Legislature(2001 - 2002)
04/04/2002 01:55 PM House FIN
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HOUSE FINANCE COMMITTEE
April 04, 2002
1:55 P.M.
TAPE HFC 02 - 75, Side A
TAPE HFC 02 - 75, Side B
CALL TO ORDER
Co-Chair Williams called the House Finance Committee meeting
to order at 1:55 P.M.
MEMBERS PRESENT
Representative Bill Williams, Co-Chair
Representative Eldon Mulder, Co-Chair
Representative Con Bunde, Vice-Chair
Representative Eric Croft
Representative John Davies
Representative Richard Foster
Representative John Harris
Representative Bill Hudson
Representative Ken Lancaster
Representative Carl Moses
Representative Jim Whitaker
MEMBERS ABSENT
None
ALSO PRESENT
Representative John Coghill; Theresa Tanoury, Family
Services Administrator, Division of Family and Youth
Services, Department of Health and Social Services; Susan
Cox, Chief, Assistant Attorney General, Civil Division,
Department of Law; Nate Mohatt, Staff, Representative Sharon
Cissna
PRESENT VIA TELECONFERENCE
Brant McGee, Public Advocate, Office of Public Advocacy,
Juneau
SUMMARY
HB 252 An Act relating to the construction of certain
statutes relating to children; relating to the
scope of duty and standard of care for persons who
provide services to certain children and families;
and providing for an effective date.
HB 252 was HEARD and HELD in Committee for further
consideration.
HOUSE BILL NO. 252
An Act relating to the construction of certain statutes
relating to children; relating to the scope of duty and
standard of care for persons who provide services to
certain children and families; and providing for an
effective date.
REPRESENTATIVE JOHN COGHILL stated that the two most
important goals of HB 252 would be to create a standard of
care for services offered by the Division of Family and
Youth Services (DFYS) and to keep families together. He
noted that it is important to continue the work of balancing
child protection with family preservation during government
intervention. Parents are held to a standard of care by the
State with the threat of loosing parental rights if they
fail in meeting those standards.
Representative Coghill explained that failing to properly
care for children is not just a parental issue. DFYS is
made up of humans that from time to time may fail in a
standard of caring. HB 252 requires that a standard of care
be instituted within Alaska so that each department employee
is held to at least the same standard of care required of
parents.
Currently, under AS 47.10.960, there is no duty or standard
of care imposed on Department employees. The lack of a
standard of care obscures the fiduciary duty of the State to
the parents and children for which they are making
decisions.
Representative Coghill stated that HB 252 was introduced
with the purpose of recognizing parents in their given role
to raise their children as they see fit. The bill
recognizes that parents fail in varying degrees and that
DFYS is called upon to protect the children while trying to
preserve the family structure. Therefore, the parent's
participation in the event of a child coming under court
jurisdiction was added. The legislation directs DFYS to
offer intensive family preservation services to families who
are able and want to learn the skills necessary to remain
together and to change the conditions that would mandate the
placement of their children. Those services would be
provided at the family's option and would consist of an
intensive short-term intervention to help the family work
through the crisis and stabilize. He concluded that by
remaining intact and safe, families can grow strong and
overcome their problems together.
Additionally, the bill requests for a study to determine a
plan for providing statewide services. That study would
include recommendations on solicitation of federal funds and
redirection of State funds in order to provide services and
realize cost-savings.
Co-Chair Mulder MOVED to adopt the work draft version #22-
LS0454\B, Lauterbach, 4/2/02, as the document before the
Committee. Representative Croft inquired if it was the
Committee's intent to go back to the version before the
House Judiciary version.
Representative Coghill explained the only difference in
those two versions would be the repealing section. There
being NO further OBJECTION, the "B" version was adopted.
Representative Coghill outlined the changes made to that
version of the bill:
Section 1. Expresses the legislative intent behind Sec. 2
of the legislation.
Section 2. Changes the standard for construction of
statutes in AS 47.10, from a standard promoting "the
child's welfare" to a standard promoting "the best
interests of the child, including the parents'
participation in the child's upbringing".
Section 3-6. These sections direct the Department of
Health and Social Services to offer, through contract
providers, intensive family preservation services to
families under certain circumstances. The services would
be funded with funding already appropriated for the
specific purpose of "intensive family preservation
services" (IFPS).
