Legislature(2005 - 2006)BUTROVICH 205

03/28/2006 08:30 AM JUDICIARY

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Heard & Held
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 28, 2006                                                                                         
                           8:36 a.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Gene Therriault                                                                                                         
Senator Hollis French                                                                                                           
Senator Gretchen Guess                                                                                                          
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
CS FOR HOUSE BILL NO. 318(FIN) am                                                                                               
"An Act limiting the exercise of eminent domain."                                                                               
     HEARD AND HELD                                                                                                             
CS FOR HOUSE BILL NO. 408(FIN) am                                                                                               
"An Act relating  to the standard of proof  required to terminate                                                               
parental  rights in  child- in-need-of-aid  proceedings; relating                                                               
to  a  healing  arts  practitioner's   duty  to  report  a  child                                                               
adversely  affected   by  or  withdrawing  from   exposure  to  a                                                               
controlled  substance  or  alcohol;  relating  to  disclosure  of                                                               
confidential or privileged information  about certain children by                                                               
the   Departments    of   Health   and   Social    Services   and                                                               
Administration;  relating to  permanent  fund  dividends paid  to                                                               
foster children  and adopted children;  amending Rule  18, Alaska                                                               
Child in  Need of Aid  Rules of  Procedure; and providing  for an                                                               
effective date."                                                                                                                
     HEARD AND HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: HB 318                                                                                                                  
SHORT TITLE: LIMITATION ON EMINENT DOMAIN                                                                                       
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE, HOLM, HAWKER                                                                             
01/09/06       (H)       PREFILE RELEASED 12/30/05                                                                              
01/09/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/09/06       (H)       JUD, FIN                                                                                               
01/11/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/11/06       (H)       Heard & Held                                                                                           
01/11/06       (H)       MINUTE(JUD)                                                                                            
01/25/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
01/25/06       (H)       Heard & Held                                                                                           
01/25/06       (H)       MINUTE(JUD)                                                                                            
02/01/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/01/06       (H)       -- Meeting Canceled --                                                                                 
02/03/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/03/06       (H)       Moved CSHB 318(JUD) Out of Committee                                                                   
02/03/06       (H)       MINUTE(JUD)                                                                                            
02/06/06       (H)       JUD RPT CS(JUD) NT 3DP 1NR 2AM                                                                         
02/06/06       (H)       DP: WILSON, ANDERSON, MCGUIRE;                                                                         
02/06/06       (H)       NR: GRUENBERG;                                                                                         
02/06/06       (H)       AM: GARA, KOTT                                                                                         
02/09/06       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
02/09/06       (H)       Moved CSHB 318(FIN) Out of Committee                                                                   
02/09/06       (H)       MINUTE(FIN)                                                                                            
02/10/06       (H)       FIN RPT CS(FIN) NT 2DP 3NR 3AM                                                                         
02/10/06       (H)       DP: HAWKER, MEYER;                                                                                     
02/10/06       (H)       NR: KERTTULA, JOULE, WEYHRAUCH;                                                                        
02/10/06       (H)       AM: STOLTZE, HOLM, FOSTER                                                                              
02/21/06       (H)       TRANSMITTED TO (S)                                                                                     
02/21/06       (H)       VERSION: CSHB 318(FIN) AM                                                                              
02/22/06       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/22/06       (S)       JUD, FIN                                                                                               
03/02/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/02/06       (S)       Heard & Held                                                                                           
03/02/06       (S)       MINUTE(JUD)                                                                                            
03/09/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/09/06       (S)       Heard & Held                                                                                           
03/09/06       (S)       MINUTE(JUD)                                                                                            
03/21/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/21/06       (S)       Scheduled But Not Heard                                                                                
03/22/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/22/06       (S)       Heard & Held                                                                                           
03/22/06       (S)       MINUTE(JUD)                                                                                            
03/28/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
BILL: HB 408                                                                                                                  
SHORT TITLE: DEFINITION OF CHILD ABUSE AND NEGLECT                                                                              
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
01/30/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/30/06       (H)       HES, FIN                                                                                               
02/07/06       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/07/06       (H)       Heard & Held                                                                                           
02/07/06       (H)       MINUTE(HES)                                                                                            
