Legislature(1997 - 1998)
05/08/1998 02:45 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
May 8, 1998
2:45 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 7(JUD)
"An Act authorizing establishment of community dispute resolution
centers to foster the resolution of disputes between juvenile
offenders and their victims, and providing immunity from civil
suits for youth courts and for members of the boards of directors,
employees, volunteers, and members of youth courts."
- MOVED SCS CSHB 7(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 375(FIN) am(reengrossed)
"An Act relating to children-in-need-of-aid matters and
proceedings; relating to child abuse and neglect; relating to
kidnapping and the crime of endangering the welfare of a child;
relating to sentencing for certain crimes; relating to the state
medical examiner and reviews of child fatalities; relating to
modification of child support orders by the child support
enforcement agency; relating to access to, confidentiality of, and
release of certain information concerning 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; relating to the review of cases involving certain children
who are in the custody of the state; authorizing the establishment
of multidisciplinary child protection teams and relating to their
duties; relating to persons required to report suspected child
abuse or neglect; relating to foster care and foster parents;
relating to access to certain criminal justice information and
licensure of certain child care facilities; amending Rule 218,
Alaska Rules of Appellate Procedure; and amending Rules 3, 7, 10,
15, 18, 19, and 22, Alaska Child in Need of Aid Rules."
- MOVED SCS CSHB 375(JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
HB 7 - See Judiciary minutes dated 2/4/98, 3/4/98 and 3/6/98.
HB 375 - See Judiciary minutes dated 5/4/98 & 5/7/98.
WITNESS REGISTER
Ms. Susan Wibker, Assistant Attorney General
Department of Law
1031 W. 4th Ave,Ste. 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Presented HB 375
Representative Dyson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 375
Russell Webb, Deputy Commissioner
Department of Health & Social Services
PO Box 110601
Juneau, AK 99811-0601
POSITION STATEMENT: Presented HB 375
Lisa Torkelson, Aide to Representative Dyson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 375
Diana Buffington
Childrens' Rights Council of Alaska
Kodiak, AK 99615
POSITION STATEMENT: Comments on HB 375
ACTION NARRATIVE
TAPE 98-56, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:45 p.m. and announced that HB 7 was the first order of
business.
CSHB 7(JUD) - VICTIM/JUVENILE OFFENDER MEDIATION
SENATOR SEAN PARNELL moves that SCS for CSHB 7, Version P, dated 3-
6-98, be adopted as the working document.
CHAIRMAN TAYLOR states there being no objection, it is adopted. He
explains that the bill resolves and provides an immunity for those
people involved in making discretionary decisions in youth courts.
It will also involve a title change, and a resolution has been
prepared for that purpose.
SENATOR PARNELL moves to pass SCS for CSHB 7 as amended from
committee with individual recommendations.
There being no objection, CHAIRMAN TAYLOR moves SCSCS HB 7, version
P, from committee with individual recommendations.
CSHB 375(FIN) am - CRIMES AGAINST CHILDREN/FOSTER CARE
Number 042
CHAIRMAN TAYLOR states that today's meeting will be a markup
session on HB 375, which the committee heard yesterday. Several
people are on teleconference, all of whom have testified at one
time or another on this legislation. CHAIRMAN TAYLOR requests that
Representative Dyson explain what portions of the legislation are
specifically mandated by federal law.
REPRESENTATIVE FRED DYSON explains that the first change is to AS
47.10 and it requires that foster parents and relatives get notice
of all hearings and the opportunity to be heard. REPRESENTATIVE
DYSON states that Susan Wibker could reference the sections for the
committee.
SUSAN WIBKER, Assistant Attorney General, Department of Law (DOL),
states that federal law requires that only foster parents get
notice of every hearing, the opportunity to attend, and be allowed
to be heard. This is reflected in this bill on page 21, Section 21
which deals with the first hearing, and on page 22, Section 23
which references the prior statute making clear that foster parents
can come to subsequent hearings. It is referenced again on page
24, Section 26, making clear that foster parents can come to
permanency hearings. MS. WIBKER states permanency hearings may
occur more than once.
MS. WIBKER states the next federally required change is that in
every case where a child is removed from the home, a permanency
hearing occur 12 months after removal and every year thereafter.
The first reference to permanency hearings is Section 26, AS
47.10.08O(f) on page 24, and again on pages 25 and 26, Section 28,
AS47.10.08O(l). There are also specific findings that a judge needs
to make that have changed, on the list as Number 3. Findings
proposed here were written by the Childrens Court Master in
Anchorage to adopt the federal changes so judges make precisely the
new findings they need to make.
