HOUSE JUDICIARY STANDING COMMITTEE April 17, 1998 2:39 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 203 "An Act relating to actions for unlawful trade practices." - MOVED CSHB 203(JUD) OUT OF COMMITTEE HOUSE BILL NO. 375 "An Act relating to children in need of aid matters and proceedings; relating to murder of children, criminally negligent homicide, kidnapping, criminal nonsupport, the crime of indecent exposure, and the crime of endangering the welfare of a child; relating to registration of certain sex offenders; relating to sentencing for certain crimes involving child victims; relating to the state medical examiner and reviews of child fatalities; relating to teacher certification and convictions of crimes involving child victims; relating to access, confidentiality, and release of certain information concerning the care of children, child abuse and neglect, and child fatalities; authorizing the Department of Health and Social Services to enter into an interstate compact concerning adoption and medical assistance for certain children with special needs; authorizing the establishment of a multidisciplinary child protection team to review reports of child abuse or neglect; relating to immunity from liability for certain state actions concerning matters involving child protection and fatality reviews and children in need of aid; relating to persons required to report suspected child abuse or neglect; relating to foster care placement and to payment for children in foster and other care and the waiver of certain foster care requirements; relating to the access to certain criminal justice information and licensure of certain child care facilities; amending Rule 218, Alaska Rules of Appellate Procedure; amending Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and providing for an effective date." - HEARD AND HELD HOUSE BILL NO. 344 "An Act relating to paternity establishment and child support; relating to the crimes of criminal nonsupport and aiding the nonpayment of child support; and amending Rule 37(b)(2)(D), Alaska Rules of Civil Procedure; and providing for an effective date." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HB 203 SHORT TITLE: ACTIONS FOR UNLAWFUL TRADE PRACTICES SPONSOR(S): REPRESENTATIVES(S) DYSON, Cowdery Jrn-Date Jrn-Page Action 3/18/97 738 (H) READ THE FIRST TIME - REFERRAL(S) 3/18/97 738 (H) L&C, JUDICIARY 4/23/97 (H) L&C AT 3:15 PM CAPITOL 17 4/23/97 (H) MINUTE(L&C) 5/05/97 (H) L&C AT 3:15 PM CAPITOL 17 5/05/97 (H) MINUTE(L&C) 5/06/97 1547 (H) L&C RPT CS(L&C) 3DP 2NR 5/06/97 1548 (H) DP: COWDERY, SANDERS, HUDSON 5/06/97 1548 (H) NR: ROKEBERG, BRICE 5/06/97 1548 (H) ZERO FISCAL NOTE (LAW) 1/30/98 (H) JUD AT 1:00 PM CAPITOL 120 1/30/98 (H) MINUTE(JUD) 2/09/98 (H) JUD AT 1:00 PM CAPITOL 120 2/09/98 (H) MINUTE(JUD) 4/09/98 2948 (H) COSPONSOR REMOVED: CROFT 4/17/98 3060 (H) COSPONSOR(S): COWDERY BILL: HB 375 SHORT TITLE: CRIMES AGAINST CHILDREN/FOSTER CARE SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR Jrn-Date Jrn-Page Action 2/02/98 2200 (H) READ THE FIRST TIME - REFERRAL(S) 2/02/98 2201 (H) HES, JUDICIARY, FINANCE 2/02/98 2201 (H) INDETERMINATE FN (GOV/VARIOUS DEPTS) 2/02/98 2201 (H) GOVERNOR'S TRANSMITTAL LETTER 2/26/98 (H) HES AT 3:00 PM CAPITOL 106 2/26/98 (H) MINUTE(HES) 3/03/98 (H) HES AT 3:00 PM CAPITOL 106 3/03/98 (H) MINUTE(HES) 3/05/98 (H) HES AT 3:00 PM CAPITOL 106 3/05/98 (H) MINUTE(HES) 3/12/98 (H) HES AT 3:00 PM CAPITOL 106 3/12/98 (H) MINUTE(HES) 3/20/98 (H) HES AT 3:00 PM CAPITOL 106 3/20/98 (H) MINUTE(HES) 3/24/98 (H) HES AT 3:00 PM CAPITOL 106 3/24/98 (H) MINUTE(HES) 4/02/98 (H) HES AT 3:00 PM CAPITOL 106 4/02/98 (H) MINUTE(HES) 4/07/98 2898 (H) HES RPT CS(HES) NT 5DP 4/07/98 2900 (H) DP: DYSON, GREEN, BUNDE, BRICE, PORTER 4/07/98 2900 (H) 3 FNS (COR, DHSS, COURT) 4/07/98 2900 (H) FISCAL NOTE (GOV/VARIOUS DEPTS) 4/07/98 2900 (H) REFERRED TO JUDICIARY 4/17/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE FRED DYSON Alaska State Legislature Capitol Building, Room 428 Juneau, Alaska 99801 Telephone: (907) 465-2199 POSITION STATEMENT: Testified as sponsor of HB 203; explained changes in CSHB 375(HES) and offered amendment. PATRICK HARMAN, Legislative Assistant to Representative Fred Dyson Alaska State Legislature Capitol Building, Room 428 Juneau, Alaska 99801 Telephone: (907) 465-2195 POSITION STATEMENT: Explained changes in proposed committee substitute for HB 203. LISA TORKELSON, Legislative Assistant to Representative Fred Dyson Alaska State Legislature Capitol Building, Room 428 Juneau, Alaska 99801 Telephone: (907) 465-3467 POSITION STATEMENT: Explained proposed amendments to CSHB 375(HES). SUSAN G. WIBKER, Assistant Attorney General Human Services Section Civil Division (Anchorage) Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Explained CSHB 375(HES) and answered questions. DEAN J. GUANELI, Chief Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Answered questions on CSHB 375(HES). HARRY NIEHAUS P.O. Box 55664 North Pole, Alaska 99705 Telephone: (907) 488-9328 POSITION STATEMENT: Testified on CSHB 375(HES). SCOTT CALDER P.O. Box 75011 Fairbanks, Alaska 99707 Telephone: (907) 474-0174 POSITION STATEMENT: Testified on CSHB 375(HES) and the proposed amendments. MARCI SCHMIDT, Volunteer Hear My Voice; and Representative Parents United for Custodial Justice 2040 Fishhook Wasilla, Alaska 99654 Telephone: (907) 357-3618 POSITION STATEMENT: Testified on CSHB 375(HES). BLAIR McCUNE, Deputy Director Public Defender Agency Department of Administration 900 West 5th Avenue, Suite 200 Anchorage, Alaska 99501-2090 Telephone: (907) 264-4400 POSITION STATEMENT: Testified on CSHB 375(HES). WALTER GAUTHIER P.O. Box 2246 Homer, Alaska 99603 Telephone: (907) 235-2809 POSITION STATEMENT: Testified on CSHB 375(HES). JODI OLMSTEAD P.O. Box 56873 North Pole, Alaska 99705 Telephone: (907) 488-0831 POSITION STATEMENT: Testified in opposition to CSHB 375(HES). ACTION NARRATIVE TAPE 98-62, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 2:39 p.m. Members present at the call to order were Representatives Green, Bunde, Porter and James. Representatives Rokeberg and Berkowitz arrived at 2:55 p.m., and Representative Croft arrived at 3:00 p.m. HB 203 - ACTIONS FOR UNLAWFUL TRADE PRACTICES CHAIRMAN GREEN announced the first item of business would be HB 203, "An Act relating to actions for unlawful trade practices." He called on Representative Dyson to address the changes in the proposed committee substitute. Number 0050 REPRESENTATIVE FRED DYSON, sponsor, told members that since the last hearing, several things had been changed in answer to objections that had arisen in the committee. He expressed the belief that this is now a better bill. He asked Patrick Harman to explain the changes. Number 0109 PATRICK HARMAN, Legislative Assistant to Representative Fred Dyson, Alaska State Legislature, advised members that several changes are technical. The major substantive change incorporates payment of Rule 82 attorney fees if the defendant prevails. Mr. Harman agreed that the committee process from the last hearing had dramatically improved the bill. CHAIRMAN GREEN asked where Rule 82 fees had been incorporated. MR. HARMAN said that is on page 3, line 12, of Version R. Number 0202 REPRESENTATIVE BRIAN PORTER told members that as one critic of the original version, he appreciates the sponsor's consideration in adjusting these provisions, and he agrees with them. He noted that the result is not precisely Rule 82; it does provide that a plaintiff who prevails will be awarded full reasonable attorney fees and costs under Rule 82. However, it is quite acceptable to him, especially considering that the bill requires that notice be given to a potential defendant. Representative Porter commented, "And if they continue their action and are subsequently found to still be at fault, so be it. Let them pay the attorney's fee." CHAIRMAN GREEN asked whether there was further discussion. He indicated no one had signed up to testify. Number 0320 REPRESENTATIVE JEANNETTE JAMES made a motion to adopt Version R (0-LS0553\R, Ba objection, it was so ordered. REPRESENTATIVE JAMES made a motion to move HB 203, Version R, from committee with individual recommendations and attached fiscal note, if any. Number 0349 CHAIRMAN GREEN asked whether there was any objection. There being none, CSHB 203(JUD) moved from the House Judiciary Standing Committee. HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE CHAIRMAN GREEN announced the next item of business would be HB 375, "An Act relating to children in need of aid matters and proceedings; relating to murder of children, criminally negligent homicide, kidnapping, criminal nonsupport, the crime of indecent exposure, and the crime of endangering the welfare of a child; relating to registration of certain sex offenders; relating to sentencing for certain crimes involving child victims; relating to the state medical examiner and reviews of child fatalities; relating to teacher certification and convictions of crimes involving child victims; relating to access, confidentiality, and release of certain information concerning the care of children, child abuse and neglect, and child fatalities; authorizing the Department of Health and Social Services to enter into an interstate compact concerning adoption and medical assistance for certain children with special needs; authorizing the establishment of a multidisciplinary child protection team to review reports of child abuse or neglect; relating to immunity from liability for certain state actions concerning matters involving child protection and fatality reviews and children in need of aid; relating to persons required to report suspected child abuse or neglect; relating to foster care placement and to payment for children in foster and other care and the waiver of certain foster care requirements; relating to the access to certain criminal justice information and licensure of certain child care facilities; amending Rule 218, Alaska Rules of Appellate Procedure; amending Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and providing for an effective date." CHAIRMAN GREEN called on Representative Dyson to explain the bill [Version H, CSHB 375(HES)]. Number 0376 REPRESENTATIVE DYSON, who had helped to revise the original version, told members this is an ongoing process, and what is before them still needs work. The amendments fall into two categories. He believes there is agreement with the Administration on