Legislature(1995 - 1996)
02/29/1996 03:26 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 387 - JUVENILE CODE REVISION Number 085 CO-CHAIR BUNDE announced the first order of business to come before the committee was HB 387. He asked Representative Kelly to come forward and present his bill. Number 106 REPRESENTATIVE PETE KELLY, Sponsor, noted he had provided a committee substitute to the committee. Number 154 CO-CHAIR TOOHEY moved to adopt CSSSHB 387, Work Draft 9-LS1276\R, Chenoweth, for discussion purposes. Hearing no objection, it was adopted. REPRESENTATIVE ROBINSON arrived at 3:32 p.m. Number 190 REPRESENTATIVE KELLY said one of the most difficult things in dealing with the juvenile crime problem, is that juveniles who are delinquent and juveniles who are in need of aid are mixed together. Committee Substitute for Sponsor Substitute for HB 387 attempts to split in law those two classes of individuals so they can start being looked at separately. He believed this would be a great asset to the Governor's Conference on Juvenile Justice that has been going on in Anchorage. He said there are some policy changes in HB 387 which give direction to the courts and to the Department of Health & Social Services on how to treat juvenile delinquents versus children in need of aid. There are some other collateral issues dealing with school boards and truancy. Number 279 REPRESENTATIVE KELLY began the sectional analysis. He referenced the Truancy Section on page 3 and said it was his intention to offer an amendment which would simplify the language and give the responsibility for procedures to the school board to develop their own truancy policies rather than having to deal with the current cumbersome statutes. CO-CHAIR BUNDE asked Representative Kelly if he was aware of any controversy surrounding this amendment? REPRESENTATIVE KELLY responded he didn't think there was any controversy. Number 425 REPRESENTATIVE GARY DAVIS moved to adopt Amendment R.4. Hearing no objection, the amendment was adopted. Number 449 REPRESENTATIVE KELLY referenced page 5, and said CSSSHB 387 does not establish a state curfew, it merely allows municipalities, through Title 29, to establish curfews. He pointed out that even though different municipalities are establishing curfews currently, the authority is not found in Title 29. He didn't believe there was any controversy regarding this issue, and added it was not an amendment, just a policy change. Number 467 REPRESENTATIVE KELLY directed the committee's attention to pages 8 and 9, and said Amendment R.3 which was at the request of the Department of Health & Social Services moves the delinquency policy into the new Chapter 12 in Title 47. REPRESENTATIVE DAVIS asked for further explanation on Amendment R.3. REPRESENTATIVE KELLY referred to page 9, and said this creates new policy. Subsections (b)(2) and (3) are a derivation of the California law where the responsibility of the juvenile's crime is placed on the parents in the form of fines. Subsection (b)(3) will do that in the form of time, whereby the parent can be brought into the supervision of the child. He said that subsection (b)(2) refers to sanctions and it is a policy that will allow and give the courts and the department direction that sanctions are appropriate for delinquent behavior. Currently there is no language on sanctions for delinquent behavior. Amendment R.3 moves this section into the new chapter, where it is more appropriate. CO-CHAIR BUNDE verified there was no change to the verbiage, it was simply moving it to another chapter. REPRESENTATIVE KELLY replied the policy language before the committee would remain intact and be moved to the new Chapter 12, Delinquent Behavior, on page 27 of the Work Draft. Number 754 REPRESENTATIVE TOM BRICE referenced Amendment R.3 and asked if it would be inserted at the end of page 27, line 23. REPRESENTATIVE KELLY replied it would be the Purpose and Policy Section for the new Chapter and would be inserted between Sec. 47.12.020, Jurisdiction, and Sec. 47.12.015, Provisions Inapplicable. REPRESENTATIVE BRICE verified that it would fall under the Jurisdiction Section; it would not be a new section, for example Sec. 012. REPRESENTATIVE KELLY said that was correct. Number 825 REPRESENTATIVE DAVIS moved to adopt Amendment R.3. Hearing no objection, Amendment R.3 was adopted. REPRESENTATIVE KELLY directed the committee's attention to page 23 of the Work Draft R and said Amendment R.5 moves Section 48, Detention of Minors, and Section 49, Youth Counselors, into the new chapter. This amendment is at the request of the Departments of Health & Social Services and Law. Number 970 REPRESENTATIVE DAVIS moved to adopt Amendment R.5. Hearing no objection, Amendment R.5 was adopted. Number 992 REPRESENTATIVE KELLY explained that Amendment R.1 removes the language dealing with sex offenders. He had discussed this with the Department of Law and everyone agreed that it would be a cleaner bill if it was removed from this draft, but not from current statute. CO-CHAIR BUNDE clarified the amendment removes