Legislature(1995 - 1996)
02/21/1996 09:30 AM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE February 21, 1996 9:30 a.m. MEMBERS PRESENT Senator Lyda Green, Chairman Senator Loren Leman, Vice-Chairman Senator Mike Miller Senator Johnny Ellis Senator Judy Salo MEMBERS ABSENT All members present. COMMITTEE CALENDAR SENATE BILL NO. 156 "An Act requiring mandatory mediation of child custody disputes except in extraordinary circumstances; relating to modification of child custody or visitation rights; amending Alaska Rule of Civil Procedure 100; and providing for an effective date." SENATE BILL NO. 185 "An Act relating to immunization records for children under the age of seven." PREVIOUS SENATE COMMITTEE ACTION SB 156 - See Health, Education & Social Services minutes dated 9/21/95, 10/20/95. SB 185 - See Senate Health, Education & Social Services minutes dated 2/12/96, 2/14/96. WITNESS REGISTER Mike Tibbles, Staff Senator Green State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Discussed SB 156. Art Snowden, Administrative Director Alaska Court System 303 K Street Anchorage, Alaska 99501-2084 POSITION STATEMENT: Supported the premise of SB 156. Mary Anne Dearborn 308 G Street, #201 Anchorage, Alaska 99501 POSITION STATEMENT: Supported SB 156. Bill Cotton, Executive Director Alaska Judicial Council 1029 W 3rd Anchorage, Alaska 99501 POSITION STATEMENT: Urged the favorable consideration of SB 156. Diana Buffington Children's Rights Council PO Box 92309 Anchorage, Alaska 99509 POSITION STATEMENT: Stated that mediation is not occurring in Alaska. Carol Palmer, Advisory President Victims of Custody PO Box 2402 Palmer, Alaska 99645 POSITION STATEMENT: Offered to make a videotape. Diane Lo Russo PO Box 2216 Palmer, Alaska 99645 POSITION STATEMENT: Discussed concerns regarding mediation in cases with a history of domestic violence. Robert Shumaker PO Box 4290 Palmer, Alaska 99645 POSITION STATEMENT: Supported SB 156. Jayne Andreen, Executive Director Council on Domestic Violence & Sexual Assault Department of Public Safety PO Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Discussed concerns with SB 156. John Middaugh, MD Chief, Epidemiology Section Division of Public Health Department of Health & Social Services PO Box 240249 Anchorage, Alaska 99524-0249 POSITION STATEMENT: Discussed concerns with SB 185. Dr. Brad Gessner Maternal Child & Family Section Department of Health & Social Services 1231 Gambell Street Anchorage, Alaska 99501 POSITION STATEMENT: Discussed research which has demonstrated a relationship between SIDS and maternal smoking and SIDS and the child's sleep position. ACTION NARRATIVE TAPE 96-12, SIDE A SHESS - 2/21/96 SB 156 MANDATORY MEDIATION:CHILD CUSTODY ISSUES Number 001 CHAIRMAN GREEN called the Senate Health, Education and Social Services (HESS) Committee to order at 9:30 a.m. and introduced SB 156 as the first order of business. SENATOR MILLER moved to adopt the CSSB 156(HES), Lauterbach version K, in lieu of the original bill. SENATOR ELLIS objected for explanation purposes. MIKE TIBBLES, Staff to Senator Green, read the following statement: SB 156 was introduced to help families involved in child custody disputes resolve their differences through mediation rather than adjudication. Resolving issues before the courts is often very expensive, confrontational and competitive to the point where a parent will often do anything to "win." This all or nothing mentality can lead to decisions which are contrary to the best interest of the child. Mediation, however, leaves the decision making authority up to the parties involved. In order to win in mediation, the decision must be based upon the cooperation of both parties. Opening lines of communication are essential to achieving the goal of shared custody and responsibility, which are most often in the best interest of the children. During the interim the Senate HESS Committee held a public hearing on SB 156. While most participants were supportive of the concept of mediation, several concerns were raised as to the cost of the bill as written, the punitive nature, the practicality of its implementation and its effect upon families experiencing domestic violence. In an attempt to address these concerns, the sponsor of the legislation formed a citizens' work group to analyze the issues and propose a new draft to report back to this committee. This group included members from the Alaska Dispute Settlement Association, the ADR section of the AK Bar Association, the Supreme Court Committee on Mediation, AWAKE, Children's Rights Council, Victims of Custody, the Alaska Judicial Council, the Mat-Su Valley Women's Resource Center and Alaska Legal services. The product of the group's efforts resulted in the proposed committee substitute included in each of your packets. The premise behind this draft is that, to be effective, mediation should be a voluntary process and the role of the state should be to educate the public about mediation as an option already authorized under the law not to mandate it in every occurrence. The new draft will require the courts to order parties involved with a custody dispute to attend an educational presentation on mediation. This can be accomplished through viewing a video, listening to an audio tape, or receiving a vocal presentation either in person or on the phone. Mr. Tibbles offered to answer any questions. SENATOR ELLIS removed his objection. CHAIRMAN GREEN said that the CS has come a long way from the original bill. The meetings were very interesting. Number 069 ART SNOWDEN, Administrative Director of the Judicial Branch of Government, said the court system supported the premise of SB 