Legislature(2005 - 2006)BUTROVICH 205
02/08/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB10 | |
| SB237 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 10 | TELECONFERENCED | |
| += | SB 237 | TELECONFERENCED | |
| += | HB 41 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 10-PARENTAL LIABILITY FOR CHILD'S DAMAGE
[At the beginning of this meeting of the Senate Judiciary
Standing Committee, the computer running the recording software
suddenly rebooted. This caused the recording of the first seven
minutes of the meeting to be lost. A backup recording can be
found by following the link provided below. The minutes do
reflect the meeting in its entirety.]
http://old-mp.legis.state.ak.us/mpweb/scripts/mpx.dll
08:49:00
CHAIR RALPH SEEKINS announced SB 10 to be up for consideration.
SENATOR GRETCHEN GUESS, sponsor, moved to adopt CSSB 10(JUD)
version \O as the working document before the committee. Hearing
no objections, the motion carried. She said during the last bill
hearing the committee made the decision to hold the state liable
in the same manner the bill holds parents liable for acts of
vandalism committed by their children. The key problem phrase is
"state's custody," which has brought about some concern from the
Department of Law. She said her intent was that the state should
be held liable only once parental rights have been terminated.
She advised the committee that she brought three different
amendments for members to consider and would introduce them at
the proper time.
Senator Gene Therriault joined the committee.
ANNE CARPENETI, Assistant Attorney General, Department of Law
(DOL), advised the committee that the State of Alaska does have
concerns regarding SB 10, which would hold the state responsible
for children in its custody in the same manner that parents
would be held responsible for children in their custody. She
explained that the state is not in the same position as a parent
since the state takes custody of children who commit delinquent
acts and also children who have suffered long-term abusive
situations.
The state takes custody of children due to many instances and,
she maintained, these children are in no way similar to the
average child who is under parental care. The state generally
focuses on putting children in the least restrictive setting in
order to help them recover from whatever has brought them to the
state's custody. The concern is that if the state is held liable
for acts of the children somewhere somebody will be thinking in
terms of liability.
TONY NEWMAN, Program Officer, Division of Juvenile Justice
(DJJ), said the impact of the state's liability would be mostly
of personal liability, which is an issue with the torts section.
He offered to answer questions.
8:48:21 AM
GAIL VOITLANDER, Chief Assistant Attorney General, Torts and
Worker's Compensation Section, Civil Division, Department of Law
(DOL), advised the committee the division has serious concerns
about the scope of liability that SB 10 would impose under the
sponsor's current and proposed amendments. She said:
The policy conflict has to deal with statutes
affecting children who are adjudicated delinquent as
well as those having to do with children in need of
aide. The law is looking toward placement in the least
restrictive setting in order to further rehabilitation
for those who are adjudicated delinquents and to help
best rehabilitate children who are in need of aide who
have been removed from oftentimes incredibly damaging
atmospheres at home.
MS. VOITLANDER continued the term "state's custody" includes a
number of situations, such as children who have been initially
removed from their home under federal law and have to be
returned to the home under a trial setting with supervision.
Although they are in state's custody, they are also in the day-
to-day custody of the parents. They may also be in the custody
of relatives or in foster care, both of which are technically
under state's custody. They may be children in group homes or
private institutions or in a state facility. The term includes a
wide variety of situations.
There are approximately 2,500 children currently in state's
custody. As currently written, the bill would expose the state
to potential liability up to $15,000 in property damage for each
of the 2,500 children.
8:52:02 AM
In addition to the state responding directly to third-party
claims, the potential amendment labeled 24-LS0115\O.1 would
allow the following situation: There could be payments that are
made by insurance companies on behalf of the insured parents who
then would attempt to recoup the monies that they paid on the
homeowner's policy from the state. The potential amendment
labeled 24-LS0115\O.2 would affect up to 250 children and would
still create issues of insurers seeking to recoup the monies
they have paid from the state.
The potential amendment labeled 24-LS0115\O.3 would remove the
amendment imposed on the bill the week prior and take the bill
back to status quo in terms of the state, which means that
victims of property damage look to the children, the parents,
and their insurance for compensation.
8:55:46 AM
The fiscal impact to the state, even with a conservative
estimate that only five to ten percent of the children would
generate a claim, would still mean very serious money that the
state would be liable for. Concerns over the previous fiscal
note submitted by the DOL have been addressed and the note was
corrected. The previous fiscal note was operating on the premise
that the state was being made liable for restitution in juvenile
adjudication cases for crimes against persons and that
conflicted with certain state's immunities and put the DOL in
conflict situations. Since that was never the intent of the
sponsor, the department submitted a replacement fiscal note.
