservation of the birth family. The
division has argued the result of that change has been an over-
emphasis on unification or reunification of the birth family to the
point that children have been left in jeopardy or placed in
jeopardy and harm. The new intent language in the proposed
committee substitute states the primary goal is a safe and
permanent home for the child with, of course, the first option
being the reunification and support of that home.
Number 1542
CHAIRMAN BUNDE recalled a discussion regarding children's rights
versus parents' rights. He asked Ms. Wibker if the new Section 1
will address that issue adequately and does it also then reduce
some of the tort considerations.
SUSAN WIBKER, Assistant Attorney General, Human Services Section,
Civil Division, Department of Law, announced that Assistant
Attorney General, Susan Cox, who specializes in torts was available
to answer questions. She added if that language is in statute,
there will need to be parallel language in the immunity section.
Number 1594
MS. TORKELSON explained that according to Terri Lauterbach of
Legislative Legal Service, Section 1(a) of the E Version was moved
to Section 24 of the proposed committee substitute as a new
AS 47.05.065.
CHAIRMAN BUNDE noted there had been a number of concerns expressed
by the public regarding indemnity for DFYS workers over and above
that which is inherent with a state employee. He asked Ms. Cox to
speak to the rights section and the protection section having to be
parallel.
Number 1617
SUSAN COX, Chief, Assistant Attorney General, Civil Division,
Department of Law, reiterated that the language in Section 1
pertaining to children's rights has been codified in Section 24 as
AS 47.05.065, Legislative Findings Relating to Children. She noted
the previously identified "rights" in the previous version are now
expanded greatly in the new section. She said the department has
a concern in creating these rights if there is implied in that a
duty or an obligation on the state's part to see to it that all
children in the state have a safe and happy childhood, reasonable
safety and adequate treatment, permanency with a safe, loving
family and the rest of the things listed. She said one way to deal
with that is to make it clear these are the goals and this is what
the legislature would like to see in an ideal world, while at the
same time, stating the legislature is not creating a new duty or
standard of care that the state is now the guarantor of every
child's happy childhood or is not creating an impossible burden
for DFYS and others involved in the process.
CHAIRMAN BUNDE surmised that would address the immunity issue.
MS. COX interjected, "Well, there are several things you can do and
actually I think I should clarify some terms because when you first
asked me a question, you referred to indemnity and that isn't the
same thing. Immunity actually prevents someone from suing or
getting civil damages in a personal injury or negligence action in
certain circumstances - however you define the immunity. We've got
two issues here, you don't have to reach the question of immunity
if you say up-front that we're not going to recognize a civil
action -- that these findings aren't creating a duty that give rise
to civil lawsuits for damages -- and then you don't have to address
the immunity of the people involved. The immunity provision that
was in the previous bill has been reworked in this committee
substitute - it's in Section 53 and it was before. Basically the
first sentence says that the bill did not create a duty or a
standard of care and then it goes on -- the other version had a
different immunity provision that followed."
Number 1787
CHAIRMAN BUNDE asked if Ms. Cox was of the opinion the proposed
committee substitute did not require an immunity provision.
MS. COX referred to the statement in Section 53, "Nothing in this
title [meaning AS 47] creates a duty or standard of care for
service to children and their families" and said that is an
important statement to make in order to prevent the Findings in
Section 24 from creating an overwhelming burden on the state of
guaranteeing every child's happiness. She said there is a section
in the proposed committee substitute that states, ".... subject to
existing discretionary immunity in state law in AS 09.50.250....".
Apart from that, the state will be liable for negligent acts or
omissions; the negligence would be presumably determined by the
court as it would be currently under normal and duty and (indisc.).
Number 1834
CHAIRMAN BUNDE surmised this proposed committee substitute creates
no more immunity than that which exists for state employees in
general.
MS. COX replied that Section 53 as written, states the immunity
will continue that is currently available under AS 09.50.250 but
that there can be liability for negligence. She noted there may be
a problem if it is read to repeal other immunity that's not in the
statute that's referenced; e.g., judicial immunity, quasi-judicial
immunity and other types of immunity that have been recognized by
the courts.
