Legislature(1993 - 1994)
01/14/1994 01:15 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
January 14, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair (arrived later)
Rep. Pete Kott
Rep. Gail Phillips (arrived later)
Rep. Joe Green
Rep. Cliff Davidson (arrived later)
Rep. Jim Nordlund
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HB 247: "An Act changing the frequency of
certain state inspections of weights and
measures and relating to the issuance of
citations for weights and measures
violations."
NOT HEARD - PULLED FROM CALENDAR
HB 280: "An Act adopting the Uniform Custodial
Trust Act."
PASSED OUT WITH INDIVIDUAL RECOMMENDATIONS
SB 45: "An Act relating to persons under 21
years of age; relating to programs for
runaway minors; providing for
designation of shelters for runaway
minors; relating to the detention and
incarceration of minors."
PASSED OUT WITH INDIVIDUAL RECOMMENDATIONS
WITNESS REGISTER
KAREN BRAND
Legislative Aide
Rep. Carl Moses
Alaska State Legislature
Capitol, Room 204
Juneau, Alaska 99811
Phone: 465-4451
Position Statement: Testified on behalf of the Prime
Sponsor
of HB 280.
ART PETERSON
Attorney in Private Practice
Uniform Law Commissioner for Alaska
350 N. Franklin
Juneau, Alaska 99801
Phone: 586-4000
Position Statement: Testified in support of HB 280.
BOB BERRYHILL
Alaska Association of Retired People
157 Behrends Avenue
Juneau, Alaska 99801
Position Statement: Testified in support of HB 280.
JERRY BURNETT
Legislative Aide
Senator Randy Phillips' Office
Alaska State Legislature
Capitol, Room 103
Juneau, Alaska 99811
Phone: 465-4949
Position Statement: Testified on behalf of the Prime
Sponsor of SB 45.
PAT O'BRIEN
Division of Family and Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Phone: 465-2145
Position Statement: Testified regarding SB 45.
DONNA M. SCHULTZ
Division of Family and Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Phone: 465-2112
Position Statement: To answer questions on behalf of the
Department on SB 45.
PREVIOUS ACTION
BILL: HB 247
SHORT TITLE: WEIGHTS & MEASURES: INSPECTIONS/CITATIONS
SPONSOR(S): LABOR & COMMERCE
JRN-DATE JRN-PG ACTION
03/22/93 732 (H) READ THE FIRST TIME/REFERRAL(S)
03/22/93 732 (H) L&C, JUDICIARY
03/30/93 (H) L&C AT 03:00 PM CAPITOL 17
03/30/93 (H) MINUTE(L&C)
03/31/93 873 (H) L&C RPT 4DP 2NR
03/31/93 873 (H) DP: MULDER, HUDSON, SITTON,
MACKIE
03/31/93 873 (H) NR: WILLIAMS, PORTER
03/31/93 873 (H) -ZERO FISCAL NOTE (DCED)
3/31/93
03/31/93 873 (H) REFERRED TO JUDICIARY
01/14/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 280
SHORT TITLE: UNIFORM CUSTODIAL TRUST ACT
SPONSOR(S): RULES
JRN-DATE JRN-PG ACTION
04/08/93 1110 (H) READ THE FIRST TIME/REFERRAL(S)
04/08/93 1111 (H) STATE AFFAIRS, JUDICIARY
04/20/93 1351 (H) STA RPT 4DP 2NR
04/20/93 1351 (H) DP: B.DAVIS, ULMER, SANDERS,
G.DAVIS
04/20/93 1351 (H) NR: VEZEY, KOTT
04/20/93 1351 (H) -2 ZERO FISCAL NOTES (LAW,
COURT)4/20/93
04/20/93 (H) STA AT 08:00 AM CAPITOL 102
04/20/93 (H) MINUTE(STA)
01/14/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: SB 45
SHORT TITLE: MISC. LAWS RELATING TO MINORS
SPONSOR(S): SENATOR(S) PHILLIPS,Halford,Kelly,Miller,Leman,
Sharp;REPRESENTATIVE(S) Kott
JRN-DATE JRN-PG ACTION
01/13/93 53 (S) READ THE FIRST TIME/REFERRAL(S)
01/13/93 53 (S) HES, FINANCE
03/05/93 (S) HES AT 01:30 PM BUTROVICH ROOM
205
03/05/93 (S) MINUTE(HES)
03/19/93 (S) HES AT 01:30 PM BUTROVICH ROOM
205
03/22/93 894 (S) HES RPT CS 1DP 5NR NEW TITLE
03/22/93 894 (S) FISCAL NOTE TO SB & CS (DHSS)
03/22/93 894 (S) ZERO FISCAL NOTE TO SB & CS
(LAW,LABOR)
04/07/93 (S) FIN AT 09:00 AM SENATE FINANCE
518
04/10/93 (S) FIN AT 10:00 AM SENATE FINANCE
518
04/10/93 (S) MINUTE(FIN)
04/13/93 1331 (S) FIN RPT CS 5DP 2NR NEW TITLE
04/13/93 1332 (S) FISCAL NOTES (DHSS, COURT)
04/13/93 1332 (S) ZERO FISCAL NOTE (DPS)
04/13/93 1332 (S) PREVIOUS ZERO FNS (LAW, LABOR)
04/13/93 (S) MINUTE(FIN)
04/16/93 (S) MINUTE(RLS)
04/19/93 1482 (S) RULES CS 3CAL 1DNP NEW TITLE
4/19/93
04/19/93 1482 (S) PREVIOUS FNS APPLY TO CS (DHSS,