MS. WIBKER references Number 4; the health and safety of the child
must now be the paramount concern, in Section 31, page 28. She
states that change is made in state law.
REPRESENTATIVE DYSON states that this is significant, as it changes
the emphasis of current law which states the primary goal is the
reunification of the birth family, to the primary goal of the
health and safety of the child.
MS. WIBKER explains Number 5 as situations where the state is no
longer required to offer services to a family to prevent removal
and to return a child home. Federal law lists aggravated
circumstances and says the state has some flexibility in how to
define what's aggravated. If the state can prove the circumstances
to the satisfaction of a judge by a preponderance of the evidence,
the state is required within 30 days to have a permanent plan for
the child.
Number 149
MS. WIBKER explains in Section 33, page 29, a new 'reasonable
effort' section is added and puts into law this federal change that
says the state does not have to return every child home. Children
need a new permanent safe home in cases where there's been a
homicide of a child, felony assault, sexual abuse or abandonment,
torture, chronic abuse or neglect. The state's changes were added
in the House version and exceed the scope.
CHAIRMAN TAYLOR asks her to identify the House additions over and
above state law. He states that abandonment is a bothersome
addition in that the definition is somewhat broad.
MS. WIBKER responds that there is a new definition of abandonment
in this bill that tightens it up (reference bottom page 29, Section
33 (a), which is existing law). Language on page 30, line 11,
spells out the duties of the department and puts them in statute
but is not required to make this work. Sections B and C on page 30,
is required by federal law and required. An exception occurs at
line 25, in that the term "chronic mental injury," is defined in
Alaska statute. Language on page 31 through line 10 is federally
required. Language on page 31, lines 11-25, is a state change
added in the House, that is not in the original version. Language
on page 31, lines 26-30, is required by federal law. Language on
page 31, line 31 continuing through page 32, line 3 was added by
the House.
MS. WIBKER continues. On page 32, lines 4-6 are a state inserted
change that closely mirrors existing state statute on termination
of parental rights. On page 32, lines 7-13 are federally required
and explain how to calculate the amount of time a child has been
out of the home. On page 32, lines 14-16 are a federal requirement
mandating that the department do concurrent planning.
MS. WIBKER continues on to Number 6, stating there are changes in
the federal law in terminating parental rights beginning on page
33, line 15 (d)(1)-(3). Lines 26-29 are state changes. The lines
above line 26 on page 33 are federal changes. Line 15(d)(3) makes
a reference to a prior statute. According to lines 19-20, the
state must file a petition to terminate parental rights. Line 22
refers to "abandoned infant" which the state defines as younger
than six which relates to the finding that children younger than
six needing to attach and bond in the Findings Section. Line
15(d)(3) references another statute. The federal law requires that
a petition be filed to terminate when siblings of children have
been killed by a parent and felony level injuries of children by
the parent have occurred. Lines 26-29 are state changes. Language
from the bottom of page 33, line 30 through page 34, line 8
contains federally required changes. Language on page 34, lines 9-
13 is a federal requirement on how to calculate time.
MS. WIBKER clarifies for Senator Parnell that page 34, lines 1-8
are federal law, and describes situations where the department must
present the court with a compelling reason not to proceed to
termination.
MS. WIBKER continues to explain the bill markup. Page 34, lines 14-
17 contains a state change. Lines 18-20 are current state law.
Lines 22-28 are a federally required change relating to concurrent
planning. On page 34, lines 29-31 continuing to page 35, line 6
are state-imposed deadlines, or time lines.
MS. WIBKER moves on to Section 7 which she states has already been
discussed; it requires that states do concurrent planning for
children. She referenced those sections in the 'termination' part
and the 'reasonable effort' part.
MS. WIBKER explains that Number 8 is a requirement that states
offer family community-based support services, which used to be
called family preservation services, and are required to occur in
a community or neighborhood. They are time-limited, a federal
change, and found in the bill in the reasonable effort section on
the bottom of page 29 through line 11. In these situations the
department must make a reasonable effort to return a child home.
Terms are also in the definition section on pages 39 and 40.
MS. WIBKER states that Number 9 requires the state to give a
preference to kinship care with relatives. It was already in state
statute; the House added an extra duty on the state when it needs
to use relatives that requires the state to look into the criminal
background of the relative. Federal law encourages this, it is a
permissive federal change that is not required. She references
Section 49 beginning on page 43 and continuing to page 44 through
line 12.
