Legislature(1997 - 1998)
04/23/1998 02:30 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 23, 1998
2:30 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Eric Croft
COMMITTEE CALENDAR
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."
- MOVED CSHB 375(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 242(FIN)
"An Act providing for the forfeiture of good time sentence credits
of sex offenders who fail to successfully complete sex offender
treatment programs."
- SCHEDULED BUT NOT HEARD
SENATE BILL NO. 309
"An Act relating to the use of force by peace officers and
correctional officers."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 466
"An Act relating to violations of state election laws."
- SCHEDULED BUT NOT HEARD
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
HOUSE BILL NO. 319
"An Act relating to an employee's expectation of privacy in
employer premises."
- SCHEDULED BUT NOT HEARD
SENATE BILL NO. 313
"An Act relating to sponsor certification of initiative petitions;
relating to sponsor identification during petition circulation;
relating to the voidability of an initiated law; placing
limitations on the compensation that may be paid to sponsors of
initiative petitions; prohibiting payments to persons who sign or
refrain from signing initiative petitions; and repealing procedures
for filing a supplementary initiative petition."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
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)
2/2/98
4/07/98 2900 (H) REFERRED TO JUDICIARY
4/17/98 (H) JUD AT 1:00 PM CAPITOL 120
4/17/98 (H) MINUTE(JUD)
4/20/98 (H) JUD AT 1:00 PM CAPITOL 120
4/20/98 (H) MINUTE(JUD)
4/23/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
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 the proposed
amendments; answered questions.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Explained proposed amendments to CSHB
375(HES).
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).
KEVIN JARDELL, Legislative Administrative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-4990
POSITION STATEMENT: As committee aide, provided information on
CSHB 375(HES); answered questions.
RUSSELL WEBB, Deputy Commission
Office of the Commissioner
Department of Health and Social Services
P.O. Box 110601
Juneau, Alaska 99811-0601
Telephone: (907) 465-3030
POSITION STATEMENT: Answered questions about proposed amendments.
DOUG WOOLIVER, Administrative Attorney
Office of the Administrative Director
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501-2005
Telephone: (907) 264-8265
POSITION STATEMENT: Discussed portions of Amendment 4 to CSHB
375(HES) proposed by court system.
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: Offered Amendments 8 and 9 to CSHB 375(HES);
provided information and answered questions.
JAYNE ANDREEN, Executive Director
Council on Domestic Violence and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Testified on Section 21 of 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(JUD) after it moved
out of committee.
ACTION NARRATIVE
TAPE 98-64, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 2:30 p.m. Members present at the call to order
were Representatives Green, Rokeberg, James and Berkowitz.
Representative Bunde, who was attending another hearing, arrived at
3:15 p.m. Representative Porter joined the evening portion of the
meeting, which began at 7:07 p.m. Representative Croft was
excused.
HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE
CHAIRMAN GREEN announced the committee would again hear 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 advised members that Susan Wibker would continue
explaining the bill [Version H, CSHB 375(HES)].
Number 0056
SUSAN G. WIBKER, Assistant Attorney General, Human Services
Section, Civil Division (Anchorage), Department of Law, referred to
page 26. She told members the statute has a specific abandonment
definition; consistent with current case law, it is defined as a
conscious disregard of parental responsibilities toward a child.
That is expanded in some detail to include leaving a child with
someone without provisions for support; not communicating with a
child; not visiting a child; and not participating in a case plan
or reunification plan through the department with a child. It
includes any absence that creates a substantial risk of serious
harm to a child.
Number 0144
MS. WIBKER outlined an amendment to that definition proposed by
Representative Dyson, which on lines 16 through 18 deletes the
phrase, "and the failure is accompanied by intention on the part of
the parent or guardian to permit the failure to continue for an
indefinite period". Ms. Wibker explained, "We're recommending that
deletion, because ... it's basically impossible to prove; to prove
that someone intended to permit a failure to continue for an
indefinite period could basically be defeated by anybody who
disappeared for ten years and walked in and said, 'I intended to
come back.'"
MS. WIBKER advised members of another amendment to that section, on
page 3 of Representative Dyson's amendments. It includes a
subsection (b) that gives an exception to a battered woman who has
to leave a child or theoretically abandon a child because she needs
to protect herself or protect another child; if she is fleeing
violence to protect herself or another child, and has to leave a
child in a dangerous situation, she would have a legal excuse.
Number 0226
REPRESENTATIVE ETHAN BERKOWITZ referred to subsection (4) on page
26. He asked what the standards are for assessing whether a plan
or program is suitable, and who makes that determination.
MS. WIBKER replied that when a child is in the custody of the
state, the worker has 60 days after taking custody to complete a
case plan, which is a written plan to reunite the child with the
family that all parties sign and agree to. The plan must be
reasonably related to the problem that brought the child into state
custody. Any party who believes the plan is not reasonable or
reasonably related to the problem in the home could request court
review, and the court would make a determination. Ms. Wibker noted
that "plan" is a departmental term.