the first group of amendments, but if they have a problem with any portion, he wants to ensure them the chance to speak to that. For the second group of amendments, Representative Dyson and his staff have honest disagreements with the Administration; he wants to ensure the Administration a clear chance to present their perspective, which he believes is an informed and largely reasonable one. He noted that HB 375 came out of the Governor's task force and was significantly revised in the House Health, Education and Social Services Committee. Number 0573 REPRESENTATIVE DYSON offered Amendment 1, labeled 0-GH2009\H.1. Number 0621 LISA TORKELSON, Legislative Assistant to Representative Fred Dyson, Alaska State Legislature, explained that H.1 and H.2 are two parts of the memorandum she had passed around to committee members the previous evening. REPRESENTATIVE CON BUNDE said he would move Amendment 1 for discussion purposes. CHAIRMAN GREEN objected, also for discussion purposes. He specified that Amendment 1 is the 4/17/98 version [0-GH2009\H.1, Lauterbach, 4/17/98]. He asked Ms. Torkelson to explain what the three-page amendment does. Number 0683 MS. TORKELSON referred to the first change and told members there is duplicate wording: On page 21, line 31, it says, "the right and responsibility to protect, nurture, train and discipline the child"; and on page 23, line 18, it says, "(5) parents and guardians have the right to direct the upbringing of their children, including their medical care and the right to exercise reasonable corporal discipline". Ms. Torkelson said rather than having it in two separate places, this puts it into one. CHAIRMAN GREEN requested confirmation that it is just housecleaning. Number 0738 MS. TORKELSON said it moves the language to Section 1, under the rights and responsibilities of the parent. She had requested the drafters to either move both into the same place or delete one, as she hadn't been sure whether it was duplicative. On page 2 of the amendment, line 5, it then deletes all material from page 23, lines 18 through 20, of the bill. MS. TORKELSON explained the second change, relating to page 22, lines 9 through 23. That was a wording change recommended by the department. "We read over it and didn't see any problems with it," she said, indicating they may have made a couple of small changes but that it is a "mutual version." Number 0852 REPRESENTATIVE BUNDE requested confirmation that this is one of the amendments that have mutual consent. REPRESENTATIVE DYSON said yes, expressing confidence that the people present from the Administration would let him know if there is a difference of opinion. Number 0870 MS. TORKELSON returned to Amendment 1 and the wording relating to page 22, lines 9 through 23; she said that is tightened up wording regarding visitation, especially. Much of the language is the same, but it was easier to delete it and rewrite it, rather than take out certain words and replace them. REPRESENTATIVE DYSON explained, "It is certainly our conviction that if a child is removed from his home, particularly a young child, being able to have regular visits ... soon with their parents ... is really important to the kid. And we squabbled with the department here for the last week and a half about spelling out how often, and so on, and how soon those visitations should start. And the department takes the position that ... they recognize it as very important. They don't want the frequency and the immediacy spelled out in law. And I have a promise from them that it will be spelled out in regulation." MS. TORKELSON added, "Or policy." REPRESENTATIVE DYSON continued, "And policy statements." He indicated that would relate to both training and literature given to the foster parents about visitation. "And we will be watching that," he added. Number 1010 MS. TORKELSON advised members that in her office were copies of the comparison between Version H and the Governor's original bill that was done by the department. In addition, she had done a comparison by section number. CHAIRMAN GREEN agreed that might be a quick way to bring up to speed those members who are not also members of the House Health, Education and Social Services Committee. REPRESENTATIVE JAMES and REPRESENTATIVE NORMAN ROKEBERG expressed the need to review the bill. REPRESENTATIVE ETHAN BERKOWITZ said he had skimmed it and was generally happy with it. However, there are a couple of tweaks that he believes would strengthen it. CHAIRMAN GREEN suggested before getting into the amendments that Representative Dyson lead the committee through the bill briefly and then be ready for questions. Number 1141 REPRESENTATIVE BUNDE withdrew Amendment 1. Number 1147 REPRESENTATIVE DYSON offered to make a summary statement about the bill and then let better-informed people from the department explain it. He stated his belief that most of this began in the Governor's task force on child protection, which started meeting the previous August. There are two or three things it aims at, which are fairly critical. Changes in federal law require conformity by the states if they want federal participation and funding. "And I think the price is about $10 million here," he noted. The federal law requires making protection of the child preeminent. It puts a real emphasis on getting children out of state custody, either reunited with their families or in a permanent placement, and on minimizing the number of placements, so that children don't get shuffled from home to home. REPRESENTATIVE DYSON said as he understands it, the federal law requires a multi-disciplinary team working on child protection issues. There are problems in Alaska's law about confidentiality, particularly relating to different departments' ability to share relevant information pertaining to juvenile records; this bill purports to take care of that. The five departments working on this are affected by this bill in how those things are handled, in trying to come into conformity with federal law, in trying to eliminate problems with sharing information, and in putting the emphasis on protecting children. Number 1267 CHAIRMAN GREEN asked whether the changes made in the House Health, Education and Social Services Committee, as well as the proposed amendments, were because of differences among departments, differences between Representative Dyson and the department, or both. REPRESENTATIVE DYSON said both, noting that the department had worked with them very cooperatively. He also noted that a lot of parents had called, concerned about parental rights and preemptive actions by the state. "Most of our concerns have been taken care of," he added. Number 1305 MS. TORKELSON informed members that she was having the two comparisons she had mentioned earlier brought from her office. Number 1328 CHAIRMAN GREEN advised members that Susan Wibker of the Department of Law would lead them through the bill. He then confirmed that participants at the four teleconference sites of Homer, Anchorage, Mat-Su and Fairbanks had copies of Version H. Number 1384 SUSAN G. WIBKER, Assistant Attorney General, Human Services Section, Civil Division (Anchorage), Department of Law, came forward. She explained that the first 21 pages or so of the bill deal with changes to the criminal law that increase the penalties for homicides of children and make it easier to charge more serious crimes when there is a death of a child. Many of these provisions are contained in other bills, including bills sponsored by Senator Halford and Senator Pearce. The intent of the changes to the criminal law is to make it easier for prosecutors to get sentences in homicides of children that are comparable to the sentences received for homicides of adults. MS. WIBKER explained, "The reason you get lesser charges against the offender that kills a child, and a lesser sentence, is because you can almost never prove intent to kill a child. As a prosecutor, often what you have is an intent to make a child be quiet, to control a child, to make a child stop crying. So, what these changes do is allow a prosecutor to bring charges that would get a sentence commensurate with the sentence you would get for killing an adult. MS. WIBKER continued, "A good example is the case you just had in Anchorage last week, where the woman took a child less than two and slammed it against a surface hard enough to fracture its skull and kill it. If anybody did that to an adult, I don't think we'd hesitate to say there was an intent to kill." Ms. Wibker said the jury in that case had to decide whether it was murder II or manslaughter, which is comparable to killing someone while drunk driving. Number 1482 REPRESENTATIVE BERKOWITZ asked whether she is talking about Section 12. MS. WIBKER said she is talking about the Title 11.41 crimes that deal with homicides. It is about the first four to five pages of the bill. "Across the board, they increase the penalty and make it easier to get more serious charges," she explained. "One of the things the bill does that's very important is it increases criminally negligent homicide from a C felony to a B felony. That's very important, because most of your shaken baby cases ... are settled as criminally negligent homicides. A first offender is facing a maximum of five years, but with sentencing benchmarks, it's more like two. Under this bill, a first offender would really be facing ten years." MS. WIBKER told members the bill also creates a felony indecent exposure statute, which Alaska did not have before, and it makes it a more serious crime when the victim is a child. Number 1571 REPRESENTATIVE ERIC CROFT referred to pages 5 and 6; he asked what the aggravators are for indecent exposure in the first degree. MS. WIBKER replied, "The victim is a child, and there is knowing masturbation in the presence of a child, which would make it a felony rather than a misdemeanor." She added, "You'd be amazed at some of the defenses to these charges we've heard." MS. WIBKER next referred to pages 6 and 7, where endangering the welfare of a minor is expanded and broken into both a felony and a violation level of offense. She said it is basically Alaska's criminal neglect statute. It is a crime of omission, of neglect against a child. Under existing statute, it was only a crime to intentionally desert a child. This expands the criminal penalties into things like knowingly leaving a child with a sex offender or with somebody known to be violent toward