MS. WIBKER explains that in Number 10, states are required to
conduct a thorough criminal background check on licensed facilities
that care for children, residential facilities, foster homes or a
relative that is licensed. She refers to page 50, line 8 through
page 53, line 16.
Number 11, according to MS. WIBKER, is the federal floor for a
state definition for child abuse and neglect: you can give more
protection to a child, not less. Based on a recent Supreme Court
decision, RJM (indisc), the state had to make changes for
compliance. Page 17, lines 13-29 are the amendments to meet the
federal requirements that state's address serious emotional harm
and the imminent risk of serious emotional harm. The House tightly
defined those. She refers to Page 17, lines 13-29.
In Number 12, states are required to have expedited procedures for
getting permanent placement for abandoned infants. This is in the
termination statute, page 33, lines 21-22. The state defines an
abandoned infant as a child younger than six.
Other changes in federal law didn't prompt changes in state law
because the state is already in compliance, either by regulation or
statute. There are also permissive federal changes the state may
or may not choose to make. MS. WIBKER draws the committee's
attention to one permissive change that would cost the state money
not to adopt, the medicaid statute on page 15, Section 15, lines
17-25. She reiterates that it's not required but it's costing the
state money not to adopt it. She identifies it as the
authorization of interstate compact on adoption and medical
assistance.
CHAIRMAN TAYLOR notes she stopped on Number 13, wherein states are
allowed to create child fatality review teams. MS. WIBKER
clarifies it's a permissive change that's not required. The review
teams are operating already, but putting it in statute overcomes
the confidentiality problem, allowing everyone to exchange
information in cases. Now they have to get releases and court
orders and use subpoenas.
Number 435
CHAIRMAN TAYLOR asks if that would be required when investigating
the homicide of a child. MS. WIBKER responds this is a review of
an investigation. CHAIRMAN TAYLOR states this is for management
purposes more than for investigation or criminal purposes. MS.
WIBKER responds this would provide a deeper look at deaths that may
be from natural causes or accidental, or may really be homicides
that need to be prosecuted. She refers to page 6, Section 8
through page 11, line 19.
Number 444
MS. WIBKER explains that if this is put in statute, there is a
federal requirement for public disclosure if you set up child
fatality review teams. She refers to page 10, lines 7-22.
SENATOR PARNELL asks if periodic issuance of public reports follows
requirements of federal law. MS. WIBKER responds there is a once
a year requirement. This is a loosening of a confidentiality
restriction but they must once a year issue a report, or release a
particular report on request.
SENATOR PARNELL asks if it would authorize compliance with federal
law. MS. WIBKER responds it requires the release of information
and issuance of a once a year report.
CHAIRMAN TAYLOR suggests language "shall at least once a year" or
"may, but no less than once a year." He states that the committee
likes the policy and thinks it's important and would like to see
the reports come out.
CHAIRMAN TAYLOR brings up Number 14, foster parents for temporary
stress relief. MS. WIBKER explains it's a permissive change.
Under existing law foster parents can only get respite care for
children with a disability or an emergency. This allows the state
to give respite care to foster parents for their 24 hours a day, 7
days a week care with no break. She refers to pages 42 and 43,
Section 48.
SENATOR PARNELL asks if the state already pays for respite care for
foster parents with physically or mentally handicapped children.
MS. WIBKER responds that is correct. The change is at line 28,
which opens it up for all foster kids. She explains the change is
intended to keep a child in one home longer so there aren't a lot
of moves and "burnout" of foster parents.
SENATOR PARNELL questions reimbursing foster parents for respite
care when they are already paid for their foster parenting. We're
providing day care assistance, essentially.
Number 520
SENATOR PARNELL asks if this should be a blanket wide-open policy
for all foster parents to have respite services. MS. WIBKER
clarifies it is intended for situations where burnout leads to
moving the kid out of the home. SENATOR PARNELL asks if it says
that, or if it says "every foster parent." She responds it says
"every."
MR. RUSSELL WEBB, Deputy Commissioner of Health and Social
Services, responds to the question. Current definition in state
law is restrictive and prevents us from offering respite care to
foster parents who may not be caring for a child who meets this
specific definition but does have some very special needs. This
would allow and expand our ability to determine special needs kids.
MR. WEBB clarifies for SENATOR PARNELL that it's not a mandate.
Number 538
CHAIRMAN TAYLOR describes what he considers a gross misuse of state
funds, under this provision as it existed. He cites the example of
Juneau Alliance for the Mentally Ill (JAMI) program that went
"belly up" after a woman took 8 or 10 children with disabilities
with her to Hawaii for 3 weeks at state expense, charging for
almost 20 hours a day. CHAIRMAN TAYLOR does not want to see
something like that occur under this proposed expanded definition.
