Legislature(2005 - 2006)BUTROVICH 205
05/04/2005 01:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| HB214 | |
| HJR20 | |
| HB53 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 214 | TELECONFERENCED | |
| + | HJR 20 | TELECONFERENCED | |
| += | HB 53 | TELECONFERENCED | |
| + | TELECONFERENCED |
CSSSHB 53(FIN)-CHILDREN IN NEED OF AID/ADOPTION/GUARDIAN
CHAIR DYSON announced HB 53 to be up for consideration.
RYNNIEVA MOSS, staff to Representative Coghill, sponsor,
explained that HB 17, HB 113, HB 114 and HB 53 were all
consolidated into HB 53 to prevent any overlap or conflict
between them. She said this bill eliminates the no-duty language
in As.47.10.960, which states that there is no duty or standard
of care for children in state custody. She said that while the
intent of this language was to ensure that the state wouldn't be
held liable for failing to meet a timeline that was introduced
with HB 375, parents took offence, because they understood it to
mean that there was a duty and standard of care for parents, but
not for the state. This bill ensures that if timelines are not
met, the state has no civil liability.
SENATOR GREEN joined the committee at 2:28:00 PM.
2:31:07 PM
MS. MOSS said a State Supreme Court case established that the
state does have a duty and standard for children it has taken
into custody.
CHAIR DYSON said:
I assumed that 'standard of care' meant that you had
to keep the kid warm, clothed and reasonable medical
care. What if the birth parent or the custodial
parent thinks that the child who is in state custody
isn't being cared for in a way that fits the court's
definition? Where do you go to look to see what that
is?
MS. MOSS answered that it is not written in law, but rather is a
determination that is made out of common sense. The parents
have a standard and duty of care and the state determines
whether or not they are competent to keep their children based
upon whether or not they have met it. The state should be held
to that same standard of care.
2:33:02 PM
CHAIR DYSON asked if the standard of care is defined by an
explicit set of conditions.
2:33:47 PM
MS. MOSS replied that it is not and said that a provision in
this bill gives priority to an adult relative who has taken care
of a child for 12 consecutive months. They would also have
priority for adoption preference if the state terminates the
parental rights of the child's parents. This bill also
establishes a hierarchy of preferential placement that starts
with family members, followed by a family member's friend, a
licensed foster home and finally a licensed institution.
CHAIR DYSON asked if a family member's friend would have to go
through the foster care licensing process before a child could
be placed with them.
MS. MOSS replied that the family friend would have to be
licensed, but a family member would not.
2:36:03 PM
SENATOR ELTON said one of the criteria to help with
reunification is close proximity to the parents and asked what
the priority is if a family member is in Fairbanks and the child
and his parents are in Anchorage.
MS. MOSS replied that the department should answer that, but
unification is a priority, so the proximity to the parents would
probably be that priority.
TAMMY SANDOVAL, Deputy Commissioner, Office of Children's
Services (OCS), Department of Health and Social Services (DHSS),
responded:
Therein lies the struggle with this business of doing
this kind of work. The balance of proximity, who is
the best placement and the best resource for the child
and keeping kids in close enough area. So, we would
balance all those things in a decision-making process
with supervisors and staff that we have that would
help us decide that along with inviting the parents
and the extended family members to the table so that
family members are included in what's the best plan
for the child.
CHAIR DYSON asked if the courts get involved with placement if
the placement decision is challenged.
MS. MOSS replied that there is now a grievance process and the
right of a family member to request a hearing if he disagrees
with what the department is doing. HB 53 has transparency and a
clear process that the adult family members and friends will be
able to follow. This has not been the case in the past.
CHAIR DYSON asked if parents are provided with information that
informs them of their rights.
MS. MOSS replied that parents are provided with that
information. She said that HB 53 directs the OCS to do
everything that it can to provide visitations to a child's
family and relatives. This bill requires the OCS to advise a
child's family and relatives that they have a right to request a
hearing if they are denied their visitation rights and it
requires the OCS to tell them why these rights were denied.
CHAIR DYSON asked:
If indeed the parent is being investigated for either
neglect or crimes against the child, the court
decision will be always what is in the best interests
of the child and the offending parent may be denied
visitation for cause.
MS. MOSS replied that that is correct.
CHAIR DYSON asked if that decision is made by a judge.
