Legislature(1997 - 1998)
05/02/1998 09:35 AM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 375
"An Act relating to children in need of aid matters
and proceedings; relating to murder of children,
criminally negligent homicide, kidnapping, criminal
nonsupport, the crime of indecent exposure, and the
crime of endangering the welfare of a child; relating
to registration of certain sex offenders; relating to
sentencing for certain crimes involving child victims;
relating to the state medical examiner and reviews of
child fatalities; relating to teacher certification
and convictions of crimes involving child victims;
relating to access, confidentiality, and release of
certain information concerning the care of children,
child abuse and neglect, and child fatalities;
authorizing the Department of Health and Social
Services to enter into an interstate compact
concerning adoption and medical assistance for certain
children with special needs; authorizing the
establishment of a multidisciplinary child protection
team to review reports of child abuse or neglect;
relating to immunity from liability for certain state
actions concerning matters involving child protection
and fatality reviews and children in need of aid;
relating to persons required to report suspected child
abuse or neglect; relating to foster care placement
and to payment for children in foster and other care
and the waiver of certain foster care requirements;
relating to the access to certain criminal justice
information and licensure of certain child care
facilities; amending Rule 218, Alaska Rules of
Appellate Procedure; amending Rules 1, 3, 15, 18, and
19, Alaska Child in Need of Aid Rules; and providing
for an effective date."
REPRESENTATIVE FRED DYSON stated that the proposed version
of HB 375 is a combination of months of effort undertaken
in response to the Governors Child Protection Review Team.
It is a step toward protecting children.
Representative Dyson advised that the proposed legislation
would not:
? Guarantee that the Division of Family and Youth
Service (DFYS) workers would not make mistakes;
? Guarantee that Court hearings for DFYS to take
custody of a child would be fair;
? Guarantee that each out-of-home child placement
would be successful;
? Force DFYS to shape up, although, it would
establish performance standards;
? Guarantee that parents will "get their acts
together".
Representative Dyson explained that if the legislation is
passed, the State will have taken a large step in
protecting children. He stressed that if this bill is not
passed in some form, the following situations could occur:
? Some $10 million dollars in federal funds will be
in jeopardy because new federal law requires
states to come into conformity by the next
legislative session;
? State confidentiality laws will continue to limit
the necessary cooperation between state agencies;
? Courts will continue to have problems with our
inadequate, confusing, and obsolete definitions
in State law;
? We will not have changed the emphasis of our
child protection laws in order to make the safety
of the child paramount;
? We will not have set, in law, the standards for
DFYS to place children into safe and permanent
homes within a year;
? We will not have tightened our criminal law
related to child murder and abuse;
? We will not have mandated that foster parents get
the information that they need to care for the
children in their charge;
? We will not have empowered DFYS to intervene
before a child is killed or badly abused.
Representative Dyson continued, the bill will:
? Increases penalties and closes loopholes that
allow child-killers to get light sentences;
? Eliminates confidentiality barriers to inter-
agency communications and cooperation and
mandates cooperation and communication;
? Allows for earlier intervention in cases of child
abuse and neglect when the child is in a
dangerous home;
? Makes child protection the highest priority for
DFYS, even higher than "family reunification" at
the expense of child safety;
? Purports to meet the requirement of new federal
law and should qualify Alaska to continue to
receive approximately $10 million dollars in
funding annually;
? Creates a statewide Child Fatality Review Team
and facilities the formation of local
multidisciplinary teams to coordinate the dealing
with local child abuse cases;
? Provides for foster parents and other care givers
to get all relevant information about the child
in their care including criminal background,
behavioral problems and medical history;
? Sets firm deadlines for proceedings and permanent
placement;
? Clarifies definitions of vague terms that have
troubled the courts and produced inconsistent
protection of children;
? Provides for criminal checks for prospective
caregivers.
Co-Chair Therriault questioned what language was dropped
through the Senate version. Representative Dyson noted the
criminal penalty portions for crimes against children, as
well as confidentiality concerns were addressed.
Representative Kelly inquired which portion of the bill
would remove the child from custody of the home "before"
that the child was hurt.
SUSAN G. WIBKER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF
LAW, replied that there are parts in the jurisdictional
section that address "harm to the child" and "conditions
that place a child at substantial risk of harm". The
language in the existing statute is "imminent and
substantial risk of harm". The imminent was removed. The
basis of that change resulted from an audit requested last
September by Commissioner Perdue to be undertaken by the
Kemp Center. That audit resulted from a report that a
young girl in care had been sexually assaulted.
The Kemp Center reviewed a random selection of state cases
and then provided advice to the Department. One of the
recommendations of the Kemp Center advised that the State
laws were written to narrow and restrictive, and that
social workers were handicapped in their ability to assess
ongoing, high risk, and dangerous situations. The Kemp
Center concluded that Alaska's laws were some of the most
restrictive in all of the states, resulting in children
being left in dangerous situations. The same
recommendation was detected in a legislative audit done on
DFYS.
