Legislature(2015 - 2016)CAPITOL 106
03/29/2016 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| HB200 | |
| HB334 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 200 | TELECONFERENCED | |
| += | HB 334 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 200-ADOPTION OF CHILD IN STATE CUSTODY
3:04:21 PM
CHAIR SEATON announced that the first order of business would be
HOUSE BILL NO. 200, "An Act establishing procedures related to a
petition for adoption of a child in state custody; adding a
definition of 'proxy for a formal petition'; amending Rule 6(a),
Alaska Adoption Rules; and providing for an effective date."
3:05:53 PM
REPRESENTATIVE VAZQUEZ moved to adopt the proposed committee
substitute (CS) for HB 200, labeled 29-GH1262\W, Glover,
3/24/16, as the working draft.
CHAIR SEATON objected for discussion.
3:06:17 PM
CHRISTY LAWTON, Director, Central Office, Office of Children's
Services, Department of Health and Social Services, said that
proposed HB 200 offered "something for everybody and has a lot
of positive attributes that will really improve services and
access for child in need of aid (CINA) matters. She described
the legal background for an adoption case, listing a Supreme
Court case in Alaska, Native Village of Tununak v. State of
Alaska, Department of Health and Social Services, Office of
Children's Services, and H.S. and K.S., case number 334 P.3d
165, as well as the U.S. Supreme Court case, 133 S.Ct 2552,
Adoptive Couple v. Baby Girl, in South Carolina. She explained
that the U.S. Supreme Court case had been settled prior to
settlement of the Alaska case, and it stated, in sum, that in
order to be considered for adoption of the child, there must
first be filed a formal petition to adopt the child. The Alaska
Supreme Court had then taken its lead from the decision by the
U.S. Supreme Court. She relayed that in the Alaska case,
although the foster family had filed a formal petition to adopt,
the grandmother had not filed, even though at that time it was
not a requirement to be considered. She reported that the
Alaska agencies, along with the governor's office, the Alaska
Federation of Natives, and other tribal entities came together
to seek a solution reconciling the U.S. Supreme Court decision
and the federal law recognized since 1978 under the Indian Child
Welfare Act (ICWA). She explained that this law specified
placement preferences when children were going to be adopted or
placed. She added that non-native children also had placement
preferences that needed to be followed. Under ICWA, native
child placement preferences were extended to tribal members of
the child or the parent. She explained that, as the formal
application for adoption could be a very bureaucratic process to
formally recognize consideration, it was now suggested to
instead use a proxy for adoption, in lieu of the formal
petition. She said that the proxy could be submitted "orally,
in writing, via fax, in a meeting, in a hearing, in a number of
different ways where they basically just state their intent to
be considered for the immediate and permanent placement of the
child." She pointed out that this would not negate the eventual
requirement to file a formal petition to adopt, as it was still
necessary to provide this documentation to the court. The proxy
would preserve and protect the intention for recognition by the
ICWA preferences, and would subsequently initiate the policy of
evaluation for appropriateness of placement. This report would
then be filed with the courts for consideration by all the
parties. She further explained that the adoption hearings would
be conjoined with the CINA case. She stated that the proposed
bill provided for a mechanism to streamline a number of
different legal decisions that could impact a child in the state
child welfare system. She pointed out that, currently,
adoption, guardianship, and civil custody matters all happened
in different courts, often with different judges and at
different times, which often created redundancies and delays for
the involved parties in the quest for permanency for the child.
She stated that the proposed bill would provide a one judge, one
child, one family model, such that all the hearings would be
conjoined under a CINA hearing, thereby allowing the judge to be
most informed and best equipped to provide a good judicial
determination. She offered her belief that this would create
significant efficiencies for all the involved parties, and would
expedite children to permanency.
3:13:48 PM
MS. LAWTON paraphrased the changes from Version A to Version W,
Detailed Sectional Analysis, [included in members' packets],
which read:
Section 1: adds to the legislative intent
"guardianship and civil custody matters" in addition
to adoptions.
Section 2: adds language to allow petitioners n
adoption matters to have the matter finalized in the
judicial district in which they reside if no party in
child in need-of-aid case objects.
