SENATE JUDICIARY COMMITTEE March 22, 1996 9:00 a.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller Senator Al Adams MEMBERS ABSENT Senator Johnny Ellis COMMITTEE CALENDAR CS FOR SENATE BILL NO. 188(HES) "An Act relating to reports of suspected child abuse or neglect, and requiring that, as part of the investigation of the reports of suspected child abuse or neglect, all official interviews with children who are alleged to have been abused or neglected be recorded." SENATE BILL NO. 257 "An Act relating to the taking of game or fish for public safety purposes." SENATE BILL NO. 261 "An Act relating to the release of employment security records; relating to an injunction or an employer's security for delinquent unemployment insurance contributions; extending time periods for redeterminations and appeals for unemployment insurance; relating to the overpayment or the redetermination of unemployment insurance benefits; relating to availability for work, seeking work, and the calculation of wages for unemployment insurance purposes; relating to voluntary federal tax withholding from unemployment insurance benefits; relating to the binding effect of unemployment compensation decisions; relating to the definition of `waiting week' for employment security purposes; and providing for an effective date." SENATE BILL NO. 268 "An Act relating to release before trial in cases involving controlled substances." CS FOR HOUSE BILL NO. 370(JUD) "An Act relating to the provision of legal services at public expense." PREVIOUS SENATE COMMITTEE ACTION SB 188 - See Health, Education & Social Services minutes dated 2/9/96 and 2/28/96. SB 257 - See Resources minutes dated 2/19/96. SB 261 - See Labor and Commerce minutes dated 2/13/96, 2/22/96, and 3/7/96. SB 268 - See Judiciary minutes dated 3/13/96. HB 370 - See Judiciary minutes dated 3/13/96 and 3/20/96. WITNESS REGISTER Representative Brian Porter Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Co-sponsor of HB 370 Senator Fred Zharoff Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SB 257 Richard Graham Division of Fish and Wildlife Protection Alaska Department of Public Safety 5700 E. Tudor Rd. Anchorage, AK 99507-1225 POSITION STATEMENT: Supports SB 257 Diane Worley Division of Family and Youth Services Department of Health and Social Services P.O. Box 110630 Juneau, Alaska 99811-0630 POSITION STATEMENT: Opposed to SB 188 Frank Smith Barrow, Alaska POSITION STATEMENT: Opposed to SB 188 Naomi Hudson Kenai, Alaska POSITION STATEMENT: Supports SB 188 Carmen Lowry, Executive Director Tundra Women's Coalition P.O. Box 1926 Bethel, Alaska 99559 POSITION STATEMENT: Opposed to SB 188 Connie Tromble Tundra Women's Coalition P.O. Box 1926 Bethel, Alaska 99559 POSITION STATEMENT: Discussed concerns with SB 188 Miriam Sharp Bethel, Alaska POSITION STATEMENT: Opposed to SB 188 Megan Sullivan Bethel, Alaska POSITION STATEMENT: Expressed concerns about SB 188 Walter Gauthier Guardians of Family Rights P.O. Box 2246 Homer, Alaska 99603 POSITION STATEMENT: Supports SB 188 Harry Niehaus Guardians of Family Rights P.O. Box 55455 North Pole, Alaska 99705 POSITION STATEMENT: Supports SB 188 Jodi Delaney 3200 Kris Kringle Dr. North Pole, Alaska POSITION STATEMENT: Supports SB 188 Scott Calder 7.5 Mile Farmers Loop Fairbanks, AK POSITION STATEMENT: Supports SB 188 Cam Carlson P.O. Box 80234 Fairbanks, AK 99708 POSITION STATEMENT: Supports SB 188 Dick Neeley Fairbanks, Alaska POSITION STATEMENT: Supports SB 188 Nick Targonski Kenai, Alaska POSITION STATEMENT: Supports SB 188 Laurie Huigenan Executive Director Alaska Network on Domestic Violence and Sexual Abuse 130 Seward #501 Juneau, Alaska 99801 POSITION STATEMENT: Opposed to SB 188 Angela Salerno National Association of Social Workers 563-4502 POSITION STATEMENT: Opposed to SB 188 Steve Gruenstein Guardians for Family Rights POSITION STATEMENT: Supports SB 188 Dwight Perkins Department of Labor P.O. Box 21149 Juneau, Alaska 99802-1149 POSITION STATEMENT: Supports SB 261 Senator Loren Leman Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SB 268 ACTION NARRATIVE TAPE 96-25, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 9:06 a.m. Present were Senators Green and Adams. HB 370 LEGAL SERVICES PROVIDED AT PUBLIC EXPENSE  REPRESENTATIVE BRIAN PORTER, co-sponsor of HB 370, informed committee members that he was not opposed to any changes made in the Senate Judiciary CS for HB 370. SENATOR ADAMS asked for comments on the proposed committee substitute from the Department of Law. No representative was available from the Department of Law, however REPRESENTATIVE PORTER stated he had spoken with Dean Guaneli who had no problem with the amendment. The committee held the measure until further testimony could be taken. SB 257 TAKING FISH OR GAME FOR PUBLIC SAFETY  SENATOR FRED ZHAROFF, sponsor of SB 257, explained the measure relates to