Number 0331
REPRESENTATIVE BERKOWITZ asked what would happen if one party
didn't agree and refused to sign the plan.
MS. WIBKER said a court order would be sought. If the problem is
alcoholism, the worker would develop a plan for alcohol screening
and participation in whatever the screener recommends; but if the
parent refuses to accept treatment, they may wait until there is a
trial. If the judge finds the child is in need of aid because of
alcoholism, the judge will order that kind of treatment. If the
judge doesn't find that alcohol is the problem, however, the plan
would be unreasonable and would be changed.
Number 0427
REPRESENTATIVE BERKOWITZ asked who formulates these plans.
MS. WIBKER said the department, the caseworker.
REPRESENTATIVE BERKOWITZ asked whether there are standards by which
the plans are formulated.
MS. WIBKER restated that there has to be a nexus between the plan
and the problem that brought the child into custody. If a worker
investigates neglect and finds a child playing in the street,
unsupervised, with a parent passed out on the couch from alcohol,
then the plan will be alcohol treatment and maybe a parenting
class. It couldn't be cocaine treatment or sex offender treatment,
which would be unreasonable.
Number 0496
CHAIRMAN GREEN asked whether a plan might be tailor-made, rather
than off the shelf.
MS. WIBKER replied that generally the plan will require a screening
or evaluation by an alcohol treatment agency or expert. The
resulting recommendation may be for inpatient or outpatient
treatment, or perhaps going to an Alcoholics Anonymous group once
or twice a week, depending on the severity of the problem. The
caseworker will rely on the screening.
Number 0568
REPRESENTATIVE BERKOWITZ said implementation in urban areas is one
thing, where there is more opportunity to participate in a program.
He asked how these plans work in the rural areas.
MS. WIBKER agreed there are fewer resources in rural areas,
although there are some treatment programs. Whereas in Anchorage
a person may be able to choose a program, in a rural area there is
likely no choice. If community-based treatment is possible, they
try to do that. However, in smaller communities, a family may not
want to do treatment there because it is so hard to feel that it is
confidential. "So, they may choose not to do treatment in the
community, but you try to work with what's in a community," she
concluded.
Number 0639
MS. WIBKER discussed page 27. She told members the definition of
neglect is pretty clear. For the definition of physical harm, the
statutory citations correspond to the criminal statutes for violent
crimes; if a child is the victim of a violent crime defined in
Alaska Statute, and the offender is a parent, guardian or
custodian, it would be treated as physical abuse. In addition,
subsection (2), regarding negligent acts or omissions, includes
harm to a child because of failure to supervise properly. Lines 17
through 23 create a limitation on jurisdiction. Ms. Wibker said
this amendment proposed by Representative Dyson does not allow the
state to take custody of children because a family is poor, lacks
adequate housing, or lives a unique lifestyle.
Number 0749
REPRESENTATIVE BERKOWITZ asked whether the statutes in the prior
section relate essentially to assaults and sexual assaults.
MS. WIBKER specified that AS ll.41.100 is homicide and AS ll.41.455
is sexual exploitation. She stated, "And so, that includes all the
violent crimes: homicide, robbery, sexual assault and assault.
And then 11.51 is the endangerment statute."
MS. WIBKER pointed out that the limitations do not prevent the
state from taking legal custody if there is neglect or abuse, even
if a family is poor. But none of those conditions can be the sole
grounds for taking custody, an important limitation. At the bottom
of page 27, she said that is not a substantive change in the law;
it deals with the court's ability to direct inquiries about
children and to handle those. It allows the court to ask a
guardian ad litem (GAL) to investigate something that comes to the
court's attention, for example.
MS. WIBKER next discussed page 28. In the middle of the page, it
outlines what should be in a petition filed with the court. The
only substantive change is adding that the child's tribal
affiliation should be part of the petition; she noted that the
child's tribe is a party to the proceeding. At the bottom of page
28, the addition of "foster parent or other out-of-home care
provider" is important because of changes in federal law that
require that any time there is a hearing in a child in need of aid
(CINA) case, either the foster parent, the relative or whoever is
providing care for the child out of the home should be given notice
of that hearing, in order to attend and have an opportunity to be
heard, even though that person is not a party.
REPRESENTATIVE BERKOWITZ asked whether that would include people
like grandparents and step-parents.
MS. WIBKER replied, "Anybody the child is placed with. If a child
is placed with grandparents, it would be grandparents."
REPRESENTATIVE BERKOWITZ said only if it is a formal placement,
then.
MS. WIBKER said, "If the agency has placed the child there."
