Legislature(1997 - 1998)
04/02/1998 03:15 PM House HES
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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
April 2, 1998
3:15 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."
- PASSED CSHB 375(HES) FROM COMMITTEE
(* 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
3/24/98 (H) MINUTE(HES)
4/02/98 (H) HES AT 3:00 PM CAPITOL 106
WITNESS REGISTER
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.
LISA TORKELSON, Legislative Assistant
to Representative Fred Dyson
Alaska State Legislature
State Capitol, Room 428
Juneau, Alaska 99801-1182
Telephone: (907) 465-3467
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
DR. MICHAEL PROPST, Medical Examiner
Division of Public Health
Department of Health & Social Services
5700 E. Tudor Road
Anchorage, Alaska 99508
Telephone: (907) 269-5090
POSITION STATEMENT: Testified on Amendment 3 of the proposed
committee substitute for HB 375.
RUSSELL WEBB, Deputy Commissioner
Department of Health & Social Services
P.O. Box 110601
Juneau, Alaska 99811-0601
Telephone: (907) 465-3030
POSITION STATEMENT: Testified on Amendment 3 of the proposed
committee substitute for HB 375.
DEAN GUANELI, Chief Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on Amendments 2 and 3 of the
proposed committee substitute for HB 375.
COLLEEN JAMES, Member
Homer Sexual Assault Response Team
P.O. Box 915
Homer, Alaska 99603
Telephone: (907) 235-0207
POSITION STATEMENT: Testified on Amendments 2 and 3 of the
proposed committee substitute for HB 375.
DR. MICHAEL DURFEE, Chairman
Child Death Review Team for the United States
241 North Figueroa, Room 306
Los Angeles, CA 90012
Telephone: (213) 240-8146
POSITION STATEMENT: Testified on Amendments 2 and 3 of
proposed committee substitute for HB 375.
JAYNE ANDREEN, Executive Director
Council on Domestic Violence & Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Testified on Amendment 7 of proposed
committee substitute for HB 375.
SUZETTE GRAHAM, Foster parent
P.O. Box 383
Kenai, Alaska 99611
Telephone: (907) 776-8658
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
MICHAEL BRANDNER, M.D.
1200 Airport Heights Drive
Anchorage, Alaska 99508
Telephone: (907) 272-9991
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
HARRY NIEHAUS, Representative
Guardians of Family Rights
P.O. Box 55455
North Pole, Alaska 99705
Telephone: (907) 488-9328
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
WALTER GAUTHIER
P.O. Box 2246
Homer, Alaska 99603
Telephone: (907) 235-2809
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
SHIRLEY WARNER, Chief of Police
Soldotna Police Department
44510 Sterling Highway
Soldotna, Alaska 99669
Telephone: (907) 262-4455
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
DIANA BUFFINGTON, President and State Coordinator
for the Children's Rights Council and Chairman,
Alaska Task Force on Family Law Reform
317 Maple
Kodiak, Alaska 99615
Telephone: (907) 486-2290
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
MARCI SCHMIDT
2040 Wasilla Fishhook Road
Wasilla, Alaska 99654
Telephone: (907) 357-3618
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
JENNIFER TAYLOR
Box 424
Craig, Alaska 99921
Telephone: (907) 826-3066
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
BLAIR MCCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
CURREY COOK, Attorney
Office of Public Advocacy
Department of Administration
900 West 5th Avenue, Number 525
Anchorage, Alaska 99501
Telephone: (907) 269-3500
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
SCOTT CALDER
P.O. Box 75011
Fairbanks, Alaska 99707
Telephone: (907) 474-0174
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
ARTHUR HANSEN
1329 McGrath Road
Fairbanks, Alaska 99712
Telephone: (907) 457-4638
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
BOBBIE NIEHAUS
P.O. Box 55455
North Pole, Alaska 99705
Telephone: (907) 488-9328
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
PAM KARALUNAS
P.O. Box 73893
Fairbanks, Alaska 99707
Telephone: (907) 456-2866
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
JOHNNY GRAMES, Representative
DADS, Alaska
P.O. Box 100827
Anchorage, Alaska 99510
Telephone: (907) 274-3237
POSITION STATEMENT: Testified on proposed committee substitute
for HB 375.
ACTION NARRATIVE
TAPE 98-42, SIDE A
Number 0008
CHAIRMAN CON BUNDE called the House Health, Education and Social
Services Standing Committee meeting to order at 3:15 p.m. Members
present at the call to order were Representatives Bunde, Green,
Porter, Dyson, Kemplen and Brice. Representative Vezey was absent.
HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE
Number 0021
CHAIRMAN BUNDE announced the committee would address HB 375, Crimes
Against Children. The order in which he planned to proceed was to
adopt the new committee substitute, consider the amendments and
then take public testimony.
Number 0113
REPRESENTATIVE JOE GREEN made a motion to adopt proposed committee
substitute 0-GH2009\F, Lauterbach, 4/1/98, as a work draft. There
being no objection, that version was before the committee.
Number 0149
REPRESENTATIVE FRED DYSON said his office and the various people
within the Administration working on this bill are very close in
agreement on this committee substitute, as well as the forthcoming
amendments.
Number 0259
REPRESENTATIVE DYSON made a motion to adopt Amendment 1.
CHAIRMAN BUNDE objected for discussion purposes and asked
Representative Dyson to explain Amendment 1.
Number 0298
REPRESENTATIVE DYSON explained that one of the things that came up
in the Child Protection Task Force was the need for coordination
and communication between all the agencies involved in the
investigation of crimes against children - children in need of aid
- and this amendment sets up the multidisciplinary child protection
teams, establishes the mechanism for the protocols and provides the
authority for cross-communication of confidential information.
CHAIRMAN BUNDE surmised that Section 61 of the proposed committee
substitute had intentionally been left blank and Amendment 1
establishes the multidisciplinary child protection team.
REPRESENTATIVE DYSON said that was correct.
Number 0394
REPRESENTATIVE J. ALLEN KEMPLEN mentioned that the question of who
would take the lead on the multidisciplinary child protection teams
had been raised at the previous meeting. He didn't see any
language in Amendment 1 to identify accountability for the team or
in other words, "where the buck stops."
Number 0433
SUSAN WIBKER, Assistant Attorney General, Human Services Section,
Civil Division, Department of Law, responded the buck doesn't stop
with the team. She explained the team is set up under the
Department of Health & Social Services because someone in that
department would have the statutory authority to pull a team
together, but it's set up so a team can virtually take a life of
its own to meet a community need. The team does not independently
do any work; it reviews a compilation of data and advises the
department so the team is not responsible for anything, the
department is the responsible agency. She explained this
consulting and advisory team would gather information, share
information, decide what child protection problem existed in a
community and how to go about solving the problem. For example, if
the problem in a community is that people feel not enough cases are
prosecuted, the team would work together toward that goal of
sharing more information between police, prosecutors and social
workers. Or if the problem in a community is the feeling that the
Division of Family and Youth Services (DFYS) is over-reaching and
taking kids into custody who are just being disciplined and not
abused, then the goal of the team might be to give advice and
consultation to the department. She said the team is set up to be
very flexible, with broad authority to meet a community need in the
area of child protection. In answer to Representative Kemplen's
question, the department is responsible; it always has the
responsibility for the decisions it makes for placing children and
for removing children.
Number 0557
REPRESENTATIVE BRIAN PORTER surmised the language on page 2, line
20 of Amendment 1 is not intended to protect an individual from
gross negligence or an intentional bad act.
MS. WIBKER pointed out the team doesn't do anything other than
gather and review information. She added, "The department is the
actor - under the department so they'd have the same level of
responsibility -- I think we rewrote that part of the statute so
that immunity is not increased, liability is the same."
Number 0645
CHAIRMAN BUNDE questioned why the team needs to be indemnified, if
the team doesn't do anything.
MS. WIBKER explained that most of the people on the team will be
state employees and will have the protection of a state employee,
while a private person, such as a pediatrician, won't have the same
protection without this language and the fear is that no one would
want to be on a team.
REPRESENTATIVE PORTER said he suspected this language will not
remain as it is and perhaps may even be strickened altogether
unless it's changed to become somewhat more palatable. He thought
that standard protection against liability from the state or most
municipalities doesn't cover gross negligence and intentional bad
acts.
Number 0735
CHAIRMAN BUNDE asked if Representative Porter was suggesting the
language "except for gross negligence and intentional bad acts" be
added.
MS. WIBKER advised that Susan Cox, Assistant Attorney General, was
available to respond to that issue.
Number 0750
SUSAN COX, Chief, Assistant Attorney General, Civil Division,
Department of Law, said the language in Amendment 1, subsection (h)
regarding immunity, or lack of liability, stems from the Governor's
original bill. It was crafted to encourage people to serve on such
teams and also to make clear that the functions of the team can't
form the basis of a new tort or civil cause of action - that the
team is consulting and providing advice to the department and it's
the department's actions that will be subject to possible
liability. She said it would be possible, if the committee
prefers, not to immunize team members for what they are doing in
consulting with the department, but instead wants to leave an
exception available for bringing suits resulting from gross
negligence or intentional misconduct. In fact, that is done many
places in the state statutes; in other words, there's immunity
unless someone can prove gross negligence or intentional
misconduct.
Number 0830
REPRESENTATIVE PORTER inquired if the team is going to get
together, go to an office, pour over documents, form an opinion,
give the opinion and then leave, would there be no circumstance
they would ever be in the field doing some follow up.
MS. WIBKER said they may in their individual duties if involved in
a specific case. For example, a police officer might gain
information from the team that would prompt the officer to
interview more witnesses.
REPRESENTATIVE PORTER interjected, ".... in order to form their
opinion of recommendation for the team response."
CHAIRMAN BUNDE asked if Representative Porter's concern had been
satisfied?
REPRESENTATIVE PORTER said it had been.
Number 0935
REPRESENTATIVE TOM BRICE observed this team is created to
investigate and evaluate, yet if the team suspects child abuse or
neglect, the determinations, conclusions or recommendations of the
team or its members are not admissible in a civil or criminal
proceeding. He wondered what the purpose of the team is if it's
not to take action and if it's not to take action, he didn't
understand why the indemnity was needed. He asked if "child
advocacy center" was defined in statute?
MS. WIBKER responded not that she was familiar with.
Number 0993
REPRESENTATIVE BRICE emphasized the importance of having child
advocates on the team and asked Representative Dyson to comment.
REPRESENTATIVE DYSON said the "Alaska Cares" child advocacy center
operating in Southcentral Alaska, has medical experts and the
equipment for interviewing and recording the evidence for crimes
against children and children who are victims of neglect.
REPRESENTATIVE BRICE commented the Resource Center for Parents and
Children in Fairbanks doesn't provide precisely those types of
services, but does provide parenting classes and family services.
