Legislature(1995 - 1996)
03/07/1996 08:05 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 348 - VIDEO/AUDIOTAPE INTERVIEW OF ABUSED MINOR The next order of business to come before the House State Affairs Committee was HB 348. CHAIR JAMES called on Barbara Cotting, Legislative Assistant to Representative James to present the committee substitute. Number 0021 BARBARA COTTING, Legislative Assistant to Representative Jeannette James, said on February 10, 1996 a subcommittee was formed to establish an agreement between the legislature and the agencies involved. The subcommittee members consisted of Representatives James, Porter and Robinson; Elmer Lindstrom, Department of Health and Social Services; Diane Worley, Division of Family and Youth Services; Lt. Chris Stockard, Department of Public Safety; and Anne Carpeneti, Department of Law. The result was CSHB 348(STA) (9- LS1187/F). MS. COTTING said it was a radical change from the original bill. The original bill, she explained, had a Senate companion that was moving forward, SB 188. Therefore, the concept had not been dropped, entirely. MS. COTTING read the title and Section 1 into the record. "An Act establishing the interagency work group on agency accountability and child interview methods." "Section 1, "INTERAGENCY WORK GROUP AND MEMORANDUM OF AGREEMENT ON AGENCY ACCOUNTABILITY AND CHILD INTERVIEW METHODS. (a) The interagency work group to increase agency accountability for and to improve methods of interviewing minors who are alleged to have been abused or neglected is established in the department. The work group consists of five representatives, whose job description includes participation in the work group, from the following departments: "(1) two persons from the department, one of whom shall be an employee of the division of family and youth services; (2) one person from the Department of Public Safety; (3) one person from the Department of Education; and (4) one person from the Department of Law. "(b) The interagency work group shall prepare a memorandum of agreement that will guide all participating agencies in their involvement with interviews of minors who are alleged to have been abused or neglected. At a minimum, the memorandum of agreement must "(1) identify the best and most effective methods to establish accountability for those who interview minors who are alleged or suspected to have been abused or neglected; "(2) identify the best and most effective methods for (A) videotaping; (B) audiotaping; (C) team interviews; (D) note taking; (E) documentation; and (F) enforcing file content standards: "(3) provide for interagency cooperation in (A) initial and continuing training or education for interviewers, including education regarding new and updated methods of interviewing minors and regarding new equipment useful for interviewing minors; (B) establishing respect for family members during the interview process; (C) maintaining family unity during the interview process; and (D) sensitivity to public response and public input; "(4) focus on increasing agency and interviewer accountability and minimizing negative effects on families; and "(5) review the statutory definition of "abuse or neglect" to determine if the definition leads to uniform and fair results. "(c) The memorandum of agreement shall be made available for review by the legislature and the public. The work group shall notify the legislature that the memorandum of agreement is available for review. "(d) The interagency work group shall meet at the times the members of the work group consider necessary. At a minimum, the memorandum of agreement must be reviewed and updated in the year following each gubernatorial election year as determined under AS 15.35.010, and must be completed in those years before the beginning of the next regular session of the legislature the following year. Each revised and updated memorandum of agreement shall be made available to the legislature and the public for review. The work group shall notify the legislature that the memorandum of agreement is available for review." MS. COTTING explained Section 2 dealt with the time frame for the initial memorandum of agreement. The first review would be January 1, 1997 followed by another review in two years. Number 0234 REPRESENTATIVE ROBINSON said HB 348 had come a long way and was moving in a good direction. She referred the committee members to page 1, line 12, and wondered if "two" persons from the Department of Health and Social Services were necessary. MS. COTTING explained in this context the word "department" in AS 47.17 meant "the Department of Health and Social Services." Number 0260 REPRESENTATIVE ROBINSON wondered about child sexual assault cases in the language on page 2, line 22, "(C) maintaining family unity during the interview process; and" Number 0289 REPRESENTATIVE PORTER suggested adding the language, "where appropriate." REPRESENTATIVE ROBINSON agreed with Representative Porter. Number 0295 REPRESENTATIVE ROBINSON asked when the agencies would sign the memorandum of agreement. Number 0310 CHAIR JAMES replied it was not clear when the agencies would sign and review the memorandum of agreement. She had mixed feelings about including a public review process as well because it was an interagency agreement. She did not expect a public review would create