Number 0930
REPRESENTATIVE JEANNETTE JAMES asked if they are talking about the
hearing that has to do with whether the state is taking custody, or
an appeal of the custody.
MS. WIBKER clarified that this particular statute refers to the
first hearing, the so-called probable cause hearing.
REPRESENTATIVE JAMES posed a scenario where the parents' home is
not a good place for the child, and the child is at the
grandparents' house, but not because the department had placed the
child there. She asked whether the grandparents would be involved
at all in the proceedings.
MS. WIBKER noted that the statute requires a preference for a blood
relative. If the grandparents are adequate caretakers, the
department most likely would leave the children there, and would
tell them about the hearing.
Number 1068
REPRESENTATIVE BERKOWITZ pointed out that this mentions the
possibility of termination of parental rights. He expressed
concern, saying whenever the specter of termination starts to
become possible, even if it is in the initial stages, he believes
someone in the extended family should be given notice of it.
MS. WIBKER responded, "What this statute does is at the first
hearing the court makes everybody aware that termination is a
possibility."
REPRESENTATIVE BERKOWITZ pointed out that this particular section
merely provides notice to the immediate guardians, in one capacity
or another, rather than to the extended family.
MS. WIBKER agreed that no provision allows the department or the
court to give notice to the extended family.
REPRESENTATIVE BERKOWITZ mentioned that this is a policy call. He
requested that they discuss the possibility of broadening that to
include the family.
CHAIRMAN GREEN agreed to address it later.
Number 1158
MS. WIBKER next addressed page 29. The middle of that page
requires the court to appoint a GAL and gives the option to the
court of appointing a separate attorney for the child. In CINA
proceedings, every child is appointed a GAL. However, occasionally
the child and the GAL disagree on what is in the child's best
interest; generally, that happens when a GAL says it is best that
a teenager go home and live with her parents, for example, but the
teenager wants to live with her boyfriend. In such a case, the
judge can appoint a separate attorney to represent what the child
wants. It is rarely done, but there is authority to do it.
MS. WIBKER told members that on the bottom of page 29, it again
deals with hearings and how those are conducted. The amendments
reflect changes in law regarding persons required to get notice.
It makes explicit here that the foster parent or out-of-home care
giver can attend the hearing and be heard. It also speaks to the
child's best interests; there are limited situations where the
court would decide that perhaps it is not in the best interest for
that person to sit throughout the entire hearing. Ms. Wibker
explained, "The reason for that exception is anything that deals
with the child - the child's welfare, what's best for the child -
the out-of-home care giver is entitled to know all of that
information. What the out-of-home care giver is not entitled to
know is the parents' personal, private background. So, you might
ask that person to leave if you're discussing the parents' conduct,
rather than the child."
MS. WIBKER next discussed page 30. Noting that the adjudication
hearing is the trial on the petition, she said a change in law here
requires that the trial be completed within 120 days of the
probable cause finding. This is important to avoid delays. In
many Alaska cases currently, they do probable cause and the state
gets custody for 90 days, then comes back in 60 days and extends
temporary custody. Children can end up in state custody for
sometimes a year without a trial, which is for proving the
petition. This makes the state prove the petition, because if the
state shouldn't be in the case, or if the problem has been fixed
within 120 days, the state could get out.
Number 1319
REPRESENTATIVE BERKOWITZ noted that in a criminal case, the
consequence for failure to complete it within 120 days is
dismissal. He asked what the consequence is here.
MS. WIBKER replied, "There's an insert here, an amendment, that
deals with continuances, that might answer your question. ... The
consequence would not likely be dismissal."
REPRESENTATIVE BERKOWITZ said he wasn't suggesting that would be
appropriate.
MS. WIBKER said Representative Dyson has proposed an amendment that
says when determining whether to grant a continuance for good
cause, the court shall consider the driving force to be the child's
age and the potential adverse effects of a delay on the child.
Number 1366
REPRESENTATIVE BERKOWITZ responded that he doesn't know what it
could be, but there should be an incentive to the parties to get
this done as expeditiously as possible. A time limit, of and by
itself, is inadequate. He suggested it would be good if they had
a "carrot" out there, if not a stick.
MS. WIBKER said the courts certainly have the power to do that.
REPRESENTATIVE BERKOWITZ mentioned that sometimes the courts are
the offenders.
MS. WIBKER said they are dealing with a crowded court calendar,
with limited time, and the court may have necessity, on its own, to
do this. She added that the court was certainly part of drafting
this. Ms. Wibker told members she believes other states have rules
requiring that cases be adjudicated within 30 days; compared to
other states, Alaska is still slow.
CHAIRMAN GREEN commented, "And Representative Dyson is going to
have an amendment, and I see him nodding and writing."