MS. WIBKER explains the intent is to decrease the number of moves
of kids once they're in custody.
CHAIRMAN TAYLOR brings up multi disciplinary teams.
MS. WIBKER states it's a permissive federal change, encouraging
states to use teams to increase efficiency of investigations.
Refers to Page 45, Section 54, line 28 to Page 47 through line 14.
The intent is to create more accurate and efficient investigations.
Number 566
CHAIRMAN TAYLOR asks, since teams are operating, if additional
state authorization is needed for the teams to operate.
REPRESENTATIVE DYSON explains the task force revealed that agency
people were meeting but not exchanging information. Feels if it's
put into law, will institutionalize this type of cooperation.
Teams get together monthly to exchange information. REPRESENTATIVE
DYSON asks Ms. Wibker if putting it into law will also eliminate
the confidentiality problems that kept the exchange from happening.
MS. WIBKER responds that is correct.
Number 580
CHAIRMAN TAYLOR states that was his main concern - the
confidentiality barrier. Feels it's very essential to have
something in state law allowing the sharing of information.
REPRESENTATIVE DYSON mentions testimony heard yesterday from people
interested in evidence being gathered from videotaping.
Tape 98-56, SIDE B
Number 001
REPRESENTATIVE DYSON asks if this bill helps that process, is there
more that we could or should do?
MS. WIBKER responds this sets up a team to address needs identified
in a particular community, it's pretty flexible. If a team felt
there wasn't enough coordination between law enforcement and DFYS,
or not enough cases were being prosecuted, the team through its own
protocols and agenda can address that.
CHAIRMAN TAYLOR states that the committee has tried to put it in
statute several times but every time this department (DHSS) fights
us on it. Until we started using videotaping, we were losing 50%
of the DWI cases that went to court. Now, with videotaping you
lose 5-7% of the cases that go to court. So many cases of sexually
abused children in DFYS - about 60% - are dismissed because of a
"lousy job of collecting evidence" and nobody wants to be using
video equipment because they may be held accountable. Cost of a
video camera is insignificant today. Every time SENATOR MILLER and
I want to put this into law, we get a $8-10 million fiscal note out
of this department and resistance. "Now I'm incredulous" that
someone is actually doing it in Anchorage, and now we should try it
across the state.
MS. WIBKER clarifies that it is not the social worker doing the
interview and taping it, the social worker defers to law
enforcement.
CHAIRMAN TAYLOR states he'd like to tighten up language to "thou
shalt audio or videotape the child."
Number 536
MR. WEBB states the effort is to use a coordinated approach as
frequently as possible statewide, and coordinate interviews so the
child is interviewed the fewest times possible. Answering
Representative Dyson's question, this allows us to do much better
coordination statewide and establish multi-disciplinary teams
statewide, which the department supports.
CHAIRMAN TAYLOR states that as a judge he had to force people to do
these things.
MR. WEBB responds that he is correct, it resolves confidentiality
issues and coordinates people working together.
REPRESENTATIVE DYSON explains that this ends the discussion of the
sections that are federally required.
CHAIRMAN TAYLOR asks if the rest of the bill contains provisions
put in by the House. MS. WIBKER responds that some were in the
original bill and some were added by the House.
SENATOR PARNELL questions the policy change made in this committee
work draft related to best interest of the child versus health and
safety, first noted on Page 28,Section 31. Throughout the bill
there are references to best interest of the child. Can you tell
me when the standard is health and safety versus best interest?
How do these work together?
MS. WIBKER replies under existing statute you'd just use best
interest. Federal law requires us to add that health and safety
be paramount in any decision a judge is making in issuing a court
order involving a child. The court must still consider best
interest; that must be number one. Best interest is much broader
and can include attachment or bonding, but health and safety is
exactly what it says.
SENATOR PARNELL asks when this determination comes up in the
process.
Number 500
MS. WIBKER responds AS 47.10.082 makes it required in any
dispositional order, when a judge issues an order on a plan, an
outcome. In a plan to return a child home, or move the child to
permanent placement, the health and safety of a child would be
paramount.
SENATOR PARNELL asks if the terminology "health and safety" is
federal standard now.
MS. WIBKER responds the federal government will go through and look
for it. We felt "best interest" gave a child more protection.