COURT)
04/19/93 1482 (S) PREVIOUS ZERO FNS APPLY
(DPS,LAW,LABOR)
04/19/93 1546 (S) READ THE SECOND TIME
04/19/93 1546 (S) RLS CS ADOPTED UNAN CONSENT
04/19/93 1547 (S) AM NO 1 WITHDRAWN
04/19/93 1547 (S) RETURN TO RLS COMMITTEE UNAN
CONSENT
04/20/93 (S) MINUTE(RLS)
04/21/93 1613 (S) RULES 3CAL 1DNP W/O AM
4/21/93
04/21/93 1620 (S) READ THE SECOND TIME
04/21/93 1621 (S) AM NO 2 FAILED Y10 N10
04/21/93 1629 (S) AM NO 3 FAILED Y8 N12
04/21/93 1630 (S) ADVANCE TO THIRD READING FAILED
Y11 N9
04/21/93 1630 (S) THIRD READING 4/22 CALENDAR
04/22/93 1673 (S) READ THE THIRD TIME CSSB 45(RLS)
04/22/93 1673 (S) PASSED Y12 N8
04/22/93 1674 (S) EFFECTIVE DATE FAILED Y12 N8
04/22/93 1674 (S) ELLIS NOTICE OF RECONSIDERATION
04/23/93 1716 (S) RECONSIDERATION NOT TAKEN UP
04/23/93 1717 (S) TRANSMITTED TO (H) CSSB
45(FIN)(EFD FLD)
04/24/93 1487 (H) READ THE FIRST TIME/REFERRAL(S)
04/24/93 1487 (H) JUDICIARY, FINANCE
05/05/93 (H) FIN AT 01:00 PM HOUSE FIN 519
05/06/93 1674 (H) CROSS SPONSOR(S): KOTT
05/06/93 (H) FIN AT 00:01 AM HOUSE FIN 519
05/07/93 (H) FIN AT 06:00 PM HOUSE FIN 519
05/08/93 (H) FIN AT 08:30 AM HOUSE FIN 519
05/09/93 (H) FIN AT 09:00 AM HOUSE FIN 519
05/10/93 (H) FIN AT 08:30 AM HOUSE FIN 519
05/11/93 (H) FIN AT 09:00 AM HOUSE FIN 519
01/12/94 (H) JUD AT 01:00 PM CAPITOL 120
01/12/94 (H) MINUTE(JUD)
ACTION NARRATIVE
TAPE 94-3, SIDE A
Number 000
The House Judiciary Standing Committee meeting was called to
order at 1:17 p.m. on January 14, 1994. A quorum was
present. Chairman Porter announced that Rep. Phillips would
be late due to another meeting.
HB 247 - WEIGHTS & MEASURES: INSPECTIONS/CITATIONS
Number 045
CHAIRMAN PORTER asked the committee to not hear HB 247 and
to hear HB 280 last. He said HB 247 is a simple weights and
measures bill that takes a biannual inspection and makes it
an annual inspection. He stated that the reason for not
hearing the bill is because the identical Senate bill has
already passed the Senate and is being heard in House
Transportation, and it did not even receive a Judiciary
referral. There was no objections to pulling HB 247 from
the calendar.
HB 280 - UNIFORM CUSTODIAL TRUST ACT
Number 085
CHAIRMAN PORTER moved on to HB 280 and invited Art Peterson
to testify.
Number 086
ART PETERSON, an attorney in private practice, and Uniform
Law Commissioner for Alaska, asked that KAREN BRAND testify
first.
Number 090
KAREN BRAND, legislative aide to Representative Carl Moses,
prime sponsor of HB 280, testified on the basic definition
of a trust, defined as the care and management of property
or funds by a person or a bank for someone else. She
informed the committee that, if enacted, the bill would not
change any existing law, but would add a new section to the
Uniform Custodial Trust Act (UCTA), which makes the benefits
of trusts available to everyone in Alaska. She said there
are four basic benefits of the trust. First, trusts will be
inexpensive to create. Second, the trust is simple to
create by basically setting forth a set of guidelines that
can be easily filled out. The third characteristic is
control, whereby under the UCTA the control remains with the
individual setting up the trust, at which time if the
individual becomes incapacitated, the trust will take over
and care for and manage the assets. She continued by saying
the last characteristic is that the trust is comprehensive,
including physical property, stocks, bonds, intangibles and
other financial assets.
MS. BRAND said the adoption of the UCTA would benefit all
Alaskans, as well as anyone who anticipates being
incapacitated at some time and wants to be assured their
belongings will be properly cared for in the manner that
they had set out. Ms. Brand said the most likely users
would be senior citizens and persons leaving the country
temporarily. She stated the UCTA had been adopted in seven
other states and was introduced in the 17th Alaska
Legislature, voted out of the House unanimously, but due to
a lack of time did not get a hearing in the Senate.
