Legislature(1997 - 1998)
04/17/1998 02:39 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 17, 1998
2:39 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 203
"An Act relating to actions for unlawful trade practices."
- MOVED CSHB 203(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 375
"An Act relating to children in need of aid matters and
proceedings; relating to murder of children, criminally negligent
homicide, kidnapping, criminal nonsupport, the crime of indecent
exposure, and the crime of endangering the welfare of a child;
relating to registration of certain sex offenders; relating to
sentencing for certain crimes involving child victims; relating to
the state medical examiner and reviews of child fatalities;
relating to teacher certification and convictions of crimes
involving child victims; relating to access, confidentiality, and
release of certain information concerning the care of children,
child abuse and neglect, and child fatalities; authorizing the
Department of Health and Social Services to enter into an
interstate compact concerning adoption and medical assistance for
certain children with special needs; authorizing the establishment
of a multidisciplinary child protection team to review reports of
child abuse or neglect; relating to immunity from liability for
certain state actions concerning matters involving child protection
and fatality reviews and children in need of aid; relating to
persons required to report suspected child abuse or neglect;
relating to foster care placement and to payment for children in
foster and other care and the waiver of certain foster care
requirements; relating to the access to certain criminal justice
information and licensure of certain child care facilities;
amending Rule 218, Alaska Rules of Appellate Procedure; amending
Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and
providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 344
"An Act relating to paternity establishment and child support;
relating to the crimes of criminal nonsupport and aiding the
nonpayment of child support; and amending Rule 37(b)(2)(D), Alaska
Rules of Civil Procedure; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 203
SHORT TITLE: ACTIONS FOR UNLAWFUL TRADE PRACTICES
SPONSOR(S): REPRESENTATIVES(S) DYSON, Cowdery
Jrn-Date Jrn-Page Action
3/18/97 738 (H) READ THE FIRST TIME - REFERRAL(S)
3/18/97 738 (H) L&C, JUDICIARY
4/23/97 (H) L&C AT 3:15 PM CAPITOL 17
4/23/97 (H) MINUTE(L&C)
5/05/97 (H) L&C AT 3:15 PM CAPITOL 17
5/05/97 (H) MINUTE(L&C)
5/06/97 1547 (H) L&C RPT CS(L&C) 3DP 2NR
5/06/97 1548 (H) DP: COWDERY, SANDERS, HUDSON
5/06/97 1548 (H) NR: ROKEBERG, BRICE
5/06/97 1548 (H) ZERO FISCAL NOTE (LAW)
1/30/98 (H) JUD AT 1:00 PM CAPITOL 120
1/30/98 (H) MINUTE(JUD)
2/09/98 (H) JUD AT 1:00 PM CAPITOL 120
2/09/98 (H) MINUTE(JUD)
4/09/98 2948 (H) COSPONSOR REMOVED: CROFT
4/17/98 3060 (H) COSPONSOR(S): COWDERY
BILL: HB 375
SHORT TITLE: CRIMES AGAINST CHILDREN/FOSTER CARE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
2/02/98 2200 (H) READ THE FIRST TIME - REFERRAL(S)
2/02/98 2201 (H) HES, JUDICIARY, FINANCE
2/02/98 2201 (H) INDETERMINATE FN (GOV/VARIOUS DEPTS)
2/02/98 2201 (H) GOVERNOR'S TRANSMITTAL LETTER
2/26/98 (H) HES AT 3:00 PM CAPITOL 106
2/26/98 (H) MINUTE(HES)
3/03/98 (H) HES AT 3:00 PM CAPITOL 106
3/03/98 (H) MINUTE(HES)
3/05/98 (H) HES AT 3:00 PM CAPITOL 106
3/05/98 (H) MINUTE(HES)
3/12/98 (H) HES AT 3:00 PM CAPITOL 106
3/12/98 (H) MINUTE(HES)
3/20/98 (H) HES AT 3:00 PM CAPITOL 106
3/20/98 (H) MINUTE(HES)
3/24/98 (H) HES AT 3:00 PM CAPITOL 106
3/24/98 (H) MINUTE(HES)
4/02/98 (H) HES AT 3:00 PM CAPITOL 106
4/02/98 (H) MINUTE(HES)
4/07/98 2898 (H) HES RPT CS(HES) NT 5DP
4/07/98 2900 (H) DP: DYSON, GREEN, BUNDE, BRICE,
PORTER
4/07/98 2900 (H) 3 FNS (COR, DHSS, COURT)
4/07/98 2900 (H) FISCAL NOTE (GOV/VARIOUS DEPTS)
4/07/98 2900 (H) REFERRED TO JUDICIARY
4/17/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Testified as sponsor of HB 203; explained
changes in CSHB 375(HES) and offered
amendment.
PATRICK HARMAN, Legislative Assistant
to Representative Fred Dyson
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-2195
POSITION STATEMENT: Explained changes in proposed committee
substitute for HB 203.
LISA TORKELSON, Legislative Assistant
to Representative Fred Dyson
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-3467
POSITION STATEMENT: Explained proposed amendments to CSHB
375(HES).
SUSAN G. WIBKER, Assistant Attorney General
Human Services Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Explained CSHB 375(HES) and answered
questions.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Answered questions on CSHB 375(HES).
HARRY NIEHAUS
P.O. Box 55664
North Pole, Alaska 99705
Telephone: (907) 488-9328
POSITION STATEMENT: Testified on CSHB 375(HES).
SCOTT CALDER
P.O. Box 75011
Fairbanks, Alaska 99707
Telephone: (907) 474-0174
POSITION STATEMENT: Testified on CSHB 375(HES) and the proposed
amendments.
MARCI SCHMIDT, Volunteer
Hear My Voice; and Representative
Parents United for Custodial Justice
2040 Fishhook
Wasilla, Alaska 99654
Telephone: (907) 357-3618
POSITION STATEMENT: Testified on CSHB 375(HES).
BLAIR McCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on CSHB 375(HES).
WALTER GAUTHIER
P.O. Box 2246
Homer, Alaska 99603
Telephone: (907) 235-2809
POSITION STATEMENT: Testified on CSHB 375(HES).
JODI OLMSTEAD
P.O. Box 56873
North Pole, Alaska 99705
Telephone: (907) 488-0831
POSITION STATEMENT: Testified in opposition to CSHB 375(HES).
ACTION NARRATIVE
TAPE 98-62, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 2:39 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and James.
Representatives Rokeberg and Berkowitz arrived at 2:55 p.m., and
Representative Croft arrived at 3:00 p.m.
HB 203 - ACTIONS FOR UNLAWFUL TRADE PRACTICES
CHAIRMAN GREEN announced the first item of business would be HB
203, "An Act relating to actions for unlawful trade practices." He
called on Representative Dyson to address the changes in the
proposed committee substitute.
Number 0050
REPRESENTATIVE FRED DYSON, sponsor, told members that since the
last hearing, several things had been changed in answer to
objections that had arisen in the committee. He expressed the
belief that this is now a better bill. He asked Patrick Harman to
explain the changes.
Number 0109
PATRICK HARMAN, Legislative Assistant to Representative Fred Dyson,
Alaska State Legislature, advised members that several changes are
technical. The major substantive change incorporates payment of
Rule 82 attorney fees if the defendant prevails. Mr. Harman agreed
that the committee process from the last hearing had dramatically
improved the bill.
CHAIRMAN GREEN asked where Rule 82 fees had been incorporated.
MR. HARMAN said that is on page 3, line 12, of Version R.
Number 0202
REPRESENTATIVE BRIAN PORTER told members that as one critic of the
original version, he appreciates the sponsor's consideration in
adjusting these provisions, and he agrees with them. He noted that
the result is not precisely Rule 82; it does provide that a
plaintiff who prevails will be awarded full reasonable attorney
fees and costs under Rule 82. However, it is quite acceptable to
him, especially considering that the bill requires that notice be
given to a potential defendant. Representative Porter commented,
"And if they continue their action and are subsequently found to
still be at fault, so be it. Let them pay the attorney's fee."
CHAIRMAN GREEN asked whether there was further discussion. He
indicated no one had signed up to testify.
Number 0320
REPRESENTATIVE JEANNETTE JAMES made a motion to adopt Version R (0-LS0553\R, Ba
objection, it was so ordered.
REPRESENTATIVE JAMES made a motion to move HB 203, Version R, from
committee with individual recommendations and attached fiscal note,
if any.
Number 0349
CHAIRMAN GREEN asked whether there was any objection. There being
none, CSHB 203(JUD) moved from the House Judiciary Standing
Committee.
HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE
CHAIRMAN GREEN announced the next item of business would be HB 375,
"An Act relating to children in need of aid matters and
proceedings; relating to murder of children, criminally negligent
homicide, kidnapping, criminal nonsupport, the crime of indecent
exposure, and the crime of endangering the welfare of a child;
relating to registration of certain sex offenders; relating to
sentencing for certain crimes involving child victims; relating to
the state medical examiner and reviews of child fatalities;
relating to teacher certification and convictions of crimes
involving child victims; relating to access, confidentiality, and
release of certain information concerning the care of children,
child abuse and neglect, and child fatalities; authorizing the
Department of Health and Social Services to enter into an
interstate compact concerning adoption and medical assistance for
certain children with special needs; authorizing the establishment
of a multidisciplinary child protection team to review reports of
child abuse or neglect; relating to immunity from liability for
certain state actions concerning matters involving child protection
and fatality reviews and children in need of aid; relating to
persons required to report suspected child abuse or neglect;
relating to foster care placement and to payment for children in
foster and other care and the waiver of certain foster care
requirements; relating to the access to certain criminal justice
information and licensure of certain child care facilities;
amending Rule 218, Alaska Rules of Appellate Procedure; amending
Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and
providing for an effective date."
CHAIRMAN GREEN called on Representative Dyson to explain the bill
[Version H, CSHB 375(HES)].
Number 0376
REPRESENTATIVE DYSON, who had helped to revise the original
version, told members this is an ongoing process, and what is
before them still needs work. The amendments fall into two
categories. He believes there is agreement with the Administration
on the first group of amendments, but if they have a problem with
any portion, he wants to ensure them the chance to speak to that.
For the second group of amendments, Representative Dyson and his
staff have honest disagreements with the Administration; he wants
to ensure the Administration a clear chance to present their
perspective, which he believes is an informed and largely
reasonable one. He noted that HB 375 came out of the Governor's
task force and was significantly revised in the House Health,
Education and Social Services Committee.
Number 0573
REPRESENTATIVE DYSON offered Amendment 1, labeled 0-GH2009\H.1.
Number 0621
LISA TORKELSON, Legislative Assistant to Representative Fred Dyson,
Alaska State Legislature, explained that H.1 and H.2 are two parts
of the memorandum she had passed around to committee members the
previous evening.
REPRESENTATIVE CON BUNDE said he would move Amendment 1 for
discussion purposes.
CHAIRMAN GREEN objected, also for discussion purposes. He
specified that Amendment 1 is the 4/17/98 version [0-GH2009\H.1,
Lauterbach, 4/17/98]. He asked Ms. Torkelson to explain what the
three-page amendment does.
Number 0683
MS. TORKELSON referred to the first change and told members there
is duplicate wording: On page 21, line 31, it says, "the right and
responsibility to protect, nurture, train and discipline the
child"; and on page 23, line 18, it says, "(5) parents and
guardians have the right to direct the upbringing of their
children, including their medical care and the right to exercise
reasonable corporal discipline". Ms. Torkelson said rather than
having it in two separate places, this puts it into one.
CHAIRMAN GREEN requested confirmation that it is just
housecleaning.
Number 0738
MS. TORKELSON said it moves the language to Section 1, under the
rights and responsibilities of the parent. She had requested the
drafters to either move both into the same place or delete one, as
she hadn't been sure whether it was duplicative. On page 2 of the
amendment, line 5, it then deletes all material from page 23, lines
18 through 20, of the bill.
MS. TORKELSON explained the second change, relating to page 22,
lines 9 through 23. That was a wording change recommended by the
department. "We read over it and didn't see any problems with it,"
she said, indicating they may have made a couple of small changes
but that it is a "mutual version."
Number 0852
REPRESENTATIVE BUNDE requested confirmation that this is one of the
amendments that have mutual consent.
REPRESENTATIVE DYSON said yes, expressing confidence that the
people present from the Administration would let him know if there
is a difference of opinion.
Number 0870
MS. TORKELSON returned to Amendment 1 and the wording relating to
page 22, lines 9 through 23; she said that is tightened up wording
regarding visitation, especially. Much of the language is the
same, but it was easier to delete it and rewrite it, rather than
take out certain words and replace them.
REPRESENTATIVE DYSON explained, "It is certainly our conviction
that if a child is removed from his home, particularly a young
child, being able to have regular visits ... soon with their
parents ... is really important to the kid. And we squabbled with
the department here for the last week and a half about spelling out
how often, and so on, and how soon those visitations should start.
And the department takes the position that ... they recognize it as
very important. They don't want the frequency and the immediacy
spelled out in law. And I have a promise from them that it will be
spelled out in regulation."
MS. TORKELSON added, "Or policy."
REPRESENTATIVE DYSON continued, "And policy statements." He
indicated that would relate to both training and literature given
to the foster parents about visitation. "And we will be watching
that," he added.
Number 1010
MS. TORKELSON advised members that in her office were copies of the
comparison between Version H and the Governor's original bill that
was done by the department. In addition, she had done a comparison
by section number.
CHAIRMAN GREEN agreed that might be a quick way to bring up to
speed those members who are not also members of the House Health,
Education and Social Services Committee.
REPRESENTATIVE JAMES and REPRESENTATIVE NORMAN ROKEBERG expressed
the need to review the bill.
REPRESENTATIVE ETHAN BERKOWITZ said he had skimmed it and was
generally happy with it. However, there are a couple of tweaks
that he believes would strengthen it.
CHAIRMAN GREEN suggested before getting into the amendments that
Representative Dyson lead the committee through the bill briefly
and then be ready for questions.
Number 1141
REPRESENTATIVE BUNDE withdrew Amendment 1.
Number 1147
REPRESENTATIVE DYSON offered to make a summary statement about the
bill and then let better-informed people from the department
explain it. He stated his belief that most of this began in the
Governor's task force on child protection, which started meeting
the previous August. There are two or three things it aims at,
which are fairly critical. Changes in federal law require
conformity by the states if they want federal participation and
funding. "And I think the price is about $10 million here," he
noted. The federal law requires making protection of the child
preeminent. It puts a real emphasis on getting children out of
state custody, either reunited with their families or in a
permanent placement, and on minimizing the number of placements, so
that children don't get shuffled from home to home.
REPRESENTATIVE DYSON said as he understands it, the federal law
requires a multi-disciplinary team working on child protection
issues. There are problems in Alaska's law about confidentiality,
particularly relating to different departments' ability to share
relevant information pertaining to juvenile records; this bill
purports to take care of that. The five departments working on
this are affected by this bill in how those things are handled, in
trying to come into conformity with federal law, in trying to
eliminate problems with sharing information, and in putting the
emphasis on protecting children.
Number 1267
CHAIRMAN GREEN asked whether the changes made in the House Health,
Education and Social Services Committee, as well as the proposed
amendments, were because of differences among departments,
differences between Representative Dyson and the department, or
both.
REPRESENTATIVE DYSON said both, noting that the department had
worked with them very cooperatively. He also noted that a lot of
parents had called, concerned about parental rights and preemptive
actions by the state. "Most of our concerns have been taken care
of," he added.
Number 1305
MS. TORKELSON informed members that she was having the two
comparisons she had mentioned earlier brought from her office.
Number 1328
CHAIRMAN GREEN advised members that Susan Wibker of the Department
of Law would lead them through the bill. He then confirmed that
participants at the four teleconference sites of Homer, Anchorage,
Mat-Su and Fairbanks had copies of Version H.
Number 1384
SUSAN G. WIBKER, Assistant Attorney General, Human Services
Section, Civil Division (Anchorage), Department of Law, came
forward. She explained that the first 21 pages or so of the bill
deal with changes to the criminal law that increase the penalties
for homicides of children and make it easier to charge more serious
crimes when there is a death of a child. Many of these provisions
are contained in other bills, including bills sponsored by Senator
Halford and Senator Pearce. The intent of the changes to the
criminal law is to make it easier for prosecutors to get sentences
in homicides of children that are comparable to the sentences
received for homicides of adults.
MS. WIBKER explained, "The reason you get lesser charges against
the offender that kills a child, and a lesser sentence, is because
you can almost never prove intent to kill a child. As a
prosecutor, often what you have is an intent to make a child be
quiet, to control a child, to make a child stop crying. So, what
these changes do is allow a prosecutor to bring charges that would
get a sentence commensurate with the sentence you would get for
killing an adult.
MS. WIBKER continued, "A good example is the case you just had in
Anchorage last week, where the woman took a child less than two and
slammed it against a surface hard enough to fracture its skull and
kill it. If anybody did that to an adult, I don't think we'd
hesitate to say there was an intent to kill." Ms. Wibker said the
jury in that case had to decide whether it was murder II or
manslaughter, which is comparable to killing someone while drunk
driving.
Number 1482
REPRESENTATIVE BERKOWITZ asked whether she is talking about Section
12.
MS. WIBKER said she is talking about the Title 11.41 crimes that
deal with homicides. It is about the first four to five pages of
the bill. "Across the board, they increase the penalty and make it
easier to get more serious charges," she explained. "One of the
things the bill does that's very important is it increases
criminally negligent homicide from a C felony to a B felony.
That's very important, because most of your shaken baby cases ...
are settled as criminally negligent homicides. A first offender is
facing a maximum of five years, but with sentencing benchmarks,
it's more like two. Under this bill, a first offender would really
be facing ten years."