children. Number 1636 REPRESENTATIVE CROFT indicated that was in the original bill, but for children under age six. He asked what changes besides the increase in age had been made. MS. WIBKER replied that some amendments in the House Health, Education and Social Services Committee had dealt with the age of the victim and whether or not having a babysitter on the premises would serve as a defense. REPRESENTATIVE CROFT asked, "And it no longer does?" MS. WIBKER said it does not at the felony level; it does at the misdemeanor level. Those were the amendments made. Number 1669 REPRESENTATIVE BERKOWITZ referred to Section 9, stating his understanding that it is a B felony if the child dies and a C felony if there is sexual contact, sexual penetration. He asked, "And the predicate elements are that you leave the child with somebody, essentially? Or you intentionally desert the child?" MS. WIBKER replied that it is intentional desertion, or what they would call the crime of poor supervision, knowingly leaving a child with someone that is going to be dangerous to that child. Number 1702 REPRESENTATIVE BERKOWITZ indicated his understanding that it is not in any way an accessory type of crime. He added, "And it seems to me you were in the accessory zone." MS. WIBKER replied, "No. ... You're getting at a problem in the criminal law that we feel this solves, which is when you have a child that dies or gets seriously injured, most of the time you have two suspects. And under existing criminal law, you have to prove beyond a reasonable doubt that one or the other did it, and usually it's going to be two parents, parent/step-parent, parent/boyfriend/girlfriend, whatever." MS. WIBKER noted that in many cases, the police have a difficult time proving who did it. There may be insufficient evidence to prove conspiracy, aiding and abetting, or other crimes that might apply to the person who is guilty of poor supervision. There have been at least a handful of cases where a child has died or been seriously injured but two people have walked Scot-free, or have made a deal where one would get immunity, one would go to trial, and then they would implicate each other and both walk. Or else one would end up with some kind of a "little dinky plea bargain" because the state didn't have proof beyond a reasonable doubt as to who did it. MS. WIBKER explained, "What this does, when a child dies and the evidence shows that both people caring for this child knew that the child was in a dangerous situation with the other person and didn't do anything, the state could then charge both, rather than have both walk. Not too long ago, there was a case in Anchorage, the early '90s, where a child died. There were high-heel prints, shoe marks, on the child. Both parents admitted to shaking the child, hitting the child. Neither one ever 'fessed up' to anything close to what happened to the child, and ... I think one ended up plea bargaining to a misdemeanor assault, and the other one walked Scot-free. This when you bring up aiding and abetting." Number 1798 REPRESENTATIVE PORTER stated his understanding that they had taken out any third person, in terms of leaving a child in the proximity of a sex offender. MS. WIBKER replied that on the first degree endangering, there is no babysitter defense anymore. Number 1814 REPRESENTATIVE CROFT asked what AS 17.30 is. MS. WIBKER answered that it is the statute that would allow a prescription for a controlled substance. If a person has a controlled substance authorized under AS 17.30, that person has a prescription for legal use of it. REPRESENTATIVE CROFT said he understands the first degree endangering the welfare, and on page 7, the second degree. He also understands the 'incapacitated,' (2) and (3). However, in (1) is a person guilty of this crime if that person simply possesses drugs? MS. WIBKER said that is correct. That is one reason it is a violation, which is like a ticket and a fine, a citation. It is not a misdemeanor. REPRESENTATIVE CROFT asked about the first degree offense. MS. WIBKER said for the first degree, the level of offense depends on the outcome to the child. Number 1862 CHAIRMAN GREEN asked whether possession would apply even if that substance were not involved in whatever happened. MS. WIBKER explained that it would be a person caring for a child while possessing cocaine, for example. It is the possession, not the abuse or use, that becomes the problem. "But notice, it's a violation," she added. REPRESENTATIVE CROFT emphasized that it is not use or impairment, nor does it have to be tied to the harm to the child. Number 1890 REPRESENTATIVE BERKOWITZ said he wants to be clear: If someone has a bag of dope and is taking care of his or her four-year-old child, that person has just broken two laws. MS. WIBKER said that person would have committed a violation, which would result in a ticket, a citation. Number 1915 REPRESENTATIVE PORTER asked whether they had negated the ability to charge that person with a felony, if another felony crime existed. MS. WIBKER replied, "If you could prove possession of cocaine, obviously the prosecutor is going to prove possession of cocaine. If you can't prove that, what this does ...." REPRESENTATIVE PORTER suggested this is a general statement. He stated, "I mean, you're barred from a general if there is a specific." MS. WIBKER replied, "Right. You wouldn't want this to be a 'lesser included,' that would bar you from getting a C felony possession of [cocaine]." Number 1929 REPRESENTATIVE CROFT said, "The other way around, ... the simple possession isn't a 'lesser included' of this, because it's not lesser. It is included. It has fewer elements, just knowingly possessing cocaine. This adds the additional element of 'while you have control of the child.'" He said it is written in such a way that it is not stepping on the general possession statutes. Number 1953 REPRESENTATIVE PORTER said this is knowingly possessing a controlled substance, which is general in terms of drugs. MS. WIBKER agreed, adding, "without a prescription." REPRESENTATIVE PORTER commented, "Well, if Dean [Guaneli] says it's okay, I'll go for it." CHAIRMAN GREEN asked Mr. Guaneli to come forward. Number 1980 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, explained that the purpose of this particular statute was to start identifying people who were passed out from alcohol, having dope in their homes while the kids were there, and to start establishing a track record with these people and try to get them into counseling if appropriate. As to the specific issue of whether, if someone has a pound of cocaine, this somehow precludes that charge being filed, no, it doesn't. This says that if, in addition to that, there happens to be a child in the house, the person is guilty of an additional offense, in this case a violation. MR. GUANELI said he doesn't think that adding an additional element to the possession of cocaine creates some legal or constitutional difficulty. He acknowledged it is a little unusual when applied to cocaine, but when applied to marijuana and other offenses, it doesn't look quite as unusual. He believes the idea is to also give prosecutors some leeway when someone has a little dope in the house; he noted that this offense might be more palatable to some people than a drug offense. It is a way to start keeping track. Number 2036 REPRESENTATIVE BERKOWITZ said he is not condoning drug use by any stretch of the imagination. But there is a world of difference between knowingly possessing and being incapacitated or under the influence. Most of these are not going to be cocaine cases. They will be marijuana cases, "just keeping it in the pocket, being fully functional, taking care of the kids, putting the kids to bed and then smoking a joint later on." Now, all of a sudden, they are endangering the welfare of their children? It is not the same as having them take care of the kids while incapacitated or drunk. Representative Berkowitz questioned whether that is really the direction they want to head. CHAIRMAN GREEN suggested that if it happens in a house with no external evidence, it won't be prosecuted anyway. It would only be those places where this child has had some other problem occur. REPRESENTATIVE BERKOWITZ likened it to someone being pulled over for speeding in a car, then being patted down. REPRESENTATIVE PORTER questioned under what authority such a person would be patted down. He said a person would have to be under arrest for something. REPRESENTATIVE BERKOWITZ suggested it may be for suspicion of drunk driving, or any number of reasons. If there happens to be a child in the car, that person would be charged with endangering the welfare of the child based on the marijuana, not anything else. "And I'm not sure that's the route we want to head," he restated. Number 2128 REPRESENTATIVE BUNDE noted that in that analogy of being pulled over for suspicion of drunk driving, the person would certainly be endangering the welfare of a child. He acknowledged there may be an analogy where a person is arrested for another offense, however. REPRESENTATIVE JAMES said she is somewhat sympathetic to what Representative Berkowitz was saying. She indicated she doesn't fully understand the scenario that could be happening. She referred to Chairman Green's suggestion that a person's possession of a controlled substance while caring for a child would not be evaluated unless there was another problem that would cause a search, for example. CHAIRMAN GREEN said there has to be some reason to trigger this. There would be some external manifestation before there would be a search like that. REPRESENTATIVE JAMES asked about a child's crying. CHAIRMAN GREEN said he doesn't know that crying by itself would be cause for an intrusion. Number 2206 MR. GUANELI said he'd thought Chairman Green's comment had meant there would have to be some triggering mechanism to get the police to the house or get authorities in the situation in the first place. CHAIRMAN GREEN affirmed that. MR. GUANELI said that usually means something involving the child. REPRESENTATIVE JAMES pointed out that a child can get hurt in the park, for example, and then everyone rushes in. MR. GUANELI agreed with Representative Porter that it doesn't allow searching through purses or pockets. However, if a law enforcement official is on the scene and smells marijuana, that may justify at least asking some questions. REPRESENTATIVE JAMES asked: What