02/09/06       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/09/06       (H)       Moved CSHB 408(HES) Out of Committee                                                                   
02/09/06       (H)       MINUTE(HES)                                                                                            
02/15/06       (H)       HES RPT CS(HES)NT 3DP 2NR                                                                              
02/15/06       (H)       DP: GARDNER, GATTO, WILSON;                                                                            
02/15/06       (H)       NR: ANDERSON, CISSNA                                                                                   
02/22/06       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
02/22/06       (H)       -- Meeting Canceled --                                                                                 
03/01/06       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
03/01/06       (H)       Scheduled But Not Heard                                                                                
03/07/06       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
03/07/06       (H)       Moved CSHB 408(FIN) Out of Committee                                                                   
03/07/06       (H)       MINUTE(FIN)                                                                                            
03/08/06       (H)       FIN RPT CS(FIN) NT 3DP 5NR                                                                             
03/08/06       (H)       DP: KELLY, MEYER, CHENAULT;                                                                            
03/08/06       (H)       NR: HAWKER, STOLTZE, KERTTULA, JOULE,                                                                  
03/20/06       (H)       TRANSMITTED TO (S)                                                                                     
03/20/06       (H)       VERSION: CSHB 408(FIN) AM                                                                              
03/22/06       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/22/06       (S)       JUD, FIN                                                                                               
03/22/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/22/06       (S)       <Bill Hearing Postponed to 03/23/06>                                                                   
03/23/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
03/23/06       (S)       -- Meeting Canceled --                                                                                 
03/28/06       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
WITNESS REGISTER                                                                                                              
Representative Lesil McGuire                                                                                                    
Alaska State Capitol                                                                                                            
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT: Sponsor of HB 318                                                                                         
Craig Johnson, Legislative Aide                                                                                                 
Staff to Representative Lesil McGuire                                                                                           
Alaska State Capitol                                                                                                            
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT:  Answered questions regarding HB 318                                                                      
Peter Putzier, Senior Assistant Attorney General                                                                                
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT: Answered questions regarding HB 318                                                                       
Dave Feeken                                                                                                                     
Alaska Association of Realtors                                                                                                  
POSITION STATEMENT: Commented on HB 318                                                                                       
Garvan Bucaria                                                                                                                  
Wasilla, Alaska                                                                                                                 
POSITION STATEMENT: Commented on HB 318                                                                                       
Rynnieva Moss, Legislative Aide                                                                                                 
Staff to Representative John Coghill                                                                                            
Alaska State Capitol                                                                                                            
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT: Introduced HB 408                                                                                         
Tammy Sandoval, Deputy Commissioner                                                                                             
Office of Children's Services                                                                                                   
PO Box 110630                                                                                                                   
Juneau, AK  99811-0630                                                                                                          
POSITION STATEMENT: Answered questions regarding HB 408                                                                       
Jan Rutherdale, Assistant Attorney General                                                                                      
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Answered questions regarding HB 408                                                                      
ACTION NARRATIVE                                                                                                              
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting to  order at 8:36:11 AM.  Present were Senators                                                             
Hollis French,  Charlie Huggins, Gretchen Guess,  and Chair Ralph                                                               
              HB 318-LIMITATION ON EMINENT DOMAIN                                                                           
8:37:05 AM                                                                                                                    
CHAIR  RALPH SEEKINS  announced CSHB  318(FIN)  AM to  be up  for                                                               
consideration. He said his intent for  the day was to have a good                                                               
round table discussion on the bill.                                                                                             
REPRESENTATIVE LESIL MCGUIRE introduced herself for the record.                                                                 
8:38:18 AM                                                                                                                    
SENATOR  HOLLIS  FRENCH  advised   Representative  McGuire  of  a                                                               
memorandum  received from  Don Bullock  of the  Legislative Legal                                                               
and Research Services Division dated  March 22, 2006 that advised                                                               
that any  "escape hatch"  from the eminent  domain bill  would be                                                               
problematic. He  expressed concern that a  local government would                                                               
not be able to control eminent domain in its own community.                                                                     