Section 3: adds reference to AS 13.20.050(b).
Section 4: adds language to allow petitioners in
adoption matters to have the matter finalized in the
judicial district in which they reside if no party in
child in need-of-aid case objects.
Section 5: changed "must" to "shall" and adds
reference to AS 25.23.030(d).
3:15:18 PM
MS. LAWTON moved on and stated that there were no changes to
Section 6, and paraphrased the changes to Section 7 in the
sectional analysis, which read:
Section 7: This section now includes that in addition
to guardianship and adoption cases needed to be heard
within the child-in-need-of-aid matter, so too, shall
civil custody matters where there is action which
involves divorce or legal separation proceeds
regarding a child in state's custody.
3:15:49 PM
MS. LAWTON continued and advised there were no changes to
Section 8, and paraphrased the changes to Section 9 in the
sectional analysis, which read:
Section 9: adds reference to three newly created
sections AS 47.10.111/112/113. AS 47.10.111 provides
further clarity about what happens when a petition is
filed, how it will be held in abeyance until the
permanent plan is reviewed by the court. It further
establishes timeframes the department must meet. It
further adds clarity about party status and who would
be considered a party or not.
AS 47.10.112 provides the clarity and language about
the use of a "proxy" and describes how the "proxy"
seeks to preserve the placement preferences outlined
under the Indian Child Welfare Act for those children
where the Act applies. It also further defines
extended family member within the meaning of ICWA, and
that a biological parent individually or through
counsel may also request a "proxy" made to the
department on behalf of an extended family member,
member of the Indian child's Tribe, or other Indian
family member.
CHAIR SEATON requested clarification that Section 9 created the
proxy system.
MS. LAWTON replied yes.
3:17:18 PM
MS. LAWTON continued paraphrasing the changes from Version A to
Version W of the proposed bill, which read:
Section 10: clarifies that the definition of "adult
family member" is in statute, and adds the ICWA
language for extended family member.
Section 11: clarifies that the definition of "adult
family member" is in statute, and adds the ICWA
language for extended family member.
3:17:45 PM
MS. LAWTON continued:
Section 12: added new paragraphs to more clearly
define "Indian child" and "Indian child's Tribe".
Section 13: adds further detail to the definition of
"family friend" that now includes members of Indian
child's Tribe, a member of the Tribe in which the
child's biological parent is a member or another
Indian family member.
Section 14: adds language indicating the petition to
adoption can also be brought in the district where the
petitioner resides.
MS. LAWTON shared there were no changes to Section 15, and moved
to Sections 16 and 17, which read:
Section 16: further states that Alaska Adoption Rules
now indicate that a proceed shall be heard as a part
of the child-in-need of-aid matter or in the judicial
district in which the petitioner resides if notice is
provided to the parties and no one objects.
Section 17: adds clarity that the court rules now
include petitions for adoption or legal guardianship.
Also, details about the findings the court must make
about whether the petitioner is entitled to placement
preferences under ICWA or state statute, whichever
apply as well as the compliance of placement
preferences in relation to a proxy or if there is good
cause to deviate from those preferences.
3:19:21 PM
MS. LAWTON then directed attention to Section 18, which read:
Section 18: adds reference to new subsections related
applicability.
MS. LAWTON stated that there were no changes to Section 19, and
continued to Sections 20 and 21, which read:
Section 20: clarifies that regulations can be adopted
upon the signing of the bill but all the other
provisions are not effective until January 1, 2017 to
give time for implementation.
Section 21: clarifies that regulations can be adopted
upon the signing of the bill but all the other
provisions are not effective until January 1, 2017 to
give time for implementation.
3:20:02 PM
REPRESENTATIVE STUTES asked whether this proxy was related
solely to the Indian children.
MS. LAWTON replied that the use of a proxy was only applicable
if the child was qualified under ICWA, and then family members,
both native and non-native, could use the proxy for that
process.