He wondered if in Representative Dyson's thinking that would fall
within the purview of a child advocacy center.
REPRESENTATIVE DYSON said, "Certainly, Representative Brice,
advocacy for children is important. What we're talking about here
though is investigating children where there's either severe
neglect or abuse and it's largely a part of an investigative team;
part of a decision making team."
Number 1109
LISA TORKELSON, Legislative Assistant to Representative Fred Dyson,
said a staff person at "Alaska Care" had informed her of a child
advocacy center that's near completion called "The Children's
Place" in the Mat-Su Valley. It won't have the medical services on
site like Alaska Care does but it will provide investigative
services. She noted that Fairbanks is talking about starting a
similar facility. The language in the amendment would provide the
means once there are more advocacy centers operating.
Number 1151
REPRESENTATIVE BRICE inquired if there was a need to include a
definition of child advocacy center.
CHAIRMAN BUNDE said he would feel more comfortable with it defined
and it may be something that should be addressed later on.
Number 1167
REPRESENTATIVE DYSON said one of the key purposes of the
multidisciplinary team is to minimize the impact on the child, and
having the people involved in investigating crimes against children
together for parts of the investigation minimizes the impact on the
child by reducing the number of interviews. Another part is to
bring the public safety individuals, prosecutors, medical experts,
and others together who can see and record the physical damage to
the child, but bring in a child advocate to keep overzealous police
and prosecutors from frightening the child. He stated pulling all
these individuals together will minimize the impact on the child
and also will bring the needed expertise together because no one of
these team members has it all.
CHAIRMAN BUNDE stated he would like to see that put in definition
and brought before the Judiciary Committee, the next committee of
referral.
Number 1246
REPRESENTATIVE PORTER requested clarification on the relationship
between subsection (f) and (g) of Amendment 1. Subsection (f) says
the determinations, conclusions, and recommendations of a team or
its members are not admissible in a civil or criminal proceeding
but (g) says notwithstanding (f), an employee of the department may
testify in a civil or criminal proceeding even though the testimony
is based on those records. He said, "I think I understand that
relationship. A person cannot be compelled, who was a member of
the team, to present testimony in a case that isn't a criminal
prosecution or a civil hearing that came out as a result of that
work but (g) allows them to do that. But (f) says if it doesn't
have anything to do with that, they're not compelled to release
that information if they don't choose to."
MS. WIBKER said the provisions of (f) are to keep every member of
the team from being subpoenaed to depositions, et cetera. She
added, "I mean if you had a criminal prosecution, you don't want a
defense attorney to subpoena every person on the team - expose to
the jury all the disagreements and discussion within the team - and
then say there's reasonable doubt. We want the agency with
responsibility to testify. Their opinion may have been swayed by
something they learned from the team, but making that opinion is
part of their job and their responsibility and they're responsible
for their opinion."
Number 1329
REPRESENTATIVE PORTER said, "I guess the basis that I'm trying to
get at is that a member of a team that discovers a crime, as a
result of this inquiry, can certainly pursue it."
MS. WIBKER agreed and said the team is also made a mandated
reporter of harm; in other words, if the team discovers child abuse
or a crime, they have to report it.
Number 1351
CHAIRMAN BUNDE noted that previously a team had been established to
investigate Sudden Infant Death Syndrome (SIDS) and a police
officer who was a member of that team, suspected homicide but
wasn't able to share that information. Chairman Bunde sought
verification that (g) would prevent a similar situation from
happening; if there is evidence of a crime, members of the team
would not be prevented from sharing information with law
enforcement.
MS. WIBKER replied, "Not at all."
Number 1380
REPRESENTATIVE BRICE said his concern had been this team was being
created to investigate child abuse and neglect and not allowing it
the ability to testify or to disseminate any of the information
that it had gathered.
MS. WIBKER maintained the people on the team would testify as part
of their regular job duties, but they can't be subpoenaed to
testify as to what was learned on the team or what happened in the
team meetings, et cetera. For example, a police officer as a
member of the team who becomes aware of an investigative lead that
is pursued as a police officer, can testify in a criminal or civil
proceeding based on their work as a police officer, even though the
lead was gained from the team.
Number 1436
CHAIRMAN BUNDE asked if there was further discussion on
Amendment 1. He withdrew his objection. There being no further
objection, Amendment 1 was adopted.
Number 1457
REPRESENTATIVE DYSON requested he be allowed to bypass Amendment 2
and address Amendment 3, because he isn't convinced which is the
best path in terms of the child fatality review teams.
Number 1516
REPRESENTATIVE BRICE suggested Amendments 2 and 3 be address
simultaneously.
Number 1528
REPRESENTATIVE DYSON made a motion to adopt Amendments 2 and 3.
REPRESENTATIVE BRICE objected for discussion purposes.
REPRESENTATIVE BUNDE asked Ms. Wibker to explain Amendment 3.
Number 1552
MS. WIBKER explained Amendment 3 is the same child fatality review
team model, headed by the state medical examiner, as proposed in
the original HB 375. She stated Dr. Propst was available to
testify on the model proposed in Amendment 3 by Representative
Brice. She noted Representative Dyson has proposed an alternative
model of a child fatality review team and may have testimony to
support a different model.
CHAIRMAN BUNDE asked Dr. Propst to come forward to the witness
table and address Amendment 3.
Number 1588
DR. MICHAEL PROPST, Medical Examiner, Division of Public Health,
Department of Health & Social Services, said Amendment 3 keeps the
child fatality team and the local and regional teams under the
office of the state medical examiner. The wording in Amendment 3
is permissive and allows for the establishment of local and
regional teams, but does not mandate it. He said the other
portions are in essence very similar in Amendment 2 and 3.
Number 1620
CHAIRMAN BUNDE explained that Amendment 3 is permissive in allowing
the state medical examiner to appoint local, regional and district
child care fatality review teams whereas Amendment 2 says the
district attorney or a designee shall establish the child fatality
review teams. His concern with the permissive is getting into a
situation where the state medical examiner could be too busy or
distracted to establish these teams. He asked Dr. Propst to
comment.
DR. PROPST said the thing that's keeping the local, regional and
district fatality review teams from being established now is the
establishment of a statewide team and the protocols for it, which
is a work in progress. Additionally, it's necessary to have the
budget to support local and regional teams, even though people on
those teams may not be getting paid directly by the state, monies
would have to be expended in travel and per diem and there's no
provision for that. He commented perhaps May of 1998 is not the
time for local and regional teams, but it may very well be an
accomplished fact by May 1999.
Number 1692
RUSSELL WEBB, Deputy Commissioner, Department of Health & Social
Services, testified that over year ago, the department discovered
a number of deaths that had not been identified as potential
homicides or the result of child abuse and neglect, that should
have been looked at, followed up on and prosecuted. The department
established a team in May through the state medical examiner's
office to ensure that child deaths were looked at, reviewed and
that deaths resulting from crimes or from abuse and neglect that
might not have risen to a crime, but left some surviving siblings
at risk were identified. He noted there were only about 150 child
deaths per year in Alaska. He said there are a limited number of
forensic pathologists in the state, two are employed by the state
medical examiner. He explained the team was established through
the medical examiner's office because all suspicious deaths get
reviewed through the medical examiner's office, the medical
examiner works closely with prosecutors and with police agencies
statewide in order to investigate those deaths, and has certain
authorities to make and determine cause and manner of death. It
was set up so the medical examiner could gather all the
information, pull in additional expertise from a variety of other
disciplines including prosecutors, police agencies, social workers
and others who could help inform the medical examiner's decisions
and opinions and make certain cases were identified that needed to
be addressed. He said the original HB 375 contained the potential
to set up local teams. One of the main differences between the two
amendments is the permissiveness for the medical examiner, under
his auspices, to establish local teams. Amendment 3 has broad
authority to pull in critical information, review it and make it
available to the team. He said the medical examiner has that
authority because of his statutory responsibilities. On the other
hand, setting up a local team with the same authority, as Amendment
2 does, sets up the team outside the medical examiner's office with
the same access to the medical examiner's records and other
records, but not the same responsibilities and authorities that the
medical examiner has. Additionally, setting up local teams where
there may not be a child death to review seems somewhat unnecessary
and the expertise may not be available at the local level. He
acknowledged there is a need for local agencies to coordinate
investigations and make information available which is what he
thought Representative Dyson was trying to attain. However, given
the number of child deaths that occur in the state and the limited
availability of the kind of expertise needed for these cases, it
appears to make more sense to operate a team through the medical
examiner's auspices under his authority.
Number 1865
CHAIRMAN BUNDE asked Mr. Guaneli if he had an opinion on the extent
of the burden Amendment 2 would place on the district attorney or
his designee, including the fiscal impact.
Number 1878
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, said the duties
specifically set out in Amendment 2 are limited enough so there
would probably be little or no fiscal impact on the Department of
Law. He did have additional concerns, however, that had not been
addressed by either Dr. Propst or Mr. Webb. He said, "It strikes
me that the version in the original bill for the local teams set up
by the medical examiner would be to aid the medical examiner in
case something happened locally, information was more available
locally than where the medical examiner is located and for the
needs of the medical examiner. It's not totally clear to me
precisely the intent of the local team set out in Amendment 2. The
district attorney is supposed to set up a team - to set up a group
to establish protocols and then the protocols will determine who is
on the local team and the protocols will then -- then the local
agencies will then determine under the first part of this, when an
investigation is warranted by the local child fatality review team.
But it's not clear to me what that local team is supposed to do.
It's not clear that it's supposed to aid the medical examiner, it's
not clear whether it is to aid a police investigation; it's sort of
left unstated as to precisely what the local team is to do. And
that's why I think that the original version which was more
directly connected to the medical examiner's responsibilities to
determine cause and manner and be a resource for a (indisc.), is
probably the preferable approach unless it's more explicitly stated
what this other idea of a local team is to do. And so I think
that, again, as Mr. Webb said, the state medical examiner has
certain responsibilities - those responsibilities in some cases may
be met better by having a local team in operation, but short of
that, I'm honestly a little confused as to precisely what the team
is supposed to do."
Number 1987
REPRESENTATIVE DYSON thought the duties of the local team under
Amendment 2 were spelled out fairly well on pages 3-5.
CHAIRMAN BUNDE asked Representative Dyson to explain why he
preferred Amendment 2 over Amendment 3.
REPRESENTATIVE DYSON requested he have an opportunity to ask a few
questions of Dr. Propst before stating the reasons for his
preference.
Number 2012
REPRESENTATIVE DYSON asked how long Dr. Propst had been in his
current position.
DR. PROPST replied since it was established by the legislature in
1993.
REPRESENTATIVE DYSON recalled that Commissioner Perdue had
requested a review of some child fatalities that had occurred and
as a result of that review, a number of cases were identified as
questionable and may have been homicides.
