Legislature(1997 - 1998)
04/23/1998 02:30 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 23, 1998 2:30 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Ethan Berkowitz MEMBERS ABSENT Representative Eric Croft 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." - MOVED CSHB 375(JUD) OUT OF COMMITTEE CS FOR SENATE BILL NO. 242(FIN) "An Act providing for the forfeiture of good time sentence credits of sex offenders who fail to successfully complete sex offender treatment programs." - SCHEDULED BUT NOT HEARD SENATE BILL NO. 309 "An Act relating to the use of force by peace officers and correctional officers." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 466 "An Act relating to violations of state election laws." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 344 "An Act relating to paternity establishment and child support; relating to the crimes of criminal nonsupport and aiding the nonpayment of child support; and amending Rule 37(b)(2)(D), Alaska Rules of Civil Procedure; and providing for an effective date." - SCHEDULED BUT NOT HEARD HOUSE BILL NO. 319 "An Act relating to an employee's expectation of privacy in employer premises." - SCHEDULED BUT NOT HEARD SENATE BILL NO. 313 "An Act relating to sponsor certification of initiative petitions; relating to sponsor identification during petition circulation; relating to the voidability of an initiated law; placing limitations on the compensation that may be paid to sponsors of initiative petitions; prohibiting payments to persons who sign or refrain from signing initiative petitions; and repealing procedures for filing a supplementary initiative petition." - SCHEDULED BUT NOT HEARD (* 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 4/02/98 (H) MINUTE(HES) 4/07/98 2898 (H) HES RPT CS(HES) NT 5DP 4/07/98 2900 (H) DP: DYSON, GREEN, BUNDE, BRICE, PORTER 4/07/98 2900 (H) 3 FNS (COR, DHSS, COURT) 4/07/98 2900 (H) FISCAL NOTE (GOV/VARIOUS DEPTS) 2/2/98 4/07/98 2900 (H) REFERRED TO JUDICIARY 4/17/98 (H) JUD AT 1:00 PM CAPITOL 120 4/17/98 (H) MINUTE(JUD) 4/20/98 (H) JUD AT 1:00 PM CAPITOL 120 4/20/98 (H) MINUTE(JUD) 4/23/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER SUSAN G. WIBKER, Assistant Attorney General Human Services Section Civil Division (Anchorage) Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Explained CSHB 375(HES) and the proposed amendments; answered questions. REPRESENTATIVE FRED DYSON Alaska State Legislature Capitol Building, Room 428 Juneau, Alaska 99801 Telephone: (907) 465-2199 POSITION STATEMENT: Explained proposed amendments to CSHB 375(HES). LISA TORKELSON, Legislative Assistant to Representative Fred Dyson Alaska State Legislature Capitol Building, Room 428 Juneau, Alaska 99801 Telephone: (907) 465-3467 POSITION STATEMENT: Explained proposed amendments to CSHB 375(HES). KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-4990 POSITION STATEMENT: As committee aide, provided information on CSHB 375(HES); answered questions. RUSSELL WEBB, Deputy Commission Office of the Commissioner Department of Health and Social Services P.O. Box 110601 Juneau, Alaska 99811-0601 Telephone: (907) 465-3030 POSITION STATEMENT: Answered questions about proposed amendments. DOUG WOOLIVER, Administrative Attorney Office of the Administrative Director Alaska Court System 820 West 4th Avenue Anchorage, Alaska 99501-2005 Telephone: (907) 264-8265 POSITION STATEMENT: Discussed portions of Amendment 4 to CSHB 375(HES) proposed by court system. DEAN J. GUANELI, Chief Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Offered Amendments 8 and 9 to CSHB 375(HES); provided information and answered questions. JAYNE ANDREEN, Executive Director Council on Domestic Violence and Sexual Assault Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 Telephone: (907) 465-4356 POSITION STATEMENT: Testified on Section 21 of CSHB 375(HES). 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 CSHB 375(JUD) after it moved out of committee. ACTION NARRATIVE TAPE 98-64, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 2:30 p.m. Members present at the call to order were Representatives Green, Rokeberg, James and Berkowitz. Representative Bunde, who was attending another hearing, arrived at 3:15 p.m. Representative Porter joined the evening portion of the meeting, which began at 7:07 p.m. Representative Croft was excused. HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE CHAIRMAN GREEN announced the committee would again hear HB 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." CHAIRMAN GREEN advised members that Susan Wibker would continue explaining the bill [Version H, CSHB 375(HES)]. Number 0056 SUSAN G. WIBKER, Assistant Attorney General, Human Services Section, Civil Division (Anchorage), Department of Law, referred to page 26. She told members the statute has a specific abandonment definition; consistent with current case law, it is defined as a conscious disregard of parental responsibilities toward a child. That is expanded in some detail to include leaving a child with someone without provisions for support; not communicating with a child; not visiting a child; and not participating in a case plan or reunification plan through the department with a child. It includes any absence that creates a substantial risk of serious harm to a child. Number 0144 MS. WIBKER outlined an amendment to that definition proposed by Representative Dyson, which on lines 16 through 18 deletes the phrase, "and the failure is accompanied by intention on the part of the parent or guardian to permit the failure to continue for an indefinite period". Ms. Wibker explained, "We're recommending that deletion, because ... it's basically impossible to prove; to prove that someone intended to permit a failure to continue for an indefinite period could basically be defeated by anybody who disappeared for ten years and walked in and said, 'I intended to come back.'" MS. WIBKER advised members of another amendment to that section, on page 3 of Representative Dyson's amendments. It includes a subsection (b) that gives an exception to a battered woman who has to leave a child or theoretically abandon a child because she needs to protect herself or protect another child; if she is fleeing violence to protect herself or another child, and has to leave a child in a dangerous situation, she would have a legal excuse. Number 0226 REPRESENTATIVE ETHAN BERKOWITZ referred to subsection (4) on page 26. He asked what the standards are for assessing whether a plan or program is suitable, and who makes that determination. MS. WIBKER replied that when a child is in the custody of the state, the worker has 60 days after taking custody to complete a case plan, which is a written plan to reunite the child with the family that all parties sign and agree to. The plan must be reasonably related to the problem that brought the child into state custody. Any party who believes the plan is not reasonable or reasonably related to the problem in the home could request court review, and the court would make a determination. Ms. Wibker noted that "plan" is a departmental term. Number 0331 REPRESENTATIVE BERKOWITZ asked what would happen if one party didn't agree and refused to sign the plan. MS. WIBKER said a court order would be sought. If the problem is alcoholism, the worker would develop a plan for alcohol screening and participation in whatever the screener recommends; but if the parent refuses to accept treatment, they may wait until there is a trial. If the judge finds the child is in need of aid because of alcoholism, the judge will order that kind of treatment. If the judge doesn't find that alcohol is the problem, however, the plan would be unreasonable and would be changed. Number 0427 REPRESENTATIVE BERKOWITZ asked who formulates these plans. MS. WIBKER said the department, the caseworker. REPRESENTATIVE BERKOWITZ asked whether there are standards by which the plans are formulated. MS. WIBKER restated that there has to be a nexus between the plan and the problem that brought the child into custody. If a worker investigates neglect and finds a child playing in the street, unsupervised, with a parent passed out on the couch from alcohol, then the plan will be alcohol treatment and maybe a parenting class. It couldn't be cocaine treatment or sex offender treatment, which would be unreasonable. Number 0496 CHAIRMAN GREEN asked whether a plan might be tailor-made, rather than off the shelf. MS. WIBKER replied that generally the plan will require a screening or evaluation by an alcohol treatment agency or expert. The resulting recommendation may be for inpatient or outpatient treatment, or perhaps going to an Alcoholics Anonymous group once or twice a week, depending on the severity of the problem. The caseworker will rely on the screening. Number 0568 REPRESENTATIVE BERKOWITZ said implementation in urban areas is one thing, where there is more opportunity to participate in a program. He asked how these plans work in the rural areas. MS. WIBKER agreed there are fewer resources in rural areas, although there are some treatment programs. Whereas in Anchorage a person may be able to choose a program, in a rural area there is likely no choice. If community-based treatment is possible, they try to do that. However, in smaller communities, a family may not want to do treatment there because it is so hard to feel that it is confidential. "So, they may choose not to do treatment in the community, but you try to work with what's in a community," she concluded. Number 0639 MS. WIBKER discussed page 27. She told members the definition of neglect is pretty clear. For the definition of physical harm, the statutory citations correspond to the criminal statutes for violent crimes; if a child is the victim of a violent crime defined in Alaska Statute, and the offender is a parent, guardian or custodian, it would be treated as physical abuse. In addition, subsection (2), regarding negligent acts or omissions, includes harm to a child because of failure to supervise properly. Lines 17 through 23 create a limitation on jurisdiction. Ms. Wibker said this amendment proposed by Representative Dyson does not allow the state to take custody of children because a family is poor, lacks adequate housing, or lives a unique lifestyle. Number 0749 REPRESENTATIVE BERKOWITZ asked whether the statutes in the prior section relate essentially to assaults and sexual assaults. MS. WIBKER specified that AS ll.41.100 is homicide and AS ll.41.455 is sexual exploitation. She stated, "And so, that includes all the violent crimes: homicide, robbery, sexual assault and assault. And then 11.51 is the endangerment statute." MS. WIBKER pointed out that the limitations do not prevent the state from taking legal custody if there is neglect or abuse, even if a family is poor. But none of those conditions can be the sole grounds for taking custody, an important limitation. At the bottom of page 27, she said that is not a substantive change in the law; it deals with the court's ability to direct inquiries about children and to handle those. It allows the court to ask a guardian ad litem (GAL) to investigate something that comes to the court's attention, for example. MS. WIBKER next discussed page 28. In the middle of the page, it outlines what should be in a petition filed with the court. The only substantive change is adding that the child's tribal affiliation should be part of the petition; she noted that the child's tribe is a party to the proceeding. At the bottom of page 28, the addition of "foster parent or other out-of-home care provider" is important because of changes in federal law that require that any time there is a hearing in a child in need of aid (CINA) case, either the foster parent, the relative or whoever is providing care for the child out of the home should be given notice of that hearing, in order to attend and have an opportunity to be heard, even though that person is not a party. REPRESENTATIVE BERKOWITZ asked whether that would include people like grandparents and step-parents. MS. WIBKER replied, "Anybody the child is placed with. If a child is placed with grandparents, it would be grandparents." REPRESENTATIVE BERKOWITZ said only if it is a formal placement, then. MS. WIBKER said, "If the agency has placed the child there." Number 0930 REPRESENTATIVE JEANNETTE JAMES asked if they are talking about the hearing that has to do with whether the state is taking custody, or an appeal of the custody. MS. WIBKER clarified that this particular statute refers to the first hearing, the so-called probable cause hearing. REPRESENTATIVE JAMES posed a scenario where the parents' home is not a good place for the child, and the child is at the grandparents' house, but not because the department had placed the child there. She asked whether the grandparents would be involved at all in the proceedings. MS. WIBKER noted that the statute requires a preference for a blood relative. If the grandparents are adequate caretakers, the department most likely would leave the children there, and would tell them about the hearing. Number 1068 REPRESENTATIVE BERKOWITZ pointed out that this mentions the possibility of termination of parental rights. He expressed concern, saying whenever the specter of termination starts to become possible, even if it is in the initial stages, he believes someone in the extended family should be given notice of it. MS. WIBKER responded, "What this statute does is at the first hearing the court makes everybody aware that termination is a possibility." REPRESENTATIVE BERKOWITZ pointed out that this particular section merely provides notice to the immediate guardians, in one capacity or another, rather than to the extended family. MS. WIBKER agreed that no provision allows the department or the court to give notice to the extended family. REPRESENTATIVE BERKOWITZ mentioned that this is a policy call. He requested that they discuss the possibility of broadening that to include the family. CHAIRMAN GREEN agreed to address it later. Number 1158 MS. WIBKER next addressed page 29. The middle of that page requires the court to appoint a GAL and gives the option to the court of appointing a separate attorney for the child. In CINA proceedings, every child is appointed a GAL. However, occasionally the child and the GAL disagree on what is in the child's best interest; generally, that happens when a GAL says it is best that a teenager go home and live with her parents, for example, but the teenager wants to live with her boyfriend. In such a case, the judge can appoint a separate attorney to represent what the child wants. It is rarely done, but there is authority to do it. MS. WIBKER told members that on the bottom of page 29, it again deals with hearings and how those are conducted. The amendments reflect changes in law regarding persons required to get notice. It makes explicit here that the foster parent or out-of-home care giver can attend the hearing and be heard. It also speaks to the child's best interests; there are limited situations where the court would decide that perhaps it is not in the best interest for that person to sit throughout the entire hearing. Ms. Wibker explained, "The reason for that exception is anything that deals with the child - the child's welfare, what's best for the child - the out-of-home care giver is entitled to know all of that information. What the out-of-home care giver is not entitled to know is the parents' personal, private background. So, you might ask that person to leave if you're discussing the parents' conduct, rather than the child." MS. WIBKER next discussed page 30. Noting that the adjudication hearing is the trial on the petition, she said a change in law here requires that the trial be completed within 120 days of the probable cause finding. This is important to avoid delays. In many Alaska cases currently, they do probable cause and the state gets custody for 90 days, then comes back in 60 days and extends temporary custody. Children can end up in state custody for sometimes a year without a trial, which is for proving the petition. This makes the state prove the petition, because if the state shouldn't be in the case, or if the problem has been fixed within 120 days, the state could get out. Number 1319 REPRESENTATIVE BERKOWITZ noted that in a criminal case, the consequence for failure to complete it within 120 days is dismissal. He asked what the consequence is here. MS. WIBKER replied, "There's an insert here, an amendment, that deals with continuances, that might answer your question. ... The consequence would not likely be dismissal." REPRESENTATIVE BERKOWITZ said he wasn't suggesting that would be appropriate. MS. WIBKER said Representative Dyson has proposed an amendment that says when determining whether to grant a continuance for good cause, the court shall consider the driving force to be the child's age and the potential adverse effects of a delay on the child. Number 1366 REPRESENTATIVE BERKOWITZ responded that he doesn't know what it could be, but there should be an incentive to the parties to get this done as expeditiously as possible. A time limit, of and by itself, is inadequate. He suggested it would be good if they had a "carrot" out there, if not a stick. MS. WIBKER said the courts certainly have the power to do that. REPRESENTATIVE BERKOWITZ mentioned that sometimes the courts are the offenders. MS. WIBKER said they are dealing with a crowded court calendar, with limited time, and the court may have necessity, on its own, to do this. She added that the court was certainly part of drafting this. Ms. Wibker told members she believes other states have rules requiring that cases be adjudicated within 30 days; compared to other states, Alaska is still slow. CHAIRMAN GREEN commented, "And Representative Dyson is going to have an amendment, and I see him nodding and writing." Number 1439 MS. WIBKER continued with page 30, saying this is the part of the statute that deals with court orders, once the court finds that a child is a child in need of aid. The first section is not a substantive change, other than adding the GAL as a person who can petition for an extension in custody. Under prior law, when the state proved the petition, it got legal custody for two years. Under this proposal, that is cut back to one year, a good change in light of federal requirements that children have permanency hearings once a year. This requires that the court look at it for a year at a time, and custody can only be extended one year at a time, Ms. Wibker specified. MS. WIBKER continued with page 30. She said paragraph (1) basically outlines the authority of the court when the court finds a child is a child in need of aid. At the end of that paragraph, it talks about the department's ability to transfer children from one placement setting to another. It makes clear that parties should be given notice of changes and transfer in advance of a move, and should be given an opportunity to request a hearing if there is an objection to that proposed change. Ms. Wibker said she believes both Representative Dyson and the state have proposed amendments to that section to try to put brakes on the department's ability to move children. Now the department has fairly unfettered discretion to place children, which is often driven by emergency requests, where a foster parent calls and says, "Come get this child." Efforts are being made to change that, and to lower the number of placements. Number 1564 REPRESENTATIVE JAMES said she understands the desire not to move the child much. But where the foster parent calls and asks that the department come get a child, she asked how this addresses such situations. She inquired what this does that would make the child stay in one place longer, or whether there is any answer to that. MS. WIBKER replied that she thinks there is an answer that is not totally in statute. Other states are trying to minimize placements, increase the tenure of foster parents, and look at what to do to keep foster parents; what makes a difference are things like good training for foster parents, preparing them for the behavior disorders, and providing needed information about a child before the placement, so they know if they are taking on a fire- setter, a sex offender, or a child with some conduct disorder. MS. WIBKER advised members that this bill offers foster parents