any changes to the memorandum. She called it a living document. She reiterated the memorandum was an agreement and not a public process. It did not fall under the Administrative Procedures Act (APA). Number 0405 REPRESENTATIVE ROBINSON said she assumed it would be signed by all the parties by January 1, 1997. Therefore, the public and the legislature would not review it until after it was signed. Number 0418 CHAIR JAMES replied that was her understanding also. Number 0422 REPRESENTATIVE IVAN IVAN wondered if the local government agencies were lost in the committee substitute. CHAIR JAMES asked Representative Ivan which local government agency was he referring to? REPRESENTATIVE IVAN replied the tribal organizations in the rural communities, for example. Number 0455 CHAIR JAMES said that issue did not come up in the subcommittee meeting. She suggested Representative Ivan ask the departments directly. Number 0473 REPRESENTATIVE ROBINSON explained this was a state government agency agreement. The municipal agencies and the non-profit agencies would be part of the public review process. CHAIR JAMES replied that was her understanding also. CHAIR JAMES called on the first witness via teleconference in Valdez, Dirk Nelson. Number 0515 DIRK NELSON explained he was a Licensed Clinical Social Worker, and a Licensed Marital and Family Therapist. The oversights were necessary to oversee the actions of the Division of Family and Youth Services (DFYS). He said anything to assist in mitigating the harm of DFYS was good. He explained DFYS had done an admirable job but at the same time there were isolated cases where harm was done. He said the bill was not a "cure-all." There were aspects of the bill that could put the state and child into danger of culpability. He understood the desire to maintain family unity and called it a good goal, but agreed with earlier comments that there was the potential to go in the other direction. CHAIR JAMES called on the next witness via teleconference in Fairbanks, Harry Niehaus. Number 0619 HARRY NIEHAUS member of the Guardians of Family Rights, said he opposed CSHB 348(STA). This was a far cry from what was originally requested of a mandatory videotaping bill. The Guardians were in full support of SB 188. He called the committee substitute worthless. He said it did not regulate the regulators. CHAIR JAMES called on the next witness via teleconference in Fairbanks, Cam Carlson. Number 0661 CAM CARLSON said she opposed CSHB 348(STA). She appreciated the attempt, but the committee substitute was nothing but a piece of "fluff." It protected the agencies and the agency workers. The committee substitute hid the accountability as well. It was frustrating to not be able to audio/videotape an interview with a child. She did not see what the problems were and why it was so impossible for the agencies to videotape an interview. CHAIR JAMES called on the next witness in Juneau, Jayne Andreen, Department of Public Safety. Number 0735 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, commended the committee members for their work done on CSHB 348(STA). She said the bill would go a long way to provide a greater level of accountability and coordination between the agencies. She referred the committee members to page 2, line 22, "(C) maintaining family unity during the interview process; and." She suggested adding the language, "when appropriate," to ensure the best interest of the child's safety first. CHAIR JAMES called on the next witness in Juneau, Diane Worley, Department of Health and Social Services. Number 0791 DIANE WORLEY, Director, Central Office, Division of Family and Youth Services, Department of Health and Social Services, commended the committee members for their work done on CSHB 348(STA). The bill went a long way in moving towards agency accountability. The Division was extremely pleased to be a part of this agreement and looked forward to working with the other agencies towards an understanding. The Division supported family unity whenever possible, but also wanted to protect the child's interest. Furthermore, within the Division, there were Indian child welfare act agreements with many of the tribal entities to address the concerns of Representative Ivan. Moreover, the Division did have the option now and the ability to audio/videotape an interview. It was working towards improving the availability due to a lack of equipment, however. CHAIR JAMES called on the next witness in Juneau, Lauree Hugonin, Alaska Network on Domestic Violence and Sexual Assault. Number 0946 LAUREE HUGONIN, Executive Director, Alaska Network on Domestic Violence and Sexual Assault, appreciated the direction of CSHB 348(STA). The best interest of a child was protected when the agencies worked together. The Network echoed the Council's concerns regarding family unity. The Network believed flexibility was needed in that area because there were instances when it was necessary to remove a child from his home. She asked the committee members to consider language to clarify that issue. She asked if the memorandum of agreement would recommend changes to the legislature regarding the definition of "abuse and neglect?" Number 1032 CHAIR JAMES replied the language was subjective. It was a controversial area. She understood the suggestion to amend the language to include "when