REPRESENTATIVE STUTES said that her problem with the proposed
bill was that, as there were many children in foster homes
wishing to be adopted, this "excludes the Filipino community,
this excludes the Caucasian community, this excludes any other
minority." She advised this was problematic for her, to focus
on "just the Indian or the Native Alaskan group." She shared a
conversation with Representative Gara, in which he expressed the
possibility of incorporating an amendment which would include
children of all ethnicities.
3:21:46 PM
MS. LAWTON reiterated that the provision for the proxy was
specific to Alaska Native children under the Indian Child
Welfare Act, which is specific to this group. She reported that
all other children had placement preferences for adoption, as
well as temporary placement that outlined a hierarchy for
looking at family relatives and family friends prior to looking
at strangers. She expressed concern for a proposed amendment
because currently there is a zero fiscal note, and any changes
would make it difficult to manage without additional resources.
3:23:10 PM
KATIE LYBRAND, Assistant Attorney General, Child Protection
Section, Civil Division (Juneau), Department of Law, in response
to Representative Stutes, clarified that the other provisions of
the proposed bill related to guardianship and adoption being
heard as part of the child-in-need of aid proceedings applied to
all children coming into state custody. She stated that there
were placement preferences, outlined in state statute, for
children not subject to the Indian Child Welfare Act (ICWA), and
that the proposed bill did not change these preferences. She
explained that the adoptive placement preferences under ICWA
were triggered by a formal petition to adopt, as supported by
the U.S. Supreme Court. She stated that the proposed bill only
addressed this barrier, hence its focus on Indian children.
REPRESENTATIVE STUTES relayed that she was clear that this
"relates to some kids in foster home and not others." She
stated that this troubled her as there were so many children in
foster care and the state was proposing legislation that was not
treating everyone equally. She questioned the cost to give this
advantage to all children.
3:25:49 PM
REPRESENTATIVE VAZQUEZ directed attention to the proposed
committee substitute, Version W, page 1, line 9, and asked about
the "additional flexibility" referenced.
MS. LAWTON explained that this "additional flexibility" referred
to the initial use of a proxy in lieu of the formal petition
during the identification of interest for temporary and
permanent placement.
REPRESENTATIVE VAZQUEZ asked if the proxy was a less formal
means of communication of the desire to adopt.
MS. LAWTON said that this was the current mechanism which
allowed individuals to identify themselves to the courts and the
Office of Children's Services as interested in the immediate and
permanent placement of children.
REPRESENTATIVE VAZQUEZ asked if the proxy would comply with the
U.S. Supreme Court decision.
MS. LAWTON said that it would.
REPRESENTATIVE VAZQUEZ asked for the copy of the U.S. Supreme
Court decision.
REPRESENTATIVE VAZQUEZ referenced page 2, line 1 - line 7, of
Version W, and asked if a "tribal customary adoption" was within
the inherent authority of the tribe.
MS. LAWTON explained that there were currently three tribes in
Alaska that had exclusive jurisdiction over child welfare
matters, while the remaining 226 tribes had concurrent
jurisdiction with the State of Alaska in these child welfare
matters. This allowed for assertion of jurisdiction for
movement of a case to tribal court at any time, with the state
no longer involved. She noted that tribal customary adoptions
could be kept in the state courts with the tribe and family
working in conjunction with the state; however, as the final
adoption was often implemented through the tribal customary
adoption, there was a mechanism to carry out the adoption while
allowing the family to continue receiving support from the
state. She stated that this was more culturally appropriate.
MS. LYBRAND, in response to Representative Vazquez, added that
the main difference was for the entire adoption being performed
by the tribe, whereas the other situation was to have the
adoption take place in tribal court although the family would
continue to receive support and have involvement from the state.
REPRESENTATIVE VAZQUEZ asked which sections applied to both
native and non-native children in custody.
MS. LYBRAND directed attention to Version W and said that in
Section 9 only the added AS 47.10.112 specifically applied to
children subject to the Indian Children Welfare Act; all other
parts of Section 9 applied to all children. She said that many
of the sections, including Sections 2, 3, 4, 5, 6, 7, and 8
applied to both children subject to ICWA and those who were not.
She noted that the specific amendment in Section 10 only applied
to Indian children, as well as the amendments clarifying
definitions for Indian children in Sections 11, 12, and 13. She
relayed that Section 14, 15, 16, 17, 18, 19, and 20 applied to
all children in state custody.