the language from the committee substitute and allows the language to remain intact in the current statute. REPRESENTATIVE DAVIS asked if it deleted Section 4 on page 3. REPRESENTATIVE KELLY responded affirmatively. Also, lines 19-29, page 37, would be deleted from the committee substitute, but not from current statute. Number 1266 REPRESENTATIVE DAVIS moved to adopt Amendment R.1. Hearing no objection, Amendment R.1 was adopted. CO-CHAIR BUNDE said the committee now had a complete document before them and opened the meeting to public testimony. Number 1306 STEVEN GRUNSTEIN, Representative, Guardians for Parents Rights, testified that the current juvenile justice system is a farce; it does not work. There are kids that are willful and there is no way of controlling them. When parents do seek assistance, the fault is usually placed on the parents which gets to be very frustrating and aggravating. He referenced a Letter to the Editor which he had written and said it basically highlights all the problems that parents encounter with teen-agers. He stated this legislation is the first thing he's come across in a long time that appears to address the issue. He acknowledged that it would probably go through many changes in the legislative process, but it is supported. Number 1410 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, said the department has found some technical issues that arise from trying to divide one chapter into two chapters which she would be happy to discuss with the committee or with the sponsors. CO-CHAIR BUNDE said he would prefer that she just discuss the bill in a general, philosophical way with this committee and the technical issues could be addressed in the Judiciary Committee and with the sponsor. MS. CARPENETI said she didn't believe there was any objection from the Department of Law with dividing Title 47, Chapter 10, into two chapters; one dealing with child in need of aid cases and the other dealing with delinquent cases. She had some substantive issues she wanted to address before the committee. She referenced page 9, line 11, and said although the department supports the possibility of a minor's family contributing and participating in counseling and rehabilitation of the child, it was their position it should be discretionary. She wasn't sure the word "should" was discretionary and suggested inserting "if appropriate" if the sponsor wanted to leave it in the bill. In the department's judgment, there are some cases when it is simply not appropriate and it shouldn't be mandatory. MS. CARPENETI said the next substantive issue was on page 19, line 28. Present law provides that a police officer should return a child to his/her home unless the officer has reasonable cause to suspect that at the home the child is being subject to physical or sexual abuse. This legislation changes it to "reasonable cause to believe" which is a higher level of information. The Department of Law opposes that. It is their belief the police officer should be able to not return the child home if there is reasonable cause to suspect there is child abuse in the home. CO-CHAIR BUNDE asked if Ms. Carpeneti could give a hypothetical example of the difference between believe and suspect. MS. CARPENETI was unable to give an immediate response to that question. CO-CHAIR BUNDE questioned how that would be reviewed in court. MS. CARPENETI responded that police officers apply these standards in their job all the time, so they are accustomed to applying different standards. She didn't believe that a police officer would have a problem making a distinction. She feels a suspicion is a lower level of information than a belief and it is best to allow police officers the ability to not return a child home if there is a suspicion based on reason. CO-CHAIR BUNDE asked Ms. Carpeneti if a reasonable suspicion is probable cause. MS. CARPENETI said no and added that probable cause to believe is a standard that police officers and prosecutors apply when they are deciding whether there is enough evidence to make an arrest. CO-CHAIR BUNDE commented that current language would be at the level of arrest rather than something less than a level (indisc.). MS. CARPENETI further explained that reasonable cause to suspect does not rise to enough information for an arrest; it is a lower amount of information. REPRESENTATIVE BRICE asked if reasonable cause to believe rises to that level? MS. CARPENETI replied that reasonable cause to believe is closer to probable cause. Some people think that reasonable cause to believe is almost at the probable cause for an arrest level. She commented that she had researched this last year and there is not agreement among all attorneys or judges, but she thinks that reasonable cause to believe is a lot closer to probable cause to arrest. MS. CARPENETI stated the third substantive issue was on page 38, beginning on line 12, which is a new section to the code. She said present law provides the court shall consider the best interests of the child and the public. The rest of the material in this section 