MR. WEBB stated, "The review the commissioner asked for related to
one child homicide. What had been identified in a report done by
another group that really is sort of a public health,
epidemiological review of child deaths - infant deaths actually -
over a period of time that covered about a three year period prior
to the establishment of the medical examiner, identified a number
of deaths that potentially at least, were believed to be cases that
should have been investigated by police agencies. Dr. Propst
actually sits as a member of that group and helped to identify
those cases."
REPRESENTATIVE DYSON confirmed that previous to three years ago,
the state did not have a state medical examiner.
MR. WEBB confirmed that.
REPRESENTATIVE DYSON asked if the state medical examiner does an
autopsy on every child that dies in the state.
DR. PROPST replied every child that dies in the state that's
reported to the medical examiner's office almost without exception,
gets an autopsy.
REPRESENTATIVE DYSON inquired if that practice was new in the last
three years.
DR. PROPST said in part, yes. He explained there were cases not
referred to autopsies occasionally under the old coroner system.
REPRESENTATIVE DYSON confirmed that wouldn't happen now under the
medical examiner's office.
DR. PROPST replied, "That won't happen now."
REPRESENTATIVE DYSON asked if the practice of reviewing every child
death was in law or regulation.
DR. PROPST explained, "I must have all child deaths that basically
fit the medical examiner criteria - suddenly, unexpectedly, from
homicide, accidents, suicide -- there are a list of nine criteria
in AS 12.65.005(a) which line out the cases that get referred to
the medical examiner which basically have to do with suspicious and
unusual deaths. .... we will be doing autopsies on virtually every
child that gets referred to us under that statute. Children who
die from natural causes - it's unfortunate, but we know that kids
get leukemia and things like that - are not referred to the medical
examiner. They die under medical care and they're not unattended
deaths. Basically, it is the unattended deaths of children that
are referred to the medical examiner - the unattended deaths of
adults for that matter."
Number 2154
REPRESENTATIVE DYSON said his interest in having this at the local
level is that local people have more knowledge than the medical
examiner of other dynamics that are happening and can "blow the
whistle." He referred to the case in Fairbanks in which the DFYS
worker saw a child's funeral notice or obituary, suspected wrong
doing and contacted the police to institute an investigation.
Number 2197
CHAIRMAN BUNDE asked if replacing "may" with "shall" in Amendment 3
would accomplish what Representative Dyson was trying to establish.
Number 2211
REPRESENTATIVE DYSON responded, "When we were working on the
multidisciplinary team - switching subjects - last summer in the
Governor's task force, people said, 'Ten years ago, we used to do
this; we used to have these people get together and have these
conversations and we were exchanging that kind of information' and
Chief Porter was a part of that and probably had something to keep
it going. And so I asked the question 'What happened?'
Personalities changed, priorities changed and it drifted away and
we're certainly not naive enough to think that putting mandatory
language in the law is going to make it work well. But if it's
mandatory that the people gather to exchange this information and
so on, at least there's more hope that it happens. You need to be
doing your job perfectly - or nearly - and so on, what happens when
another administration puts somebody less competent or less caring
in there as a political favor and they sit there and draw their
check and don't zealously go after investigating all these crimes
and are not doing as diligent a job as I think and hope you're
doing."
REPRESENTATIVE DYSON said he would think about Chairman Bunde's
suggestion of replacing "may" with "shall".
Number 2271
REPRESENTATIVE BRICE referred to page 3 of Amendment 3 and asked if
the requirement that a death of a child be reviewed by the state
child fatality review team within 48 hours of the report being
received by the medical examiner is realistic.
DR. PROPST said his office responds when notification of the death
is received and the investigation of that death is begun at the
time his office is first notified of the death. So, 48 hours is
reasonable as long as someone doesn't wait to notify the medical
examiner's office of the death. He noted that by statute a body
cannot be moved without permission of the medical examiner's
office, which is sort of a check to ensure the medical examiner's
office is notified of these kinds of deaths.
Number 2327
REPRESENTATIVE PORTER understood the motivation for the need to get
this resolved, but he's generally found it's not a good idea to try
to write law based on a single exception that may never happen
again. He favored the composition of Amendment 3 because it has
the likelihood of establishing a protocol that will be consistent
throughout the state ....
TAPE 98-42, SIDE B
Number 0001
REPRESENTATIVE PORTER continued ....district attorney in Juneau
looking at it one way and the district attorney in Fairbanks
looking at it another way. He stated, "I think "shall" instead of
"may" is fine. I think that what it would probably allow would be
Dr. Propst to coordinate with these agencies in establishing the
beginning of the formation of the protocol or probably putting the
final touches on one that's already been in progress for some time,
getting a list of names of the folks from those departments that
would want to participate if the call comes so that it can be
activated in the 48 hour period rather than just springing it on
the first occasion that it comes up, but the reports we're
interested in come to the medical examiner. That's why we created
that law a few years ago. That I think is a very appropriate
place for them to start and on the team - very important to team -
is a member of the district attorney's office."
CHAIRMAN BUNDE noted that Colleen James, member of the Homer Sexual
Assault Response Team (SART), was available to comment on
Amendments 2 and 3 from Homer.
Number 0065
COLLEEN JAMES, Member, Homer Sexual Assault Response Team,
testified via teleconference from Homer in support of a local child
fatality review team that would be formed through the district
attorney's office. She pointed out she has been a registered nurse
in Alaska since 1987 and in the early 1990s she became concerned
about the standard of care for victims of sexual assault in Alaska.
Homer founded the first sexual assault response team and had the
first sexual assault response team training in the state. The team
starting evaluating both pediatric and adult clients in 1994. She
has provided training in sexual assault response teams to
approximately 11 communities in the state. She explained her
motivation for testifying is to express her support of the process
and her desire that it be implemented the right way. She noted
that Alaska has the advantage in that all the other states have
already started this process, so Alaska can determine what's worked
well in other states. By and large, the majority of the states
have formed teams that operate locally.
MS. JAMES noted that in terms of the multidisciplinary teams, in
order to even call it a multidisciplinary team, certain things are
required and no one agency can own these teams; they are
independent and the people who make up the teams are all equal.
She said real change in a community happens on a local level and
has to come from within the community. The other part is a peer
review process because agencies have to look at themselves and it's
not a punitive process as much as it's the opportunity to improve
services to victims. She said it has little to do with the medical
examiner's office because the autopsy is only one of many pieces of
information gathered.
MS. JAMES set up a hypothetical situation of a nine-year-old child
who fell from a window, the body is sent to Anchorage, the medical
examiner does an autopsy and the report indicates a blunt force
penetrating trauma to the head as the cause of death. That report
just basically relates the mechanism of the injury of death. The
real work of the team then is to look at the agency and the people
that have surrounded that child before death. If the team begins
with emergency medical service (EMS) responders, they may relate
that upon arriving at the house, the younger brother was crying,
"You killed him, you killed him" and no one else in the household
would talk except the father. The child's teacher reveals the
child wasn't himself for the last three weeks - his clothes were
dirty, his grades were going down, he disrupted the class, and
didn't want to talk to anyone about what was going on. A visit to
the hospital could reveal the mother had been treated for domestic
violence on several occasions, did not want to file a report and
reported that her children were not at risk. The next door
neighbor could convey there seemed to be a lot of parties with
alcohol and a lot of people in and out of the house at all hours,
kids were out late and had no supervision, he's heard yelling and
was afraid of the father because he had an explosive temper. A
check with DFYS staff could indicate the child was supposed to be
in the custody of the grandmother, but the case worker had been out
for the past month, and conversations with an aunt and uncle reveal
the grandmother has been in the hospital in Anchorage and the
father would not allow the child to stay with them.
MS. JAMES stressed this is an example of the community process
involved and the information offered by the medical examiner's
office is a very small piece of the entire picture. She said, "If
you take death away from a community, then how a community changes
in response to death, it just isn't going to happen. The community
has to own that death and all of the people that were involved with
that child need to have a little piece of that responsibility. And
then agencies start talking to one another and things really start
changing on the community level which is where real, real important
change takes place. We learn to protect our living children by the
lessons that we learn from our dead children."
MS. JAMES asked the committee to formulate this process in Alaska
on a community level and to make agencies within the community
accountable for their actions.
Number 0293
REPRESENTATIVE DYSON expressed his appreciation to Ms. James for
her testimony. He said the medical examiner and others in the
Administration argue the models that work in the Lower 48 don't
apply to Alaska because there's only three certified forensic
physicians in the state and because Alaska has such a dispersed
population causing difficulty in travel and communication it needs
to be centralized in the medical examiner's office. He asked Ms.
James to comment on that argument.
MS. JAMES said that's no longer a very valid argument in this age
of telecommunications. She has a computer program which allows her
to send x-rays, pictures and other information in a matter of
seconds when she needs a second opinion. While it is true there
isn't any pathologist on a local team, the medical examiner has
already determined the cause of death and the team needs to
determine the community's responsibility to the death.
Number 0359
REPRESENTATIVE PORTER observed that a lot of "how they do it
Outside" is generated by the governmental structures and many of
the requirements, functions and jurisdictions are formed within
counties not the state. In King County in Washington State for
example, the entire process of investigation, prosecution, defense,
adjudication, et cetera, is a county system. The good news is that
Alaska doesn't have that structure - we have one system - the court
system, the prosecutor system, judicial system and the medical
examiner system. He assumed that teams would have to go to areas
where basic departments represented don't exist and a team in
Fairbanks would probably have different components than a team in
Anchorage, so there would not only be local knowledge, but
consistency through this process as opposed to the other.
Number 0425
DR. PROPST pointed out there is a problem with Ms. James' concept
of forensic pathology; it's not just doing an autopsy and making a
list of things that are broken. In the example of the child
falling from the window, the medical examiner's office would be
very interested in knowing if he jumped, was he pushed, or did he
fall and the medical examiner's office starts gathering evidence
from the first notification the kid came out the window in order to
make a determination. Local police agencies are also very
interested in trying to get the answers and have access to the
DFYS, local investigators and those types of individuals. The
medical examiner is charged not only with determining the cause of
death, but also the manner of death whether it be an accident,
suicide or homicide which is sometimes the hardest part.
REPRESENTATIVE DYSON inquired what happened in the Fairbanks
situation where it wasn't until a DFYS worker "blew the whistle"
that someone started investigating the child's death as a homicide.
DR. PROPST said that death was investigated by his office as a
homicide from the start. It was never not investigated as a
homicide by his office, as is every death until proven it's not a
homicide.
REPRESENTATIVE DYSON asked if Dr. Propst found evidence that led
him to think it was a homicide.
DR. PROPST replied, "The evidence in that case was soft; the
evidence in that case was very subtle. We have findings very
consistent with what turned out to be the facts. Could they have
been consistent with other scenarios? Yes."