They audit files by looking for these buzz words. A good example
of where you'd see "best interest" is in a termination of parental
rights order; it's a different element a judge can rule on. You're
likely to see this with older children who have bonding and
attachment and it's not in the best interest of the child to
terminate even though you've proved your case.
CHAIRMAN TAYLOR states his amazement at arrogance of the federal
law requiring "the state must conform its laws" or else we will
lose funds. If their law forces a change in the state's
constitution, is it correct that you would have five years to
conform?
MR. WEBB replies it is correct. CHAIRMAN TAYLOR and MS. WIBKER are
not aware of any part requiring a change in state's constitution.
CHAIRMAN TAYLOR requests that REPRESENTATIVE DYSON walk the
committee through the House changes in summary.
REPRESENTATIVE DYSON clarifies that the next sections are portions
of the bill that the Alaska Supreme Court wanted changed.
MS. WIBKER refers to Page 2, lines 14-17, which contains a list of
Supreme Court decisions that recently interpreted our statute. The
phrase that a child is considered abandoned if there's no parent
willing or able to care was interpreted by the Supreme Court as
meaning they could not decide solely on ability. Subsequent
opinions have been issued that "back off" of that. Those are the
cases that address Number 1.
CHAIRMAN TAYLOR asks if this was that "ridiculous" decision in the
case of a parent who was incarcerated and was willing to care, but
because of the incarceration could not care?
MS WIBKER replies yes. That decision is reflected on lines 18-20.
Our Supreme Court said in that AM case that incarceration is not a
willing act by a parent. This bill treats incarceration as a
willing act, and when people get themselves incarcerated the
consequences to their children are treated as a consequence of the
parent's behavior. That's a change from the way our Supreme Court
has been viewing incarceration.
MS. WIBKER refers to lines 21-23 and the RJM opinion in which the
state thought they had jurisdiction over cases of emotional
neglect. The RJM decision said the state does not have
jurisdiction as the law is currently written; the legislature needs
to change the law. The cases listed in Section A, lines 14-17 and
in C, lines 21-22 are those where the Supreme Court said change
your law unless you want these kinds of results. Section B, lines
18-20 are state initiated cases because of the way the court viewed
incarceration of a parent.
Number 420
MR. WEBB adds that the Supreme Court opinion in the RJM case urged
this legislature to make substantial re-writes to child protection
laws simply to aid them and other courts in interpreting the laws,
beyond overturning these specific cases.
CHAIRMAN TAYLOR brings up 'emotional neglect' and asks where it is
referenced in the bill.
MS. WIBKER answers Page 17, lines 15-29, and states that she
discussed it earlier when something else on the list prompted it.
MR. WEBB adds that although the state is required since the RJM
opinion to report these cases of emotional neglect, federal law
requires this by the state as the basis for intervention.
REPRESENTATIVE DYSON states they struggled with the agency,
starting with "emotional harm" and ended up with the more
conservative "mental injury." They argued over when mental injury
raises it to the level of a child in need of aid.
MS. WIBKER adds it went through substantial work in the House to
tighten and narrow it to very severe situations.
MR. WEBB adds this is probably a tighter definition and more
restrictive on a jurisdictional basis than virtually all the other
states we reviewed.
MS. WIBKER offers to the committee a comparison she prepared of
state definitions of emotional harm and mental injury.
CHAIRMAN TAYLOR asks if there are further questions. He states the
federal law is intermingled throughout the entire bill of over 50
pages and it's difficult to find places where the state is going
beyond that to do additional work.
REPRESENTATIVE DYSON responds that it's almost mandated because
changes are spread throughout our code; we had to modify a lot of
different sections of state code.
Number 370
SENATOR PARNELL asks the differences in the P.aa version and what
was passed by the House. MS. WIBKER answers that P.aa is what the
House passed. SENATOR PARNELL asks if the amendments with statutory
changes are incorporated in this version.
MS. WIBKER responds they are not. The amendment goes to Page 17,
the definition of "mental injury," and tightens it up even further.
The part that addresses exposure to domestic violence, the House
wanted that to be assaultive conduct with another person. The way
this is written, it references AS 11.41, which is all the
assaultive conduct but, I believe, more than the House intended to
put in there. This amendment tightens it up to reflect what the
House wanted.
CHAIRMAN TAYLOR states his intention to move the bill out of
committee today. HB 375 has no language regarding the use of the
federal parent locator service to assist with the enforcement of
child custody or visitation orders. Why is that? This is in the
federal law.