Number 185
REP. GREEN asked how would UCTA affect customary method of
leaving things through a will.
Number 195
MS. BRAND said that it was her understanding that if an
individual set up a trust and a will, if the trust says that
certain property will be removed from the estate and cared
for or managed in a particular way, then it would come out
of the estate first, then the will would dispose of the rest
of the property as the will deems. She further said that if
someone has both a trust and a will, they can put in the
will that in case of death, the trust is abolished.
Number 210
REP. GREEN asked, If you could do this through trust, would
you need a will?
Number 219
MS. BRAND said the main purpose of the UCTA was for someone
who anticipates being incapacitated for a time. She said
she believes the main focus is that and not for death. It
will care for assets if death occurs, but the focus is
incapacity.
Number 238
MR. PETERSON commented that this type of trust was one means
of avoiding some of the complications of probate, so as you
take the assets of whatever part of your assets you want to
designate and put in this trust, that's out of the estate
that would go under your general will. You can create the
beneficiary of the trust as yourself or someone else, so
it's extremely flexible. Mr. Peterson continued, saying
that if you create it for the benefit of someone else, you
are then going outside of the probate system, thus avoiding
the expense, the delay and complications of probate. He
said it is essentially the best of both worlds.
Number 258
REP. GREEN commented that maybe this is a good vehicle;
however, he thought it was temporary, and asked if it could
be made permanent.
Number 266
MR. PETERSON responded, yes, although he would not
characterize it as having a higher strength, but many see it
as another way of dealing with your assets.
Number 275
CHAIRMAN PORTER summarized by saying you could use this as a
will and set it up to function that way.
Number 285
MR. PETERSON added one point to Chairman Porter's statement,
saying that just as you can give something to a son or
daughter or friend right now, thus depleting the amount of
your estate, you could create a trust that would have that
trust based on some contingency, incapacitation, death, and
a whole range of things that can be handled by this type of
instrument.
Number 300
REP. JAMES raised a question about the competency of the
individual given the trusteeship, and asked if there was a
provision in the bill addressing what to do if the
individual is not competent.
Number 316
MS. BRAND replied that the owner, the person that sets up
the trust, when they set up the trust, whoever they choose
to be the manager, and if at some point the owner doesn't
think the manager is capable of managing the trust in the
way initially intended, then the owner can certainly change
that. Ms. Brand said that the owner can change the
beneficiary or the person managing the assets at any time
until the owner becomes incapacitated.
Number 330
REP. JAMES clarified for Ms. Brand the question she was
asking which was, Is there any protection for the ability of
the person setting up the trust over the person caring out
the trust?
Number 341
MR. PETERSON answered that he didn't know precisely, but he
thought it would be subject to the same kind of challenge
for incapacity. He said related to that is the fact that
someone, a creditor for example... if an individual wanted
to set up a trust, but became incapacitated first, under
Section 40 that creditor could put his/her debt to the
individual in a custodial trust, and if it's over $20,000
(an arbitrarily selected figure) then it has to go to court
to prove that you are indeed incapacitated and this is
something that will protect your assets, etc.
MR. PETERSON continued that his explanation was a related
answer, but he would have to check this again to make sure
how the statute deals with it.
Number 364
REP. JAMES indicated that her concern related to an
individual being partially incapacitated and finding
somebody to administer it, but if someone convinced the
individual to set up the trust when the individual was
partially incapacitated, you wouldn't know about it until it
was too late whether the individual was in sound mind when
they set up the trust. Rep. James said she didn't want to
set up a condition whereby someone could be misused.
Number 380
MR. PETERSON responded that the whole thrust of this act is
to protect that person, but if someone is taking advantage
of that person and the person really is incapacitated, then
that would be subject to attack whether the bill provides
for it or whether that's thrown back to common law, the
general concept of law, he could not answer.
Number 389
CHAIRMAN PORTER indicated that he believed the same scenario
could be used for power-of-attorney, and an unscrupulous
person could go to a senior citizen, and does, but a
relative or other interested parties could challenge that
action.
Number 395
REP. GREEN commented that the legislation doesn't provide
for witnessing, which might be construed as a little loose.
He also asked, If the trustee changes their mind in the
interim, does the trustee have to carry out their duties?
Number 414
MR. PETERSON pointed out Section 30, which sets out the
statutory form that tells the receipt and acceptance of the
custodial trustee so that a person could not be forced to be
a trustee.
Number 425
REP. GREEN asked about the part about witnessing.
Number 430
MR. PETERSON indicated that it does not have to be
witnessed, it's supposed to be kept simple. He also stated
that the scenario brought up by Rep. James would be just a
tiny percentage of cases, because in virtually all instances
the person is going to be in full capacity and in fact, is
naming himself or herself as beneficiary. The typical
benefit is for the individual setting up the trust.
Number 435
CHAIRMAN PORTER said the main emphasis is to be able to use
your assets for your benefit while you're alive but
incapacitated.