respite care for stress relief, which wasn't available before unless a child had a special need or disability, or unless there was a family emergency. "Smart Start" also proposes a raise in pay for foster parents. There are all sorts of things to try to better prepare foster parents, so that a child is able to stay in a placement longer. Ms. Wibker indicated this doesn't do all of that, but tries to put the brakes on just quickly moving kids. Number 1663 REPRESENTATIVE JAMES responded that she had asked because of her experience with a troublesome teenager. When she had called the caseworker and said that if the behavior continued, she could no longer keep the child, the caseworker had insisted to that child that she stay there and do what she was told, or else the consequences would be pretty dire. That had worked out, and the child didn't have to leave. In another case, however, the child had to go. Representative James inquired if and how this deals with that. She restated her belief that with the proper caseworker, sometimes the child can be encouraged to stay. MS. WIBKER replied, "You're exactly right. What we want is some process to kick in ... where you try to maintain the placement, whatever it takes." Number 1718 REPRESENTATIVE FRED DYSON told members, "One of the complaints we've heard in earlier public hearing is that a foster parent was complaining to DFYS [Division of Family and Youth Services] about policy and procedures, and so on and so forth. And they were threatened if they didn't shut up, that the foster child that they had would be taken from them. And as you well know, Representative James, some of us develop a real bond with these kids. ... I'm certain that's not a policy of the department." REPRESENTATIVE DYSON explained that they are trying to have an appeal procedure to eliminate arbitrary placement changes, plus a voice for foster parents in future placement, because the foster parent may have information that is very valuable to that decision process. He concluded, "We're not there yet, and we haven't figured out a perfect way to do all of that. My desire has been to ... give that foster parent a greater voice and greater control. And the department is rightly concerned that their hands not be tied, and that they not be subject to legal actions ... if we put something too stringent in there." Number 1773 REPRESENTATIVE JAMES said she tends to agree, and she believes having the caseworker work with the foster parent can help to ensure that the child doesn't get repeatedly moved. Number 1783 MS. WIBKER continued with page 30. She said subsection (2) deals with cases where the child is in the custody of the department, but placed with the child's own parents. She emphasized that removal and custody are two different decisions. The department initially gets custody for two years, but at the end of that time, custody expires; if need be, there can be one-year extensions. MS. WIBKER next discussed page 31. In the middle of the page, it deals with orders to terminate parental rights; there are amendments there to reflect different statutory references. But because they created a separate section on termination, the language about burden of proof doesn't need to be there. A change in the law is that this requires the department to make quarterly reports to the court on efforts to find a permanent placement for the child, once the parental rights are terminated. "It used to be annually, but now that annual permanency hearings are required anyway, it makes sense to have the reports to the court be more frequent," she concluded. Number 1849 CHAIRMAN GREEN asked whether quadrupling the number of reports creates a significant burden. MS. WIBKER said it does in preparing reports. A worker must keep in a file documentation of all efforts to find a permanent placement for a child. What this means is every 90 days the worker will have to summarize that documentation in a report to the court. MS. WIBKER continued with page 31. She said at the bottom is the section dealing with court orders. This reflects a change in statute. Under existing law, the first permanency hearing was 18 months after a child was in custody; now it must be 12 months. MS. WIBKER discussed page 32. Amendments to the notice provision reflect that foster parents and out-of-home care givers would receive advance notice of a permanency hearing and would have an opportunity to attend and be heard. The middle of page 32 deals with appeals; it expedites the appeal process and requires that if there is an appeal of a decision of the court, the decision must be issued no later than 90 days. There are also provisos to accommodate the schedule of the supreme court reviewing the decision. MS. WIBKER told members that for the next section of the statute, there is a proposed amendment, included in Representative Dyson's amendments, dealing with AS 47.10.010(l). She stated, "The amendment was drafted by one of our children's masters and is very nicely done; it's on pages 2 and the top of page 3. And it just makes the language a little clearer for the judges on what they have to find, and what steps they should go through in making findings. And it would be my recommendation that the committee adopt the amendment that Representative Dyson has proposed that deals with the court findings that have to made at a permanency hearing." MS. WIBKER advised members that at the bottom of page 33 is the section of the statute that deals with termination of parental rights when a parent is incarcerated. REPRESENTATIVE BERKOWITZ asked whether termination can be based on the simple fact of incarceration, regardless of the offense. MS. WIBKER said no. REPRESENTATIVE JAMES added, "We fixed that a few years ago." MS. WIBKER referred to the top of page 34 and pointed out that the period of incarceration must be a significant portion of the child's minority, considering the child's age and need for adult care and supervision, that there is no other parent willing and able to care for the child, and that the incarcerated parent has failed to make adequate provisions for the care of the child. Number 2033 REPRESENTATIVE NORMAN ROKEBERG commented that this is the first time he had seen the language he had sponsored in legislation a couple of years ago. He expressed concern about the words "willing and able" being back in here, which he believed to be difficult for the courts to define. MS. WIBKER explained that the problematic language was "willing or able"; a supreme court decision had interpreted that to mean they could not evaluate ability. "Willing and able" is an important change, because clearly the court has the ability to decide whether the other parent is able to care. Ms. Wibker suggested that "able" is what is important. She recommended that if an amendment is made here, it would just take out "willing and," because she believes it is the ability that matters, not the willingness. Number 2107 REPRESENTATIVE ROKEBERG asked whether that was the In Re S.A. case. MS. WIBKER said yes. Number 2123 REPRESENTATIVE JAMES noted that there are times when the other parent is able but not willing. She said she believes "willing" is equally important. CHAIRMAN GREEN said they would get to that debate later. Number 2168 MS. WIBKER returned to page 34, paragraph (p), which deals with visitation. She said all of this is new and would be pretty difficult for the department to do. However, visitation is a very important part of the policy and the procedure; by law, the department must provide visitation unless there is clear and convincing evidence that visits are not in the best interest of the child. "And we just suggested some alternate language to deal with that," she added. MS. WIBKER said at the bottom of page 34 is a section dealing with the information that the department should provide to a placement home prior to, and after, taking a child. That is part of making sure that placement homes get the information they need to care for children and meet the child's needs. Number 2231 REPRESENTATIVE BERKOWITZ suggested adding e-mail to this. MS. WIBKER replied that Representative Dyson proposes an amendment to that section, but she believes it is mostly housekeeping, rather than a substantive change. MS. WIBKER next addressed page 35. She said subsection (r) talks about information that the court can order the family to give to the department. This is new. The family has background information, and this provides continuity of care if the child has a counselor or pediatrician, for example. Subsections (s) and (t) deal with changes in placement. The department has a proposed amendment that differs from this, for the same reason she had discussed relating to visitation: It is very detailed and puts a duty on the department that would be difficult to meet. MS. WIBKER discussed page 36, best interests of the child. She told members the primary amendment there is to make the child's health and safety paramount. Also on page 36, there are minor changes to the existing statute. She said this is the statute that talks about the relationship of legal custody, and it spells out the responsibilities of the department, as well as the residual responsibilities of the parent when the child is in the legal custody of the department. MS. WIBKER advised members that on pages 37 through 40 is a new section called "Reasonable efforts" that reflects major changes in federal law. Under prior law, there was always a federal and state duty to make reasonable efforts to prevent removal and to return the child to the home. The changes in federal law no longer require reasonable efforts in every case. In so-called aggravated situations where there has been a homicide of a child, a felony assault on a child, sexual abuse, torture, chronic abuse or neglect, the department is now required to look for a safe, permanent placement and not make efforts to try to reunite that child with the family. That is an important change. Number 2388 REPRESENTATIVE BERKOWITZ asked how this reconciles with termination, which goes by clear and convincing evidence. MS. WIBKER replied that termination is one possible permanent plan. In an aggravated case, where the department feels it should not have to make reasonable efforts, they would request a reasonable efforts hearing and present evidence of why they should not be required to reunite this child with the family, because the case meets one of those conditions. If the judge ruled it was not in the child's best interest to return home, then 30 days after that ruling there would have to be a permanency hearing, and the department would have to present the court with a permanent plan for the child. Ms. Wibker concluded, "There are many permanent plans. One option is termination and adoption." Number 2432 REPRESENTATIVE BERKOWITZ responded, "That's the option, though, that requires clear and convincing evidence. Any other option that would remove a child - effectively, permanently - from a home here, under this standard, is preponderance. Is that right, or am I missing something?" MS. WIBKER replied, "Your standard to stop making reasonable efforts is preponderance. And then, once you stop making reasonable efforts, you've got to decide: Is Grandma going to become the legal guardian and raise this child? Is there another relative? Is there a close family friend that's willing to be the legal guardian? The department must come up with a permanent plan. But you're correct, the burden of proof is much higher to terminate parental rights, because that's a much more serious decision." Number 2461 REPRESENTATIVE BERKOWITZ expressed concern about a parent losing a child and termination of parental rights [comments cut off by tape change]. TAPE 98-64, SIDE B Number 0006 REPRESENTATIVE BERKOWITZ mentioned high legal protection when doing a permanent placement. He asked if there is an articulation of the policy distinction being made that he could read somewhere. MS. WIBKER replied that the burden of proof to stop making reasonable efforts is lower than the burden of proof to terminate. "Terminate is the highest in the CINA statutes," she added. CHAIRMAN GREEN said they would discuss this when debating the bill. Number 0019 REPRESENTATIVE JAMES said, "Just continuing on with Representative Berkowitz' question, so that you've done the preponderance, and you've decided to stop the reasonable efforts, and now you're going to the next step. Did I understand [you] to say that if the next step, then, is termination, that you do have to have the clear and convincing evidence at that point in time? And if you don't have clear and convincing evidence, then you could find a permanent place somewhere else? And if you do find a permanent place somewhere else, and someplace ... down the line things change, is there any option for those parents to come back and have a hearing? Or is it over and finished and done until the child is of age?" MS. WIBKER replied that it is not over and finished and done. If the state stops making reasonable efforts and places the child, for instance, the parents would participate in the decision of where the child should be. For older children, there generally isn't termination, because there is a relationship with those parents. There can be legal guardianships, for example, where the children still have visits with their parents; those can be overturned, or parents can come in and attack those later and get their children back. They are not permanent. MS. WIBKER continued, "If you proceeded to termination, what you would have to do is file the petition, do the trial, prevail at trial, prove your case by clear and convincing evidence. Termination is ... then permanent. The child would be adopted." She said the option to the parents depends on the child's age. She told members, "With very young children, usually ... you just want a clean break. With older children, where there's already a relationship, they frequently do open adoptions, where there's visitation with the parent, even though the child has been adopted by someone else. That is permanent. But a guardianship or some other kind of permanent placement would not necessarily be permanent." She asked whether that answered the question. REPRESENTATIVE JAMES said sort of, adding that she would make a note. Number 0135 MS. WIBKER discussed the termination section, beginning on page 40. She stated, "As Representative Berkowitz pointed out, the burden of proof to terminate parental rights, if it's a non-Native child, it's clear and convincing. If it's a Native child, it's proof beyond a reasonable doubt; that's in ICWA, the Indian Child Welfare Act." REPRESENTATIVE BERKOWITZ told members he had discussed with Ms. Wibker the language here, and he would be proposing amendments that would clarify that it is a clear and convincing standard. CHAIRMAN GREEN took note of that. Number 0162 MS. WIBKER said the statute requires the court to consider whether termination is in the best interest of the child; that is not a change. An earlier statute referenced, on best interest, requires the court to consider health and safety always paramount. This clarifies the various grounds to proceed to termination. It is a change because of federal law; in some cases it is mandatory that the state file a petition to terminate parental rights, which is new. In the past, it was a discretionary decision. MS. WIBKER indicated that under the proposed changes, if there is foster care for 15 of 22 months, if there is an abandoned infant, or if the court has decided reasonable efforts aren't required - the situations where there has been a homicide, a felony assault, sexual abuse, chronic abuse or neglect, or torture - the state must then must proceed to termination or give the court a compelling reason why they did not. A compelling reason not to terminate may be that some other permanent arrangement has been made, such as care by a relative or a legal guardian, for example. Number 0247 CHAIRMAN GREEN asked how much of this is federally mandated, and whether it is the entire section or sections. MS. WIBKER replied, "The federal sections are foster care 15 of 22 months, abandoned infant, and there's two other explicit ones ... that are escaping me right now, that are included in the grounds where you stop reasonable efforts. The state has added here three or more attempts within a 15-month period and no effort whatsoever at the time of the first permanency hearing, which is a year. Those are state-proposed additions." MS. WIBKER told members the other reason that the department may not proceed to termination is if it has not made the required reasonable efforts. For example, the department must provide reunification services to the family, and if it has not done so, that would be grounds not to proceed to termination. MS. WIBKER explained that the rest of the statute on termination relates to concurrent planning, a federally required change whereby even if the state is providing services to return a child home, it should have some alternative permanent plan. It also requires the court to set the termination hearing within six months of filing of the petition, and to issue an order within 90 days after the conclusion of a trial. This is to keep cases moving; Ms. Wibker said that has mostly been a problem in Anchorage, where it takes about a year to get a trial date. MS. WIBKER next addressed page 43. She said there is an amendment to the statute that allows parents to call and give confidential information about their case to legislators, to the ombudsman, or to various others. In addition, a provision allows the department to make documents available for inspection when there has been a request by a parent. At the bottom of page 43 are changes in the confidentiality statute. Currently, there is a confidentiality statute regarding the department's records, with some exceptions. This does some clarification with the exceptions, including a specific exception for foster parents, so they can get information needed to care for a child and to protect their own families. Number 0374 CHAIRMAN GREEN asked whether anything in this new edition conflicts with the work done last year about opening up DFYS records. MS. WIBKER said no. MS. WIBKER continued with page 44, saying there are confidentiality exceptions so that members of teams can work together; she mentioned the child fatality review team and the multidisciplinary team. She explained, "Frequently, we have people who will make a report of harm, and they'll keep calling because they think nobody did anything. And maybe the case was investigated and something was done. ... Or they just want to know what happened. This allows the worker to get back to the person and tell them the outcome. And then there's an exception so that Child Support [Enforcement Division] can collect child support. Children who are in the legal custody of the state, their parents are still required to pay child support, to pay the state for their support and care. And so there's an exception to confidentiality for Child Support." Number 0434 CHAIRMAN GREEN asked whether there was a way to briefly cover the remaining 20-some pages. He indicated his intention of taking up the bill, with amendments, when the committee returned at 7 p.m. MS. WIBKER said most of the next pages just amend the statutes so that the word "minor" is replaced with "child." The definitions section starts on page 47. Then most of the amendments after that they had already discussed; these include respite care, placement changes and placement decisions. In addition, there is a creation of a multidisciplinary child protection team that would serve in an advisory capacity, doing consulting with the department; she doesn't believe any significant amendments are currently proposed relating to that. Number 0500 REPRESENTATIVE ROKEBERG asked whether that is a pilot program. MS. WIBKER said multidisciplinary teams are new. They can be set up to serve any purpose but generally are set up to assist in investigations, as this is. The investigative stage is critical in the case. Ms. Wibker explained, "Say, if a worker had to make a decision if there was an assault or an accident, this would be a team of professionals that would, say, include a doctor that could look at x-rays or look at photographs of bruises and give some technical assistance. It's to help the department ... make their conclusions, to make sure that they have all of the information." REPRESENTATIVE ROKEBERG asked for confirmation that this is different from the child fatality team. MS. WIBKER affirmed that, saying the child fatality team would do death investigations. Number 0545 REPRESENTATIVE DYSON added that one thing that came out of the Governor's task force is that the right people weren't talking to each other. For example, the DFYS personnel weren't talking to law enforcement officials when there was a child abuse case with domestic violence filings on the same household, plus outstanding warrants. This multidisciplinary team sets up a mechanism for continuing communication between different agencies and community groups, and it removes the confidentiality barriers that kept them from talking to each other. Number 0569 REPRESENTATIVE JAMES expressed support for having these teams, but asked whether they would be set up for a specific case or would be already identified. She further asked how many would there be. MS. WIBKER replied that they current operate all over the state, but they are not in statute. One of the most active teams is in Bethel, and there is one in Fairbanks, for example. They are assembled with a diverse group of professionals that bring various expertise to the table. A member of the team can present a case to the team, and then a meeting would be called. If some specific expertise is needed that is not represented, that expertise can be added to the team for a particular case. Number 0630 REPRESENTATIVE JAMES asked whether there is any payment for this service. MS. WIBKER said people are just doing it as part of their jobs. REPRESENTATIVE JAMES asked whether there was any reimbursement for costs. MS. WIBKER said they are troopers, VPSOs [village public safety officers], pediatricians, and people in Head Start, for example. "They're just doing it," she restated. CHAIRMAN GREEN suggested it is done locally, so there is no travel expense. MS. WIBKER affirmed that. Number 0662 MS. WIBKER told members there is just one more important change, to licensing foster homes, coming from federal law. Whenever the department pays someone or licenses a home to care for a child, they are now required to do a full criminal background check, including a fingerprint check; that is on page 55. It also gives the department the authority to do criminal background checks on parents and perpetrators. She noted that the section on licensing starts on page 57. REPRESENTATIVE BERKOWITZ asked whether Social Security numbers are kept confidential somewhere. CHAIRMAN GREEN said that may be an item of debate, noting that it is a hot issue. MS. WIBKER responded that these are people going to the department and saying that they want to care for this child, and they want to get paid to do so. "And that means the department has to license that home," she explained. "So the department is going to ask for information about the people in that family over 16 for the purpose of finding out what's in their background, because under this law, if you find certain kind of crimes, you cannot license that home, and you cannot place children there." Number 0727 REPRESENTATIVE BERKOWITZ suggested it would be more appropriate to give privacy protections, essentially the equivalent of in camera review, where the department keeps this information in a confidential, secure area, for Social Security numbers and fingerprints, if there is no problem. He added, "If there is a problem related to an application, then you proceed accordingly. But I think the privacy interests of everyone involved would suggest to me that you don't want to disseminate Social Security numbers." CHAIRMAN GREEN restated that this is a hot issue. He asked whether there is a way that the Social Security number, and perhaps even the fingerprints, could be kept in a place in the file that wouldn't be a public record. MS. WIBKER said this would be in a licensing file, and a licensing unit does this. She suggested that someone from the department who knows how licensing works could explain the protections. Number 0774 REPRESENTATIVE JAMES commented, "Once you give your fingerprints and you do the background check - and I assume file with FBI [Federal Bureau of Investigation] - the fingerprints are there." She expressed concern about the Social Security number but noted that people put it on driver's licenses, unless they refuse to do so. REPRESENTATIVE BERKOWITZ said he had refused. CHAIRMAN GREEN indicated they may want to hear from someone on this during debate. He thanked Ms. Wibker. REPRESENTATIVE JAMES also thanked Ms. Wibker for her time. Number 0861 CHAIRMAN GREEN recessed the meeting at 3:36 p.m. TAPE 98-65 Number 0001 CHAIRMAN GREEN reconvened the House Judiciary Standing Committee meeting at 7:07 p.m. Present at that time were Representatives Green, Bunde, Porter and James. Representatives Rokeberg and Berkowitz arrived at 7:09 p.m. and 7:11 p.m., respectively. Representative Croft was excused. [TAPE 98-65 is blank, but handwritten log notes were taken. A copy of the log notes may be obtained by contacting the House Records Office at 130 Seward Street, Suite 211, Juneau, Alaska, 99801-1182, (907) 465-2214, or after adjournment of the second session of the Twentieth Alaska State Legislature, in the Legislative Reference Library.] During this 90-minute portion of the meeting, the following persons besides committee members spoke: SUSAN G. WIBKER, Assistant Attorney General, Human Services Section, Civil Division (Anchorage), Department of Law, testified about the amendments and answered questions. REPRESENTATIVE FRED DYSON explained proposed amendments. LISA TORKELSON, Legislative Assistant to Representative Fred Dyson, Alaska State Legislature, explained proposed amendments. KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green, Alaska State Legislature, as committee aide, provided information and answered questions. RUSSELL WEBB, Deputy Commission, Office of the Commissioner, Department of Health and Social Services, answered questions regarding proposed amendments. DOUG WOOLIVER, Administrative Attorney, Office of the Administrative Director, Alaska Court System, discussed amendments proposed by the court system. During this 90-minute portion of the meeting, the following action was taken: The first amendment, H.1 [0-GH2009\H.1, Lauterbach, 4/17/98] was amended in three sections and adopted as Amendments 1, 2 and 3. Although sometimes there was reference to amending the bill itself, rather than amending the amendment, the following contains the changes that were adopted. [The line numbers at the left correspond with the beginnings of key points in amendment H.1, although the lines do not fall identically here.] AMENDMENT 1. Page 1, lines 1 through 21, of amendment H.1 originally read: 1 Page 21, line 31, following "child": Insert ", including the right to direct the child's medical care and the right to exercise reasonable corporal discipline" 4 Page 22, lines 9 - 23: Delete all material and insert: "(2) it is the policy of the state to strengthen families and to protect children from child abuse and neglect; the state recognizes that, in some cases, protection of a child may require removal of the child from the child's home; however, 9 (A) except in those cases involving serious risk to a child's health or safety, the Department of Health and Social Services should provide time-limited family support services to the child and the child's family in order to offer parents the opportunity to remedy parental conduct or conditions in the home that placed the child at risk of harm so that a child may return home safely and permanently; and 15 (B) the state also recognizes that when a child is removed from the home, visitation between the child and the child's parents or guardian and immediate family members reduces the trauma for the child and enhances the likelihood that the child will be able to return home; therefore, whenever a child is removed from the parental home, the Department of Health and Social Services should encourage frequent, regular, and reasonable visitation of the child with the child's parent or guardian and immediate family members;" The above was amended to strike the word "immediate" before "family members" on lines 17 and 21 of H.1, subsection (2)(B); the committee aide indicated there had been discussion that it should be similarly stricken throughout the amendments. The foregoing was adopted as Amendment 1. AMENDMENT 2. Page 1, line 22, through page 2, line 4, of amendment H.1 originally read: 22 Page 23, line 10: Delete "immediate and regular" Insert "reasonable" 2 Page 23, line 11: Delete "extended" Insert "immediate" This was deleted, then replaced by "Amendment to Amendment #1", which originally read: Page 23, line 10-11 Delete (E) Replace with "frequent, regular, and reasonable visitation with the parent or guardian and immediate family members should be encouraged; and [no end quotation marks provided] The above replacement was amended by deleting the word "immediate". It was then adopted as Amendment 2. AMENDMENT 3. Page 2, line 5, through page 3, line 21, of amendment H.1 originally read: [Page 2] 5 Page 23, lines 18 - 20: Delete all material. 7 Renumber the following paragraph accordingly. 8 Page 25, line 9, following "injury": Insert ", as evidenced by an observable and substantial impairment in the child's ability to function" 11 Page 25, line 29, following "child": Insert ", as evidenced by an observable and substantial impairment in the child's ability to function, or have resulted in exposure of the child to domestic violence as defined in AS 18.66.990" 15 Page 26, lines 8 - 10: Delete "has caused substantial physical harm to the child or creates a risk of substantial physical harm to the child" Insert "places the child at substantial risk of physical harm or mental injury" 19 Page 26, line 13, following "Abandonment.": Insert "(a)" 21 Page 26, lines 16 - 17: Delete "and the failure is accompanied by intention on the part of the parent or guardian to permit the failure to continue for an indefinite period" [Page 3] 1 Page 27, following line 3: Insert a new subsection to read: "(b) For purposes of (a) of this section, a parent or guardian who is a victim of domestic violence, or who has a child in the parent's or guardian's care who is the victim of domestic violence, is considered to have justifiable cause to take an action or to fail to take an action that would otherwise be considered to be abandonment of a child under (a) of this section if the action or failure to act is necessary to protect the parent or guardian, or a child in the care of the parent or guardian, from further acts of domestic violence. However, a parent or guardian who initially had justifiable cause to act or fail to act as described in this subsection may be considered to have abandoned the child without justifiable cause for purposes of (a) of this section if the parent or guardian does not take reasonable steps to reunify with or provide care for the abandoned child after becoming secure from further acts of domestic violence or after providing that another child in the care of the parent or guardian is secure from further acts of domestic violence." 16 Page 30, line 7, following "hearing.": Insert "When determining whether to grant a continuance for good cause, the court shall take into consideration the age of the child and the potential adverse effect that the delay may have on the child." 20 Page 30, lines 24 - 25: Delete "the child's health care providers." The above from H.1 was amended as follows: On page 2, beginning on line 9, the phrase "as evidenced by an observable and substantial impairment in the child's ability to function" was deleted. It was replaced with the phrase, "as defined in [AS] 47.17.290". On page 2, line 14, subsection "(3)(a)" was added following "AS 18.66.990". However, lines 12 through 14 were then deleted entirely and replaced with the phrase, "or placed the child at substantial risk of mental injury". The foregoing was adopted as Amendment 3. AMENDMENT 4. There was a motion to adopt Amendment 4 [0- GH2009\H.2, Lauterbach, 4/16/98] for discussion purposes. [Five pages long, it is not provided herein but is in the committee packet and is attached to the hard copy of the committee minutes. The first two and a half pages were proposed by the Alaska Court System and offered by Representative Dyson. Doug Wooliver of the court system addressed permanency hearings and other topics, and the committee went through the first page. The third tape begins nine or ten minutes after Amendment 4 was first brought up.] TAPE 98-66, SIDE A Number 0001 MS. TORKELSON referred to page 2, Amendment 4, continuing to page 3, line 3. She told members Section 41 is rewritten to group like areas together. CHAIRMAN GREEN asked whether that just replaces everything removed on the prior page [which says, "Page 32, line 27, through page 33, line 25: Delete all material and insert:"]. Number 0041 REPRESENTATIVE DYSON said yes, adding that William Hitchcock, Children's Master, Alaska Court System, had looked at this section, which had been amended several times, from the perspective of a judge; he had reordered and reorganized it so that it makes more sense to read through. The changes are not substantive. CHAIRMAN GREEN asked whether there was any objection; there was none. He next called members' attention to page 3, line 4, Amendment 4, which says, "Page 34, lines 26 - 27: Delete all material". MS. TORKELSON said she believes that completes the court-requested amendments. REPRESENTATIVE JAMES asked about line 25 of the bill, then noted that the subsequent change to page 34, line 28, completes that. REPRESENTATIVE BRIAN PORTER asked what it does. Number 0275 MS. WIBKER referred to page 34, lines 26 and 27, of the bill. She said the court commits children to the custody of the department but doesn't have authority to place children. The drafter clarified this to say that if the court orders a child committed to the department under (c) of this section for placement in licensed foster care, the court shall order the department to provide the foster parents with information in subsection (1). And then in subsection (2), the foster parents are ordered to do certain things for the department. This section is broken into (1), with subsections (A), (B) and (C), and (2), with subsections (A), (B) and (C). Ms. Wibker said when children are committed to the custody of the department, the department will give certain information to the foster parent, who in turn will maintain records, provide records to the department, and maintain the confidentiality of records. She concluded, "So, to understand the amendment, you really have to go through the rest of the page. The amendment is just better organized." Number 0380 MS. TORKELSON commented that it is Legislative Legal Services' version of her own memorandum. CHAIRMAN GREEN inquired about Representative Berkowitz' suggestion about electronic mail in this section. REPRESENTATIVE BERKOWITZ indicated it is on page 35, line 7, of the bill that he is considering adding e-mail. MS. TORKELSON asked if his suggestion is "names, addresses, telephone numbers and e-mail." REPRESENTATIVE BERKOWITZ said yes. Number 0450 REPRESENTATIVE ROKEBERG objected, expressing concern that e-mail may be out of date soon. REPRESENTATIVE BERKOWITZ said he wouldn't pursue it at this point. Number 0480 CHAIRMAN GREEN asked whether there was any objection to page 3, lines 4 - 15, Amendment 4. MS. TORKELSON indicated it would be through line 28, to include subsection (B). She noted that it is Legislative Legal Services' reworking of sections and subsections. Number 0513 REPRESENTATIVE PORTER asked whether that means there is no substantive change. MS. WIBKER responded that the substantive change just adds in that the foster parent will maintain records for the department. Other than that, it is just better organized. However, there is a technical error on page 3, line 8, Amendment 4, which inserts "section for placement in licensed foster care, the court shall order the ". That should read, "section and the department places the child in licensed foster care, the department shall provide". Ms. Wibker said it is a duty the department should do, without a court order; part of that is a suggestion from Mr. Webb. REPRESENTATIVE JAMES pointed out the need to remove "department to provide" from subsection (1), then. Number 0720 MS. TORKELSON asked whether they could provide it to Legislative Legal Services as a conceptual amendment that says they don't want the court to order it. CHAIRMAN GREEN agreed to that. Number 0803 MS. TORKELSON next referred to page 4, lines 1 - 2, Amendment 4, which says: Page 35, line 13: Delete ", without a court order," MS. TORKELSON explained, "As we understood, the problem with both (s) and (t) of the bill was ... putting the court within these two sections. And so, ... of the amendment, lines 1, 3, 6 are just basically taking out the court: 'the department may not change the placement of a child' in line 13 of the bill; and in line 25 of the bill, 'return receipt requested, of an intent to change the placement of a child whose change of placement is not governed'. It takes the court out of that section but leaves the basic idea." Number 0866 REPRESENTATIVE DYSON added, "What we were after here - and it's an honest point of contention between my office and the department - is to minimize the number of changes of placement of the child. The department argues that what we have before you here, in the committee substitute, is too rigorous and puts an undue burden on the department. We have absolutely agreed to take out the court order here, so that they don't have to go to court to get a change of placement; and we agree on that. Now, later in the evening I will certainly petition you to hear from the department that all of section (s) and (t) should be changed. ... So, the first three changes here, on top of page 4, are just getting the court out of the pipeline here." CHAIRMAN GREEN asked whether there was any objection to those first three sets of changes. Hearing none, he asked Ms. Torkelson to continue. Number 0954 MS. TORKELSON referred to page 36, line 1 [page 4, lines 8 - 10, Amendment 4]. She said "timely" has been indicated to be an important inclusion, keeping in mind that time is a big factor in a child's life. MS. TORKELSON then referred to page 37, line 17 [page 4, lines 11 - 13, Amendment 4]. She said Legislative Legal Services had noted that "parents" should be "parent or guardian", because not every child has two parents. A similar change is made to page 37, line 19, of the bill [page 4, lines 14 - 16, Amendment 4]. REPRESENTATIVE DYSON told members the last portion adds, "if community services are available and desired by the parent or guardian". Number 1058 MS. TORKELSON referred to page 38, line 6 [page 4, line 20 - 21, Amendment 4]. Page 38, lines 5 and 6, read: "(2) the parent or guardian has (A) committed homicide under AS 11.41.100 - 11.41.130 of a child;". She said this insertion of "a parent of the child or of" following the word "of", suggested by Legislative Legal Services, combines into one concise sentence the homicide of a child and the homicide of a parent. Number 1101 MS. TORKELSON referred to page 39, line 8 [page 4, lines 22 - 23, Amendment 4]. She said "or" is being deleted in (8) because of the addition of (10) on page 5 of the amendment. On page 5, "or" is added to (9), followed by "(10) the parent or guardian is incarcerated and is unavailable to care for the child during a significant period of the child's minority, considering the child's age and need for care by an adult". Ms. Torkelson noted that this is all talking about reasonable efforts. If the parent is in jail the whole time of the child's youth, until age 18, there is really not an easy time to reunify the child with the parent. MS. TORKELSON next discussed page 46, lines 29 through 32 [page 5, lines 5 - 10, Amendment 4]. She said these change "minor" to "child" for consistency within this title. Number 1194 REPRESENTATIVE DYSON said he sensed agreement with the housekeeping changes just discussed, but he pointed out that the last change on page 5 is substantive. MS. TORKELSON addressed that change. Page 5, lines 