REPRESENTATIVE FOSTER stated his support of the proposed bill,
and although it was not all inclusive, there were many good
things. He stated his support for any efforts to include non-
natives, and emphasized that the ICWA provisions were very
important to his Alaska Native constituents.
3:35:32 PM
REPRESENTATIVE VAZQUEZ asked for clarification that, as the
proxy makes it more accessible to individuals, why it was only
applicable to Alaska Native children.
MS. LAWTON explained that this was specific to Alaska Native
children to ensure that the adoption placement preferences and
provisions as outlined by ICWA were recognized and considered by
the courts and the parties.
REPRESENTATIVE VAZQUEZ said she that she still did not
understand.
MS. LYBRAND explained that the intent of the proxy procedure was
to preserve the adoption placement preferences in ICWA which
only applied to Indian children. She reiterated that there were
existing placement preferences which applied to all children
when they came into state custody. She stressed that the
department was always striving to first place children with
family, and those preferences already existed in statute. She
relayed that this was seeking to address that specific issue for
Indian children in light of the recent U.S. Supreme Court
decision that a formal petition was necessary to trigger the
adoptive placement preferences. The proposed bill would reduce
that barrier by allowing for the proxy procedure.
MS. LAWTON clarified that the court system was working on the
petition form to adopt, in order to make it easier for all
petitioners and remove the need for an attorney. She pointed
out that in all the scenarios, it would be necessary for
completion of the formal petition "at some point along the
continuum." She reported that, for people interested in
adopting children not covered under ICWA, there could be a
formal petition to adopt or just a verbal request for adoption
to initiate the consideration for evaluation of placement. She
stated that for the ICWA adoption placement preferences to be
adhered to, the proxy could be submitted in lieu of the
petition.
REPRESENTATIVE STUTES asked if the proxy would eliminate some of
the time involved during the formal petition process.
MS. LAWTON explained that, ultimately before an adoption could
be finalized, an adoption petition would have to be filed.
REPRESENTATIVE STUTES asked if, as the proxy eliminated some of
the up-front time, why this was not applicable to all everyone.
MS. LAWTON replied that this was a timing issue.
REPRESENTATIVE STUTES asked why this option could not be
tailored to offer to all children.
CHAIR SEATON offered his understanding that, as the proxy
allowed for the ICWA priorities to be in place, it was offered
to tribal members. The proxy allowed for the preference of
tribal members. He mused about a way to add another proxy for a
new set of preferences other than those preferences used every
time a child was brought into custody. He pointed out that
there was not a tribal membership preference defined for other
groups.
MS. LAWTON expressed her agreement that this was a good
representation.
REPRESENTATIVE STUTES reiterated her interpretation for the
proxy.
MS. LAWTON, in response to Representative Stutes, said that
there may have been some miscommunication. She explained that
the proxy was a timing issue, it did not change the efficiency
or speed for the case, but simply provided the court a formal
means to give recognition to the federal law for placement
provisions offered to Indian children which were different than
all other children for the reasons outlined in the act [ICWA]
when it was created in 1978. She noted that these reasons still
existed. She stated that this preserved that decision for the
record when discussion arose for permanent placement of the
child.
REPRESENTATIVE STUTES questioned whether the proxy had anything
to do with timing.
MS. LAWTON replied that she did not understand the question
about timing. She reiterated that, in order for the court to
recognize that there were placement preferences for children
covered by the ICWA, it was not necessary to file a petition "to
call that out."
REPRESENTATIVE STUTES said that it did not make sense to her.
3:48:14 PM
REPRESENTATIVE TARR asked to clarify that, as tribal governments
had sovereignty, a relationship that the federal government did
not have with other ethnic groups, this made the placement
preferences unique.
MS. LAWTON replied "yes."
REPRESENTATIVE TARR asked if, as the standard practice was to
first place a child with a family member, then all children were
being treated in the same way in order to respect cultural and
ethnic background. She relayed that the standard practice
ensured that initial efforts were made to "match that up."
