Legislature(2015 - 2016)CAPITOL 106
03/29/2016 03:00 PM House HEALTH & SOCIAL SERVICES
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| HB200 | |
| HB334 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 200 | TELECONFERENCED | |
| += | HB 334 | TELECONFERENCED | |
| + | TELECONFERENCED |
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
200.
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
334.
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
applicability.
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
process.
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
understand.
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
petition.
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
groups.
MS. LAWTON expressed her agreement that this was a good
representation.
REPRESENTATIVE STUTES reiterated her interpretation for the
proxy.
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
child.
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
custody."
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
custody.
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
provided]:
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
litigation.
#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
litigation.
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
provided]:
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
forward."
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
lost.
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
violence.
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
broken.
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
well.
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
system.
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
ADJOURNMENT
There being no further business before the committee, the House
Health and Social Services Standing Committee meeting was
adjourned at 5:01 p.m.
| Document Name | Date/Time | Subjects |
|---|