Number 315
MS. WIBKER responds she hasn't found it in federal law. There was
an early draft of federal law saying states may have access to the
parent locator service. In the final version that passed, that
language is not there. But if the state needs to find a parent, we
ask CSED for information they have on their parent locator service;
the AGs office uses that. The best and fastest way to find a parent
is to check PFD addresses. This was not required to be in statute.
SENATOR PARNELL asks, regarding conceptual amendment P.aa, dated 5-
8-98, can you tell us what crimes are excluded?
Number 305
MS. WIBKER refers to AS 11.41, which includes reckless endangerment
and stalking. The amendment narrows the pertinent crimes to
homicide, sexual assault and actual physical assault.
CHAIRMAN TAYLOR clarifies that amends Page 17, lines 21-29.
SENATOR PARNELL moves the amendment be adopted as Amendment #1,
P.aa dated 5-8-98. The text of the amendment follows.
Page 17, Lines 21-29
Delete all and replace with:
"(ii)exposure to conduct by a household member, as defined in
AS 18.66.990, against another household member that is a crime
under AS 11.41.100 - 11.41.220, 11.41.230(a)(1)-(a)(2), and
11.41.410 - 11.41.432, an offense under a law or ordinance of
another jurisdiction having elements similar to a crime under
AS 11.41.100 - 11.41.220, 11.41.230(a)(1) - (a)(2), and
11.41.410-11.41.432, an attempt to commit an offense that is
a crime under AS 11.41.100 - 11.41.220 and 11.41.410 -
11.41.432, or an attempt to commit an offense under a law or
ordinance of another jurisdiction having elements similar to
a crime under AS 11.41.100 - 11.41.220 and 11.41.410 -
11.41.432;or"
"(iii)repeated exposure to conduct by a household member, as
defined in AS 18.66.990, against another household member that
is a crime under 11.41.230(a)(3) and 11.41.250 - 11.41.270 or
an offense under a law or ordinance of another jurisdiction
having elements similar to a crime under AS 11.41.230(a)(3)
and 11.41.250-11.41.270;"
CHAIRMAN TAYLOR asks if there is any objection to adopting
Amendment #1. There being no objection, it is so ordered.
SENATOR PARNELL asks if the sponsor has other amendments he would
like to see moved.
REPRESENTATIVE DYSON answers no, but if we're working off the P
document he doesn't believe it has the reporting provision the
committee wanted. He doesn't recommend putting it into law, at
least not in detail, but it's the committee's call. Yesterday we
looked at the Q version.
LISA TORKELSON, staff to Representative Dyson, presents a
conceptual draft of what it should say. The language was in draft
Q but broader regarding reporting.
MR. WEBB states it's not necessary in law.
CHAIRMAN TAYLOR says he still likes the idea and will put it in a
conceptual amendment to be inserted where appropriate:
"Department shall report summary of child protection
activities carried out during the previous calendar month and
the status of children committed to the department's custody,
including information on the number and type of reports of
child abuse and neglect received, the outcome of
investigations completed, placement of children committed to
departmental custody, and foster homes licensed. The report
shall be made accessible to the public through the Internet."
Number 232
CHAIRMAN TAYLOR asks for discussion of Amendment #2. The text of
Amendment #2 follows.
Page 15, Line 28 through Page 17, Line 7: Delete all material and
replace with:
"summarizing child protection activities carried out during
the previous calendar month and the status of children
committed to the department's custody, including information
on the number and type of reports of child abuse and neglect
received, the outcome of investigations completed, placement
of children committed to department custody, and foster homes
licensed. The report shall be made accessible to the public
through the Internet."
SENATOR PARNELL moves Amendment #2.
CHAIRMAN TAYLOR states that without objection, the adoption of
amendment # 2 is so ordered. Amendment #2 passes, requiring
reports by the department. CHAIRMAN TAYLOR states it's his
understanding that several people waiting on the teleconference
network are upset about the testimony received so far. He invites
Diana Buffington in Kodiak to comment on today's testimony.
DIANA BUFFINGTON, Childrens' Rights Council of Alaska, Kodiak,
asserts that our state is misrepresenting the federal law in this
bill. If this state wants to continue to qualify for the $200.0
grant, it is required under the CAPTA (Child Abuse Prevention and
Treatment Act) law to appoint no less than 3 citizen review panels
- not interagency teams- with broad volunteer community
representation and a balance of persons familiar with CPS duties.
That touches on the state child fatality team involved in this
bill, Sections 9 and 10, which violate CAPTA.