8:58:19 AM
MS. VOITLANDER offered to answer questions.
SENATOR GUESS clarified in the case of a child in state's
custody with parental rights intact, the parents would still
have liability. It is not the case that if parental rights have
been terminated that the parents would have a liability. In the
case of property damage, if parental rights have been
terminated, the $15,000 cannot be recouped from the parents or
the juvenile for equal protection reasons.
The potential amendment labeled 24-LS0115\O.1 would clean up the
previous amendment to the bill. The potential amendment labeled
24-LS0115\O.2 reflects the state's liability but only
termination of parental rights. The potential amendment labeled
24-LS0115\O.3 would remove all the state liability.
SENATOR GUESS said those are the three potential amendments
before the committee and she and Senator Dyson trust the Senate
Judiciary Committee to make a good decision.
9:00:48 AM
CHAIR SEEKINS recognized that the state prefers to put minors in
the least restrictive setting but he questioned the potential
impact to society. Counselors have suggested that is the best
way for the child to head toward normalcy. On the other hand, a
problematic child could cause considerable damage to other
people or property. He said it appears that in the case of a
runaway child there would be no responsibility on the part of
the parents.
9:02:47 AM
SENATOR GUESS advised the committee that the runaway situation
was language that was worked out four years ago with Senator
Dyson in the Senate Health, Education and Social Services
Standing Committee. The bill sponsors made the decision not to
change it. It was a policy call at that time by the Legislature
to not hold parents liable for runaway children.
MR. NEWMAN said he thought it would be constructive to provide
the committee with a description of the types of damages that
occur for children in state's custody. In fiscal year 2005 the
Office of Children's Services (OCS) and the DJJ had
approximately 2,500 juveniles in state's custody. Twenty-four of
those children caused approximately $21,000 worth of damages
while in state's custody; $10,000 of which was done in juvenile
facilities and $11,000 was done on the outside by the OCS
placement kids. Not one individual bit of damage was over
$5,000. Most of them were in the hundreds of dollars range. The
state typically paid for the damages and the youth was brought
to court and ordered to pay the restitution. In addition, the
juveniles are routinely required to work off the damages in
community service.
MR. NEWMAN expressed concern over the bill and said if the
juvenile were held responsible for restitution and s/he is
incarcerated, it would take longer for the restitution to be
repaid overall.
9:06:22 AM
SENATOR GUESS responded the victim, in this case the State of
Alaska, would always have the ability to waive restitution and
come up with an alternative plan. Under SB 10, instead of having
the state or the court make that judgment, the victim would be
allowed to waive restitution. The DJJ would not change the way
it handles cases.
MR. NEWMAN wondered what the process would be in the case of
when the state is both the victim and the prosecutor. He said it
would set up a conflict.
9:07:39 AM
SENATOR FRENCH noted Mr. Newman informed the committee that one
percent of the children in state's custody caused damage in
fiscal year 2005 yet Ms. Voitlander testified that the vandalism
rate was 10 percent. He asked Ms. Voitlander to respond.
9:09:02 AM
MS. VOITLANDER responded Mr. Newman was speaking about one very
small component of the exposure that SB 10 makes. He was
confining his numbers to DJJ kids in a youth facility and only
the claims that are brought informally by a foster parent. There
is a regulation that caps the property damage that foster
parents can request at $5,000 and that includes several
limitations. For example if the homeowner has an insurance
policy they must file a claim with them. Under regulations the
homeowner has to get the property damage covered by their
insurance.
Mr. Newman's numbers also do not reflect third-party claims such
as claims by a school district or a neighbor. His $21,000 number
is reflective of the very narrow group of those locked down in
DJJ custody and those in state custody through OCS in a foster
home where the juvenile did damage to the foster home and the
foster parent has asked the state to pay restitution up to the
$5,000 regulation. The difference is that exposure for third
party claims would create a far greater liability than Mr.
Newman's $21,000 number.
9:12:43 AM
SENATOR FRENCH asked Ms. Voitlander how she came up with her
vandalism rate estimate for the 2,500 juveniles in state's
custody.
MS. VOITLANDER said it was a conservative estimate based on Ms.
Carpeneti's previous testimony. Juvenile delinquents and child
in need of aide (CINA) children tend to have serious behavioral
issues.
SENATOR FRENCH said he could appreciate that they were talking
about a population at risk but he remained speculative about the
data that she was citing.
