Legislature(2015 - 2016)CAPITOL 106

03/29/2016 03:00 PM HEALTH & SOCIAL SERVICES

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                    ALASKA STATE LEGISLATURE                                                                                  
      HOUSE HEALTH AND SOCIAL SERVICES STANDING COMMITTEE                                                                     
                         March 29, 2016                                                                                         
                           3:03 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Paul Seaton, Chair                                                                                               
Representative Liz Vazquez, Vice Chair                                                                                          
Representative Neal Foster                                                                                                      
Representative Louise Stutes                                                                                                    
Representative David Talerico                                                                                                   
Representative Geran Tarr                                                                                                       
MEMBERS ABSENT                                                                                                                
Representative Adam Wool                                                                                                        
COMMITTEE CALENDAR                                                                                                            
HOUSE BILL NO. 200                                                                                                              
"An  Act  establishing  procedures  related  to  a  petition  for                                                               
adoption  of a  child in  state custody;  adding a  definition of                                                               
'proxy  for  a  formal  petition';  amending  Rule  6(a),  Alaska                                                               
Adoption Rules; and providing for an effective date."                                                                           
     - HEARD & HELD                                                                                                             
HOUSE BILL NO. 334                                                                                                              
"An Act relating to visitation and child custody."                                                                              
     - HEARD & HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: HB 200                                                                                                                  
SHORT TITLE: ADOPTION OF CHILD IN STATE CUSTODY                                                                                 
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
04/16/15       (H)       READ THE FIRST TIME - REFERRALS                                                                        
04/16/15       (H)       HSS, JUD                                                                                               
03/29/16       (H)       HSS AT 3:00 PM CAPITOL 106                                                                             
BILL: HB 334                                                                                                                  
SHORT TITLE: CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE                                                                            
SPONSOR(s): MUNOZ                                                                                                               
02/22/16       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/22/16       (H)       HSS, JUD                                                                                               
03/22/16       (H)       HSS AT 3:00 PM CAPITOL 106                                                                             
03/22/16       (H)       Heard & Held                                                                                           
03/22/16       (H)       MINUTE(HSS)                                                                                            
03/24/16       (H)       HSS AT 3:00 PM CAPITOL 106                                                                             
03/24/16       (H)       <Bill Hearing Rescheduled to 3/29/16>                                                                  
03/29/16       (H)       HSS AT 3:00 PM CAPITOL 106                                                                             
WITNESS REGISTER                                                                                                              
CHRISTY LAWTON, Director                                                                                                        
Central Office                                                                                                                  
Office of Children's Services                                                                                                   
Department of Health and Social Services                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented the sectional analysis and                                                                     
answered questions during the discussion of HB 200.                                                                             
KATIE LYBRAND, Assistant Attorney General                                                                                       
Child Protection Section                                                                                                        
Civil Division                                                                                                                  
Department of Law                                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Answered questions during discussion of HB
CRYSTAL KOENEMAN, Staff                                                                                                         
Representative Cathy Munoz                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Answered questions on HB 334 on behalf of                                                                
the bill sponsor, Representative Munoz.                                                                                         
PAUL GRANT, Attorney                                                                                                            
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of HB 334.                                                                          
FRED TRIEM, Attorney                                                                                                            
Petersburg, Alaska                                                                                                              
POSITION STATEMENT:  Testified in support of HB 334.                                                                          
BRENDA STANFILL                                                                                                                 
Interior Alaska Center for Non-Violent Living (IAC)                                                                             
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 334.                                                                       
SAMANTHA WEINSTEIN, Attorney                                                                                                    
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in opposition to HB 334.                                                                       
JANE ANDREEN                                                                                                                    
Douglas, Alaska                                                                                                                 
POSITION STATEMENT:  Testified in opposition to HB 334.                                                                       
REPRESENTATIVE CATHY MUNOZ                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Testified  as the sponsor  of the  bill, HB
ACTION NARRATIVE                                                                                                              
3:03:55 PM                                                                                                                    
CHAIR PAUL  SEATON called  the House  Health and  Social Services                                                             
Standing   Committee    meeting   to    order   at    3:03   p.m.                                                               
Representatives  Seaton,  Talerico,   Stutes,  and  Vazquez  were                                                               
present at  the call to  order.  Representatives Foster  and Tarr                                                               
arrived as the meeting was in progress.                                                                                         
           HB 200-ADOPTION OF CHILD IN STATE CUSTODY                                                                        
3:04:21 PM                                                                                                                    
CHAIR SEATON announced that the  first order of business would be                                                               
HOUSE BILL NO. 200, "An  Act establishing procedures related to a                                                               
petition  for adoption  of a  child  in state  custody; adding  a                                                               
definition of 'proxy for a  formal petition'; amending Rule 6(a),                                                               
Alaska Adoption Rules; and providing for an effective date."                                                                    
3:05:53 PM                                                                                                                    
REPRESENTATIVE  VAZQUEZ moved  to  adopt  the proposed  committee                                                               
substitute  (CS)   for  HB  200,  labeled   29-GH1262\W,  Glover,                                                               
3/24/16, as the working draft.                                                                                                  
CHAIR SEATON objected for discussion.                                                                                           
3:06:17 PM                                                                                                                    
CHRISTY LAWTON,  Director, Central  Office, Office  of Children's                                                               
Services,  Department of  Health and  Social Services,  said that                                                               
proposed HB  200 offered "something  for everybody and has  a lot                                                               
of  positive attributes  that will  really  improve services  and                                                               
access for  child in need of  aid (CINA) matters.   She described                                                               
the  legal background  for an  adoption case,  listing a  Supreme                                                               
Court  case in  Alaska, Native  Village  of Tununak  v. State  of                                                             
Alaska,  Department  of Health  and  Social  Services, Office  of                                                             
Children's  Services, and  H.S. and  K.S., case  number 334  P.3d                                                               
165,  as well  as the  U.S. Supreme  Court case,  133 S.Ct  2552,                                                               
Adoptive Couple v.  Baby Girl, in South Carolina.   She explained                                                             
that  the U.S.  Supreme  Court  case had  been  settled prior  to                                                               
settlement of  the Alaska case,  and it  stated, in sum,  that in                                                               
order  to be  considered for  adoption of  the child,  there must                                                               
first be filed a formal petition  to adopt the child.  The Alaska                                                               
Supreme Court  had then taken its  lead from the decision  by the                                                               
U.S.  Supreme  Court.   She  relayed  that  in the  Alaska  case,                                                               
although the foster family had  filed a formal petition to adopt,                                                               
the grandmother  had not filed, even  though at that time  it was                                                               
not  a requirement  to  be  considered.   She  reported that  the                                                               
Alaska  agencies, along  with the  governor's office,  the Alaska                                                               
Federation of  Natives, and other  tribal entities  came together                                                               
to seek  a solution reconciling  the U.S. Supreme  Court decision                                                               
and the federal law recognized  since 1978 under the Indian Child                                                               
Welfare  Act  (ICWA).   She  explained  that this  law  specified                                                               
placement preferences when  children were going to  be adopted or                                                               
placed.   She added that  non-native children also  had placement                                                               
preferences  that needed  to  be followed.    Under ICWA,  native                                                               
child placement  preferences were  extended to tribal  members of                                                               
the  child or  the parent.   She  explained that,  as the  formal                                                               
application for adoption could be  a very bureaucratic process to                                                               
formally  recognize  consideration,  it   was  now  suggested  to                                                               
instead  use  a  proxy  for  adoption,  in  lieu  of  the  formal                                                               
petition.   She said that  the proxy could be  submitted "orally,                                                               
in writing, via fax,  in a meeting, in a hearing,  in a number of                                                               
different ways  where they basically  just state their  intent to                                                               
be considered  for the immediate  and permanent placement  of the                                                               
child."  She pointed out that  this would not negate the eventual                                                               
