Enrolled HB 408: Relating to the standard of proof required to terminate parental rights and for placement of a child in child-in-need-of-aid proceedings; relating to a healing arts practitioner's duty to report a child adversely affected by or withdrawing from exposure to a controlled substance or alcohol; relating to disclosure of confidential or privileged information about certain children by the Departments of Health and Social Services and Administration; relating to permanent fund dividends paid to foster children and adopted children; relating to child abuse or neglect investigations and training; amending Rule 18, Alaska Child in Need of Aid Rules of Procedure; and providing for an effective date.
00Enrolled HB 408 01 Relating to the standard of proof required to terminate parental rights and for placement of a 02 child in child-in-need-of-aid proceedings; relating to a healing arts practitioner's duty to report 03 a child adversely affected by or withdrawing from exposure to a controlled substance or 04 alcohol; relating to disclosure of confidential or privileged information about certain children 05 by the Departments of Health and Social Services and Administration; relating to permanent 06 fund dividends paid to foster children and adopted children; relating to child abuse or neglect 07 investigations and training; amending Rule 18, Alaska Child in Need of Aid Rules of 08 Procedure; and providing for an effective date. 09 _______________ 10 * Section 1. AS 47.10.086(c) is amended to read: 11 (c) The court may determine that reasonable efforts of the type described in
01 (a) of this section are not required if the court has found by clear and convincing [A 02 PREPONDERANCE OF THE] evidence that 03 (1) the parent or guardian has subjected the child to circumstances that 04 pose a substantial risk to the child's health or safety; these circumstances include 05 abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm; 06 (2) the parent or guardian has 07 (A) committed homicide under AS 11.41.100 - 11.41.130 of a 08 parent of the child or of a child; 09 (B) aided or abetted, attempted, conspired, or solicited under 10 AS 11.16 or AS 11.31 to commit a homicide described in (A) of this 11 paragraph; 12 (C) committed an assault that is a felony under AS 11.41.200 - 13 11.41.220 and results in serious physical injury to a child; or 14 (D) committed the conduct described in (A) - (C) of this 15 paragraph that violated a law or ordinance of another jurisdiction having 16 elements similar to an offense described in (A) - (C) of this paragraph; 17 (3) the parent or guardian has, during the 12 months preceding the 18 permanency hearing, failed to comply with a court order to participate in family 19 support services; 20 (4) the department has conducted a reasonably diligent search over a 21 time period of at least three months for an unidentified or absent parent and has failed 22 to identify and locate the parent; 23 (5) the parent or guardian is the sole caregiver of the child and the 24 parent or guardian has a mental illness or mental deficiency of such nature and 25 duration that, according to the statement of a psychologist or physician, the parent or 26 guardian will be incapable of caring for the child without placing the child at 27 substantial risk of physical or mental injury even if the department were to provide 28 family support services to the parent or guardian for 12 months; 29 (6) the parent or guardian has previously been convicted of a crime 30 involving a child in this state or in another jurisdiction and, after the conviction, the 31 child was returned to the custody of the parent or guardian and later removed because
01 of an additional substantiated report of physical or sexual abuse by the parent or 02 guardian; 03 (7) a child has suffered substantial physical harm as the result of 04 abusive or neglectful conduct by the parent or guardian or by a person known by the 05 parent or guardian and the parent or guardian knew or reasonably should have known 06 that the person was abusing the child; 07 (8) the parental rights of the parent have been terminated with respect 08 to another child because of child abuse or neglect, the parent has not remedied the 09 conditions or conduct that led to the termination of parental rights, and the parent has 10 demonstrated an inability to protect the child from substantial harm or the risk of 11 substantial harm; 12 (9) the child has been removed from the child's home on at least two 13 previous occasions, family support services were offered or provided to the parent or 14 guardian at those times, and the parent or guardian has demonstrated an inability to 15 protect the child from substantial harm or the risk of substantial harm; or 16 (10) the parent or guardian is incarcerated and is unavailable to care 17 for the child during a significant period of the child's minority, considering the child's 18 age and need for care by an adult. 