the taking of fish and game for public safety purposes and stems from a community concern about problematic bears. The Board of Game has authority to address the situation but could face litigation or charges by doing so. SB 257 gives the Commissioner of the Fish and Game the ability to authorize the taking of fish and game for public safety reasons, and gives the Board of Game the authority to adopt regulations regarding issues of public safety that relate to game. This bill will allow the board to work with the public and department to establish criteria and mechanisms to deal with legitimate threats to public safety. Questions arose in the Senate Resources Committee about liability problems associated with the involvement of VPSOs. Someone in each community, possibly a VPSO, should be knowledgeable about the mechanism in place, and should contact the appropriate person or agency to carry out the procedures. If necessary, the Board could make recommendations for training for those involved. This is a problem the local residents should be able to address without making the state liable. Number 084 SENATOR TAYLOR asked whether the department is concerned that it may be held liable if a VPSO attempts to get rid of a problem bear. SENATOR ZHAROFF replied yes, because the VPSO might not be properly trained. The main concern was whether VPSOs should have the authority to carry weapons. SENATOR TAYLOR thought the bill allows the department to continue doing things it has done for over 30 years without the authority, and is long overdue. No one should object to permitting a fish and game biologist to actively, rather than passively, manage the resource. SB 257 provides a tool to be used for effective management purposes. SENATOR ZHAROFF agreed that was the intent. When he approached the Board of Game to find out how it could resolve the local situation, it found it did not have the authority to take the additional step. This legislation allows it to do that. Number 116 RICHARD GRAHAM, with the Alaska Division of Fish and Wildlife Protection, testified in support of SB 257. He shared Senator Zharoff's concern about who, specifically, would be permitted and responsible for taking the nuisance animals in the various locations around the state. The Alaska State Troopers were concerned about the VPSOs, but that problem has been resolved. There being no further testimony, SENATOR GREEN moved SB 257 from committee with individual recommendations. There being no objection, the motion carried. SENATOR MILLER arrived at 9:14 a.m. SB 188 VIDEOTAPE INTERVIEW OF ABUSED MINOR  SENATOR MILLER, co-sponsor of the measure, discussed the thorough review given to the bill by the Senate HES committee, and the changes made by that committee. Testimony has been heard on both sides of the issue on investigating suspected child abuse cases. The original bill required mandatory videotaping: the HES committee substitute provides for mandatory audiotaping, and where practical, the use of videotaping, during interviews. The taped interview will provide a record for the agency to use when pursuing a case, and to determine whether a case has merit. Currently the success rate for prosecutions of child abuse in court is only 30 to 40 percent. SENATOR ADAMS noted the fiscal note for SB 188 projected a cost of $4 million and asked if a new fiscal note has been prepared for CSSB 188(HES). SENATOR MILLER did not know if the new fiscal notes were completed. Number 205 DIANE WORLEY, Director of the Division of Family and Youth Services, addressed the changes made in CSSB 188(HES). DHSS continues to oppose the bill on the mandatory nature of the audiotaping, as well as the fact that if an interview cannot be audiotaped, the investigation must cease (page 2, line 24). That requirement will present serious problems to field workers because if equipment fails or is unavailable and the investigation must stop, the child may be placed in additional danger. DHSS believes this measure will place an undue burden on those involved in an investigation, since investigations are often coordinated efforts between Alaska State Troopers, social workers, and school staff, and often require travel to remote locations. DHSS is not opposed to the concept of using audiotapes, and is working toward increasing the availability of such equipment to staff, as well as transcription. DHSS also believes videotaping is appropriate in certain cases and will continue to videotape when available and appropriate and does not interfere with an ongoing investigation. SENATOR ADAMS asked Ms. Worley to comment on the changes made in CSSB 188(HES). MS. WORLEY responded the major change is the requirement of mandatory audiotaping with the use of videotaping encouraged when possible, rather than mandatory videotaping. SENATOR TAYLOR questioned how the legislature could be assured that if