Legislature(2005 - 2006)BUTROVICH 205
02/24/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB83 | |
| SB84 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | SB 83 | ||
| = | SB 84 | ||
SB 83-TERM. PARENTAL RTS/CINA/DELINQUENCY CASES
CHAIR SEEKINS announced SB 83 to be up for consideration.
SENATOR HUGGINS moved Version \G as the working document before
the committee. Hearing no objections, the motion carried.
8:41:28 AM
CHAIR SEEKINS noted no additional witnesses were signed up to
testify on the bill.
8:42:23 AM
MS. STACEY KRALY, senior assistant attorney general, Department
of Law (DOL) and Ms. Marcia Kennai, deputy commissioner,
Department of Health and Social Services (DHSS) seated
themselves at the witness table.
SENATOR HUGGINS asked the witnesses whether there was a problem
involving military service personnel regarding child custody. He
referred to Section 2.
8:43:33 AM
Senator Therriault joined the committee.
MS. KRALY admitted the language in Section 2 was baffling. She
offered to research it and get back to the committee.
SENATOR GUESS explained the language was moved to another
paragraph so as to keep the language referring to a national
military emergency in the bill.
8:45:28 AM
MS. LINDA WILSON, attorney, public defender agency, asked for
the working version.
CHAIR SEEKINS had his aide fax the document to her.
8:47:59 AM
MS. WILSON said she supervises the handling of child in need of
aid (CINA) cases. Section 1 [allowing the parent to retain
conditional privileges] re-establishes old practice. It can be
used to the best interest of the child but needs to go further
because it is not enforceable. If a parent relinquishes rights
and then is not allowed visitation they are not allowed to
withdraw their relinquishment. The termination proceeding
happens in the CINA courts but the adoption is a different
proceeding. Section 1 is commendable but should do more for the
parents.
8:50:33 AM
CHAIR SEEKINS asked Ms. Wilson whether it would be a detriment
to adoptive parents if termination were enforceable.
MS. WILSON said possibly. A mechanism in the adoption statutes
for the parents to stay involved post-termination would help.
CHAIR SEEKINS said people are trying to look out for the best
interest of the child and a certain amount of authority for
adoptive parents should go along with that. He does not want to
cause prospective adoptive parents to be deterred from the
adoption.
MS. WILSON said the adoptive court would consider that
circumstance.
CHAIR SEEKINS noted often adults twist the minds of children for
their own benefit.
8:54:04 AM
CHAIR SEEKINS said if the court has terminated a relationship
there is a problem with the relationship. Prospective adoptive
parents can offer stronger relationships. Children can be
manipulated by their birth parents.
SENATOR FRENCH said in terms of finality it seems inefficient to
add provisions that undo all the work of the conditions to which
the parents are allowed visitation.
MS. KRALY said the purpose of the sentence is to have finality
with the relinquishment in the proceedings. The CINA proceedings
are separate and distinct from the adoption proceedings.
8:57:04 AM
CHAIR SEEKINS asked Ms. Wilson the solution to her concern.
MS. WILSON said Section 1 was good but somewhat illusory. It
would allow the parent to retain a privilege but in reality it
is not enforceable. She suggested putting a retained privilege
in the adoption decree so the biological parent could address
their court appointed visitation rights.
CHAIR SEEKINS asked whether she was suggesting an amendment to
SB 83.
MS. WILSON said no.
8:59:38 AM
MS. WILSON continued Section 6 would present problems with ICWA
law [Indian Child Welfare Act], which requires that before you
can terminate parental rights, the state must show evidence. You
cannot terminate parental rights unless the state can prove
beyond a reasonable doubt (and it has to include testimony of a
qualified expert witness) that continued custody is likely to
result in serious emotional or physical damage to the child.
That is federal law. Allowing an offer of proof situation
without having an expert could be challenged legitimately.
9:01:39 AM
MS. WILSON continued there were many conditions in Section 6 for
someone to reach some sort of judicial notice.
CHAIR SEEKINS clarified her interpretation is a court could say
"A qualified witness would have found this way so therefore I
rule this way."
MS. WILSON said that is exactly what the paragraph is trying to
do and that is inappropriate. An expert witness is not difficult
to get.
SENATOR FRENCH said he thinks it pertains to a narrow finding in
a set of narrow circumstances. The parent would be willfully
absenting himself or herself from the child and the situation is
that the parent cannot be found.
9:04:30 AM
CHAIR SEEKINS agreed.
SENATOR THERRIAULT suggested changing the wording on line 20 to
say "...the court may conclude that the continued custody of the
child is not in the child's best interest."
CHAIR SEEKINS speculated there was tension between state and
federal law.
SENATOR FRENCH said that was his guess.
CHAIR SEEKINS said they would be accomplishing the step by
allowing the court to insert its judgment as a qualified expert
witness.
SENATOR FRENCH agreed.
SENATOR THERRIAULT noted the witness has to actually come into
court.
CHAIR SEEKINS said no.
SENATOR FRENCH said, "Not if we pass this law."
SENATOR THERRIAULT asked if the extra verbiage was to satisfy
the federal law.
MS. KRALY said yes.
9:06:38 AM
CHAIR SEEKINS asked Ms. Kraly whether it was the department's
opinion the extra verbiage would satisfy tension between the
state and federal law.
MS. KRALY said we believe so. ICWA requires a finding by a
qualified expert and the offer of proof, which is basically what
this would be.
CHAIR SEEKINS asked Ms. Wilson the best interest of the child.
MS. WILSON responded to run the proceedings the way federal law
set them up. The bill does not specify a time frame or whether
it was a reasonable search for the parent.
9:08:32 AM
CHAIR SEEKINS asked whether the opinion of a qualified expert
witness could be done by affidavit.
MS. WILSON stated the bill says testimony.
MS. KRALY said she hadn't thought it out. There are other issues
regarding affidavits. The premise under Section 6 is four months
to a year. The court would also make the burden of proof.
Conditions safeguard the absent parent.
9:11:19 AM
SENATOR FRENCH asked the number of notices sent to a parent.
MS. KRALY informed currently they attempt contact through the
Department of Corrections both in state and out; child support
enforcement, PFDs, taxes, and they contact other jurisdictions.
They use certified mail and the public defenders.
CHAIR SEEKINS noted there was no one else slated to testify.
SENATOR HUGGINS said Section 6 needs clarification regarding the
presence of the expert witness.
9:16:49 AM
CHAIR SEEKINS noted the only thing being eliminated was physical
presence of the expert witness.
MS. KRALY agreed. The DOL offers numerous proofs in CINA cases.
CHAIR SEEKINS said he is satisfied the safety and best interest
of the child was being provided for because qualified expert
witnesses would have already made their conclusions.
SENATOR FRENCH added expert witnesses were not being dispensed
of. It is just on one narrow point about absent parents.
SENATOR HUGGINS asked Ms. Kennai whether there is generally
prior evidence of the parents history that would leave a
reasonable person to conclude the parents did not care about the
child's fate.
MS. KENNAI said many cases are looking at parents who could
never be found from the very beginning.
9:20:24 AM
SENATOR THERRIAULT moved CSSB 83(JUD) from committee with
individual considerations and attached zero fiscal notes. There
being no objections, the motion carried.
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