REPRESENTATIVE DYSON stated a concern he has with Amendment 3 is
that it leaves the starting of the process and the investigation
with the medical examiner's office, not the other team players who
may be very suspicious of the cause of death.
Number 0535
MR. WEBB asked that he be allowed to briefly respond to the
Fairbanks case. As Dr. Propst said, his office began investigating
that death as a potential homicide from the outset. Frankly, the
breakdown in that case was at the local level - at the local
hospital where local physicians failed to identify the potential
suspicious cause of death of that child; the local police agency
that failed to identify the suspicious nature of that child's
death.
Number 0558
MR. GUANELI responding to Representative Dyson's comment, said,
"What the statute in either amendment says as to the state child
fatality review team is - and this gets back to Representative
Brice's argument or question about is 48 hours realistic or
unrealistic - what it says is unless the child's death is currently
being investigated by a law enforcement agency, the team will get
together within 48 hours. So I think this anticipates that the
initial responders - the people immediately on the scene will be a
local law enforcement agency investigation and the state child
fatality review team is not required to get together until that
investigation may be complete and all the information that the
medical examiner needs is available to the medical examiner because
of a local investigation. So I think this anticipates - (indisc.)
does not in fact require the medical examiner and the state team to
jump on it immediately. They can wait until all the information is
collected at the local level and I think that that recognizes that
there is a local response needed and I don't think that anything in
Amendment 3 precludes the kind of local cooperation that Nurse
James is suggesting. I think that's important."
REPRESENTATIVE DYSON asked Dr. Propst what he anticipated doing to
encourage and facilitate the forming of local teams as appropriate
throughout the state.
DR. PROPST said he would send out a mailer-type of inquiry to
solicit people who might be interested in serving on such a team,
reviewing the names that are returned and selecting people in
specific areas.
Number 0644
REPRESENTATIVE DYSON said his particular interest is that the team
be formal, getting together and developing protocols that will
define their duties and how to go about it, agreeing to meet on
some basis and deciding the criteria for what causes them to come
together when there's a child fatality. In his mind, it's
important the team be institutionalized in a sense, in the event
that Dr. Propst with his enthusiasm, isn't around.
DR. PROPST commented that was interesting - what does the team do
when there's no death to review. He pointed out that Nurse James
called from Homer and he knows for a fact there has not been a
child death in Homer at least in the past year.
REPRESENTATIVE DYSON replied, "The only thing I would say that they
do is do whatever's necessary to keep themselves informed and
trained to do their work. I particularly am not interested in any
groups having meetings just to have meetings, but so that team like
any ad hoc group that's there for a specific purpose is very ready
to grab their kit bag and go to work whenever needed."
CHAIRMAN BUNDE announced that Dr. Durfee was standing by to
testify.
REPRESENTATIVE DYSON informed Dr. Durfee of the individuals in
attendance and the topic of discussion was the child fatality
review team and whether it should be under the district attorney's
office or under the medical examiner's office. He asked Dr. Durfee
to testify.
Number 0719
DR. MICHAEL DURFEE, Chairman, Child Death Review Team for the
United States, said about 42 states have state teams and local
teams and the rest of the states have local teams only. Some
places like Ohio have the majority of the population under local
teams, and has yet to build a state teams. The teams at the state
level (indisc.) function to serve the local level. He explained
there are three parts to a team. One is membership, including at
the minimum a coroner, law enforcement, prosecuting attorney, and
child protective services; the second component is that the team
functions as a systematic peer review; and the third component is
(indisc.). The debate as he understood was whether the district
attorney should be in charge or the coroner should be in charge.
In charge means responsible, not authority. Note: The rest of Dr.
Durfee's testimony is indiscernible.
REPRESENTATIVE DYSON noted that Alaska has a sparse population
spread over hundreds of thousands of square miles without roads.
DR. DURFEE agreed that Alaska is different. The Yukon Territory
had come to him with the same question and structurally is
designing a program with an official team whose job it is to
provide services more available in urban areas, but there are the
local teams doing the primary case management because they are the
people who know about substance abuse, previous domestic violence,
et cetera.
Number 1074
REPRESENTATIVE DYSON asked what Dr. Durfee viewed as the main
impediment of designating the chief medical examiner as the lead
person as opposed to the district attorney.
DR. DURFEE said he doesn't think it matters who the lead person is
as long as that person sees themself as being responsible for the
team rather than having the authority. He added a leader gets
people excited about doing their job, gets the necessary resources
for people to do their job; it's the person the community gathers
around.
Number 1157
REPRESENTATIVE BRICE asked if Dr. Durfee's child fatality review
teams were housed in the municipal government or state government.
DR. DURFEE said the local teams are at the county level and the
state team is at the state level with all members being government
employees of various professions.
Number 1299
REPRESENTATIVE DYSON noted he was slightly expanding Chairman
Bunde's suggestion and would momentarily have an amendment to
Amendment 3 stating "shall facilitate the selection of local teams"
in addition to a couple of other minor wording changes. He
explained he would move an amendment to Amendment 3 and the second
part of his amendment would withdraw Amendment 2.
CHAIRMAN BUNDE pointed out that Amendment 2 could be withdrawn at
this time. Hearing no objection, Amendment 2 was withdrawn.
Number 1387
REPRESENTATIVE DYSON made a motion to amend Amendment 3 as follows:
Line 3 delete "may appoint", insert "shall facilitate the formation
of"; line 6, delete "appointed", insert "formed"; and on line 12,
delete "appointed to" and insert "on".
Number 1435
REPRESENTATIVE J. ALLEN KEMPLEN referenced line 3 of Amendment 3,
and suggested deleting "and" and inserting "or" to clarify that
three different teams - local, regional, and district child
fatality review teams - were not being mandated.
REPRESENTATIVE DYSON accepted that as a friendly amendment.
CHAIRMAN BUNDE asked if the committee members understood the
amendment to Amendment 3. He asked if there was objection to
Amendment 3 as amended. Hearing no objection, Amendment 3 as
amended was adopted. He reiterated that Amendment 2 had been
withdrawn.
Number 1482
REPRESENTATIVE DYSON made a motion to adopt Amendment 4.
CHAIRMAN BUNDE objected for discussion and asked Representative
Dyson to speak to Amendment 4.
REPRESENTATIVE DYSON noted the amendment was largely housekeeping
and he would prefer that Ms. Wibker address the amendment.
Number 1555
MS. WIBKER said on page 29, line 29, Amendment 4 inserts "sexual
abuse," following "abandonment," and inserts "chronic" following
"torture,". Additionally, on page 50, line 3, following "foster
home." insert "The department may extend a provisional foster home
license issued under this subsection for an additional period of up
to 90 days in order to obtain the information from the national
criminal background check required under AS 47.35.017(b)(6).". She
explained the current language in the proposed committee substitute
states the department can issue an emergency license for 90 days
but the Department of Public Safety has advised it often takes 180
days to get a fingerprint background check back from the FBI.
Amendment 4 allows an additional 90 day period.
REPRESENTATIVE DYSON observed in this day of technology, it
shouldn't take that long to get information back.
REPRESENTATIVE PORTER pointed out that criminal investigation
access of the FBI's files is a priority and this type of background
check for individuals in these types of positions is not high on
the priority list.
Number 1681
REPRESENTATIVE DYSON said this could be critical in that he
perceives the DFYS, desperately short of foster parents, has placed
children in homes without much investigation and children have come
to harm. He inquired what the remedy might be.
Number 1717
REPRESENTATIVE PORTER responded that technology is increasing all
the time. He explained the state is using a state-of-the-art
system now for latent fingerprint examination and identification
and that same technology and ability to run these kinds of checks
is in the process at the federal level.
Number 1761
CHAIRMAN BUNDE asked if there were further questions on
Amendment 4.
REPRESENTATIVE BRICE said inasmuch as Representative Dyson had
brought up the issue of children being placed in dangerous foster
homes, he questioned the logic of extending this period of time of
uncertainty relating to foster parents.
CHAIRMAN BUNDE pointed out in some cases the FBI isn't getting the
results of the background reports back to the state within 90 days
and there's no way of knowing what the criminal background is until
the report is received.
Number 1838
CHAIRMAN BUNDE removed his objection to Amendment 4.
CHAIRMAN BUNDE asked if there was further objection to Amendment 4.
Hearing none, Amendment 4 was adopted.
Number 1921
REPRESENTATIVE DYSON made a motion to adopt Amendment 5.
CHAIRMAN BUNDE objected for discussion purposes.
REPRESENTATIVE GREEN requested an explanation of Amendment 5.
CHAIRMAN BUNDE referred the committee to the language on page 14,
line 19, which discusses the protection of a child before as well
as after birth and said there are legal problems with that
verbiage.
REPRESENTATIVE DYSON explained Amendment 5 changes the Findings
section and puts the child's rights in context with family and
parental rights and responsibilities.
Number 2046
CHAIRMAN BUNDE made a motion to amend 5 on line 16, to delete
"before as well as". Paragraph (F) would then read "the
responsibility to provide special safeguards and care, including
appropriate protection after birth."
Number 2074
REPRESENTATIVE BRICE suggested it would read just as clear if the
entire phrase "before as well as after birth" was deleted.
CHAIRMAN BUNDE accepted that as a friendly amendment.
REPRESENTATIVE DYSON objected to the amendment to Amendment 5. He
explained the amendment was drafted to include "before as well as
after birth" because of concerns with fetal alcohol syndrome,
neurological defects and the damage to children from parental
irresponsibility during pregnancy.
CHAIRMAN BUNDE said he understood and if the verbiage specifically
addressed alcohol, he would certainly support it. However,
according to Legislative Legal Services, the state cannot adopt a
policy to enforce the DFYS to protect the life of an unborn child.
He added AS 11.41.140 defines a person and this definition is not
consistent with an unborn child. The Division of Family and Youth
Services has no authority over unborn children.
MS. WIBKER confirmed that.
REPRESENTATIVE DYSON said likewise the DFYS doesn't have a
responsibility ....
TAPE 98-43, SIDE A
Number 0004
REPRESENTATIVE DYSON continued .... in essence, this is intent
language.
CHAIRMAN BUNDE didn't disagree and said he was willing to define
"including appropriate protection" as requiring the mother to be
sober.
REPRESENTATIVE BRICE suggested "drug free" should be included.
After considerable discussion on the implications of that language,
CHAIRMAN BUNDE stated he would prefer to leave it as "appropriate
protection" and allow prosecutors the ability to follow up if it's
not adequate.
Number 0120
CHAIRMAN BUNDE noted he had proposed an amendment to Amendment 5
and inquired if there was objection.
REPRESENTATIVE DYSON objected. He said for individuals concerned
because the amendment is speaking to the welfare of the preborn
child, the whole paragraph addresses the rights and
responsibilities of parents.
