Legislature(1999 - 2000)
03/07/2000 04:10 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 402 - PROBABLE CAUSE FOR RUNAWAY MINORS CHAIRMAN DYSON announced the next order of business as House Bill No. 402, "An Act relating to runaway minors." Number 1208 WILDA RODMAN, Staff for Representative Gene Therriault, came forward to present HB 402 on behalf of the sponsor. She read the sponsor statement: This legislation is one of many in a long list attempting to deal effectively with minors who have run away from home. Four measures have passed the legislature and become law since 1994 - each of them recognizing and strengthening the rights of parents and legal guardians to make the decisions on placement of the minor. House bill 402 continues that effort. House Bill 402 raises the standard by which peace officers determine whether or not to return runaway minors to their parents' or legal guardians' residence. Under current law, once a minor has been determined to be a runaway, peace officers are required to return them to their parents' or legal guardians' residence unless they have reasonable cause to believe that the minor has experienced physical or sexual abuse in the parents' or legal guardians' household. This legislation requires the peace officer to have probable cause to believe such abuse has occurred - a higher standard. The legislature has long grappled with the balance between the rights of parents to raise their children to be productive members of society and the responsibility of protecting those who have been abused physically or sexually. House Bill 402 is an attempt to make Alaska's statutes reflect the appropriateness of minors abiding by the rules and limits set by their parents. MS. RODMAN explained that Representative Therriault wanted this bill brought up to hear the concerns of the department and committee members. Number 1278 REPRESENTATIVE WHITAKER asked if it is correct that it would be reasonable for a police officer to have a runaway child simply say "I have been abused," and that would be reason enough for that child to not be returned to the family. Number 1321 DEL SMITH, Deputy Commissioner, Department of Public Safety, came forward to testify. As a law enforcement officer of many years, he is concerned about raising this standard. He believes there was at least one incident that prompted this legislation. As the incident was related to him, he believes the officer did not act appropriately. He doesn't believe the law needs to be changed because an officer did not appropriately apply it. As to Representative Whitaker's question, he believes if the runaway minor articulates a fairly reasonable story, he, as a law enforcement officer, would not want to take the runaway home. He would at least want a timeout to look into whether something had really occurred or not. MR. SMITH noted that most horrific story he ever heard was when the police took the child back to Jeffrey Dahmer's house. He is not equating any of that here, but he does not want to put an officer in a position of saying "Sorry kid, you don't make the mark for probable cause," which is certainly a higher standard than reasonable cause. Practically speaking, most officers are going to err on the side of saying maybe there needs to be a timeout for somebody to take a look at this. Probable cause is the standard used to arrest somebody. He has to believe that a crime happened to get to probable cause. That is a pretty tough standard to arrive at in a police car before the officer can decide what to do with the child. This is too high a standard to determine whether or not to take someone's freedom away to arrive at whether something has really happened to this young person. Number 1495 REPRESENTATIVE BRICE asked what the legal tests are for reasonable cause and probable cause. MR. SMITH answered he can only speak to the practical applications; Anne Carpeneti can better talk about the legal standards. Probable cause to him is that something has happened and there is someone who has done it. He has difficulty applying it to a situation where somebody is telling him something that has happened to them or not. Generally if someone comes up to a police officer and says this has happened to him/her, the officer doesn't try to set some standard about whether it did or not. The report is taken and if it turns out to be false, a false police report is filed against the person. That kind of triage would not occur in this kind of situation. Reasonable cause is in a situation like this: a kid says "I don't want to go home;" "Why don't you want to go home?" "Well, I've been made to do things that I don't like to do," or "They beat me." Then the officer would try to fill out the story when, where, how, who and how many times. REPRESENTATIVE BRICE commented that there's a vague issue between reasonable cause and probable cause. MR. SMITH said the terms he refers to are "reasonable suspicion" and "probable cause." He isn't sure exactly where reasonable cause came from. Reasonable suspicion might be if he sees a guy sneaking around in a neighborhood late at night where burglaries have been happening, he might have reasonable suspicion to believe that he is about to do a burglary or has done one, at least enough to stop him and do a field interrogation. It would not be probable cause to take him into custody unless he'd found more evidence. Number 1654 REPRESENTATIVE GREEN asked: If the standard was left at reasonable cause, would the officers have to make a lot more decisions because they might have a reasonable suspicion, but they know they don't have probable cause? So, if it were probable cause, they would deal with this kid differently. MR. SMITH said if it were a probable cause standard and the law were changed, the officer would probably have to take the child home unless he/she had evidence that established probable cause. As a practical matter, most law enforcement officers are going to err toward taking a timeout and having someone else sort it out. They are not going to stick the kid back into a situation where he/she may be abused. In the situation where the kid says "I just don't want to go home," if the officer applies the law in the right way, he'd say "Sorry, we're going home." If the kid