47.12.120 is new to existing law. She had some questions relating to paragraphs (1) and (2) under subsection (a). Subsection (b) adds considerations that are referred to in criminal law as "Cheney (ph) criteria" which is the case where the court adopted similar criteria for sentencing adults. She felt this section needed more consideration in terms of order. Also, she thought it might be conflicting when looking at the best interest of the minor and how that plays against the seriousness of the minor's delinquent act. The department had some questions regarding the substance of that section. She concluded that those were the only substantive issues the department had with this draft. CO-CHAIR BUNDE referred to the first substantive issue on page 9 and asked if there were any questions regarding the addition of "if appropriate" on page 9, line 11. Number 1790 REPRESENTATIVE ROBINSON asked for clarification of the department's recommendation. MS. CARPENETI said it is the department's position it should be discretionary rather than mandatory. She pointed out that it could read "may include" or "should include, if appropriate" to provide that discretion to a court. She reiterated her belief that it was not a good idea that it be required because there are some cases where parental counseling isn't appropriate. CO-CHAIR TOOHEY departed at 4:00 p.m. to attend another meeting. CO-CHAIR BUNDE noted that "may include" sounded a little broader in its permissiveness than "should include, if appropriate." MS. CARPENETI said it's close, but the department is concerned about having that discretion available. Number 1790 REPRESENTATIVE ROBINSON said she felt strongly that if a young person has reached the point of getting in trouble with the law, the parents do need to be involved at some level of their treatment. She thought that a judge should at least recognize the importance of a young person's therapy in connection with their family. MS. CARPENETI responded that is why she felt that "should include, if appropriate" is stronger than "may include." Number 1871 REPRESENTATIVE DAVIS thought that "may" is perhaps too weak and agreed with the addition of "if appropriate." "Should" implies that is the avenue that should be taken, but if there are extenuating circumstances that would make it inappropriate, then "if appropriate" gives the judge that discretion. CO-CHAIR BUNDE referred to page 19, line 28, regarding usage of "suspect" versus "believe." He explained that "believe" is a higher level of probable cause, and "suspect" is a lower level of probable cause. CO-CHAIR BUNDE asked Representative Kelly if he had any comments on the addition of "if appropriate." Number 1944 REPRESENTATIVE KELLY said he had no objection. He added this was a policy statement. Number 1955 REPRESENTATIVE DAVIS moved to adopt Amendment 6 which inserts "if appropriate" after the word "should" on page 9, line 11. Hearing no objection, Amendment 6 was adopted. Number 2000 CO-CHAIR BUNDE again referred to page 19, line 28, regarding the use of "suspect" versus "believe". He asked Representative Kelly if he would like to comment. REPRESENTATIVE KELLY said "What we were trying to accomplish here is when the officer picks up the child, and the child knows that all he has to do is say `I'm being abused and the officer then doesn't need to take him home, and that may not be true." If the officer has reason to suspect, that is an extremely low standard. If the officer has reason to believe based on prior experiences with the family or familiarity with the child's parents, then the officer can take the child to the shelter. If on the other hand, the officer has reason to suspect, he is duty bound to report that he suspects child abuse. He asked Ms. Carpeneti if that was correct. MS. CARPENETI said she thought this subparagraph deals with what the officer does with the child. REPRESENTATIVE KELLY pointed out that in another statute, the officer, as a person of responsibility, is duty bound to report child abuse for a kid who just doesn't want to go home. That was what Representative Kelly was trying to achieve. He said AS 47.17 deals with people, such as counselors, teachers, etc., who are required to report child abuse and it is a misdemeanor if they suspect and don't report it. He added that is a low standard and it's a bit of a problem, but it still exists. The police have much more interaction and Representative Kelly wanted to raise that standard so every time they pick up a child who doesn't want to go home, they don't have to report suspected child abuse. Number 2079 CO-CHAIR BUNDE said it was his belief that teachers are required to report suspected child abuse. He asked if this change would have any impact on teachers. MS. CARPENETI replied she didn't believe so. REPRESENTATIVE KELLY asked to correct a prior statement. He said the police officer would still be required to report that he suspected child abuse, he just wouldn't necessarily have to take the child home. CO-CHAIR BUNDE asked if it was the standard that anyone dealing with children in an