MS. WIBKER told members the bill also creates a felony indecent
exposure statute, which Alaska did not have before, and it makes it
a more serious crime when the victim is a child.
Number 1571
REPRESENTATIVE ERIC CROFT referred to pages 5 and 6; he asked what
the aggravators are for indecent exposure in the first degree.
MS. WIBKER replied, "The victim is a child, and there is knowing
masturbation in the presence of a child, which would make it a
felony rather than a misdemeanor." She added, "You'd be amazed at
some of the defenses to these charges we've heard."
MS. WIBKER next referred to pages 6 and 7, where endangering the
welfare of a minor is expanded and broken into both a felony and a
violation level of offense. She said it is basically Alaska's
criminal neglect statute. It is a crime of omission, of neglect
against a child. Under existing statute, it was only a crime to
intentionally desert a child. This expands the criminal penalties
into things like knowingly leaving a child with a sex offender or
with somebody known to be violent toward children.
Number 1636
REPRESENTATIVE CROFT indicated that was in the original bill, but
for children under age six. He asked what changes besides the
increase in age had been made.
MS. WIBKER replied that some amendments in the House Health,
Education and Social Services Committee had dealt with the age of
the victim and whether or not having a babysitter on the premises
would serve as a defense.
REPRESENTATIVE CROFT asked, "And it no longer does?"
MS. WIBKER said it does not at the felony level; it does at the
misdemeanor level. Those were the amendments made.
Number 1669
REPRESENTATIVE BERKOWITZ referred to Section 9, stating his
understanding that it is a B felony if the child dies and a C
felony if there is sexual contact, sexual penetration. He asked,
"And the predicate elements are that you leave the child with
somebody, essentially? Or you intentionally desert the child?"
MS. WIBKER replied that it is intentional desertion, or what they
would call the crime of poor supervision, knowingly leaving a child
with someone that is going to be dangerous to that child.
Number 1702
REPRESENTATIVE BERKOWITZ indicated his understanding that it is not
in any way an accessory type of crime. He added, "And it seems to
me you were in the accessory zone."
MS. WIBKER replied, "No. ... You're getting at a problem in the
criminal law that we feel this solves, which is when you have a
child that dies or gets seriously injured, most of the time you
have two suspects. And under existing criminal law, you have to
prove beyond a reasonable doubt that one or the other did it, and
usually it's going to be two parents, parent/step-parent,
parent/boyfriend/girlfriend, whatever."
MS. WIBKER noted that in many cases, the police have a difficult
time proving who did it. There may be insufficient evidence to
prove conspiracy, aiding and abetting, or other crimes that might
apply to the person who is guilty of poor supervision. There have
been at least a handful of cases where a child has died or been
seriously injured but two people have walked Scot-free, or have
made a deal where one would get immunity, one would go to trial,
and then they would implicate each other and both walk. Or else
one would end up with some kind of a "little dinky plea bargain"
because the state didn't have proof beyond a reasonable doubt as to
who did it.
MS. WIBKER explained, "What this does, when a child dies and the
evidence shows that both people caring for this child knew that the
child was in a dangerous situation with the other person and didn't
do anything, the state could then charge both, rather than have
both walk. Not too long ago, there was a case in Anchorage, the
early '90s, where a child died. There were high-heel prints, shoe
marks, on the child. Both parents admitted to shaking the child,
hitting the child. Neither one ever 'fessed up' to anything close
to what happened to the child, and ... I think one ended up plea
bargaining to a misdemeanor assault, and the other one walked Scot-free. This
when you bring up aiding and abetting."
Number 1798
REPRESENTATIVE PORTER stated his understanding that they had taken
out any third person, in terms of leaving a child in the proximity
of a sex offender.
MS. WIBKER replied that on the first degree endangering, there is
no babysitter defense anymore.
Number 1814
REPRESENTATIVE CROFT asked what AS 17.30 is.
MS. WIBKER answered that it is the statute that would allow a
prescription for a controlled substance. If a person has a
controlled substance authorized under AS 17.30, that person has a
prescription for legal use of it.
REPRESENTATIVE CROFT said he understands the first degree
endangering the welfare, and on page 7, the second degree. He also
understands the 'incapacitated,' (2) and (3). However, in (1) is
a person guilty of this crime if that person simply possesses
drugs?
MS. WIBKER said that is correct. That is one reason it is a
violation, which is like a ticket and a fine, a citation. It is
not a misdemeanor.
REPRESENTATIVE CROFT asked about the first degree offense.
MS. WIBKER said for the first degree, the level of offense depends
on the outcome to the child.
Number 1862
CHAIRMAN GREEN asked whether possession would apply even if that
substance were not involved in whatever happened.
MS. WIBKER explained that it would be a person caring for a child
while possessing cocaine, for example. It is the possession, not
the abuse or use, that becomes the problem. "But notice, it's a
violation," she added.
REPRESENTATIVE CROFT emphasized that it is not use or impairment,
nor does it have to be tied to the harm to the child.
Number 1890
REPRESENTATIVE BERKOWITZ said he wants to be clear: If someone has
a bag of dope and is taking care of his or her four-year-old child,
that person has just broken two laws.
MS. WIBKER said that person would have committed a violation, which
would result in a ticket, a citation.
Number 1915
REPRESENTATIVE PORTER asked whether they had negated the ability to
charge that person with a felony, if another felony crime existed.
MS. WIBKER replied, "If you could prove possession of cocaine,
obviously the prosecutor is going to prove possession of cocaine.
If you can't prove that, what this does ...."
REPRESENTATIVE PORTER suggested this is a general statement. He
stated, "I mean, you're barred from a general if there is a
specific."
MS. WIBKER replied, "Right. You wouldn't want this to be a 'lesser
included,' that would bar you from getting a C felony possession of
[cocaine]."
Number 1929
REPRESENTATIVE CROFT said, "The other way around, ... the simple
possession isn't a 'lesser included' of this, because it's not
lesser. It is included. It has fewer elements, just knowingly
possessing cocaine. This adds the additional element of 'while you
have control of the child.'" He said it is written in such a way
that it is not stepping on the general possession statutes.
Number 1953
REPRESENTATIVE PORTER said this is knowingly possessing a
controlled substance, which is general in terms of drugs.
MS. WIBKER agreed, adding, "without a prescription."
REPRESENTATIVE PORTER commented, "Well, if Dean [Guaneli] says it's
okay, I'll go for it."
CHAIRMAN GREEN asked Mr. Guaneli to come forward.
Number 1980
DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, explained
that the purpose of this particular statute was to start
identifying people who were passed out from alcohol, having dope in
their homes while the kids were there, and to start establishing a
track record with these people and try to get them into counseling
if appropriate. As to the specific issue of whether, if someone
has a pound of cocaine, this somehow precludes that charge being
filed, no, it doesn't. This says that if, in addition to that,
there happens to be a child in the house, the person is guilty of
an additional offense, in this case a violation.
MR. GUANELI said he doesn't think that adding an additional element
to the possession of cocaine creates some legal or constitutional
difficulty. He acknowledged it is a little unusual when applied to
cocaine, but when applied to marijuana and other offenses, it
doesn't look quite as unusual. He believes the idea is to also
give prosecutors some leeway when someone has a little dope in the
house; he noted that this offense might be more palatable to some
people than a drug offense. It is a way to start keeping track.
Number 2036
REPRESENTATIVE BERKOWITZ said he is not condoning drug use by any
stretch of the imagination. But there is a world of difference
between knowingly possessing and being incapacitated or under the
influence. Most of these are not going to be cocaine cases. They
will be marijuana cases, "just keeping it in the pocket, being
fully functional, taking care of the kids, putting the kids to bed
and then smoking a joint later on." Now, all of a sudden, they are
endangering the welfare of their children? It is not the same as
having them take care of the kids while incapacitated or drunk.
Representative Berkowitz questioned whether that is really the
direction they want to head.
CHAIRMAN GREEN suggested that if it happens in a house with no
external evidence, it won't be prosecuted anyway. It would only be
those places where this child has had some other problem occur.
REPRESENTATIVE BERKOWITZ likened it to someone being pulled over
for speeding in a car, then being patted down.
REPRESENTATIVE PORTER questioned under what authority such a person
would be patted down. He said a person would have to be under
arrest for something.
REPRESENTATIVE BERKOWITZ suggested it may be for suspicion of drunk
driving, or any number of reasons. If there happens to be a child
in the car, that person would be charged with endangering the
welfare of the child based on the marijuana, not anything else.
"And I'm not sure that's the route we want to head," he restated.
Number 2128
REPRESENTATIVE BUNDE noted that in that analogy of being pulled
over for suspicion of drunk driving, the person would certainly be
endangering the welfare of a child. He acknowledged there may be
an analogy where a person is arrested for another offense, however.