says "I don't want to go home because things have happened to me," the officer would need to question further about what is happening to him/her. To get to the probable cause level takes a lot more time, energy, investigation than should be required of law enforcement officers on the street. Number 1749 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came forward to testify. She explained that a few years ago the standard used to be "reasonable suspicion"; it was changed to "reasonable cause" to raise that a little bit. The Department of Law supports and agrees with the Department of Safety when it voices its concerns about the probable cause standard. That is the legal standard used to arrest somebody. No one wants to take a child home in every case unless there is enough evidence to arrest the parent; that would be dangerous. The police need the chance to apply the reasonable cause standard if the reasons given by the child seem to make sense and take some time to investigate them out before taking the child home to what could be a dangerous situation. REPRESENTATIVE BRICE asked Ms. Carpeneti for the definitions of probable cause and reasonable cause. MS. CARPENETI answered that it is a very dynamic standard. She could find case law for Representative Brice to see how courts have defined it; it is not defined in Alaska's statutes. When she thinks of "reasonable cause," she thinks of good reasons to believe that there might be something bad happening to a child. When she thinks of probable cause, she thinks of what Del [Smith] described as enough reason to convince a judge to get a warrant for his/her arrest - that a crime has been committed and that person committed the crime. REPRESENTATIVE BRICE said it is not clear to him that "reasonable" to "probable" aren't interchangeable simply because when the reasonable cause standard was established, nobody knew what it was. MS. CARPENETI said when talking about reasonable cause, it is less talking about who did it than whether something bad happened. That's how she would think of it. If the child gives reason to believe that something bad has happened, no one wants to return him/her to the original environment. In probable cause, it is more likely than not that something bad has happened, and that a particular person did it. She would be happy to get case law on it; it is something used all the time, but there isn't a good Webster's type definition. She will get some court decisions for him. CHAIRMAN DYSON asked Mr. Smith what an officer does with a child when he has heard things and doesn't want to take the child home. Where does he take him? Number 1948 MR. SMITH answered that if there is not a DFYS person on duty, he can call the Division of Family and Youth Services (DFYS) and say, "I've got this person; where do you want me to take him?" The officers are trying to avoid keeping him in the police car at the police station. CHAIRMAN DYSON asked what happens next. Number 1974 JANA STEWART, Administrator, Central Office, Family Services, Division of Family & Youth Services(DFYS), Department of Health & Social Services, came forward to answer questions. She indicated that in general, the DFYS supports the Department of Public Safety's interpretation of this. The DFYS is not comfortable with adding a second set of standards. The DFYS already uses reasonable cause for mandatory reporters and police are mandatory reporters. This is something the division is familiar with in the civil context; to then throw in a standard which is most traditionally used in criminal law which is so infrequently used in civil law is going to confuse the issue for police officers and may subsequently confuse the issue for DFYS when there is an officer who has had to articulate something based on a criminal law standard. It's not going to be as clear to the social workers if the police officer has made an assessment based on a criminal standard and now they're coming to DFYS with a child that has to be placed under civil standards. The division believes that is going to be apples and oranges and will cause confusion for the police and social workers. CHAIRMAN DYSON asked what happens to the child if the officer decides not to take the child home. MS. STEWART explained that it becomes a report of harm, and the division will do an intake investigation and assess it. Then there is a hearing before a magistrate in 48 hours. Number 2044 REPRESENTATIVE BRICE asked if the "runaway" statutes are under the civil laws, not criminal laws. MS. STEWART answered yes, it is all through the child-in-need-of- aid (CINA) statutes, which are not criminal statutes. REPRESENTATIVE COGHILL asked: If the standard is probable cause at the 48-hour hearing, are they going to determine whether that is a child in need of assistance? MS. STEWART said that is a second proceeding and an issue that relates directly to the child's placement. REPRESENTATIVE COGHILL asked if it comes back to reasonable cause for deciding the child's placement. MS. STEWART said reasonable cause is the entry level criterion at present. REPRESENTATIVE COGHILL asked if that is the point at which the parent is contacted. MS. STEWART said the parent would be contacted at that point, depending on a whole panoply of circumstances. Number 2107 REPRESENTATIVE GREEN asked Ms. Stewart if she has a feeling for how many children have been finally adjudicated as having had problems at home that would not have been brought in if the bar had been raised, as proposed here. MS. STEWART said she has no feeling on that and doesn't know how even to go about getting statistics on that. REPRESENTATIVE BRICE said he has never heard of runaways going to the magistrate hearing. He wondered if all runaway pickups go to the 48-hour hearing. MS. STEWART answered no. An individual assessment will have to be made. Those cases may not be heard about because there isn't always a 48-hour hearing under the rubric of it being a runaway. There will be a 48-hour hearing because the information obtained from the runaway is this is a child who has been physically or sexually abused in the home. CHAIRMAN DYSON turned attention to other matters before the committee [HB 402 was held over].
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