CHAIRMAN BUNDE asked Ms. Cox to review this issue and report back
to the committee at the next meeting. He said it is the goal of
the Chair to reduce the need for extraordinary immunity for child
care workers.
Number 1882
REPRESENTATIVE BRIAN PORTER said, "It's my reading of this that -
I wouldn't pass this unless I put immunity for parents in here
because we're guaranteeing a right to happiness in a child and it's
the parent's responsibility to nurture and ...."
Number 1919
MS. COX agreed to work on this issue. She said her only other
comment on immunity relates to the local, regional and district
child fatality review teams getting the same immunity provided to
the state child fatality review team under AS 12.65.140, but the
draft has eliminated any immunity to the state team in AS
12.65.140. She stated, "I think if you would consider the policy
justifications for providing immunity to those teams, these are
people who, after the death of a child, are appointed to look into
the cause and the Governor's original bill did provide immunity for
their duties in that regard and I think we've got a lot of nonstate
employees who could potentially be asked to serve on those teams
and if they're not going to be immunized for their jobs, it may be
very difficult to find anyone to serve in that capacity."
Number 1965
MS. TORKELSON pointed out that Legislative Legal Services has not
completed the drafting on the state child fatality review teams.
CHAIRMAN BUNDE noted he would hold his questions on the state child
fatality review team until the next meeting. He asked if the
definition of abandonment in Section 28 of the proposed committee
substitute had changed significantly from the previous version.
Number 2019
MS. WIBKER noted it was on page 22 of the proposed committee
substitute and said it appeared to be different.
CHAIRMAN BUNDE recalled the committee passed a bill out of
committee the previous week relating to poverty in Child in Need of
Aid (CINA) cases. He asked if Representative Dyson was rolling
that proviso into Section 28?
REPRESENTATIVE DYSON said that had been his intention.
MS. TORKELSON said, "Instead of as a part of the CINA portion, it
was just taken out and put into its own section 47.10.019 so that
this poverty exclusion would take care - like blanket all the CINA
proceedings rather than just that one -- I think it was 47.10.011
in the Governor's version -- instead of putting in a little tiny
portion of the CINA proceedings, it was put in so it would cover
everything."
Number 2124
CHAIRMAN BUNDE next referred to Section 34 relating to removing the
predator rather than the child from the home and said he assumed
that would relate to a two-parent family or some kind of extended
family.
MS. TORKELSON responded this language was taken from laws of other
states; instead of only focusing on removing the child, it looks to
determine if it's in the best interest of the child to remove the
predator.
CHAIRMAN BUNDE asked if this language would create legal problems?
MS. WIBKER said from a legal standpoint, it's fine. It's done
quite frequently because there's a federal duty to try to prevent
removal and one of the ways to prevent the traumatic removal of a
child from a safe parent is to keep the child with the nonoffending
parent if the other parent is violent. Often, if the nonoffending
parent is a protective, good caretaker for the child, the worker
will ask the court for a no-contact order that prevents the
offending, violent parent from being in contact with the child, the
residence or family until certain conditions are met. She said the
state has offered amendments specifically addressing this issue, to
make it very clear, particularly in cases of domestic violence.
Number 2186
CHAIRMAN BUNDE recalled that Ms. Wibker had been asked to give the
committee an overview in terms of which sections of the original
HB 375 are in response to federal mandates and requested that she
provide a similar overview after reviewing the proposed committee
substitute.
MS. WIBKER explained she had highlighted everything in the original
HB 375 that was required by federal law and she would be happy to
do the same with the proposed committee substitute.
Number 2234
CHAIRMAN BUNDE pointed out the committee would go over the original
HB 375 which is the genesis of the proposed committee substitute to
determine what is federally mandated versus state generated.