Number 0184
CHAIRMAN BUNDE proposed the amendment to Amendment 5 on page 1,
lines 15-16 of Amendment 5 read as follows: "the responsibility to
provide special safeguards and care, including appropriate
protection of the child."
REPRESENTATIVE DYSON maintained his objection.
CHAIRMAN BUNDE asked for a roll call vote. Representatives Brice,
Kemplen, Porter, Green and Bunde voted in favor of the amendment to
Amendment 5. Representative Dyson voted against it. Therefore,
the amendment to Amendment 5 passed on a vote of 5-1.
Number 0463
CHAIRMAN BUNDE asked if there was further discussion on Amendment 5
as amended.
REPRESENTATIVE BRICE pointed out the list of parental rights and
responsibilities in Amendment 5, specifies everything except loving
the child or nurturing the child.
CHAIRMAN BUNDE commented that safe and happy home covers much of
that.
Number 0643
REPRESENTATIVE KEMPLEN noted he generally associates the word
"train" with the training of animals rather than human beings and
proposed to amend Amendment 5 deleting "train" and inserting
"nurture" on line 7.
Number 0654
REPRESENTATIVE DYSON advised Representative Kemplen those same
phrases were used on page 2, line 5.
REPRESENTATIVE KEMPLEN amended his amendment to Amendment 5 to
delete "train" and insert "nurture" on page 1, line 7 and page 2,
line 5.
Number 0682
REPRESENTATIVE GREEN offered a friendly amendment to retain the
word "train" and insert "nurture".
REPRESENTATIVE KEMPLEN accepted the friendly amendment.
CHAIRMAN BUNDE asked if there was any objection to Amendment 5 as
amended. He explained page 1, line 7 and page 2, line 5 of
Amendment 5 would read "(B) the right and responsibility to
protect, nurture, train, and discipline the child;".
REPRESENTATIVE PORTER asked for an explanation as to the intent of
the phrase "right and responsibility to obtain legal representation
for, and make decisions of legal or financial significance
concerning, the child" on page 2, lines 6-7.
MS. TORKELSON said, "We have a list of six on the top and we're
matching them because this is only intent language. We are also
making sure that the following in Section 42 matched in statute.
Right now Section 42 lists everything (A) through (C) and (E) and
(F) and now it matches also at insert (D) into statute."
REPRESENTATIVE DYSON suggested this issue be addressed in the
Judiciary Committee.
CHAIRMAN BUNDE asked if there was any objection to Amendment 5 as
amended. Hearing none, Amendment 5 as amended was adopted.
Number 0889
REPRESENTATIVE BRICE made a motion to adopt Amendment 6.
CHAIRMAN BUNDE objected for discussion. He asked Representative
Brice to address his amendment.
Number 0897
REPRESENTATIVE BRICE explained Amendment 6 amends language on
page 15, lines 10-11, whereby the department will make reasonable
efforts to arrange for visitation when a child has been removed
from the home unless a mental health practitioner, professionally
experienced with treating children determines the visitation would
be harmful to the child.
CHAIRMAN BUNDE asked if there was objection to Amendment 6.
Hearing none, Amendment 6 was adopted.
Number 1011
REPRESENTATIVE DYSON made a motion to adopt Amendment 7.
CHAIRMAN BUNDE objected for discussion purposes. He asked
Representative Dyson to explain Amendment 7.
REPRESENTATIVE DYSON said Amendment 7 was requested by individuals
involved with domestic violence. He said, "It's a rebuttable
presumption that there's problems when there's domestic violence."
REPRESENTATIVE BRICE asked if Ms. Wibker would define "rebuttable
presumption."
MS. WIBKER said, "It's sort of like prima facie where you have a
presumption and then the other side must undercut the presumption."
REPRESENTATIVE PORTER interjected, "It stands unless it's
challenged."
CHAIRMAN BUNDE requested Jayne Andreen to come forward and speak to
Amendment 7.
Number 1092
JAYNE ANDREEN, Executive Director, Council on Domestic Violence &
Sexual Assault, Department of Public Safety, said the concept of
rebuttable presumption in proceedings involving domestic violence
comes from the model code from the National Council of Juvenile and
Family Court Judges. Much of Alaska's law is based on the model
code and this piece is important to complete Alaska's law.
Basically, it says there is a presumption that if a parent is an
offender of domestic violence, it is not in the best interest of
the child to be placed in the custody of or have visitation with
that parent. It changes the current law by taking the onus of the
burden of proof in the proceedings from the nonoffending parent and
the child to the offending parent. It can be overcome, but it's up
to the batterer to prove to the court that it is in fact in the
best interest of the child for the batterer to have custody or have
visitation. She believes this presents a more appropriate approach
in placing the responsibility where it needs to be.
REPRESENTATIVE BRICE said based on information he has received,
batterers are getting quite sophisticated by provoking the female
into hitting them and then calling 911 which results in the female
being arrested. He asked, "Are we dealing with the primary
aggressor here?"
MS. ANDREEN responded, "Representative Brice, in a very, I think,
long, around the way kind of direction, ultimately yes, what we're
dealing with is the principal, physical aggressor and it's up to
law enforcement to determine at the time of the arrest who that is.
One of the points I think that's important for people to understand
in looking at this is the whole cycle -- domestic violence is not
a single, isolated incident; it's an ongoing cycle that goes on and
on about increasing levels of power and control. Even when the
couple separates, there is as a rule, additional power and control
that goes on. The children, I have found and I hear repeatedly, is
one of the last things that there is to have this power and control
fight cycle happening and batterers will often use custody,
visitation and child support as the ways to maintain that power and
control over the victim. So this takes that burden of proof off of
the victim and places it on the offender and says, 'Okay, this is
not healthy for the child - you tell us why you think it will be
okay.' And if they can make that case, then the court can find for
them to have to contact."
Number 1271
CHAIRMAN BUNDE asked if there was further discussion on
Amendment 7.
Number 1289
REPRESENTATIVE BRICE said the language, as drafted on lines 16-18
of Amendment 7 re-enforces his concern about the woman being
provoked to hit the male and is arrested under the mandatory arrest
statute.
CHAIRMAN BUNDE pointed out the rebuttable presumption gives the
woman the option to prove she was not the aggressor.
REPRESENTATIVE BRICE conceded that his issue was perhaps with the
mandatory arrest statute.
Number 1352
MS. ANDREEN commented that Representative Brice was raising a valid
and important point that should be a part of the discussion on this
issue. She explained, "What happened here in Alaska two years ago
when the mandatory arrest law was implemented is what has happened
in many other jurisdictions and that's that the arrest rate of
victims increased significantly - way above and beyond what it
should have been. So, what we have is the potential for a victim -
a true victim of domestic violence - to have the label of
perpetrator. But one of the things we found is that a lot of that
was dealt with - not all of it - but a lot of it was dealt with as
the cases were screened through the prosecutor's offices and now
that more training has gone on with law enforcement and prosecutors
throughout the state, those numbers are coming down in many areas.
This is an ongoing process that we have to deal with through
training and protocol development."
CHAIRMAN BUNDE asked if there was further discussion or objection
to Amendment 7. Hearing none, Amendment 7 was adopted.
REPRESENTATIVE DYSON pointed out that Amendment 8 proposed by
Chairman Bunde had already been dealt with. He added his Amendment
10 deletes Section 11.51.115 pertaining to criminal nonsupport in
the first degree and Amendment 9 proposed by Representative Brice
modifies that section. He has a tentative agreement with the
Administration to remove the criminal nonsupport in the first
degree from HB 375 and include it in a different bill. He said
removal of that section makes this child protection legislation
more pure and hopefully diminishes the number of individuals
opposed to this bill.
Number 1449
REPRESENTATIVE BRICE withdrew Amendment 9.
REPRESENTATIVE DYSON made a motion to adopt Amendment 10.
CHAIRMAN BUNDE objected for discussion purposes. He inquired if it
was Representative Dyson's intent to also remove criminal
nonsupport in the second degree as indicated by Amendment 10.
REPRESENTATIVE DYSON indicated it was his intention to remove all
language pertaining to criminal nonsupport.
Number 1478
CHAIRMAN BUNDE withdrew his objection. He asked if there was
further objection to Amendment 10. Hearing none, Amendment 10 was
adopted.
Number 1497
CHAIRMAN BUNDE commented that a title change would be required with
the adoption of Amendment 10.
Number 1505
CHAIRMAN BUNDE recessed the House Health, Education and Social
Services Standing Committee at 5:15 p.m.
Number 1522
CHAIRMAN BUNDE reconvened the House Health, Education and Social
Services Standing Committee at 6:23 p.m. He noted that CSHB 375
amended was before the committee for consideration and public
testimony. He asked Suzette Graham to come forward to present her
testimony.
Number 1616
SUZETTE GRAHAM, Foster parent, testified on behalf of her two
foster children who have been living in her home for 2 1/2 years.
After reading all three versions of HB 375, it took her some time
to reach a decision as to what the bill actually does for children.
The original version contained strong language concerning
reasonable effort and her interest and involvement with this
legislation was because of the children - reasonable effort,
reasonable time, time limits put on parents so children don't
linger in foster care. In her opinion, the proposed committee
substitute is a watered down version of the original bill; the
wording is not as strong as it needs to be. Reasonable efforts
must be defined and time limits must be placed on parents, or
children will stay in foster care far too long. For example, she
is aware of a six-year-old child who is finally getting adopted
after being in 19 foster care homes.
MS. GRAHAM said her children were 10 months old and 3 years old
when they came to live in her home. The 10-month-old baby had been
boiled; the 3-year-old had severe burns and had reverted to what is
called "state of survival" - she did not speak, she hissed, hid in
corners, pulled her own hair out, wouldn't let anyone near her -
severely emotionally, as well as physically abused. The father was
incarcerated two days prior to the children being removed from the
home and because he wasn't in the home at the time of the report of
harm and the children being removed, he feels he has the right to
have these children back. He's been out of prison for the last 18
months, had four jobs - currently does not have one and is living
in his car. However, he visits the children because he's been
advised by his lawyer who was paid for by his parents, that he must
show up for the visits if he wants to come under the "reasonable
effort" provision. He would probably win his children back if the
case went to court today because he's making reasonable efforts.
MS. GRAHAM explained the children have bonded with her. A
psychological evaluation of the five-year-old indicates she is
severely emotionally disturbed, has a reactive attachment disorder
and she has an attention deficit disorder (ADD). She explained
that reactive attachment disorder is when a child fails to bond at
a young age and as the child gets older, becomes the type of child
who can express their love for someone and place a gun to that
person's head and pull the trigger without having a second thought.