Section 7. Defines "intensive family preservation
services".
Section 8. Provides that before an agency can seek to
terminate parental rights, intensive family preservation
services must be offered to the parents.
Section 9. Repeals AS 47.10.960, which states: "Sec.
47.10.960. Duty and standard of care not created. Nothing
in the title creates a duty or standard of care for
services to children and their families being served under
AS 47.10." AS 47.10 is the Children a\In Need of Aid
(CINA) Title.
Section 10. Directs the Department of Health & Social
Services to conduct a study in at least one region of the
State to develop projections for the need and cost of
IFPS, would develop a long-range plan, and would complete
a report on the study by November 30, 2004.
Section 11. Makes Sections 1 and 2 of the legislation
effective immediately.
Section 12. Makes Section 3-6 and 8-10 requiring the IFPS
of legislation effective July 1, 2002. Section 7 would
become effective 90 days after the bill becomes law.
Representative Davies asked if there was an updated fiscal
note, which would indicate costs associated with the repeal
of Section 9 and the intensive care concerns.
Representative Coghill replied that he did not have one. He
recommended that Theresa Tanoury from the Division of Family
and Youth Services speak to that.
Representative Hudson inquired the costs of the attached
fiscal note and what it would provide for the coming fiscal
year.
Representative Coghill understood that the note would
provide for the basic program to be administered and the
pilot project would begin this year. He noted that the
Department had provided the fiscal note, and that the
effective date would be 2004.
Representative Lancaster voiced his concern with how the
bill had grown and the intent changed.
Representative Coghill explained that the intent of the bill
was to get "family preservation" installed and that it was
his intent to hold the Department accountable. The bill
will determine how to design that program while raising the
standard for family and youth care. In the House HESS
Committee, family services were included and at that point,
the legislation changed. At present time, the intent is how
to design that program.
Representative Coghill advised that his reason for the bill
was to improve the family unit. He believed that in many
cases, the children were being protected to the exclusion of
the "family". Before any child is removed, there needs to
be intensive family service to determine if there is more
that could be done to preserve that family unit. He claimed
that many times, the intent to protect the child has been to
the determent of the family even if that family is not as
functional as one might prefer. He added that before the
parental right is taken away, family services should be used
to intervene to protect the family. He admitted that some
families are "broken" and that separating and protecting the
child can be dangerous, yet important. He emphasized that
the Department must be held accountable and that misuse of
their power could be devastating.
Representative Lancaster asked if the legislation was
related to foster care in any way.
Representative Coghill advised that it was the intent to
work "along side" foster care.
Vice-Chair Bunde agreed that Division of Family and Youth
Services (DFYS) should be held accountable and held to the
proposed standard because in some situations, DFYS has been
too aggressive. Vice-Chair Bunde voiced concern that there
are some families, which are very dysfunctional. He asked
if the intensive family preservation services would become
an unfunded mandate for the Department, and would they be
coming back for a fiscal note.
Representative Coghill agreed that resources are generally
an issue. The intent of the family preservation services
would be an attempt to try a different venue. He
acknowledged that it would cost the Division something. He
requested that Theresa Tanoury explain how they would
address those costs. Representative Coghill added that the
intent is that everything be directed at "family wholeness".
He acknowledged that the duty to the child is paramount,
however, the pendulum has swung a little to far away from
the unit of the family staying together. He reiterated that
a high degree of accountability should be imperative.
Representative Hudson noted that he was cautious of new
ideas regarding intensive family counseling and services.
He asked what the upgraded requirement or higher standard
would be. He noted that he preferred the original bill to
the version before the Committee.
Representative Coghill thought that the language of the bill
could suggest concerns that should be examined more closely
by the Division. He asked that staff from Representative
Cissna's office be consulted regarding the changes from the
original version.
Vice-Chair Bunde inquired why Representative Coghill had
voted a "no recommendation" on his own bill.
Representative Coghill explained that the bill had been
changed in each Committee and that those changes had
highlighted different areas than the original intent of the
bill. The original intent was to raise the standard and
duty of care. It was not to go in the direction of family
preservation services. He agreed that there was a need and
benefit for that concern; however, he expected that the
Department would already have that in place.