11 - 13, Amendment 4, read: Page 59, lines 23 - 24: Delete "an additional period of up to 90 days" Insert "one or two additional periods of up to 90 days each" MS. TORKELSON said they understand from the Department of Public Safety that they cannot always get federal fingerprint information within 180 days. She explained, "We're talking about an emergency foster home license. Emergency means they have everything but the fingerprint check by the federal government." Number 1258 REPRESENTATIVE CON BUNDE asked whether they hadn't covered this in the House Health, Education and Social Services Committee (HES). MS. TORKELSON said they had put 90 days in there. REPRESENTATIVE DYSON indicated they had suggested a renewal for another 90 days, but the department is now saying that still isn't enough. Therefore, this provides a third 90-day period, if necessary. Representative Dyson reminded members that the state would have already gone through all its criminal records; this is waiting for the federal information. MS. TORKELSON added that it is fingerprint information. REPRESENTATIVE DYSON noted indications that the federal government's performance in this area is likely to improve. REPRESENTATIVE PORTER commented, "One of the problems is that sometimes they reject the prints; you'd have to start all over again. And that really is a problem." REPRESENTATIVE BUNDE said he removes his objection to Amendment 4, as modified. Number 1350 CHAIRMAN GREEN asked whether there was any other objection. There being none, Amendment 4, as amended, was adopted. Number 1380 REPRESENTATIVE BUNDE made a motion to adopt Amendment 5, a 3-page amendment (hand-labeled 4B), which said at the top, "Proposed Amendments to CS to HB 375 after 4/17 hearing." REPRESENTATIVE PORTER objected for discussion purposes. Number 1501 MS. WIBKER explained that after the previous Friday's hearing, she had highlighted things that had come to her attention. The first is a housekeeping change on page 3, line 7, so that it reads "child or minor"; that is because that statute refers to both a child in need of aid and juvenile delinquency. CHAIRMAN GREEN asked why one wouldn't suffice. Number 1561 MS. WIBKER replied, "Because when you're talking about 47.10, it's proper to use 'child'; when you're talking about 47.12, it's proper to use 'minor.' And that statute is talking about both." MS. WIBKER referred to the second proposed change in Amendment 5, which read: Page 15, line 7, line 9, line 26, line 28, delete "AS 11.41.460" MS. WIBKER explained that AS 11.41.460 is misdemeanor indecent exposure; she isn't sure whether the committee wishes, in the statutes dealing with teaching certificates, to refuse to give a teaching certificate, or to revoke one, if a person has a misdemeanor conviction for indecent exposure. MS. WIBKER mentioned the hearing on April 17, 1998, where the committee had discussed that; noting that the existing statute includes misdemeanor indecent exposure, she corrected her own statement from that meeting. She told members, "Senator Pearce has the same amendment in a different bill, and there was some debate in her bill, whether or not to include misdemeanor indecent exposure. I thought that she took it out, but I went to double- check, just to be sure, and it is still in there." REPRESENTATIVE PORTER asked, "Didn't we determine that misdemeanor indecent exposure was intentional exposure, and other acts, as opposed to getting caught behind the bush?" MS. WIBKER said it requires an exposure with also a reckless disregard for the offensive disregard on the person. REPRESENTATIVE PORTER paraphrased as he read from AS 11.41.460, which says, "intentionally exposes the offender's genitals to another person with reckless disregard for the offensive, insulting, or frightening effect the act may have on that person." REPRESENTATIVE BERKOWITZ said that is in this jurisdiction, but the City of Seward has statutes where public urination is indecent exposure. In other states, without going into the litany of exposures possible, some are youthful folly or exuberance. CHAIRMAN GREEN asked the committee's wish about leaving in or removing AS 11.41.460. REPRESENTATIVE BERKOWITZ said he wishes to remove it. Number 1693 REPRESENTATIVE PORTER objected. He explained, "I think that is the specific reference that should stay in, because that's the one that defines what I just read." He noted that it would exclude Seward's ordinance. REPRESENTATIVE BERKOWITZ responded that it wouldn't exclude streaking or perhaps something in another jurisdiction that would be mooning. REPRESENTATIVE PORTER said no, mooning is not genitals. REPRESENTATIVE BERKOWITZ replied that in another jurisdiction, it could be construed as substantially similar. REPRESENTATIVE JAMES said it depends on how far one bends over. Number 1801 CHAIRMAN GREEN requested a roll call vote on that portion of Amendment 5, saying the motion was to remove AS 11.41.460 in four places on page 15, and a "yes" vote would be to take it out. Voting "yes" was Representative Berkowitz. Voting "no" were Representatives Bunde, James, Porter, Rokeberg and Green. Representatives Croft was excused. Therefore, the motion failed by a vote of 5-1. [Amendment 5 was therefore amended by removing the portion that would have deleted "AS 11.41.460" on page 15.] Number 1812 MS. WIBKER referred to the next proposed change in Amendment 5, which read: Page 26, line 1-2 should read: "the parent, guardian or custodian's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child;" MS. WIBKER said she believes that was suggested by Representative Croft at the April 17, 1998, hearing, and that Representative Porter may have come up with the language. It deals with the statute on addiction to substances. There had been concern that they add that the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child. The first clause would be replaced with this language. MS. TORKELSON added that after "intoxicant" on line 2, it would say, "and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child;". Number 1888 REPRESENTATIVE BERKOWITZ said if he recalls the conversation, one concern was that the other parent also had to be absent. There was concern about one parent having a substance abuse problem when the other parent did not. MS. WIBKER said she believes this was the proposal after that discussion, as a way to resolve the concerns. This would require a substantial risk of harm to the child. Number 1917 REPRESENTATIVE BERKOWITZ told members it is not his intent that if one parent has a substance abuse problem, but the other doesn't, the problem of one parent can be used as a vehicle for initiating proceedings, of and by itself. MS. WIBKER replied, "That's why that language was added. Only if their ability to parent is substantially impaired and there is a substantial risk of harm to the child." Number 1970 REPRESENTATIVE ROKEBERG said Representative Berkowitz brings up a good point. In this whole section, which is very important, it is written in the singular, as to a parent. MS. WIBKER said the law is that the conduct of one parent may bring the child under the jurisdiction of the court. REPRESENTATIVE asked, "Notwithstanding the other parent is ready, willing and able to provide that care?" MS. WIBKER said that is correct. It becomes a placement issue, rather than a jurisdiction issue. Generally, the conduct of one parent does bring the child under the jurisdiction of the court, such as when one parent sexually abuses or batters the child, or is an alcoholic. Separate from that is a placement issue. Both state and federal law require that the state make efforts to prevent the need for removal and have what they call a kinship preference, which is placement with a relative. REPRESENTATIVE ROKEBERG asked what happens to the other parent here. MS. WIBKER replied, "You place the child with that parent if you can." REPRESENTATIVE PORTER said, "Which induces the bad one to leave." REPRESENTATIVE JAMES noted that the state is still supervising the family. REPRESENTATIVE ROKEBERG expressed concern. He asked, "If there's a parent there willing to take the child, what's the business of the state have to do with anything, injecting themselves in there?" CHAIRMAN GREEN said, "Except that we've added that if there is a substantial risk to the child." REPRESENTATIVE ROKEBERG said it is only from one parent. CHAIRMAN GREEN said that is all it takes. MS. WIBKER agreed that if one parent is endangering the child, it is enough. Number 2042 REPRESENTATIVE BUNDE posed a situation where there are two parents, one of whom is a crack addict and dealer, and that behavior causes gunfire in the home. That person would have to leave the home, which couldn't be done unless the child was found in need of aid and placed with the other parent. Then the first parent couldn't come back. REPRESENTATIVE ROKEBERG said the logic escapes him, suggesting it is a philosophical debate. Number 2073 MS. WIBKER brought up the next proposed change in Amendment 5, which read: page 28, line 26 should read: "the child, each parent, the tribe, the foster parent...... [no end quotation marks provided] MS. WIBKER explained that this just adds the tribe to the list of people that would be notified. She said the reason is that tribes are parties, whereas foster parents are not. It didn't seem right to list foster parents as getting formal service and notice of a procedure without including the tribe. CHAIRMAN GREEN asked whether there was any objection; none was heard. Number 2096 MS. WIBKER addressed the next proposed change in Amendment 5, which read: page 34, lines 10 - 24 should be replaced with: (p) if a child is removed from the parental home, the department shall provide reasonable visitation between the child and the child's parents, guardian, and immediate family. The court may require the department to file a visitation plan with the court. The department may deny visitation to the parents, guardian or immediate family members if there is clear and convincing evidence that visits are not in the child's best interests. Any parent or guardian who is denied visitation may request a review hearing. MS. WIBKER informed members this is alternative language proposed by the state. The language in CSHB 375(HES) has a lot of detail about the time and frequency of visits. This makes a more general statement, without locking the department into a specific time schedule; it basically reflects the current state of the law. Number 2119 REPRESENTATIVE DYSON indicated this has been a contentious point. He said the department, probably rightly, feels that if there are specific times like 72 hours or at least once a week, they may be subject to action when it doesn't happen for one reason or another. They don't want that kind of vulnerability, although they say they are committed to early, frequent visitation from the family members. Representative Dyson stated, "This is one of those cases where Mr. Webb has promised me that in the training for the staff, and in their policy and so on, early, regular visitation by parents will be a part of it. And I've asked him to make that a part of the reporting that they do to us on how they're doing with these kids." Number 2165 REPRESENTATIVE BUNDE asked if the three levels of evidence are preponderance, clear and convincing, and beyond a reasonable doubt. He stated his understanding that this elevates the level of proof to the highest civil level. MS. WIBKER affirmed that, adding that this is the current state of the law. By law, the department must provide visits unless there is this level of evidence to stop it. REPRESENTATIVE BUNDE said that mollifies some of his concerns. Number 2203 REPRESENTATIVE BERKOWITZ pointed out that "immediate" is in here, which they had exorcised earlier; he asked whether they are going to do that again. He then asked what happens when there is one Caucasian parent and one Native parent. MS. WIBKER replied that if it is an Indian child, it falls under the Indian Child Welfare Act and the standard is (indisc.). REPRESENTATIVE BERKOWITZ asked whether it is based on the child, not the parent. MS. WIBKER said it is the child that the court has jurisdiction over. CHAIRMAN GREEN asked if the child of one Caucasian parent and one Indian parent would still be considered an Indian child. MS. WIBKER said yes. REPRESENTATIVE ROKEBERG asked what the standard is. MS. WIBKER said it is whatever the federal law is that defines it. Number 2250 REPRESENTATIVE BUNDE announced that he would like to withdraw his three amendments, which hadn't been formally offered, as well as himself. He indicated he may reintroduce one of those amendments later. CHAIRMAN GREEN asked whether there was any objection to the proposed change in (p) just discussed. REPRESENTATIVE BERKOWITZ mentioned removal of "immediate." REPRESENTATIVE ROKEBERG pointed out that it occurs twice there. Number 2338 CHAIRMAN GREEN next brought up the proposed change that read: Page 35, lines 4-5, delete "for placement in licensed foster care or for placement with a relative of the child," MS. WIBKER advised members to ignore that, as the change had been made when going through Representative Dyson's amendments; she indicated that was confirmed by Mr. Webb. CHAIRMAN GREEN next asked whether there was any objection to deleting "or custodian" from page 35, line 5; none was heard. Number 2407 CHAIRMAN GREEN brought up the next proposed change in Amendment 5, which read [original punctuation provided]: Page 35, lines 12-31 and page 36, lines 1-4 should be replaced with: (s) the department may transfer a child, in the child's best interests, from one placement setting to another, and the child, the child's parents or guardian, the child's foster parents or out of home caregiver, the child's guardian ad litem, the child's attorney, and the child's tribe, are entitled to advance notice of any non-emergency transfer. Any party opposed to the proposed transfer may request a hearing and must prove an abuse of discretion by the department for the court to deny the transfer. A foster parent or out of home caregiver who requests a change in placement of the child, should provide the department with reasonable advance notice of the requested change. MS. WIBKER advised members that Representative Dyson had referred to this earlier. It relates to changes in placement, such as from one foster home to another, or from one relative to another. In CSHB 375(HES) there are sections (s) and (t), which have a great deal of detail on the procedure for doing that. She said the department is proposing some broader language that doesn't lock the department into the procedure. MS. WIBKER continued, saying that as proposed by the department, (s) generally represents current law, which is that the department has discretion to place; generally, the department moves a child, and if somebody objects, there is a hearing to see whether the department abused its discretion. Ms. Wibker stated, "What we're proposing is, prior to the move, the department should give people notice. People should have a chance to object, and there should be a hearing prior to the move on whether or not it's an abuse of discretion, to prevent precipitous moves. ... I believe the same policy is in both ... provisions, but this is a broader statement; it just doesn't have as much detail." CHAIRMAN GREEN suggested in effect they are taking (s) and (t) both out, then substituting a new (s). MS. WIBKER replied, "That's our proposal. Under the existing (s) in the committee substitute, it talks about situations where the department ... can move a child. It talks about a procedure that would require 14 days' written notice by certified mail before a move. And I think the way that the alternative (s) is proposed, for example, the department could call all of the parties or immediately fax them something, and allow them to object to a proposed change in placement." She said it is less secretarial work for the department. Number 2460 REPRESENTATIVE BERKOWITZ pointed out that abuse of discretion is a pretty high standard. He asked what the consequence would be of going to a lesser standard. MS. WIBKER replied that abuse of discretion is the current state of the case law, because the way the statutes are set up, the legislature gave the department discretion to place and took that away from the courts. REPRESENTATIVE BERKOWITZ suggested that because the overarching principle is the best interest of the child, the transfer request should be tied to that. TAPE 98-66, SIDE B Number 0001 REPRESENTATIVE BERKOWITZ said he doesn't want to set up a situation where the child's interests are subsumed by the department's. He suggested something along the lines of, "the party opposed must prove that it is not in the best interests of the child to approve the transfer," proved by a preponderance of the evidence, or by clear and convincing evidence. MS. WIBKER stated her understanding that he was talking about what the opposing party must prove to stop the move. REPRESENTATIVE BERKOWITZ replied, "Right. ... You have to prove that it's not in the best interest of the child. In other words, the department has to prove that it is in the best interests of the child." MS. WIBKER said they have to do that anyway. The first line is existing law; the move can be made in the child's best interest. Number 0060 REPRESENTATIVE BERKOWITZ pointed out that it is the interest as determined at the department's discretion, not the interest as validated by the objective court, an important distinction. For an outside party to challenge the department based on abuse of discretion, that is nearly impossible to prove. Representative Berkowitz explained, "But for them to assert that it's not in the best interests of the child - which is what the litigation should be about - is a threshold we can reach either with clear or convincing, with beyond a reasonable doubt, with preponderance. And that's where the focus ought to be." MS. WIBKER asked whether Representative Berkowitz was suggesting a party opposed to the proposed transfer may request a hearing and must prove, by clear and convincing evidence, that it is not in the child's best interest. REPRESENTATIVE BERKOWITZ replied that he would say it is by a preponderance that it is not in the best interest, because all of the standards they have used so far have been the preponderance that it is in the best interest. Number 0104 REPRESENTATIVE DYSON said Representative Berkowitz, with his usual clarity, has gotten right to the heart of the matter. He noted that the decision about that is a judgment call. Number 0150 CHAIRMAN GREEN asked whether all the department has to do is prove it is in the best interest, but for an objection there must be proof that the department abused its discretion. MS. WIBKER said that is the current state of the law. CHAIRMAN GREEN replied that it seems a little one-sided. MS. WIBKER said she thinks it is because the department has the liability for the placement. The department has to license the home, pay for the home, inspect the home, make the home visits, and train the people. If another party can come in and object, saying the child should be put elsewhere, then the department is still liable for the placement. Number 0180 REPRESENTATIVE DYSON objected, saying that is not his reading of it. He noted that they are talking about a challenge of a change of placement. The child would already be in a department-approved situation. Number 0190 REPRESENTATIVE JAMES suggested that if the department would have made a decision to change the placement, with the argument then being whether there should have been a change, it is not the situation Ms. Wibker described. MS. WIBKER responded that if it is from one department-approved home to another, she believes Representative Dyson makes a good argument. However, if the parent convinces the court that the child should be at the parent's home or with the parent's sister, and the child is in the legal custody of the department, it puts the department in an awkward position of being liable for a placement they didn't choose. "Under Representative Dyson's suggestion, it works, because the department has clearly approved of both placements; but if a party can challenge a placement, and go in and suggest another placement, it doesn't work so well," she concluded. Number 0229 REPRESENTATIVE