if it falls out of someone's pocket? MR. GUANELI responded, "I think this generally reflects a feeling that illegal drugs in houses where there are young children is not a good idea. I think that kids get into drugs, they find your stash, they're more susceptible even to secondhand marijuana smoke." Number 2249 REPRESENTATIVE JAMES agreed, adding that she detests any use of illegal drugs. However, she is a little uncomfortable about this. There may be more problems with this than they are anticipating. Number 2271 REPRESENTATIVE PORTER said, to allay concerns, that if a law enforcement officer discovers that someone possesses marijuana, that is an offense, in and of itself, whether there is a child there or not. If it were a lawful observation and determination that the possession occurred, the person would be charged with an offense. This is just a violation that is tantamount to a parking ticket, and which can be used as "a little wedge with parents who otherwise might continue that behavior." He stated, "Nobody's going to take a child from a parent because of one violation. It just isn't going to happen." Number 2325 REPRESENTATIVE DYSON said from his perspective, a major concern here is not that the person who is drunk or stoned is going to necessarily deliberately harm the child. Being incapacitated is the concern. A person who smokes a joint after putting the child to bed will be incapacitated if there is a fire or another emergency; it is irresponsible to be incapacitated when one has the responsibility for a child. That is what they are aiming at. REPRESENTATIVE BERKOWITZ clarified that he is distinguishing between possessing and being incapacitated. He has some reservations about having possession as a trigger. REPRESENTATIVE CROFT suggested it could be "under the influence of," a medium step from possession to incapacitated. As it is, they haven't even tied it to any medium level of impairment or use. Number 2384 CHAIRMAN GREEN noted that obviously possession would be easier to prove. He asked whether "under the influence" creates problems with determining the amount necessary before being under the influence. MR. GUANELI suggested it would help, if they use a term like "under the influence," to have a definition tied to something along the lines of our case law involving drunk driving, where it is impairment to a certain degree; he said he would have to think about what exactly that would be. As long as there is a good definition, it makes some sense and actually would apply to a broader range of cases. However, he would want that definition to be rather tight. CHAIRMAN GREEN said he thinks that is a good point, that possession by itself may pose no harm at all. Number 2416 REPRESENTATIVE BUNDE responded that he probably wouldn't argue about marijuana possession. But what about crack cocaine? Anybody who possesses cocaine at home, with children there, is not presenting a good home life for those children. Such a person should be counseled out of that behavior, and a violation would start that process and build a paper trail with the department for any future violations. Representative Bunde acknowledged the impossibility of crafting something that covers all situations, then restated his concerns about cocaine in the home. TAPE 98-62, SIDE B Number 0006 CHAIRMAN GREEN asked whether they should change what they have, "controlled substance." REPRESENTATIVE BERKOWITZ suggested Schedule 5 or above, or Schedule 4 or above. Number 0032 REPRESENTATIVE CROFT said it sounds like they are narrowing it, but as Mr. Guaneli noted, they actually would be broadening it. There are situations where a person doesn't possess marijuana but is under its influence, for example, without being incapacitated. One could fall through the cracks of this, on a level that poses more harm to the child. Being under the influence seems more directly related, and more culpable, than simply having it in one's possession. CHAIRMAN GREEN said these are "ors," though. REPRESENTATIVE CROFT agreed there are three "ors": (1) is knowingly possessing; (2) is being incapacitated, which is unconscious or incapable of making rational decisions; and (3) is again being incapacitated. Therefore, somebody who was not possessing but who had just used would not be included, while somebody who possessed but wasn't using would be included. He suggested that is backwards from what they would like to have happen. CHAIRMAN GREEN apologized, saying he had thought Representative Croft was arguing the other direction. Number 0056 REPRESENTATIVE BERKOWITZ stated his understanding that this doesn't take into account alcohol. CHAIRMAN GREEN said it does, under (3), page 8. REPRESENTATIVE BERKOWITZ said, "But that's an 'incapacitated.'" REPRESENTATIVE CROFT agreed; if someone is just somewhat drunk, it wouldn't apply. CHAIRMAN GREEN suggested an intoxicant wouldn't necessarily be limited to conventional booze. MS. WIBKER said it includes inhalants. Number 0082 REPRESENTATIVE PORTER said he thinks Representative Croft makes a good point. CHAIRMAN GREEN agreed. REPRESENTATIVE PORTER suggested that could be easily accommodated by having the phrase "impaired or incapacitated" on both page 7, line 30, and on page 8, line 2, and then defining "impaired" along the lines Mr. Guaneli had discussed. CHAIRMAN GREEN asked about dropping (1). REPRESENTATIVE PORTER replied, "No, I would not drop (1). It took 30 damn years to get possession of marijuana to be considered serious, and I'm not going to vote to put it back where it was." CHAIRMAN GREEN stated his understanding that the suggestion is to add "impaired or incapacitated" on (2) and (3). He then suggested just putting "impaired," because one who is incapacitated is impaired. REPRESENTATIVE PORTER agreed that "impaired" is sufficient. Number 0148 MS. WIBKER next referred to page 8, which deals with sentencing changes. At the bottom of page 8, the important change is that currently a conviction for manslaughter comes with a minimum sentence of five years. This makes the minimum sentence seven years when the victim is a child under age 16. REPRESENTATIVE BERKOWITZ suggested this would apply even in a DWI [driving while intoxicated] case. MS. WIBKER replied that it would apply across the board to a manslaughter conviction if there is a child victim. REPRESENTATIVE BERKOWITZ suggested that is not rationally related to child protection directly. If they are trying to target child deaths that are the result of negligence, shaking babies, and so forth, that should be specified in here, rather than having the sweeping generality, the accident that results in the death of a child, as opposed to the death of an adult. Number 0203 MS. WIBKER referred to page 9, line 7. She told members that language in bold print is a change in the law. In a conviction for criminally negligent homicide, it allows the judge to aggravate the sentence up to the maximum, which would be ten years, with criminally negligent homicide being a B felony. Under current sentencing guidelines, a first offender falls within a certain range and normally gets one to four years; a second offender would normally get four to six years; and a third offender on a B felony would get six to ten years. What this does is if the victim is a child under age 16, the judge can aggravate the sentence up to what a third offender would get, rather than being restricted to those guidelines. It lets the age of the victim act as a sentencing aggravator. MS. WIBKER noted that the rest of the changes in bold print on page 9 deal with references, where changes have been made and the references to those other statutes need to correlate with the changes. MS. WIBKER next referred to page 10. She said this part of the bill deals with the creation of a child fatality review team, which would be a team directed by the medical examiner to do death investigations of children. She explained that the child fatality review team has been operating, but not in statute; this creates statutory authority and allows the medical examiner to put together a review team for deaths. When there is a death not investigated by the troopers, the report could go directly to the medical examiner; otherwise, the medical examiner would come in after the law enforcement investigation. This is to make sure that deaths of children are not too quickly written off as accidents, SIDS [sudden infant death syndrome] or natural causes. CHAIRMAN GREEN mentioned that some Senate bills are addressing portions of this. He asked whether there would be a dilemma if this is also addressed in another bill and both should pass with different provisions. MR. GUANELI said that is a good question. He noted that there is Alaska case law on that, but he couldn't immediately recall it. He believes the courts have wrestled with that issue and resolved it in a way that reflects legislative intent, if that can be discerned. He added that if Senator Halford's bill relating to changes to the homicide laws were to pass both bodies, for instance, he would hope that those comparable provisions here could simply be removed, eliminating any problem. Number 0401 MS. WIBKER again referred to the child fatality review team. She said based on the history available to the Department of Health and Social Services, perhaps 10 to 12 deaths of children per year may be prosecutable as homicides, if the medical examiner were able to do a thorough background search and take a second look. MS. WIBKER next referred to page 15. This part of the bill deals with the Department of Education (DOE), changing the law so that a person convicted of sex offenses cannot obtain a teaching certificate; if a person with a teaching certificate gets convicted, that person would lose the certificate. Under the old law, after five years a person could try to re-obtain the certificate; this eliminates that provision. "Once you're a convicted sex offender, that would be it, permanently," Ms. Wibker added. Number 0450 CHAIRMAN GREEN asked whether that would hold because of the extreme difficulty in correcting a deviant's behavior in that regard. He further asked whether this might be vulnerable to being struck down by some liberalized court. MS. WIBKER said she doesn't know the answer, but she doesn't see any constitutional reason that the DOE would have to give a sex offender a teaching certificate. In working on this bill, she had asked that department how many times they had given a