Number 1439
MS. WIBKER continued with page 30, saying this is the part of the
statute that deals with court orders, once the court finds that a
child is a child in need of aid. The first section is not a
substantive change, other than adding the GAL as a person who can
petition for an extension in custody. Under prior law, when the
state proved the petition, it got legal custody for two years.
Under this proposal, that is cut back to one year, a good change in
light of federal requirements that children have permanency
hearings once a year. This requires that the court look at it for
a year at a time, and custody can only be extended one year at a
time, Ms. Wibker specified.
MS. WIBKER continued with page 30. She said paragraph (1)
basically outlines the authority of the court when the court finds
a child is a child in need of aid. At the end of that paragraph,
it talks about the department's ability to transfer children from
one placement setting to another. It makes clear that parties
should be given notice of changes and transfer in advance of a
move, and should be given an opportunity to request a hearing if
there is an objection to that proposed change. Ms. Wibker said she
believes both Representative Dyson and the state have proposed
amendments to that section to try to put brakes on the department's
ability to move children. Now the department has fairly unfettered
discretion to place children, which is often driven by emergency
requests, where a foster parent calls and says, "Come get this
child." Efforts are being made to change that, and to lower the
number of placements.
Number 1564
REPRESENTATIVE JAMES said she understands the desire not to move
the child much. But where the foster parent calls and asks that
the department come get a child, she asked how this addresses such
situations. She inquired what this does that would make the child
stay in one place longer, or whether there is any answer to that.
MS. WIBKER replied that she thinks there is an answer that is not
totally in statute. Other states are trying to minimize
placements, increase the tenure of foster parents, and look at what
to do to keep foster parents; what makes a difference are things
like good training for foster parents, preparing them for the
behavior disorders, and providing needed information about a child
before the placement, so they know if they are taking on a fire-
setter, a sex offender, or a child with some conduct disorder.
MS. WIBKER advised members that this bill offers foster parents
respite care for stress relief, which wasn't available before
unless a child had a special need or disability, or unless there
was a family emergency. "Smart Start" also proposes a raise in pay
for foster parents. There are all sorts of things to try to better
prepare foster parents, so that a child is able to stay in a
placement longer. Ms. Wibker indicated this doesn't do all of
that, but tries to put the brakes on just quickly moving kids.
Number 1663
REPRESENTATIVE JAMES responded that she had asked because of her
experience with a troublesome teenager. When she had called the
caseworker and said that if the behavior continued, she could no
longer keep the child, the caseworker had insisted to that child
that she stay there and do what she was told, or else the
consequences would be pretty dire. That had worked out, and the
child didn't have to leave. In another case, however, the child
had to go. Representative James inquired if and how this deals
with that. She restated her belief that with the proper
caseworker, sometimes the child can be encouraged to stay.
MS. WIBKER replied, "You're exactly right. What we want is some
process to kick in ... where you try to maintain the placement,
whatever it takes."
Number 1718
REPRESENTATIVE FRED DYSON told members, "One of the complaints
we've heard in earlier public hearing is that a foster parent was
complaining to DFYS [Division of Family and Youth Services] about
policy and procedures, and so on and so forth. And they were
threatened if they didn't shut up, that the foster child that they
had would be taken from them. And as you well know, Representative
James, some of us develop a real bond with these kids. ... I'm
certain that's not a policy of the department."
REPRESENTATIVE DYSON explained that they are trying to have an
appeal procedure to eliminate arbitrary placement changes, plus a
voice for foster parents in future placement, because the foster
parent may have information that is very valuable to that decision
process. He concluded, "We're not there yet, and we haven't
figured out a perfect way to do all of that. My desire has been to
... give that foster parent a greater voice and greater control.
And the department is rightly concerned that their hands not be
tied, and that they not be subject to legal actions ... if we put
something too stringent in there."
Number 1773
REPRESENTATIVE JAMES said she tends to agree, and she believes
having the caseworker work with the foster parent can help to
ensure that the child doesn't get repeatedly moved.
Number 1783
MS. WIBKER continued with page 30. She said subsection (2) deals
with cases where the child is in the custody of the department, but
placed with the child's own parents. She emphasized that removal
and custody are two different decisions. The department initially
gets custody for two years, but at the end of that time, custody
expires; if need be, there can be one-year extensions.
MS. WIBKER next discussed page 31. In the middle of the page, it
deals with orders to terminate parental rights; there are
amendments there to reflect different statutory references. But
because they created a separate section on termination, the
language about burden of proof doesn't need to be there. A change
in the law is that this requires the department to make quarterly
reports to the court on efforts to find a permanent placement for
the child, once the parental rights are terminated. "It used to be
annually, but now that annual permanency hearings are required
anyway, it makes sense to have the reports to the court be more
frequent," she concluded.
Number 1849
CHAIRMAN GREEN asked whether quadrupling the number of reports
creates a significant burden.