a provision was added to allow the department to proceed with an investigation if no taping was available, the department would audiotape at least 90 percent of all interviews. He did not believe the purchase of tape recorders to be a large fiscal expenditure. MS. WORLEY admitted the only assurance she could offer is her word, as this is an area she is committed to. She believed the taping is only one small aspect of problems with child abuse prosecutions. New staff need a longer orientation period with training in good interview techniques. A poor interview on tape is of no more assistance than a written interview. Her goal is to set up and implement a comprehensive plan of action to improve the abilities of social workers, the process, and consistency statewide. Additionally, the tape storage and transcription procedures need to be designed. DFYS is moving in that direction at this time. Number 310 FRANK SMITH, testifying from Barrow as a private citizen, believed the original bill would have been a nightmare to implement. As a field worker in Anchorage, he had 42 cases in one month. To carry equipment around and put it in people's faces would have entailed considerable logistical problems. He believed audiotaping preserves the rights of the persons involved in the investigation, and protects the worker who is sometimes subject to outrageous allegations by the person interviewed when called to account for abuse or neglect of children. He agreed with Ms. Worley's comments and expressed concern about the fiscal note since the Division's budget is already strained. Number 344 NAOMI HUDSON, representing Guardians of Family Rights, stated there are a lot of problems when interviews are not recorded because of false allegations, interviewers asking leading questions, and interviewers misinterpreting or fabricating responses. Videotaping protects the child, parent, and interviewer since no one could deny what was said, and could be used to determine which cases are legitimate. Parents need to have control, and social workers need to work with parents. DFYS has a large caseload; several of the cases are not as serious as DFYS purports, and taping could save money. The Alaska State Troopers audiotape all interviews. Number 388 CARMEN LOWRY testified in opposition to CSSB 188(HES) because of the mandatory nature of taping. The overall goals of DFYS need to be prioritized and should stress the needs of the child who is the alleged abuse victim. Although audiotaping is a useful tool, it is dangerous to require that all interviews be audiotaped. CONNIE TRUMBLE, testifying from Bethel, felt the bill has merit but expressed concern about the requirement to tape an interview within 72 hours of disclosure in remote areas. Weather problems and a lack of trained staff sometimes prevent an investigation from proceeding for three weeks. Trained workers are not located in each village. SENATOR TAYLOR asked Ms. Trumble for suggestions. Number 427 MS. TRUMBLE suggested training more people in rural Alaska, such as VPSOs and Head Start staff, or other people trained in working with children, to tape the interview. MARIAN SHARP, testifying from Bethel, strongly opposed CSSB 188(HES), because an investigation must stop if DFYS does not follow-up on a report within 72 hours; an unrealistic goal on the Delta. The local DFYS office receives over 200 calls per week and will be unable to follow-up on all calls within 72 hours. That requirement may leave many victims unheard, and many perpetrators will remain free. The court system is set up to protect the rights of the accused, and very often revictimizes innocent children. This should not extend to the investigative process as well. Attention should be turned to better training for investigators, not to revictimizing the children. CSSB 188(HES) originated from a group of people who are not worried about the rights of the children. SENATOR TAYLOR clarified the 72 hour requirement is in existing law and should be complied with today. MS. SHARP asked if the investigation must stop if the interview is not conducted within 72 hours. SENATOR TAYLOR responded no. MS. SHARP stated her understanding is that CSSB 188(HES) would require the investigation to stop. SENATOR TAYLOR noted existing law requires a written report be provided within 72 hours. MS. SHARP believed a phone report is more likely to occur in that time frame. Number 464 SENATOR TAYLOR stated he has not seen the department show any sincere desire over the last 15 years to use technological equipment to provide a permanent record that could later be reviewed. In case after case, interviewers destroy their own notes, after they have typed up what they believe to be the best record of the interview, and relying on their recollections or notations. The typed records are then lost, which requires an investigation to rely on the