Number 444
MR. PETERSON said he wanted to put a few comments on the
record. He said he strongly supported the bill and wanted
to mention that he had additional material, including the
Uniform Law Commissioners pamphlet, which was in the members
packet. Mr. Peterson continued by saying the whole point of
HB 280 was to make it cheap, make it simple, easy to create,
easy to manage, can be used to avoid probate, can be used in
a variety of ways, and sets up the framework by giving
language for the trust, giving language for the acceptance
by the trustee, has provision telling the duties of the
trustee, the consequences of various kinds of acts so people
can easily refer to it and not have to pay lawyers, bankers,
etc. to devise some complicated trust system.
Number 482
REP. JAMES asked about the taxability of the trust.
Number 488
MR. PETERSON answered that if it was income producing
property, then a tax return would have to be filed with that
income included.
Number 490
CHAIRMAN PORTER asked if there was a national commission
similar to the state commission.
Number 503
MR. PETERSON replied that the full name was the National
Conference of Commissioners on Uniform State Laws, which was
the formal and official name, but it has recently been
shortened to Uniform Law Commissioners. He said each state
appoints its own group of commissioners, usually a
gubernatorial appointment, as it is in Alaska.
Number 525
CHAIRMAN PORTER asked if Mr. Peterson participated in
national meetings.
Number 528
MR. PETERSON said he does, at the national annual meeting,
and a number of committees of the organization meet
throughout the year.
Number 559
REP. NORDLUND said he wanted it on the record that he
supports the legislation, and he commended Mr. Peterson for
his work, which was mainly pro-bono.
Number 569
REP. DAVIDSON also commended the legal community for its
participation in pro-bono work. He asked, If a trustee is
removed for malfeasance, what recourse is there against the
trustee?
Number 590
MR. PETERSON referred to Section 140 and 150 which address
the issue. He said he was not an expert in this specific
area, but the trustee duties are subject to a fiduciary
obligation, and if the trustee fails to perform that or does
something fraudulent, then that would be subject to, 1)
criminal action, and 2) termination of the trustee
responsibility by a court. Mr. Peterson said he could not
tell the committee that it would be automatic, because it
would probably have to go to court.
REP. DAVIDSON asked if there might be areas that are less
than secure for the beneficiaries.
Number 614
MR. PETERSON responded that he couldn't answer because of
his own unfamiliarity with it, but the bill sets out a tight
set of obligations by the trustee. He said that if you are
talking about children of the beneficiary, they would have
to go to court to terminate the role of the trustee.
Number 625
REP. DAVIDSON said he was just wondering about safeguards
for minors.
Number 630
MR. PETERSON explained that the intent has been to provide
all the safeguards necessary and the gap is in his own
knowledge, not in the bill itself.
Number 637
BOB BERRYHILL, representing the Alaska Association of
Retired Persons, testified in favor of HB 280.
Number 647
REP. JAMES moved for passage of HB 280 with individual
recommendations.
CHAIRMAN PORTER, hearing no objections, declared HB 280
passed from the committee with individual recommendations.
He then brought SB 45 to the table.
SB 45 - MISC. LAWS RELATING TO MINORS
Number 690
CHAIRMAN PORTER asked for amendments to SB 45.
Number 702
REP. NORDLUND asked if the CS had been adopted.
Number 706
CHAIRMAN PORTER asked for a motion.
Number 710
REP. NORDLUND objected, saying he favored the original.
Number 730
CHAIRMAN PORTER entertained a motion to move the CS and
asked for a roll call vote:
Rep. Davidson no Rep. Green yes
Rep. Kott yes Rep. Nordlund no
Rep. James yes Rep. Porter yes
The MOTION was ADOPTED and the committee substitute was
brought before the committee for consideration.
REP. NORDLUND offered Amendment No. 1 , which would eliminate
sections one and two, the purpose and intent sections of the
bill. He said that purpose and intent sections don't stay
in permanent law, and in this case, the purpose section only
explains two sections of a long, complicated bill, which is
misleading. Rep. Nordlund said either write a purpose
section which explains what SB 45 does, or don't have it at
all.
Number 782
JERRY BURNETT, Legislative Aide to Senator Randy Phillips,
Prime Sponsor of SB 45, agreed with Rep. Nordlund's
amendment and said the sponsor had no significant objection
with the amendment.
Number 791
CHAIRMAN PORTER asked the committee to consider another
issue involving emancipation which may subject a juvenile to
criminal sanctions as an adult. He said that in statute the
definition of majority allows that all the privileges and
liabilities of an adult accrue to someone who has reached
the age of majority, and another section says emancipation
provides majority. Chairman Porter suggested that the
committee put under Section 3 that it was not the intention
(as it relates to Sections 3 through 8) of this legislation
to approve adult responsibility for criminal actions, unless
otherwise defined by law.
REP. NORDLUND told the committee the amendment was in the
wrong place and that it would not be put in statute.