convicted sex offender a teaching certificate after five years because of being convinced a person was rehabilitated; the DOE had told her they had never done it. "This is not a change in practice," she concluded. Number 0484 REPRESENTATIVE BERKOWITZ noted that some concern has been raised with .460, indecent exposure, about a high school student caught "mooning," for example. REPRESENTATIVE BUNDE agreed that is a valid point. If one was caught in a youthful indiscretion such as mooning or public urination, could those qualify as sex offenses and bar that person from getting a teaching certificate for life? Number 0527 MS. WIBKER said she doesn't believe a juvenile conviction would apply here, unless it were under an automatic waiver. She noted that Senator Pearce has a bill with this same statutory provision, but has deleted the reference to AS 11.41.460, misdemeanor indecent exposure, while keeping in AS 11.41.458, felony indecent exposure. Ms. Wibker believes that is logical, because in reading the definitions of those offenses, the misdemeanor is not necessarily a crime involving a child. Ms. Wibker commented, "Who knows what really goes on, but most of the time when you find a misdemeanor conviction for indecent exposure, the story you get is, 'I'd been to a bar, I was urinating in public, the police saw me and popped me with this crime, that's all it was.'" She suggested that if the concern is that people wouldn't be allowed to teach because of that, they could delete the reference to AS 11.41.460, as Senator Pearce had done in her bill. Number 0596 REPRESENTATIVE PORTER commented, "Just so that there's no concern, mooning is out because it requires genitals, and ... taking a leak is not intentional exposure, as is required." MS. WIBKER agreed that urinating in public does not meet the statutory definition, and the prosecutor would have to prove a lot more than that to get the conviction. "But yet that's what they all say happened," she added. MS. WIBKER referred to page 16 and said the references to statutes are changed there; these are not substantive. MS. WIBKER next referred to page 17, Section 21, amending AS 25.20.061. She said that entire section dealing with AS 25.20 was added as an amendment in the House Health, Education and Social Services Committee. It deals with custody decisions in divorces, not the parental statutes or the Division of Youth and Family Services (DFYS) child protection system. However, it does deal with domestic violence, creating presumptions and giving the courts guidelines for deciding the custody of children when there has been domestic violence in the family. That entire section is set up so that if there has been domestic violence, that is factored in when decisions about custody and visitation are made. The safety of the child is given priority and the appropriate weight. Number 0712 MS. WIBKER referred to page 21, line 24, Section 27. She told members this is where the statute begins to deal with the child protection system on the civil side of the law. Number 0727 REPRESENTATIVE BERKOWITZ asked, "Lines 30 and 31, having been a child and expecting to have some at some point, what exactly is training a child and disciplining a child?" MS. WIBKER said that was the subject of some discussion in the House Health, Education and Social Services Committee, and there had been a specific amendment. She understands that "train" would be something like educate, guide and teach. MS. WIBKER mentioned that Representative Dyson had a proposed amendment addressing the bottom of page 21, so that it would read, "the right and responsibility to protect, nurture, train and discipline the child, including the right to direct the child's medical care and the right to exercise reasonable corporal discipline". She noted that the section deals with parental rights and responsibilities; the attempt was to clean it up and keep all of the language dealing with parental rights and responsibilities together. MS. WIBKER told members that pages 21 through 23 are the so-called legislative findings, a policy statement. The first section deals with parental rights and responsibilities, and then it addresses the state's responsibilities when a child has been abused or neglected. It points out that in cases where there is very serious risk to the health or safety of the child, the state should be finding a safe, permanent home for the child. If the child can be safely reunited with the family, or if the state can do something to prevent removal from the family, the state should do that by offering the family appropriate rehabilitative services. In addition, the state should be providing visitation between the child and the parent. Number 0844 CHAIRMAN GREEN asked, when talking about reasonable efforts and reasonable safety, if "reasonable" is a standard of law that doesn't need a description. MS. WIBKER explained that "reasonable efforts" is a federal legal term that applies to the Department of Health and Social Services. By law, that department must make reasonable efforts to prevent the removal of the child from the family and, if removed, must make reasonable efforts to return the child to the family home. "So, you hear the term 'reasonable efforts' thrown around; that's what it means, to prevent removal and to reunite," she concluded. CHAIRMAN GREEN inquired whether it is something upon which litigation could turn. MS. WIBKER answered, "It's pretty clear. It's been required in every case. What this bill, in federal law, does now is pull out the very, very serious cases of abuses, and no longer requires the department to do that, but requires the department to find a permanent, safe home for the child. That comes later." MS. WIBKER discussed guidelines for the state listed at the bottom of page 22 and on page 23. When the department removes a child and sets up a rehabilitative plan for the family, it sets out that the parents are expected to participate in that plan, to try to get their children home. The last part of page 23 deals with the importance of bonding and attachment, especially in children under age six, who need to form a bond with some adult care-giver. If that doesn't happen, there are greater risks later on that a child will have very serious problems, such as lack of a conscience, lack of empathy, inability to bond and a very high risk of criminal behavior. Ms. Wibker concluded, "This is a policy statement about the importance of getting fast permanent, safe homes for children younger than six, and a policy statement about how important it is for young children to be able to bond." Number 0956 CHAIRMAN GREEN asked whether, with that guideline, a person could be prosecuted for being an aloof parent. MS. WIBKER indicated there is no crime. It is just a directive to the courts, when they review a case, of how to interpret this statute and this law. Noting that the state can define "very young children," she said one reason it is important to have that there is that federal law wants the states to treat cases involving very young children, especially when they have been abandoned, as more serious than other cases, putting a priority into getting those children into safe, permanent homes. Therefore, it is important to deal with very young children a little differently. MS. WIBKER next referred to page 24, Section 28, relating to authorization of the Interstate Compact on Adoption and Medical Assistance, a compact that 37 states have entered. She said that basically it means that states accept each others' Medicaid eligibility determination on a child. Ms. Wibker explained, "And the reason that's important is because when special needs children are adopted by people in another state, currently Alaska may cover the child under Medicaid. And if a couple in Arizona adopts the child, their Medicaid has to be stopped in Alaska and then they have to reapply in Arizona. If you're part of this compact, it will just carry uninterrupted. This is an important part of getting special needs children adopted into permanent, safe homes. This only applies to adoptions that are special needs, which are going to be things like kids that are HIV-positive and fire-setters. These are adoptions to get snagged or held up because of something like not being able to get the medical coverage the child needs." MS. WIBKER pointed out that Alaska has already been accepting the Medicaid eligibility determinations of other states, when people adopt children from elsewhere. By joining the compact, the state is not incurring any more expenses. "We're getting the benefit of our bargain," Ms. Wibker said. "We're getting other states to pick up our kids." MS. WIBKER next referred to page 24, saying it moves into the standards under which the state could take legal custody of children, "what we call the jurisdictional part of the statute, jurisdiction meaning there are certain fact patterns that would allow the state to have legal jurisdiction over a child and to take legal custody of that child." The first 5 of the 12 situations listed are abandonment; an incarcerated parent when the other parent is not available to care for the child; the child left with a babysitter or neighbor, when no one returned to pick up the child; and medical neglect, where the parents know the child needs medical treatment for either a physical or mental injury but fails to get that treatment for the child. Number 1151 CHAIRMAN GREEN suggested that lack of knowledge of that special need would be a defense. MS. WIBKER confirmed that, saying it requires that the person knowingly fails to provide the treatment, such as after a doctor has said the child needs treatment. She noted that there are other defenses that would keep the department out of parents' lives, such as "spiritual treatment," if that is the family belief; that is in another part of the statute. Another would be poverty, in which case the state's job is to help parents get the means, rather than to take their children. So, poverty or spiritual beliefs and practices would keep the state from intervening. Number 1194 REPRESENTATIVE CROFT mentioned Christian Scientists. Number 1235 MS. WIBKER said there is a specific statutory exception for that. She read from AS 47.10.085, medical treatment by religious means, which says, "In a case in which the minor's status as a child in need of aid is sought to be based on the need for medical care, the court may, upon consideration of the health of the minor and