interviewer's recollection. He noted, as a co-sponsor of the legislation, he took umbrage at the remark that he is not concerned about the welfare of children or families, or about the slipshod manner in which interviews and investigations are being done. In most instances, these cases are criminal matters, and investigators do not even begin to follow any of the procedures used by the most crudely trained law enforcement officer. As a consequence, 60 percent of the cases are dismissed because the interviewing process was sloppy, thereby endangering more children. MS. SHARP responded if the problem is with investigative procedure, the investigators should be held accountable. There is no reason to believe that by mandating audiotaping of interviews, the tapes will not be lost. She questioned what systems are used by police officers that make their investigations trustworthy, as those procedures should be applied to social workers. The focus should be put on those procedures rather than on something that will require a lot of technical assistance and places more trauma on the child. SENATOR TAYLOR repeated he did not believe tape recorders were complicated or expensive. Number 500 MEGAN SULLIVAN, representing the Tundra Womens' Coalition in Bethel, testified in opposition to the mandatory nature of the audiotaping. In traveling to villages to work with teachers and health aides on training for reporting child abuse and neglect, a concern often expressed in those communities is that DFYS does not arrive in the village within 72 hours of when a report has been made, which can further endanger a child. DFYS employees have been trying to work with local village family service workers, through ICWA and Traditional Councils, so that someone in the village is available to work with the child. She agreed those workers should be trained to do the audiotaping, since DFYS currently makes telephone contact within 72 hours. She expressed concern that according to AS 47.17 the purpose of DFYS is to protect children, but if an interview cannot occur within 72 hours, that purpose will be unfulfilled. SENATOR TAYLOR referred to page 2, line 27, to explain the existing 72 hour requirement. Once DFYS receives a telephone call regarding suspected abuse, staff must file a written report of the investigation within 72 hours, with the Department of Law for review. DFYS is not required to fly to the village within 72 hours, only to file a written report with the Department of Law. MS. SULLIVAN asked if there would be a time requirement for when the interview was audiotaped. SENATOR TAYLOR answered if CSSB 188(HES) passes, the interview can only be conducted if it is tape recorded. It is hoped DFYS will conduct the interview promptly. MS. SULLIVAN pointed out DFYS does not travel to rural villages to investigate every report. She assumed if CSSB 188(HES) passes, it will be required to which will necessitate additional personnel and finances. SENATOR TAYLOR said that if DFYS is not doing so now, it must be prioritizing cases. CSSB 188(HES) only requires that when those interviews are conducted, they be audiotaped with a cheap tape recorder and cassette tape. He repeated the 72 hour requirement applies to the written report filed with the Department of Law for review. WALTER GAUTHIER, testifying from Homer as a member of Guardians for Family Rights, asserted that a parent accused of child abuse must face court-appointed special advocates, the guardian ad litem, assistant attorney generals, case workers, psychologists and counselors, DFYS staff, and advocates of womens shelters, therefore the idea that the court system rules favor the accused is a total fallacy. In 1994, DFYS spent $24 million for foster care, $27 million for residential childcare, and another $20+ million for another type of foster care. This system is fueled by foster care, and once an allegation is made, places the child in foster care no matter what. Meanwhile the family of the child is bankrupted and emotionally destroyed by the process, while 20 government employees try to prove that someone is abusive. Over 50 percent of accusations are found by DFYS to be unsubstantiated, of the remaining 50 percent, the abuser is accused of vague concepts such as psychological and emotional abuse. Teenagers use the abuse accusation to get out of a home where rules and standards of behavior are imposed. The foster homes merely warehouse children. His organization does not advocate child abuse in any way, shape, or form but only 20 percent of DFYS' cases are for actual physical abuse. The remainder is caseload generation for the abuse industry to generate government grants. TAPE 96-27, SIDE B Number 580 HARRY NIEHAUS, a member of Guardians of Family Rights, believed interviews should be videotaped just in case problems arise. DFYS' reputation has been questionable, and its policies