Legislature(2001 - 2002)
03/05/2002 03:04 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 309-INTERSTATE PLACEMENT OF CHILDREN CHAIR DYSON announced the final order of business to be HOUSE BILL NO. 309, "An Act relating to the Interstate Compact on Placement of Children." [Before the committee, adopted as a work draft on 2/05/02, was a proposed committee substitute (CS), Version F.] TAPE 02-19, SIDE A Number 0001 CHAIR DYSON called for an at-ease at 4:13 p.m. He called the meeting back to order at 4:23 p.m. Number 0075 SUE WRIGHT, Staff to Representative Mike Chenault, Alaska State Legislature, offered to answer questions on behalf of Representative Chenault, sponsor of HB 309. CHAIR DYSON observed that a major issue before members is whether the proposed changes to statute contained in HB 309 cause the state to be out of compliance with the Interstate Compact on the Placement of Children (ICPC). He asked Ms. Wright to address this matter. MS. WRIGHT replied, "I don't believe that it does, in fact, place us outside the compact." She cited AS 47.70.010, Article III, subsection (d), which reads: (d) The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child. MS. WRIGHT said, "This particular piece of legislation was an event-driven piece of legislation until the time that we began to get feedback from other sources that this is a repetitive, systemic problem within the ... division." She reported that one child's case involves a lack of documentation: there are no court orders or medical records - no authority for the foster parent to have this child. This family has contacted Representative Chenault's office and will reluctantly testify, if necessary, but is concerned about reprisals. Ms. Wright said Alaska requires more [documentation] to transfer an automobile from state to state than it does to transfer a child. "There is very little or no accountability," she added. Number 0294 MS. WRIGHT referenced a position paper from the Evan B. Donaldson Adoption Institute that outlines a problem with ICPC enforcement. She explained that the courts have tended to proceed in one of three ways when a violation of the ICPC has occurred. She said: They disregard the ICPC altogether ... and grant a petition to either have a child stay in the receiving state; or they deny the petition to adopt or have the child stay in the receiving state; or they grant retroactive compliance. Now, that involves another state agency. And generally speaking, almost always there's ... a court system involved in the ICPC transfers of children, [and] possibly a private adoption agency. MS. WRIGHT emphasized that there should always be a court involved that allows the transfer of a child from one state to another. House Bill 309 requires that certain copies [of documents] accompany the child, and creates consequences for [failure to comply]. For example, no documentation accompanied the child she'd mentioned previously; Arizona [the receiving state] was not contacted until the day or day before the child was transferred, and this was after a court proceeding. She said House Bill 309 creates consequences for [failure to comply]. this is what [HB 309] seeks to stop. "This isn't a department vendetta," she said. The rights of the children are being forgotten in this matter; if a child is transferred out of the state for any reason, documents should accompany that child. Number 0475 MS. WRIGHT reiterated that there is a minimum amount of documentation that should transfer between states; currently, this doesn't necessarily happen until a child is in transit. This is not an isolated incident, but a repetitive one. She added, "If necessary, we can string a hundred foster parents in here to tell you. I'd hate to waste the committee's time." CHAIR DYSON returned to the question of whether this bill takes the state outside the ICPC agreement. MS. WRIGHT replied with her understanding that [the ICPC] includes allowances for each state to have individual violation consequences. The issues raised by the Secretariat [to the Association of Administrators of the Interstate Compact on the Placement of Children] are "issues that are already in existence in the compact; they're not issues that we're bringing up today," she said. She offered her belief that [Alaska] would be in compliance with the ICPC. She continued, "We haven't received anything from the department that says we're not in compliance legally." Number 0561 THERESA TANOURY, Director, Division of Family and Youth Services, Department of Health and Social Services, referenced comments from the secretariat dated February 7. She drew attention to [page 1] line 10 of the bill, which says "the department may not accept placement of the child unless documentation requested under Article III(c) of the compact is supplied in the form of certified copies." This does not specify what "certified copies" means, she noted. It could mean that the author of a document needs to certify it, or that the division certifies that all the documents are real. Either way, this certification would cause a delay. MS. TANOURY added that every [document] packet includes a 100A form, the contract between the states for a child being transferred between those states. A cover letter from the caseworker, a social summary, and a court order for custody are also included in the packet. The court order is in the ICPC packet, she said; Alaska uses this to show the other state that the child is in Alaska's jurisdiction. A financial/medical plan, a copy of the Title 4(e) eligibility, and the case plan are included. Other supporting documentation may include drug and alcohol assessments, medical information, psychological evaluations, and references, among other things. She added that the department is typically not the author of these documents; they are submitted by various people. Either the author or the division would have to certify that they are true copies. MS. TANOURY