REPRESENTATIVE JAMES said she is somewhat sympathetic to what
Representative Berkowitz was saying. She indicated she doesn't
fully understand the scenario that could be happening. She
referred to Chairman Green's suggestion that a person's possession
of a controlled substance while caring for a child would not be
evaluated unless there was another problem that would cause a
search, for example.
CHAIRMAN GREEN said there has to be some reason to trigger this.
There would be some external manifestation before there would be a
search like that.
REPRESENTATIVE JAMES asked about a child's crying.
CHAIRMAN GREEN said he doesn't know that crying by itself would be
cause for an intrusion.
Number 2206
MR. GUANELI said he'd thought Chairman Green's comment had meant
there would have to be some triggering mechanism to get the police
to the house or get authorities in the situation in the first
place.
CHAIRMAN GREEN affirmed that.
MR. GUANELI said that usually means something involving the child.
REPRESENTATIVE JAMES pointed out that a child can get hurt in the
park, for example, and then everyone rushes in.
MR. GUANELI agreed with Representative Porter that it doesn't allow
searching through purses or pockets. However, if a law enforcement
official is on the scene and smells marijuana, that may justify at
least asking some questions.
REPRESENTATIVE JAMES asked: What if it falls out of someone's
pocket?
MR. GUANELI responded, "I think this generally reflects a feeling
that illegal drugs in houses where there are young children is not
a good idea. I think that kids get into drugs, they find your
stash, they're more susceptible even to secondhand marijuana
smoke."
Number 2249
REPRESENTATIVE JAMES agreed, adding that she detests any use of
illegal drugs. However, she is a little uncomfortable about this.
There may be more problems with this than they are anticipating.
Number 2271
REPRESENTATIVE PORTER said, to allay concerns, that if a law
enforcement officer discovers that someone possesses marijuana,
that is an offense, in and of itself, whether there is a child
there or not. If it were a lawful observation and determination
that the possession occurred, the person would be charged with an
offense. This is just a violation that is tantamount to a parking
ticket, and which can be used as "a little wedge with parents who
otherwise might continue that behavior." He stated, "Nobody's
going to take a child from a parent because of one violation. It
just isn't going to happen."
Number 2325
REPRESENTATIVE DYSON said from his perspective, a major concern
here is not that the person who is drunk or stoned is going to
necessarily deliberately harm the child. Being incapacitated is
the concern. A person who smokes a joint after putting the child
to bed will be incapacitated if there is a fire or another
emergency; it is irresponsible to be incapacitated when one has the
responsibility for a child. That is what they are aiming at.
REPRESENTATIVE BERKOWITZ clarified that he is distinguishing
between possessing and being incapacitated. He has some
reservations about having possession as a trigger.
REPRESENTATIVE CROFT suggested it could be "under the influence
of," a medium step from possession to incapacitated. As it is,
they haven't even tied it to any medium level of impairment or use.
Number 2384
CHAIRMAN GREEN noted that obviously possession would be easier to
prove. He asked whether "under the influence" creates problems
with determining the amount necessary before being under the
influence.
MR. GUANELI suggested it would help, if they use a term like "under
the influence," to have a definition tied to something along the
lines of our case law involving drunk driving, where it is
impairment to a certain degree; he said he would have to think
about what exactly that would be. As long as there is a good
definition, it makes some sense and actually would apply to a
broader range of cases. However, he would want that definition to
be rather tight.
CHAIRMAN GREEN said he thinks that is a good point, that possession
by itself may pose no harm at all.
Number 2416
REPRESENTATIVE BUNDE responded that he probably wouldn't argue
about marijuana possession. But what about crack cocaine? Anybody
who possesses cocaine at home, with children there, is not
presenting a good home life for those children. Such a person
should be counseled out of that behavior, and a violation would
start that process and build a paper trail with the department for
any future violations. Representative Bunde acknowledged the
impossibility of crafting something that covers all situations,
then restated his concerns about cocaine in the home.
TAPE 98-62, SIDE B
Number 0006
CHAIRMAN GREEN asked whether they should change what they have,
"controlled substance."
REPRESENTATIVE BERKOWITZ suggested Schedule 5 or above, or Schedule
4 or above.
Number 0032
REPRESENTATIVE CROFT said it sounds like they are narrowing it, but
as Mr. Guaneli noted, they actually would be broadening it. There
are situations where a person doesn't possess marijuana but is
under its influence, for example, without being incapacitated. One
could fall through the cracks of this, on a level that poses more
harm to the child. Being under the influence seems more directly
related, and more culpable, than simply having it in one's
possession.
CHAIRMAN GREEN said these are "ors," though.
REPRESENTATIVE CROFT agreed there are three "ors": (1) is
knowingly possessing; (2) is being incapacitated, which is
unconscious or incapable of making rational decisions; and (3) is
again being incapacitated. Therefore, somebody who was not
possessing but who had just used would not be included, while
somebody who possessed but wasn't using would be included. He
suggested that is backwards from what they would like to have
happen.
CHAIRMAN GREEN apologized, saying he had thought Representative
Croft was arguing the other direction.
Number 0056
REPRESENTATIVE BERKOWITZ stated his understanding that this doesn't
take into account alcohol.
CHAIRMAN GREEN said it does, under (3), page 8.
REPRESENTATIVE BERKOWITZ said, "But that's an 'incapacitated.'"
REPRESENTATIVE CROFT agreed; if someone is just somewhat drunk, it
wouldn't apply.
CHAIRMAN GREEN suggested an intoxicant wouldn't necessarily be
limited to conventional booze.
MS. WIBKER said it includes inhalants.
Number 0082
REPRESENTATIVE PORTER said he thinks Representative Croft makes a
good point.
CHAIRMAN GREEN agreed.
REPRESENTATIVE PORTER suggested that could be easily accommodated
by having the phrase "impaired or incapacitated" on both page 7,
line 30, and on page 8, line 2, and then defining "impaired" along
the lines Mr. Guaneli had discussed.
CHAIRMAN GREEN asked about dropping (1).
REPRESENTATIVE PORTER replied, "No, I would not drop (1). It took
30 damn years to get possession of marijuana to be considered
serious, and I'm not going to vote to put it back where it was."
CHAIRMAN GREEN stated his understanding that the suggestion is to
add "impaired or incapacitated" on (2) and (3). He then suggested
just putting "impaired," because one who is incapacitated is
impaired.
REPRESENTATIVE PORTER agreed that "impaired" is sufficient.
Number 0148
MS. WIBKER next referred to page 8, which deals with sentencing
changes. At the bottom of page 8, the important change is that
currently a conviction for manslaughter comes with a minimum
sentence of five years. This makes the minimum sentence seven
years when the victim is a child under age 16.
REPRESENTATIVE BERKOWITZ suggested this would apply even in a DWI
[driving while intoxicated] case.
MS. WIBKER replied that it would apply across the board to a
manslaughter conviction if there is a child victim.
REPRESENTATIVE BERKOWITZ suggested that is not rationally related
to child protection directly. If they are trying to target child
deaths that are the result of negligence, shaking babies, and so
forth, that should be specified in here, rather than having the
sweeping generality, the accident that results in the death of a
child, as opposed to the death of an adult.
Number 0203
MS. WIBKER referred to page 9, line 7. She told members that
language in bold print is a change in the law. In a conviction for
criminally negligent homicide, it allows the judge to aggravate the
sentence up to the maximum, which would be ten years, with
criminally negligent homicide being a B felony. Under current
sentencing guidelines, a first offender falls within a certain
range and normally gets one to four years; a second offender would
normally get four to six years; and a third offender on a B felony
would get six to ten years. What this does is if the victim is a
child under age 16, the judge can aggravate the sentence up to what
a third offender would get, rather than being restricted to those
guidelines. It lets the age of the victim act as a sentencing
aggravator.
MS. WIBKER noted that the rest of the changes in bold print on page
9 deal with references, where changes have been made and the
references to those other statutes need to correlate with the
changes.
MS. WIBKER next referred to page 10. She said this part of the
bill deals with the creation of a child fatality review team, which
would be a team directed by the medical examiner to do death
investigations of children. She explained that the child fatality
review team has been operating, but not in statute; this creates
statutory authority and allows the medical examiner to put together
a review team for deaths. When there is a death not investigated
by the troopers, the report could go directly to the medical
examiner; otherwise, the medical examiner would come in after the
law enforcement investigation. This is to make sure that deaths of
children are not too quickly written off as accidents, SIDS [sudden
infant death syndrome] or natural causes.
CHAIRMAN GREEN mentioned that some Senate bills are addressing
portions of this. He asked whether there would be a dilemma if
this is also addressed in another bill and both should pass with
different provisions.
MR. GUANELI said that is a good question. He noted that there is
Alaska case law on that, but he couldn't immediately recall it. He
believes the courts have wrestled with that issue and resolved it
in a way that reflects legislative intent, if that can be
discerned. He added that if Senator Halford's bill relating to
changes to the homicide laws were to pass both bodies, for
instance, he would hope that those comparable provisions here could
simply be removed, eliminating any problem.