MS. WIBKER said it does in preparing reports. A worker must keep
in a file documentation of all efforts to find a permanent
placement for a child. What this means is every 90 days the worker
will have to summarize that documentation in a report to the court.
MS. WIBKER continued with page 31. She said at the bottom is the
section dealing with court orders. This reflects a change in
statute. Under existing law, the first permanency hearing was 18
months after a child was in custody; now it must be 12 months.
MS. WIBKER discussed page 32. Amendments to the notice provision
reflect that foster parents and out-of-home care givers would
receive advance notice of a permanency hearing and would have an
opportunity to attend and be heard. The middle of page 32 deals
with appeals; it expedites the appeal process and requires that if
there is an appeal of a decision of the court, the decision must be
issued no later than 90 days. There are also provisos to
accommodate the schedule of the supreme court reviewing the
decision.
MS. WIBKER told members that for the next section of the statute,
there is a proposed amendment, included in Representative Dyson's
amendments, dealing with AS 47.10.010(l). She stated, "The
amendment was drafted by one of our children's masters and is very
nicely done; it's on pages 2 and the top of page 3. And it just
makes the language a little clearer for the judges on what they
have to find, and what steps they should go through in making
findings. And it would be my recommendation that the committee
adopt the amendment that Representative Dyson has proposed that
deals with the court findings that have to made at a permanency
hearing."
MS. WIBKER advised members that at the bottom of page 33 is the
section of the statute that deals with termination of parental
rights when a parent is incarcerated.
REPRESENTATIVE BERKOWITZ asked whether termination can be based on
the simple fact of incarceration, regardless of the offense.
MS. WIBKER said no.
REPRESENTATIVE JAMES added, "We fixed that a few years ago."
MS. WIBKER referred to the top of page 34 and pointed out that the
period of incarceration must be a significant portion of the
child's minority, considering the child's age and need for adult
care and supervision, that there is no other parent willing and
able to care for the child, and that the incarcerated parent has
failed to make adequate provisions for the care of the child.
Number 2033
REPRESENTATIVE NORMAN ROKEBERG commented that this is the first
time he had seen the language he had sponsored in legislation a
couple of years ago. He expressed concern about the words "willing
and able" being back in here, which he believed to be difficult for
the courts to define.
MS. WIBKER explained that the problematic language was "willing or
able"; a supreme court decision had interpreted that to mean they
could not evaluate ability. "Willing and able" is an important
change, because clearly the court has the ability to decide whether
the other parent is able to care. Ms. Wibker suggested that "able"
is what is important. She recommended that if an amendment is made
here, it would just take out "willing and," because she believes it
is the ability that matters, not the willingness.
Number 2107
REPRESENTATIVE ROKEBERG asked whether that was the In Re S.A. case.
MS. WIBKER said yes.
Number 2123
REPRESENTATIVE JAMES noted that there are times when the other
parent is able but not willing. She said she believes "willing" is
equally important.
CHAIRMAN GREEN said they would get to that debate later.
Number 2168
MS. WIBKER returned to page 34, paragraph (p), which deals with
visitation. She said all of this is new and would be pretty
difficult for the department to do. However, visitation is a very
important part of the policy and the procedure; by law, the
department must provide visitation unless there is clear and
convincing evidence that visits are not in the best interest of the
child. "And we just suggested some alternate language to deal with
that," she added.
MS. WIBKER said at the bottom of page 34 is a section dealing with
the information that the department should provide to a placement
home prior to, and after, taking a child. That is part of making
sure that placement homes get the information they need to care for
children and meet the child's needs.
Number 2231
REPRESENTATIVE BERKOWITZ suggested adding e-mail to this.
MS. WIBKER replied that Representative Dyson proposes an amendment
to that section, but she believes it is mostly housekeeping, rather
than a substantive change.
MS. WIBKER next addressed page 35. She said subsection (r) talks
about information that the court can order the family to give to
the department. This is new. The family has background
information, and this provides continuity of care if the child has
a counselor or pediatrician, for example. Subsections (s) and (t)
deal with changes in placement. The department has a proposed
amendment that differs from this, for the same reason she had
discussed relating to visitation: It is very detailed and puts a
duty on the department that would be difficult to meet.
MS. WIBKER discussed page 36, best interests of the child. She
told members the primary amendment there is to make the child's
health and safety paramount. Also on page 36, there are minor
changes to the existing statute. She said this is the statute that
talks about the relationship of legal custody, and it spells out
the responsibilities of the department, as well as the residual
responsibilities of the parent when the child is in the legal
custody of the department.