Representative Croft asked if the Committee should address
the concerns listed in Section 9.
Co-Chair Williams recommended that the bill be placed in
subcommittee to discuss that concern.
THERESA TANOURY, FAMILY SERVICES ADMINISTRATOR, DIVISION OF
FAMILY AND YOUTH SERVICES, DEPARTMENT OF HEALTH AND SOCIAL
SERVICES, advised that the Division of Family and Youth
Services has had long discussions with both Representative
Coghill and Representative Cissna on different sections of
the bill. Ms. Tanoury indicated that the Department
supports the House Judiciary version of the legislation.
Ms. Tanoury agreed with Representative Coghill that parents
need to know up front on first contact, what their rights
are. She understood that can be an intimidating process.
The Division has developed a handbook for parents, which is
now given to all parents at the first contact. Many of the
legislative offices have helped with the development of that
pamphlet.
In response to Vice-Chair Bunde, Ms. Tanoury reiterated that
the handout is given to the parent at the initial point of
contact.
Vice-Chair Bunde imagined that the initial contact would be
a difficult time for the parent. He asked if the parent
would understand their rights.
Ms. Tanoury replied that before the handbook was available,
there were other types of brochures given out. In the time
of a crisis, it is often difficult to absorb all the
information. When the child is removed, that is a crisis
point. The Division wanted to go the "extra" step and knew
that parents "wanted to know". Thus, the pamphlet was
developed.
Vice-Chair Bunde suggested that the first contact with the
family was not the time that the child was taken away. He
asked if there were any intervening steps before the child
was removed.
Ms. Tanoury explained that there are procedures laid out.
When a report of harm is received, a fact-finding
investigation is begun, many times includes talking to
parents. There is an obligation to tell the parents about
the report in order to hear their side of the story before
action is taken. Those procedures are all pre-established.
Once a decision has been made to remove the child, and there
is a legal action taken, then there is an obligation to tell
the parents everything there is to know and what to expect
during the process and their rights. At that time, they are
given an opportunity to remedy the situation or make the
situation "whole". It is clear that during those crisis
periods, some of the information is getting lost. That is
why it was important to create the user-friendly pamphlet.
Ms. Tanoury noted that the Division does oppose Section 9.
The Department of Corrections does have a fiscal note
associated with the repeal of that Section. She indicated
that DFYS workers are held to a national standard. Ms.
Tanoury added that there is also an ethical standard and a
code of ethics. Personnel actions are taken when workers
have violated that criterion. The Division is not against
standards. She noted that there currently is an intensive
family preservation component included in the budget. She
pointed out that Representative Cissna was concerned with
the intensity of the level of services provided during the
grant program. None of the grantees are non-profit and they
have been around for a long time. The Division is totally
dependent on those services. Ms. Tanoury indicated that it
Representative Cissna does not want the Division to change
the grant agreement relationship in any way. The intent is
to find more money to grant applications to fund the
program. Representative Cissna has a specific model in
mind.
Representative Hudson asked how much money was needed and
how many cases would fit into that category.
Ms. Tanoury replied that the family preservation component
was almost $3 million general and federal fund dollars. She
noted that there are several programs within family
preservation services:
· Time limited verification, which is for
families in which the child has already been
removed. The grantee is asked to come in and
provide a time-limited family verification
effort with federal money. In the grant
programs, there are approximately 2,000 kids
statewide;
· There are at-risk kids who come from a
referral source. The situation has not
gotten to the place of taking custody. The
grantee is asked to provide services to that
program. The Division receives about 16,000
reports per year, with 11,000 kids that are
unduplicated.
SUSAN COX, CHIEF, ASSISTANT ATTORNEY GENERAL, CIVIL
DIVISION, DEPARTMENT OF LAW, spoke to Section 9, which would
repeal AS 47.10.590. The statute clarifies that a duty or
standard of care is not created in Title 47. She noted that
the reason was that language was placed in the Smart Start
package in 1998 to insure that the comprehensive overhaul of
the child in need of aid (CINA) statutes do not in and of it
create liabilities. The language was intended to preserve
the status quo with regard to civil liabilities. The intent
was not to create immunity to protect the government. The
insertion of that language was included in the package to
avoid the argument that any provision within the Smart Start
package would create a special statutory liability. It was
the drafter's intention to not upset the balance when it
came to liability concerns. For that reason, there were no
fiscal impacts identified with that legislation for new
liability concerns. There were concerns that many of the
goals included the package would not be reached in all cases
because of lack of resources.