explained that [Section 1 of HB 309] does not alter the compact, which is all in AS 47.70.010, but mandates that Alaska cannot accept a child without the sending state providing certified copies. The language of "certified copies" places Alaska outside the compact, according to the secretariat. She read: Because the state would be using language that is different [from] the contractual language that forms the basis of the conduct by all other party jurisdictions, the state would be operating outside the compact. MS. TANOURY explained that Alaska would have difficulty asking other states to accept Alaskan children, because Alaska would be entirely outside the compact. Other states don't have any guarantees of what Alaska might do, she said. Alaska would be a "dumping ground" for other states to send children. Number 0752 CHAIR DYSON said, "To this layman's ears, that sounds like a gross overreaction. And something in me wants to say, 'Picky, picky, picky.'" He offered that this bill simply requires paperwork to accompany a child, and there must be some confidence that the paperwork is correct. He said, "To say that ... disqualifies the State of Alaska from participating seems really [a] petty overreaction, but tell me what I'm missing." MS. TANOURY replied that the language that says the department may not accept placement of a child from another state is at issue. CHAIR DYSON interjected, "Without the paper." MS. TANOURY added, "Without ... certified copies." CHAIR DYSON asked: Who wants a piece of paper that you don't know is accurate? ... I'm sorry, I'm not meaning to debate with you, but that's all that I think ... we're after here, is that ... some way or another, we know that those are the right pieces of paper with the right kid at the right time. ... And how do we go about doing that? CHAIR DYSON said he could see that sending originals would be inappropriate, but how does someone know it isn't a forgery or the wrong or outdated paper? MS. TANOURY responded that because [DFYS] is a public child- welfare agency dealing under the [ICPC] compact, it provides that information through cover letters and dates of custody orders. Are they certified copies - no. Ms. Tanoury said the compact is the code of ethics and trust [among states]. Ms. Tanoury indicated that she would like the name of the child in the case alluded to earlier so that she may follow up on it. She said, "We're doing something wrong, and I don't know how to correct it if I don't have the specific case so that I can follow up on it." MS. TANOURY noted that she had tried earlier to clarify that under the compact, paperwork for an intact family is not sent ahead to the [receiving state]. The state is informed after the family moves that a child in Alaska's custody is in that state. The state then provides some monitoring and other requested services for Alaska; this is reciprocal. She pointed out that this is not the case for children being sent out of state to a relative not known by [DFYS]. In this case, the compact requires all of the paperwork ahead of time. The home must be studied and approved by the other state before the child can be released. Number 0971 CHAIR DYSON explained that the committee is not interested in promulgating legislation to address a particular case; it is, however, interested in addressing systemic problems. He offered his impression of Ms. Tanoury's earlier representation of the this case that [DFYS] did what it deemed best for the child in question as quickly as possible, albeit, ahead of the paperwork, but not to the detriment of the child. The child was put in the best possible placement and the paperwork was following. MS. TANOURY added that the majority of the complaints she receives are complaints that the process is taking too long. Grandma, for example, wants the child, and DFYS cannot send the child until the paperwork is completed. She said that this characterizes 95 percent of the complaints she hears about. A national conversation among the states addresses how to get the process moving more quickly. "Our request to ... L.A. County gets lost or ... at the bottom of their pile; it's not one of their kids," she said. Number 1054 CHAIR DYSON recalled that Ms. Tanoury's earlier testimony indicated that [DFYS] acts on a judge's decision rather than waiting for the official court document, which can take days or weeks. He noted that he had wondered whether it is appropriate for [DFYS] to act on the judge's decision or whether it should it wait until the paperwork is complete. MS. TANOURY said that was correct, but clarified that a court order is sent with a child leaving from or arriving to the state. This court order indicates that a child is in [state] custody. In the aforementioned case, the court order was just approving the move. Number 1127 CHAIR DYSON noted that the question he'd asked Ms. Tanoury to defend was whether this bill passing into law would put Alaska outside of ICPC compliance. He referenced the letter from Dennis Eshman, J.D., which states that the term "certified copy" puts Alaska outside of ICPC compliance. Because Alaska [proposes] to use language different from that House Bill 309 creates consequences for [failure to comply]. used to form the basis of the conduct by all other parties of jurisdiction, Alaska would be outside the compact. He asked if this was Ms. Tanoury's position. MS. TANOURY replied, "Based on his decision, yes." CHAIR DYSON asked Ms. Tanoury if she would like to add anything. MS. TANOURY indicated she would like to comment on the penalties contained in the bill. CHAIR DYSON offered that the representation he has heard expressed over the years identifies a lack of accountability as an issue: there is no record that anyone was ever reprimanded. The intention of the [sponsor] of the bill, he noted, is to get [DFYS's] attention to "do your business the way you should." MS. TANOURY replied, "And it has." She