official capacity who suspects child abuse is required to report it? Number 2122 JANINE REEP, Assistant Attorney General, Civil Division, Human Services Section, Department of Law, said that is the reporting standard in the statute. The idea is that teachers and other people don't have to make that determination of believing it or did it really happen. She added that it is intentionally a lower standard so that the job of determining whether there really had been abuse was referred to the department. CO-CHAIR BUNDE clarified the proposed change by presenting a hypothetical example of a police officer picking a child up and if he suspects child abuse, he is required by law to report it, but he is not required to take the child to the shelter unless he believes there has been child abuse. REPRESENTATIVE KELLY said he thought the difference was with this low standard the police officer automatically has to take the child to the shelter when the child says "I am abused," even if the officer knows the child is not being abused. Number 2190 CO-CHAIR BUNDE inquired if a police officer is told by a child that he/she is being abused, does that constitute the legal level of "suspect" and is the officer required to report that parent? MS. CARPENETI responded in her judgment, no. It has to be a suspicion based on reason and if the child is saying things to the police officer that are not credible, she didn't believe the officer would be required to report it. CO-CHAIR BUNDE asked Ms. Carpeneti to take it to the level of "believe." MS. CARPENETI responded that the suspicion has to be reasonable under present law and the belief has to be reasonable under the proposed language. MS. REEP pointed out one problem the change presents is that there would be dual standards. The reporting standard would still exist - reason to suspect, and there would be a different standard for whether the child is returned. She commented that it was difficult to conceptualize, let alone put into practice. Number 2257 REPRESENTATIVE ROKEBERG thought the amendment should be dealt with by the Judiciary Committee because it was clearly a legal definition of standard. CO-CHAIR BUNDE directed the committee's attention to page 38, line 12 and asked Ms. Carpeneti to explain the Department of Law's concern. Number 2300 MS. CARPENETI said there were a couple of concerns and added this is new language, not part of splitting the code. She commented the drafting is unusual in that it has two subsections: the court shall consider one set of considerations and then another. She explained that in the past, the tradition has been to focus on the best interests of the minor and the public. Now there are other things like the seriousness of the delinquent's act. They may actually relate to each other, but she wanted the opportunity to give it some additional thought. TAPE 96-18, SIDE B Number 001 CO-CHAIR BUNDE asked if there were other questions for the representatives from the Department of Law. Hearing none, he advised that testimony would be taken via teleconference. Number 007 AL NEAR testified from Fairbanks that he didn't have a copy of the current work draft, but he had been following the legislation and wholeheartedly supported what he believed was the primary goal of returning the offender to accountability in the juvenile justice formula. He first learned of the accountability gap when his daughter refused to come home from school because he and his wife had threatened to impose grounding sanctions in response to her cutting classes. He was informed by the school counselor that he should try to persuade her to return, but he could face serious consequences if he attempted any physical solution, such as putting her in the car and driving her home. He ended up negotiating with his daughter through the vice principal, the counselor and nurse. In the end, his daughter had her way in that she went home with a classmate for the weekend, thereby avoiding any consequences for her actions. That incident occurred in December 1994, and since then she has been in a dozen or more foster settings from which she either ran away or was asked to leave, still no consequences. His daughter has lived on the streets for up to six weeks at a time, and when she has been picked up as a runaway, she refuses to go home, so she is delivered to the local youth shelter where it's been a revolving door and she soon returns to the unsavory situation from which she had just been rescued, and still no consequences. His daughter was an attractive, intelligent and talented, 15-year-old girl who held the world in her hands before she was pulled into a negative peer group. She was destined for college and a responsible, productive future. Now he doubts that she will even finish high school and she has self-predicted that she will end up in jail, but quickly points out she will be with her friends. He asked how something like this could happen. Before it happened to their family, he would have blamed it on the family, but he and his wife have enjoyed 32 years of a loving partnership and