Senator Gene Therriault joined the meeting.                                                                                     
REPRESENTATIVE MCGUIRE  responded she  would look favorably  at a                                                               
"voting threshold" if  that is what the  committee preferred. She                                                               
reminded the committee  that Kelo versus City of  New London came                                                               
about due  to a  local action  taken by  a local  government. She                                                               
speculated that the  people of the City of New  London might wish                                                               
that their  state had  legislation to protect  them at  the state                                                               
level when the city let them down.                                                                                              
8:44:12 AM                                                                                                                    
SENATOR GRETCHEN GUESS advised that  the discussion in the Senate                                                               
Judiciary Standing Committee  has been whether or not  to allow a                                                               
local  governing  body  by  a two-thirds  majority  to  make  the                                                               
decision. She noted  the subject was a  difficult balance between                                                               
local control  and free will  and expressed concern  that smaller                                                               
communities do not  get the representation that they  need in the                                                               
state capitol.                                                                                                                  
REPRESENTATIVE MCGUIRE  said she liked  the idea of  a two-thirds                                                               
SENATOR FRENCH  noted the non-delegable  aspect is  important and                                                               
the  greater  majority  provision protects  minority  rights.  He                                                               
expressed support for the idea.                                                                                                 
CHAIR SEEKINS agreed.  He said he objects when  the city assembly                                                               
responsibility is handed off to private developers.                                                                             
8:48:48 AM                                                                                                                    
REPRESENTATIVE MCGUIRE  noted state  policy makers  should ensure                                                               
that the  rights of the  people are equal  for all. She  said she                                                               
would accept  the will of  the committee.  Paragraph 7 on  page 4                                                               
allows for  a stopgap because it  is difficult to think  of every                                                               
situation that the bill might cover.                                                                                            
8:51:57 AM                                                                                                                    
MR. JOHNSON  added four large  communities have already  made the                                                               
decision  to enact  ordinances similar  to this  legislation. The                                                               
discussion on  the bill is really  whether to afford the  rest of                                                               
the state the same protection of eminent domain.                                                                                
CHAIR SEEKINS  said he  did not  want to  step on  local control.                                                               
Everyone wants to  protect private property but at  the same time                                                               
Alaskans know the importance of access to recreational areas.                                                                   
8:54:26 AM                                                                                                                    
REPRESENTATIVE  MCGUIRE  pointed out  that  the  issue goes  both                                                               
ways.  The Tony  Knowles  Coastal Trail  runs  right through  her                                                               
district, she  stated, and  some people love  it while  some hate                                                               
it. The local  control bypass allows a measure of  balance to the                                                               
CHAIR  SEEKINS  noted  the difference  between  a  developer  and                                                               
conservationist  is that  the developer  wants to  build a  cabin                                                               
this summer where  as the conservationist built  his last summer.                                                               
He said access to recreation was a huge topic in Alaska.                                                                        
8:57:38 AM                                                                                                                    
REPRESENTATIVE MCGUIRE  agreed there are unique  circumstances in                                                               
this state.  She said  the argue against  local control  would be                                                               
that the  bill takes care  of people's concerns  regarding access                                                               
to recreational areas,  such as navigable waters  and hunting and                                                               
fishing rights. The  bill would not limit the  state's ability to                                                               
use the power of eminent  domain in any other circumstance except                                                               
to  take property  from one  private  entity and  transfer it  to                                                               
another  private  entity.  In a  state  where  private  ownership                                                               
represents  one percent  of the  land, there  should be  creative                                                               
options for taking land to accomplish the goal.                                                                                 
CHAIR SEEKINS stated the recreational  side was not restricted to                                                               
private-to-private transfer.                                                                                                    
REPRESENTATIVE MCGUIRE stood corrected.                                                                                         
9:00:41 AM                                                                                                                    
SENATOR GUESS noted  page 5, line 11 lists what  is excluded from                                                               
the definition  of recreational.  She referred to  subsection (e)                                                               
on page 4 and said there is nothing to override that provision.                                                                 
REPRESENTATIVE MCGUIRE  responded that  subsection (7)  was added                                                               
due to  the fact that the  bill already had many  exclusions. She                                                               
said she would support it if  the committee chose to add the same                                                               