These children are referred to "cardboard children." This five-
year-old child has made an attachment to Ms. Graham and if removed
from that attachment, may never attach again. That, in itself, has
been enough to make her fight for these children and that's
basically what she's doing. She's having to fight the father
because he shows up for visitation which falls under the definition
of "reasonable effort" and if these laws had been in place before,
there would be no question. She stressed that something needs to
happen - there are so many children who have lingered in the system
waiting to get out. She was aware of a case that Ms. Wibker had
been able to terminate on involving a child who had been 100 foster
homes.
MS. GRAHAM urged the committee to take action. She said, "Please.
This is why I got involved in the first place. There's got to be
reasonable efforts and it has to be defined. They have to be given
a case plan and in six months where are you going to be and if
you're not, you did not follow the case plan. As it's written now,
it's for the parent and if the parent doesn't follow through, the
child stays in custody for years and years."
MS. GRAHAM said she recently learned her older child does not have
the same father as the youngest child, so visits with the older
child have slowed down but the baby is still visiting. The father
is now manipulating the children on the visits which has resulted
in new emotional problems with the children. She is unable to
terminate the visits under current law and if it went to court
today, she would probably lose the case under "reasonable efforts."
Number 1882
REPRESENTATIVE DYSON said it certainly wasn't his intention to
water down this legislation. He thought it was being tightened up
by mandating a permanency hearing within 12 months of starting
foster care instead of the current 18 months.
MS. GRAHAM replied, "That does, however, if you do not put
reasonable efforts in there - if you don't put the time restraint
on the parent, then you will take that to court and you'll say
'Okay, federal law says that we need to comply with this, right?'
but if you've not defined reasonable effort, the judge will say,
"Okay, right. The child's been in there 12 months but this parent
is making reasonable effort so because of reasonable effort, I
can't terminate.'"
CHAIRMAN BUNDE said he thought that issue had been addressed with
the committee substitute. He asked Ms. Wibker to come forward to
explain.
Number 1934
MS. WIBKER directed the committee's attention to page 15 and said,
"Legally the department has a duty to make reasonable efforts to
prevent removal and to make reasonable efforts to return a child
home. And what we're doing is changing that in certain cases there
would no longer be a requirement that the department make
reasonable efforts. I think what Ms. Graham is reacting to is
throughout here it talks about parents making reasonable efforts.
I'm looking at the top of page 16, lines 2-6, 'parents and
guardians should make reasonable efforts to actively participate'
and I think what she's saying is you don't want parents to be able
to come in say 'I made efforts. I'm still an alcoholic, but I
tried four times, so give me my kids back.'"
REPRESENTATIVE DYSON asked what the remedy would be.
MS. WIBKER said that parents in order to have custody of their
children, have to provide a minimal level of care. If the parent
doesn't, the state can then take legal custody or remove the child.
However, under federal law the child is not supposed to be returned
without the court making a finding that the child's health and
safety is the paramount concern. So, parents have to do more than
reasonable efforts; they have to provide a minimal, acceptable
level of care.
CHAIRMAN BUNDE asked what section Ms. Wibker was referring to.
MS. WIBKER directed the committee's attention to page 16, lines 2-
6, and suggested the language should indicate that parents and
guardians "should" participate in family support services so as to
facilitate the child's being able to remain in the home. She
pointed out that line 5 states that parents and guardians should
actively participate in family support services to make return of
their children to the home possible. The language should not imply
that a parent only needs to try - that trying and failing are
acceptable.
CHAIRMAN BUNDE suggested deleting "make reasonable efforts to" on
page 16, line 2-3, so it would read "parents and guardians should
actively participate in family support service ...."
Number 2053
MS. TORKELSON said "should actively participate in family services"
implies that when she becomes a parent, she will be required to
attend family support services in order to keep her children in the
home.
MS. WIBKER said the statement should be modified to indicate
parents are asked to comply with these provisions only when
children are in the legal custody of the state or have been removed
from the home.
REPRESENTATIVE GREEN suggested moving the language in subsection
(7) on page 16 to (5)(F) on page 15.
REPRESENTATIVE DYSON agreed with Representative Green's suggestion,
and suggested changing the language to indicate that parents and
guardians "must" actively participate in family support services.
MS. TORKELSON said, "Under reasonable efforts - Section 42 - page
28, right now we're talking about the Findings which don't really
hold much - they are followed with the definition further defining
what reasonable efforts constitutes and (B) the court makes a
finding that a hearing conducted under 47.10.080(l) that a parent
or guardian has not sufficiently remedied the conduct or the
conditions in the home despite reasonable efforts - oh, that's by
the department."
MS. WIBKER interjected "That's as it should be." She explained
the department has the duty to make reasonable efforts with regard
to the family. Reasonable efforts are the family support services
to remedy the problem. The family should participate - they may or
may not participate - but they have to reach some minimal level of
care so the child would be safe in the home before the child can be
returned.
Number 2255
CHAIRMAN BUNDE stated while this speaks to the department's
reasonable effort, he wanted Ms. Graham's concern addressed.
MR. WEBB said the original version established an obligation on the
part of the parents to remedy conditions or behavior that placed
the child at risk. He thought that was the issue that Ms. Graham
was trying to get at - is that responsibility on the part of the
parent to remedy the conditions or general behavior that placed the
child at risk or caused the child's removal from the home.
REPRESENTATIVE DYSON said that was close to the language on page
29, line 17.
MS. TORKELSON explained the language regarding reasonable efforts
in the previous version and the department's version were merged,
keeping the federally mandated portions of reasonable efforts in
the proposed CSHB 375.
CHAIRMAN BUNDE asked Ms. Wibker if the term "reasonable efforts" in
the Findings Section cloud the issue in (7) on page 16.
MS. WIBKER said it is her opinion that it does because it suggests
to a parent they need only "try" to participate.
Number 2312
REPRESENTATIVE PORTER made a motion to delete "make reasonable
efforts to" and insert "must" on page 16, line 2 and line 5; modify
(7) on line 16, lines 2-6 to (5)(F) on page 15, line 30 to read:
(F) parents and guardians must actively participate
in family support services so as to facilitate the child's
being able to remain in the home; when children are removed
from the home, the parents and guardians must actively
participate in family support services to make return of
their children to the home possible; and
TAPE 98-43, SIDE B
Number 0001
CHAIRMAN BUNDE asked if there was any objection to this amendment.
Hearing none, this amendment was adopted.
CHAIRMAN BUNDE asked Ms. Graham if she had other concerns.
MS. GRAHAM responded her concern had been she didn't want to see
children returned home just because the parents had made reasonable
efforts. With regard to time restraints on parents, she commented
that in her instance, the father was supposed to have a job and a
home at the time of the six month review, he got a job three weeks
before the review and got housing a week later which was considered
timely.
Number 0043
REPRESENTATIVE DYSON inquired if the 12-month time frame for the
permanency hearing was satisfactory.
MS. GRAHAM responded yes, as long as the parents are on that 12-
month restraint also.
REPRESENTATIVE DYSON noted that Kansas had started out with a 12-
month period for a permanency hearing, but had to back down to 18
months because they just weren't able to get it accomplished in 12
months.
CHAIRMAN BUNDE asked if there was further discussion.
MS. GRAHAM inquired if the "willing to parent" clause had been
deleted in the proposed committee substitute and said the Supreme
Court had overturned a number of cases because the parent was
willing.
MS. WIBKER pointed out the language had been "willing or able" and
the Supreme Court determined that a willingness was enough.
However, the language on page 26, line 21, of the proposed
committee substitute states that in the case of an incarcerated
parent, the other parent must be "willing and able."
MS. GRAHAM asked if that was only in the case of an incarcerated
parent?
The response is indiscernible - too many people talking at one
time.
Number 0145
CHAIRMAN BUNDE asked if there was further discussion. Hearing
none, he announced the committee would begin hearing testimony via
teleconference.
Number 0200
MICHAEL BRANDNER, M.D., testified offnet from Anchorage and it is
his understanding the state plans to give the DFYS more power, more
money and more people even though they've demonstrated incompetency
and bad judgment. He wasn't sure that giving them more money and
more workers will be successful unless the legislature considers
having social workers in the household of every Alaskan an ideal
situation. He personally has dealt with two or three patients in
the last couple years that have had social workers in charge. One
was a four- or five-month-old infant who had been burned. It was
determined the 19- or 20-year-old mother had too many children, so
several of the children went to foster parents. In his opinion,
the foster parents of this infant patient were much less competent
than the mother. He related other incidents of foster parents not
bringing children in for appointments, surgery, et cetera. Based
on his experience, he believes the situation is totally out of
hand.
CHAIRMAN BUNDE pointed out this legislation doesn't give the DFYS
any additional money or people; it changes criminal penalties and
tightens up definitions.
REPRESENTATIVE BRICE asked if Dr. Brandner was a mandatory
reporter.
DR. BRANDNER believed he was required to report an incident if
there was some evidence of abuse. Fortunately, he is usually
involved in the care of a patient with either a family physician,
pediatrician or emergency room doctor and generally a report has
already been filed by the time he's called in.
Number 0358
REPRESENTATIVE BRICE asked if it worked effectively for him.
DR. BRANDNER described the incident of an injured patient which
initially he didn't suspect as abuse, but upon learning that a
sibling had been treated previously, he reported the incident. The
child was allowed to go home with the parent even though it had
been reported. The child was not returned for a follow up visit
which he also reported, but nothing was ever done about it. He
said it's impossible to get in touch with the case workers when
many of these incidents occur on weekends and evenings.
CHAIRMAN BUNDE thanked Dr. Brandner for his testimony and asked
Harry Niehaus to present his comments.
Number 0434
HARRY NIEHAUS, Representative, Guardians of Family Rights,
testified via teleconference from Fairbanks. He said he's done a
certain amount of paralegal work with the organization and it's
been his experience that DFYS workers are not available when they
are really needed - families are told it's a family problem and
DFYS can't help. But on the other hand, when families are
correcting and disciplining their children DFYS is right there. He
said, "Everyone is entitled to their own opinion and I have no
problem with that except they don't do a proper investigation -
they have every broad accusation in the courtroom. For instance,
they'll say, 'well, you've had inappropriate behavior' but yet they
don't define inappropriate behavior. He discussed reasonable
efforts on the part of the department as well as the parents.
Parents' rights groups are maintaining the department is not making
reasonable efforts and is requesting the department to define
reasonable efforts.
Number 0548
WALTER GAUTHIER testified via teleconference from Homer. He said
he has not been able to find any language in the Child Prevention
and Treatment Act and the Conference Report on the Personal
Responsibility and Work Opportunity and Reconciliation Act that
requires the state to adopt the language "best interest of the
child." He asked Ms. Wibker to quote the statute or reference
which requires the state to adopt that language.
MS. WIBKER responded the federal language states there should be a
change in state law to reflect that health and safety of the child
shall be the paramount concern. Prior to that, states used "best
interest" language; in particular, Alaska has statutory language
requiring the judge to always consider the best interest of the
child in any order, including a disposition order, a termination of
parental rights order or any other legal order made by the court.