their son is a well-liked 19-year-old college student. He remarked that their situation is not an isolated case. During the past year, there have been families from all walks of life who have similar stories. He pointed out the one continuing theme that runs through all these cases is the absence of accountability. When a child refuses to follow the standards of behavior set forth by the family and society, it seems that the legal system also refuses to uphold them, what should be expected? The earliest intervention is what is needed. He believes that if his daughter had been sent home when she first began experimenting with the system, she might have been saved. But after scores of episodes to which the system responded by rewarding these misadventures with ever greater freedoms, what are the odds that she can ever be turned around? There needs to be appropriate consequences at the beginning or even before, when the kids start talking about running away with their peers. He feels that many of those kids would never take that first step if they knew with certainty there would be appropriate and meaningful consequences. He concluded with "let's show our children that we care by revising our laws to set and maintain reasonable boundaries for them." Number 153 PAUL WORMAN testified from Fairbanks in support of HB 387. He believes that profit businesses should compete with nonprofit corporations. CO-CHAIR BUNDE said he thought Mr. Worman was addressing an old version of the bill and pointed out the section relating to for profit or nonprofit organizations had been deleted from the current work draft. He advised Mr. Worman that a copy of the new version would be faxed to the Fairbanks Legislative Information Office. MR. WORMAN asked if the sections regarding sex offenders were still included in the current work draft? CO-CHAIR BUNDE responded that had been deleted from this work draft and the language would go back to where it resides in current statute. Number 268 PAM WORMAN testified via teleconference from Fairbanks and said she didn't understand what Co-Chair Bunde had said about the portion of the bill that addressed sexual offenders. CO-CHAIR BUNDE noted this current work draft does not address sexual offenders. The sexual offender language would remain where it resided in current law. Number 298 CAM CARLSON testified from Fairbanks and thanked Representative Kelly and Senator Steve Frank for this legislation. She said she had been following the issue of runaways for about 15 years, which is closely entwined with juveniles delinquents. She said her three children fortunately grew to adults without getting into these problems, but she has experienced them through friends of neighbors. She has seen perfectly good families where the government has gotten involved, destroyed parental authority and created problems that shouldn't exist. She said she had followed SB 269, CSSB 289 and CSSSHB 387 and had three points to offer: 1) It is essential to keep the family as the point of authority, not the government. The government is taking children out of families with no real proof that insurmountable problems exist and place the children in situations that are worse; 2) anonymity for juvenile delinquents has to be done away with; it's not working. The juvenile needs to know from the very beginning that he/she is going to be held responsible for their actions and no one is going to hide them; and 3) once a child crosses that line, there has to be consequences and they must be severe. Number 384 DIANE WORLEY, Director, Division of Family & Youth Services, Department of Health & Social Services, thanked Representative Kelly and his staff for working so diligently with the department and they feel this draft is much more workable than the original version. As Representative Kelly stated earlier, what is being done is separating the two codes: The child in need of aid code and the juvenile delinquent code. The department supports the effort and will assist with the Governor's Conference on Juvenile Justice as their work related to the juvenile code continues and the eventual rewrite of that code. She felt this legislation should provide a clear separation and some ease to that process. She said now that the separation has been done, she hoped the division would be given the opportunity to go through the bill line by line to ensure the separation had been done in a thoughtful way or language had been left where it shouldn't be. Number 454 CO-CHAIR BUNDE offered an anecdotal note that he had recently attended a town meeting in Anchorage on juvenile justice where there was a bright, articulate, young man about 22 years of age who had just gotten out of jail. This young man said if there had only been consequences that he believed when he was 14 or 15 years old, it would have saved him four or five years of his life. Number 508 REPRESENTATIVE ROKEBERG moved to pass CSSSHB 387, Version R, as amended, with individual recommendations and attached fiscal notes out of the House HESS Committee. Hearing no objection, it was so ordered.