explained that many states have [provisions for] violations of the compact. She estimated that 19 or 20 states do so, including Alaska. She observed that none of the violations seem as extreme as [what is called for in HB 309]; "this does seem very punitive." She expressed her opinion that [DFYS] employees are some of the hardest-working state employees; she said, "They don't - not all the time - intentionally do things like this." Checks and balances are in place, and she offered her hope that these work in the majority of cases. MS. TANOURY said she would like the names of cases in which this process hasn't worked correctly so she can [take corrective measures]. She noted that the [language in HB 309] is punitive and goes well beyond a class B misdemeanor, whereas most states with a penalty have a penalty for each incident, not for each day of violation. Number 1279 REPRESENTATIVE CISSNA indicated she will be introducing an amendment. She offered her opinion that it would be great to fix problems that occurred. Number 1331 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, noted that she was hesitant to testify because she is not familiar with the compact; she is familiar with criminal law in general. MS. CARPENETI expressed her understanding that [Section 3] would make a violation of the compact punishable by 180 days of jail for each day of violation for acts where there is no culpable mental state, a "bad mind," or criminal negligence. She noted that there is no intention, knowledge, recklessness, or criminal negligence that one is in violation of the law. Generally, for someone to be held accountable for this type of penalty, there is some sort of requirement that the state, in prosecuting the person, has proved beyond a reasonable doubt that he/she had some sort of bad mind, and that this was not just a mistake. She noted that this is the concern of the department about this section. MS. CARPENETI also pointed out that Title 11 includes more general statutes that address misconduct by officials; these require some sort of culpable mental state. Official misconduct, misuse of confidential information, and endangering the welfare of a child are examples of these general statutes that might apply to some of these bad acts in dealing with a child. She noted that the department is concerned that a person could go to jail for 180 days without any culpable mental state for every day of violation, when there is a possibility that a person could violate it by an innocent or good-faith mistake. Number 1439 CHAIR DYSON asked which statute cited deals with negligence with regard to a child. MS. CARPENETI replied that various statutes address this. Custodial interference in the first degree is a class C felony, and custodial interference in the second degree is a class A misdemeanor. CHAIR DYSON asked what custodial interference means. MS. CARPENETI answered it means interfering with a custodial order of a court. She offered that she did not know whether the compact applies to parental misconduct. She explained that official misconduct is in violation of AS 11.56.850 or the misuse of confidential information. CHAIR DYSON asked for another statute that she'd mentioned that deals with negligence in relation to a child. MS. CARPENETI replied, "Endangering the welfare of a child?" CHAIR DYSON asked Ms. Carpeneti to elaborate on this statute. He noted his impression that this one came the closest to sending a child to the wrong place or handling a case improperly. MS. CARPENETI responded that this would be a violation of AS 11.51.100. She offered her uncertainty that this applies to the types of cases in question. She added, "I'm not sure exactly what you're looking for." CHAIR DYSON said, "We're looking for something that's appropriate." MS. CARPENETI offered that AS 11.51.100 prohibits a parent, guardian, or other person legally charged with the care of a child under 16 to intentionally desert a child in a place under circumstances creating a substantial risk of physical injury, or to leave the child with another person who is not a parent, guardian, or lawful custodian, knowing that the person is a sex offender or should be registered as such. CHAIR DYSON observed that this didn't sound like what he was looking for. He suggested that Ms. Carpeneti could see what [the bill] is attempting to do - get authentic documents to accompany a child. Original documents will not work, he said, and Ms. Tanoury has offered that "certified" gets the [American Public Human Services Association's] "knickers in a knot." He asked Ms. Carpeneti for a better term of law to meet the desired end. MS. CARPENETI said she'd like to speak with [DFYS] about this matter. "Authentic" implies that a document is authenticated by someone. She offered to research this and make some suggestions for language and to address the [penalty language]. She indicated she could do this by March 7. CHAIR DYSON summarized that the committee would like Ms. Carpeneti to answer two questions: whether there is a better way to say "accurate documents", and whether there are more appropriate disincentives than $1,000 a day. Number 1610 MS. CARPENETI indicated she would seek answers to those questions. CHAIR DYSON announced that the committee would suspend the hearing on HB 309 until March 14. Number 1660 CHAIR DYSON, on another subject, asked members if they were comfortable with the committee's entertaining a committee bill that is the House equivalent to SB 302. [He observed concurrence from Representatives Kohring, Stevens, and Cissna.] He announced that the committee would go ahead with that as a committee bill. Number 1680 CANDACE BROWER, Program Coordinator, Office of the Commissioner- Juneau, Department of Corrections, noted her concern with the incarceration provided in [HB 309]; this would be a great cost to the state. [HB 309 was held over.]
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