Number 2244
MS. WIBKER noted some things are federally required because of a
conflict with existing law, while other things are now allowed by
the federal government that were not previously allowed; in other
words it's permissive. She directed the committee's attention to
the first change on page 13, Section 18 of the original bill [0-
GH2009.A] and explained that federal law allows the states to use
child fatality review teams and to apply for grant money for those
teams. However, if the child fatality review teams are created,
the statute must contain a provision that the reports can be made
public.
Number 2290
REPRESENTATIVE PORTER asked if Ms. Wibker was saying that
information from a child fatality review team is public?
MS. WIBKER responded some of it is public information. Of course,
an identifying name cannot be revealed, but the child fatality
review team could release an annual public report indicating the
team had reviewed 25 deaths of children; causes of death in the
state of Alaska among children are such and such; a summarization
of findings and data; et cetera.
REPRESENTATIVE PORTER interjected the child fatality review team
could not present information to the District Attorney for
prosecution.
MS. WIBKER stressed it could be released; it's a prosecution tool.
REPRESENTATIVE PORTER asked how that could be done without
revealing the name.
MS. WIBKER explained the reason this team exists is to do a cause
of death determination, so the troopers and law enforcement will do
their investigation ....
TAPE 98-32, SIDE B
Number 0001
REPRESENTATIVE PORTER said he thought Ms. Wibker had inferred last
week that because the complaint was originated from CINA records it
had to remain confidential.
MS. WIBKER responded the records can be provided to the district
attorney; CINA records can't be made public, but the information
can be provided to the district attorney for prosecution.
REPRESENTATIVE PORTER inquired if there would be a problem with the
name becoming public through a trial.
MS. WIBKER said it would become public through the trial. If,
however, there's no prosecution for example, and the child fatality
review team reviews ten deaths and determines those deaths were the
result of a virus, the report couldn't release specific names.
REPRESENTATIVE PORTER said he had thought it was a bar to
prosecution.
MS. WIBKER said it's a tool. She explained there are about 100
deaths per year among children in the state and there is suspect
10-12 of those are probably homicides that get written off as
natural causes, accidental deaths, et cetera. This provision
allows the law enforcement team to have a review to determine if
it's really a homicide and if that team, after reviewing
everything, decides it's a homicide not an accident, the team will
take it to the District Attorney's Office. The idea is to promote
prosecution of homicides and not let it slip through the cracks as
accidental death. He said this provision complies with the federal
requirement in that it does allow the team to make reports public,
although their meetings would not be.
MS. WIBKER stated the change on page 26, line 12, Section 32, is a
federally-mandated change that people caring for children in out-
of-home care be given notice of hearings and an opportunity to be
heard.
CHAIRMAN BUNDE asked if Ms. Wibker was familiar with the foster
care review panel legislation that passed last year and if so,
would it come into play with this change.
MS. WIBKER noted that foster parents can attend reviews as well as
hearings.
REPRESENTATIVE DYSON interjected that was another issue.
CHAIRMAN BUNDE explained the legislation passed basically follows
a child through the entire process from the time the child is taken
into custody and goes into foster care. It appeared to him that
legislation would be the vehicle for providing this review.
MS. WIBKER explained this provision allows foster parents to go to
court and attend court hearings, as well as reviews. In the past,
a foster parent wasn't a party, and a party can attend court.
CHAIRMAN BUNDE conceded this is a different situation.
Number 0137
MS. WIBKER referred to page 28, lines 14-17, and said federal law
requires a permanency hearing in 12 months and every 12 months
thereafter.
CHAIRMAN BUNDE inquired if this would apply to the situation where
a parent involved in substance abuse would have 12 months to get
treatment.
MS. WIBKER said that was correct. Once the child is removed, a
permanency hearing will take place in one year to review what has
happened and every year thereafter. This change is federally
mandated. She said page 29, lines 11-18, requires the first
permanency hearing in 12 months rather than 18 months.