BERKOWITZ noted that this section just says the department may transfer a child from one placement setting to another. The child would be in a department-approved setting, and now the department would be getting ready to move it to another setting. He said it isn't as if the other interested party can come in and say, "I want it to come to me" or "I want it to go to my aunt," for example. REPRESENTATIVE JAMES asked, "But what if they wanted to leave it there?" REPRESENTATIVE BERKOWITZ responded, "If I understand correctly Representative James' question, if you're challenging the move because you don't think it's in the best interests of the child to move, and you want the child to remain where he or she is, then you can challenge on the best interests of the child, under this section." Number 0261 REPRESENTATIVE ROKEBERG said to Representative Dyson that it seems he is setting down some specific time frames, whereas the department, at its discretion, now can remove the child without any notification. He asked if that is correct. MS. WIBKER said that is correct, and that is not a good situation. REPRESENTATIVE ROKEBERG responded that there is essentially a 30- day period for notification, then a response, and it could actually go beyond that because of time for an adjudicative hearing. He asked what kind of court is assumed to be taking this matter up, and whether it would normally be done by a master. MS. WIBKER replied that sometimes it is a children's master, and sometimes those cases are set in superior court for a contested evidentiary hearing before a superior court judge. REPRESENTATIVE ROKEBERG said it may be a practical time period, but perhaps too protracted. In addition, when he read subsection (t), he didn't believe the burden of proof and the level of evidence were addressed. He stated, "I would tend to prefer your (s) and (t), but (t) is not perfected here, I don't think, as it should be, as I look at it. Would that be a correct analysis?" REPRESENTATIVE DYSON said yes. Number 0355 REPRESENTATIVE ROKEBERG asked if there is a way to shorten it, add what he'd been talking about, and maybe expedite it but still make it reasonable. He mentioned an ex-foster parent constituent who had written him about the yo-yo effect of having a child go back and forth. Representative Rokeberg then stated, "I would prefer not to adopt this amendment, and ask the Representative to look into it further and bring it back to the committee, on this one." Number 0373 MR. WEBB told members subsections (s) and (t) are problematic for a number of practical reasons. There are other reasons why section (s) is particularly problematic. For instance, the department would not be able to remove a child under the language in (indisc.) in the existing bill. If the care being given by a licensed foster parent weren't adequate, the state would have to wait until there was a report of harm, of abuse or neglect, on the part of a foster parent. The fact of the care not being adequate, and not meeting the child's need, wouldn't be enough to enable the department to remove a child from a placement. MR. WEBB said the policy agreement is that the department ought to limit the number of placements that children have to go through. And the language suggested in (s) does that, and sets up a standard. He stated, "Then the question gets to, I think, what Representative Berkowitz has said: What's the standard for removing the child? And it ought to be the child's best interests. And that's a much better construction, it seems, from a practical standpoint. It focuses on the purpose, which is to focus on the interests of the child, ... and gives people with an interest in that child's well-being the ability to call into question an action by the department. But it doesn't set up ... a very cumbersome process that both is, I think, harmful to the child, as in (s), and very, very cumbersome in terms of trying to practically implement, as those things are in (t)." Number 0451 REPRESENTATIVE PORTER inquired whether a determination that this transfer was not in the child's best interest would be an abuse of discretion by the department. MS. WIBKER answered that a judge would have to make that finding. REPRESENTATIVE PORTER asked whether it didn't follow. REPRESENTATIVE BERKOWITZ said not necessarily. MS. WIBKER added, "Abuse of discretion's pretty high." REPRESENTATIVE BERKOWITZ agreed it is way up there. Number 0475 REPRESENTATIVE PORTER responded that if that wouldn't follow, he would suggest changing that. MR. WEBB stated his belief that the proposed language would get where they need to go. REPRESENTATIVE PORTER suggested that instead of having to prove there was abuse of discretion by the department, it should be proving that the move was not in the best interests of the child. Number 0490 REPRESENTATIVE BERKOWITZ suggested it read that any party opposed to the proposed transfer may request a hearing and must prove, by a preponderance of the evidence, that it is not in the best interests of the child for the court to approve the transfer. CHAIRMAN GREEN asked whether they want a preponderance of the evidence or clear and convincing evidence. REPRESENTATIVE DYSON said the court is not in the game. REPRESENTATIVE JAMES asked who would conduct the hearing. CHAIRMAN GREEN said, "If you had an objection, they are." REPRESENTATIVE ROKEBERG said, "But no, they already got the child out of the house, before this all happens. That's the point." REPRESENTATIVE BERKOWITZ disagreed. Number 0533 MS. WIBKER said, "Under current law, that's the case. What we're proposing is ... a change, so that if the department wants to move a child, they have to notify everybody in advance. If everybody agrees, you do it. If somebody disagrees, they get a hearing and get a chance to stop it before it happens. That is a change." AN UNIDENTIFIED SPEAKER said, "Unless it's an emergency." MS. WIBKER acknowledged that. REPRESENTATIVE DYSON noted that they agree on that. CHAIRMAN GREEN asked about the standard of proof again. Number 0561 REPRESENTATIVE BERKOWITZ said "preponderance," which is what they have been using. The alternative is by clear and convincing evidence. CHAIRMAN GREEN said that raises it, but it is not impossible. REPRESENTATIVE BERKOWITZ added, "I just think, as a matter of equity, if the department is going to be going after children by a preponderance, then they should be required to live by that standard as well." CHAIRMAN GREEN said that is a pretty good point. Number 0584 REPRESENTATIVE ROKEBERG said it is a huge change for the department to set up this proceeding prior to transfer of a child, which he indicated may itself reduce the occurrences targeted by Representative Dyson. He stated that he doesn't believe they should put up artificial hurdles by raising the standards so high that they must involve high-powered attorneys, rather than having a master handle it in a relatively informal setting. CHAIRMAN GREEN mentioned that they are eliminating the exhaustive list that would be, as Mr. Webb indicated, a burden. He suggested there should be some approach that wouldn't be an extremely high standard. Even if something were questionable, it wouldn't necessarily be an abuse, he noted. Number 0649 REPRESENTATIVE BERKOWITZ said, "Abuse of discretion is not only did they do the wrong thing, but they did it in the wrong way." CHAIRMAN GREEN agreed that is tough. Number 0659 REPRESENTATIVE PORTER suggested that a compromise would be proving it is against the best interests of the child, but by clear and convincing evidence. CHAIRMAN GREEN said he likes that one, because it is a fairly high standard but can at least be done. MS. WIBKER asked whether the proposal is, "The opposing party must prove by clear and convincing evidence that it is contrary to the best interest of the child." CHAIRMAN GREEN affirmed that. Number 0680 REPRESENTATIVE BERKOWITZ noted that they would already have a child in need of aid, which is why the department would have some form of custody. He expressed his belief that the standard the state uses on parents should be clear and convincing evidence. However, if the standard is going to be a preponderance of the evidence, he believes the state should be held to that same standard. CHAIRMAN GREEN responded that here, they are talking about a child in custody, and this is a matter of moving the child around. That is a little different from determining whether a child is in need of aid. He said he could see where if they lowered the standard for placement too much, there would be arguments about every move. Number 0716 REPRESENTATIVE ROKEBERG asked whether one of the most common instances is where the parent requests the child back but it doesn't work out, creating a yo-yo effect. MS. WIBKER answered that the most common move is from a foster parent calling and saying, "I want this child out of here." However, Representative Rokeberg is correct in that most contested hearings are because a parent has decided the child should be back with him or her, but the department is proposing that the child go elsewhere. She added that there is then a placement review hearing. Number 0762 MR. WEBB pointed out that if the department moved to return a child home, they have now given a foster parent status to object to that, so that the foster parent now has virtually the same rights to object to a return to the child's home that the parent has. REPRESENTATIVE PORTER responded, "At this stage, ... I think it's not improper to give some degree of deference to the professional position here, that's not a foster parent that is now more attached than they should be, and those kinds of things. So, clear and convincing that it's in the best interest of the child, I think, is a ...." REPRESENTATIVE BERKOWITZ said he sees the logic. Number 0807 REPRESENTATIVE PORTER made a motion to amend the portion of Amendment 5 dealing with page 35, lines 12 through 31, to read, toward the end, "Any party opposed to the proposed transfer may request a hearing and must prove, by clear and convincing evidence, that the transfer would be contrary to the best interests of the child." CHAIRMAN GREEN asked whether there was any objection. There being none, that amendment to Amendment 5 was adopted. REPRESENTATIVE PORTER noted that it would continue on, "A foster parent ...." CHAIRMAN GREEN asked about problems with inserting (s), as amended. Number 0858 MS. WIBKER said it is not as complicated as it looks. She explained, "If you go back to page 30, the current statute talks about court orders on page 30. And at the end of court orders, they stick in this stuff about moving children. And so, since we just adopted (s) as the part of the statute that would deal with transferring children, lines 21, after the semicolon, through lines 26 should be deleted. We just took care of that in another place." She said that section is taken care of in (s), which they had just created. REPRESENTATIVE ROKEBERG asked whether that includes the existing statute as well. MS. WIBKER replied, "Correct. The existing statute really mixes up a custody order and a transfer of placement; it puts them all together. ... And we just cleaned it up." Number 0916 MS. WIBKER addressed the next portion of Amendment 5, which read [original punctuation retained]: Page 36, lines 22-24, the added language should be deleted OR delete line 22 "and the right and responsibility to obtain legal representation for,." MS. WIBKER referred to the bold language on in the bill on page 36, lines 22 through 24, which read, ", and the right and responsibility to obtain legal representation for, and make decisions of legal or financial significance concerning, the child". She said these are things that generally the department would not have the responsibility to do. A court would decide if a child needed a GAL or an attorney, and a guardian or GAL would make decisions of legal or financial significance. CHAIRMAN GREEN noted that the amendment would take out all the bold language. Number 0956 MS. TORKELSON responded that they are okay with taking it out as a duty of the department, but not as a right of the parent. She said she doesn't know how Legislative Legal Services could work that. MS. WIBKER suggested moving it to the section on residual responsibilities. MS. TORKELSON referred to the findings in Section 27 and said they are trying to make this equal to the wording in the findings section, where they had put that parents have the right and responsibility to obtain legal representation for the child, as well as to protect, nurture, train, discipline the child, decide where and with whom the child shall live, and so forth. She suggested having a conceptual amendment. Number 1068 REPRESENTATIVE DYSON objected to taking it out, saying that if the child is in the state's custody and is heir to an estate, for instance, whoever has custody has a responsibility to prosecute that child's interests. Similarly, if a child gets charged with a crime or a tort, the child needs representation; Representative Dyson said he had this put in here because he believes the state has the responsibility to get representation for the child. REPRESENTATIVE BERKOWITZ commented, "In loco parentis, in the place of the parents." CHAIRMAN GREEN asked the wish of the committee. REPRESENTATIVE ROKEBERG said he would delete [the proposed changes relating to] page 36, lines 22 to 24, from the amendment. CHAIRMAN GREEN asked whether there was any objection to deleting that from Amendment 5. Hearing none, he announced that the bold language stays in. Number 1151 CHAIRMAN GREEN referred to the next line of Amendment 5, which read: Page 41, line 29 "take" should be "make" (typo). MS. WIBKER said it is a typographical error. It says "take reasonable efforts" but should be "make reasonable efforts". Number 1160 MS. WIBKER addressed the next proposed change in Amendment 5, which read: page 43, line 19 should read "may or shall upon request" disclose.... [Page 43, lines 19 and 20, read, "(b) A state or municipal agency or employee shall [MAY] disclose appropriate information regarding a case to".] MS. WIBKER told members the department is bound to keep things confidential, with a specified list of exceptions in statute. The committee substitute says "the department shall disclose," which turns an exception to confidentiality into a duty. They propose that it read, "may or shall upon request". That way, the department is allowed to give information about a child to these particular people, as exceptions to confidentiality, and if there is a request, the department must answer the request. Number 1208 REPRESENTATIVE DYSON responded, "We put the 'shall' in here intentionally." He told members a consistent complaint he has heard and dealt with personally is not getting necessary information to foster parents, including behavioral problems, occasionally medical problems, and certainly criminal activity. That is the reason it is put in the imperative. MS. TORKELSON added that Legislative Legal Services had explained to her that putting in "appropriate information" helps with confidentiality, because everything cannot be disclosed to everybody. Someone determines what is appropriate, and then each person to whom it is to be disclosed is "as may be necessary." This gives the department the decision about what is appropriate and necessary, and then the department would have to disclose that. Number 1287 REPRESENTATIVE DYSON said his [previous] amendment had put in "shall disclose" but allowed the department to decide what is appropriate or necessary. He stated the belief that the department has a lot of discretion here. REPRESENTATIVE PORTER asked where the "as necessary" is. MS. TORKELSON said it is in each one. For example, in (2) it says "a person or an agency requested by the department", and at the end of that it says, "as necessary to enable the provision of the consultation or services". She cited other examples, noting that what is necessary for a school may not be the same as for a foster parent. Number 1335 REPRESENTATIVE PORTER said information that isn't necessary for that purpose may not be deemed appropriate, then. MS. TORKELSON agreed, restating that if it is deemed appropriate and necessary, the department had better provide it to the person. REPRESENTATIVE DYSON requested that the department be allowed to speak to this, as they have a different opinion. REPRESENTATIVE ROKEBERG pointed out that "as may be necessary" is in existing law; for example, it is in (4) and (5) on page 44. Number 1363 MR. WEBB stated, "I think we've dealt pretty satisfactorily in other areas of the law, in terms of the ... information that foster parents require. We've mandated that the department provide that, in another section that we amended earlier. So, I think that's of a lesser concern." MR. WEBB then indicated the department does not object to providing information upon request, but is concerned with the language, "shall disclose appropriate information," as it is the department's discretion about what is appropriate. He explained, "We'll be constantly criticized for having exercised that discretion inappropriately. Somebody will conclude that we've not provided them with adequate information; we haven't sought them out and provided them with information. ... I think the language that is drafted in our amendment here requires that we do it upon request; it doesn't mandate that we go out and provide people with information they haven't asked for and don't want." MS. TORKELSON asked, if DFYS has the information, how a school is supposed to know what to request. She said in current law, it states that they may disclose information to a foster parent. She discussed an example where lack of disclosure by the department could have caused problems. Ms. Torkelson stated, "So, we're just saying, ... if it's appropriate and necessary, then you should disclose it." She added that she couldn't imagine a school not wanting information, for example, that DFYS believes appropriate and necessary in order to protect other children. Number 1508 REPRESENTATIVE ROKEBERG suggested that what had been described needs to be mandated, but this is a whole laundry list that will create a huge fiscal responsibility in the department. He suggested perhaps this could be redone so that information that needs to be appropriately transmitted by the department can be only in a certain sphere of information. REPRESENTATIVE DYSON responded that certainly the department will decide what is appropriate to be sent. REPRESENTATIVE ROKEBERG acknowledged the difference between information requested by a party, with the mandate to provide it, and information that needs to be transmitted. Number 1593 REPRESENTATIVE DYSON said they are dealing with eliminating the barriers to confidentiality. REPRESENTATIVE ROKEBERG agreed, but said one size doesn't necessarily fit all in this particular section. He asked whether he is on the right track. Number 1607 MS. TORKELSON said that is why the "as necessary" was added in each section, because Legislative Legal Services said what is necessary for one isn't necessary for another, and perhaps some confidentiality laws could be violated. Not everything should be disclosed to everyone, because there could be potential harm to the child or others. Number 1636 MR. WEBB suggested the practical effect of what the department is proposing here is to do exactly what he believes Representative Dyson is trying to get at, which is to give the department discretion to provide information that people need, but to make certain they give it to people when they request it from the department. He noted that foster parents are dealt with separately, and there is a long list of things the department must give them; he restated that they have already amended the bill to do that. Mr. Webb added, "I think practically we're ... within about that far of being in the same place." Number 1669 REPRESENTATIVE PORTER responded, "It's a close call, but I think, considering the past history, I would rather leave it the way it is. And then if it becomes a burdensome problem, come back and tell us about it." CHAIRMAN GREEN said that would be his choice, as well. REPRESENTATIVE ROKEBERG mentioned the possibility, as it moves along, of identifying information that really needs to be mandated with a "shall," leaving the rest as "may." Number 