Legislature(1993 - 1994)
01/14/1994 01:15 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.