Number 0401
MS. WIBKER again referred to the child fatality review team. She
said based on the history available to the Department of Health and
Social Services, perhaps 10 to 12 deaths of children per year may
be prosecutable as homicides, if the medical examiner were able to
do a thorough background search and take a second look.
MS. WIBKER next referred to page 15. This part of the bill deals
with the Department of Education (DOE), changing the law so that a
person convicted of sex offenses cannot obtain a teaching
certificate; if a person with a teaching certificate gets
convicted, that person would lose the certificate. Under the old
law, after five years a person could try to re-obtain the
certificate; this eliminates that provision. "Once you're a
convicted sex offender, that would be it, permanently," Ms. Wibker
added.
Number 0450
CHAIRMAN GREEN asked whether that would hold because of the extreme
difficulty in correcting a deviant's behavior in that regard. He
further asked whether this might be vulnerable to being struck down
by some liberalized court.
MS. WIBKER said she doesn't know the answer, but she doesn't see
any constitutional reason that the DOE would have to give a sex
offender a teaching certificate. In working on this bill, she had
asked that department how many times they had given a convicted sex
offender a teaching certificate after five years because of being
convinced a person was rehabilitated; the DOE had told her they had
never done it. "This is not a change in practice," she concluded.
Number 0484
REPRESENTATIVE BERKOWITZ noted that some concern has been raised
with .460, indecent exposure, about a high school student caught
"mooning," for example.
REPRESENTATIVE BUNDE agreed that is a valid point. If one was
caught in a youthful indiscretion such as mooning or public
urination, could those qualify as sex offenses and bar that person
from getting a teaching certificate for life?
Number 0527
MS. WIBKER said she doesn't believe a juvenile conviction would
apply here, unless it were under an automatic waiver. She noted
that Senator Pearce has a bill with this same statutory provision,
but has deleted the reference to AS 11.41.460, misdemeanor indecent
exposure, while keeping in AS 11.41.458, felony indecent exposure.
Ms. Wibker believes that is logical, because in reading the
definitions of those offenses, the misdemeanor is not necessarily
a crime involving a child. Ms. Wibker commented, "Who knows what
really goes on, but most of the time when you find a misdemeanor
conviction for indecent exposure, the story you get is, 'I'd been
to a bar, I was urinating in public, the police saw me and popped
me with this crime, that's all it was.'" She suggested that if the
concern is that people wouldn't be allowed to teach because of
that, they could delete the reference to AS 11.41.460, as Senator
Pearce had done in her bill.
Number 0596
REPRESENTATIVE PORTER commented, "Just so that there's no concern,
mooning is out because it requires genitals, and ... taking a leak
is not intentional exposure, as is required."
MS. WIBKER agreed that urinating in public does not meet the
statutory definition, and the prosecutor would have to prove a lot
more than that to get the conviction. "But yet that's what they
all say happened," she added.
MS. WIBKER referred to page 16 and said the references to statutes
are changed there; these are not substantive.
MS. WIBKER next referred to page 17, Section 21, amending AS
25.20.061. She said that entire section dealing with AS 25.20 was
added as an amendment in the House Health, Education and Social
Services Committee. It deals with custody decisions in divorces,
not the parental statutes or the Division of Youth and Family
Services (DFYS) child protection system. However, it does deal
with domestic violence, creating presumptions and giving the courts
guidelines for deciding the custody of children when there has been
domestic violence in the family. That entire section is set up so
that if there has been domestic violence, that is factored in when
decisions about custody and visitation are made. The safety of the
child is given priority and the appropriate weight.
Number 0712
MS. WIBKER referred to page 21, line 24, Section 27. She told
members this is where the statute begins to deal with the child
protection system on the civil side of the law.
Number 0727
REPRESENTATIVE BERKOWITZ asked, "Lines 30 and 31, having been a
child and expecting to have some at some point, what exactly is
training a child and disciplining a child?"
MS. WIBKER said that was the subject of some discussion in the
House Health, Education and Social Services Committee, and there
had been a specific amendment. She understands that "train" would
be something like educate, guide and teach.
MS. WIBKER mentioned that Representative Dyson had a proposed
amendment addressing the bottom of page 21, so that it would read,
"the right and responsibility to protect, nurture, train and
discipline the child, including the right to direct the child's
medical care and the right to exercise reasonable corporal
discipline". She noted that the section deals with parental rights
and responsibilities; the attempt was to clean it up and keep all
of the language dealing with parental rights and responsibilities
together.
MS. WIBKER told members that pages 21 through 23 are the so-called
legislative findings, a policy statement. The first section deals
with parental rights and responsibilities, and then it addresses
the state's responsibilities when a child has been abused or
neglected. It points out that in cases where there is very serious
risk to the health or safety of the child, the state should be
finding a safe, permanent home for the child. If the child can be
safely reunited with the family, or if the state can do something
to prevent removal from the family, the state should do that by
offering the family appropriate rehabilitative services. In
addition, the state should be providing visitation between the
child and the parent.
Number 0844
CHAIRMAN GREEN asked, when talking about reasonable efforts and
reasonable safety, if "reasonable" is a standard of law that
doesn't need a description.
MS. WIBKER explained that "reasonable efforts" is a federal legal
term that applies to the Department of Health and Social Services.
By law, that department must make reasonable efforts to prevent the
removal of the child from the family and, if removed, must make
reasonable efforts to return the child to the family home. "So,
you hear the term 'reasonable efforts' thrown around; that's what
it means, to prevent removal and to reunite," she concluded.
CHAIRMAN GREEN inquired whether it is something upon which
litigation could turn.
MS. WIBKER answered, "It's pretty clear. It's been required in
every case. What this bill, in federal law, does now is pull out
the very, very serious cases of abuses, and no longer requires the
department to do that, but requires the department to find a
permanent, safe home for the child. That comes later."
MS. WIBKER discussed guidelines for the state listed at the bottom
of page 22 and on page 23. When the department removes a child and
sets up a rehabilitative plan for the family, it sets out that the
parents are expected to participate in that plan, to try to get
their children home. The last part of page 23 deals with the
importance of bonding and attachment, especially in children under
age six, who need to form a bond with some adult care-giver. If
that doesn't happen, there are greater risks later on that a child
will have very serious problems, such as lack of a conscience, lack
of empathy, inability to bond and a very high risk of criminal
behavior. Ms. Wibker concluded, "This is a policy statement about
the importance of getting fast permanent, safe homes for children
younger than six, and a policy statement about how important it is
for young children to be able to bond."
Number 0956
CHAIRMAN GREEN asked whether, with that guideline, a person could
be prosecuted for being an aloof parent.
MS. WIBKER indicated there is no crime. It is just a directive to
the courts, when they review a case, of how to interpret this
statute and this law. Noting that the state can define "very young
children," she said one reason it is important to have that there
is that federal law wants the states to treat cases involving very
young children, especially when they have been abandoned, as more
serious than other cases, putting a priority into getting those
children into safe, permanent homes. Therefore, it is important to
deal with very young children a little differently.
MS. WIBKER next referred to page 24, Section 28, relating to
authorization of the Interstate Compact on Adoption and Medical
Assistance, a compact that 37 states have entered. She said that
basically it means that states accept each others' Medicaid
eligibility determination on a child. Ms. Wibker explained, "And
the reason that's important is because when special needs children
are adopted by people in another state, currently Alaska may cover
the child under Medicaid. And if a couple in Arizona adopts the
child, their Medicaid has to be stopped in Alaska and then they
have to reapply in Arizona. If you're part of this compact, it
will just carry uninterrupted. This is an important part of
getting special needs children adopted into permanent, safe homes.
This only applies to adoptions that are special needs, which are
going to be things like kids that are HIV-positive and fire-setters. These are
adoptions to get snagged or held up because of something like not
being able to get the medical coverage the child needs."
MS. WIBKER pointed out that Alaska has already been accepting the
Medicaid eligibility determinations of other states, when people
adopt children from elsewhere. By joining the compact, the state
is not incurring any more expenses. "We're getting the benefit of
our bargain," Ms. Wibker said. "We're getting other states to pick
up our kids."
MS. WIBKER next referred to page 24, saying it moves into the
standards under which the state could take legal custody of
children, "what we call the jurisdictional part of the statute,
jurisdiction meaning there are certain fact patterns that would
allow the state to have legal jurisdiction over a child and to take
legal custody of that child." The first 5 of the 12 situations
listed are abandonment; an incarcerated parent when the other
parent is not available to care for the child; the child left with
a babysitter or neighbor, when no one returned to pick up the
child; and medical neglect, where the parents know the child needs
medical treatment for either a physical or mental injury but fails
to get that treatment for the child.
Number 1151
CHAIRMAN GREEN suggested that lack of knowledge of that special
need would be a defense.