MS. LAWTON replied that other federal laws map out the responses
and standard practice of child welfare for any ethnicity.
REPRESENTATIVE TARR pointed out that the tribal relationship did
not exist with other cultural groups.
MS. LAWTON expressed her agreement that this was a unique
situation, as the significant difference with ICWA was not race
based, but was based on a political status as Alaska Natives had
an inherent right to govern and have jurisdiction over their
families, a government to government relationship. She pointed
out that no other ethnicity benefited from such a relationship.
REPRESENTATIVE STUTES asked if she could file a proxy to stop
the adoption process in order for the courts to recognize that
she was a relative and that she wanted custody of the child.
MS. LAWTON replied that, unless the child was covered under
ICWA, she could not file a proxy, but that she could file a
petition in court or contact the Office of Children's Services
(OCS) and state her interest. At that point, OCS would notify
the parties that there was an interested relative and would work
with her to establish placement.
REPRESENTATIVE STUTES interrupted Ms. Lawton and said, "So, the
short answer is no."
MS. LAWTON continued and stated that OCS would collaborate with
her, regardless.
REPRESENTATIVE STUTES reiterated, "So, the short answer is no."
MS. LAWTON stated that the proxy would not apply if this was not
an Indian child.
REPRESENTATIVE STUTES said, "Yes, the answer is no."
MS. LAWTON replied, "[The answer to] your original question, if
that would apply to -- assuming you weren't talking about a
child covered under the Indian Child Welfare Act, yes, is no."
3:53:11 PM
CHAIR SEATON directed attention to the proposed committee
substitute, Version W, page 1, line 9, and read: "an individual
seeking immediate permanent placement of an Indian child in
state custody with additional flexibility to preserve and apply
the placement preferences outlined in the Indian Child Welfare
Act with respect to that individual." He stated his
understanding that an individual with one of these preferences,
under federal law that was different than state preferences,
including tribal membership, who wanted to seek immediate and
permanent placement would use this to notify the court that they
wanted to apply these placement preferences as outlined in ICWA.
MS. LAWTON replied that the proposed bill would provide for the
recognition of those preferences by the courts.
CHAIR SEATON asked whether, before a court could act on these in
a final adoption, it was necessary for the standard application
to be filed.
MS. LAWTON replied that the court would be overseeing the people
wanting the child for adoption, assisting in determination of
the best placement for the child, and providing its input,
before an adoption was finalized. She relayed that it might not
necessarily be the person who had filed the proxy.
3:55:26 PM
REPRESENTATIVE TALERICO asked if a proxy could be filed on your
own behalf.
MS. LAWTON explained that the proxy could be filed on behalf of
a family member or other tribal member through the tribe, or the
parent could identify someone through the parent's council.
REPRESENTATIVE TALERICO offered that, although the customary
definition of proxy was to take action on behalf of someone
else, someone was allowed to submit a proxy on their own behalf.
MS. LAWTON expressed her agreement.
CHAIR SEATON clarified that it would only be inclusive of those
outlined on the preference established in ICWA, and would not
include anyone outside this system.
MS. LAWTON expressed her agreement and stated that the
preferences for a relative to an Indian child often included
relatives who were non-Native, and they would be included.
3:57:23 PM
REPRESENTATIVE TARR reflected on why the tool of a proxy could
not be used in other adoption cases. She listed the process for
any adoption, which included the immediate search for family
members for possible placement early in the process. She mused
that, by final adoption, the proxy was not as important. She
asked if this was a fair comparison, and if it was necessary for
a proxy in these other cases.
MS. LAWTON expressed agreement that the law mapped out specific
timeframes, such that once a child came into custody, there had
to have been an exhaustive relative search, then relatives were
noticed for their right to be considered for placement. She
pointed out that this was an on-going process. She said that,
in all adoption proceedings, relatives denied for placement had
an opportunity to have the decision reviewed. She offered her
belief that the use of a proxy allowed for many family members
to be notified and the placement preferences [under ICWA] to be
considered. She pointed out that, although they may not
dictate, the placement preferences had to be recognized and
considered by the court in acknowledgement of the federal law.
[HB 200 was held over.]
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