Number 820
CHAIRMAN PORTER responded that we will lose it in the law,
but won't lose it when the court is reviewing the
legislation to see what it meant. He went on to say that
that's the reason for the amendment, so there is something
formally on record besides the minutes for the courts to
look at to see what it was the legislature was trying to do
when passing the legislation. Chairman Porter indicated
that he had spoken to Dean Guaneli, Criminal Division,
Department of Law, at length on this, and it's unclear
because no one has ever tried to treat an emancipated
juvenile as an adult for the purposes of prosecution. He
added that there isn't any specific prohibition, so that's
why, from the intent standpoint, it's important to let the
courts know that wasn't the intent.
REP. NORDLUND asked to hear the opinion of Legal Services.
Number 846
DONNA M. SCHULTZ, Associate Coordinator, Division of Family
and Youth Services, asked about Section 9, where the
committee was going to put in the piece about being under 19
years of age and having the disability of minor removed for
general purposes under this. She said she understood that
to mean contributing to the delinquency of a minor. She
followed by asking if the committee is looking at intent by
not being treated as adults, and asked if this section was
in conflict.
TAPE 94-3, SIDE B
Number 000
CHAIRMAN PORTER said it would not specifically allow that.
Number 028
JERRY BURNETT added that juveniles can be charged with the
same crimes as adults in most cases.
Number 035
CHAIRMAN PORTER responded that this does not relate to
juveniles, it just means they have committed the offense,
and having committed the offense, they would be treated as a
juvenile. He concluded that the crime establishes the
offense, but not the jurisdiction.
Number 047
REP. JAMES asked if it didn't mean that the legislation
lines them out, that a person contributing to the
delinquency of a minor is a person that is over 19, or a
person under 19 if they are considered adults. She said it
does give them an adult status under that situation.
Number 056
CHAIRMAN PORTER replied that it does not; it enhances the
law that now says a person being 19 years of age or older
commits the crime of contributing to the delinquency of a
minor if, but what the legislation is saying is that you
still will have committed that offense, which otherwise you
would not have been able to commit whether you were an adult
of 18 or an emancipated minor at 17 or below. Chairman
Porter said that the jurisdiction of the court that would
deal with the individual, if the individual committed that
offense, would still be guided by age.
Number 090
REP. JAMES went back to the issue of purpose or no purpose,
and commented that if the purpose was there to explain the
whole thing, then it should explain the whole thing. She
said she really does see a benefit in having a purpose in
legislation. She said that she had seen in statutes some
abbreviated amount of purpose to more fully explain the
statute. She added that sometimes it's not possible to
fully explain the bill in the text.
Number 115
REP. NORDLUND suggested that if the sponsor or committee
wants to have a purpose, then write it before it gets to the
Finance Committee and offer it as an amendment in Finance.
Number 136
CHAIRMAN PORTER replied that was a very good alternative to
what the committee had discussed, and if it was agreeable to
the committee, then the committee would do that.
Number 180
REP. NORDLUND offered Amendment No. 1 .
Number 172
CHAIRMAN PORTER said that he thought the statement purpose
was given in lieu of Amendment No. 1 and that the committee
had agreed that an amendment would be offered in Finance
incorporating an entire statement of purpose for the entire
bill.
Number 180
REP. NORDLUND said he thought the committee had stripped the
purpose section and it would go to Finance without any
purpose section and it would be reintroduced at that time.
Number 185
CHAIRMAN PORTER responded that was fine, and entertained a
motion.
AMENDMENT NO. 1 PASSED WITHOUT OBJECTION.
Number 193
REP. NORDLUND introduced Amendment No. 2, which he said
would in no way radically alter the attempt of the
emancipation sections of the bill, and the legislation would
still allow for custodian to initiate petition to begin the
emancipation process. But in Section 8, before the court
could actually issue an order for emancipation, they would
have to get on the record consent from the minor that the
minor does want to be emancipated. He said this would be a
safeguard in the legislation so that the parent isn't taking
the kid out of the home when the kid isn't ready for that,
and it might in some way help the parent and child come
together, and if the child is confronted with this, he/she
might decide to move back in the house.
Number 234
REP. KOTT objected to the amendment for the purpose of
hearing the sponsor's position on the amendment.
Number 236
JERRY BURNETT said that the problem the sponsor has with
this is if there is a case where the minor would refuse
consent where the judge might otherwise find it's in the
best interest of every one involved, including the minor.
Mr. Burnett said the minor might refuse for some other
reason, and that might not lead to a good result.
Number 258
REP. JAMES responded the petition was being filed by the
minor, so this wouldn't be applicable.
Number 268
MR. BURNETT replied that an alternative whereby the parents
or legal guardians could file was also language in SB 45.
Number 274
REP. NORDLUND said generally it's not good to see minors
emancipated before 18 years of age; however, allowing the
parents to file was a good addition to the law, assuming the
minor would agree it's a good idea.
REP. DAVIDSON stated he agrees with the amendment, because
he would rather err on behalf of the child, and doesn't see
any situations where this would be a problem. He also said
he thought one last effort to get some sort of agreement
between the parent and child was not a bad investment. He
added that he was afraid the law would make it too easy on
the parents to abdicate responsibility on behalf of their
children.