MS. WIBKER directed the committee's attention to Section 40 on page
30, beginning at line 17 through the end of the page and said this
is a federally mandated change as is page 31 in its entirety with
the exception of lines 18-22. The language on lines 18-22 is added
by the state and deals with situations where the state would not be
required to make reasonable efforts to return a child home. In
addition to the situations in federal law, the state added language
to include cases whereby a parent has committed the homicide of the
other parent of the child, such as the O.J. Simpson case. The
language which reads "the parent or guardian is incarcerated and
unavailable to care for the child during a significant period of
the child's minority considering the child's age and need for care
by an adult" was added for two reasons: first, because it's
grounds for termination of parental rights under existing state law
and secondly, there are many parents who demand all their parental
rights while in jail. She explained that it seems ridiculous to
require a social worker to take the child to visit an incarcerated
parent when that parent isn't going to be available to raise the
child.
Number 0269
REPRESENTATIVE BRICE noted that O.J. Simpson was found innocent
criminally, but charged with wrongful death civilly and asked if
that would apply to this situation.
MS. WIBKER replied yes. According to the federal attorneys giving
technical assistance to the Department of Law, it was their intent
to cover civil findings which is by a preponderance.
Number 0295
MS. WIBKER next referred to page 32, lines 2-3, and said while the
language proposed by federal law is, "the child's health and safety
shall be the paramount consideration", the state is allowed to give
children more protection, but not less than what is required
federally. The state chose to use the term "child's best
interests" to allow the court to consider more than just health and
safety.
MS. WIBKER directed the committee's attention to the Termination of
Parental rights and responsibilities on page 32 and said lines 4-30
are state law and line 31 on page 32 and almost all of page 33 are
mandated federal changes. She explained federal law now requires
the state to file petitions to terminate parental rights in certain
situations that are listed on page 33. The exceptions which are
state law, not federal law, are found on page 33, lines 11-14. The
language on page 34, lines 7-13 is a federally mandated change
requiring the state to do concurrent planning which means even if
reasonable efforts are made to return the child home, permanent
planning should also be done.
Number 0459
MS. WIBKER said the change on page 40, lines 25, 26, 27 and one
word on line 28 is permissive under federal law. She explained
it's an important change for increasing the tenure of foster
parents. The remaining language on page 40 is existing state law
and is not required change under federal law.
Number 0497
MS. WIBKER said the language pertaining to the use of
multidisciplinary teams on page 41, Section 52, is also a
permissive change.
CHAIRMAN BUNDE said he had previously commented on the frustrations
expressed by individuals working in other areas of child
protection, and he wanted to confirm this language would change the
management style so there would be multidisciplinary teams.
MS. WIBKER said that was correct. This is supported by the
department; it increases team work, it increases exchange of
information and so on.
CHAIRMAN BUNDE asked if this section was incorporated into the
proposed committee substitute.
MS. TORKELSON replied it is carried over in a modified form.
MS. WIBKER added the entire section on multidisciplinary teams is
a permissive change. She explained the statute allows people to
share information without violating confidentiality so they can
work on teams. She noted that Chairman Bunde had earlier commented
that bad cases make bad law; this is a great example of learning
from the mistakes in bad cases. She said, "When we go back and try
to learn from bad cases, what we learn is often in state agencies -
the left hand doesn't know what the right hand is doing and if
everybody could share information, you get a much better result."
REPRESENTATIVE PORTER thought the law had been changed three or
four years ago to allow public agencies to share information with
other state agencies.
MS. WIBKER said the confidentiality restrictions that allow the
state to give more information to law enforcement and the public
have been amended several times.
REPRESENTATIVE PORTER thought it had been constructed to allow all
of the agencies wanting to participate in these teams to be able to
do so without any need for additional confidentiality legislation.
REPRESENTATIVE JOE GREEN asked if this section was permissive.
MS. WIBKER said it's something the federal law allows and there's
also grant money available to states for research and the use
different models.