MS. WIBKER advised members that on pages 37 through 40 is a new
section called "Reasonable efforts" that reflects major changes in
federal law. Under prior law, there was always a federal and state
duty to make reasonable efforts to prevent removal and to return
the child to the home. The changes in federal law no longer
require reasonable efforts in every case. In so-called aggravated
situations where there has been a homicide of a child, a felony
assault on a child, sexual abuse, torture, chronic abuse or
neglect, the department is now required to look for a safe,
permanent placement and not make efforts to try to reunite that
child with the family. That is an important change.
Number 2388
REPRESENTATIVE BERKOWITZ asked how this reconciles with
termination, which goes by clear and convincing evidence.
MS. WIBKER replied that termination is one possible permanent plan.
In an aggravated case, where the department feels it should not
have to make reasonable efforts, they would request a reasonable
efforts hearing and present evidence of why they should not be
required to reunite this child with the family, because the case
meets one of those conditions. If the judge ruled it was not in
the child's best interest to return home, then 30 days after that
ruling there would have to be a permanency hearing, and the
department would have to present the court with a permanent plan
for the child. Ms. Wibker concluded, "There are many permanent
plans. One option is termination and adoption."
Number 2432
REPRESENTATIVE BERKOWITZ responded, "That's the option, though,
that requires clear and convincing evidence. Any other option that
would remove a child - effectively, permanently - from a home here,
under this standard, is preponderance. Is that right, or am I
missing something?"
MS. WIBKER replied, "Your standard to stop making reasonable
efforts is preponderance. And then, once you stop making
reasonable efforts, you've got to decide: Is Grandma going to
become the legal guardian and raise this child? Is there another
relative? Is there a close family friend that's willing to be the
legal guardian? The department must come up with a permanent plan.
But you're correct, the burden of proof is much higher to terminate
parental rights, because that's a much more serious decision."
Number 2461
REPRESENTATIVE BERKOWITZ expressed concern about a parent losing a
child and termination of parental rights [comments cut off by tape
change].
TAPE 98-64, SIDE B
Number 0006
REPRESENTATIVE BERKOWITZ mentioned high legal protection when doing
a permanent placement. He asked if there is an articulation of the
policy distinction being made that he could read somewhere.
MS. WIBKER replied that the burden of proof to stop making
reasonable efforts is lower than the burden of proof to terminate.
"Terminate is the highest in the CINA statutes," she added.
CHAIRMAN GREEN said they would discuss this when debating the bill.
Number 0019
REPRESENTATIVE JAMES said, "Just continuing on with Representative
Berkowitz' question, so that you've done the preponderance, and
you've decided to stop the reasonable efforts, and now you're going
to the next step. Did I understand [you] to say that if the next
step, then, is termination, that you do have to have the clear and
convincing evidence at that point in time? And if you don't have
clear and convincing evidence, then you could find a permanent
place somewhere else? And if you do find a permanent place
somewhere else, and someplace ... down the line things change, is
there any option for those parents to come back and have a hearing?
Or is it over and finished and done until the child is of age?"
MS. WIBKER replied that it is not over and finished and done. If
the state stops making reasonable efforts and places the child, for
instance, the parents would participate in the decision of where
the child should be. For older children, there generally isn't
termination, because there is a relationship with those parents.
There can be legal guardianships, for example, where the children
still have visits with their parents; those can be overturned, or
parents can come in and attack those later and get their children
back. They are not permanent.
MS. WIBKER continued, "If you proceeded to termination, what you
would have to do is file the petition, do the trial, prevail at
trial, prove your case by clear and convincing evidence.
Termination is ... then permanent. The child would be adopted."
She said the option to the parents depends on the child's age. She
told members, "With very young children, usually ... you just want
a clean break. With older children, where there's already a
relationship, they frequently do open adoptions, where there's
visitation with the parent, even though the child has been adopted
by someone else. That is permanent. But a guardianship or some
other kind of permanent placement would not necessarily be
permanent." She asked whether that answered the question.
REPRESENTATIVE JAMES said sort of, adding that she would make a
note.
Number 0135
MS. WIBKER discussed the termination section, beginning on page 40.
She stated, "As Representative Berkowitz pointed out, the burden of
proof to terminate parental rights, if it's a non-Native child,
it's clear and convincing. If it's a Native child, it's proof
beyond a reasonable doubt; that's in ICWA, the Indian Child Welfare
Act."
REPRESENTATIVE BERKOWITZ told members he had discussed with Ms.
Wibker the language here, and he would be proposing amendments that
would clarify that it is a clear and convincing standard.
CHAIRMAN GREEN took note of that.
Number 0162
MS. WIBKER said the statute requires the court to consider whether
termination is in the best interest of the child; that is not a
change. An earlier statute referenced, on best interest, requires
the court to consider health and safety always paramount. This
clarifies the various grounds to proceed to termination. It is a
change because of federal law; in some cases it is mandatory that
the state file a petition to terminate parental rights, which is
new. In the past, it was a discretionary decision.