MS. MOSS replied that initially the decision is made by OCS, but
if the parents disagree with its decision they can have a
hearing in which a judge will either confirm or override the OCS
decision. This bill has a provision that says parental rights
cannot be terminated solely because they did not receive
treatment that was required by the department. She said that
this is because sometimes that treatment is not available.
CHAIR DYSON queried:
Suppose the problem is that the parent is a drunk?
It's a CINA [child in need of aid] case and a kid is
being left lying on the floor with dirty diapers for
20 hours at a time and the department says that part
of the reunification plan is, 'You gotta get dry.' And
the treatment is not available. So then, the
department has some responsibility to ascertain that
the parent is no longer incompetent because of
alcohol? How does that work?
2:41:46 PM
MS. MOSS replied:
Mr. Chairman, no that is not what I am saying. If a
parent has an alcohol problem, first of all you have
to determine whether they could afford to do it
themselves and if that was available....
If the treatment is available and they can pay for it
and if they don't, then that is clearly a sign that
they don't want to get any better. But there is a
shortness of alcohol treatment in this state.... And
if they can't afford it, instead of just throwing them
out to the wolves and saying we're going to take their
children away, more of an effort is going to be made
to see that that treatment is made available to the
parent. If they choose to not take the treatment when
it's available, then that is clearly another sign that
they don't want to change.
CHAIR DYSON asked if there is an alternative way for such a
person to demonstrate their recovery besides graduating from an
alcohol treatment program.
MS. SANDOVAL replied:
Absolutely. If a person can get clean or they can get
in control of whatever is going on in their lives in
order to safely care for their own children, we'll
welcome and entertain any ideas people have to do
that.
2:43:58 PM
MS. MOSS continued saying that this bill encourages the OCS to
provide training for foster parents to become mentors to parents
of CINA children. It is not mandatory since the OCS has the
right to say that a parent is a risk to expose to foster parents
and it can require supervised visitations, but it does say that
OCS should attempt to work with the Department of Public Safety
and schools to train teachers and foster parents to be mentors.
Children have sometimes been placed into foster homes that
become adoptive homes. Some foster parents who want to be
adoptive parents discourage visitation with parents, because
their goal is to adopt the child.
2:45:15 PM
She said that there has been significant concern about a lack of
parental involvement in decisions regarding the administration
of psychotropic drugs to children and that the bill redefines
"major medical treatment" to include medication used to treat
diagnosed mental heath disorders. The bill says that parents
will participate in decisions regarding major medical
treatments, which includes psychotropic drugs.
CHAIR DYSON asked if the term "major medical treatment" is
defined in law.
STACIE KRALY, Assistant Attorney General, Department of Law,
said that the term "major medical treatment" is not defined.
2:47:05 PM
CHAIR DYSON said that in a recent case, the department could not
release information to defend itself because of the stringency
of the confidentiality requirements that surrounds CINA cases.
He said that there are provisions in this bill that allow the
OCS to release some information to protect itself while still
protecting the child.
MS. MOSS explained that the bill provides some sideboards to
public hearings. The hearings are open, but the judge can close
the hearing if he feels that the child could be stigmatized or
emotionally damaged, if it could interfere with a criminal
investigation or if disclosure would violate state or federal
law. She said that this bill allows a judge to bar a person in
violating a court order in a CINA case from participating in any
future CINA proceedings. It also creates a grievance process for
parents who disagree with what OCS is doing with their child. A
department supervisor would review the case. Once his decision
was made and the parent still disagreed, he could file a
complaint with the State Review Panel that this bill creates.
That panel would review policies and procedures of the
department, suggest changes as well as sit as a panel for an
appeal of a grievance. It would be subject to the Open Meetings
Act so it could meet in executive session.
2:49:11 PM
CHAIR DYSON asked if the information that this bill allows OCS
to release would be free of any reference to the name of the
child.
2:51:10 PM
MS. MOSS replied that it must be free of all identifying
information. She said that this legislation recognizes that
videotaping is the best way to interview a child. She said that
this bill requires videotaping in all cases involving sexual
abuse and it requires audio-taping when video taping is not
available.
CHAIR DYSON said that years ago many people said that there were
serious technical difficulties involved in conducting video
recordings. He asked if anyone has mentioned this difficulty
today.
MS. MOSS answered that no one has recently complained about the
technical difficulties associated with video recording.