Number 320
REP. JAMES commented that any court making a decision
without determining that the minor gives permission, and
even putting the amendment in there is not necessary,
although it doesn't hurt to have it in there. She said she
tried to imagine a dispute between a child and legal
guardian, and couldn't believe that being the case, that the
court wouldn't find out from that child what the child
wants.
Number 238
REP. GREEN noted that the parents don't have to consent for
emancipation in the first section of the bill, but the
amendment would require the child to consent, and he
wondered if the committee should add that both parties have
to consent.
Number 350
MR. BURNETT said that Section 6 does require parental
consent unless the court finds it in the best interest of
the minor, and that it would be perfectly reasonable to put
the same language in with regard to the minor, where if the
court finds the minor to unreasonably withhold consent, the
court acting in the best interest in the minor may waive the
requirement.
Number 370
CHAIRMAN PORTER said he was going to speak against the
amendment, but Mr. Burnett's suggestion placates his problem
with it. Chairman Porter further stated that this is
supposed to be an opportunity for the parents, but if this
provision says the minor has to consent unless the court
overrides the decision, then he would agree with the
amendment.
Number 388
REP. NORDLUND said he would consider that a friendly
amendment to the amendment.
Number 399
CHAIRMAN PORTER agreed and said the committee staff would
work on the language to see that it's correct.
REP. NORDLUND stated that the committee could add the
language and pass it out without his seeing it prior to the
event.
Number 418
REP. NORDLUND offered Amendment No. 3 , which he said under
the current version of SB 45, the officer is allowed the
discretion in terms of bringing the child back to the legal
custodian, a shelter, or DFYS, and the concern is that you
don't want to return a child back to an abusive home. He
said that the amendment is added language to ensure that
doesn't happen.
Number 443
REP. GREEN concurred with Mr. Nordlund with the possible
exception of the word "alleged." He said he was concerned
that a child or youth may use that particular thing to
bypass where he should be. Rep. Green asked if stronger
language could be added rather than "alleged."
Number 460
REP. NORDLUND said he understood the concern and there were
kids out there that use that to get out of situations that
aren't abusive, but he said it is better to err on the side
of safety.
Number 469
CHAIRMAN PORTER spoke against the amendment and suggested
passing the amendment with the deletion of "minor, alleges,
or." Chairman Porter discussed police picking up runaways
and problems relating to the runaway population that
manipulate the system. He said it requires some degree of
faith in the efficient functioning of law enforcement, but
when you think about it, it's done every day. Chairman
Porter said he doesn't know of any case in this state where
a police officer has returned a child to an abusive home,
but he knows of many cases where children have used this
allegation as a false accusation against their parents; and
while saying the law should err on the side of the child, at
the same time the law has to be practical.
Number 508
REP. JAMES replied that she agreed with the Chairman's
statements, and that we don't want to put children back in
abusive homes, but we do have to have some faith in our
officers. She said the whole problem we have, in this bill,
is providing some sort of safe haven for the homeless and
runaway children, and the goal is to find some sort of safe
place for these people. She followed up by saying that we
need to be selective, putting those most in need in legal
custody or temporary shelters.
Number 525
REP. DAVIDSON asked what happens when the average officer
picks up a runaway.
Number 537
CHAIRMAN PORTER said that under current law the officer has
a conversation with the youth and says here are your
options, you can go home, you can go to DFYS, or you can go
to a shelter. He said under this scenario the vast majority
don't want to go home, so there isn't a specific question of
why did you run away, rather it most always comes up if the
child is at all talkative. Chairman Porter added that this
is in the case of an urban community.
REP. DAVIDSON asked if in most instances the child takes
his/her option with a third party, thus taking the option
out of the home.
Number 561
CHAIRMAN PORTER answered that if this bill were to pass, it
would provide that this discussion would be different. He
said the officer would say, I have the ability to take you
home, or to DFYS, or foster care, and why shouldn't I take
you home? Chairman Porter explained that then the officer
has discretion, and the burden of the level of probable
cause established here is not probable cause, it's
reasonable cause to suspect, which is less.
Number 593
REP. DAVIDSON asked in what circumstance would the officer
have reason to suspect.
Number 597
CHAIRMAN PORTER responded that there is instruction given to
police officers that gives them an insight into profiling an
abused child, but it's up to the officer to overcome the
suspicion that is created by the allegation before he or she
can take the child home. Chairman Porter added that the
current system isn't working, which is why we are trying to
fix it through this legislation. He said that while we
haven't had any cases of returning a juvenile to an abusive
home, the state has had a myriad of cases where the juvenile
is jerking around the parents, and that's what we are trying
to fix.
Number 602
REP. DAVIDSON asked another question relating to kids using
the law; and asked, if this legislation will change the law
so they can't use it as easily, then what is the plan to get
to the kids and tell them this option isn't open any more?
Number 610
CHAIRMAN PORTER responded that these things easily get
around.
Number 618
REP. JAMES discussed an experience as a foster mother.
Number 647
REP. DAVIDSON said that just to insert society's enforcers
between parent and child is bad enough, but he knows things
are not all that great out there these days.