requirement to file  a formal petition to adopt, as  it was still                                                               
necessary to provide this documentation  to the court.  The proxy                                                               
would preserve and  protect the intention for  recognition by the                                                               
ICWA preferences,  and would subsequently initiate  the policy of                                                               
evaluation for  appropriateness of placement.   This report would                                                               
then  be filed  with  the  courts for  consideration  by all  the                                                               
parties.  She further explained  that the adoption hearings would                                                               
be conjoined  with the CINA case.   She stated that  the proposed                                                               
bill  provided  for  a  mechanism   to  streamline  a  number  of                                                               
different legal decisions that could  impact a child in the state                                                               
child  welfare   system.    She  pointed   out  that,  currently,                                                               
adoption, guardianship,  and civil  custody matters  all happened                                                               
in  different   courts,  often  with  different   judges  and  at                                                               
different times, which often created  redundancies and delays for                                                               
the involved parties  in the quest for permanency  for the child.                                                               
She stated that the proposed bill  would provide a one judge, one                                                               
child,  one family  model, such  that all  the hearings  would be                                                               
conjoined under a CINA hearing,  thereby allowing the judge to be                                                               
most  informed  and best  equipped  to  provide a  good  judicial                                                               
determination.   She offered  her belief  that this  would create                                                               
significant efficiencies for all  the involved parties, and would                                                               
expedite children to permanency.                                                                                                
3:13:48 PM                                                                                                                    
MS. LAWTON paraphrased  the changes from Version A  to Version W,                                                               
Detailed  Sectional  Analysis,  [included in  members'  packets],                                                               
which read:                                                                                                                     
     Section   1:      adds  to   the   legislative   intent                                                                    
     "guardianship  and civil  custody matters"  in addition                                                                    
     to adoptions.                                                                                                              
     Section  2:    adds  language to  allow  petitioners  n                                                                    
     adoption matters  to have the  matter finalized  in the                                                                    
     judicial district in  which they reside if  no party in                                                                    
     child in need-of-aid case objects.                                                                                         
     Section 3:  adds reference to AS 13.20.050(b).                                                                             
     Section  4:   adds  language  to  allow petitioners  in                                                                    
     adoption matters  to have the  matter finalized  in the                                                                    
     judicial district in  which they reside if  no party in                                                                    
     child in need-of-aid case objects.                                                                                         
     Section  5:    changed   "must"  to  "shall"  and  adds                                                                    
     reference to AS 25.23.030(d).                                                                                              
3:15:18 PM                                                                                                                    
MS. LAWTON  moved on  and stated  that there  were no  changes to                                                               
Section  6, and  paraphrased  the  changes to  Section  7 in  the                                                               
sectional analysis, which read:                                                                                                 
     Section 7:  This section  now includes that in addition                                                                    
     to guardianship  and adoption cases needed  to be heard                                                                    
     within the  child-in-need-of-aid matter, so  too, shall                                                                    
     civil  custody  matters  where there  is  action  which                                                                    
     involves   divorce   or   legal   separation   proceeds                                                                    
     regarding a child in state's custody.                                                                                      
3:15:49 PM                                                                                                                    
MS. LAWTON continued and advised there were no changes to                                                                       
Section 8, and paraphrased the changes to Section 9 in the                                                                      
sectional analysis, which read:                                                                                                 
     Section  9:   adds  reference  to  three newly  created                                                                    
     sections AS  47.10.111/112/113.  AS  47.10.111 provides                                                                    
     further clarity  about what happens when  a petition is                                                                    
     filed,  how  it will  be  held  in abeyance  until  the                                                                    
     permanent plan  is reviewed by  the court.   It further                                                                    
     establishes timeframes  the department  must meet.   It                                                                    
     further adds  clarity about party status  and who would                                                                    
     be considered a party or not.                                                                                              
     AS 47.10.112  provides the  clarity and  language about                                                                    
     the  use of  a "proxy"  and describes  how the  "proxy"                                                                    
     seeks  to preserve  the placement  preferences outlined                                                                    
     under the  Indian Child Welfare Act  for those children                                                                    
     where  the  Act  applies.    It  also  further  defines                                                                    
     extended family member within the  meaning of ICWA, and                                                                    
     that  a  biological   parent  individually  or  through                                                                    
     counsel  may  also  request  a   "proxy"  made  to  the                                                                    
     department  on behalf  of  an  extended family  member,                                                                    
     member  of the  Indian child's  Tribe, or  other Indian                                                                    
     family member.                                                                                                             
CHAIR SEATON requested clarification that Section 9 created the                                                                 
proxy system.                                                                                                                   
MS. LAWTON replied yes.                                                                                                         
3:17:18 PM                                                                                                                    
MS. LAWTON continued paraphrasing the changes from Version A to                                                                 
Version W of the proposed bill, which read:                                                                                     
     Section 10:   clarifies  that the definition  of "adult                                                                    
     family  member"  is  in  statute,  and  adds  the  ICWA                                                                    
     language for extended family member.                                                                                       
     Section 11:   clarifies  that the definition  of "adult                                                                    
     family  member"  is  in  statute,  and  adds  the  ICWA                                                                    
     language for extended family member.                                                                                       
3:17:45 PM                                                                                                                    
MS. LAWTON continued:                                                                                                           
     Section  12:   added  new  paragraphs  to more  clearly                                                                    
     define "Indian child" and "Indian child's Tribe".                                                                          
     Section 13:   adds further detail to  the definition of                                                                    
     "family  friend" that  now includes  members of  Indian                                                                    
     child's  Tribe, a  member  of the  Tribe  in which  the                                                                    
     child's  biological  parent  is  a  member  or  another                                                                    
     Indian family member.                                                                                                      
     Section 14:   adds language indicating  the petition to                                                                    
     adoption can also be brought  in the district where the                                                                    
     petitioner resides.                                                                                                        
MS. LAWTON shared there were no changes to Section 15, and moved                                                                
to Sections 16 and 17, which read:                                                                                              
     Section 16:  further  states that Alaska Adoption Rules                                                                    
     now indicate  that a proceed  shall be heard as  a part                                                                    
     of the  child-in-need of-aid matter or  in the judicial                                                                    
     district in  which the petitioner resides  if notice is                                                                    
     provided to the parties and no one objects.                                                                                
     Section  17:  adds clarity  that  the  court rules  now                                                                    
     include petitions  for adoption or  legal guardianship.                                                                    
     Also, details  about the findings  the court  must make                                                                    
     about whether  the petitioner is entitled  to placement                                                                    
     preferences  under  ICWA  or state  statute,  whichever                                                                    
     apply   as  well   as  the   compliance  of   placement                                                                    
     preferences in relation to a  proxy or if there is good                                                                    
     cause to deviate from those preferences.                                                                                   
3:19:21 PM                                                                                                                    
MS. LAWTON then directed attention to Section 18, which read:                                                                   
     Section 18:  adds  reference to new subsections related                                                                    
MS. LAWTON stated that there were no changes to Section 19, and                                                                 
continued to Sections 20 and 21, which read:                                                                                    
     Section 20:  clarifies  that regulations can be adopted                                                                    
     upon  the  signing  of  the  bill  but  all  the  other                                                                    
     provisions are  not effective until January  1, 2017 to                                                                    
     give time for implementation.                                                                                              
     Section 21:  clarifies  that regulations can be adopted                                                                    
     upon  the  signing  of  the  bill  but  all  the  other                                                                    
     provisions are  not effective until January  1, 2017 to                                                                    