Number 0644
MS. WIBKER next referred to page 44, Section 58, and said federal
law requires states to do criminal background checks, including
federal criminal background checks, using fingerprint
identification on any placement home to be licensed or paid by the
state to care for children. She had worked with the Department of
Public Safety in developing a plan to include the federal
requirements and the specific requirements are contained in
subsection (6) on the bottom of page 44, regarding two sets of
fingerprints.
CHAIRMAN BUNDE assumed that child care facilities wouldn't have to
comply with this since they are not considered foster care.
MS. WIBKER said if a child care facility is licensed and gets paid,
it must comply.
CHAIRMAN BUNDE commented that apparently licensed facilities in
Alaska are not included in the required reporting of suspected
abuse.
MS. WIBKER said child care providers are specified in the mandated
reporting statute and must report suspected abuse or neglect.
MS. WIBKER continued to explain the state is giving more protection
than what's required by proposing that anyone in a licensed home
who would be caring for children would be required to go through
this process. Also, the state is proposing an amendment that would
include the requirement that anyone in the home over the age of 16
be subject to this process so the fingerprints of juveniles who
have been waived as adults will be in the system. So if a foster
family applying for a license has a child living in the home who
has been convicted as an adult in another state, the fingerprint
background check will identify that individual.
Number 0751
REPRESENTATIVE DYSON said he thought the proposed committee
substitute set an age requirement of 12 for this section.
MS. WIBKER said, "Let me suggest to you why 12 is not workable
right now; it will be. We originally had 12 in our version because
right now Public Safety and the FBI are working on developing a
national juvenile Alaska Public Safety Information Network (APSIN)
where you could run a juvenile through APSIN and get their record
nationally, which you can't do right now. That system is not in
place yet. Right now if you took fingerprints from a 13 year old,
they're not going to match anything because there's no system --
there's nothing to compare them to. And it's expensive to take two
sets of fingerprints and have Public Safety ask the FBI to do this
- it costs I think right now $59 a set - and you're not going to
get a result unless somebody is convicted under the waiver and has
been waived into adult court which means they're 16 or older. So,
once the juvenile APSIN system is in place, it would be reasonable
to come back to this and consider lowering that age, but right now
it's just not a practical thing to do."
Number 0818
REPRESENTATIVE PORTER noted that wasn't totally correct. A person
can be waived into the adult system by a means other than just an
automatic waiver; a 13-year-old person can be waived.
MS. WIBKER said, "Right. And if they're tried and convicted as an
adult, their prints will be in the system and we'll find it, so we
put anybody over 16."
REPRESENTATIVE PORTER said the fingerprints of a 13-year-old person
waived into adult court will be in the system but the prints won't
be available if the person is in the system as a juvenile offender.
Number 0838
REPRESENTATIVE DYSON wondered why confidential juvenile records
couldn't be accessed.
MS. WIBKER said that could be done.
REPRESENTATIVE DYSON then inquired why it couldn't be left at 12
years of age.
MS. WIBKER responded it could be left at 12 but the juvenile
records would be Alaska only.
Number 0866
MS. WIBKER continuing with her overview said Section 59 on page 45
addresses fingerprint background check requirements for foster care
placement and emergency placements. She explained that federal law
states "any placement" but the problem with that is when a child is
taken in the middle of the night, there isn't time to do a
fingerprint background check and most of the time the child is
taken to a licensed facility or to a relative. A relative not
getting paid for this is not subject to these requirements, but
there are other procedures in place. She stated, "But if someone
comes forward and says I would like an emergency license to care
for these children - sometimes a teacher or a day care provider
will say I'll take this child in as a foster child - what we put in
place was a partial procedure where all of the criminal background
information available immediately could be run. That person, if
they meet the federal requirements based on their history, they
could get a provisional license if they agreed to give us the two
fingerprints and give us something under oath about their history,
then they get a provisional license until we get the results of the
fingerprint check. So we have some guarantees in place so that we
don't prevent children from being able to go -- we have people who
just can't afford to take children and need to get paid and we
would have to subject them to whatever we could do immediately to
give them a provisional license. Federal law is quite specific
that there are some things that if they show up in the criminal
history, you don't get a license ever and some things they will
allow you to get a license if they're over five years old. In our
amendments we gave more protection than federal law requires - we
actually were broader."