have not been consistent since 1984. Notes are not nearly as accurate as a tape, and tapes will lead to more convictions of a guilty party, and save money in the end. Taping will lead to less false allegations and court time, and will help to protect children from the real perpetrators. SENATOR TAYLOR responded his purpose in introducing the legislation is to make prosecutions more effective. He discussed the analogy of the use of technology, such as breathalizer tests and videotapes, which has resulted in a higher rate of conviction for DWIs, especially the use of videotapes. CSSB 188(HES) encourages DFYS to use a hammer to obtain good techniques for criminal investigations. He believes the bill will enhance the state's ability to convict the bad actors, and will prevent unnecessary interference in other's lives. Number 550 JODI DELANEY, testifying from North Pole, stated she originally contributed to the creation of this bill as it is the one step that can be taken to cut back the amount of money spent on false allegations that are so detrimental to a family. Such an allegation has destroyed her family, and she is still awaiting the result of a grievance she filed in September of 1994. There has been no accountability on the part of those who did the investigation; many are no longer in the same positions. Many communities are using videorecording for interviews around the country with success. SCOTT CALDER, stated he filed a child abuse report on his son's behalf to the school counselor and received no support from the school. The son has been locked in a building for seven months and had drug experiments performed on him and he has been to court 25 times. He agreed with Mr. Gauthier that investigators attack the family in a feeding frenzy style to perpetuate a system driven by foster care. He estimated the State of Alaska has spent approximately $1 million dollars systematically abusing his son. In response to Director Worley's comment that DFYS cannot change overnight, Mr. Calder noted DFYS destroys families overnight. He believes the needs of DFYS are only of concern in how it serves the needs of the people of Alaska. He felt the 72 hour requirement to be reasonable. Number 469 CAM CARLSON testified in strong support of SB 188. She cautioned that current trends and legislation are interpreted to mean every child with a scratch or bruise needs to be reported by teachers as suspected child abuse victims. A previous Interior director of DFYS stated, when interviewed, that children should have freedom of movement to go wherever they please after age 8. Taping interviews will protect children and the family unit. DICK NEELEY testified from Fairbanks on his personal experience when Alaska State Troopers interviewed his children as suspected child abuse victims. The children were interrogated by the Alaska State Troopers until they were brainwashed and the tape recorder was turned off repeatedly. No charges were ever filed against him. NICK TARGANSKI testified from Kenai in support of SB 188. He has had problems with DFYS divisions in Kenai and Anchorage losing paperwork. He does not believe budget constraints are the cause of DFYS' problems. Number 390 LAURIE HUGONIN, Executive Director of the Alaska Network on Domestic Violence and Sexual Assault, discussed the need to monitor interviewers, but the more important need to listen to children and take necessary steps to ensure their safety. Previous testimony was case specific and focussed on agency accountability for harming adults, rather than the best interests of children. There are instances where the system fails families, but instances exist where children were failed. Taping will not solve interviewing problems, particularly if investigations will not be conducted if equipment is not available. She questioned who will have access to the tapes if the allegations are unfounded, and noted that some children are not verbal. She suggested intensive training and adequate financial resources be provided to improve overall case management. Regarding accountability of interviewers, the training requirements and qualifications of investigators need to be reviewed. She commented on interviewing problems specific to children. ANGELA SALERNO, representing the National Association of Social Workers, testified in opposition of the measure and recommended better training of investigators and that professionals be hired. STEVE GRUENSTEIN, representing Guardians for Family Rights, stated interviewers interrogate and question children to elicit certain responses. He read excerpts from the Alaskan Senate Family Review Task Force Report (July 1990-1991) to demonstrate that a system of checks and balances needs to be imposed on DFYS. He supported video and/or audiotaping as it can be especially useful in custody cases. SENATOR ADAMS informed committee members according