156. However, the mandate created by the language "shall" does not leave any discretion to the judges. This lack of discretion would hurt the court system for many reasons: (1) In rural areas of Alaska, many people do not live near a court and these people file their divorce-custody pleas by mail. SB 156 does not excuse these people. (2) Some communities do not have mediators. (3) SB 156 does not excuse victims of domestic violence. Mr. Snowden noted that it is unclear as to whether Civil Rule 100 applies to mediation under this section. (4) Are those who have previously seen a video going to be required to do so again if they file a modification? What about those who sought mediation before the divorce? (5) What about the sick or disabled or those who cannot take time from work to view the video? (6) Professional mediators would not be excused from watching the video. (7) SB 156 does not address those persons whose first language is not English. (8) What about those who move out of Alaska? Number 118 Mr. Snowden mentioned that if there are not any copyrighted videos, a great deal of money would be needed in order to create the video. If there is a copyrighted video available for use, then a number of videos would need to be purchased since such videos could not be copied. He pointed out that most courtrooms do not have room to show the video; would people be required to drive to the nearest available courtroom showing the video? No fiscal note has been created because if the final language will determine the fiscal impact of the bill. With "may" the fiscal note could possibly be lower than $20,000 while "shall" would increase the cost significantly. Mr. Snowden assured the committee that judges want people to see the video and the Alaska Court System supports the concept of SB 156. The judges should be afforded the discretion to excuse people from attendance for the reasons previously stated. Number 157 SENATOR LEMAN related his experience in serving jury duty in which he was required to watch a video discussing how to serve on the jury. The video was helpful. Senator Leman felt that it would not hurt people to see the video more than once. Moreover, airplane seatbelt demonstrations, fire drills, and many others are performed on a regular basis. Senator Leman felt that the process should be the least burdensome. ART SNOWDEN agreed with Senator Leman. In an area, such as Anchorage, viewing the video would occur in 99 percent of the cases. Anchorage is already showing a video in practically all cases. The court system has every intention of showing the video, however, making it mandatory in all cases creates a problem. He reiterated that judges should have some discretion in this area. Number 192 SENATOR LEMAN asked if there had been any discussion about this problem with the language. CHAIRMAN GREEN replied no. She explained that Civil Rule 100 addresses mediation. Chairman Green believed that very little mediation is recommended, requested or even discussed in the courtroom. SB 156 merely allows a conversation about mediation whether by telephone, video, or audio. This can be done. ART SNOWDEN reiterated that this would happen in most cases, but there are problems in various areas in Alaska which need to be addressed. Mr. Snowden suggested that the language could be changed from "shall" to "shall where practical" or "may excuse individually" in order to give the judge some discretion. CHAIRMAN GREEN asked how the strength of the language could be maintained with discretionary language. ART SNOWDEN explained that if a judge can individually excuse a person, that person must come into court in order to be excused which would mean mediation. Even with some narrow discretion to the judge, the bill still maintains its intent. Currently, there is a local order mandating that those involved in divorce cases view a video regarding the children. The court system does not have a problem with doing this, but it is not possible in every case and the language does not allow any discretion. Number 225 SENATOR SALO believed that the variety of circumstances in Alaska is dealt with in subsection (c) on page 1, lines 13-14 which specifies the manners in which the presentation could be achieved. She asked if adding "or written presentation" on line 14, page 1 would alleviate Mr. Snowden's concerns. ART SNOWDEN said that it would be helpful. That language would allow foreign language text for those needing such. CHAIRMAN GREEN informed the committee that Senator Salo's language had been discussed in the work group. The work group was concerned that it would be interpreted as a pamphlet and would be used first rather than as a last resort. SENATOR LEMAN believed that there is a manner in which to deal with these concerns. Perhaps, the language could indicate that the court could substitute, with good cause, the in-person educational presentation by mailing the appropriate materials. ART SNOWDEN pointed out that in communities that do not have mediators and cannot get mediators, this is not practicable. Mr. Snowden indicated that copyrighted videos would be expensive. Hopefully, the audio portion could be created by the court system. He said that the preferred method could be stated in the legislation, but the other rare situations in which the preferred method would be impractical could be allowed to provide other options. SENATOR LEMAN asked if the copyright laws for videos were similar to those of music copyrights. Would there be a fee for each time the video is shown? ART SNOWDEN clarified that the video cannot be duplicated, if more copies are needed then they must be purchased. There is not a fee for each time the