MS. WIBKER confirmed that, saying it requires that the person
knowingly fails to provide the treatment, such as after a doctor
has said the child needs treatment. She noted that there are other
defenses that would keep the department out of parents' lives, such
as "spiritual treatment," if that is the family belief; that is in
another part of the statute. Another would be poverty, in which
case the state's job is to help parents get the means, rather than
to take their children. So, poverty or spiritual beliefs and
practices would keep the state from intervening.
Number 1194
REPRESENTATIVE CROFT mentioned Christian Scientists.
Number 1235
MS. WIBKER said there is a specific statutory exception for that.
She read from AS 47.10.085, medical treatment by religious means,
which says, "In a case in which the minor's status as a child in
need of aid is sought to be based on the need for medical care, the
court may, upon consideration of the health of the minor and the
fact, if it is a fact, that the minor is being provided treatment
by spiritual means through prayer in accordance with the tenets and
practices of a recognized church or religious denomination by an
accredited practitioner of the church or denomination, dismiss the
proceedings and thereby close the matter. This may be done, in the
interests of justice and religious freedom, on the court's own
motion or upon the application of a party to the proceedings, at
any stage of the proceedings after information is given to the
court under AS 47.10.020(a)."
REPRESENTATIVE CROFT said he is a little more comfortable with
that; it is not a "must" but a "can." He suggested it may be a
tough call for a judge.
MS. WIBKER clarified that these are not grounds for automatic
removal. When the department investigates, these provisions allow
the department to make a decision. If they substantiate grounds
under this statute, they first decide whether there is something to
be done to prevent removal, such as offering treatment or family
counseling, or getting a violent person to leave the home. Second,
they consider whether to take legal custody; these 12 grounds are
grounds for doing that. Once the department has legal custody,
they can decide where to place the child, but that can be in the
home if they can get the parents to do some kind of treatment that
will result in the child being safe there. A third step is when
they need to remove the child; there is a burden of proof for that
which is separate from the burden of proof for taking legal
custody.
Number 1371
CHAIRMAN GREEN noted that it was almost 4 p.m. and they were
halfway through the bill. He suggested having the people standing
by on teleconference testify before continuing the overview. He
asked that testifiers limit their comments to three minutes each.
Number 1404
HARRY NIEHAUS testified via teleconference from Fairbanks. He
assured members he doesn't use marijuana, but noted that possession
or use of it is a criminal offense. Expressing concern about
family rights, he said that many times people are charged with
criminal offenses, such as assault on their children or physical
abuse; under this bill, possession of marijuana would be included.
These people are never taken to criminal court, or else the charges
are dismissed, yet the children are still held in protective state
custody. He said there needs to be a balance, so if charges are
dismissed or a parent is found innocent, the children are returned.
MR. NIEHAUS next referred to recognized religion. He asked, "What
if you're an American Native, and you want a shaman to pray over
your child? The U.S. Supreme Court has recognized the American
Indians' religion as a viable religion. ... Be specific. What is
a recognized religion? I find a problem with that statement
there." He thanked members for listening.
Number 1546
MS. WIBKER pointed out that to protect a child doesn't require a
criminal prosecution. There are very different standards and
burdens of proof because nobody goes to jail in a child abuse case.
"You get rehab," she stated. "That's the only consequence, is you
get rehab. So, it's different."
Number 1570
SCOTT CALDER testified via teleconference from Fairbanks. He told
members, "Here we go again with House Bill 375. We were just
trying to make our way through the amendments here earlier, and it
looks like the suggested tweaking and tuneups all sort of skew
things in the direction of covering every possible base for the
politically constituted entities such as the state or some agency.
And there don't seem to be any protections for individual people
who are falsely accused or maliciously prosecuted or otherwise -
even unintentionally - mistreated."
MR. CALDER suggested there should be language here that protects
people from the agencies involved in implementing this. He said
some of these agencies have been responsible for numerous injuries
to people, and there have been complaints for decades about
excesses. The burden is always on the individual, who could spend
$10,000 to $50,000 to sue a government in order to protect the
family. Mr. Calder said this is not what we have government for.
MR. CALDER told members that Ralph Nader's characterization of the
Corvair being unsafe at any speed applies to the DFYS at this
point. He doesn't want legislation that essentially forces a
person to own a Corvair, or in this case to be subject to state
agencies with apparently unlimited power. A balance would be
appropriate, so that individuals who are adversely impacted could
get some type of relief. If the standards suggested here for the
care of children were equally or more incumbent upon the state, one
might conclude there is a fair process. But since they are talking
about public funding of these functions of government, it seems
they should talk first about accountability of the agencies to
people, rather than accountability of the agencies to the
designated projects of the agencies. "I'd like to get this outside
of the agency," Mr. Calder concluded, indicating he would have
liked to make further comments.
Number 1787
MARCI SCHMIDT, Volunteer, Hear My Voice; and Representative,
Parents United for Custodial Justice, testified via teleconference
from Mat-Su. She told members that Hear My Voice is presenting an
award to U.S. Representative Dave Camp, one of the authors of
Public Law 105-89, which is scattered within this bill. She asked
in what part of the new federal law the multi-disciplinary task
force and the confidentiality language are found, stating her
understanding that Representative Dyson or Ms. Torkelson had
indicated that.
Number 1832
MS. WIBKER replied that she believes Representative Dyson and Ms.
Torkelson were referring to the Governor's child protection review
team that issued a report in December, with about 24
recommendations for changes in practice and the law. One
recommendation in that report was that there be more ability for
the different agencies to talk to each other and work cases
together.
MS. SCHMIDT suggested it is not in the public federal law, then.
MS. WIBKER affirmed that.
MS. SCHMIDT expressed concern about doing too much at once. With
so many fingers stirring the pot, the intent of the federal law may
be totally lost, and the state will not be in compliance. She
asked whether anyone had talked with Representative Dave Camp's
office in Michigan.
CHAIRMAN GREEN replied that he doesn't know, adding that nobody at
the meeting had done so.
Number 1922
MS. SCHMIDT noted that Representative Camp was the main sponsor of
PL 105-89, which some of this must comply with, at least by 1999.
She expressed concern that this legislature would be back in
another session, trying to correct the damage that will be done
with this bill if they don't just stop, comply with the federal
law, and leave it at that. Children will be the ones to suffer if
someone doesn't just take time to stop, look and listen, she
concluded.
Number 1992
CHAIRMAN GREEN asked Ms. Schmidt, "When you refer to damage, are
you suggesting that there may be problems between federal and state
law? Or damage due to premature actions ... by the agencies? What
do you mean by damage?"
MS. SCHMIDT suggested looking at past performance. A report on the
DFYS says things are not getting done. She has a 15-year-old
friend in crisis whom she can't even get a social worker to take a
look at, and it has been two months since the school counselor made
a report. Ms. Schmidt stated, "And now, you're going to have all
these laws, regulations and rules suddenly come into effect with
this particular bill, where you have domestic violence in the
courts; everything is so meshed in here that the intent that was
designed with PL 105-89 is just going to be lost. You won't be in
compliance, because everybody's just stirring their fingers in the
pot and nobody's looking. Children are dying or have died to get
federal law passed."
Number 2080
MS. WIBKER explained that this bill does incorporate the federal
law, and more. She said, "And that was the intent. And everything
that the department has done in the way of implementing the federal
changes, all of our proposals are sent to federal attorneys that
review it and advise us on whether we're in compliance."
Number 2118
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage. He
first addressed Section 9 on page 6, AS 11.51.100(a)(1), referring
to the current law, which states, "(a) A person commits the crime
of endangering the welfare of a minor if, being a parent, guardian,
or other person legally charged with the care of a child under 10
years of age, the person intentionally deserts the child in any
place under circumstances creating a substantial risk of physical
injury to the child."
MR. McCUNE explained that physical injury is a broadly defined term
that could include any kind of pain or physical impairment. Noting
the raised age limit of 16 years in CSHB 375(HES), he suggested
that if a parent got fed up with a 14-year-old daughter and went
away from the Dimond Mall, for example, there may be some risk of
physical injury. He suggested instead that for a felony-level
offense, perhaps "serious physical injury" would be more
appropriate.
Number 2259
MR. McCUNE next pointed out that the changes in Section 21 relate
to child custody in divorce-type situations, rather than to the
child in need of aid (CINA) laws in Title 47. He said he doesn't
know how they apply to the rest of the bill.
REPRESENTATIVE BERKOWITZ referred to page 17, line 12, subsection
(a). He asked whether Mr. McCune was thinking it would be best if
that said, "If the court finds in a proceeding involving child
custody, other than in a CINA proceeding ...."
MS. WIBKER commented that there is no need to say that.
Number 2360
MR. McCUNE said he hadn't read through it, but he wanted to point
out that it wouldn't involve CINA proceedings, and he isn't sure
why Title 25 amendments are included in this bill. He then
referred members to Section 27, beginning on page 21, noting its
great length.
TAPE 98-63, SIDE A
Number 0006
MR. McCUNE referred to subsection (10) at the top of page 26. He
suggested that if one parent's ability to parent has been impaired
by addictive or habitual use of alcohol, another parent could be
perfectly willing and able to take care of the child. Therefore,
there would be no child protection issue in that case. He
suggested it could read something like subsection (2), Section 31.