1700 CHAIRMAN GREEN made a motion to strike the portion of Amendment 5 relating to page 43, page 19; no objection was heard. CHAIRMAN GREEN briefly mentioned the next line of Amendment 5, which read: Page 45, lines 17-22, "minor" should be replaced with "child." CHAIRMAN GREEN moved on to the next proposed change in Amendment 5, which read: Page 48, line 11 should read: "...consistent attempts made during a reasonable time....." MS. WIBKER explained that it just needs to have "made" inserted. Number 1760 REPRESENTATIVE ROKEBERG referred to the next proposed change in Amendment 5, which read: Page 48, line 23 should read "may or shall upon request" disclose... REPRESENTATIVE ROKEBERG asked who they are trying to satisfy in Section 58 there. He noted it is the same language previously discussed. MS. WIBKER replied that it is the exact same issue, but with a juvenile delinquency case instead of a CINA case. REPRESENTATIVE PORTER made a motion to strike that from Amendment 5. CHAIRMAN GREEN asked whether there was any objection; no objection was heard. Number 1802 MS. WIBKER referred to the next proposed change in Amendment 5, which read: Page 50, lines 27 through page 51, line 18 should be replaced with: (e) A child may not be placed in a foster home or in the care of an agency or institution providing care for children if a relative by blood or marriage requests placement of the child in the relative home. However, the department may retain custody of the child and provide for its placement in the same manner as for other children if (1) the department makes a determination, supported by clear and convincing evidence, that placement of the child with the relative will result in physical or emotional damage. In making that determination.....de novo; or (2) the department determines that a member of the relative's household who is 16 years of age or older has a criminal record or was the perpetrator in a substantiated report of abuse under AS 47.17; or (3) the department disqualifies the relative home based on the results of a criminal background check from criminal justice information available under AS 12.62. The department must conduct a criminal background check of available criminal justice information received under AS 12.62. The department may conduct a fingerprint background check of a relative requesting placement of the the [sic] child. The department shall not place a child with any relative who does not meet the standards required for placement in foster care as defined in AS 47.35.022(a) and (b). For purposes of obtaining criminal justice information under this subsection, the department is a criminal justice agency conducting a criminal justice activity under AS 12.62. MS. WIBKER told members this section deals with criminal background checks on relatives, which are not required by federal law. She asked Representative Dyson to correct her if she was wrong, then said she believes they had agreed that the department would be required to do the initial criminal background check of local records on relatives, the kind of thing they would do for an emergency placement. However, doing a fingerprint FBI criminal background check on relatives would be permissive, at the department's discretion. MS. WIBKER explained, "And I believe the reason we decided to do that was because ... there is a requirement in statute that we use relatives unless there is clear and convincing evidence that placement with a relative would result in physical or emotional damage to the child. And the court does a de novo review of each one of those decisions. That's the current law, and we're not proposing to change that. But we're proposing, I guess, to add to the tools that the department can use to make a decision as to whether a relative is a good placement, is to allow the department to do APSIN [Alaska Public Safety Information Network] and the local available criminal background check, check for sex offender registration, things like that, and then, at the discretion of the department, do the fingerprint background check. There's some concern that this would have a chilling effect on relatives' stepping forward and taking care of children. And by the same token, we shouldn't be placing ... children with relatives if there's a danger there. So it's an attempt to balance those two priorities." Number 1926 REPRESENTATIVE BERKOWITZ said they are talking about physical or emotional damage. He asked whether the language they were using before wasn't physical or mental injury. REPRESENTATIVE PORTER asked why they had changed. MS. WIBKER said this is the existing law, but if they want to change it to be consistent, they could do that. She added, "Emotional damage is our definition of mental injury." REPRESENTATIVE BERKOWITZ said, "But we don't know what that is." Number 1965 REPRESENTATIVE PORTER asked whether there is a definition of emotional damage. MS. WIBKER said no. REPRESENTATIVE DYSON said that is why they had used "mental injury." MS. TORKELSON said "emotional harm" in the original version was a new term, with a new definition. "And we felt is was a little broad and could be construed, possibly, or abused, and so we preferred, as long as the mental injury met with federal standards, we just left it as is," she added. REPRESENTATIVE DYSON stated, "And Ms. Wibker is right in that we concur in this amendment." Number 2020 REPRESENTATIVE BERKOWITZ made a motion to substitute "mental injury" for "emotional damage" in this portion of Amendment 5. CHAIRMAN GREEN asked whether there was any objection; none was heard. He then asked whether there was any objection to substituting (e), as provided in Amendment 5, as amended. REPRESENTATIVE BERKOWITZ stated that he wants to ensure that Social Security numbers and fingerprints are not part of the public domain, but are just confidential records maintained by the department. Number 2080 MR. WEBB spoke to that, saying he had checked that day with one of the department's licensing staff. He told members, "And indeed, fingerprints and Social Security numbers that are attendant to the criminal history checks are indeed confidential, and not part of the public licensing file, with one exception, and that is on the foster home license application; they do give their Social Security number. They're aware that that's a part of the public file. The department has no objection to redacting that piece of information from the public portion of the file. So that should not be an issue." CHAIRMAN GREEN said, "You would maintain it, but it wouldn't be in the public portion of the file." MR. WEBB said it would be blacked out. CHAIRMAN GREEN suggested that would comply with both federal requirements and privacy requirements. Number 2133 CHAIRMAN GREEN addressed the next line of Amendment 5, which read: Page 51, lines 19-30 delete entirely. REPRESENTATIVE DYSON advised members, "Our Section 62 here, in the committee substitute, was a ... well-intended effort to get the perpetrator out of the house, if that was a possible solution, and leave the child in the home with the non-offending parent. And, as I remember, the department has basically said that that's always their intention if that's possible, and that ... they will do that, and do that under existing law; and the way we wrote this was cumbersome and not really kind of workable. And, of course, we had words in here like their getting a protective order from the court, ... and so on and so forth, that don't work." CHAIRMAN GREEN asked, "You have no objection, then, to this removal?" REPRESENTATIVE DYSON replied, "We don't know how to do what we want to do, so ... the answer to your question is yes." Number 2226 MS. WIBKER said she believes there is another section that basically lays out the same thing, under AS 47.35, where it talks about duties of the department in domestic violence cases. Number 2254 REPRESENTATIVE BERKOWITZ said he likes the intent; if there is one bad parent and one good parent, the child gets to stay with the good parent. He suggested working on language to allow that to happen, and offered to do that, perhaps later. He stated, "My experience in those sort of situations has been, ... particularly in the situation where one parent doesn't believe that the other parent did something wrong, you're not going to have complete compliance. But if there were some sort of provision for at least visitations for the bad parent, this might be workable." Number 2319 MS. WIBKER referred members to page 56, Section 72. She said, "It outlines the steps that you should take to keep the child with the non-offending parent, remove the offending parent." REPRESENTATIVE ROKEBERG asked whether that is just for domestic violence cases or would include a "CINA kid." MS. WIBKER replied, "It's a child that's a CINA kid because of domestic violence." REPRESENTATIVE ROKEBERG suggested Section 62 has a broader application. REPRESENTATIVE DYSON concurred. MS. WIBKER also concurred, adding that this is the current approach in all cases of child sexual abuse and domestic violence. REPRESENTATIVE ROKEBERG suggested it is a template. REPRESENTATIVE BERKOWITZ stated, "This is sort of hopscotching a little bit, but to maintain the intent of ... page 51, lines 19 through 30, on page 56, if the department determines in an investigation of abuse or neglect that a child is in danger, that a child is essentially someone under 47.10.011, the department shall take appropriate steps for the protection of the child. Appropriate steps includes all this other stuff. And to sort of screen out the domestic violence, so it's more inclusive of just the basic CINA concept ...?" MS. WIBKER replied, "You don't need to do that. If you want to, you can. But the current federal and state law that requires you to take steps to [ends mid-speech because of tape change]." TAPE 98-67, SIDE A Number 0006 REPRESENTATIVE BERKOWITZ asked whether that is in statute anywhere, then noted that it is for the domestic violence cases, but not for the sex offender cases or substance abuse cases. He suggested paralleling that language for the other instances. MS. WIBKER replied, "You're correct. It's specifically in statute for domestic violence, and that statute is the broad definition of domestic violence, which includes sexual abuse. You're correct that it's specifically in statute for those cases, not for other things. But it is ... required in other provisions of law, although not specific." REPRESENTATIVE BERKOWITZ asked, "Could you use, essentially, Section 72 to allow the good, non-drug-addicted parent a reasonable efforts situation?" MS. WIBKER answered that as written right now, no, because that is a specific statute on domestic violence. Number 0107 REPRESENTATIVE ROKEBERG said without some appropriate language to replace Section 62, he doesn't believe the bill will go anywhere. Whether needed statutorily or not, it will be needed for public relations throughout the entire state. Number 0152 REPRESENTATIVE BERKOWITZ offered a conceptual amendment, for when they come back to this, to have the drafters prepare something "that parallels the language that's in Section 72 that matches the other conduct." MS. WIBKER said one proposal would be, on page 51, line 22, to put a period after "with one parent". She suggested that it say a child may not be placed with an out-of-home care provider if the department determines that the child can remain safely at home with one parent or guardian. CHAIRMAN GREEN asked if she was proposing to drop the rest. TWO UNIDENTIFIED MALE SPEAKERS said yes. MS. WIBKER stated that the department has to do whatever it can do to avoid an out-of-home placement, and to make an in-home placement safe. REPRESENTATIVE BERKOWITZ said, "The parent or guardian." MS. WIBKER affirmed that. Number 0262 REPRESENTATIVE ROKEBERG asked about a reference to this section in the CINA jurisdiction section, on page 24. MS. WIBKER replied, "47.14 deals with placements of children." REPRESENTATIVE ROKEBERG responded, "So does 47.14.100 now. Could we put a reference in ... Section 31 to Section 62?" MS. WIBKER said, "You can." Number 0300 REPRESENTATIVE ROKEBERG noted that it would be a separate amendment, which he would make when it was appropriate. Number 0341 REPRESENTATIVE BERKOWITZ made a motion to delete from Amendment 5 the portion that says, "Page 51, lines 19-30 delete entirely." He indicated it was because they had just amended the bill. REPRESENTATIVE PORTER pointed out that it wasn't officially amended yet. REPRESENTATIVE BERKOWITZ started to make a motion to amend the bill, then noted there was still a motion relating to Amendment 5. REPRESENTATIVE ROKEBERG asked that he hold off, indicating they would get to it later. Number 0400 MS. WIBKER brought up the next proposed change in Amendment 5, which read: Page 59, lines 17-25, should read, "may issue a provisional foster home license on an emergency basis until the results of the fingerprint background check required under AS 47.35.017(b) are received by the department, provided the applicant meets the minimal requirements for emergency ......foster home. Delete lines 22 - 25 sentence. [sic] [The full sentence on page 59, lines 22 through 25, read: "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)."] MS. WIBKER said this is similar to, and basically subsumed in, what they just did. She stated, "The department's position is that this is redundant to what we just did, which is you require the department not remove a child if there is a way to keep a child at home safely with one parent; you do that, whatever that requires." Number 0474 MS. TORKELSON stated her understanding that Section 70 was automatically added by Legislative Legal Services through their revisor/drafter process. She said, "I think that's how it got in the bill in the first place, is because we added this removal of the perpetrator ... in Section 62. And so, by adding it there, they have to mess with this section. So if we take only a portion of this out, it will probably get, maybe, automatically changed." REPRESENTATIVE PORTER noted that they had taken the language out regarding injunctions. CHAIRMAN GREEN suggested leaving it up to the revisor, then, or perhaps making a note about it. MR. JARDELL told members, "My reading would be that you can take it out. You've taken it out on the other one." Number 0544 MS. WIBKER said, "And then, the only last thing is, if you'll recall, this deals with the problem of having to issue a provisional license to a foster home and then wait for the results of a fingerprint background check. Public Safety says that can be anywhere from six weeks to six months, and that's to the time the fingerprints get back to Public Safety, and not necessarily to the department. So, rather than a time limit, we just propose that the provisional license issue until the results of the fingerprints are back. And the reason that we proposed that was because we were concerned that a license would lapse, and that we would have to possibly be put in a position of removing a child. I believe that what Representative Dyson proposed were ... 90-days segments. But ... we need some fix, so that we don't have these placements lapse because fingerprints aren't back." Number 0612 REPRESENTATIVE ROKEBERG said he likes the department's language a little better, because it takes up less room in the statute books. MS. TORKELSON responded that this isn't a normal foster parent license; they are talking about an emergency basis. She suggested they might as well provide a regular license if it is going to take three-quarters of a year. By requiring an active check every 90 days, there would be an awareness that it is an emergency license. REPRESENTATIVE ROKEBERG asked, "Are we worried that the check will come back bad? Is that the point?" Number 0700 MS. WIBKER noted that they would have already done the local check, including courthouse records, APSIN, and the sex offender registration. She suggested the problem may be that these requests are a low priority for the FBI, with no guarantees as to time. REPRESENTATIVE BERKOWITZ said he would think, though, that in order to avoid civil liability for bad placements, the department would be rather insistent, or at least as thorough as possible, to ensure that foster homes are as well-researched as possible. He added, "My guess is that if you're negligent and place someone in a bad situation, you're liable." MS. WIBKER agreed, "We'll get sued." Number 0747 REPRESENTATIVE ROKEBERG asked how much administrative rigamarole is involved in issuing a temporary extension. MR. WEBB said there are two things about it. It is an extra burden; he doesn't know the specific amount of paperwork, but it requires tracking, filling out papers, and making sure it is in the payment system so payment gets made to the foster parent. The department's interest is in getting these completed as quickly as possible and making sure that, indeed, they have done everything they can, because they will be held liable if anything bad happens to a child in an emergency placement home. However, they are not able to get the fingerprint checks, which are beyond their control. "So, to force us to ... go back and run through extra steps of meaningless paperwork, based on something that's beyond our control, with no real value added, seems to be unnecessary," Mr. Webb concluded. Number 0832 REPRESENTATIVE ROKEBERG asked whether they now issue provisional licenses. MR. WEBB affirmed that. REPRESENTATIVE ROKEBERG inquired whether there has ever been a "negative" return on the fingerprints, or a bad experience that otherwise wouldn't have occurred had the department finished the background check. MR. WEBB replied, "I can't give you the specific numbers. I'm sure that there has been an instance in which we've gotten a background check at some point down the line. That happens on nonemergency licenses as well." Number 0875 REPRESENTATIVE DYSON stated, "This is not the end of the world. And I don't think that reviewing this every 90 days, and revisiting the decision, is an unbearable burden." He acknowledged it is a piece of paper that needs to be looked at, but suggested that if there needs to be a renewal because the information hasn't come back, it can be done in conjunction with regular visits that DFYS should be making anyway. Representative Dyson said he appreciates the department's desire to not have extra burden. But there are also a lot of things that have caused problems in the last few years because things have slipped. At the task force level, there had been continual testimony of, "We used to do this, and we drifted away from it." REPRESENTATIVE ROKEBERG asked whether this is just paperwork or actually protects children. REPRESENTATIVE DYSON indicated he believes that looking at it every 90 days will prevent that "drift," and that a requirement that somebody visit the home is not unreasonable. Number 0996 REPRESENTATIVE PORTER said a previous amendment removed the real obstacle of having to actually terminate a temporary placement because this wasn't back. This is paperwork, and he would rather have the 90-day checks. He said in addition, he doesn't know how they can pass an amendment that counteracts an amendment they just passed. Representative Porter made a motion to delete from Amendment 5 the portion addressing page 59, lines 17 - 25. CHAIRMAN GREEN asked whether there was any objection; none was heard. Number 1071 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 5, as amended. There being no objection, it was so ordered. REPRESENTATIVE BERKOWITZ said, "I move to make the motion that I'd made earlier regarding Section 62, the details which elude me at this moment." CHAIRMAN GREEN said, "That we stop with 'one parent' and add 'or guardian'. REPRESENTATIVE BERKOWITZ concurred. CHAIRMAN GREEN asked whether there was any objection. REPRESENTATIVE ROKEBERG added, "And delete the balance of the section." CHAIRMAN GREEN agreed. Hearing no objection, he indicated Amendment 6 was adopted. Number 1179 REPRESENTATIVE ROKEBERG made a motion to adopt a conceptual amendment, Amendment 7, that on page 24, line 26, after "AS 47.10.019", they add the phrase "and AS 47.14.100". He noted that they had just amended that in Section 62. CHAIRMAN GREEN asked whether there was any objection. There being none, Amendment 7 was adopted. Number 1289 