Ms. Cox pointed out that the sponsor has sought to repeal AS
47.10.960. She understood that it was because that standard
did not create a duty or standard of care for services for
children or family, and that it sends the wrong message to
families effected by actions taken by DFYS. The language
that is there is a term-of-art for liability purposes. The
impression is that DFYS is not accountable or not held to
standards when it comes to taking care of children. The
fact of accountability is built into the entire Title 47
process as well as the DFYS procedures. The foreseen
problem is an outright repeal of the language that is there.
It raises the question of what the legislature's intent is.
If the language is removed, it is presumed that the
Legislature is doing it for a reason. Without the language,
the Department would expect to face litigation challenges
and a fiscal impact to defend against those arguments.
Ms. Cox advised that the Department had proposed alternative
language to an outright repeal that was adopted in the House
HESS Committee. In the House Judiciary Committee that
language was removed. The proposed House Finance Committee
version proposes to remove the language. If it is removed,
she anticipated that the Department of Law would have to add
a fiscal not. Ms. Cox offered to answer questions of the
Committee.
Representative Croft thought that there was a distinction
between the general, negligent actions and a cause of action
for failure to meet any particular time lines. He
understood that the State would be liable for the general
failure to care for a child.
Ms. Cox acknowledged that was correct. The State has
defended lawsuits before the Legislature, and will continue
to, regarding allegations made that the Division has failed
to adequately care for children in their care.
Representative Croft commented that the concern becomes what
should the liability of the Department be for failure to
meet the statutory mandates. He asked if there could be
compromises and if there was anyway to retain the ability to
enforce procedural, technical, and timeline requirements
without the full penalty of legal rights.
Ms. Cox stated that there is a way. She added that the
entire process envisioned in Title 47 for protecting
children in need of aid is already judicially overseen.
When custody is taken, the Court is involved in overseeing
decisions made in that regard. There are many steps in the
process under Title 47 where the Court could be directly
appealed to. The Department of Law is attempting to address
the initiation of separate litigation. At anytime during
the Court CINA case, the parents, guardians, or social
workers, all have the ability to give input. If a parent
wants a hearing, they can request it. The Department is
attempting to avoid "spin-off" litigation that sets up
separate remedies and basically creates a separate
liability.
TAPE HFC 02 - 75, Side B
Representative Croft asked what the consequence to the
Department would be for not following their own statutes.
Ms. Cox replied that the court is free to order that certain
things happen and to mitigate those consequences if they are
adverse to the family. The main concern is to address the
best interest of the child.
Representative Croft noted that there is nothing indicated
regarding repeated failure. He asked if there was any
consequence to the family, besides the judicial order, which
would indicate what they should have done before.
Ms. Cox replied that she could not imagine it but there is
the possibility of contempt. She did not know of any other
order that a court could make. At this point, separate
litigation is not anticipated. That would all be addressed
in the CINA case, after conferring with the judge regarding
that oversight.
Representative Croft commented that the heart of the matter
is how to amend AS 960; he noted he was worried that there
is no remedy for a continued violation. He added that the
job of the Legislature is to establish the structure so that
it functions properly. He believed that when there a family
that is repeatedly faced with violations and failure to meet
timeline requirements, and if they are not able to rise to
the occasion of specific harm to the child, that family
would at some point would experience "harm" through those
small neglects. He recommended "limiting" would be
appropriate.
Ms. Cox replied that in the HESS Committee language, there
was a statute that did mention a duty or standard of care,
speaking spoke to civil liability. The language would make
it clear that failure to follow consequences would be
pursued by the Division's own complaint section separate
from a court action.
Representative Croft thought that failure to comply with
particular requirements could be used as evidence of a
general neglect.
Vice-Chair Bunde questioned the post statute verbiage and
asked if it would be possible for the Department to create a
citable offense to the parent. He asked if the Department
was held to a different standard than the parent would be.