the fact, if it is a fact, that the minor is being provided treatment by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner of the church or denomination, dismiss the proceedings and thereby close the matter. This may be done, in the interests of justice and religious freedom, on the court's own motion or upon the application of a party to the proceedings, at any stage of the proceedings after information is given to the court under AS 47.10.020(a)." REPRESENTATIVE CROFT said he is a little more comfortable with that; it is not a "must" but a "can." He suggested it may be a tough call for a judge. MS. WIBKER clarified that these are not grounds for automatic removal. When the department investigates, these provisions allow the department to make a decision. If they substantiate grounds under this statute, they first decide whether there is something to be done to prevent removal, such as offering treatment or family counseling, or getting a violent person to leave the home. Second, they consider whether to take legal custody; these 12 grounds are grounds for doing that. Once the department has legal custody, they can decide where to place the child, but that can be in the home if they can get the parents to do some kind of treatment that will result in the child being safe there. A third step is when they need to remove the child; there is a burden of proof for that which is separate from the burden of proof for taking legal custody. Number 1371 CHAIRMAN GREEN noted that it was almost 4 p.m. and they were halfway through the bill. He suggested having the people standing by on teleconference testify before continuing the overview. He asked that testifiers limit their comments to three minutes each. Number 1404 HARRY NIEHAUS testified via teleconference from Fairbanks. He assured members he doesn't use marijuana, but noted that possession or use of it is a criminal offense. Expressing concern about family rights, he said that many times people are charged with criminal offenses, such as assault on their children or physical abuse; under this bill, possession of marijuana would be included. These people are never taken to criminal court, or else the charges are dismissed, yet the children are still held in protective state custody. He said there needs to be a balance, so if charges are dismissed or a parent is found innocent, the children are returned. MR. NIEHAUS next referred to recognized religion. He asked, "What if you're an American Native, and you want a shaman to pray over your child? The U.S. Supreme Court has recognized the American Indians' religion as a viable religion. ... Be specific. What is a recognized religion? I find a problem with that statement there." He thanked members for listening. Number 1546 MS. WIBKER pointed out that to protect a child doesn't require a criminal prosecution. There are very different standards and burdens of proof because nobody goes to jail in a child abuse case. "You get rehab," she stated. "That's the only consequence, is you get rehab. So, it's different." Number 1570 SCOTT CALDER testified via teleconference from Fairbanks. He told members, "Here we go again with House Bill 375. We were just trying to make our way through the amendments here earlier, and it looks like the suggested tweaking and tuneups all sort of skew things in the direction of covering every possible base for the politically constituted entities such as the state or some agency. And there don't seem to be any protections for individual people who are falsely accused or maliciously prosecuted or otherwise - even unintentionally - mistreated." MR. CALDER suggested there should be language here that protects people from the agencies involved in implementing this. He said some of these agencies have been responsible for numerous injuries to people, and there have been complaints for decades about excesses. The burden is always on the individual, who could spend $10,000 to $50,000 to sue a government in order to protect the family. Mr. Calder said this is not what we have government for. MR. CALDER told members that Ralph Nader's characterization of the Corvair being unsafe at any speed applies to the DFYS at this point. He doesn't want legislation that essentially forces a person to own a Corvair, or in this case to be subject to state agencies with apparently unlimited power. A balance would be appropriate, so that individuals who are adversely impacted could get some type of relief. If the standards suggested here for the care of children were equally or more incumbent upon the state, one might conclude there is a fair process. But since they are talking about public funding of these functions of government, it seems they should talk first about accountability of the agencies to people, rather than accountability of the agencies to the designated projects of the agencies. "I'd like to get this outside of the agency," Mr. Calder concluded, indicating he would have liked to make further comments. Number 1787 MARCI SCHMIDT, Volunteer, Hear My Voice; and Representative, Parents United for Custodial Justice, testified via teleconference from Mat-Su. She told members that Hear My Voice is presenting an award to U.S. Representative Dave Camp, one of the authors of Public Law 105-89, which is scattered within this bill. She asked in what part of the new federal law the multi-disciplinary task force and the confidentiality language are found, stating her understanding that Representative Dyson or Ms. Torkelson had indicated that. Number 1832 MS. WIBKER replied that she believes Representative Dyson and Ms. Torkelson were referring to the Governor's child protection review team that issued a report in December, with about 24 recommendations for changes in practice and the law. One recommendation in that report was that there be more ability for the different agencies to talk to each other and work cases together. MS. SCHMIDT suggested it is not in the public federal law, then. MS. WIBKER affirmed that. MS. SCHMIDT expressed concern about doing too much at once. With so many fingers stirring the pot, the intent of the federal law may be totally lost, and the state will not be in compliance. She asked whether anyone had talked with Representative Dave Camp's office in Michigan. CHAIRMAN GREEN replied that he doesn't know, adding that nobody at the meeting had done so. Number 1922 MS. SCHMIDT noted that Representative Camp was the main sponsor of PL 105-89, which some of this must comply with, at least by 1999. She expressed concern that this legislature would be back in another session, trying to correct the damage that will be done with this bill if they don't just stop, comply with the federal law, and leave it at that. Children will be the ones to suffer if someone doesn't just take time to stop, look and listen, she concluded. Number 1992 CHAIRMAN GREEN asked Ms. Schmidt, "When you refer to damage, are you suggesting that there may be problems between federal and state law? Or damage due to premature actions ... by the agencies? What do you mean by damage?" MS. SCHMIDT suggested looking at past performance. A report on the DFYS says things are not getting done. She has a 15-year-old friend in crisis whom she can't even get a social worker to take a look at, and it has been two months since the school counselor made a report. Ms. Schmidt stated, "And now, you're going to have all these laws, regulations and rules suddenly come into effect with this particular bill, where you have domestic violence in the courts; everything is so meshed in here that the intent that was designed with PL 105-89 is just going to be lost. You won't be in compliance, because everybody's just stirring their fingers in the pot and nobody's looking. Children are dying or have died to get federal law passed." Number 2080 MS. WIBKER explained that this bill does incorporate the federal law, and more. She said, "And that was the intent. And everything that the department has done in the way of implementing the federal changes, all of our proposals are sent to federal attorneys that review it and advise us on whether we're in compliance." Number 2118 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He first addressed Section 9 on page 6, AS 11.51.100(a)(1), referring to the current law, which states, "(a) A person commits the crime of endangering the welfare of a minor if, being a parent, guardian, or other person legally charged with the care of a child under 10 years of age, the person intentionally deserts the child in any place under circumstances creating a substantial risk of physical injury to the child." MR. McCUNE explained that physical injury is a broadly defined term that could include any kind of pain or physical impairment. Noting the raised age limit of 16 years in CSHB 375(HES), he suggested that if a parent got fed up with a 14-year-old daughter and went away from the Dimond Mall, for example, there may be some risk of physical injury. He suggested instead that for a felony-level offense, perhaps "serious physical injury" would be more appropriate. Number 2259 MR. McCUNE next pointed out that the changes in Section 21 relate to child custody in divorce-type situations, rather than to the child in need of aid (CINA) laws in Title 47. He said he doesn't know how they apply to the rest of the bill. REPRESENTATIVE BERKOWITZ referred to page 17, line 12, subsection (a). He asked whether Mr. McCune was thinking it would be best if that said, "If the court finds in a proceeding involving child custody, other than in a CINA proceeding ...." MS. WIBKER commented that there is no need to say that. Number 2360 MR. McCUNE said he hadn't read through it, but he wanted to point out that it wouldn't involve CINA proceedings, and he isn't sure why Title 25 amendments are included in this bill. He then referred members to Section 27, beginning on page 21, noting its great length. TAPE 98-63, SIDE A Number 0006 MR. McCUNE referred to subsection (10) at the top of page 26. He suggested that if one parent's ability to parent has been impaired by addictive or habitual use of alcohol, another parent could be perfectly willing and able to take care of the child. Therefore, there would be no child protection issue in that case. He suggested it could read something like subsection (2), Section 31. MR. McCUNE noted that Section 27 has a long statement of intent regarding balancing of rights and duties of parents and duties of the department. He