     give time for implementation.                                                                                              
3:20:02 PM                                                                                                                    
REPRESENTATIVE  STUTES  asked  whether  this  proxy  was  related                                                               
solely to the Indian children.                                                                                                  
MS. LAWTON  replied that the use  of a proxy was  only applicable                                                               
if the child  was qualified under ICWA, and  then family members,                                                               
both  native  and  non-native,  could  use  the  proxy  for  that                                                               
REPRESENTATIVE  STUTES said  that her  problem with  the proposed                                                               
bill  was that,  as  there  were many  children  in foster  homes                                                               
wishing  to be  adopted, this  "excludes the  Filipino community,                                                               
this excludes  the Caucasian community,  this excludes  any other                                                               
minority."   She advised this  was problematic for her,  to focus                                                               
on "just the  Indian or the Native Alaskan group."   She shared a                                                               
conversation with Representative Gara,  in which he expressed the                                                               
possibility  of incorporating  an amendment  which would  include                                                               
children of all ethnicities.                                                                                                    
3:21:46 PM                                                                                                                    
MS.  LAWTON  reiterated that  the  provision  for the  proxy  was                                                               
specific  to  Alaska  Native  children  under  the  Indian  Child                                                               
Welfare Act, which is specific to  this group.  She reported that                                                               
all  other children  had placement  preferences for  adoption, as                                                               
well  as  temporary  placement  that  outlined  a  hierarchy  for                                                               
looking at family  relatives and family friends  prior to looking                                                               
at strangers.   She  expressed concern  for a  proposed amendment                                                               
because currently  there is a  zero fiscal note, and  any changes                                                               
would make it difficult to manage without additional resources.                                                                 
3:23:10 PM                                                                                                                    
KATIE  LYBRAND,  Assistant  Attorney  General,  Child  Protection                                                               
Section, Civil Division (Juneau),  Department of Law, in response                                                               
to Representative Stutes, clarified  that the other provisions of                                                               
the  proposed bill  related to  guardianship  and adoption  being                                                               
heard as part of the  child-in-need of aid proceedings applied to                                                               
all children  coming into state  custody.  She stated  that there                                                               
were  placement  preferences,  outlined  in  state  statute,  for                                                               
children not subject to the  Indian Child Welfare Act (ICWA), and                                                               
that the  proposed bill  did not change  these preferences.   She                                                               
explained  that the  adoptive  placement  preferences under  ICWA                                                               
were triggered  by a  formal petition to  adopt, as  supported by                                                               
the U.S. Supreme  Court.  She stated that the  proposed bill only                                                               
addressed this barrier, hence its focus on Indian children.                                                                     
REPRESENTATIVE  STUTES  relayed  that  she was  clear  that  this                                                               
"relates  to some  kids  in foster  home and  not  others."   She                                                               
stated that this  troubled her as there were so  many children in                                                               
foster care and the state  was proposing legislation that was not                                                               
treating everyone equally.  She  questioned the cost to give this                                                               
advantage to all children.                                                                                                      
3:25:49 PM                                                                                                                    
REPRESENTATIVE  VAZQUEZ   directed  attention  to   the  proposed                                                               
committee substitute, Version W, page  1, line 9, and asked about                                                               
the "additional flexibility" referenced.                                                                                        
MS. LAWTON explained that  this "additional flexibility" referred                                                               
to the  initial use  of a  proxy in lieu  of the  formal petition                                                               
during  the   identification  of   interest  for   temporary  and                                                               
permanent placement.                                                                                                            
REPRESENTATIVE  VAZQUEZ asked  if  the proxy  was  a less  formal                                                               
means of communication of the desire to adopt.                                                                                  
MS.  LAWTON  said  that  this was  the  current  mechanism  which                                                               
allowed individuals to identify themselves  to the courts and the                                                               
Office of Children's Services as  interested in the immediate and                                                               
permanent placement of children.                                                                                                
REPRESENTATIVE VAZQUEZ asked  if the proxy would  comply with the                                                               
U.S. Supreme Court decision.                                                                                                    
MS. LAWTON said that it would.                                                                                                  
REPRESENTATIVE VAZQUEZ  asked for  the copy  of the  U.S. Supreme                                                               
Court decision.                                                                                                                 
REPRESENTATIVE VAZQUEZ  referenced page  2, line 1  - line  7, of                                                               
Version W, and asked if  a "tribal customary adoption" was within                                                               
the inherent authority of the tribe.                                                                                            
MS. LAWTON  explained that there  were currently three  tribes in                                                               
Alaska  that  had  exclusive   jurisdiction  over  child  welfare                                                               
matters,   while  the   remaining  226   tribes  had   concurrent                                                               
jurisdiction  with the  State of  Alaska in  these child  welfare                                                               
matters.    This  allowed  for   assertion  of  jurisdiction  for                                                               
movement of  a case to tribal  court at any time,  with the state                                                               
no longer  involved.  She  noted that tribal  customary adoptions                                                               
could  be kept  in the  state courts  with the  tribe and  family                                                               
working  in conjunction  with the  state; however,  as the  final                                                               
adoption  was  often  implemented through  the  tribal  customary                                                               
adoption, there was  a mechanism to carry out  the adoption while                                                               
allowing  the  family  to continue  receiving  support  from  the                                                               
state.  She stated that this was more culturally appropriate.                                                                   
MS. LYBRAND,  in response to  Representative Vazquez,  added that                                                               
the main difference  was for the entire  adoption being performed                                                               
by  the  tribe, whereas  the  other  situation  was to  have  the                                                               
adoption take  place in  tribal court  although the  family would                                                               
continue to receive support and have involvement from the state.                                                                
REPRESENTATIVE  VAZQUEZ  asked  which sections  applied  to  both                                                               
native and non-native children in custody.                                                                                      
MS.  LYBRAND directed  attention to  Version W  and said  that in                                                               
Section 9  only the  added AS  47.10.112 specifically  applied to                                                               
children subject  to the Indian  Children Welfare Act;  all other                                                               
parts of Section  9 applied to all children.   She said that many                                                               
of  the sections,  including Sections  2, 3,  4, 5,  6, 7,  and 8                                                               
applied to both children subject to  ICWA and those who were not.                                                               
She noted that the specific  amendment in Section 10 only applied                                                               
to  Indian  children,  as  well   as  the  amendments  clarifying                                                               
definitions for Indian children in Sections  11, 12, and 13.  She                                                               
relayed that  Section 14, 15, 16,  17, 18, 19, and  20 applied to                                                               
all children in state custody.                                                                                                  
REPRESENTATIVE FOSTER  stated his  support of the  proposed bill,                                                               
and  although it  was not  all  inclusive, there  were many  good                                                               
things.  He stated his support for any efforts to include non-                                                                  
natives,  and  emphasized  that the  ICWA  provisions  were  very                                                               
important to his Alaska Native constituents.                                                                                    
3:35:32 PM                                                                                                                    
REPRESENTATIVE  VAZQUEZ  asked  for clarification  that,  as  the                                                               
proxy makes  it more accessible  to individuals, why it  was only                                                               
applicable to Alaska Native children.                                                                                           
MS.  LAWTON explained  that this  was specific  to Alaska  Native                                                               
children to  ensure that the  adoption placement  preferences and                                                               
provisions as outlined by ICWA  were recognized and considered by                                                               
the courts and the parties.                                                                                                     
REPRESENTATIVE  VAZQUEZ   said  she   that  she  still   did  not                                                               
MS. LYBRAND explained that the  intent of the proxy procedure was                                                               
to  preserve the  adoption placement  preferences  in ICWA  which                                                               
only applied to Indian children.   She reiterated that there were                                                               
existing  placement preferences  which  applied  to all  children                                                               
when  they  came into  state  custody.    She stressed  that  the                                                               
department  was  always striving  to  first  place children  with                                                               
family, and  those preferences already  existed in statute.   She                                                               
relayed that this was seeking  to address that specific issue for                                                               
Indian  children  in  light  of the  recent  U.S.  Supreme  Court                                                               
decision  that a  formal petition  was necessary  to trigger  the                                                               
adoptive placement  preferences.  The proposed  bill would reduce                                                               