legislative approval  provision to  the recreational side  of the                                                               
MR. JOHNSON advised  it would be a simple fix  for the committee.                                                               
On page  6 line  18 simply  just change  the (1)-(6)  to (1)-(7).                                                               
That  would  roll  the legislative  oversight  into  the  private                                                               
property prong.                                                                                                                 
9:03:55 AM                                                                                                                    
REPRESENTATIVE MCGUIRE  advised the  committee that  the concepts                                                               
developed separately  for the economic and  recreational aspects.                                                               
People question the  reason the state could take  their homes for                                                               
recreational reasons if they can't for economic purposes.                                                                       
SENATOR GUESS referred  to page 3, lines 29-31  and asked whether                                                               
that would allow  for a statute to be created  that would allow a                                                               
real estate company to exercise eminent domain.                                                                                 
MR.  JOHNSON  said the  definition  of  private person  could  be                                                               
utilities,  pipeline  companies,  or   any  one  other  than  the                                                               
REPRESENTATIVE MCGUIRE advised "private  person" is defined in AS                                                               
9:08:41 AM                                                                                                                    
PETER PUTZIER,  Senior Assistant Attorney General,  Department of                                                               
Law (DOL), responded to the  question regarding "private person."                                                               
He handed out a default definition  of " private person" and said                                                               
it includes  corporations and a  wide variety of  other entities.                                                               
Utilities have  been granted the  right of eminent  domain. Lines                                                               
29-31  are in  the bill  to make  it clear  that their  authority                                                               
remains status quo.                                                                                                             
9:09:51 AM                                                                                                                    
SENATOR  GUESS said  for the  record  she read  AS 09.55.240  and                                                               
there is no definition.                                                                                                         
MR.  PUTZIER  said  if  there  were  a  question  regarding  what                                                               
"private person" means, it would be as defined in Title 1.                                                                      
SENATOR FRENCH  asked the number  of express  authorizations that                                                               
exist in statute regarding eminent domain.                                                                                      
MR.  PUTZIER  offered  a  list   of  all  the  authorizations  to                                                               
committee members.                                                                                                              
9:12:28 AM                                                                                                                    
DAVE FEEKEN,  Alaska Association  of Realtors testified  that the                                                               
Kelo  decision  defined economic  development  as  a public  use,                                                               
taking private property  from one owner and giving  it to another                                                               
for the  purpose of economic  development. In a  survey conducted                                                               
by the Association  of Realtors, 97 percent were  opposed to that                                                               
type of eminent domain powers. The  US Supreme Court found in the                                                               
Kelo  case that  pursuant to  a well  conceived plan,  the public                                                               
benefits through  increased tax  revenues was  good enough  to be                                                               
called a public use.                                                                                                            
With only one percent of Alaska's  land in private hands, the use                                                               
of  eminent domain  needs to  be  severely restricted.  Currently                                                               
there are  10,000 active  private-to-private eminent  domain case                                                               
takings in process in the United  States. "Your home is only your                                                               
castle so  long as somebody  doesn't come along and  convince the                                                               
city  council they  have a  better use,"  he stated.  The key  to                                                               
eminent  domain use  is a  good  definition of  "public use"  and                                                               
"economic  development," he  advised. The  Alaska Association  of                                                               
Realtors  will continue  to work  on  eminent domain  legislation                                                               
throughout the summer.                                                                                                          
9:16:02 AM                                                                                                                    
GARVAN BUCARIA, Wasilla, testified that  the language of the bill                                                               
was  perplexing  and difficult  to  keep  up with.  His  previous                                                               
testimony  questioned  the  need  for using  eminent  domain  for                                                               
recreational purposes.  He said he  is subject to  eminent domain                                                               
under  the  2004-2005  Department of  Transportation  and  Public                                                               
Facilities study, which has notified  him that his property might                                                               
be  taken for  a main  street  widening project  in Wasilla.  Two                                                               
years later,  he said,  he still  does not know  what the  DOT is                                                               
planning to do and it has been very stressful.                                                                                  
He agreed  with the  local control  provision but  said it  was a                                                               
relative question.  He has  attended many  meetings on  the issue                                                               
and  said he  is aggrieved  by the  lack of  public participation                                                               