video is shown. Mr. Snowden indicated that the court system could produce a audio tape for rural areas, however, there are no translations for certain terms in other Native languages and often there is no mediator available. Perhaps, it would be better to send the video regarding the children of divorce rather than on mediation. Number 294 SENATOR SALO offered the following amendment: page 1, line 14, delete "or"; insert a "," after "vocal presentation"; and insert "or where necessary written materials". SENATOR LEMAN suggested that Senator Salo's amendment be a conceptual amendment. The bill drafter could develop language to achieve the intent of Senator Salo's amendment. In response to Senator Salo, CHAIRMAN GREEN said that SB 156 goes to Senate Judiciary next and then Senate Finance. ART SNOWDEN appreciated the cooperation of the committee. SENATOR SALO clarified that her amendment was intended to address Chairman Green's concern that the material not become merely a pamphlet on mediation. Number 323 MARY ANNE DEARBORN, testifying from Anchorage, appreciated the committee's work on SB 156. She supported SB 156. In response to one of Mr. Snowden's comments, Ms. Dearborn believed that rural and bush communities do have mediators and conflict resolution is more prevalent in those communities than in more urban settings. Tribal court mediators and elders in community are well qualified and able to be deal with conflict. BILL COTTON, Executive Director of the Alaska Judicial Council, explained that one of the Council's responsibilities is to research ways in which the court system can do its job better and cheaper. Mediation and SB 156 are good steps in that direction. He urged the committee to favorably consider SB 156. There are mediation videos and tapes on the market that are not expensive. Mr. Cotton suggested that attorney's could also purchase these videos and make them available for their clients. Furthermore, Blockbuster has public service videos such as these for rent. The Council offered to work with the court system to buy videos. DIANA BUFFINGTON, Children's Rights Council, disagreed with Mr. Snowden. Ms. Buffington informed the committee that two of her clients were recently denied court order mediation because the judge felt that it was a waste of time. Mediation is not being widely used in Alaska courts; currently, Alaska ranks 50 nationwide in the use of mediation. Ms. Buffington said that bush communities have poor education and written communication would not be helpful in these areas. The Children's Rights Council is willing to provide free weekend programs in the major communities as well as some of the bush communities. Number 371 CAROL PALMER, Advisory President of Victims of Custody, agreed with Ms. Dearborn regarding the ability of the Tribal Council to act as mediators. Victims of Custody is in the process of making a brochure. Ms. Palmer offered to make a videotape. She informed the committee that she had seen a videotape entitled, Mediation: It's Up to You which was suggested to be used in the courts. DIANE LO RUSSO, testifying from Palmer, informed the committee that she had been working with domestic violence victims for 10 years. She expressed concern that there is no language in SB 156 which addresses the danger of mediation in cases where domestic violence is present in the relationship. She echoed Mr. Snowden's consideration of Civil Rule 100. The National Battered Women's Law Project and the National Association of Women and Family Law have produced information cautioning the use of mediation in such cases. She asked what type of qualifications were necessary to become a mediator in Alaska. Not so long ago, anyone could call themself a mediator. CHAIRMAN GREEN said that SB 156 merely makes the video available to those involved in child custody disputes. DIANE LO RUSSO emphasized that most of the mediation information does not address nor caution those who have relationships with a history of domestic violence that mediation may not be the appropriate venue. Number 416 CHAIRMAN GREEN clarified that SB 156 makes the information available, the bill does not require confrontation. ROBERT SHUMAKER thanked the committee for their work on this bill. He was sorry that the bill was no longer mandatory. If the current system was working, this bill would not be up for consideration. He said that children should be the focus. He hoped that the mandatory aspect of this would return next year. He said that a skilled mediator would not allow domestic violence to be a problem. Mr. Shumaker supported the bill as well as making mediation mandatory. JAYNE ANDREEN, Executive Director of the Council on Domestic Violence & Sexual Assault, appreciated the committee's work. She expressed concern that there is no opportunity for the courts to exclude people from the education program when a history of domestic violence is present. Furthermore, the education does not address the dangers of mediation in domestic violence cases. Could cautions regarding domestic violence in the mediation education be added? Victims want to use the most non-threatening way to deal with their offender which leads to the attractiveness of mediation. Even with a skilled mediator, the imbalance of power still exists in the majority of cases. Number 456 SENATOR SALO did not believe that anyone would be harmed by education and information. Perhaps, the content of the education materials could address this domestic violence concern. She indicated that the council could work with the material in order to influence its content so as to address their concerns. Senator Salo hoped that Ms. Palmer and the Victims of