that barrier by allowing for the proxy procedure.                                                                               
MS. LAWTON  clarified that  the court system  was working  on the                                                               
petition  form to  adopt,  in order  to make  it  easier for  all                                                               
petitioners and  remove the  need for an  attorney.   She pointed                                                               
out  that  in  all  the  scenarios, it  would  be  necessary  for                                                               
completion  of  the formal  petition  "at  some point  along  the                                                               
continuum."    She  reported  that,   for  people  interested  in                                                               
adopting  children  not covered  under  ICWA,  there could  be  a                                                               
formal petition  to adopt or  just a verbal request  for adoption                                                               
to initiate the  consideration for evaluation of  placement.  She                                                               
stated that  for the  ICWA adoption  placement preferences  to be                                                               
adhered  to,  the  proxy  could  be  submitted  in  lieu  of  the                                                               
REPRESENTATIVE STUTES asked if the  proxy would eliminate some of                                                               
the time involved during the formal petition process.                                                                           
MS. LAWTON  explained that, ultimately  before an  adoption could                                                               
be finalized, an adoption petition would have to be filed.                                                                      
REPRESENTATIVE STUTES asked  if, as the proxy  eliminated some of                                                               
the up-front time, why this was not applicable to all everyone.                                                                 
MS. LAWTON replied that this was a timing issue.                                                                                
REPRESENTATIVE  STUTES  asked  why   this  option  could  not  be                                                               
tailored to offer to all children.                                                                                              
CHAIR  SEATON  offered  his  understanding  that,  as  the  proxy                                                               
allowed for  the ICWA priorities to  be in place, it  was offered                                                               
to  tribal members.   The  proxy  allowed for  the preference  of                                                               
tribal members.  He mused about a  way to add another proxy for a                                                               
new set  of preferences other  than those preferences  used every                                                               
time  a child  was brought  into custody.   He  pointed out  that                                                               
there was  not a tribal  membership preference defined  for other                                                               
MS.  LAWTON  expressed  her  agreement   that  this  was  a  good                                                               
REPRESENTATIVE  STUTES  reiterated  her  interpretation  for  the                                                               
MS.  LAWTON,  in response  to  Representative  Stutes, said  that                                                               
there may  have been some  miscommunication.  She  explained that                                                               
the proxy  was a timing issue,  it did not change  the efficiency                                                               
or speed  for the case,  but simply  provided the court  a formal                                                               
means  to  give recognition  to  the  federal law  for  placement                                                               
provisions offered  to Indian children which  were different than                                                               
all other  children for  the reasons outlined  in the  act [ICWA]                                                               
when it was created in 1978.   She noted that these reasons still                                                               
existed.   She stated that  this preserved that decision  for the                                                               
record  when  discussion arose  for  permanent  placement of  the                                                               
REPRESENTATIVE STUTES  questioned whether the proxy  had anything                                                               
to do with timing.                                                                                                              
MS.  LAWTON replied  that  she did  not  understand the  question                                                               
about timing.   She reiterated  that, in  order for the  court to                                                               
recognize  that there  were  placement  preferences for  children                                                               
covered by the ICWA, it was  not necessary to file a petition "to                                                               
call that out."                                                                                                                 
REPRESENTATIVE STUTES said that it did not make sense to her.                                                                   
3:48:14 PM                                                                                                                    
REPRESENTATIVE TARR asked to clarify  that, as tribal governments                                                               
had sovereignty,  a relationship that the  federal government did                                                               
not  have  with other  ethnic  groups,  this made  the  placement                                                               
preferences unique.                                                                                                             
MS. LAWTON replied "yes."                                                                                                       
REPRESENTATIVE TARR  asked if,  as the  standard practice  was to                                                               
first place a child with a  family member, then all children were                                                               
being treated  in the same way  in order to respect  cultural and                                                               
ethnic  background.    She relayed  that  the  standard  practice                                                               
ensured that initial efforts were made to "match that up."                                                                      
MS. LAWTON replied that other  federal laws map out the responses                                                               
and standard practice of child welfare for any ethnicity.                                                                       
REPRESENTATIVE TARR pointed out  that the tribal relationship did                                                               
not exist with other cultural groups.                                                                                           
MS.  LAWTON  expressed  her  agreement that  this  was  a  unique                                                               
situation, as the  significant difference with ICWA  was not race                                                               
based, but was based on a  political status as Alaska Natives had                                                               
an  inherent right  to govern  and have  jurisdiction over  their                                                               
families, a  government to government relationship.   She pointed                                                               
out that no other ethnicity benefited from such a relationship.                                                                 
REPRESENTATIVE STUTES  asked if  she could file  a proxy  to stop                                                               
the adoption  process in order  for the courts to  recognize that                                                               
she was a relative and that she wanted custody of the child.                                                                    
MS.  LAWTON replied  that,  unless the  child  was covered  under                                                               
ICWA,  she could  not file  a proxy,  but that  she could  file a                                                               
petition in  court or contact  the Office of  Children's Services                                                               
(OCS) and  state her interest.   At that point, OCS  would notify                                                               
the parties that there was  an interested relative and would work                                                               
with her to establish placement.                                                                                                
REPRESENTATIVE STUTES  interrupted Ms. Lawton and  said, "So, the                                                               
short answer is no."                                                                                                            
MS. LAWTON continued  and stated that OCS  would collaborate with                                                               
her, regardless.                                                                                                                
REPRESENTATIVE STUTES reiterated, "So, the short answer is no."                                                                 
MS. LAWTON stated that the proxy  would not apply if this was not                                                               
an Indian child.                                                                                                                
REPRESENTATIVE STUTES said, "Yes, the answer is no."                                                                            
MS. LAWTON replied,  "[The answer to] your  original question, if                                                               
that  would apply  to --  assuming  you weren't  talking about  a                                                               
child covered under the Indian Child Welfare Act, yes, is no."                                                                  
3:53:11 PM                                                                                                                    
CHAIR  SEATON  directed  attention   to  the  proposed  committee                                                               
substitute, Version W, page 1, line  9, and read:  "an individual                                                               
seeking  immediate  permanent placement  of  an  Indian child  in                                                               
state custody  with additional flexibility to  preserve and apply                                                               
the placement  preferences outlined  in the Indian  Child Welfare                                                               
Act  with   respect  to   that  individual."     He   stated  his                                                               
understanding that  an individual with one  of these preferences,                                                               
under  federal law  that was  different  than state  preferences,                                                               
including  tribal membership,  who wanted  to seek  immediate and                                                               
permanent placement would use this  to notify the court that they                                                               
wanted to apply these placement preferences as outlined in ICWA.                                                                
MS. LAWTON replied  that the proposed bill would  provide for the                                                               
recognition of those preferences by the courts.                                                                                 
CHAIR SEATON asked whether, before a  court could act on these in                                                               
a final adoption,  it was necessary for  the standard application                                                               
to be filed.                                                                                                                    
MS. LAWTON replied that the  court would be overseeing the people                                                               
wanting  the child  for adoption,  assisting in  determination of                                                               
the  best  placement for  the  child,  and providing  its  input,                                                               
before an adoption was finalized.   She relayed that it might not                                                               
necessarily be the person who had filed the proxy.                                                                              
3:55:26 PM                                                                                                                    
REPRESENTATIVE TALERICO asked  if a proxy could be  filed on your                                                               
own behalf.                                                                                                                     
MS. LAWTON explained  that the proxy could be filed  on behalf of                                                               
a family member or other tribal  member through the tribe, or the                                                               
parent could identify someone through the parent's council.                                                                     
REPRESENTATIVE  TALERICO  offered  that, although  the  customary                                                               
definition  of proxy  was to  take  action on  behalf of  someone                                                               
else, someone was allowed to submit a proxy on their own behalf.                                                                
MS. LAWTON expressed her agreement.                                                                                             
CHAIR SEATON clarified  that it would only be  inclusive of those                                                               
outlined on  the preference  established in  ICWA, and  would not                                                               
include anyone outside this system.                                                                                             