even though  it affects  everyone in  the community.  He believes                                                               
there   is  not   sufficient  public   notification  within   the                                                               
9:20:37 AM                                                                                                                    
SENATOR HUGGINS asked the location of Mr. Bucaria's property.                                                                   
MR.  BUCARIA responded  with the  location of  his property.  The                                                               
proposed road would  go through his house  and completely destroy                                                               
the center of Wasilla, he stated.                                                                                               
SENATOR HUGGINS  asked the  length of  time he  has lived  in his                                                               
MR. BUCARIA  said he has  lived in his  house since 1986  but has                                                               
been an Alaska resident since 1975.                                                                                             
9:23:23 AM                                                                                                                    
SENATOR GUESS moved Amendment 1. Page  4, line 9: Delete "by law"                                                               
and  following "transfer":  Insert  "in an  Act,  the subject  of                                                               
which is limited to the transfer."                                                                                              
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
SENATOR  GUESS explained  Amendment 1  would ensure  that if  the                                                               
Legislature does approve  a transfer of property that  it does so                                                               
under a separate bill, which would ensure public process.                                                                       
REPRESENTATIVE MCGUIRE expressed support.                                                                                       
Hearing   no  further   objections,  Amendment   1  was   adopted                                                               
SENATOR GUESS  moved Amendment 2.  Page 5, line 8:  Delete "small                                                               
boat harbor."                                                                                                                   
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
SENATOR  GUESS  advised  Amendment  2 would  remove  "small  boat                                                               
harbor"  from recreational  facility  or  project. She  expressed                                                               
concern   over  unintended   consequences  due   to  a   lack  of                                                               
SENATOR THERRIAULT said the small  boat harbor land would already                                                               
be  owned  by the  state  and  wondered whether  Senator  Guess's                                                               
concern was over the access to it.                                                                                              
9:25:50 AM                                                                                                                    
SENATOR GUESS  responded she was  uncomfortable since  the phrase                                                               
was undefined and nebulous.                                                                                                     
SENATOR  THERRIAULT asked  the bill  sponsor  where the  language                                                               
came from.                                                                                                                      
MR. JOHNSON advised  they tried to encompass as  much as possible                                                               
with regard  to recreational facilities.  He said they  could not                                                               
come up with a  scenario where a home would be  taken for a small                                                               
boat harbor.                                                                                                                    
CHAIR SEEKINS noted the restrictions  would be to within 250 feet                                                               
of the home.                                                                                                                    
MR. JOHNSON  surmised the  small boat harbor  would be  mainly in                                                               
the water anyway so the likelihood  of the taking of any property                                                               
would be difficult to conceive.                                                                                                 
CHAIR  SEEKINS speculated  that the  access to  the harbor  could                                                               
affect private property.                                                                                                        
MR. JOHNSON agreed.                                                                                                             
9:27:55 AM                                                                                                                    
CHAIR SEEKINS removed his objection.                                                                                            
SENATOR HUGGINS  cautioned the committee against  deleting "small                                                               
boat harbor"  too quickly. He  suggested the committee work  on a                                                               
definition first.                                                                                                               
9:30:55 AM                                                                                                                    
SENATOR  GUESS  asked Senator  Huggins  whether  page 5,  line  9                                                               
wouldn't cover his concerns.                                                                                                    
SENATOR HUGGINS indicated no.                                                                                                   
9:33:12 AM                                                                                                                    
CHAIR SEEKINS expressed  concern over the lack  of definition. He                                                               
posed a  hypothetical scenario of  a right-of-way to  a navigable                                                               
stream. In  order to  accommodate the ability  to launch  a boat,                                                               
the city  might need to  take a  small portion of  the waterfront                                                               
and  that  could  be  within  250 feet  of  someone's  home.  The                                                               
question remains  whether that would  be defined as a  small boat                                                               
9:36:04 AM                                                                                                                    
SENATOR  GUESS  withdrew  Amendment  2   in  order  to  obtain  a                                                               
definition of small boat harbor.                                                                                                
REPRESENTATIVE MCGUIRE committed to work on that issue.                                                                         
SENATOR GUESS moved  Amendment 3. Page 6, line  4: Delete "rather                                                               