Ms. Wibker noted reference to that concern on Page 25,
Section 47.10.011, Section (6) and (7), which interprets
"substantial risk".
Representative Kelly asked if there was a portion of the
bill which referenced leaving a child in the custody of
someone who poses a threat. Ms. Wibker noted that the bill
places a requirement on the Department, as the first
alternative, to determine if the child can be left safely
with one of the parents. That reference is contained on
Page 25, Lines 29-30, where the bill states that if you
leave your child with a person who is a sex offender, the
child is at substantial risk of sexual abuse.
Representative Kelly asked for more concrete information
regarding how the child would be at risk for "substantial"
physical harm. He believed that was subjective.
Representative G. Davis asked if the federal government was
sanctioning how children should be raised, pointing out how
restrictive the legislation was. Representative Dyson
advised that his reading of the federal legislation
combined the "carrot and the stick". If the child is not
moved out of State custody, there is a penalty against
keeping children in the system. He affirmed that there was
nothing referencing lifestyle or family values.
RUSSELL WEBB, DEPUTY COMMISSIONER, DEPARTMENT OF HEALTH AND
SOCIAL SERVICES, noted that the intent of Congress was to
move children out of State custody quickly. This
legislation is not an incentive to take kids into custody;
the incentive comes at the tail end for kids that have been
languishing for years, there is an incentive to get those
children into adoptive homes. He pointed out that there is
$10 million dollars at stake if the Department does not
make the health and safety of children paramount.
Representative J. Davies proposed that the stipulations,
which Congress is requiring of the State are valid.
Representative Kelly referenced #(8) on Page 26, "mental
injury". He asked if "serious mental injury" was defined
in the legislation. Ms. Wibker replied that the definition
in the current version was not the same definition
contained in the original version.
(Tape Change HFC 98- 143, Side 2).
Ms. Wibker explained that in current law, reference to
"mental harm to children" identifies certain conditions.
The original statute speaks of mental harm as evidenced by
failure to thrive, depression, or aggressive behavior.
This criteria is in existing law under medical neglect.
Through the amendment process, there was a decision to use
"mental injury". That definition is in existing statute,
AS 47.17.290. In hearings during earlier House Committees,
that language was preferred because there is an already
existing definition which requires that injury to be
observable and substantial. The injury must interfere with
the child's ability to function. The limiting language was
preferred and was used to replace any reference to
emotional harm.
Ms. Wibker advised that the vague language used on Page 26,
Line 6, could open the door for problems. The intent of
the House Judiciary version was to access those children
growing up in violent homes and who are continually exposed
to violence. Ms. Wibker recommended language such as
"children exposed to violence" could be more beneficial.
In response to Representative Kelly's query, Ms. Wibker
responded that would not be grounds for emergency custody.
Emergency custody can only be assumed if there is
abandonment, serious neglect, physical or sexual abuse.
The Department must file a petition which is taken to a
magistrate before removing that child from a home. Mr.
Webb interjected that in an emergency situation, the child
would be removed from the home first and then there would
be a petition filed.
Representative Kelly expressed concern with the language
"mental injury". Ms. Wibker stated that the thrust of the
language was to get at the serious emotional harm being
done to children. The next tier would be children with
very serious psychological problems and who need
institutional care.
Representative Kelly commented that DFYS is not always the
problem, although, some of their actions leave the public
wondering. He believed that the problem is that even
serious mental injury, is determined by a subjective
review. He recommended placing in statute a definition of
the diseases referenced by the Department to protect the
child. Representative Kelly emphasized that the "children
in need" portion of the bill should be the most important
concern of the Committee.
Representative Mulder asked if there was a definition of
"substantial risk of mental injury". Ms. Wibker stated
that there was not a definition; the House Judiciary
Committee intended it to mean "exposure to domestic
violence". Federal law has a floor that must be protected
which requires that the State address serious emotional
harm and imminent risk of serious emotional harm.
Representative J. Davies asked if there were other classes
of risk to mental injury besides exposurement to domestic
violence, which might not be covered in that language. He
suggested narrowing it, replacing the language with
"imminent risk". Ms. Wibker stated that would require that
the "risk" is immediate, closing the temporal gap between
the risk, and the risk actually materializing, which would
be consistent with federal language.
Representative Kelly MOVED to adopt Amendment #1. [Copy on
File]. Ms. Wibker explained that Amendment #1 would
address the changes for the child in need of aid court
rules. There being NO OBJECTION, it was adopted.
Representative Kelly MOVED to adopt Amendment #2. [Copy on
File]. Ms. Wibker explained that Amendment #2 would
address the applicability of when the changes would go into
effect. There being NO OBJECTION, it was adopted.
Representative Kelly noted that he would not offer
Amendment #3 and #4 at present time. [Copy on File].
HB 375 was HELD in Committee for further consideration.
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