Number 150
MS. BUFFINGTON continues testimony, stating the multi-disciplinary
task force also violates the federal law by meeting in secret with
unlimited immunity and no accountability and members are not
compelled to testify in civil or criminal court hearings. She
asserts that the bill draft in front of the committee is not in
compliance with federal law. The state must adopt kinship care.
The child is supposed to be placed with a noncustodial parent or an
extended family under kinship care to avoid termination of parental
rights. Appointment of extended family member as a legal guardian
can avoid termination of parental rights. This definition of legal
guardian does not qualify. She cites several sections including
15, 17, 33, 43, 48, 49, and 60 that define and impose duties only
on parents, whereas the state and federal constitutions define a
scope of duties of care owed to children. Standards must be applied
to any home for which the state applies and receives federal funds.
MS. BUFFINGTON proceeds to cite the sections in the bill, including
Section 17, that are not in compliance with the federal law. She
proposes adopting federal language, "nothing in this part shall be
construed as precluding the state courts from exercising their
discretion to protect the health and safety of children in
individual cases."
CHAIRMAN TAYLOR asks Ms. Buffington to clarify the language she
wants before moving on.
MS. BUFFINGTON cites the language in federal law, section 677
quoted above. She asserts that the language "liberally construed"
would lead to great problems in our courts.
CHAIRMAN TAYLOR questions how the language differs, and if she
wants the same words except for the word "liberally." MS.
BUFFINGTON responds yes.
TAPE 98-57, Side A
Number 001
CHAIRMAN TAYLOR continues the discussion of language in Section 17
with MS. BUFFINGTON, asking if she's trying to get the courts to
narrow their focus on just those words.
MS. BUFFINGTON responds that the words "liberally construed" can be
misinterpreted by the courts.
CHAIRMAN TAYLOR brings up one of her previously stated concerns,
citizen review panels,that the state passed into law several years
ago but never got funded. Now the federal government is saying we
need some type of citizen or peer review panel.
MS. BUFFINGTON states the panels are required because the state is
accepting grant money under the Child Abuse Prevention and
Treatment Act. The state has failed to comply with the federal law
even though it receives the funding. The law clearly states there
must be no less than 3 citizen review panels.
CHAIRMAN TAYLOR takes this up, asking MS. WIBKER and MR. WEBB to
respond.
MS. WIBKER responds that MS. BUFFINGTON is "mixing apples and
oranges." Under CAPTA of 1996, states that receive over $175.0 are
required to set up 3 citizen review panels. Our state has already
set that in statute and is in full compliance. Ms. Buffington may
be saying that the child fatality review and interdisciplinary
teams do not qualify as citizen review panels. They were not set up
to meet that requirement. Child fatality review was set up to
address a state problem: homicides that were not being prosecuted.
The medical examiner helped set that up as a tool to the
prosecution, a team of experts. The multi disciplinary team was
set up to address problems made in investigations, also a team of
experts.
CHAIRMAN TAYLOR asks whether Alaska is in compliance with the 3
panel requirement. MS. WIBKER responds affirmative.
Number 111
MS. BUFFINGTON disagrees with Ms. Wibker. A review panel is not
supposed to be composed entirely of professionals; it should be
citizen-related with a balance, a broad community representation.
Staff in Washington state at the regional federal office has told
her Alaska is not in compliance.
CHAIRMAN TAYLOR responds they're not claiming they did comply. They
don't say they're citizen review panels-- they're state panels.
MS. BUFFINGTON and CHAIRMAN TAYLOR continue to argue the point.
CHAIRMAN TAYLOR asks Mr. Webb if anyone in his department is
claiming to D.C. that the fatality team or multi-disciplinary team
complies with CAPTA and is used for that purpose.
MR. WEBB responds, not to his knowledge. He's assured the state
will meet that requirement by June 30, 1999. There are citizen
review panels in the Anchorage area now. Panels in Fairbanks, as
presently composed, don't meet that requirement. He's not sure
where the third panel would be located.
CHAIRMAN TAYLOR clarifies that panels are not operative yet but the
department intends that they will be.
MS. WIBKER states they must be citizens that are "watchdogs" of
DFYS, a different function.
CHAIRMAN TAYLOR asks Ms. Buffington to fax the committee the
assurance from the Washington staff person that these panels have
tried to qualify, so the department can comment on it.
MS. BUFFINGTON asserts that the team members are being made
"volunteer caseworkers," which aren't needed. They're officers of
the court or mandated reporters of harm, covered by
indemnification. She feels there is a problem with using the word
"immunity" loosely. She is concerned with secret meetings, and
that they "may" publish a report.