Other states have made a change which Alaska has not yet done, to
elevate the best interest of the child to either an equal place
with the parents or above the parental rights. She reiterated the
federal law states the health and safety of the child must be the
paramount concern and she interprets that as meaning the health and
safety of the child trumps the rights of parents, but the court is
ordered to consider best interest in the equation.
Number 0756
MR. GAUTHIER said page 14 of the committee substitute states it is
the policy of the state to recognize that children have legal
rights to a safe and happy childhood, reasonable safety and so
forth. However, page 15 indicates it is the policy of the state
that while a child is in foster care and a ward of the state, the
child is entitled to only reasonable safety, adequate care and
adequate treatment. He said in a nutshell, this is the difference
between the state and a loving family. Parents are required to
give children (indisc.), but when the children are taken, the state
assumes no responsibility except adequate and reasonable. He said
this proposed legislation is total insanity.
CHAIRMAN BUNDE asked Chief Shirley Warner to testify next.
Number 0884
SHIRLEY WARNER, Chief of Police, Soldotna Police Department
testified via teleconference from Kenai. She has been a police
officer for 22 years and currently serves as the Chief of Police of
the Soldotna Police Department. She is a new chief, however, in
her tenure she has overseen the investigation of a dozen child
abuse, neglect, indecent exposure and child sexual abuse cases; one
case is too many for the small community of Soldotna. While
serving on the Anchorage Police Department, she witnessed injuries
which had been inflicted upon children that would make the most
hardened person cry. Throughout her career, she has never felt
that children were afforded the same rights under the constitution
and laws of this state that were afforded adults. Finally, with
Governor Knowles' child protection bill, children will be protected
and valued as young members of communities. She expressed her
appreciation to all those involved in the writing of this
legislation. She is particularly pleased with the increased
clarity in the laws regarding the current abandonment laws. It is
a strong message that parents cannot disregard parental duties;
that domestic violence and incarceration have a negative long-term
effect on children and it will be addressed in a proactive manner;
that children will not be left with those who do not want them;
that children who do not wish to go home will have be listened to
and an investigation will ensue to ensure the child is not placed
in a situation where there may be harm. She said the proposed laws
are much more definitive and less likely to be interpreted broadly,
which makes it much easier for law enforcement and prosecution
alike to go before a judge, jury and defense attorney with the
child's interest at the forefront. She supports the fact that
emotional harm to children is finally being recognized in this
bill. Mental abuse is every bit as harmful to the future well-
being of children. The expansion of the neglect laws will be an
excellent tool for law enforcement. Many times she has listened to
the line officers and investigators express frustration over seeing
the harm when a child does not have basic needs provided and many
times it's (indisc.) individual use of drugs and alcohol which are
both addressed in this legislation.
CHIEF WARNER said she is especially appreciative of the policy
statement that children have the right to a safe and happy
childhood, reasonable safety, adequate care, adequate freedom,
freedom from physical abuse, sexual abuse, sexual exploitation and
substance abuse, special safeguards and care including appropriate
legal protection before as well as after birth and permanency with
a safe loving family, all of which ensure that police will not see
them as victims or eventually on the other side of the law. She
supports the tone of this legislation and encourages that it remain
intact for the children. She is pleased with the mandate that all
state agencies work together. Over the years, she has seen
agencies come together for the good of victims, but for this to
occur at the highest level is very gratifying.
Number 1121
REPRESENTATIVE DYSON asked if Chief Warner was familiar with the
multidisciplinary team provision of this legislation and if so, was
she able to work with it?
CHIEF WARNER said yes, she could work with it. She likes the
multidisciplinary team approach and is very much in favor of the
fatality review team.
CHAIRMAN BUNDE thanked Chief Warner for her comments and asked
Diana Buffington to present her comments.
Number 1195
DIANA BUFFINGTON, President and State Coordinator for the
Children's Rights Council and Chairman, Alaska Task Force on Family
Law Reform, testified from Kodiak via teleconference. She said she
didn't want to disillusion the committee, but just because the
child support portion was removed from this legislation, there is
still a large population not in support of this bill. This leaves
very little or no testimony from the people who are affected by
this - the parents because they're busy at home taking care of
their children until DFYS comes in and removes them. She said this
bill is too complicated; it attempts to encompass too much. It
should have been broken down into several bills which would have
made it a lot easier and more effective to testify against this
bill.
MS. BUFFINGTON said, "First, I think Ms. Wibker has the audacity to
say that immunity and indemnity from decisions concerning the child
fatality and the multidisciplinary teams is for the birds.
Immunity is immunity; indemnification is indemnification. The
person who is charged with either a civil complaint or a criminal
complaint should have the right to face their accusers even if the
team has a conflict during the committee meeting and has to reveal
this to a court - either through discovery or in the process of
going through the court. It is a true violation of U.S.
constitutional rights of protection from unlawful prosecution in
civil or criminal cases if you take away the indemnification and
immunity process for people who serve even for the protection of
the children."
MS. BUFFINGTON noted there's already a child fatality team in
place; it's called a grand jury. We don't need another child
fatality team. She said this bill is too complicated and it over-
compensates.
Number 1429
CHAIRMAN BUNDE asked Marci Schmidt to testify next.
Number 1445
MARCI SCHMIDT testified via teleconference from Mat-Su. She
expressed her pleasure with the committee for deleting some of the
noncriminal language; however, she requested a new draft of the
legislation be made available before the committee took action.
She agreed with Ms. Buffington that the bill is complicated and
encompasses too many issues. In her opinion, passing federal
public law 105-89 in its entirety would be the better way to go.
She expressed frustration with the committee's action of placing
the legislative intent in the middle of the bill. It has been her
experience that judges don't read very far into the law; they have
a tendency to read the first thing they see and in her opinion, the
intent language should be moved to the beginning of the bill. She
asked, "Is there anything regarding the fact if a child themselves
go out and get an attorney, will they be allowed to have that
representation?"
CHAIRMAN BUNDE guessed that a child who has not reached the age of
majority would have a difficult time entering into a contract with
an attorney.
MS. WIBKER said that in any child in need of aid action, federal
law mandates the appointment of a guardian ad litem to represent
the best interest of the child and that same requirement is in
state law. There is the option requiring a court to appoint a
separate attorney for the child if the child and the guardian ad
litem disagree on what's in the best interest of the child. She
was not however, aware of a child being able to hire their own
attorney.
MS. SCHMIDT advised of an instance in Florida where the termination
of parental rights was prolonged, and a young man hired his own
attorney so he could sue to have his parents' parental rights
terminated so he could be adopted. The case was upheld.
CHAIRMAN BUNDE thanked Ms. Schmidt for her comments and asked
Jennifer Taylor to testify at this time.
Number 1630
JENNIFER TAYLOR testified via teleconference from Craig. She said
it is critical and appropriate that this bill, in particular,
address the issue of nonsupport of children as criminal because the
blatant neglect of children caused by parents who accumulate
arrearages representing debts to their children of many months
without support reflects the utmost indifference to the children's
well-being and their survival. The extreme poverty of Alaska's
children in some single family households elevates their
susceptibility to abuse from stressed out parents. Poverty is the
most documented reason for poor performance in school, lack of
adequate nutrition and proper growth. She commented that due to an
equipment malfunction, she had missed much of the meeting,
therefore she questioned the appropriateness of her testimony on
this issue without knowing what the committee's previous action
had been.
Number 1722
CHAIRMAN BUNDE advised Ms. Taylor the criminal child support issue
had been removed from HB 375 and will be addressed in another bill.
MS. TAYLOR reiterated her previous statement that it's critical
this issue be addressed as soon as possible.
CHAIRMAN BUNDE asked Blair McCune to present his comments.
Number 1756
BLAIR MCCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage. He
referred to the section dealing with child in need of aid on
page 17 and said to his way of thinking, the changes made to that
section made a lot more sense. He said,"Obviously (indisc.) where
child protection is an issue and just looking at paragraph (1)
before it, it says a parent or guardian has abandoned the child and
this addresses the situation if you had another parent or family
member able to take care of the child. So, I think there's been
(indisc.) of that phrase and the other parent is absent or
committed conduct or created conditions that cause the child to be
a child in need of aid under this chapter adds a lot and helps the
bill out quite a bit. On the second paragraph, there was some
language proposed in one of the drafts instead of saying the last
phrase, 'or has committed conduct or created conditions that cause
the child to be a child in need of aid' there was 'made
satisfactory arrangements for the care of the child' and I think
that would be better because currently, if you have a single parent
- say the other parent abandoned or disappeared and is not in the
child's life - if that parent goes in for a three-day stay in jail
or something and that parent makes adequate arrangements - they
leave the child with a grandparent or other relative - they could
be involved in this case, but I think the made satisfactory
arrangements is a better language."
MR. MCCUNE referred to the language in subparagraph (10) on page
18, "the parent, guardian, or custodian's ability to parent has
been substantially impaired by the addictive or habitual use of an
intoxicant;" and asked the committee to consider a situation of a
very capable parent who starts to use alcohol habitually and the
ability of that parent drops substantially, but is still adequate.
He believed this was an issue the committee should give some
thought.
Number 1976
CHAIRMAN BUNDE asked Representative Dyson and Ms. Wibker to respond
to Mr. McCune's concern dealing with adequate arrangements made for
a child.
Number 1999
MS. WIBKER responded the language referred to by Mr. McCune had
been in the original version and Representative Dyson had made an
amendment.
MS. TORKELSON said the reason for the amendment was because it
placed the duty of finding the safe and appropriate care on the
parent who was incarcerated and obviously, if that person was
already in jail, they weren't thinking much about their children.
If the other parent was available, it would default to that parent.
CHAIRMAN BUNDE said, "I think the question was if the other person
had disappeared and a single parent ends up in jail and, for
instance a DWI, and has made adequate arrangements and is only
going to be incarcerated for three days and makes adequate
arrangements, I don't think we want them to put their children in
danger of being wards of the state."
Number 2078
REPRESENTATIVE PORTER observed that in many misdemeanor
incarceration situations, there's plenty of time to make
arrangements.
MS. TORKELSON said the language in the original bill had been
interpreted that the sole responsibility was on the incarcerated
person and this language attempts to ensure it defaults to the
other parent.
CHAIRMAN BUNDE proposed a conceptual amendment, Amendment 11, to
insert "and the incarcerated parent has not made satisfactory
arrangements" following "chapter;" on page 17, line 20.
Number 2152
REPRESENTATIVE DYSON made a motion to adopt Amendment 11.
CHAIRMAN BUNDE asked if there was objection to Amendment 11.
Hearing none, Amendment 11 was adopted.
CHAIRMAN BUNDE next called on Currey Cook to present his comments.