than primarily for recreation."                                                                                                 
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
SENATOR  GUESS explained  that the  words "rather  than primarily                                                               
for recreation"  bother her since  the committee has  not defined                                                               
the word "recreation."                                                                                                          
9:38:20 AM                                                                                                                    
REPRESENTATIVE MCGUIRE did not object to the proposed amendment.                                                                
CHAIR  SEEKINS removed  his objection  and the  committee adopted                                                               
Amendment 3 unanimously.                                                                                                        
9:40:38 AM                                                                                                                    
SENATOR  FRENCH  advised  the  committee that  he  would  have  a                                                               
proposed amendment concerning the  locally elected body having to                                                               
approve transfer of property by a  two-thirds vote and that it is                                                               
CHAIR  SEEKINS  said  he  did  not  object  provided  there  were                                                               
provisions for notice and public hearings.                                                                                      
SENATOR HUGGINS expressed support for local control.                                                                            
CHAIR SEEKINS held the bill in committee.                                                                                       
At ease 9:46:52 AM                                                                                                            
          HB 408-DEFINITION OF CHILD ABUSE AND NEGLECT                                                                      
9:54:55 AM                                                                                                                    
CHAIR  SEEKINS   announced  CSHB  408(FIN)   AM  to  be   up  for                                                               
Rynnieva Moss, Legislative Aide  for Representative John Coghill,                                                               
introduced the bill. She advised  the committee that the bill was                                                               
the   product  of   a  friendly   takeover   of  the   Governor's                                                               
legislation, which  originally defined  child abuse  and involved                                                               
medical personnel who  were involved in a delivery  to report any                                                               
suspected adverse conditions  to a newborn child  from alcohol or                                                               
drug abuse. Language from HB 327  has been added as well and many                                                               
members of the House have added amendments along the way.                                                                       
9:57:03 AM                                                                                                                    
MS. MOSS  summarized the sections  of the bill. Section  1 raises                                                               
the level of proof from  "a preponderance of evidence." Section 2                                                               
raises the standard for termination  of parental rights to "clear                                                               
and convincing  evidence." Section  3 contains language  clean up                                                               
to accommodate Section  2. Section 4 clarifies  that the employee                                                               
has  five  working  days  to  respond  once  the  information  is                                                               
requested. Section 5 would allow  OCS the ability to disclose the                                                               
nature and  validity of any  report of  harm if the  parent makes                                                               
public disclosure,  if the perpetrator  is charged with  a crime,                                                               
and if there is a death or near death of a child.                                                                               
9:59:34 AM                                                                                                                    
CHAIR SEEKINS asked  Ms. Moss to define  what constitutes "public                                                               
MS.  MOSS  responded that  would  be  disclosure of  confidential                                                               
information to the public. It  would normally be disclosed to the                                                               
TAMMY  SANDOVAL,   Deputy  Commissioner,  Office   of  Children's                                                               
Services (OCS) agreed with the description.                                                                                     
10:00:56 AM                                                                                                                   
MS. MOSS  continued Section 6  broadens the  Department's ability                                                               
to discuss a report of harm with  any child who is in the care of                                                               
a perpetrator.  Section 7 comes  from a real life  incident where                                                               
the foster  parents took the children's  Permanent Fund dividends                                                               
(PFD). The  money would be  put into a  trust and once  the child                                                               
ages out in the system they would be able to file for the PFD.                                                                  
CHAIR SEEKINS clarified that the  Department of Health and Social                                                               
Services (DHSS)  has the affirmative responsibility  to apply for                                                               
the PFD under existing law.                                                                                                     
MS.  MOSS noted  the  bill  contains a  provision  for the  legal                                                               
guardian to  petition the court  for the PFD. Section  8 requires                                                               
that practitioners of  the healing arts involved  in the delivery                                                               
or  care  of  a  child  who determines  the  child  is  adversely                                                               
affected by  a controlled substance  or alcohol must  notify OCS.                                                               
Section 9  comes from a  recommendation from the  Citizens Review                                                               
Panel. Section  10 contains indirect  court rules. Section  11 is                                                               
the applicability  to pending and  non-pending cases.  Section 12                                                               
is the immediate effective date.                                                                                                
CHAIR  SEEKINS asked  for a  definition of  "practitioner of  the                                                               