Number 650
CHAIRMAN PORTER said he thinks that is exactly what the
existing statute is doing; it inserts the enforcers whether
it be the police or DFYS, or whatever, in between the parent
and child. He added that it seems implicit that a runaway
is not going to go home, and that the intent of this bill is
to reunite parents and children, and if the law functions
against that role, it should be changed.
REP. DAVIDSON asked, when that is not a viable option, does
HB 45 take an unnecessary run at trying to accomplish that
once again, and who's the expert that recognizes if that's
not a viable option?
Number 676
CHAIRMAN PORTER responded that what the committee is
discussing within this amendment is giving the hammer back
that the CS is trying to take away. He said for that reason
he doesn't think this total amendment is appropriate.
Number 685
REP. NORDLUND said his amendment takes away the discretion
from the minor.
Number 694
CHAIRMAN PORTER said that in all fairness, this amendment
gives it right back, because most all minors will know about
this exception in a matter of months.
Number 706
REP. NORDLUND replied that he's not sure about that, but he
wants to make sure that the system err's on the side of
safety for the kids. He also said that if the committee
doesn't like the "minor alleges" part, it can be taken out
and the committee can deal with the rest of it.
Number 708
CHAIRMAN PORTER moved to amend the amendment by deleting the
words "minor alleges or the."
Number 717
REP. JAMES opened the discussion on the amendment by saying
she doesn't see the need for it at all because SB 45 will
exercise the officer's discretion.
Number 741
CHAIRMAN PORTER asked to address the amendment to the
amendment first, and asked if there was any objection to the
amendment to the amendment. Objection was heard and a roll
call vote was taken, with the following results:
Rep. Green yes Rep. Kott no
Rep. Nordlund no Rep. Phillips no
Rep. Davidson yes Rep. James yes
Rep. Porter yes
THE MOTION TO AMEND THE AMENDMENT TO AMENDMENT NO. 3 PASSED.
Number 794
Chairman Porter announced the committee had Amendment No. 3
as amended before the committee.
Number 807
The committee discussed Amendment No. 3
AMENDMENT NO. 3 PASSED WITHOUT OBJECTION.
REP. NORDLUND pointed out that the committee had not voted
on Amendment No. 2.
Number 826
CHAIRMAN PORTER entertained a motion to move Amendment No. 2
with the intent of the House Judiciary Committee counsel to
draft it as the committee directed.
Number 828
AMENDMENT NO. 2 WAS MOVED WITHOUT OBJECTION.
Number 830
REP. NORDLUND introduced Amendment No. 4, which was in
response to concerns expressed about the length of stay in
facilities for minors: after seven days the minor can stay
in the shelter for another seven days, but after 14 days the
department has to go in there and make sure the kid is being
well taken care of.
Number 861
PAT O'BRIEN, Department of Health and Social Services,
Division of Family and Youth Services (DFYS), testified
against the amendment, stating the prohibitive cost, but
agreed it is a concern that should be looked at.
Number 870
DONNA SCHULTZ, DFYS Coordinator, added that most of these
children would not be DFYS clients in the first place, so
they are not clients or charges of DFYS, and so that would
be a concern asking DFYS to perform this services.
TAPE 94-4, SIDE A
Number 031
REP. DAVIDSON asked about facilities: Once they have
received a permit, can the department can make unannounced
visits?
Number 039
MS. O'BRIEN replied, yes, the department could.
Number 059
CHAIRMAN PORTER asked Ms. O'Brien to expand on the subject
of kids in shelters under the purview of DFYS.
Number 079
MS. O'BRIEN said that only if there is abuse and neglect
does the department get deeply involved and take custody of
that child, and then the department would take custody and
place them into a foster home, or if previously in a runaway
shelter, they would upgrade that to a foster home. She said
runaways usually fall into a middle category, and they hope
to create something sort of intermediate, but it's not going
to be easy to do.
Number 138
CHAIRMAN PORTER said he understands, but what they are
setting up is a formalized system for an informal treatment
of runaway kids, but there would be no accountability, which
would result in the state not knowing which kid was where,
unless there was a reporting requirement. Chairman Porter
said he found the reporting language in the legislation to
be wanting and had prepared an amendment to shore it up so
the shelter notifies DFYS, if for no other reason than the
department knows where the child is.
Number 165
REP. NORDLUND indicated he was willing to withdraw Amendment
No. 4, but asked DFYS to come up with an alternate to have
introduced in the Finance Committee.
Number 203
REP. NORDLUND introduced Amendment No. 5, amending the
liability section, starting on page 10, line 30, in which
the first section is immunity from criminal activities, and
Section B is the immunity for liability from civil
activities. He said that a safe home is not immune from
liability with his amendment if it violates the provisions
of this law or the regulations that come from it. He said
it takes the same language that applies to criminal
liability and applies it to civil liability.
Number 238
CHAIRMAN PORTER indicated he didn't have any problem with
the amendment and explained that the immunities offered in
the bill for the non-profits and mid-level certifiers and
the safe homes are not immunities that preclude their
liability for acts or omissions of their own. He went on to
say they were only offered for the acts of the kids that
they didn't otherwise control.