appropriate" to maintain the family unity. However, family unity should be the focus. There were other parts of the family included such as aunts and uncles, for example, that would help maintain the unity of a family. CHAIR JAMES called on the next witness in Juneau, Steven Grunstein. Number 1172 STEVEN GRUNSTEIN, Member, Guardians for Parent's Rights, said a bill like this was needed. The bill started off being a protection and a check for the parents. He said a few years ago he and his son were involved in the system. He explained he had not seen his son for six years when he returned to Alaska. His son was only in Alaska for 14 days, and on the 17th day he was told by DFYS he had been abusing his son his entire life. He asked the DFYS official to further explain and the official responded by stating, "you heard me, how dare you question me." It was his word against his son's. He said the bill would be best if both the interview of the child and the parents were required. He said the parents were helpless. The system was not currently working to reunite the families. The original intent of the bill was a safety for those that lived and worked within the framework of the laws. He said a videotape would be the best for the system. If there was a sexual assault case something needed to be done, but he generally agreed with Chair James that the focus needed to remain on keeping the family united. The parents needed help at the legislative level, because there was not any help at the judicial level. He said he was against abuse in any form - sexual, physical or mental. However, many children were using it as a weapon against their parents, and that was when an interview on a videotape would be helpful. Number 1448 CHAIR JAMES explained the goal was to videotape the interviews. However due to the diversity within the state and the various areas of concern, the committee substitute was a good compromise. It moved the agencies towards the accountability that was needed. The committee substitute also had the possibility of passing the legislature and being signed by the Governor. Number 1548 REPRESENTATIVE ROBINSON said Mr. Grunstein was not against the bill. It was a good start even though it might not be exactly what he wanted. She wondered if Mr. Grunstein agreed that it was not necessarily appropriate to keep a family together in the case of child sexual abuse. Number 1589 MR. GRUNSTEIN replied, "that is correct." Furthermore, the definition of "abuse and neglect" needed to be looked at further. He cited a personal case where he was charged with abuse for blocking a punch from his son. Number 1628 REPRESENTATIVE ROBINSON said a definition existed in statute. It might not be used formally by all the agencies, however. Number 1640 CHAIR JAMES said the language was changed based on a recommendation of the Department of Health and Social Services. REPRESENTATIVE ROBINSON reiterated there was a definition, but it might be interpreted differently by the agencies involved. CHAIR JAMES called on the next witness via teleconference in Fairbanks, Scott Calder. Number 1675 SCOTT CALDER said he agreed with Mr. Niehaus' testimony earlier. The committee substitute was a bit of fluff. The original bill at least attempted to place some accountability onto the state. The committee substitute was completely unrelated to its Senate companion, SB 188. He said CSHB 348(STA) avoided the issue. He further said each new Administration had the opportunity to influence the process and cited various statutes. He said a code would be the way to address the problem in that it would provide an external citizen review of the foster care system, for example. He called for citizen reviews in each of the four judicial districts to satisfy Representative Ivan's concerns. He encouraged him to look at the Citizen Review Panel Act of 1990. He further called the committee substitute a self study waste of time. Number 1884 REPRESENTATIVE ROBINSON said she agreed with Mr. Calder regarding the Foster Care Review Panel. She said it was originally funded at $500,000 while last year it was funded at $176,000. She stated it would not be in the trouble it was today if it had been implemented correctly. Furthermore, CSHB 348(STA) was another piece of the accountability. Number 1958 REPRESENTATIVE IVAN reiterated his concerns regarding the native tribal organizations. He wanted to meet with the Departments to question the existing agreements. CHAIR JAMES suggested to the testifiers who opposed the committee substitute to push for and support SB 188. CHAIR JAMES called on the next witness via teleconference in Delta Junction, Gene Ottenstroer. Number 2042 GENE OTTENSTROER said the committee substitute was nothing. He said the original bill was good. The departments did not want videotaping for some unknown reason. He suggested deleting language addressing audiotaping. He said, "a picture was worth a thousand words." He questioned why two people were needed from the Department of Health and Social Services. He said they were very intimidating, and he wondered if it was stated as such to take over the meetings, or to cover their "butts." He preferred mandating a videotaped interview rather than allowing the work group to identify the best method for the interview. He said the departments did not want to be accountable