19 * Sec. 2. AS 47.10.088(a) is amended to read: 20 (a) Except as provided in AS 47.10.080(o), the rights and responsibilities of 21 the parent regarding the child may be terminated for purposes of freeing a child for 22 adoption or other permanent placement if the court finds 23 [(1)] by clear and convincing evidence that 24 (1) [(A)] the child has been subjected to conduct or conditions 25 described in AS 47.10.011; 26 (2) [AND (B)] the parent 27 (A) [(i)] has not remedied the conduct or conditions in the 28 home that place the child at substantial risk of harm; or 29 (B) [(ii)] has failed, within a reasonable time, to remedy the 30 conduct or conditions in the home that place the child in substantial risk so that 31 returning the child to the parent would place the child at substantial risk of
01 physical or mental injury; and 02 (3) [(2) BY PREPONDERANCE OF THE EVIDENCE THAT] the 03 department has complied with the provisions of AS 47.10.086 concerning reasonable 04 efforts. 05 * Sec. 3. AS 47.10.088(b) is amended to read: 06 (b) In making a determination under (a)(2) [(a)(1)(B)] of this section, the court 07 may consider any fact relating to the best interests of the child, including 08 (1) the likelihood of returning the child to the parent within a 09 reasonable time based on the child's age or needs; 10 (2) the amount of effort by the parent to remedy the conduct or the 11 conditions in the home; 12 (3) the harm caused to the child; 13 (4) the likelihood that the harmful conduct will continue; and 14 (5) the history of conduct by or conditions created by the parent. 15 * Sec. 4. AS 47.10.092 is amended by adding a new subsection to read: 16 (f) Each department shall respond to a request made by an official identified 17 under (a) of this section within five working days after receiving the request, or by a 18 later date specified in the request, by providing access to all or part of the information 19 requested or by providing the specific citation to a federal or state law that prohibits 20 disclosure of all or part of the information requested. 21 * Sec. 5. AS 47.10.093(i) is amended to read: 22 (i) The commissioner of health and social services or the commissioner's 23 designee or the commissioner of administration or the commissioner's designee, as 24 appropriate, may disclose to the public, upon request, confidential information, as set 25 out in (j) of this section, when 26 (1) the parent or guardian of a child who is the subject of one or more 27 reports [A REPORT] of harm under AS 47.17 has made a public disclosure 28 concerning the department's involvement with the family; 29 (2) the alleged perpetrator named in one or more reports [A 30 REPORT] of harm under AS 47.17 has been charged with a crime concerning the 31 alleged abuse or neglect; or
01 (3) abuse or neglect [A REPORT OF HARM UNDER AS 47.17] has 02 resulted in the fatality or near fatality of a [THAT] child who is the subject of one or 03 more reports of harm under AS 47.17. 04 * Sec. 6. AS 47.10.093(j) is repealed and reenacted to read: 05 (j) The department may publicly disclose information pertaining to a child or 06 an alleged perpetrator named in a report of harm described under (i) of this section, or 07 pertaining to a household member of the child or the alleged perpetrator, if the 08 information relates to a determination, if any, made by the department regarding the 09 nature and validity of a report of harm under AS 47.17 or to the department's activities 10 arising from the department's investigation of the report. The commissioner or the 11 commissioner's designee 12 (1) shall withhold disclosure of the child's name, picture, or other 13 information that would readily lead to the identification of the child if the department 14 determines that the disclosure would be contrary to the best interests of the child, the 15 child's siblings, or other children in the child's household; or 16 (2) after consultation with a prosecuting attorney, shall withhold 17 disclosure of information that would reasonably be expected to interfere with a 18 criminal investigation or proceeding or a criminal defendant's right to a fair trial in a 19 criminal proceeding. 20 * Sec. 7. AS 47.10 is amended by adding a new section to read: 21 Sec. 47.10.115. Permanent fund dividend. (a) The department shall annually 22 apply for a permanent fund dividend and retain in trust under AS 43.23.015(e) for the 23 benefit of the child the dividend and accrued interest on the dividend if the child is in 24 the custody of the department when the application is due. 25 (b) The department may not distribute the proceeds of a trust under this 26 section unless 27 (1) the child has reached 18 years of age and is no longer in the 28 custody of the department; 29 (2) the child has been adopted and one year has elapsed since the 30 adoption; 31 (3) the child is no longer in the custody of the department and the child