questioned what a lot of that language means, such as page 22, line 5, which states, "(E) the right to obtain representation for the child in legal actions". He then referred to page 2, lines 9 through 11, and asked whether Section 1 doesn't say the same thing. He indicated he had other concerns but would wrap up because of the lateness of the hour. Number 0267 MS. TORKELSON explained that the intent language in Section 1 is from the Governor's bill; once it gets passed into law, it won't go into the Alaska Statute books. They had wanted to make sure the intent doesn't disappear, and to show parental rights and responsibilities, as well as the duties of the department. Therefore, they had requested that Legislative Legal Services codify Section 1 of the Governor's bill, which then became Section 27 in Version H. There are no ramifications in Section 27 per se; it just lays out what is intended by the rest of the bill. Number 0374 MR. McCUNE said it is difficult to set out all the rights and responsibilities of all the parties with regard to children. This is an admirable effort to do that, and he is certainly glad to see things in there, from his clients' perspective, about visitation, reasonable efforts, and so on. However, he wonders about this difficult and time-consuming exercise. He said he is suggesting that if they boil the three pages of intent down, it says the same thing as Section 1, which reads in part: "The intent of this Act is to protect children from abuse and neglect without prohibiting the use of reasonable methods of parental discipline or prescribing a particular method of parenting." CHAIRMAN GREEN asked whether it is just the length that bothers him. MR. McCUNE replied that it is the length, but also these cases are difficult to do, as they involve the age-old problem of when the state is able to get involved. As the committees have heard, there are very strong views about these issues. A shorter section would say the same thing but not be so difficult for the courts to deal with in balancing the rights and responsibilities set forth. CHAIRMAN GREEN indicated the committee would look at that. Number 0560 REPRESENTATIVE JAMES responded, saying it is from her own perspective and experience with families' concerns with DFYS and children in need of aid. She said if the language is not definitive, it leaves a lot unspoken. "And since that is one of the areas that is so controversial, I think they wanted to put everything down; and I think that's probably for good reason," she concluded. REPRESENTATIVE CROFT requested that Mr. McCune put his other concerns in writing. MR. McCUNE noted that he had sent a memorandum to the House Health, Education and Social Services Committee. A lot of those concerns had been addressed in this new version. He offered to revise that memorandum and send it in. Number 0650 CHAIRMAN GREEN called on Patricia Arnold in Homer, but was told Ms. Arnold had had to leave. Number 0680 WALTER GAUTHIER testified via teleconference from Homer. He first asked whether the House Health, Education and Social Services Committee had received two faxes from him, one concerning a domestic violence charge against an eight-year-old boy, and another concerning a counselor who had slapped a child. CHAIRMAN GREEN replied that he remembers the first but not the second. He asked whether they had been sent together. MR. GAUTHIER said they were faxed for two different meetings. He asked that the current committee distribute what they could find of those. CHAIRMAN GREEN agreed to do that. Number 0750 MR. GAUTHIER called members' attention to the legislative audit report just done for DFYS. He stated, "There was much ballyhoo about how they need more social workers. I want to make the point that the budgets that have already been through the House and Senate both provide for more money for more social workers." He referred to pages 26 through 28 of the audit and stated, "On page 26, it says, 'Applicants, despite scoring well, were not considered desirable candidates by hiring managers.' On page 27, it states that DFYS left 21 positions vacant for all of fiscal year '97. On page 28, it said, at the top, 'As a result, the agency has sufficient funding to cover retirement incentive program costs, not only for staff within the agency's appropriation' - that is, DFYS - 'but for other agencies within the Department of Health and Social Services." MR. GAUTHIER said it is the position of Guardians of Family Rights that DFYS has deliberately created this shortage of social workers. It has deliberately created these dangerous situations with children, and has purposefully used the money they save by not filling these positions to fund the early retirement incentive program for their fellow bureaucrats. MR. GAUTHIER next addressed the domestic violence provisions of the bill, which he said directly relate to the fax he had sent. He stated, "No matter what these people from the various bureaus tell you, in front of you, to get this legislation passed, the only reality is what the law says. Now, that eight-year-old boy charged with domestic violence can never own a gun, can never possess a gun, can never grow up to be a policeman or serve in any of the armed forces of the United States, because he was eight years old and chased his mom. No matter what these bureaucracies tell you about how they're not going to enforce this law, and this law is only going to be used in this situation, the fact is if the law exists, they will use it as often as they can, because the agencies are driven by caseload. They need caseload, just like McDonald's needs customers." MR. GAUTHIER continued, "One more thing about this is for 20 years we have been funding more and more social workers, more laws, more interference by the government in the family. And in Alaska, the only thing that we seem to have received for 20 years of investment in interference is the highest child abuse rate in the nation? I submit to the committee that social workers are not the solution to our problems with families. Social workers are the problem. Thank you." CHAIRMAN GREEN thanked Mr. Gauthier and said he would distribute that memorandum. He noted that no one was signed up locally to testify. Number 0979 JODI OLMSTEAD testified via teleconference from Fairbanks, speaking on her own behalf and indicating she had put time into issues with the DFYS and the Child Support Enforcement Division. She told members she doesn't want to see this bill, or its companion bill, pass. She doesn't believe that legislators are aware of the total issue. There is no check and balance when there is a false allegation, when families are hurt or people are destroyed. MS. OLMSTEAD recounted how she had been promised a grievance procedure by the DFYS in 1994, and she asked why the DFYS had the power to just not follow through. She told members that now all kinds of negative, uneducated third parties have written materials, and this has been thrown in her face again. Her son was injured, and now she is charged with medical neglect; she believes if she had dealt with the doctor and his instructions, her son wouldn't be with her today, yet the DFYS takes information from this professional because he is a doctor. MS. OLMSTEAD said that social workers generally provide a list, A to Z, of what to do when getting out of the hospital, which used to be their goal before they started extracting kids from homes. She suggested looking at Public Law 96-272 to see why we have foster care homes and why the citizens review panel was put into place to begin with; she believes that never should have been changed. She also suggested looking at mandatory video reporting. She would like to see a real change in here, instead of a lot of fluff. "Don't pass that bill; it's got too many things, and you guys don't know all about each of those issues, which is unfair to the people," she concluded. CHAIRMAN GREEN thanked Ms. Olmstead, indicating DFYS acknowledges there may have been some past problems that are in the process of being corrected now. He then asked Ms. Wibker to continue going through the bill for another half hour or so. Number 1189 REPRESENTATIVE CROFT referred to Mr. McCune's indication, on the top of page 26, subsection (10), that it should read something like the language in Section 31, subsection (2), page 25. He asked why that wouldn't apply to the habitual use. Number 1226 MS. WIBKER said that is a good question, for which there is a good answer. Under the law, the conduct of one parent can bring a child under the jurisdiction of the court; in almost every case involved in the CINA system, the conduct of one parent has brought the child under the jurisdiction of the court, whether that conduct is sexual abuse, domestic violence, or neglect. The exception is abandonment; the department does not take jurisdiction of a child who is well cared for by one parent if the other parent has abandoned the child, although abandonment by one parent can eventually become important in a case, when the parent there is engaging in problematic conduct. MS. WIBKER suggested Mr. McCune's point mixes up jurisdiction to have legal custody over a child and placement. If the department goes into a home and finds sexual abuse, domestic violence, crack cocaine addiction or alcohol addiction, for example, it is the conduct by one parent that allows the department to have legal jurisdiction over the case. In this particular instance, the department would have to prove, by a preponderance of the evidence, that a parent's ability to parent is substantially impaired by the addictive or habitual use of an intoxicant. The placement decision, which she believes is Mr. McCune's point, is separate. MS. WIBKER stated, "If you have one parent who cannot properly care for a child because of intoxication, and you have another parent who is not a drinker and provides good care for a child, you don't just walk away and trust that, the same as if one parent is sexually abusing a child and one parent could never dream of that. You don't just walk away. What you do is, in this particular case, you may take legal custody of the child but leave the child there and use legal custody to get the one parent to get treatment. The reason you don't just walk away is because if one parent is condoning, enabling, going along with this, letting this dangerous parent drive with the child, letting this dangerous parent babysit, you have to do something ... to make this a safe situation for the child." MS. WIBKER continued, "You may not remove the child, but you want legal custody to do something about the home situation. Probably in 90 percent of the cases, one parent's conduct is problematic, but you don't just walk away and -- I mean, many, many mothers will say, 'Don't take my child away; I won't ever leave her alone with him; I won't ever let him sexually abuse her again; I can make sure he's never alone ... with her.' ... You still take legal custody, and then separate from that, you make a decision about whether the child has to be removed. The point that Mr. McCune makes, I think, deals with removal. You may not remove that child, but you would still want to take legal custody." Number 1395 REPRESENTATIVE CROFT disagreed. He pointed out that except for (10), all 12 factors listed relate to harm to the child, or even potential harm to the child. That makes sense, because they are making the determination that this is a child in need of aid. However, (10), which is a parent who cannot parent because of the use of intoxicants, doesn't necessarily mean the child is in need of aid. The other parent may be doing everything fine, and there is no link stated of having substantial contact with the child, of being the custodian at times, or that the other parent is incapable under some other criteria. It doesn't establish what seems to be necessary before stepping in. CHAIRMAN GREEN noted that (10) says "the parent," whereas most others say "a parent." He asked whether that is because of a presumption that there is only one parent there. MS. WIBKER restated that under the law, the conduct of one parent can bring a child under the jurisdiction of the court. Number 1494 REPRESENTATIVE PORTER referred to page 26, line 2, and suggested the difference is that the determination has already been made. [The language, beginning on line 1, read: "(10) the parent, guardian, or custodian's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant; if a court has previously found that a child is a child in need of aid under this paragraph, the resumption of use of an intoxicant by a parent, guardian, or custodian within one year after rehabilitation is prima facie evidence that the ability to parent is substantially impaired as described in this paragraph."] Number 1512 REPRESENTATIVE CROFT stated his understanding to the contrary, that the part before the semicolon stands alone. The part Representative Porter was referring to is additional. CHAIRMAN GREEN agreed. Number 1529 MS. WIBKER responded, "The intent was as you've described. If the parent, guardian or custodian's ability to parent is substantially impaired by the addictive use of an intoxicant, the state has jurisdiction there. But then, the second part is where there's a relapse. And the reason this is written this way is because under existing law, ... 83 percent of the open cases right now are open because of substance abuse, either addiction to crack or alcohol. Under existing law, the department cannot do anything unless the child ... has been harmed, or at imminent and substantial risk of harm because of the substance abuse. So, what happens is you can't do anything 'til somebody gets drunk and hits a child. You can't do anything 'til someone gets drunk and throws a lamp and the child's in the line of fire. That's too late." Number 1571 REPRESENTATIVE CROFT said this is a substantive change; it adds the idea that the habitual addictive use of an intoxicant by one parent is sufficient, without a showing that the child has yet been harmed. MS. WIBKER responded, "No, you have to prove that the ability to parent is impaired. So, you've got to have proof that they have made bad judgment decisions about the care of their child." CHAIRMAN GREEN asked whether it is one parent or both. MS. WIBKER said only one parent's conduct is enough. She added, "If you've got one sober parent, and you've got one parent whose ability to parent is impaired because of substance abuse, you have a child in a dangerous situation." REPRESENTATIVE CROFT said his question is whether this is a major change in law, or at least a change. MS. WIBKER replied that this change allows the state to do something before the child gets hurt. Number 1612 REPRESENTATIVE CROFT acknowledged it is two steps: A habitual or addictive use of an intoxicant, plus the substantially impaired ability to parent. He asked for confirmation that there is not the third step, of any showing that it has ever affected the child. MS. WIBKER restated that there is none, other than that the ability to parent has been substantially impaired. "No, you don't have to show that the child is suicidal, homicidal, a fire-setter, or has been hit," she said. "You do have to show this person is getting in the car, driving drunk, and taking this child with them." Number 1636 REPRESENTATIVE CROFT pointed out that would be harm to the child. He asked: If a person is drunk constantly, which substantially impairs the ability to parent, but if that drunk person is never the custodian of the child and the other spouse takes care of the child, must no other link to the child be drawn? MS. WIBKER replied, "The department should not be doing nothing in those cases." Number 1683 REPRESENTATIVE PORTER asked, "Wouldn't it be okay, though, to throw in some language that, 'and this presents a substantial risk' or something?" MS. WIBKER asked, "In lieu of, 'the ability of the parent has been substantially impaired'?" REPRESENTATIVE PORTER said no, in addition to it. MS. WIBKER said it would then read, "the parent, guardian, or custodian's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and ...." REPRESENTATIVE PORTER suggested finishing with, "this has placed the child in substantial risk." Number 1722 REPRESENTATIVE CROFT said he was just trying to understand it. He asked whether that then puts the department in the situation where it is now, with an extra hoop that they don't want to jump through. MS. WIBKER replied, "Not quite. The current law is 'imminent and substantial risk,' so ... you've literally got to catch a parent with the fist raised to do anything. And that's the problem. That's too late. When the neighbors call and say, 'Hey, those people next door are drunk every night, partying, and those kids are wandering around outside, they're coming over here begging for food, they're hungry, nobody gets up and takes them to school in the morning,' whether it's one parent or two, the state should be doing something about that." REPRESENTATIVE CROFT suggested they don't even have to say 'substantial,' then. He agreed there can be some logical assumptions about somebody who is so impaired by habitual and addictive use of intoxicants that it substantially impairs the ability to parent. However, he wants to see some logical link to a potential harm or a substantial risk of harm. Number 1787 MS. WIBKER suggested, "and the addictive or habitual use presents a substantial risk of harm to the child." REPRESENTATIVE CROFT asked whether Ms. Wibker had any problem with that. MS. WIBKER said off the top of her head, no. However, she believes that is what they'd thought they were doing by saying that the ability to parent has been substantially impaired. "But maybe not," she added. Number 1808 CHAIRMAN GREEN asked whether they should continue with a new sentence, instead of the semicolon, as this would imply it has to be a second time if they put "and" in there. MS. WIBKER agreed, adding that this reflects what social workers deal with every day, where the parent with the problem stays in treatment a week, then goes home and continues to get drunk. She said once the state has proved the first time that the inability to parent creates a risk to the child, then if the parent relapses, they want the worker to be able to do something quickly and efficiently, without having to file a new petition, start a new case, do a new trial and prove all this again. Number 1869 CHAIRMAN GREEN referred to item (11) on page 26, beginning at line 7. He noted that it talks about a mental illness that has caused substantial physical harm. Emphasizing the "has caused," he asked why the difference exists. MS. WIBKER replied that Representative Dyson has proposed an amendment to that. She stated, "One of our concerns is that one of the greatest risks to a child growing up in a home with a mentally ill parent is not just the risk of physical harm but the risk of serious emotional problems. And what the amendment does is deal with the risk to the child of both physical harm and emotional harm." Number 1900 CHAIRMAN GREEN asked whether it removes the fact that there has to have been some physical harm. MS. WIBKER said yes. Under the amended version, it would read, "of a nature and duration that places the child at substantial risk of physical harm or mental injury." Number 1934 MS. WIBKER briefly touched on the other jurisdictional grounds on page 25, saying 5) deals with runaways; (6) deals with children who have been physically abused or at substantial risk; (7) deals with sexual abuse, with the parallel phrase of having suffered the abuse or being at substantial risk, plus a proviso that parallels the "endangering" statute, explaining that parents should not be leaving children with known sex offenders, and that when they do that, the child is considered to be at substantial risk; (8) deals with mental injury to the child, and Representative Dyson has a proposed amendment on that, which deals with domestic violence and which fixes the amendment that Representative Bunde was referring to at the beginning of the hearing; (9) deals with neglect; (10) they had just talked about, substance abuse; (11) is mental illness; and (12) deals with a parent actually pressuring or encouraging a child to commit an act of delinquency. MS. WIBKER advised members that the major changes here deal with the specific provisions about domestic violence and substance abuse. She stated, "Other than that, there is not a major break from the statute that we had. Mental illness is specifically addressed more clearly here, but it's broken out and more specifically defined than before." Number 2060 REPRESENTATIVE JAMES expressed appreciation for this review, which she said had been exceptionally helpful. CHAIRMAN GREEN concurred, noting the length of the bill. [HB 375 was held over.] ADJOURNMENT Number 2082 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 4:50 p.m.