healing arts."                                                                                                                  
MS.  MOSS read  it  the definition  as, "includes  chiropractors,                                                               
mental  health  counselors,  social workers,  dental  hygienists,                                                               
dentists,  health aides,  nurses, nurse  practitioners, certified                                                               
nurse  aides,   occupational  therapists,   occupational  therapy                                                               
assistants,   optometrists,  osteopaths,   naturopaths,  physical                                                               
therapists, physical therapy  assistants, physicians, physician's                                                               
assistants,    psychiatrists,     psychologists,    psychological                                                               
associates,  audiologists   and  speech   language  pathologists,                                                               
hearing  aide   dealers,  marital  advisors,   religious  healing                                                               
practitioners, acupuncturists and surgeons.                                                                                     
10:06:25 AM                                                                                                                   
CHAIR SEEKINS asked whether the list was all-inclusive.                                                                         
MS. MOSS deferred to the Department of Law.                                                                                     
JAN  RUTHERDALE, Assistant  Attorney General,  Department of  Law                                                               
(DOL), indicated the definition was very precise.                                                                               
CHAIR  SEEKINS expressed  concern  with terms  of limitations  of                                                               
prosecution for someone implied to be  on the list but was not on                                                               
the list.                                                                                                                       
MS. RUTHERDALE speculated a prosecutor  would only attempt a case                                                               
with a person on the list.                                                                                                      
CHAIR  SEEKINS  suggested  specifying  the  practitioner  of  the                                                               
healing arts as defined in AS 47.17.290(13).                                                                                    
MS. RUTHERDALE agreed.                                                                                                          
10:09:00 AM                                                                                                                   
MS. SANDOVAL  added the original intent  of HB 408 was  to comply                                                               
with federal law.                                                                                                               
REX  SHATTUCK, Staff  to  Representative  Mark Neuman,  explained                                                               
that Section 9  is language from HB 346 and  adopts language from                                                               
the Keeping  Children and  Families Safe Act  of 2003  into state                                                               
10:12:01 AM                                                                                                                   
SENATOR HUGGINS  asked whether the  Citizens Review  Panel report                                                               
was confidential.                                                                                                               
MS. SANDOVAL said  by statute they have an  obligation to release                                                               
the report to legislators and then it becomes a public document.                                                                
MS. MOSS affirmed that it is a public document.                                                                                 
SENATOR  HUGGINS said  the report  lists  weaknesses with  Mat-Su                                                               
Valley OCS.  He asked  whether the  bill addressed  and corrected                                                               
the weaknesses.                                                                                                                 
10:14:57 AM                                                                                                                   
MS. SANDOVAL  said as the deputy  commissioner her responsibility                                                               
is to ensure that corrections to system weakenesses happen.                                                                     
SENATOR HUGGINS asked  Ms. Sandoval to comment on  whether HB 408                                                               
strengthens the confidence level of the community.                                                                              
MS.  SANDOVAL said  she  is  committed to  reviewing  all of  the                                                               
confidentiality laws and  co-training assistant attorney generals                                                               
as well as OCS staff.  There are inconsistencies around the state                                                               
regarding  the amount  of information  shared. Everyone  involved                                                               
will be re-trained according to current legislation.                                                                            
10:18:37 AM                                                                                                                   
MS. MOSS  advised the committee  that the legislation  would give                                                               
OCS transparency and allow the public  to see more of what OCS is                                                               
doing. The system  is not broke it's just that  the policies have                                                               
not been implemented in the past.                                                                                               
SENATOR GUESS asked  whether the change to five  working days was                                                               
in  conflict with  the  recent decision  by  Select Committee  on                                                               
Legislative Ethics on confidentiality.                                                                                          
10:20:57 AM                                                                                                                   
MS. MOSS replied the Ethics  decision dealt with hearing officers                                                               
and do there  would be no contradiction between the  bill and the                                                               
SENATOR GUESS asked  whether "clear and convincing"  was a higher                                                               
standard that "preponderance of evidence."                                                                                      
MS. MOSS  replied yes. It  puts a higher  burden of proof  on the                                                               
DOL to terminate parental rights.                                                                                               
SENATOR  GUESS  asked  Ms.  Moss  to  comment  on  the  committee                                                               
substitute (CS) before the committee.                                                                                           