for fear of the discovery of what was going on behind the scenes. CHAIR JAMES called on the next witness via teleconference in Delta Junction, Jeanne' Phipps. Number 2205 JEANNE' PHIPPS wondered why it took five department people, when all the departments were suppose to have a vested interest in the Department of Health and Social Services. She said videotaping should be made mandatory any time a public agency was involved in an attack on families. She said she was against CSHB 348(STA). Furthermore, a constitutional law was needed to make the Department of Health and Social Services, the legislature, and other departments more accountable for their actions. Number 2342 REPRESENTATIVE PORTER moved to include the phrase, "unless the nature of the investigation clearly indicates otherwise," on page 2, line 22, subsection (c). (Amendment 1) Hearing no objection, Amendment 1 was so adopted. Number 2420 REPRESENTATIVE ROBINSON suggested an amendment to reduce the number of participants from the Department of Health and Social Services from "two" to "one." Number 2440 CHAIR JAMES said it was the intent to include two participants because one would be from the Department of Health and Social Services, and one would be from the Division of Family and Youth Services. She deferred to the committee members for further discussion. Number 2464 REPRESENTATIVE PORTER said testimony indicated the reason two members were needed from the Department of Health and Social Services was to represent the family and the child. TAPE 96-31, SIDE B Number 0000 REPRESENTATIVE ROBINSON said it should be the responsibility of the Commissioner. The appointed group member from the Department would work closely with the other agencies involved within the Department. CHAIR JAMES asked Ms. Worley to address the issue. Number 0073 MS. WORLEY said the Department could go either way. There were arguments for both sides. There was a perception the Department would overbalance the work group. Furthermore, Representative Porter was also correct that the bill would impact both the youth services and the family services. She suggested a person in a policy position, and a person from the field. She reiterated she was not committed either way, however. Number 0198 REPRESENTATIVE ROBINSON replied the Department of Public Safety, for example, could say the same thing. The responsibility was to reach out to the affected parties and it was the responsibility of the appointed work group member to bring the perspective of his department to the table. She said it was not a big issue, but it could be a potential additional cost. Number 0279 REPRESENTATIVE ROBINSON moved to adopt a conceptual amendment to include "one" member from the Department of Health and Social Services. Hearing no objection it was so adopted. Number 0299 REPRESENTATIVE IVAN said he was not against the bill. He understood the intent. He wondered if it would affect the Indian Child Welfare Act (ICWA). Number 0399 MS. WORLEY replied approximately eight years ago the agreement between the state and ICWA was reexamined. A number of tribal organizations chose not to sign-on because it was complicated. Consequently, a tribal state collaboration group was formed to discuss the issues surrounding ICWA. The goal was to make it more workable to meet the needs of all the different tribal organizations. Number 0519 REPRESENTATIVE IVAN wondered if there were outside state agencies involved in the memorandum agreement. He questioned if there would be any input from the public, or would a statute be needed to make changes? Number 0558 CHAIR JAMES replied any changes would require a statute. The bill mandated the work group reach an agreement between the agencies. The information would then be made available to the legislature and the public. If the legislature did not agree with the agreement, it could talk to the group or address a change through a statute. Moreover, the bill did not fall under the APA because it was a policy and not a regulation. Number 0686 REPRESENTATIVE IVAN said he was not against the bill. He was concerned about a check and balance in the system. He called the agencies a powerful force against a family. Number 0714 CHAIR JAMES replied the bill demanded the type of accountability Representative Ivan was concerned about. Number 0733 REPRESENTATIVE PORTER said the bill should not be interpreted to mean that a statutory exception was being created to existing statutes regarding the confidentiality of criminal investigation procedures. The agreement was available through the freedom of information act anyway. However, there were exceptions when the process was not in the best interest of justice. The bill would not change those exceptions. Furthermore, the conceptual amendment just created an even member group. He was concerned about ties. Number 0839 REPRESENTATIVE GREEN commented the fiscal note gave him "heartburn." Number 0887 CHAIR JAMES replied the committee substitute did not have a fiscal note attached. It needed to be discussed. She expected a $0 fiscal note, however. REPRESENTATIVE GREEN commented the bill started with a horrendous fiscal note, and wondered how it could be a $0 fiscal note now. CHAIR JAMES reiterated it could be a $0 fiscal note, or it could include some money for training or reporting, for example. She reiterated she