Custody would share the development of mediation materials with the court system in order to receive suggestions on the content of the materials. CHAIRMAN GREEN informed the committee that the Victims of Custody focuses on the child support enforcement and non-custodial parents and the abuses that occur during the divorce, the court proceedings and afterwards. Domestic violence was not an issue until the citizen's work group met. She reiterated that viewing these materials is not harmful or threatening. JAYNE ADREEN explained that the victims want to end the abuse and a third party mediator is very enticing. She related her discussions with about a dozen victims who had voluntarily utilized mediation in child custody and support issues. After about six months to a year, most of these victims realized that the abuse had effected the proceedings and an equal process did not result. SENATOR SALO indicated that such a scenario could also happen in court. The mediation is not mandated. She reiterated that Ms. Adreen's concerns could be addressed in the materials. JAYNE ADREEN said that the council would be happy to work with the court system in ensuring that domestic violence concerns are addressed in the materials. SENATOR SALO agreed to her amendment being conceptual. Therefore, without any objection, the conceptual amendment was adopted. Number 509 SENATOR MILLER moved CSSB 156(HES) as amended out of committee with individual recommendations. Hearing no objection, it was so ordered. SHES - 2/21/96 SB 185 IMMUNIZATION RECORD UPON CHILD'S DEATH CHAIRMAN GREEN introduced SB 185 as the next order of business before the committee. DR. JOHN MIDDAUGH, Epidemiology Section of the Department of Health & Social Services, pointed out that SB 185 does not specify for what purpose the information would be collected. He assumed that the information would be collected in SIDS cases and other unexplained deaths of children which could be related to vaccinations in order to illuminate these potential connections. Dr. Middaugh expressed concern about the logistics of the bill as well as the science and value of collecting such information. Many studies reviewing the association of vaccinations with SIDS and unexplained deaths in children have been performed, particularly reviewing the relationship between the administration of DPT and SIDS. Those studies have demonstrated that there is no causal relationship between a child receiving a vaccination and subsequently dying of SIDS. The logistics of collecting this information is difficult and possibly even unworkable. Dr. Middaugh informed the committee that there are 11 different standard vaccines children receive 23 separate times in their first seven years. He pointed out that children move around and go to multiple providers. Also some of the information to be collected under SB 185 is not routinely recorded on a child's vaccination record. Therefore, the ability to collect the information is questionable. Even if the information could be collected, Dr. Middaugh questioned the scientific value of the information because it would not review other important considerations. Dr. Middaugh informed the committee that Dr. Gessner was present and could discuss some research being done with SIDS. Dr. Middaugh noted that work is being done to understand and improve the prevention activities. Number 557 DR. BRAD GESSNER, Maternal Child & Family Section of the Department of Health & Social Services, said that he was a pediatrician and an epidemiologist. He viewed the issue as mainly in children less than one year of age. The majority of children dying under the age of one die from prematurity and congenital anomalies which normally happens in the first 28 days of life. Generally, SIDS' deaths occur after that period, around the 90th day of life. Dr. Gessner agreed with Dr. Middaugh that there is no evidence in the scientific literature that there is a relationship between SIDS or unexplained infant deaths and vaccine delivery of any type. Current literature suggests that placing an infant on its back to sleep can reduce the SIDS rate. Also an increased SIDS rate has been found when smoking occurs during pregnancy and post-pregnancy. Dr. Gessner pointed out that the Infant Mortality Review Committee was established in order to review the causes of infant death in order to address SIDS in Alaska. SIDS rates in Alaska are higher than other states. Three years of data confirms that there is a relationship between infant deaths and maternal smoking and sleep position. Dr. Gessner stated that the data does not illustrate any relationship between infant deaths and vaccine delivery. SENATOR LEMAN asked if the information requested last time was available; the information regarding the number of deaths of children under seven which were unexplained. TAPE 96-12, SIDE B In response to Senator Leman, CHAIRMAN GREEN said that she had received some information, however it did not exactly answer the question. There is a list of the unknown causes of death, but there is not a list of the other causes of death of children under seven. She informed the committee that on average, 29 deaths annually were listed as resulting from SIDS and three deaths annually from unknown causes. Those numbers come from an average of 151 each year. SENATOR LEMAN said that he would review the information and be prepared to continue this discussion in the next committee of referral. Number 577 SENATOR LEMAN moved that SB 185 be moved out of committee with individual recommendations. Hearing no objection, it was so ordered. There being no further business before the committee, the meeting was adjourned at 10:17 a.m.