01 has been reunited with the child's parents; or 02 (4) ordered to do so by the court in the best interest of the child. 03 (c) Notwithstanding (b)(1) - (3) of this section, the department may not 04 distribute the proceeds of a trust under this section if the payment would be made to a 05 guardian of a child who had been in the custody of the department immediately before 06 the establishment of the guardianship, unless the guardianship was established under 07 AS 13.26.090 - 13.26.155. 08 * Sec. 8. AS 47.14.100(e) is amended to read: 09 (e) When a child is removed from a parent's home, the department shall place 10 the child, in the absence of clear and convincing evidence [A SHOWING] of good 11 cause to the contrary, 12 (1) in the least restrictive setting that most closely approximates a 13 family and that meets the child's special needs, if any; 14 (2) within reasonable proximity to the child's home, taking into 15 account any special needs of the child and the preferences of the child or parent; 16 (3) with, in the following order of preference, 17 (A) an adult family member; 18 (B) a family friend who meets the foster care licensing 19 requirements established by the department; 20 (C) a licensed foster home that is not an adult family member 21 or family friend; 22 (D) an institution for children that has a program suitable to 23 meet the child's needs. 24 * Sec. 9. AS 47.17 is amended by adding a new section to read: 25 Sec. 47.17.024. Duties of practitioners of the healing arts. (a) A practitioner 26 of the healing arts involved in the delivery or care of an infant who the practitioner 27 determines has been adversely affected by, or is withdrawing from exposure to, a 28 controlled substance or alcohol shall immediately notify the nearest office of the 29 department of the infant's condition. 30 (b) In this section, 31 (1) "controlled substance" has the meaning given in AS 11.71.900, but
01 does not include a substance lawfully taken under a prescription from a health care 02 provider who is authorized to prescribe the substance; 03 (2) "infant" means a child who is less than 12 months of age. 04 * Sec. 10. AS 47.17.033 is amended by adding new subsections to read: 05 (j) The training required under (c) of this section must address the 06 constitutional and statutory rights of children and families that apply throughout the 07 investigation and department intervention. The training must inform department 08 representatives of the applicable legal duties to protect the rights and safety of a child 09 and the child's family. 10 (k) During a joint investigation by the department and a law enforcement 11 agency, the department shall coordinate an investigation of child abuse or neglect with 12 the law enforcement agency to ensure that the possibility of a criminal charge is not 13 compromised. 14 (l) Unless a law enforcement official prohibits or restricts notification under 15 (k) of this section, at the time of initial contact with a person alleged to have 16 committed child abuse or neglect, the department shall notify the person of the 17 specific complaint or allegation made against the person, except that the identity of the 18 complainant may not be revealed. 19 * Sec. 11. The uncodified law of the State of Alaska is amended by adding a new section to 20 read: 21 INDIRECT COURT RULE AMENDMENT. Sections 1 - 3 of this Act have the effect 22 of amending Rule 18, Alaska Child in Need of Aid Rules of Procedure, relating to the 23 termination of parental rights proceedings by increasing the standard of proof concerning 24 some elements from proof by a preponderance of the evidence to proof by clear and 25 convincing evidence. 26 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 APPLICABILITY OF SECS. 1 - 3 OF THIS ACT. Sections 1 - 3 of this Act apply to 29 a child-in-need-of-aid proceeding that is pending before the court, that is on appeal to the 30 court, or for which the time for appeal to the court has not yet passed on or after the effective 31 date of this Act.
01 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 CONDITIONAL EFFECT. Sections 1 - 3 of this Act take effect only if sec. 11 of this 04 Act receives the two-thirds majority vote of each house required by art. IV, sec. 15, 05 Constitution of the State of Alaska. 06 * Sec. 14. This Act takes effect immediately under AS 01.10.070(c).