MR. McCUNE noted that Section 27 has a long statement of intent
regarding balancing of rights and duties of parents and duties of
the department. He questioned what a lot of that language means,
such as page 22, line 5, which states, "(E) the right to obtain
representation for the child in legal actions". He then referred
to page 2, lines 9 through 11, and asked whether Section 1 doesn't
say the same thing. He indicated he had other concerns but would
wrap up because of the lateness of the hour.
Number 0267
MS. TORKELSON explained that the intent language in Section 1 is
from the Governor's bill; once it gets passed into law, it won't go
into the Alaska Statute books. They had wanted to make sure the
intent doesn't disappear, and to show parental rights and
responsibilities, as well as the duties of the department.
Therefore, they had requested that Legislative Legal Services
codify Section 1 of the Governor's bill, which then became Section
27 in Version H. There are no ramifications in Section 27 per se;
it just lays out what is intended by the rest of the bill.
Number 0374
MR. McCUNE said it is difficult to set out all the rights and
responsibilities of all the parties with regard to children. This
is an admirable effort to do that, and he is certainly glad to see
things in there, from his clients' perspective, about visitation,
reasonable efforts, and so on. However, he wonders about this
difficult and time-consuming exercise. He said he is suggesting
that if they boil the three pages of intent down, it says the same
thing as Section 1, which reads in part: "The intent of this Act
is to protect children from abuse and neglect without prohibiting
the use of reasonable methods of parental discipline or prescribing
a particular method of parenting."
CHAIRMAN GREEN asked whether it is just the length that bothers
him.
MR. McCUNE replied that it is the length, but also these cases are
difficult to do, as they involve the age-old problem of when the
state is able to get involved. As the committees have heard, there
are very strong views about these issues. A shorter section would
say the same thing but not be so difficult for the courts to deal
with in balancing the rights and responsibilities set forth.
CHAIRMAN GREEN indicated the committee would look at that.
Number 0560
REPRESENTATIVE JAMES responded, saying it is from her own
perspective and experience with families' concerns with DFYS and
children in need of aid. She said if the language is not
definitive, it leaves a lot unspoken. "And since that is one of
the areas that is so controversial, I think they wanted to put
everything down; and I think that's probably for good reason," she
concluded.
REPRESENTATIVE CROFT requested that Mr. McCune put his other
concerns in writing.
MR. McCUNE noted that he had sent a memorandum to the House Health,
Education and Social Services Committee. A lot of those concerns
had been addressed in this new version. He offered to revise that
memorandum and send it in.
Number 0650
CHAIRMAN GREEN called on Patricia Arnold in Homer, but was told Ms.
Arnold had had to leave.
Number 0680
WALTER GAUTHIER testified via teleconference from Homer. He first
asked whether the House Health, Education and Social Services
Committee had received two faxes from him, one concerning a
domestic violence charge against an eight-year-old boy, and another
concerning a counselor who had slapped a child.
CHAIRMAN GREEN replied that he remembers the first but not the
second. He asked whether they had been sent together.
MR. GAUTHIER said they were faxed for two different meetings. He
asked that the current committee distribute what they could find of
those.
CHAIRMAN GREEN agreed to do that.
Number 0750
MR. GAUTHIER called members' attention to the legislative audit
report just done for DFYS. He stated, "There was much ballyhoo
about how they need more social workers. I want to make the point
that the budgets that have already been through the House and
Senate both provide for more money for more social workers." He
referred to pages 26 through 28 of the audit and stated, "On page
26, it says, 'Applicants, despite scoring well, were not considered
desirable candidates by hiring managers.' On page 27, it states
that DFYS left 21 positions vacant for all of fiscal year '97. On
page 28, it said, at the top, 'As a result, the agency has
sufficient funding to cover retirement incentive program costs, not
only for staff within the agency's appropriation' - that is, DFYS -
'but for other agencies within the Department of Health and Social
Services."
MR. GAUTHIER said it is the position of Guardians of Family Rights
that DFYS has deliberately created this shortage of social workers.
It has deliberately created these dangerous situations with
children, and has purposefully used the money they save by not
filling these positions to fund the early retirement incentive
program for their fellow bureaucrats.
MR. GAUTHIER next addressed the domestic violence provisions of the
bill, which he said directly relate to the fax he had sent. He
stated, "No matter what these people from the various bureaus tell
you, in front of you, to get this legislation passed, the only
reality is what the law says. Now, that eight-year-old boy charged
with domestic violence can never own a gun, can never possess a
gun, can never grow up to be a policeman or serve in any of the
armed forces of the United States, because he was eight years old
and chased his mom. No matter what these bureaucracies tell you
about how they're not going to enforce this law, and this law is
only going to be used in this situation, the fact is if the law
exists, they will use it as often as they can, because the agencies
are driven by caseload. They need caseload, just like McDonald's
needs customers."
MR. GAUTHIER continued, "One more thing about this is for 20 years
we have been funding more and more social workers, more laws, more
interference by the government in the family. And in Alaska, the
only thing that we seem to have received for 20 years of investment
in interference is the highest child abuse rate in the nation? I
submit to the committee that social workers are not the solution to
our problems with families. Social workers are the problem. Thank
you."
CHAIRMAN GREEN thanked Mr. Gauthier and said he would distribute
that memorandum. He noted that no one was signed up locally to
testify.
Number 0979
JODI OLMSTEAD testified via teleconference from Fairbanks, speaking
on her own behalf and indicating she had put time into issues with
the DFYS and the Child Support Enforcement Division. She told
members she doesn't want to see this bill, or its companion bill,
pass. She doesn't believe that legislators are aware of the total
issue. There is no check and balance when there is a false
allegation, when families are hurt or people are destroyed.
MS. OLMSTEAD recounted how she had been promised a grievance
procedure by the DFYS in 1994, and she asked why the DFYS had the
power to just not follow through. She told members that now all
kinds of negative, uneducated third parties have written materials,
and this has been thrown in her face again. Her son was injured,
and now she is charged with medical neglect; she believes if she
had dealt with the doctor and his instructions, her son wouldn't be
with her today, yet the DFYS takes information from this
professional because he is a doctor.
MS. OLMSTEAD said that social workers generally provide a list, A
to Z, of what to do when getting out of the hospital, which used to
be their goal before they started extracting kids from homes. She
suggested looking at Public Law 96-272 to see why we have foster
care homes and why the citizens review panel was put into place to
begin with; she believes that never should have been changed. She
also suggested looking at mandatory video reporting. She would
like to see a real change in here, instead of a lot of fluff.
"Don't pass that bill; it's got too many things, and you guys don't
know all about each of those issues, which is unfair to the
people," she concluded.
CHAIRMAN GREEN thanked Ms. Olmstead, indicating DFYS acknowledges
there may have been some past problems that are in the process of
being corrected now. He then asked Ms. Wibker to continue going
through the bill for another half hour or so.
Number 1189
REPRESENTATIVE CROFT referred to Mr. McCune's indication, on the
top of page 26, subsection (10), that it should read something like
the language in Section 31, subsection (2), page 25. He asked why
that wouldn't apply to the habitual use.
Number 1226
MS. WIBKER said that is a good question, for which there is a good
answer. Under the law, the conduct of one parent can bring a child
under the jurisdiction of the court; in almost every case involved
in the CINA system, the conduct of one parent has brought the child
under the jurisdiction of the court, whether that conduct is sexual
abuse, domestic violence, or neglect. The exception is
abandonment; the department does not take jurisdiction of a child
who is well cared for by one parent if the other parent has
abandoned the child, although abandonment by one parent can
eventually become important in a case, when the parent there is
engaging in problematic conduct.
MS. WIBKER suggested Mr. McCune's point mixes up jurisdiction to
have legal custody over a child and placement. If the department
goes into a home and finds sexual abuse, domestic violence, crack
cocaine addiction or alcohol addiction, for example, it is the
conduct by one parent that allows the department to have legal
jurisdiction over the case. In this particular instance, the
department would have to prove, by a preponderance of the evidence,
that a parent's ability to parent is substantially impaired by the
addictive or habitual use of an intoxicant. The placement
decision, which she believes is Mr. McCune's point, is separate.
MS. WIBKER stated, "If you have one parent who cannot properly care
for a child because of intoxication, and you have another parent
who is not a drinker and provides good care for a child, you don't
just walk away and trust that, the same as if one parent is
sexually abusing a child and one parent could never dream of that.
You don't just walk away. What you do is, in this particular case,
you may take legal custody of the child but leave the child there
and use legal custody to get the one parent to get treatment. The
reason you don't just walk away is because if one parent is
condoning, enabling, going along with this, letting this dangerous
parent drive with the child, letting this dangerous parent babysit,
you have to do something ... to make this a safe situation for the
child."