MS. WIBKER indicated that under the proposed changes, if there is
foster care for 15 of 22 months, if there is an abandoned infant,
or if the court has decided reasonable efforts aren't required -
the situations where there has been a homicide, a felony assault,
sexual abuse, chronic abuse or neglect, or torture - the state must
then must proceed to termination or give the court a compelling
reason why they did not. A compelling reason not to terminate may
be that some other permanent arrangement has been made, such as
care by a relative or a legal guardian, for example.
Number 0247
CHAIRMAN GREEN asked how much of this is federally mandated, and
whether it is the entire section or sections.
MS. WIBKER replied, "The federal sections are foster care 15 of 22
months, abandoned infant, and there's two other explicit ones ...
that are escaping me right now, that are included in the grounds
where you stop reasonable efforts. The state has added here three
or more attempts within a 15-month period and no effort whatsoever
at the time of the first permanency hearing, which is a year.
Those are state-proposed additions."
MS. WIBKER told members the other reason that the department may
not proceed to termination is if it has not made the required
reasonable efforts. For example, the department must provide
reunification services to the family, and if it has not done so,
that would be grounds not to proceed to termination.
MS. WIBKER explained that the rest of the statute on termination
relates to concurrent planning, a federally required change whereby
even if the state is providing services to return a child home, it
should have some alternative permanent plan. It also requires the
court to set the termination hearing within six months of filing of
the petition, and to issue an order within 90 days after the
conclusion of a trial. This is to keep cases moving; Ms. Wibker
said that has mostly been a problem in Anchorage, where it takes
about a year to get a trial date.
MS. WIBKER next addressed page 43. She said there is an amendment
to the statute that allows parents to call and give confidential
information about their case to legislators, to the ombudsman, or
to various others. In addition, a provision allows the department
to make documents available for inspection when there has been a
request by a parent. At the bottom of page 43 are changes in the
confidentiality statute. Currently, there is a confidentiality
statute regarding the department's records, with some exceptions.
This does some clarification with the exceptions, including a
specific exception for foster parents, so they can get information
needed to care for a child and to protect their own families.
Number 0374
CHAIRMAN GREEN asked whether anything in this new edition
conflicts with the work done last year about opening up DFYS
records.
MS. WIBKER said no.
MS. WIBKER continued with page 44, saying there are confidentiality
exceptions so that members of teams can work together; she
mentioned the child fatality review team and the multidisciplinary
team. She explained, "Frequently, we have people who will make a
report of harm, and they'll keep calling because they think nobody
did anything. And maybe the case was investigated and something
was done. ... Or they just want to know what happened. This allows
the worker to get back to the person and tell them the outcome.
And then there's an exception so that Child Support [Enforcement
Division] can collect child support. Children who are in the legal
custody of the state, their parents are still required to pay child
support, to pay the state for their support and care. And so
there's an exception to confidentiality for Child Support."
Number 0434
CHAIRMAN GREEN asked whether there was a way to briefly cover the
remaining 20-some pages. He indicated his intention of taking up
the bill, with amendments, when the committee returned at 7 p.m.
MS. WIBKER said most of the next pages just amend the statutes so
that the word "minor" is replaced with "child." The definitions
section starts on page 47. Then most of the amendments after that
they had already discussed; these include respite care, placement
changes and placement decisions. In addition, there is a creation
of a multidisciplinary child protection team that would serve in an
advisory capacity, doing consulting with the department; she
doesn't believe any significant amendments are currently proposed
relating to that.
Number 0500
REPRESENTATIVE ROKEBERG asked whether that is a pilot program.
MS. WIBKER said multidisciplinary teams are new. They can be set
up to serve any purpose but generally are set up to assist in
investigations, as this is. The investigative stage is critical in
the case. Ms. Wibker explained, "Say, if a worker had to make a
decision if there was an assault or an accident, this would be a
team of professionals that would, say, include a doctor that could
look at x-rays or look at photographs of bruises and give some
technical assistance. It's to help the department ... make their
conclusions, to make sure that they have all of the information."
REPRESENTATIVE ROKEBERG asked for confirmation that this is
different from the child fatality team.
MS. WIBKER affirmed that, saying the child fatality team would do
death investigations.
Number 0545
REPRESENTATIVE DYSON added that one thing that came out of the
Governor's task force is that the right people weren't talking to
each other. For example, the DFYS personnel weren't talking to law
enforcement officials when there was a child abuse case with
domestic violence filings on the same household, plus outstanding
warrants. This multidisciplinary team sets up a mechanism for
continuing communication between different agencies and community
groups, and it removes the confidentiality barriers that kept them
from talking to each other.
Number 0569
REPRESENTATIVE JAMES expressed support for having these teams, but
asked whether they would be set up for a specific case or would be
already identified. She further asked how many would there be.