was looking for a $0 fiscal note, however. Number 0900 REPRESENTATIVE GREEN stated he could not vote in favor of this bill without seeing a fiscal note first. The first fiscal note called for $3.5 million. He was concerned the fiscal note would be $0 now because the division was in favor of it. Number 0946 CHAIR JAMES said a fiscal note was necessary before passing the bill forward. She reiterated a fiscal note did not exist right now. She reiterated she was looking for a $0 fiscal note because the departments could absorb any cost into their already existing structures. Number 0986 REPRESENTATIVE GREEN commented he was concerned about a fiscal note going to the other extreme. Number 0997 CHAIR JAMES asked Representative Green if the fiscal note should have a dollar value, and where? REPRESENTATIVE GREEN replied, "absolutely." He did not know where, however. He said there was more than "tweaking" involved, if a fiscal note could go from $3.5 million to $0. He said he had to see it before he could support it. Number 1012 CHAIR JAMES responded the original bill mandated all interviews be audio/videotaped. The committee substitute on the other hand only suggested it through an interagency memorandum of agreement. Number 1066 REPRESENTATIVE GREEN stated if it was suggested and not mandated the fiscal note would be somewhere between $3.5 million and $0. Number 1094 CHAIR JAMES replied she understood Representative Green's concern. She was not worried about the original fiscal note, however. She reiterated the bill would not move forward without a fiscal note. Number 1116 REPRESENTATIVE PORTER said he supported the notion that the committee substitute would generate a $0 fiscal note. It provided the opportunity for increased training, but that was a normal agency budget function presented through the budget process. The need for equipment existed before the bill and would continue to exist after the bill. The agencies knew how to handle that. REPRESENTATIVE GREEN replied, "I fully understand that." Number 1159 REPRESENTATIVE ROBINSON also believed there would not be a large fiscal note. Even if the need for training was included, it would be a small fiscal note. Furthermore, she referred the committee members to page 2, lines 28 - 30, subsection (c); and page 3, lines 3 - 6, and wondered if the language was redundant. She suggested adding the language, "prior to signing of the agreement," or "at the completion of the agreement" for clarification. Number 1230 CHAIR JAMES replied she wanted to leave the language alone because there might be a need to present a tentative agreement to the legislature or to the public. Number 1254 REPRESENTATIVE ROBINSON responded she was concerned about the legislature rejecting the memorandum of agreement after the completion date of January 1, 1997. She was concerned about the public complaining about not being able to see the memorandum of agreement before it was signed. Number 1282 CHAIR JAMES stated she wanted a committee substitute from the House State Affairs Committee that would make it through the rest of the process. She explained she asked the leadership to waive the next committee of referral - the House Judiciary Committee. Number 1310 REPRESENTATIVE ROBINSON wondered how the working group would notify the legislature. Number 1326 CHAIR JAMES wondered if the language stated it would be available for review. REPRESENTATIVE ROBINSON read, "The work group shall notify the legislature that the memorandum of agreement is available for review," page 3, lines 5 - 6. CHAIR JAMES said, if it was available for review, it was up to the legislature to request it. Number 1351 REPRESENTATIVE PORTER explained the normal process was for an agency to send a letter to the Chief Clerk's office or the Senate Secretary's office. Number 1365 REPRESENTATIVE ROBINSON wondered if the language in Sec. 2, page 3 was necessary. CHAIR JAMES asked Ms. Worley to respond to Representative Robinson's concerns. Number 1387 MS. WORLEY agreed the language seemed redundant. She suggested eliminating the language on page 2 rather than page 3, however. Number 1409 REPRESENTATIVE ROBINSON moved to delete lines 28 - 30, subsection (c), page 2. (Amendment 2) Hearing no objection, Amendment 2 was so adopted. Number 1445 REPRESENTATIVE ROBINSON asked Ms. Worley if the language should be clarified regarding the timing of the public review of the memorandum agreement? Number 1452 MS. WORLEY replied the issue of accountability was the major concern here, therefore, a review prior to signing a memorandum of agreement was preferable to eliminate the perception of not including the public. Number 1499 CHAIR JAMES wondered how long the period of review would be left open. She wondered if a regulation would be needed to enforce the bill. She hoped a regulation would not be necessary. She reiterated the memorandum of agreement was a policy, and wondered if a policy should be subject to the APA? She did not think so. A policy was a policy and it should not be subject to a public review process. She explained she was concerned about setting a precedent. Number 1608 REPRESENTATIVE ROBINSON replied she would drop the issue. CHAIR JAMES announced the next hearing was scheduled for Saturday, March 9, 1996. A fiscal note would be attached.
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