MS.  LAWTON   expressed  her  agreement   and  stated   that  the                                                               
preferences  for a  relative to  an Indian  child often  included                                                               
relatives who were non-Native, and they would be included.                                                                      
3:57:23 PM                                                                                                                    
REPRESENTATIVE TARR  reflected on why  the tool of a  proxy could                                                               
not be used in other adoption  cases.  She listed the process for                                                               
any  adoption, which  included the  immediate  search for  family                                                               
members for possible  placement early in the process.   She mused                                                               
that, by  final adoption, the  proxy was  not as important.   She                                                               
asked if this was a fair  comparison, and if it was necessary for                                                               
a proxy in these other cases.                                                                                                   
MS. LAWTON expressed  agreement that the law  mapped out specific                                                               
timeframes, such that  once a child came into  custody, there had                                                               
to have been  an exhaustive relative search,  then relatives were                                                               
noticed  for their  right to  be considered  for placement.   She                                                               
pointed out  that this was an  on-going process.  She  said that,                                                               
in all  adoption proceedings, relatives denied  for placement had                                                               
an opportunity  to have the  decision reviewed.  She  offered her                                                               
belief that  the use of a  proxy allowed for many  family members                                                               
to be notified  and the placement preferences [under  ICWA] to be                                                               
considered.    She  pointed  out  that,  although  they  may  not                                                               
dictate,  the  placement preferences  had  to  be recognized  and                                                               
considered by the court in acknowledgement of the federal law.                                                                  
[HB 200 was held over.]                                                                                                         
         HB 334-CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE                                                                     
4:01:48 PM                                                                                                                    
CHAIR SEATON announced that the  final order of business would be                                                               
HOUSE  BILL NO.  334, "An  Act relating  to visitation  and child                                                               
4:02:14 PM                                                                                                                    
CRYSTAL  KOENEMAN,  Staff,  Representative  Cathy  Munoz,  Alaska                                                               
State  Legislature,  reminded  the  committee  that  HB  334  was                                                               
introduced  to  give  judges   discretion  in  determining  child                                                               
custody  schedules, in  the  best  interest of  the  child.   She                                                               
shared  that  during the  numerous  discussions  with judges  and                                                               
attorneys regarding  the statutes  surrounding the  child custody                                                               
schedules,  there  had been  a  request  for discretion,  as  the                                                               
rebuttable presumption  could result in  unintended consequences.                                                               
She  acknowledged  that this  was  an  emotional issue,  and  she                                                               
expressed a  desire to  protect the  children while  not damaging                                                               
the  bonds between  parents  and children.    She mentioned  that                                                               
nothing   in   the  proposed   bill   prevented   a  judge   from                                                               
consideration  of any  evidence of  domestic violence  or sending                                                               
someone  to a  batterer's  intervention program  or to  substance                                                               
abuse counseling.                                                                                                               
4:05:07 PM                                                                                                                    
MS. KOENEMAN paraphrased from the  sectional summary [included in                                                               
members' packet], which read:                                                                                                   
     Section 1.  Changes the phrase  "has committed  a crime                                                                    
     involving domestic violence" to  "has been convicted of                                                                    
     a crime  involving domestic  violence" for  purposes of                                                                    
     the  court's authority  to set  certain conditions  for                                                                    
     visitation in proceedings involving domestic violence.                                                                     
     Section   2.  Changes   the   phrase   "a  history   of                                                                    
     perpetrating domestic violence"  to "has been convicted                                                                    
     of a  crime involving  domestic violence"  for purposes                                                                    
     of  the  rebuttable  presumption against  delegating  a                                                                    
     deployed parent's  visitation rights to  certain family                                                                    
     members in a custody or visitation proceeding.                                                                             
4:05:50 PM                                                                                                                    
MS. KOENEMAN  moved on to  Section 3,  Section 4, and  Section 5,                                                               
which read:                                                                                                                     
     Section   3.  Changes   the   phrase   "a  history   of                                                                    
     perpetrating domestic violence"  to "has been convicted                                                                    
     of a  crime involving  domestic violence"  for purposes                                                                    
     of  the  rebuttable  presumption against  delegating  a                                                                    
     deployed parent's  visitation rights to  certain family                                                                    
     members in  a proceeding for modification  of a custody                                                                    
     or visitation order.                                                                                                       
     Section  4. Changes  the phrase  "if  one parent  shows                                                                    
     that  the  other  parent   has  sexually  assaulted  or                                                                    
     engaged  in domestic  violence" to  "if one  parent has                                                                    
     been convicted  of a crime involving  sexual assault or                                                                    
     domestic  violence"  relating  to the  factors  that  a                                                                    
     court may  consider in  determining the  best interests                                                                    
     of  the  child for  custody.  Adds  evidence of  sexual                                                                    
     abuse in  the proposed custodial household  to the list                                                                    
     of  factors   a  court  may  consider   in  determining                                                                    
     Section   5.  Changes   the   phrase   "a  history   of                                                                    
     perpetrating domestic violence"  to "has been convicted                                                                    
     of a  crime involving domestic violence"  relating to a                                                                    
     rebuttable presumption in custody judgments.                                                                               
4:06:43 PM                                                                                                                    
MS. KOENEMAN discussed Section 6, Section 7, and Section 8,                                                                     
which read:                                                                                                                     
     Section  6. Deletes  the  reference  to the  rebuttable                                                                    
     presumption against  granting custody  to a  parent who                                                                    
     has a history of perpetrating domestic violence.                                                                           
     Section   7.  Changes   the   phrase   "a  history   of                                                                    
     perpetrating domestic violence"  to "has been convicted                                                                    
     of a  crime involving  domestic violence"  for purposes                                                                    
     of  custody determinations  in  cases  where the  court                                                                    
     finds that both parents have  been convicted of a crime                                                                    
     involving domestic violence.                                                                                               
     Section   8.  Changes   the   phrase   "a  history   of                                                                    
     perpetrating domestic violence"  to "has been convicted                                                                    
     of a  crime involving  domestic violence"  for purposes                                                                    
     of  the  conditions a  court  may  set before  allowing                                                                    
     supervised visitation.                                                                                                     
4:07:44 PM                                                                                                                    
MS. KOENEMAN concluded with Section 9, which read:                                                                              
     Section  9. Limits  the  applicability  of the  changes                                                                    
     made  by  the bill  to  visitation  and custody  orders                                                                    
     issued on or after the bill's effective date.                                                                              
4:08:04 PM                                                                                                                    
CHAIR SEATON asked Ms. Koeneman to discuss rebuttable                                                                           
presumption and review its interpretation and function.                                                                         
MS.  KOENEMAN explained  that currently,  if there  had been  one                                                               
serious incident of  domestic violence or more  than one instance                                                               
of domestic violence, then the  rebuttable presumption would take                                                               
place.   In  determining the  history of  domestic violence,  the                                                               
judges used  a preponderance of  evidence.  She relayed  that the                                                               
application  could  include  a   domestic  violence  order  or  a                                                               
restraining  order that  had been  put in  place.   She indicated                                                               
that  [even one]  incidental contact  violation of  a restraining                                                               
order  would invoke  the rebuttable  presumption.   She  declared                                                               
that this  would result  in the  loss of sole  or joint  legal or                                                               
physical  custody  of  the  child,  and there  could  be  only  a                                                               
supervised visitation.   She explained  that a judge  could order                                                               
attendance  at  a  batterer's intervention  program,  although  a                                                               
prerequisite was  the admission of  guilt.  She pointed  out that                                                               
not admitting guilt,  even when a person truly felt  they had not                                                               
done  anything wrong,  would prevent  entry  into the  batterer's                                                               
intervention program.                                                                                                           
CHAIR SEATON asked for clarity to the rebuttable presumption.                                                                   