MS. WIBKER continued, "You may not remove the child, but you want
legal custody to do something about the home situation. Probably
in 90 percent of the cases, one parent's conduct is problematic,
but you don't just walk away and -- I mean, many, many mothers will
say, 'Don't take my child away; I won't ever leave her alone with
him; I won't ever let him sexually abuse her again; I can make sure
he's never alone ... with her.' ... You still take legal custody,
and then separate from that, you make a decision about whether the
child has to be removed. The point that Mr. McCune makes, I think,
deals with removal. You may not remove that child, but you would
still want to take legal custody."
Number 1395
REPRESENTATIVE CROFT disagreed. He pointed out that except for
(10), all 12 factors listed relate to harm to the child, or even
potential harm to the child. That makes sense, because they are
making the determination that this is a child in need of aid.
However, (10), which is a parent who cannot parent because of the
use of intoxicants, doesn't necessarily mean the child is in need
of aid. The other parent may be doing everything fine, and there
is no link stated of having substantial contact with the child, of
being the custodian at times, or that the other parent is incapable
under some other criteria. It doesn't establish what seems to be
necessary before stepping in.
CHAIRMAN GREEN noted that (10) says "the parent," whereas most
others say "a parent." He asked whether that is because of a
presumption that there is only one parent there.
MS. WIBKER restated that under the law, the conduct of one parent
can bring a child under the jurisdiction of the court.
Number 1494
REPRESENTATIVE PORTER referred to page 26, line 2, and suggested
the difference is that the determination has already been made.
[The language, beginning on line 1, read: "(10) the parent,
guardian, or custodian's ability to parent has been substantially
impaired by the addictive or habitual use of an intoxicant; if a
court has previously found that a child is a child in need of aid
under this paragraph, the resumption of use of an intoxicant by a
parent, guardian, or custodian within one year after rehabilitation
is prima facie evidence that the ability to parent is substantially
impaired as described in this paragraph."]
Number 1512
REPRESENTATIVE CROFT stated his understanding to the contrary, that
the part before the semicolon stands alone. The part
Representative Porter was referring to is additional.
CHAIRMAN GREEN agreed.
Number 1529
MS. WIBKER responded, "The intent was as you've described. If the
parent, guardian or custodian's ability to parent is substantially
impaired by the addictive use of an intoxicant, the state has
jurisdiction there. But then, the second part is where there's a
relapse. And the reason this is written this way is because under
existing law, ... 83 percent of the open cases right now are open
because of substance abuse, either addiction to crack or alcohol.
Under existing law, the department cannot do anything unless the
child ... has been harmed, or at imminent and substantial risk of
harm because of the substance abuse. So, what happens is you can't
do anything 'til somebody gets drunk and hits a child. You can't
do anything 'til someone gets drunk and throws a lamp and the
child's in the line of fire. That's too late."
Number 1571
REPRESENTATIVE CROFT said this is a substantive change; it adds the
idea that the habitual addictive use of an intoxicant by one parent
is sufficient, without a showing that the child has yet been
harmed.
MS. WIBKER responded, "No, you have to prove that the ability to
parent is impaired. So, you've got to have proof that they have
made bad judgment decisions about the care of their child."
CHAIRMAN GREEN asked whether it is one parent or both.
MS. WIBKER said only one parent's conduct is enough. She added,
"If you've got one sober parent, and you've got one parent whose
ability to parent is impaired because of substance abuse, you have
a child in a dangerous situation."
REPRESENTATIVE CROFT said his question is whether this is a major
change in law, or at least a change.
MS. WIBKER replied that this change allows the state to do
something before the child gets hurt.
Number 1612
REPRESENTATIVE CROFT acknowledged it is two steps: A habitual or
addictive use of an intoxicant, plus the substantially impaired
ability to parent. He asked for confirmation that there is not the
third step, of any showing that it has ever affected the child.
MS. WIBKER restated that there is none, other than that the ability
to parent has been substantially impaired. "No, you don't have to
show that the child is suicidal, homicidal, a fire-setter, or has
been hit," she said. "You do have to show this person is getting
in the car, driving drunk, and taking this child with them."
Number 1636
REPRESENTATIVE CROFT pointed out that would be harm to the child.
He asked: If a person is drunk constantly, which substantially
impairs the ability to parent, but if that drunk person is never
the custodian of the child and the other spouse takes care of the
child, must no other link to the child be drawn?
MS. WIBKER replied, "The department should not be doing nothing in
those cases."
Number 1683
REPRESENTATIVE PORTER asked, "Wouldn't it be okay, though, to throw
in some language that, 'and this presents a substantial risk' or
something?"
MS. WIBKER asked, "In lieu of, 'the ability of the parent has been
substantially impaired'?"
REPRESENTATIVE PORTER said no, in addition to it.
MS. WIBKER said it would then read, "the parent, guardian, or
custodian's ability to parent has been substantially impaired by
the addictive or habitual use of an intoxicant, and ...."
REPRESENTATIVE PORTER suggested finishing with, "this has placed
the child in substantial risk."
Number 1722
REPRESENTATIVE CROFT said he was just trying to understand it. He
asked whether that then puts the department in the situation where
it is now, with an extra hoop that they don't want to jump through.
MS. WIBKER replied, "Not quite. The current law is 'imminent and
substantial risk,' so ... you've literally got to catch a parent
with the fist raised to do anything. And that's the problem.
That's too late. When the neighbors call and say, 'Hey, those
people next door are drunk every night, partying, and those kids
are wandering around outside, they're coming over here begging for
food, they're hungry, nobody gets up and takes them to school in
the morning,' whether it's one parent or two, the state should be
doing something about that."
REPRESENTATIVE CROFT suggested they don't even have to say
'substantial,' then. He agreed there can be some logical
assumptions about somebody who is so impaired by habitual and
addictive use of intoxicants that it substantially impairs the
ability to parent. However, he wants to see some logical link to
a potential harm or a substantial risk of harm.
Number 1787
MS. WIBKER suggested, "and the addictive or habitual use presents
a substantial risk of harm to the child."
REPRESENTATIVE CROFT asked whether Ms. Wibker had any problem with
that.
MS. WIBKER said off the top of her head, no. However, she believes
that is what they'd thought they were doing by saying that the
ability to parent has been substantially impaired. "But maybe
not," she added.
Number 1808
CHAIRMAN GREEN asked whether they should continue with a new
sentence, instead of the semicolon, as this would imply it has to
be a second time if they put "and" in there.
MS. WIBKER agreed, adding that this reflects what social workers
deal with every day, where the parent with the problem stays in
treatment a week, then goes home and continues to get drunk. She
said once the state has proved the first time that the inability to
parent creates a risk to the child, then if the parent relapses,
they want the worker to be able to do something quickly and
efficiently, without having to file a new petition, start a new
case, do a new trial and prove all this again.
Number 1869
CHAIRMAN GREEN referred to item (11) on page 26, beginning at line
7. He noted that it talks about a mental illness that has caused
substantial physical harm. Emphasizing the "has caused," he asked
why the difference exists.
MS. WIBKER replied that Representative Dyson has proposed an
amendment to that. She stated, "One of our concerns is that one of
the greatest risks to a child growing up in a home with a mentally
ill parent is not just the risk of physical harm but the risk of
serious emotional problems. And what the amendment does is deal
with the risk to the child of both physical harm and emotional
harm."
Number 1900
CHAIRMAN GREEN asked whether it removes the fact that there has to
have been some physical harm.
MS. WIBKER said yes. Under the amended version, it would read, "of
a nature and duration that places the child at substantial risk of
physical harm or mental injury."
Number 1934
MS. WIBKER briefly touched on the other jurisdictional grounds on
page 25, saying 5) deals with runaways; (6) deals with children who
have been physically abused or at substantial risk; (7) deals with
sexual abuse, with the parallel phrase of having suffered the abuse
or being at substantial risk, plus a proviso that parallels the
"endangering" statute, explaining that parents should not be
leaving children with known sex offenders, and that when they do
that, the child is considered to be at substantial risk; (8) deals
with mental injury to the child, and Representative Dyson has a
proposed amendment on that, which deals with domestic violence and
which fixes the amendment that Representative Bunde was referring
to at the beginning of the hearing; (9) deals with neglect; (10)
they had just talked about, substance abuse; (11) is mental
illness; and (12) deals with a parent actually pressuring or
encouraging a child to commit an act of delinquency.
MS. WIBKER advised members that the major changes here deal with
the specific provisions about domestic violence and substance
abuse. She stated, "Other than that, there is not a major break
from the statute that we had. Mental illness is specifically
addressed more clearly here, but it's broken out and more
specifically defined than before."
Number 2060
REPRESENTATIVE JAMES expressed appreciation for this review, which
she said had been exceptionally helpful.
CHAIRMAN GREEN concurred, noting the length of the bill. [HB 375
was held over.]
ADJOURNMENT
Number 2082
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 4:50 p.m.
| Document Name | Date/Time | Subjects |
|---|