Number 0988
MS. WIBKER directed the committee's attention to page 46, lines 10-
13 which requires the department to systematically recheck criminal
justice information records. She explained that under existing
law, the duty is placed on the licensee to notify the department of
any arrest, charge or indictment. Rather than relying on the self-
reports in existing law, HB 375 places the burden of rechecking
criminal background information on the department.
MR. WIBKER said that concluded her overview of the changes and
explained that Alaska was already in compliance with some of the
federal provisions so no state change was required in some areas.
Number 1043
CHAIRMAN BUNDE requested that Ms. Wibker be prepared to address the
committee substitute at the next meeting; specifically to point out
the federally mandated language versus the permissive language. He
noted the public had previously expressed concern this proposed
legislation did not relate to federal requirements.
CHAIRMAN BUNDE asked Representative Dyson if the proposed committee
substitute included the provision that information from the
multidisciplinary child protection teams would be available to
prosecutors, if warranted.
REPRESENTATIVE DYSON said that was his understanding and in fact,
it was designed, as was the Governor's bill, to facilitate that
process.
CHAIRMAN BUNDE noted that Section 53 of the proposed committee
substitute deletes the need for immunity except in gross
negligence.
Number 1144
MS. COX explained the original bill provided immunity except in
circumstances of gross negligence or intentional misconduct. The
proposed committee substitute has eliminated immunity for simple
negligence and instead imposes a liability for negligence or gross
negligence.
Number 1185
REPRESENTATIVE PORTER noted the multidisciplinary child protection
teams are appointed by the district attorney under the proposed
committee substitute.
REPRESENTATIVE DYSON said that was correct. The Administration
does not agree with this change; from their perspective the lead
agency should be the Division of Family and Youth Services.
Number 1214
MS. TORKELSON noted she is working with Legislative Legal Services
to modify this language to read the district attorney shall form
teams at the local level to develop written protocols to include
who organizes the team, who enforces that everyone is there, et
cetera. The Department of Law has indicated they don't have the
staff or resources to enforce these teams, but they would be
willing to commit to writing the protocols.
CHAIRMAN BUNDE inquired how much of the proposed committee
substitute is anticipated to change.
MS. TORKELSON said other than housekeeping changes, the section
dealing with the multidisciplinary teams will be revised and there
will be changes dealing with immunity.
Number 1441
CHAIRMAN BUNDE requested a revised proposed committee substitute
be made available to committee members and Legislative Information
Offices as soon as possible.
Number 1498
REPRESENTATIVE J. ALLEN KEMPLEN referred to Sec. 11.51.110(a)(3)
and inquired about a situation in which one parent gets inebriated
and passes out at a party and the possibility of the other spouse
accusing the person of endangering the welfare of their child.
Number 1606
CHAIRMAN BUNDE observed that if one parent is passed out but the
other person is sober, the child is still being carried for. It
may be possible, however, for the sober parent to go across the
street, for example, and make the charge.
REPRESENTATIVE PORTER suggested the language should include "sole
care" not just caring for the child.
Number 1658
MS. WIBKER pointed out under the original bill, the offense is for
leaving a child when there's not a sober person around.
CHAIRMAN BUNDE stated this is an issue that will be discussed at
the next meeting.
CHAIRMAN BUNDE reiterated his request for Ms. Wibker to address the
mandated versus permissive language in the revised committee
substitute at the next meeting. Additionally, he requested that
Mr. Webb or Commissioner Perdue be prepared to express the
department's concerns and position. He announced the committee
would address HB 375 again on April 2.
ADJOURNMENT
Number 1893
CHAIRMAN BUNDE adjourned the House Health, Education and Social
Services Standing Committee at 4:40 p.m.
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