2:52:56 PM
MS. MOSS said that this bill defines the term "child advocacy
center" and it establishes criteria for schools to follow when
they interview a child in a school. Today the OCS is required
to respond to a mandatory reporter within 10 days and this bill
would require OCS to respond to a voluntary reporter within 20
days.
She said that there is a provision in this bill to allow the
legislative office to remain a non-party participant in a case
even after parental rights have been terminated. She said that
with regards to Senator Elton's earlier question of why these
cases were not referred to the Ombudsman's office, the reason is
that since the office has been reduced in size, more and more
parents have gone to the legislative offices in search of help.
2:54:32 PM
CHAIR DYSON asked if the department is able take on the
responsibilities assigned by this bill.
MS. SANDOVAL replied that the Office of Children's Services
completely and wholeheartedly supports HB 53.
JAN RUTHERDALE, Department of Law, said it offers legal support
to the Department of Health and Social Services and any concerns
that it had with this legislation have been resolved and the
department feels that the bill is legally sound.
2:58:56 PM
CHAIR DYSON announced that three potential amendments were up
for consideration.
MS. MOSS explained that Amendment 1 deletes the word "may" on
page 18, line 19, and inserts the word "shall", which makes the
adoption of regulations to implement provisions of this bill
mandatory instead of just making them permissive.
CHAIR DYSON asked if the department supported Amendment 1.
MS. SANDOVAL replied that the OCS is satisfied with this
amendment.
SENATOR ELTON moved to adopt Amendment 1. There were no
objections and Amendment 1 was adopted.
MS. MOSS explained that conceptual Amendment 2 deletes the words
"legal guardian" following the word "uncle" on page 10, lines
20-21 and lines 24-25. She said that legal guardians are already
parties to the case and Representative Coghill believes that
they should not be given the same status as family members.
MS. SANDOVAL and MS. RUTHERDALE both supported Amendment 2.
CHAIR DYSON moved to adopt Amendment 2 as explained by Ms. Moss.
There were no objections and Amendment 2 was adopted.
CHAIR DYSON moved to adopt Amendment 3.
MS. MOSS explained that Amendment 3 adds "or whose safety or
welfare may be endangered by public release of information."
after "violence" on page 27, line 15. This makes language in
section 10 consistent with language in section 52, the court
rule that deals with section 10.
MS. SANDOVAL and MS. RUTHERDALE both supported Amendment 3.
SENATOR GREEN moved to adopt Amendment 3. There were no
objections and Amendment 3 was adopted.
CHAIR DYSON said that years ago the concern was that
establishing a standard of care for children in custody would
invite lots of lawsuits. He asked if the Department of Law
wanted to comment on that.
GAIL VOIGHTLANDER, Department of Law, responded that the
concerns arose when the language in AS 47.10.960 was going to be
changed.
You were going to create a cause of action for
children, parents, other people who are involved in
the CINA proceedings to file litigation against the
department and the social workers based upon the
statute and the various steps and procedures that are
supposed to be followed.... It was for that reason
that AS 47.10.960 was put into place which was to say
that the intent was to say that failure to comply with
the provisions of the title would not be the basis to
make a claim for damages.
And over the years, with that AS 47.10.960 there was a
way that lay people would read that language and it
caused them concern. But the underlying legal reason
was that it was not to create a statutory claim to be
made by parents or grandparents or others for damages
because this is an entire statutory scheme where if
there are problems with placement, if there are
problems with resources being provided or not being
provided, the appropriate place to bring that is to
the court in the CINA proceeding. The court has the
ability to address those issues and, in fact, the
parties have the ability to take them to an
interlocutory, which means like an interim appeal on
those issues if they are unhappy....
What section 29 of this bill achieves is that same
result of what [AS] 47.10.960 had intended, but
because of the use of language it was causing people
concern.
Our Supreme Court has said that in terms of child
protection, the department and its employees have a
duty that they owe to the child and not a duty that
they owe to other parties in the CINA proceeding,
because everyone is represented in these proceedings.
Everyone advocates for their own particular position.
The parent may not want to have their rights
terminated, but it may be in the best interests of the
child that those parental rights are terminated....
CHAIR DYSON noted that there were no questions or further
testimony.
3:07:01 PM
SENATOR GREEN moved to report SCS CSSSHB 53(HES) out of
committee with individual recommendations and zero fiscal notes.
There were no objections and it was so ordered.
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