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, told members he had two amendments, hand-marked as 7 and 8. CHAIRMAN GREEN noted that those would now be Amendments 8 and 9. MR. GUANELI told members there had been a fairly good discussion, at the bill's first hearing in this committee, of the provision on page 7 relating to endangering the welfare of a child in the second degree. He stated his understanding that Representative Berkowitz had expressed concern about having possession of a controlled substance be a trigger for this offense in caring for a child; Representative Porter had indicated he certainly wanted possessory offenses involving marijuana to stay; and Representative James had indicated she had concerns about children being in places where drugs are stored. Mr. Guaneli stated, "And so, what I have attempted to do, is try to - between these two amendments - create something of a compromise. And I hope it doesn't alienate everyone." Number 1395 MR. GUANELI first discussed Amendment 8, which read: Page 7, line 24 to page 8, line 3, DELETE and REPLACE with: Sec. 11.51.110. Endangering the welfare of a child in the second degree. (a) A person commits the offense of endangering the welfare of a child in the second degree if the person, while caring for a child under 10 years of age, (1) causes or allows the child to enter or remain in a dwelling or vehicle in which a controlled substance is stored in violation of AS 11.71; or (2) is impaired by an intoxicant, whether or not prescribed for the person under AS 17.30, and there is no third person present to care for the child who is at least 12 years of age and not impaired by an intoxicant. Page 8, lines 5-8, DELETE and REPLACE with ["lines 5-8 was later discovered to be in error; it was specified that it should read "lines 5-7"] "impaired" means that a person is unconscious or a person is physically or mentally affected so that the person does not have the ability to care for the basic safety or personal needs of a child with the caution characteristic of a sober person of ordinary prudence; Page 47, line 31: Insert "hazardous volatile material or substance" has the meaning given in AS 47.37.270; Page 48, line 2: Replace the word "inhalants" with "a hazardous volatile material or substance misused by inhaling its vapors" MR. GUANELI referred to the proposed changes to page 7 in Amendment 8. He pointed out that this is no longer limited to parents, guardians, or persons in that situation, because a variety of relatives or friends might care for children. The possessory offense is gone, which he said he would address later. He noted that in (a)(1), it says causes or allows the child to enter or remain in a dwelling or vehicle in which a controlled substance is stored in violation of our drug laws. REPRESENTATIVE ROKEBERG asked whether controlled substances are drugs only, not alcohol. MR. GUANELI affirmed that, saying AS 11.71 is drug laws; there is a long list of controlled substances, starting with heroin, cocaine, and so forth, and including prescription drugs that have abusive properties. If it is in violation of AS 11.71, it means a person has no prescription for it or anything like that. This is to prevent people from having illegal drugs in their homes where young children are present, with the idea that kids get into drugs. MR. GUANELI said the second subsection is similar to what there was before, broken into two subsections. He stated, "And the word used to be 'incapacitated'. It's now 'impaired', and there was some discussion of, I think, a preference for the use of the phrase 'impaired'. And the offense would be committed by being impaired by an intoxicant, whether or not it's prescribed for you, and there is no third person present to care for the child who is at least 12 years of age and not impaired by an intoxicant." MR. GUANELI referred to the proposed changes to page 8 in Amendment 8, again saying the definition of incapacitated has been changed to impaired. He said he had offered at the previous hearing to draft something comparable to the court instructions for being under the influence for drunk driving purposes; the language from those instructions is "with a caution characteristic of a sober person of ordinary prudence." Mr. Guaneli explained that he'd thought it would be helpful to courts to use the language they are familiar with in terms of drunk driving cases, in the definition of impaired. MR. GUANELI next discussed the proposed changes to pages 47 and 48 in Amendment 8. He said the crime is "impaired by an intoxicant." The definition of "intoxicant" on page 8 refers to a provision in Title 47 that says an intoxicant is any number of things: alcohol, drugs or an inhalant. The problem is that inhalant is not defined anywhere in that chapter. He said he had looked around for some way to deal with "inhalant." There happens to be a definition elsewhere in Title 47, called 'hazardous volatile material or substance,' which has a fairly detailed definition in current law. Mr. Guaneli stated, "And the phrase that is used in Title 47.37, which deals with people who are incapacitated by alcohol and other substances, is that you misuse a hazardous volatile material or substance. And I can pass around exactly what that is." [He handed out copies of AS 47.37.270.] Number 1600 MS. TORKELSON noted that people can get high on a number of things, including gas from pressurized whipping cream cans, markers and so forth. MR. GUANELI responded that in this definition of hazardous volatile material or substance, subsection (10) of the statute handed out, it says it is readily vaporizable, poses a threat, and includes but is not limited to gasoline, petroleum distillates, common household materials and substances whose containers bear notice warning that inhalation of vapors or gases may cause physical harm. He stated, "So I guess the answer to the question is if whipping cream or these other things have a notice saying 'don't inhale it; it would cause you harm,' that's something you shouldn't be doing. So, this is the amendment that, I think, addressed a number of the concerns that I heard about the endangering the welfare provision." Number 1679 MR. GUANELI said he would skip to Amendment 9, as he believes it may address part of Representative Porter's concern about wanting to do something about people who possess drugs while caring for a child. Amendment 9 read: Add a new section to the bill. * Sec. ___. AS 12.55.155(c)(23) is amended to read: (23) the defendant is convicted of an offense specified in AS 11.71 and (A) the offense involved the delivery of a controlled substance under circumstances manifesting an intent to distribute the substance as part of a commercial enterprise; or (B) at the time of the conduct resulting in the conviction, the defendant was caring for or assisting in the care of a child under 10 years of age; MR. GUANELI explained that it adds to the list of aggravating factors for sentencing purposes. An offense specified in AS 11.71 is a drug offense, covering everything from sale of heroin to minors to possession of marijuana. This would be guidance to the courts that among the conduct that makes a drug offense an aggravated offense is being convicted of any kind of drug offense while caring for, or assisting in the care of, a child. He suggested that would cover concerns he had heard about possession of marijuana. MR. GUANELI added that because it is an aggravating offense in the presumptive sentencing system, and because misdemeanor possession of marijuana doesn't strictly come under presumptive sentencing, it isn't something the court is mandated to aggravate the sentence for. However, it is among the things a prosecutor can point to, saying, "This is something you ought to consider as being an aggravated offense and, therefore, adjust the sentence accordingly." Mr. Guaneli said this is an attempt to reconcile the sometimes-conflicting views he had heard at the previous hearing. Number 1763 REPRESENTATIVE PORTER made a motion to adopt Amendment 8. CHAIRMAN GREEN pointed out that the change to page 8, lines 5-8, would delete the definition of intoxicant altogether. MR. GUANELI said that was not his intention. He agreed it should read lines 5-7. REPRESENTATIVE ROKEBERG noted that endangering the welfare of a child in the second degree is a violation. He asked what the punishment is. MR. GUANELI said no jail time and up to a $300 fine. No public defender would be appointed, and there would be no jury trial. It is simply a matter of identifying people who are careless in their care of children. REPRESENTATIVE ROKEBERG suggested a mere violation could turn into an aggravator. MR. GUANELI explained that the violation in endangering the welfare of a child has to do directly with caring for children and doing any one of these other things. The aggravating factor in the additional amendment has to do with committing any type of drug offense, whether it is possession, sale, growing marijuana, et cetera. REPRESENTATIVE BERKOWITZ said the aggravator only applies to felonies. Endangering the welfare of a child in the second degree is a misdemeanor. MR. GUANELI said it also states that a person is convicted of a offense specified in AS 11.71, a drug offense. REPRESENTATIVE ROKEBERG acknowledged he had misread it. Number 1889 REPRESENTATIVE BERKOWITZ said his own concern with endangering the welfare of a child in the second degree is the phrase, "causes or allows a child to enter or remain in a dwelling." There is no requirement of knowledge. MR. GUANELI responded, "The fact that the dwelling or vehicle contains a controlled substance, the state would have to prove that the person is reckless as to that circumstance. This would be a circumstance of the offense, and there's other statutes that say when you have a circumstance specified in the law, the state has to prove that, that the person is reckless. In other words, they have to be aware of, and consciously disregard, a risk that ... the drugs are there. And I think that's appropriate in this circumstance, because ... if we were required to prove that someone in fact knew that there were drugs, what we'd get is, 'Oh well, I sort of suspected my husband's been selling drugs and he's got them in the back room, but he didn't tell me, and I didn't know for sure.' And I think that ... as long as we can prove that they are reckless as to the fact of drugs, in most cases, it's going to be easy. They're going to be there. There's going to be a marijuana growing in the bathroom; it's going to be on the table. But that's the way that would be interpreted." Number 1946 REPRESENTATIVE BERKOWITZ responded, "It's also going to be situations where, 'I know my friend smokes dope, and I bring my kid over to his house just for a social visit, and we leave.' I mean, I know he's got dope in the house; it has nothing to do with the visit." MR. GUANELI said this offense would technically apply in that case. Number 1974 REPRESENTATIVE PORTER renewed his motion to adopt Amendment 8, with the amendment that was made. There being no objection, it was so ordered. Number 1980 REPRESENTATIVE PORTER made a motion to adopt Amendment 9, discussed previously. There being no objection, it was so ordered. Number 2004 REPRESENTATIVE BERKOWITZ offered Amendment 10, which read: Page 6, line 4, following "genitals": Delete "to another person" Page 6, line 5, following "have" Delete "on that person" REPRESENTATIVE BERKOWITZ explained that he had prosecuted a case once where someone was masturbating in front of the federal building, and it was clear that other people had been observing that person. After losing the case, Representative Berkowitz was told by the jury that because he hadn't shown that this act was directed at a given individual, he hadn't proven the elements. "And they were right," he added. MR. GUANELI said there is merit in that point about the specific elements. REPRESENTATIVE PORTER asked about saying something like "to public view." REPRESENTATIVE BERKOWITZ replied that it is caught up because it is with reckless disregard for the offensive, insulting or frightening effect it could have. He mentioned people doing things in their own rooms or own homes. REPRESENTATIVE PORTER said this is supposed to be an intentional act. He stated, "And I get along with reckless disregard for the natural and probable result of the act, but that doesn't happen out in the woods. If you're taking a whiz and Betty Lou and her kid come by, and there's nobody else within 50 miles, and ... lo and behold, you know, your language says, basically, that I should have expected Betty Lou and her kid." Number 2130 REPRESENTATIVE BERKOWITZ asked about the wording, "that act might have on another person." REPRESENTATIVE PORTER said he would go for that. CHAIRMAN GREEN said, "And we'd still take it out of line 4." REPRESENTATIVE BERKOWITZ agreed. REPRESENTATIVE PORTER inquired about replacing it with something. CHAIRMAN GREEN questioned whether they would need to. REPRESENTATIVE PORTER said, "No, because if I'm intentionally trying to hide, I have committed the offense ...." CHAIRMAN GREEN disagreed, saying it is not reckless disregard if someone is trying to hide. REPRESENTATIVE PORTER stated, "It just says if I have intentionally exposed my genitals ...." CHAIRMAN GREEN added, "With reckless disregard." MR. GUANELI suggested the phrase, "in the presence of other persons." CHAIRMAN GREEN said that wouldn't help in the woods. REPRESENTATIVE PORTER disagreed, saying, "That helps your situation, and that helps my problem." REPRESENTATIVE ROKEBERG commented that it is "the window thing." MR. GUANELI then suggested, "in the presence of another person," rather than making it plural. He added, "So, scratch the word 'to' and 'in the presence of'." REPRESENTATIVE BERKOWITZ commented that he'd been waiting for this for six years. [There was laughter.] Number 2200 CHAIRMAN GREEN, hearing no objection, indicated that was Amendment 10. Number 2220 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 11, his own handwritten amendment, which read: p.8 line 31 Insert: (after "16,") whose death has been caused by any of the conditions described in AS 47.10.014 or AS 47.10.015, REPRESENTATIVE BERKOWITZ explained, "I'm not excusing manslaughter, and I'll put all those caveats out here, but this whole bill addresses child abuse and child neglect. And rather than open up the entire minimum sentence for manslaughter, for victims under the age of 16 - which would include victims who got caught up in drunk drivings, it would include accidental shootings, it would include all of the sort of tragic deaths that happen - I want to ensure that there's some causality with what we're trying to do in this bill." He noted that the sections he is talking about relate to negligence and physical harm, particularly by the parent, guardian or custodian of a child, and there seems to be a causal relationship between the added penalty and the amendment. CHAIRMAN GREEN said he didn't see anything wrong with that. He asked whether there was any objection. REPRESENTATIVE ROKEBERG asked what AS 47.10.014 and AS 47.10.015 are. REPRESENTATIVE BERKOWITZ said they are neglect and physical harm of children, defined on page 27. Number 2291 MR. GUANELI told members he and Representative Berkowitz had discussed this. In general, he himself doesn't have much of a problem with this as a concept. However, by referencing 47.10.015, physical harm, among the acts described, it strikes him that they are excluding a shaken baby syndrome caused by a boyfriend, grandparent or someone else. REPRESENTATIVE BERKOWITZ said that would seem to be the custodian. MR. GUANELI mentioned that Senator Halford's bill, SB 218, deals with all of the homicide offenses covered in this bill, and he recalled the question asked at the previous hearing about what happens if both bills pass but there is some conflict. He said one alternative, to speed this along, and if they think Senator Halford's bill will move through the House, is to delete the homicide provisions from this bill and take up that question in the context of that bill. He noted that it was 11 p.m. and that he had just seen this language. REPRESENTATIVE PORTER suggested they leave it in here, and if the other bill gets over and it is included, they can take this out in the Senate. REPRESENTATIVE ROKEBERG noted that this has a House Finance Committee referral, as well. Number 2387 MR. GUANELI said in that case, he would prefer language on page 3 of the bill, at line 14, which is in the second-degree murder statutes and which he believes addresses Representative Berkowitz' concern. That language says, "a person knowingly engages in conduct directed toward a child under the age of 16". That would be shaking a baby, or not providing food or some kind of care, rather than driving down the road drunk and happening to "hit a car with children." REPRESENTATIVE BERKOWITZ said that is fine by him. Number 2445 MR. GUANELI then suggested the language of the amendment should read: On page 8, lines 30 and 31, it ought to read, "For manslaughter, where the conduct was directed towards a child under the age of 16, seven years;" TAPE 98-67, SIDE B Number 0006 [A small portion of the discussion is missing because of the tape change. However, the language provided by the committee aide to Legislative Legal Services following the hearing read: "when the conduct was knowingly directed toward a child under the age of 16." Missing on tape is the motion to adopt Amendment 11.] REPRESENTATIVE PORTER noted the friendly amendment to Amendment 11. CHAIRMAN GREEN asked whether there was any objection; none was heard. Number 0039 REPRESENTATIVE BERKOWITZ next offered Amendment 12, on page 29, line 22, to delete "in the courtroom or in chambers". He explained that a judge might want to go to a home or some other setting. MS. WIBKER said she had never had a judge do that. REPRESENTATIVE ROKEBERG asked whether they should say, "as specified or selected by the judge." CHAIRMAN GREEN asked whether dropping that causes any problem. MS. WIBKER said she doesn't think it changes anything, as the courts have tremendous flexibility in conducting children's proceedings. CHAIRMAN GREEN asked whether there was any objection to Amendment 12. Hearing none, he announced they would move on to the next amendment. Number 0095 CHAIRMAN GREEN noted that Representative Berkowitz had indicated earlier that he wanted some kind of notice to family members, at the top of that page. Number 0126 REPRESENTATIVE BERKOWITZ responded that it regards Section 34, notifying the family in some regard about the proceedings and the possibility of termination. He didn't have specific language, just a conceptual amendment that the family be notified. CHAIRMAN GREEN asked whether there was any objection to notification of the family. REPRESENTATIVE BERKOWITZ indicated the wish to include grandparents and step-parents. CHAIRMAN GREEN asked whether it could become a burden to try to figure out who all those people are. Number 0161 MS. WIBKER said they need to decide how they want social workers spending their time, whether it would be doing home visits, setting up rehabilitation plans and getting people into treatment or else sending out notice and so forth. REPRESENTATIVE PORTER said especially in this state, grandparents could be in Maine and might never have seen the child. CHAIRMAN GREEN said, "You don't want to make that amendment." REPRESENTATIVE BERKOWITZ responded, "I didn't; you brought it up, actually." [There was laughter.] Number 0183 REPRESENTATIVE BERKOWITZ next discussed a subject that would turn into Amendment 13. Noting that he had talked about this before with Ms. Wibker, he referred to page 40, lines 16 through 18, and read from (1)(A), which says, "(1) by clear and convincing evidence that (A) the child is a child in need of aid as described in AS 47.10.011". He said all that means to him is clear and convincing evidence that it is a CINA case, not clear and convincing evidence that any condition that made it a CINA case, such as that the parent abandoned the child, or any of the laundry list of conditions, exists; he believes it should be the latter. REPRESENTATIVE ROKEBERG noted that it is a preponderance in the CINA case. Number 0268 REPRESENTATIVE BERKOWITZ agreed, saying the problem is they wind up in situation