MS. KOENEMAN explained that with  a rebuttable presumption, after                                                               
completion of the batterer's program,  the person could return to                                                               
the judge and ask for a change in the custody schedule.                                                                         
4:12:05 PM                                                                                                                    
CHAIR SEATON opened public testimony on HB 334.                                                                                 
4:12:41 PM                                                                                                                    
PAUL GRANT, Attorney, shared his  background in family law and as                                                               
a volunteer with  Alaska Network on Domestic  Violence and Sexual                                                               
Assault (ANDVSA),  although, as  a legal practitioner,  he stated                                                               
his  strong  support  of  the  proposed  bill.    He  stated  his                                                               
philosophical  objection  to  presumptions  in  general,  and  he                                                               
opined  that   presumption  meant  an  essential   conviction  of                                                               
wrongdoing without any showing particular to the person.                                                                        
MR.  GRANT paraphrased  from his  written testimony  [included in                                                               
members' packets],  which read  as follows  [original punctuation                                                               
     I  write in  strong support  of  HB 334.  As a  private                                                                    
     practice  lawyer with  extensive experience  in custody                                                                    
     litigation,  it  has  been   my  observation  that  the                                                                    
     domestic  violence provisions  of AS  25.24.150 (g)  et                                                                    
     seq.  are often  used not  for their  intended purpose,                                                                    
     the  protection of  children from  harm, but  rather to                                                                    
     gain a  tactical advantage in custody  disputes. It has                                                                    
     been my  further observation that "the  presumption" is                                                                    
     very often  applied in  cases in  which there  has been                                                                    
     absolutely no  documented harm to  the child,  but only                                                                    
     situational or  technical violations of the  law having                                                                    
     no possible bearing on the  safety or best interests of                                                                    
     the child.  As an example,  let me cite  a hypothetical                                                                    
     case - but  one that is very similar to  cases in which                                                                    
     I have  been involved.  The father, during  an argument                                                                    
     with  mother, slammed  a door,  causing  damage to  the                                                                    
     door frame. The father was  never charged with a crime.                                                                    
     Their child was  in the house but there  is no evidence                                                                    
     the child actually witnessed the  incident (he may have                                                                    
     heard  the argument).  The mother  obtained a  domestic                                                                    
     violence  restraining  order,  claiming that  the  door                                                                    
     slam was  an assault, and  1 also that the  door damage                                                                    
     was malicious destruction of  property (both "crimes of                                                                    
     domestic   violence"   within   the   meaning   of   AS                                                                    
     24.25.150).  Subsequently,   the  father  inadvertently                                                                    
     violated the  protective order  by attempting  to speak                                                                    
     with the mother when he  encountered her in the grocery                                                                    
     store.  Since  no conviction  of  a  crime is  required                                                                    
     under the  statute, the  father was  now guilty  of two                                                                    
     incidents  of domestic  violence,  and  in the  ensuing                                                                    
     custody case, the court had  no option but to apply the                                                                    
     presumption  of  domestic   violence.  The  father  was                                                                    
     reduced  to minimal  supervised  visits  with his  son.                                                                    
     Unfortunately,  the  only   visitation  supervisors  he                                                                    
     could  find  charged  $75   per  hour  for  supervision                                                                    
     services. Because he was paying  full child support, he                                                                    
     simply   could  not   afford  to   see  his   son,  and                                                                    
     consequently   that  relationship   has  been   largely                                                                    
     destroyed. What  is remarkable  about this  very common                                                                    
     scenario is  that there was absolutely  no demonstrated                                                                    
     harm to  the child caused  by the supposed two  acts of                                                                    
     domestic  violence.  There  was  no  physical  violence                                                                    
     directed  at any  person involved.  There was  no nexus                                                                    
     between the acts  of the father and  the best interests                                                                    
     of the child.  Yet, on this flimsy  showing, the strong                                                                    
     relationship between  the father  and his son  has been                                                                    
     functionally  destroyed.  The   provisions  of  HB  334                                                                    
     requiring  actual  conviction  of  crimes  of  domestic                                                                    
     violence, rather than  just "preponderance of evidence"                                                                    
     allegations, will go a long  way toward remedying these                                                                    
     abuses.  Another admirable feature  of the bill is that                                                                    
     it   confines  consideration   of   convictions  to   a                                                                    
     reasonable 5  year period under AS  25.20.061. However,                                                                    
     I would suggest  that the 5 year limitation  set out in                                                                    
     AS  25.20.061 be  included also  in AS  25.24.150. This                                                                    
     would  clarify   the  legislature's  intent   to  limit                                                                    
     consideration  of domestic  violence  allegations to  a                                                                    
     reasonable  time period.  As  interpreted currently  by                                                                    
     the Supreme Court, because there  is no time limitation                                                                    
     imposed under AS 25.24.150, the  courts are required to                                                                    
     consider  allegations of  domestic  violence that  have                                                                    
     not been actively litigated, no  matter how old, and no                                                                    
     matter if  the parties  settled their  custody dispute.                                                                    
     Here is an  example that shows the  unjust results that                                                                    
     can flow  from this  rule. I  recently completed  a six                                                                    
     day  trial  in a  custody  modification  case that  was                                                                    
     largely based on allegations  of domestic violence that                                                                    
     were 8 to  10 years old. The parties  had settled their                                                                    
     case  without litigating  the DV  allegations in  2009.                                                                    
     The mother now  sought to have the court  impose the DV                                                                    
     presumption   even  though   the  parties   had  shared                                                                    
     physical and  legal custody  since their  separation in                                                                    
     2008. As you can  imagine, the difficulty of disproving                                                                    
     allegations  that  are  ten years  old  is  tremendous.                                                                    
     Fortunately  the mother  was found  not to  be credible                                                                    
     and the  motion was denied; however,  the parties spent                                                                    
     six days of  the court's valuable time  getting to that                                                                    
     result.  Had there  been a  statute  of limitations  on                                                                    
     allegations which  might trigger the presumption  in AS                                                                    
     25.24.150, the  case would never  have been  brought. A                                                                    
     final  thought on  the bill  is this,  and I  recognize                                                                    
     that it may  be controversial. It seems to  me that the                                                                    
     current legislation  conflates protection of  the child                                                                    
     with protection of the former  spouse. In theory, there                                                                    
     is no  reason that the former  spouse needs protection;                                                                    
     to  the  extent  that  it  is  used  that  way  without                                                                    
     considering the negative impact  on the relationship of                                                                    
     the child  to the alleged perpetrator,  it can actually                                                                    
     do harm  to the child.  I believe that there  should be                                                                    
     some  consideration  given  to narrowing  the  list  of                                                                    
     triggering  crimes  of  domestic violence  to  ones  in                                                                    
     which  the   petitioner/plaintiff  can   demonstrate  a                                                                    
     direct impact on the well-being  of the actual children                                                                    
     involved  (rather than  a  hypothetical or  theoretical                                                                    
     impact  on children  in general,  or an  impact on  the                                                                    
     other parent). I would like  to see the bill amended to                                                                    
     require  both  conviction  and   a  showing  that  harm                                                                    
     occurred or  is likely to  occur to the  child involved                                                                    
     in the actual  case before the court.  With these minor                                                                    
     qualifications,  I  heartily applaud  the  legislation.                                                                    
     This is  a set  of statutes that  has been  misused for                                                                    
     far  too long.  Many  parental relationships  (usually,                                                                    
     though not  always of fathers  to their  children) have                                                                    
     been  destroyed based  on  completely hypothetical  and                                                                    
     theoretical  harms  that simply  do  not  exist in  the                                                                    
     particular case  before the  court. HB  334 is  a great                                                                    
     step toward remedying the situation.                                                                                       
MR. GRANT offered his belief that the proposed bill was a very                                                                  
good start at resolution for some of the problems.                                                                              