Number 249
REP. JAMES discussed liability when there is damage to a
third party, when they are under control of that person, and
asked if the provider was responsible.
Number 282
CHAIRMAN PORTER responded that normal tort law would apply.
Number 299
REP. JAMES asked if the committee was saying that these two
things have nothing to do with the acts of the child, but
only apply to the acts of the people in the safe home.
Number 300
CHAIRMAN PORTER replied that it had nothing to do with the
acts of the youth that they could not ordinarily anticipate
or control.
Number 302
REP. JAMES asked who was responsible, and stated that it
would have to go back to the parent.
Number 312
REP. GREEN asked the committee counsel, if under this
language, would there be any court that would tend to move
towards liability because of this?
Number 322
DANIELLA LOPER, House Judiciary Counsel, replied that if the
shelter merely shows negligence, then they will not be held
liable. She discussed the terms reckless and intentional
misconduct and discussed degrees of liability and intent.
Number 311
AMENDMENT NO. 5 WAS MOVED AND PASSED WITHOUT OBJECTION.
Number 345
CHAIRMAN PORTER offered Amendment No. 6 from DFYS.
Number 359
PAT O'BRIEN, DFYS staff, said the department did not give an
amount for increasing the amount of counseling for runaways
and their families in their fiscal note. She explained that
as HB 45 had moved through the legislative system, there
were expectations that DFYS would either provide counseling
or provide the money for counseling for runaways and their
families. Ms. O'Brien said the amendment would formalize
DFYS's plan by adding the concept of availability, and
specifically the change would be on page 7, line 22, and
instead of "counseling services for the custodian and the
minor's household are available," the amendment would change
it to read "may be available under AS 47.10." Ms. O'Brien
said, in addition, on line 24, "the department shall offer",
DFYS suggests adding the words "available counseling
service..."; and on page 8, line 3, the amendment adds the
word "available" before counseling. She said the department
simply does not have the funds to be mandated to provide
these services.
Number 379
CHAIRMAN PORTER agreed that the fiscal note would be quite
large, and said his understanding already was to use
available services.
REP. DAVIDSON asked, Since the services wouldn't be
available outside the urban areas, what happens?
Number 383
MS. O'BRIEN replied that DFYS would have to investigate, and
they might use a village peace officer to do a safety check
and find out what's going on, or in the case of medium size
communities, there are often mental health centers, and in
large facilities there are runaway services that offer
mediation to families. She said DFYS would never do
nothing, but would take whatever services are available
there and let them know what services are available in the
community that they can avail themselves of.
REP. DAVIDSON asked what level of service would be available
for a child in Bethel in comparison to a child in Anchorage.
Number 411
MS. O'BRIEN said not a whole lot, but DFYS has an office
there and that would give DFYS the opportunity to do this,
even though they are not obligated to do this, but they
might say you have someone out there through either one of
the health organizations or place that you could refer that
child so the child is getting services, or at least are
available and made known to them, but DFYS won't have to
physically do this.
Number 460
MS. SCHULTZ added that the department would definitely
assess the child for abuse and neglect issues, or any other
real serious issues, and if those are the case, then a case
would be opened on it and put into their priority system.
Number 475
AMENDMENT NO. 6 WAS MOVED AND PASSED WITHOUT OBJECTION.
Number 478
CHAIRMAN PORTER said he had three amendments starting with
Amendment No. 7, page 2, line 20, regarding one of the
concerns about the criteria for emancipation relating to the
ability for self-support. He said the amendment adds the
word "sustained self-support."
Discussion ensued on the concept of "self-support" and the
ability of self-support on a sustained basis throughout the
period of time the minor would have been under the age of
majority.
CHAIRMAN PORTER continued with his discussion of Amendment
No. 7, referring to page 12, line 7 and line 27, the
sections dealing with non-profit corporations as the entity
that's licensed. He cited Sections C and D, saying the
entity named here are the non-profits, and clarified the use
of the word person.
Number 478
AMENDMENT NO. 7 PASSED WITH UNANIMOUS CONSENT.
Number 545
CHAIRMAN PORTER moved Amendment No. 8, referring to page 5,
lines 2 and 4, which prohibits a minor working after 10:00
p.m. on school nights, unless the minor has graduated from
secondary school. He explained that the amendment would
take out "without permission of the minor's legal
custodian." Chairman Porter stated that currently there is
no such provision in the law, and if the legislation
required written permission of a parent, it would cause a
nightmare for businesses.
Number 597
MR. BURNETT said the provision was in SB 45 in order to
prevent the child from not going home because of working.
Discussion ensued about child labor laws and the intent of
the committee not to make any changes in that area.
Number 614
CHAIRMAN PORTER discussed the difficulty of enforcing such a
provision.
The committee discussed the amendment further.
Number 770
AMENDMENT NO. 8 PASSED WITH NO OBJECTION.
Number 790
REP. GREEN made a motion to move SB 45 out of committee with
individual recommendations. There being no objection, it
was so ordered.
CHAIRMAN PORTER adjourned the meeting at 4:40 p.m.
| Document Name | Date/Time | Subjects |
|---|