to Dean Guaneli, the Department of Law has taken a neutral position on SB 188. He stated he would object to a motion to pass the bill from committee because the public defenders in his district oppose this bill. Number 261 SB 261 UNEMPLOYMENT COMPENSATION  DWIGHT PERKINS, Special Assistant to the Commissioner of the Department of Labor, stated SB 261 makes six changes to the Employment Security Act: federal income tax withholding; confidentiality of records; contributions and collections; benefit overpayments; finality of determinations and appeals; and minor technical amendments. He summarized a sectional analysis provided to committee members. SENATOR ADAMS moved SB 261 out of committee with individual recommendations. SENATOR TAYLOR objected to ask why the deadline for filing and paying various amounts was increased from 15 to 30 days. MR. PERKINS stated that section benefits the claimant as it gives the claimant an extra 15 days in the appeal process. SENATOR TAYLOR removed his objection and the bill moved from committee with individual recommendations. The committee took an at ease from 10:35 a.m. to 10:41 a.m. TAPE 96-26, SIDE B Number 000 HB 370 LEGAL SERVICES PROVIDED AT PUBLIC EXPENSE  SENATOR MILLER moved adoption of SCSCS HB 370(JUD). SENATOR ADAMS objected. The motion carried with Senators Green, Miller, and Taylor voting "yea," and Senator Adams voting "nay." SENATOR MILLER moved SCSCSHB 370(JUD) out of committee with individual recommendations. SENATOR ADAMS objected. The motion carried with Senators Taylor, Green and Miller voting "yea," and Senator Adams voting "nay." SB 188 VIDEOTAPE INTERVIEW OF ABUSED MINOR SENATOR MILLER moved CSSB 188(HES) from committee with individual recommendations. SENATOR ADAMS objected. The motion carried with Senators Taylor, Green, and Miller voting "yea," and Senator Adams voting "nay." SENATOR TAYLOR noted there is still an opportunity in the next committee of referral to provide for some variance to incorporate some extenuating circumstances so that if, in fact, equipment was not available, and reasonable efforts had been made to acquire that equipment, an interview could still go forward, but any subsequent interviews would have to be audiotaped. SENATOR MILLER felt making an accommodation for equipment breakdowns to be a worthwhile goal, and agreed that subsequent interviews would have to be recorded. SENATOR TAYLOR stated his intent is to continue to work on the legislation in the Finance Committee. Number 056 SB 268 PRETRIAL RELEASE FOR DRUG OFFENSES  SENATOR LEMAN, sponsor of SB 268, reviewed changes made in the proposed committee substitute (version F). The changes made were suggested by the Department of Law for clarification purposes. On page 1, lines 7-9, the citations for AS 04 and AS 11 refer to violations with alcoholic beverages, controlled substances and imitation controlled substances and is catch-all language suggested by the Department of Law. Additionally, the committee substitute allows that the violator be required to submit to a search, and prohibits the violator from possessing a firearm. New section 2 adds language on lines 8-9, "...shall consider the conditions specified in AS 12.30.020..." which is consistent with language for release before trial in cases involving alcoholic beverages or controlled substances for domestic violence and stalking. It helps to clarify the intent of existing law. SENATOR MILLER moved to adopt CSSB 268 (version F) in lieu of the original bill, for purposes of discussion. SENATOR ADAMS objected, because it may limit the court system to specific bail requirements. SENATOR LEMAN explained the bill does not limit the court system; it states the court may impose conditions as it believes are necessary. SENATOR ADAMS asked what is broken that is being fixed by this legislation. SENATOR LEMAN replied the legislation unifies a policy the Department of Law wants to have. The Municipality of Anchorage has found that this policy is not applied across the board. Number 131 SENATOR GREEN questioned how the bail conditions will stop violators from reoffending. SENATOR LEMAN responded it probably will not keep violators from reoffending, but will enable police officers to apprehend those people more quickly if they return to the same area to do business. SENATOR TAYLOR stated he shares the concern that by listing bail conditions a judge will feel he/she has accomplished the intent of the law by following the list, and may overlook a request made by an investigating officer or a district attorney. SENATOR LEMAN did not disagree with that concern but repeated that item 13 on page 3 provides that the violator not engage in any conduct the court considers reasonably necessary to protect others, which allows the judge to craft bail conditions appropriate for that person. SENATOR TAYLOR adjourned the meeting at 11:00 a.m.