Ms. Cox cautioned about thinking in terms or liability, as
that speaks to actions happening for money damages. She
commented that it would be more appropriate to ask if there
would be consequences. If a child is removed and placed in
the Department's custody, under statute, every effort must
be made to help the child return to the family in a safe
environment. There are a number of obligations placed on
the Division to work with the family to provide services.
There is a court oversight of that project. If the parent
does not meet all of the objectives, there would be
continual oversight and evaluation of whether that child
should be returned to the family or not. At some point, the
Legislature directed the Department to make long-term
decisions regarding the child and to determine if
termination of the parents rights were in order.
Vice-Chair Bunde asked if the requirement of the State was
as stringent as the requirement placed on the parents. He
questioned if there would be consequences placed on the
State.
Ms. Cox advised that if the State sought to terminate a
parent's rights and found that they had improperly applied
the law, they would intervene. She acknowledged that there
are consequences and that the Division does not always get
its way. The parents have the ability throughout the case
to bring matters to the court's attention. There are rights
build into the system under AS 47.10. If harm befalls the
child while they are in the State's custody, there would be
consequences to the State for that.
BRANT MCGEE, (TESTIFIED VIA TELECONFERENCE), PUBLIC
ADVOCATE, OFFICE OF PUBLIC ADVOCACY, ANCHORAGE, pointed out
that he did not represent the DFYS or the Administration
except to represent the best interest of abused and
neglected children in the context of the CINA cases.
Mr. McGee noted that he supported Representative Coghill's
intention with the bill but did support the repeal of
Section 9. He stipulated that there is one primary issue
involved in the controversy, and that is one of
accountability. There are those that seek to evade and
avoid accountability and those that seek to impose it. The
Division of Family and Youth Services has more power over
Alaskans than any agency of government. Children and their
parents can have their lives destroyed by tragically
inadequate services by DFYS. Children, families and
parents should have the greatest possible legal protection
from government misconduct, negligence and failure to
fulfill statutory duty. Those protections include suits for
negligence for money damages and violations of statutory
duties. He stated that more important are the remedies
available to children and families in actions of equity and
constitutional claim.
Equitable remedies allow children to ask the court to stop
the State from doing "something" and to order the State to
adhere to a duty. These actions are rarely used, but no
less critical. Chapter 10 governs CINA procedures once the
child is taken into custody. Sections specifically impose a
mandatory duty upon the State to provide a child with food,
shelter, education and medical care, and to protect, train
and nurture the child. That is the job of any custodian of
any child. When the State fails to do so, ad leim guardians
from the Office of Public Advocacy advocate for the best
interest of that child. The Office almost always wins
because the job of protecting the child's interest is in
accord with the judge's job to give the highest priority to
the best interest of children.
Mr. McGee added that the Office of Public Advocacy is
limited in their ability to litigate only in the context of
the CINA cases. He stated that they cannot bring
independent actions on behalf of children. That is why it
is necessary that children have the ability to seek legal
regress based on statutory duties and constitutional claims
based upon those duties. He stressed that sub-Section 960
makes no sense because it deals with Chapter 10. Chapter 10
creates duties for DFYS. Sub-Section 960 says nothing in
the title that creates a duty or standard of care for
services to children and their families served under AS
47.10. In other words, some statutes oppose that duty;
however, this statute renders those statutes empty and
meaningless. Those duties, enacted by the Legislature, make
promises to children in custody and elimination of that
statute would break that promise.
Other chapters in Title 47 have no language like sub-Section
960. He claimed that arguments submitted by Representative
Coghill's bill to delete that section would be subject to
further litigation. Those arguments are groundless. The
enactment of Section 960 does not and has not barred actions
for negligence. He added that a court has never interpreted
that section. Mr. McGee asked what had changed since its
enactment in 1988, noting that it has not precluded any
legal action against the State. The State is concerned that
violations of the procedural rule could form the basis of a
civil negligence. If that is true, the State should
carefully craft a new Section 960 that does not allow
forming the basis of such action.
Mr. McGee suggested the following verbiage:
AS 47.10.960 - "Violations of procedural timelines in
AS 47.60 do not form the basis for civil liability."
Co-Chair Williams requested that Representative Coghill
prepare a committee substitute including the language
proposed by Mr. McGee.
HB 252 was HELD in Committee for further consideration.
ADJOURNMENT
The meeting was adjourned at 3:02 P.M.
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