Number 231
MS. BUFFINGTON refers to Section 9, Page 7, line 9, stating she has
a problem with the word "immunity." She also refers to Sections 54
and 55, page 46, line 31, and top of Page 47, line 10. The teams
are not required. MS. WIBKER states they are permissive.
MS. TORKELSON states that teams need to be able to discuss mental
health history and shouldn't be available to civil custody hearings
to be used to discredit kids' testimony. They should be protected
from being "used" by one parent against the other. Division
employees present case evidence because they collected it. This
section simply says they'll continue to perform their duties.
CHAIRMAN TAYLOR thanks MS. TORKELSON for her explanation but states
he shares some of MS. BUFFINGTON's concerns, and asks: at what
point do we establish any level of accountability for team members?
Misinformation from one person with a grudge would lead to everyone
acting on that wrong information. Then it becomes totally
confidential and immune from suit.
REPRESENTATIVE DYSON responds that nothing here keeps any
individual or the agency from being accountable for their actions.
CHAIRMAN TAYLOR asks if a social worker is immune or subject to
malpractice when she says it's child sexual assault and then
everyone who becomes involved in the case is immune.
MR. WEBB responds the state is subject to suit for wrongful
actions. If a social worker's actions are not grossly negligent or
they haven't engaged in misconduct, they're protected as police
officers are. State is periodically sued for wrongful actions on
the part of its employees. This provision protects persons who may
not be state employees from suit, or having advised the state.
State is held accountable.
CHAIRMAN TAYLOR asks how you get to them if the people are immune
and their reports cannot be accessed.
Number 363
MR. WEBB responds those things are not subject to being used as
evidence. Actions are subject to scrutiny, but advice may guide
those actions.
CHAIRMAN TAYLOR asks if the standard is one of gross negligence
now. Before, you could sue the individual who made the decision.
MR. WEBB responds that is correct.
MS. WIBKER offers that House HESS took a lot of public testimony on
the level of immunity DFYS should have. As a result, she had tort
attorneys advise the committee on how to word the statute to keep
the level of liability exactly what it had been. Language in this
bill reflects what that committee did with advice from tort
attorneys. She believes the caller thinks the teams protect DFYS
workers, but these are not social workers. A child fatality review
team is made up of the state medical examiner, a prosecutor with
homicide experience, a trooper or police officer with homicide
experience, and a social worker with experience in investigating
child homicide.
Number 401
MS. WIBKER continues, saying this is a tool for the prosecution to
help the state get a murder conviction. The medical examiner is
responsible for the determination. The multi-disciplinary team is
set up the same way, except the social worker has the
responsibility to make the right call.
CHAIRMAN TAYLOR asks if the tort attorneys who helped with the
language are the defense attorneys who represent the state in
court. MS. WIBKER responds yes. CHAIRMAN TAYLOR says they wrote
this in the way that provides us with the greatest level of defense
available for the state.
MR. WEBB states the committee deliberated at length on these
issues. The committee didn't agree and do everything the tort
attorneys advised.
Number 430
CHAIRMAN TAYLOR states he'd rather use the term defense attorneys
because they're hired and paid to do nothing but defend us. The
same panel gave us 158, the tort reform bill that wiped out joint
and several liability, and attempted to wipe out any damages for
pain and suffering. This is not a "consumer friendly group." He
asserts the playing field ought to be level because we do make
mistakes.
Number 444
MR. WEBB states the buck stops with the people who make decisions
and act, not with people they consult with. Only the decision-
maker and the actor are subject to accountability.
MS. BUFFINGTON adds that a judge in any court may "liberally
construe" immunity to mean immunity, solely, completely and
unlimited. She disagrees with the Department of Law which looks out
for the state's protection, not the consumers going to court. She
reads from the federal law the composition of citizen review
committees.
CHAIRMAN TAYLOR asks again that Ms. Buffington send him her
information from the federal staff. He calls for a recess until
after floor session. He states the desire of the committee to move
this legislation this year.
CHAIRMAN TAYLOR reconvenes the meeting at 5:30, stating that a
quorum is present comprised of SENATORS PARNELL, ELLIS, PEARCE, AND
TAYLOR, CHAIR. He again takes up HB 375.
Number 480
SENATOR PEARCE moves SCS for HB 375(Jud) from committee with
individual recommendations, and its accompanying fiscal note which
will have to be ordered. She states her understanding that it will
be zero.
CHAIRMAN TAYLOR states that there being no objection, the bill as
amended moves from committee.
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