Number 2201
CURREY COOK, Attorney, Office of Public Advocacy, Department of
Administration, testified via teleconference from Anchorage. He
represents children as guardian ad litem in CINA cases. He noted
that exposure to domestic violence is a major problem for children;
they are the forgotten victims of domestic violence. He felt very
strongly that exposure to domestic violence should be included as
a specific subsection having a jurisdiction in a child in need of
aid case. He urged the committee to take that under consideration.
He expressed his support in general for this legislation because
not only do children deserve to be safe, but everyday he sees the
link between abuse and neglect and children's involvement in the
(indisc.) system, which he believes has been overlooked. If for no
other reason besides children's general safety, this can be looked
at as a crime prevention bill by getting involved in families....
TAPE 98-44, SIDE A
Number 0004
MR. COOK concluded by reading a poem written by a 16-year-old girl
who had been in a family where there had been domestic violence and
substance abuse by her parents.
Number 0203
REPRESENTATIVE PORTER advised Mr. Cook the committee had adopted a
4-page amendment which basically makes a rebuttable presumption
that if a child is exposed to domestic violence the court must find
it is detrimental and not in the best interest of the child.
Number 0270
SCOTT CALDER testified via teleconference from Fairbanks. He
referred to the rebuttable presumption in Amendment 7 and said in
looking at the document, he could not locate where it said the
court had defined that is the case regarding the domestic violence
issue, and it appeared to him that it was a tentative proposition.
REPRESENTATIVE PORTER said it is a requirement of the court to
determine that domestic violence has occurred, as one would expect,
before the presumption comes into play, but if the court finds in
the child custody proceeding, that domestic violence has occurred
rebuttable presumptions arise that it is detrimental to the child
and not in the best interest of the child.
MR. CALDER said, "There was some discussion earlier about the team
process and there was some exclusion or exception category if
somebody proves gross negligence and intentional misconduct that
there might be some type of liability or loophole in the immunity.
Does anybody know how that would be done? How would you prove
gross neglect and intentional misconduct?"
CHAIRMAN BUNDE responded he would attempt to explain in layman's
language in the absence of the assistant district attorney
specializing in tort issues. He explained if a person is driving
a car down the road taking all due care, the wheel falls off
causing the person to have an accident in which someone was hurt,
that would be negligence. However, if a person purposely drove a
poorly maintained car with bad tires and missing lug nuts and had
been informed of the dangerous condition previously, and the wheel
falls off causing injury to another person, that would be gross
negligence.
MR. CALDER wondered how that would apply to the activities of a
state agency. He added, "I guess I'm more interested in the
general sense since so many people do have complaints about gross
neglect and intentional misconduct, the lack of financial means to
compete with the state on that issue. Of course, many people are
concerned about how that (indisc.) meaningful exception."
CHAIRMAN BUNDE advised the immunity Mr. Calder was referring to
from negligence was deleted for employees of DFYS; it only applies
to members of the child fatality team and they would have to be
grossly negligent rather than just making a mistake. The team
participants are immune for just normal human errors, but not
immune if they make gross errors, causing intentional harm to
someone.
MR. CALDER said the medical examiner had testified there were nine
criteria for the involvement of the medical examiner's office, but
actually there are ten; the tenth one being "the death appears to
have occurred while the deceased was in the custody of or was being
taken into the custody of the state or a political subdivision of
the state or a public officer or agent of the state or a political
subdivision of the state." He questioned if that had been
overlooked by the committee.
CHAIRMAN BUNDE said the committee was well aware that if someone
dies while in custody, the medical examiner has to be involved.
MR. CALDER expressed his concern that the proposed legislation
seems to be a bit one sided in favor of the agency, and he felt it
was going in the wrong direction. He suggested a thorough review
be done of the agency in which people who have been victimized
could participate.
CHAIRMAN BUNDE requested Mr. Calder grant recognition that the
legislature is trying to do the difficult job of balancing the
protection of children and the rights of good parents who are
trying to do the very best job of raising their children. He
called on Arthur Hansen to present his comments at this time.
Number 1048
ARTHUR HANSEN testified from Fairbanks via teleconference. He
pointed out there is clear evidence that child development is
critical in the growth of the child at an early age, and yet this
bill recommends that proceedings or actions be taken at the age of
six, which in his mind is way too late. He conveyed that his wife
had been adopted at the age of four and 46 years later is still
suffering from the consequences of not being adopted out earlier.
He had forwarded to the committee a packet of information relating
to brain development and encouraged committee members to review it.
He had heard stories on both sides; one of children being removed
from parents and grandparents and the other where terrible abuse
and neglect has occurred.
CHAIRMAN BUNDE remarked the committee recently had a presentation
from experts in early brain development. He thanked Mr. Hansen for
his comments and asked Bobbie Niehaus to present her comments.
Number 1363
BOBBIE NIEHAUS testified from Fairbanks via teleconference. She
said she dropped out of school last year because of drugs and
alcohol. She left home, dropped out of school, quit going to
church and just had fun. She was arrested many times and released
the following day. Finally her dad stepped in and she was detained
which gave her time to think and sober up. The decision to turn
her life around came while she was in rehab, but without her dad
she would probably still be in the streets. She said the state
didn't step in until it was too late and didn't want the agency to
have any more power.
CHAIRMAN BUNDE thanked Ms. Niehaus for her remarks and expressed
congratulations for getting her life together. He asked Pam
Karalunas to present her testimony.
Number 1503
PAM KARALUNAS testified via teleconference from Fairbanks
requesting an explanation of Amendment 4.
CHAIRMAN BUNDE directed Ms. Karalunas to Version F, and explained
the amendment inserts "sexual abuse" following "abandonment" on
page 29, line 29 and inserts "chronic" following "torture". Line
29 would read "abandonment, sexual abuse, chronic mental injury, or
chronic physical injury and torture."
MS. KARALUNAS said she was testifying as a representative of the
Arctic Alliance, on behalf of the clients, and as a private
citizen. She expressed appreciation on behalf of Arctic Alliance
for the work done by the legislature on this issue. Most of the
Alliance's concerns had been addressed except for a concern she had
previously expressed. Secondly, she wished to speak on behalf of
her clients whose input she had been soliciting since this
legislation came about. She worked with about 600 families over
the years and 99.9 percent have had some type of involvement with
the DFYS. For every horror story she hears about how the system
has abused the parents, she hears about 50 stories of how children
are horribly abused in the home and in (indisc.) cases, abused by
the system. Her clients have indicated that many of the problems
stem from the interviews and feel strongly that if the interviews
were conducted simultaneously as a team with a child's advocate, a
law enforcement person and the DFYS worker, there would be a
broader based picture and less misinterpretation of what the child
said. Speaking personally, she gets incensed when she hears that
Alaska can't afford to protect its children. As one of the richest
states in the Union and the only state to give every citizen an
entitlement for taking up space and breathing the air and Alaska
can't afford not to protect our children.
Number 1775
REPRESENTATIVE DYSON commented a major portion of this bill deals
with putting the team approach into law and hopefully it will
become a reality.
REPRESENTATIVE BRICE assured Ms. Karalunas that Amendment 1
addresses the multidisciplinary child protection teams and includes
staff members of a child advocacy center. He encouraged her to
keep working with the Resource Center for Parents and Children
toward that approach.
CHAIRMAN BUNDE thanked Ms. Karalunas for her comments and asked
Johnny Grames to present his comments.
Number 1861
JOHNNY GRAMES, Representative, DADS, Alaska, testified from
Anchorage via teleconference and said as a father and grandfather
he is absolutely horrified that fathers are going to be living in
a totalitarian police state with all these people trying to save
children from their parents. He said the Bill of Rights was
written to protect citizens from abuse of governmental power. He
commented the committee's use of the expression "child and the best
interest of the children" is abstract and it's difficult to deal
with that because the committee isn't dealing with real parents and
children, but rather is trying to put everything in a law which
isn't going to work. He doesn't see any compassion for real people
trying to raise families.
Number 2027
CHAIRMAN BUNDE closed public testimony. He said, "We have before
us an amended bill that presents a good deal of challenge. As I
mentioned earlier, we're trying to protect children who have been
murdered and raped by their own relatives on one hand and on the
other hand I believe there are parents who have been unfairly
treated by the system. This bill focuses on trying to deal with
those people who would injure children, would rape and murder them
and I guess all I can say is that as a legislator, we are demanding
that DFYS and CSED have some serious changes in management - there
is an audit out on DFYS and I think we have seen some press
releases lately that indicate that DFYS and the whole Department of
Health and Social Services is taking the problems that the
legislature and the people have brought to them seriously. The
legislature will be demanding accountability, I think I'm safe to
say, and this bill is only a small part of that whole need for
accountability. I understand the concerns of people who feel
fearful that government has too much power, but if we have to err,
we must err on the side of those children that will be raped and
murdered. And so, with that in mind I would ask the pleasure of
the committee."
Number 2110
REPRESENTATIVE DYSON made a motion to amend page 18, line 14,
following the semi-colon, insert "exposure to domestic violence
shall be treated as in AS 25.20.060".
MS. WIBKER explained this incorporates it into the child in need of
aid; it will lay out the procedure for exposure to domestic
violence.
CHAIRMAN BUNDE asked if there was objection to Amendment 12.
NOTE: Response is indiscernible.
Number 2154
REPRESENTATIVE BRICE said there were a couple of issues he would
like considered in the Judiciary Committee. First, is the
definition of the child advocacy center and secondly, the deletion
of the sex offender registration provisions due to the single
subject clause. He suggested the sex offender registration
provisions for sex crimes against children could be strengthened
and still meet the single subject rule. He'd been asked the
question if he would rather destroy a family or save a child and
frankly, he didn't think either one was necessary. He said these
issues are not an either/or situation. House Bill 375 is not a
loosening of standards, it's not a degradation of standards; it's
actually a strengthening of standards. The impact that abuse and
neglect have on a child's life as well as the impact on society for
the rest of that child's life is absolutely tremendous and to his
way of thinking, HB 375 should have a negative fiscal note. He
said he would continue to pursue discussions on the abandonment
issue with Ms. Wibker. He expressed his appreciation for
committee's assistance in getting this legislation moving.
Number 2261
REPRESENTATIVE DYSON said, "I have enjoyed the relationship -
cooperative and abrasive and dynamic with a number of people in the
Administration and they have dealt with me quite honorably and I'm
impressed. I want them to know I appreciate all these people -
Susan, I think you particularly."
Number 2280
REPRESENTATIVE DYSON made a motion to move CSHB 375(HES) from
committee with individual recommendations and attached fiscal note.
Hearing no objection, CSHB 375(HES) moved from the House Health,
Education and Social Services Standing Committee.
ADJOURNMENT
Number 2293
CHAIRMAN BUNDE adjourned the House Health, Education and Social
Services Standing Committee at 8:20 p.m.
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