MS. MOSS stated it contains the addition of Section 9.                                                                          
10:23:01 AM                                                                                                                   
SENATOR  FRENCH asked  for explanation  of the  higher burden  of                                                               
proof  standard. He  clarified  there are  certain situations  in                                                               
which the  court does not  order changes  in the behavior  of the                                                               
parent in order to allow the child to return home.                                                                              
MS. RUTHERDALE  said whenever a  child is removed the  state must                                                               
prove they have  attempted to keep the child in  the home even if                                                               
that  involves correcting  of parental  behavior. Once  they have                                                               
removed the  child, OCS must  show reasonable efforts  to correct                                                               
the behavior  so the child  can return  home, such as  getting an                                                               
alcoholic  parent  into  rehabilitation.  If  OCS  comes  to  the                                                               
conclusion that the  child can never return home  and they change                                                               
their  plan to  termination of  parental rights,  they must  show                                                               
with clear  and convincing evidence that  reasonable efforts have                                                               
been made to return the child home.                                                                                             
In 1998 the  Legislature decided that it would be  an exercise in                                                               
futility for  OCS to make  reasonable efforts in some  cases. For                                                               
example, if the parent has murdered  a child and is in jail there                                                               
would be no need to waste their resources.                                                                                      
10:27:02 AM                                                                                                                   
SENATOR FRENCH asked for explanation of Section 2.                                                                              
MS. RUTHERDALE advised Section 2 is  already in law and the state                                                               
already has to  prove that a child  is a "child in  need of aide"                                                               
due to the parent's behavior  and that the parent hasn't remedied                                                               
the  behavior  so that  the  child  can  return home.  Section  2                                                               
increases  the standard  to prove  that the  state has  made good                                                               
attempts to return the child home.                                                                                              
When the statute  was enacted in 1998 it didn't  contain the part                                                               
about "reasonable efforts." That  was added later because federal                                                               
funding required  it. It has since  come to the attention  of the                                                               
DOL  that there  is a  legitimate constitutional  reason for  the                                                               
higher standard.                                                                                                                
10:29:42 AM                                                                                                                   
SENATOR HUGGINS  asked Ms. Sandoval  whether the Ombudsman  has a                                                               
role in OCS.                                                                                                                    
MS.  SANDOVAL  responded yes.  They  can  review cases  and  make                                                               
inquiries and the OCS is required to respond.                                                                                   
SENATOR HUGGINS asked whether OCS has contract employees.                                                                       
MS. SANDOVAL  said OCS  does engage in  grants in  contracts with                                                               
agencies  in  the  community  that  provide  direct  services  to                                                               
SENATOR HUGGINS  asked whether that  creates a  recurring problem                                                               
in that  Ombudsmen do not  have the authority to  get information                                                               
from contract employees.                                                                                                        
MS. SANDOVAL responded that was not a routine concern.                                                                          
10:31:16 AM                                                                                                                   
SENATOR GUESS referred  to Section 7 and said she  knows a foster                                                               
parent who is concerned about handing  over 18 years of PFDs to a                                                               
young person. She asked whether  there has been any discussion on                                                               
that and  whether there should  be options for children  who have                                                               
been in long-term childcare.                                                                                                    
MS.  SANDOVAL replied  the OCS  has  regional independent  living                                                               
specialists who plan with youth who  are aging out of the system.                                                               
They  work  with  them  on successful  transitions  and  they  do                                                               
consider the amount of cash that the child is about to receive.                                                                 
10:33:13 AM                                                                                                                   
CHAIR  SEEKINS  commented  once  the  child  is  out  of  state's                                                               
custody, the law requires the state to give them their money.                                                                   
SENATOR THERRIAULT  added unless the  state has deemed  the child                                                               
is not capable. Absent of that it is a property right.                                                                          
SENATOR HUGGINS moved to adopt  version L as the working document                                                               
before the committee. Hearing no objections, the motion carried.                                                                
CHAIR SEEKINS held the bill in committee.                                                                                       
There being  no further  business to  come before  the committee,                                                               
Chair Seekins adjourned the meeting at 10:34:43 AM.                                                                           

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