MS. VOITLANDER responded she was making a rough estimate based
on familiarity with the population and working with risk
management.
9:15:34 AM
CHAIR SEEKINS expressed concern over the differing estimates of
potential liability and said he has not previously been aware
that there is as high a potential as Ms. Voitlander suggests.
MS. VOITLANDER responded most of the losses are traditionally
covered by insurance, such as car insurance when a juvenile
steals a car or homeowner insurance when a juvenile damages a
home. State claims managers would be able to testify to those
losses.
9:17:39 AM
CHAIR SEEKINS asked for discussion among the committee members.
SENATOR HUGGINS expressed concern that the state could be
vulnerable for exploitation.
CHAIR SEEKINS asked Ms. Carpeneti whether foster parents are
required to obtain and maintain a liability policy on the
actions of a foster child.
MS. CARPENETI said she did not know.
MS. VOITLANDER responded that OCS has not required foster
parents to have a homeowner policy nor a liability policy
because it is already difficult to recruit foster parents and
they don't always own homes. Homeowners are required by the
mortgage company to hold a homeowners policy and many of them
cover not only the asset but also general liability and
negligent acts that result in personal injury.
9:22:32 AM
CHAIR SEEKINS said the intent of the bill is to find a good
balance for the liability.
SENATOR HUGGINS asked for clarification over who would be liable
in the case of the foster parent.
SENATOR GUESS explained it would depend on whether the case was
adjudicated in criminal court or went through civil court. Under
24-LS0115\O.1 it would be the state's liability. Under 24-
LS0115\O.2 it would be the responsibility of the natural parents
if the parental rights were not terminated.
SENATOR FRENCH posed a hypothetical situation of a child living
in a foster home and burns down a house. The child is
responsible for the first $5,000, the natural parent is
responsible for the next $15,000 and the child is responsible
for the rest.
SENATOR GUESS said that would be the case under 24-LS0115\O.2.
The logic is that in the situation where families are trying to
get back together, the parent would still have the
responsibility even if that child had been taken away.
9:26:13 AM
SENATOR HUGGINS said he was struggling with holding the parent
responsible when the child is out of their direct control.
MS. VOITLANDER referred the committee to AS 34.50.020(a) and
said:
Damages for which parents are liable should be
apportioned by the court without regard to legal
custody but with due consideration for the actual care
and custody provided by the parent. That is a factor
that the court considers.
For example, she continued, there could be a situation where the
parents are in the process of divorce and one parent has
physical care and custody of the teenager and the other parent
resides elsewhere. While that parent still has parental rights,
they do not have day-to-day custody and the court would consider
that fact.
9:28:21 AM
SENATOR FRENCH said nevertheless the parents would still be
liable for $15,000 worth of the damages.
MS. VOITLANDER asserted the court would take all of that into
account and determine whether either parent was liable.
9:29:39 AM
BRAD THOMPSON, Director, Division of Risk Management, Department
of Administration (DOA), informed the committee that the statute
was revised in 1995 to clarify that the actual care and custody
of the minor was required for the parent to be held strictly
liable. Thus far the state has no claim history because of the
protection of the third party claim. In the administrative code,
there is a method for the foster parent to come to the
Department of Health and Social Services (DHSS) for
reimbursement. Mr. Thompson read from the administrative code
and said, "Modest damages and lost costs are normal in the care
of children and are included in the standard rate, however the
division will in its discretion reimburse a foster parent for
damages and loss up to $5,000 under [certain] circumstances."
The agency has been making that remedy to the foster parent as
an additional benefit to them because of the services they
perform.
9:32:10 AM
SENATOR FRENCH clarified that remedy is for when a foster child
damages the property of the foster parent. He asked the remedy
for when a foster child damages a neighbor's property.
MR. THOMPSON replied there is no remedy. As proposed in the
bill, the state would be responsible for damages for some things
that currently are protected by insurance. He said in a
situation where a group of juveniles cause property damage and
one of them is in state's custody, that is the one that the
insurer would go after to recover the damages.
9:34:03 AM
CHAIR SEEKINS asked Mr. Thompson his experience on losses where
claims are made.
MR. THOMPSON said the state has had notices of incidences but
due to the existing statute they do not have to respond to them.
The agency did recently pay the $5,000 limit under the
administrative code on an incident of vandalism to an uninsured
building.
CHAIR SEEKINS announced a brief recess at 9:35:05 AM.
9:47:34 AM
CHAIR SEEKINS announced that the committee would continue on the
bill the following day. He held SB 10 in committee.
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