where they could bootstrap a termination based on a preponderance, instead of based on clear and convincing evidence. He said, "I want to amend, 'by clear and convincing evidence [that] the child is a child in need of aid, as shown ....'" Number 0303 REPRESENTATIVE ROKEBERG suggested they would have to change the standard in that one section. MS. WIBKER disagreed. REPRESENTATIVE BERKOWITZ said at a termination hearing, not an adjudication, he wants to make sure the facts being used to terminate have been shown by clear and convincing evidence, not simply by a preponderance of the evidence. He explained, "I don't want the court to be able to reach back and say, 'Well, we showed by preponderance of the evidence at the adjudication that the kid had been abandoned.'" Number 0329 MS. WIBKER said, "For termination, it's clear and convincing. For adjudication, it's preponderance. And the burden on the state is to prove the facts by clear and convincing evidence that made the child a child in need of aid. That is, if the child is a child in need of aid because of abandonment, for termination you must prove that by clear and convincing evidence." REPRESENTATIVE BERKOWITZ responded, "But this language doesn't necessarily indicate that you have to show abandonment by 'clear and convincing.'" Number 0358 REPRESENTATIVE ROKEBERG proposed adding a reference in Section 31 that these must be raised to the clear and convincing standard to be applicable in the .088 termination section. REPRESENTATIVE BERKOWITZ referred to page 40, line 16. He stated, "It would be by clear and convincing evidence that the conditions described in AS 47.10.011, subsections (1) through (12), exist." MR. WEBB pointed out that they would have to prove all of (1) through (12), then. Number 0450 MS. WIBKER told members that what Representative Berkowitz desires is what is happening in the way the courts interpret this. She explained, "I can adjudicate by a preponderance that there's sexual abuse. If I want to terminate, I have to prove by clear and convincing evidence that the child is at risk of sexual abuse in the home. So, I have to prove the facts at a higher level, higher burden of proof. That is how it works in practice." REPRESENTATIVE ROKEBERG referred to page 40, line 17, and suggested it say, "a child in need of aid, as in each subsection described in ...." REPRESENTATIVE PORTER interjected, "Well, if you're going to do that, you just changed by a preponderance to clear and convincing on page 24, line 27, if that's what you want to do." REPRESENTATIVE BERKOWITZ disagreed, saying that page 24 is at the adjudication stage, which is the finding that there is a CINA case. When they move down the road to termination, he wants to make sure that the facts that led to the adjudication are shown again, to a clear and convincing standard, rather than to the preponderance standard. REPRESENTATIVE PORTER asked whether Representative Berkowitz cares that they are established by a preponderance. REPRESENTATIVE BERKOWITZ said no. Number 0539 REPRESENTATIVE ROKEBERG suggested on page 40, line 17, saying, "by clear and convincing evidence that (A) the child is a child in need of aid in one or more of the subsections in [AS] 47.10.011". MR. JARDELL told members, "If you took the language out of 47.10.011 that says if the court 'finds by a preponderance that the child has been subjected to', and you just take that language out and put it in here, and say, 'if the court finds by clear and convincing evidence that the child has been subjected to any of the provisions in 47.10.011', it would get you where you want to be." REPRESENTATIVE PORTER restated his opinion that they were already there. Number 0596 REPRESENTATIVE ROKEBERG offered the above as a conceptual amendment. CHAIRMAN GREEN, hearing no objection, labeled that as Amendment 13. Number 0638 MR. JARDELL referred to page 17, Section 21, relating to presumptions of custody. He advised members that this deals with subject matter that isn't particularly relevant to the rest of the bill: custody determinations if there were prior domestic violence proceedings. Mr. Jardell said it may be a good idea, but they are not hearing from the family law bar, nor have they heard anybody speak to this except for Blair McCune of the Public Defender Agency, who had inquired why this was tacked onto the bill. Mr. Jardell agreed this is not the place to address these provisions and suggested they should be in another bill in order to determine whether these presumptions are a good idea or not. Number 0702 REPRESENTATIVE PORTER asked why he doesn't believe this is relevant to the bill. MR. JARDELL replied that this would be in any divorce action or custody dispute from the courts, but not foster care. REPRESENTATIVE PORTER noted that it involves a domestic violence proceeding. MR. JARDELL agreed but said it is not a CINA case issue. Rather, it is an issue in making a custody decision, in or after a divorce proceeding; if there is domestic violence involved, then these presumptions kick in. "And it's just not consistent with the subject matter of the bill, and I think you could probably have three or four hours of discussions on it, if it was in a separate bill, by itself," he concluded. CHAIRMAN GREEN asked whether this is covered elsewhere in law. MR. JARDELL replied that he doesn't think these actual presumptions are covered in law, and it may be a great idea to do so. Nor is he sure it is covered under the title, although that is quite long. But it is strange to see AS 25.20 in this bill, dealing with custody determinations and proceedings that aren't CINA cases and that aren't regulated by DFYS. MS. WIBKER said she didn't have a position on this. Number 0793 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, disagreed with Mr. Jardell's position, saying this was amended in the House Health, Education and Social Services Committee after some discussion. She said she believes it very much has to do with the protection of children, if one accepts the premise that domestic violence in a family situation is harmful to children, and it increases the risk to them of child abuse. Number 0822 REPRESENTATIVE ROKEBERG asked whether this had been in another bill at one time. MS. ANDREEN restated that this was amended in the previous committee, adding that it hadn't been introduced elsewhere. MR. JARDELL explained that Chapter 25 is child support and custody provisions. He reiterated that it may be a very good idea, but most of the testimony has been on DFYS aspects of the bill. He expressed concern that those most affected by it, including family lawyers and family bar members, may not be aware of it. He said it is only in Section 21, plus the following four or five pages of conforming language. REPRESENTATIVE PORTER stated his belief that it fits within the title, which includes child abuse and neglect, as this is a presumption of neglect. Number 0914 MR. JARDELL indicated there are issues, whether or not substantiated, about how much deference judges have in domestic violence cases. He said he doesn't take away from the real need of stopping domestic violence, but this lends itself to some abusive situations of the law when someone goes after custody. He believes automatic presumption of custody should be looked into on its own. REPRESENTATIVE ROKEBERG read from page 17, beginning at line 12, "If the court finds in a proceeding involving child custody that domestic violence has occurred, rebuttable presumptions arise". He noted that it doesn't say a crime of domestic violence, then asked, "That's a pretty easy go, isn't it?" Number 0978 MR. JARDELL replied, "My first impression would be that it is, that if you called and made a complaint, that there was a domestic violence charge, even if it wasn't prosecuted, using that in a civil matter - that it has occurred - you have a burden of preponderance of the evidence." He restated that it is something that deserves some attention and looking into. REPRESENTATIVE PORTER responded that the presumption is rebuttable. If two people divorce, and if at some time past one was involved in domestic violence against the other, that could be brought up as a presumption that custody would not be a good idea for the offending parent. He suggested if the offending parent had gone through awareness training and so forth, it would not be that difficult to overcome the presumption. MR. JARDELL said in that case, it may not be. Furthermore, right now judges look to the best interests of children in placement, and will not place a child where they believe the child will be harmed. He said he couldn't speak to the need for this, or its practical effects, but this deals with a matter that wouldn't be under DFYS, although it relates to children. He restated his opinion that it is not necessarily consistent with the rest of the bill in subject matter and would be better approached in another bill. He acknowledged that it is for the committee to decide. CHAIRMAN GREEN asked Ms. Torkelson whether she remembers the discussion about this in the House Health and Social Services Committee. Number 1120 MS. TORKELSON replied, "Jayne Andreen came to our office and requested it be put in. [Representative Dyson] and I both looked at it. It sounded good. ... We were a vehicle for them. And we don't really have a position one way or the other, as far as taking it out now, leaving it in; that would be the will of the committee. It sounded good to us at the time, and it was discussed, and it made sense." Number 1153 CHAIRMAN GREEN asked Ms. Andreen, "The fact that this may be a good idea, is it because this bill is available? Would there be another opportunity to put this in law through a different vehicle?" MS. ANDREEN said she is not aware of another vehicle this would fit into. One reason the council felt this is a good vehicle is because it focuses on the protection of children. She referred to the rebuttable presumption, which she said comes out of the model code put together by the National Council of Juvenile and Family Court Judges, and which says this is important in domestic violence cases as a way to further protect children. Ms. Andreen pointed out that Legislative Legal Services had looked at it for single- subject requirements. She indicated she is pleased that only one group has come forward to say they don't know whether it belongs here, and she said it has already gone through that test. MS. ANDREEN continued, saying what is important is that a whole court process has to take place, including a determination that domestic violence occurred. She stated, "Right now, what happens in the nonoffending parent - who most often has been threatened with loss of the children or injury to the children or the nonoffending parent if they object in any way to anything that the batterer wants to have happen - has to prove to the court that it's not in the best interests of the child to have contact or to be given custody to the batterer. This, in our minds, merely shifts that focus to, 'It's up to that batterer, that proven offender, to say, "No, it is okay; I have been through the treatment" or "I have done this" or "I have done that" or "It occurred ten years ago and nothing has happened since then,"' which we think is a more appropriate way to approach it." Number 1277 REPRESENTATIVE DYSON told members that his sense of the House Finance Committee is that they are into stripping extraneous things from bills. He said Senate members have told him they have a similar predisposition. He suggested this committee could pass the bill out with some confidence that the appropriateness of these pieces in the bill would be addressed on the Senate side. REPRESENTATIVE BERKOWITZ asked what the inspiration was for the language in these sections. MS. ANDREEN replied that it came in part from the language in the model code. In addition, this language was originally in the Governor's domestic violence bill in 1996. Number 1329 REPRESENTATIVE BERKOWITZ asked what deviations there are from the model code. MS. ANDREEN said she hadn't brought that with her, but as she recalls, this goes into more detail in terms of laying out what would be looked at. REPRESENTATIVE PORTER said it had been discussed quite a bit in the previous committee, of which he is a member; he was satisfied that it was generally topical, and he felt comfortable leaving it in. Number 1367 REPRESENTATIVE BERKOWITZ asked whether there had been adverse testimony in the previous committee. CHAIRMAN GREEN said he didn't recall any about applicability. Number 1415 MS. TORKELSON replied that a lot of amendments presented in the House Health, Education and Social Services Committee were not given much time beforehand for study by groups. The Office of Public Advocacy (OPA) had indicated uncertainty about the rebuttable presumption, and Ms. Torkelson had suggested they get together with Ms. Andreen's office, then come back with a solution. Ms. Andreen had told her OPA is okay with this wording, to Ms. Torkelson's understanding. Number 1489 REPRESENTATIVE BERKOWITZ asked Ms. Andreen whom she had talked to at OPA. MS. ANDREEN said it was Barbara Malchick, who had told Ms. Andreen that OPA's one concern was whether it fit here. When asked whether OPA had concerns or problems with the content, Ms. Malchick had said no. REPRESENTATIVE BERKOWITZ said that is good enough for him. Number 1519 REPRESENTATIVE ROKEBERG referred to an unspecified letter in committee packets, which he described as lucid and clear, and which made some interesting points. He read as follows: "These sections, 21 to 25, need to be in an independent bill or combined into House Bill 307, Section 3. These sections are not part of any federal law or regulation. ... The custody issues involving marriage or a relationship or similar to a marriage really have no place in a child protection bill. The CRC, this organization, fully agrees with the rebuttable presumption in custody hearings. ... To date, 29 states have adopted some form of presumed joint custody. (Indisc.) local chapter says in presumed joint hearings and in interim custody decisions, the decision maker shall presume that both parents are equally good parents .... When invoking a rebuttable presumption, the clear and convincing evidence standard of proof shall apply in all cases where one parent is wanting to have sole custody for any reason." REPRESENTATIVE ROKEBERG said that seems to make some sense. He asked whether his understanding is correct that, as this bill is drafted, the rebuttable presumption would be for any kind of domestic violence offendee, even if there was a prayer for sole custody. Number 1607 MS. ANDREEN replied, "That's correct; I think I'm following you." REPRESENTATIVE ROKEBERG suggested that isn't a fair playing field; the 29 states that have a rebuttable presumption do so for joint custody, not sole custody. He said if there is no distinction made here on that, it is a question the committee should look at. If someone wants sole custody, there should be a higher standard. Number 1696 MS. ANDREEN referred to page 17, line 15. She said the rebuttable presumption applies but would not preclude the court's ability to order joint legal custody. REPRESENTATIVE ROKEBERG agreed it doesn't preclude it, but said it certainly affects the balance of the whole proceeding. REPRESENTATIVE BERKOWITZ told members he isn't utterly convinced of this. Because there is provision for sole, joint legal and joint physical custody, it allows a court to make a determination based on the best interests of the child. He agreed this section doesn't belong in here, but said it isn't too far afield from the subject matter. He offered to check and bring any problems to the attention of the House Finance Committee. He suggested this is as good as they could do at this late hour. CHAIRMAN GREEN commented, "Well, the only concern is that we complain about the Finance Committee rewriting bills, and then we kick bills up to them to get them rewritten." CHAIRMAN GREEN asked the wish of the committee on this issue. REPRESENTATIVE ROKEBERG suggested that the more there is in the bill, the less chance it has of making it. Number 1852 REPRESENTATIVE BERKOWITZ made a motion to move CSHB 375(HES), as amended, from committee with attached fiscal notes and individual recommendations. CHAIRMAN GREEN asked whether there was any objection. There being none, CSHB 375(JUD) moved from the House Judiciary Standing Committee. Number 1871 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, spoke up via teleconference from Anchorage. CHAIRMAN GREEN apologized, indicating he didn't know anyone was still listening. MR. McCUNE informed members he is concerned about adding the substantial risk of mental injury to the key subsection regarding CINA jurisdiction, starting on page 24, which he believes was added to subsection (8) [Section 31 of the bill], where it deals with domestic violence. He read the definition of mental injury, saying it means the injury to the emotional well-being or mental alacrity or psychological capacity of the child, as evidenced by an observable and substantial impairment of the child's ability to function in a developmentally appropriate manner. MR. McCUNE said that is a fairly broad definition, and if they are talking about specifics of that, they are casting a pretty broad net. He noted the department's concern with domestic violence and its effects. He said in the earlier versions of the bill, it was prima facie evidence and so on. His expressed a preference for "mental injury of the child," but indicated he preferred prima facie evidence rather than "risk or substantial risk of mental injury". CHAIRMAN GREEN asked whether Mr. McCune could provide anything in writing. Number 2043 MR. McCUNE replied that he had sent a fax the previous Monday to Mr. Jardell. MR. JARDELL said he didn't recall it. CHAIRMAN GREEN requested that Mr. McCune fax another copy, if possible. MR. McCUNE told members there is one more technical issue. He referred to subsection (10) [Section 31 of the bill], which says, "the parent, guardian, or custodian's ability to parent". He inquired whether the committee wants to take custodian out of there, on page 26, line 1, as a custodian would be someone like a babysitter. CHAIRMAN GREEN indicated he would try to telephone Mr. McCune about these issues. Number 2266 MR. McCUNE referred to page 27, line 16, which says [beginning on line 15], "(2) a negligent act or omission by a parent, guardian, or custodian creates a substantial risk of injury to the child." He stated, "In an earlier version of the bill, they went into detail on that, and the detail that's found ... on page 7, at the tops of section (2) and so on. ... That seems like a pretty broad definition when we say physical harm." CHAIRMAN GREEN noted that they have the same "custodian" language in there, as well, acknowledging it is fairly much throughout. He asked whether Mr. McCune's concern is that it is too broad. Number 2352 MR. McCUNE affirmed that, adding that subsection (1) is clear. He then advised members that he also has concerns about Section 43 on page 35, subsections (s) and (t), including concerns about its effect on a statute, which they are not amending here, that provides placement of the child with a relative. He stated, "What would happen is if the child's in foster care, and then the social worker or someone involved in the case says, 'Oh, there's a relative who's ready, willing and able to take care of the child,' that that would have a whole process and involve a lot of notice, when the relative is a preferred placement." CHAIRMAN GREEN asked what the problem is. MR. McCUNE explained that sometimes they aren't able to find relatives right away, and there could be a placement in a foster home. He said he hopes he is reading this right, but he is seeing 14 days' notice, for example. TAPE 98-68, SIDE A Number 0006 MR. McCUNE said he hadn't received all the amendments, although he had a few. CHAIRMAN GREEN suggested the best thing would be to provide Mr. McCune a copy of CSHB 375(JUD), so that he wouldn't have to go through the amendments. He asked whether anyone else was waiting on teleconference, then concluded the hearing. [CSHB 375(JUD) had already been moved from committee.] ADJOURNMENT Number 0088 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 11:45 p.m.