4:20:52 PM                                                                                                                    
FRED TRIEM, Attorney, paraphrased from a prepared document,                                                                     
[included in members' packets], which read as follows [original                                                                 
punctuation provided]:                                                                                                          
     Six  arguments in  support of  the original  bill first                                                                    
     presented before CS:                                                                                                       
     #1 Original HB 334  eliminates a vague, ambiguous, ill-                                                                    
     defined  term:  "a  history  of  perpetrating"  with  a                                                                    
     precise term: "convicted".                                                                                                 
     #2 Vague law provokes  disagreement - inspires, invites                                                                    
     #3  H&SS Comm  Substitute  is  step backwards  replaces                                                                    
     precise  with  vague  "clear and  convincing  evidence"                                                                    
     which is not a precise legal term.                                                                                         
     #4   Original   HB   334   will   streamline   judicial                                                                    
     proceedings  by  omitting  collateral  trials  on  side                                                                    
     issues  (a)  "committed a  crime";  (b)  "a history  of                                                                    
     perpetrating  DV";  "a  history of  perpetrating";  (c)                                                                    
     "shows that the other  parent has sexually assaulted or                                                                    
     engaged  in  domestic  violence"; [presumption  of]  "a                                                                    
     history  of  perpetrating";  multiple:  "a  history  of                                                                    
     perpetrating" (8 times) ….                                                                                                 
     #5  Protects  the  parties  by  assuring  that  (a)  DV                                                                    
     accusation  has been  brought in  a timely  fashion (b)                                                                    
     with fair  advance notice to  the accused, and  (c) has                                                                    
     been adjudicated by a judge and jury.                                                                                      
     #6  Will conserve  judicial  resource: reduce  judicial                                                                    
     burdens, save  court time,  attorney efforts  (public &                                                                    
     private attorneys),  will save court system  money $ by                                                                    
     lowering  number of  disputes  and  reducing extent  of                                                                    
     Summary:  HB 334  replaces  vague,  ambiguous law  with                                                                    
     accurate, precise law.                                                                                                     
     Beauty  of the  Original Bill:  will reduce  litigation                                                                    
     and judicial  work, save Alaska  Court System  time and                                                                    
     money, discourage wasteful legal disputes.                                                                                 
4:27:09 PM                                                                                                                    
BRENDA STANFILL,  Interior Alaska  Center for  Non-Violent Living                                                               
(IAC),  paraphrased  from  a   prepared  statement  [included  in                                                               
members' packets],  which read  as follows  [original punctuation                                                               
     I am following  up on a phone call that  I made to your                                                                    
     office  yesterday.  I know  things  are  very busy  and                                                                    
     wanted to  make sure  I connected  with your  office to                                                                    
     state my  strong concerns with HB334  passed from House                                                                    
     Health and  Social Services. In  the original  bill the                                                                    
     language  for when  the rebuttable  presumption to  the                                                                    
     issue of domestic violence and  custody would be raised                                                                    
     was  changed  to  require   a  conviction  of  domestic                                                                    
     violence instead of  a "history defined as  two or more                                                                    
     incidences  or  one  serious injury  event"  There  was                                                                    
     strong opposition  to this change in  language as often                                                                    
     times  these  cases are  not  pursued  by the  district                                                                    
     attorney, some  areas have no law  enforcement to call,                                                                    
     untrained law  enforcement arrest  the victim  when not                                                                    
     recognizing  the  difference between  self-defense  and                                                                    
     primary  aggressor,  and  that  someone  could  have  a                                                                    
     conviction due  to a  very bad time  in their  life but                                                                    
     not truly be an individual  who uses abusive tactics to                                                                    
     control their  family. In response to  the concerns the                                                                    
     bill  sponsor  rewrote  the   bill,  however,  now  the                                                                    
     proposal is  to require  clear and  convincing evidence                                                                    
     of the  domestic violence instead of  the preponderance                                                                    
     of the  evidence that is  normally required  in custody                                                                    
     consideration, replacing how  history was determined as                                                                    
     two  instances to  just be  history  determined at  the                                                                    
     discretion of the courts, or  a conviction for domestic                                                                    
     violence.  In  addition,   it  removes  the  rebuttable                                                                    
     presumption  and  treats   domestic  violence  as  just                                                                    
     another issue  considered in custody. Having  worked on                                                                    
     the  Criminal Justice  Commission this  year I  realize                                                                    
     there are  two sides  to each  issue coming  before you                                                                    
     and that you must weigh out  what is best for our state                                                                    
     in the larger scheme of  things and not just based upon                                                                    
     one  or  two  cases. Currently  the  information  being                                                                    
     presented on  why this  bill is  needed is  based those                                                                    
     one  or two  cases  where  it didn't  appear  to go  as                                                                    
     planned.  I  have heard  a  few  Dad's feel  they  were                                                                    
     unjustly  impacted  by  this presumption  when  it  was                                                                    
     applied  to them  and a  few attorneys  that appear  to                                                                    
     have  lost custody  cases and  feel  that the  domestic                                                                    
     violence that had occurred in  the case should not have                                                                    
     been considered as hard as  it was. As we know domestic                                                                    
     violence  is  learned  in  the  home  and  the  largest                                                                    
     predictor  of  a future  batterer  is  what he  or  she                                                                    
     observed in  the home environment.  Knowing this  it is                                                                    
     imperative that we have a  process in place to identify                                                                    
     when  this  behavior  is  happening   and  once  it  is                                                                    
     recognized that  we limit the child's  exposure to this                                                                    
     until  the  abusive  individual  get  helps  for  their                                                                    
     issue. The current  "rebuttable presumption" provides a                                                                    
     hearing for the  mother and father to  present the case                                                                    
     and  the  judge makes  a  determination  on whether  it                                                                    
     applies. If it does apply,  the individual found as the                                                                    
     abuser's  time is  limited  and  supervised until  they                                                                    
     complete the programs  set out by the  judge where they                                                                    
     can  learn  skills  that  allow them  to  be  a  parent                                                                    
     modeling healthy  relationships instead of  "growing" a                                                                    
     new batterer.  As you  have heard me  talk about  in my                                                                    
     testimony through the  Criminal Justice Commission work                                                                    
     and HB205, we  have grown the offenders who  are now in                                                                    
     jail through  the social  issues they  are experiencing                                                                    
     as  children  and  we  have   not  intervened  in.  The                                                                    
     presumption language  passed in 2004 has  saved victims                                                                    
     lives and  has provided an opportunity  for children to                                                                    
     interact  with  an  abusive parent  in  a  healthy  way                                                                    
     through  monitoring and  supervision until  that parent                                                                    
     gets the assistance they need  to be able to model that                                                                    
     healthy  behavior  without  supervision. I  have  truly                                                                    
     thought  through  whether  there  is a  fix  needed.  I                                                                    
     talked to judges, victims,  lawyers, and advocates. The                                                                    
     statute as  currently written works  and does  not need                                                                    
     fixing.  I  urge  you  to  leave  the  current  statute                                                                    
     regarding  the  rebuttable   presumption  as  currently                                                                    
     written and to hold this bill.                                                                                             
4:31:53 PM                                                                                                                    
SAMANTHA WEINSTEIN,  Attorney, said the majority  of her caseload                                                               
is in Family  Law, but she also works with  the Alaska Network on                                                               
Domestic Violence  and Sexual Assault  (ANDVSA).  She  added that                                                               
she offered pro  bono legal service to the Aiding  Women in Abuse                                                               
and Rape Emergencies  (AWARE Inc.) shelter.  She  stated that she                                                               
had  a  greater   concern  for  men  in   the  domestic  violence                                                               
proceedings as the current laws  allowed that a father would lose                                                               
the  moment  any allegations  were  stated,  as neither  ex-parte                                                               
orders nor  violations of these  orders required any proof  of an                                                               
act of  violence.   She declared that  these fathers  were guilty                                                               
until  proven innocent,  and even  while working  to prove  their                                                               
innocence, they  lost time with  their children.  She  listed the                                                               
fears  facing  many   of  these  fathers  as  a   result  of  the                                                               
accusations.  She declared that the  law was "in place to protect                                                               
all  citizens and  sometimes there  are oversights  in the  way a                                                               
particular  law is  written.   These oversights  can be  remedied                                                               
without  losing protections  for our  most vulnerable  citizens."                                                               
She emphasized that  this was a request for  protection "for both                                                               
categories,"  stating  that the  proposed  bill  did not  try  to                                                               
protect   batterers,  abusers,   and  perpetrators   of  domestic                                                               
violence, and it  did not force children to stay  with an abusive                                                               
parent.  She  declared a desire for those with  an actual history                                                               
of  domestic violence,  who  had been  tried  and convicted  with                                                               
evidence brought against  them, to be held  accountable for their                                                               
actions and thereby protect children  from these situations.  She                                                               
relayed  that  the  American  justice  system  prided  itself  on                                                               
"innocent until proven guilty," and  that the laws should reflect                                                               
this under all circumstances.   She stated that allowing a parent                                                               
to obtain custody  on unfounded claims was "in  opposition to the                                                               
mission of our justice system and we need to change that."                                                                      
4:39:11 PM                                                                                                                    
JANE  ANDREEN shared  that  she  had spent  16  years working  in                                                               
domestic  violence  and  sexual   assault,  recently  working  on                                                               
prevention  and  health promotion  in  the  public health  arena,                                                               
which included  violence prevention, domestic dating,  and sexual                                                               
violence.  She expressed her  surprise at such a significant step                                                               
backwards  for  protecting  victims   and  children  of  domestic                                                               
violence by  the proposed  bill.  She  directed attention  to the                                                               
Domestic Violence  Act of  1996, which had  set up  a coordinated                                                               
response,  and included  a look  at  the history  of violence  in                                                               
determining custody cases.   She shared her  recent experience of                                                               
attendance at  the Alaska  Public Health  Summit, listening  to a                                                               
presentation  for a  community coordinated  response to  domestic                                                               
violence, with accountability and services  to address this.  She                                                               
expressed  concern  for  the perpetuation  of  adverse  childhood                                                               
experiences  (ACEs)  and  the impact  of  children  being  raised                                                               
around violence.   She encouraged  the committee to not  pass the                                                               
proposed bill.                                                                                                                  
4:42:18 PM                                                                                                                    
REPRESENTATIVE TARR questioned whether  there was a middle ground                                                               
option, if  there were circumstances  that the system  was abused                                                               
and  resulted in  unintended  consequences.   She  shared that  a                                                               
suggestion from  Legislative Legal and Research  Services was for                                                               
application  of the  "clear  and  convincing evidence  standard."                                                               
She  asked  if  that  would  be beneficial  and  "the  next  step                                                               
MS. ANDREEN replied  that she would need to look  more closely at                                                               
the legal definition, as it appeared  to be more in the direction                                                               
to  which they  intended to  move.   She stated  that basing  the                                                               
proposed bill  on a conviction  would eliminate about  90 percent                                                               
of the  domestic violence cases,  as a vast majority  of domestic                                                               
violence was not  reported, with the remainder  of reported cases                                                               
having a less than likely chance of prosecution and conviction.                                                                 
CHAIR  SEATON asked  about the  definition of  domestic violence,                                                               
which could include raised voices.   He opined that this could be                                                               
problematic  when  it  carried  with it  the  potential  to  lose                                                               
custody of a child.  He  asked whether the definition of domestic                                                               
violence should be modified for child custody cases.                                                                            
MS.  ANDREEN reported  that she  had  never seen  a raised  voice                                                               
being  defined as  domestic violence.    She expressed  agreement                                                               
that  the  legal  definition  for  domestic  violence  should  be                                                               
reviewed if this  was the case.  She added  that it was necessary                                                               
to do a better job  with training judges about domestic violence.                                                               
She  said  that  a  raised  voice used  when  there  had  been  a                                                               
consistent  history  of  domestic   violence  was  a  controlling                                                               
behavior.   She opined  that the common  sense approach  had been                                                               
4:45:58 PM                                                                                                                    
REPRESENTATIVE  TARR  directed  attention  to Section  5  of  the                                                               
proposed bill,  which referenced the rebuttable  presumption that                                                               
a  parent  had  been  convicted of  a  crime  involving  domestic                                                               
CHAIR  SEATON said  that the  committee was  struggling with  the                                                               
issue  and would  appreciate any  recommendations to  ensure that                                                               
justice  was  well  served  and  that  kids,  adults,  and  their                                                               
relationships were protected.                                                                                                   
4:47:38 PM                                                                                                                    
The committee took an at-ease from 4:47 p.m. to 4:50 p.m.                                                                       
4:50:06 PM                                                                                                                    
CHAIR SEATON brought the committee back to order.                                                                               
4:50:22 PM                                                                                                                    
CHAIR  SEATON   noted  technical   difficulties  and   asked  the                                                               
remaining  two witnesses  to forward  written testimony  to Chair                                                               
Seaton's  office.   He closed  public  testimony on  HB 334,  and                                                               
advised that  if the committee  so desires in the  future, public                                                               
testimony could be reopened.                                                                                                    
4:51:05 PM                                                                                                                    
REPRESENTATIVE CATHY  MUNOZ, Alaska  State Legislature,  as prime                                                               
sponsor  of HB  334, shared  an anecdote  for the  loss of  child                                                               
custody by a friend.  She  declared that she had felt obliged "to                                                               
act  and  compelled to  work  toward  a  system that  honors  due                                                               
process and  that provides both  parties in a custody  dispute to                                                               
have a fair hearing before the  court."  She expressed her belief                                                               
that  this was  not  the case  currently, and  that  the law  was                                                               
CHAIR  SEATON mused  that  there had  been  many suggestions  for                                                               
changes to  the proposed bill  and that the committee  was trying                                                               
to   find  a   middle   ground,  including   the  suggestion   by                                                               
Representative Tarr  that there  should be "clear  and convincing                                                               
evidence" as  opposed to  "conviction."   He surmised  that there                                                               
was  consideration  for changes  to  the  definition of  domestic                                                               
violence in child custody cases.                                                                                                
REPRESENTATIVE STUTES  stated her  support of the  proposed bill,                                                               
and  she offered  an anecdote  regarding her  son.   She declared                                                               
that  "it's just  a cryin'  shame" to  allow these  situations to                                                               
destroy families.                                                                                                               
REPRESENTATIVE MUNOZ expressed agreement  that the definition for                                                               
domestic  violence was  quite broad,  as it  could include  an ex                                                               
parte  order, a  violation of  the order,  a misdemeanor  assault                                                               
threat of violence, or property damage.                                                                                         
4:56:57 PM                                                                                                                    
REPRESENTATIVE VAZQUEZ, speaking as  a co-sponsor of the proposed                                                               
bill, offered her  personal observations that the  process can be                                                               
manipulated  during the  custody  proceedings.   She suggested  a                                                               
review of  the definitions  and rebuttable  presumptions, stating                                                               
that it assumed  guilt which then necessitated  evidence to rebut                                                               
the  presumption.   She suggested  the need  for a  timeframe, as                                                               
CHAIR  SEATON suggested  a need  for  amendments, declaring  that                                                               
this was  a very emotional  issue.   He opined that  the proposed                                                               
bill needed  to be narrowed  or modified  to make it  through the                                                               
5:00:59 PM                                                                                                                    
REPRESENTATIVE  VAZQUEZ reflected  that  it  was impressive  that                                                               
four attorneys who specialized in  family issues had all declared                                                               
there was an issue with the current statute.                                                                                    
[HB 334 was held over.]                                                                                                         
5:01:34 PM                                                                                                                    
There being no  further business before the  committee, the House                                                               
Health  and  Social  Services   Standing  Committee  meeting  was                                                               
adjourned at 5:01 p.m.                                                                                                          

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