MS. WIBKER replied that they current operate all over the state,
but they are not in statute. One of the most active teams is in
Bethel, and there is one in Fairbanks, for example. They are
assembled with a diverse group of professionals that bring various
expertise to the table. A member of the team can present a case to
the team, and then a meeting would be called. If some specific
expertise is needed that is not represented, that expertise can be
added to the team for a particular case.
Number 0630
REPRESENTATIVE JAMES asked whether there is any payment for this
service.
MS. WIBKER said people are just doing it as part of their jobs.
REPRESENTATIVE JAMES asked whether there was any reimbursement for
costs.
MS. WIBKER said they are troopers, VPSOs [village public safety
officers], pediatricians, and people in Head Start, for example.
"They're just doing it," she restated.
CHAIRMAN GREEN suggested it is done locally, so there is no travel
expense.
MS. WIBKER affirmed that.
Number 0662
MS. WIBKER told members there is just one more important change, to
licensing foster homes, coming from federal law. Whenever the
department pays someone or licenses a home to care for a child,
they are now required to do a full criminal background check,
including a fingerprint check; that is on page 55. It also gives
the department the authority to do criminal background checks on
parents and perpetrators. She noted that the section on licensing
starts on page 57.
REPRESENTATIVE BERKOWITZ asked whether Social Security numbers are
kept confidential somewhere.
CHAIRMAN GREEN said that may be an item of debate, noting that it
is a hot issue.
MS. WIBKER responded that these are people going to the department
and saying that they want to care for this child, and they want to
get paid to do so. "And that means the department has to license
that home," she explained. "So the department is going to ask for
information about the people in that family over 16 for the purpose
of finding out what's in their background, because under this law,
if you find certain kind of crimes, you cannot license that home,
and you cannot place children there."
Number 0727
REPRESENTATIVE BERKOWITZ suggested it would be more appropriate to
give privacy protections, essentially the equivalent of in camera
review, where the department keeps this information in a
confidential, secure area, for Social Security numbers and
fingerprints, if there is no problem. He added, "If there is a
problem related to an application, then you proceed accordingly.
But I think the privacy interests of everyone involved would
suggest to me that you don't want to disseminate Social Security
numbers."
CHAIRMAN GREEN restated that this is a hot issue. He asked whether
there is a way that the Social Security number, and perhaps even
the fingerprints, could be kept in a place in the file that
wouldn't be a public record.
MS. WIBKER said this would be in a licensing file, and a licensing
unit does this. She suggested that someone from the department who
knows how licensing works could explain the protections.
Number 0774
REPRESENTATIVE JAMES commented, "Once you give your fingerprints
and you do the background check - and I assume file with FBI
[Federal Bureau of Investigation] - the fingerprints are there."
She expressed concern about the Social Security number but noted
that people put it on driver's licenses, unless they refuse to do
so.
REPRESENTATIVE BERKOWITZ said he had refused.
CHAIRMAN GREEN indicated they may want to hear from someone on this
during debate. He thanked Ms. Wibker.
REPRESENTATIVE JAMES also thanked Ms. Wibker for her time.
Number 0861
CHAIRMAN GREEN recessed the meeting at 3:36 p.m.
TAPE 98-65
Number 0001
CHAIRMAN GREEN reconvened the House Judiciary Standing Committee
meeting at 7:07 p.m. Present at that time were Representatives
Green, Bunde, Porter and James. Representatives Rokeberg and
Berkowitz arrived at 7:09 p.m. and 7:11 p.m., respectively.
Representative Croft was excused.
[TAPE 98-65 is blank, but handwritten log notes were taken. A copy
of the log notes may be obtained by contacting the House Records
Office at 130 Seward Street, Suite 211, Juneau, Alaska, 99801-1182,
(907) 465-2214, or after adjournment of the second session of the
Twentieth Alaska State Legislature, in the Legislative Reference
Library.]
During this 90-minute portion of the meeting, the following persons
besides committee members spoke:
SUSAN G. WIBKER, Assistant Attorney General, Human Services
Section, Civil Division (Anchorage), Department of Law, testified
about the amendments and answered questions.
REPRESENTATIVE FRED DYSON explained proposed amendments.
LISA TORKELSON, Legislative Assistant to Representative Fred Dyson,
Alaska State Legislature, explained proposed amendments.
KEVIN JARDELL, Legislative Administrative Assistant to
Representative Joe Green, Alaska State Legislature, as committee
aide, provided information and answered questions.
RUSSELL WEBB, Deputy Commission, Office of the Commissioner,
Department of Health and Social Services, answered questions
regarding proposed amendments.
DOUG WOOLIVER, Administrative Attorney, Office of the
Administrative Director, Alaska Court System, discussed amendments
proposed by the court system.
During this 90-minute portion of the meeting, the following action
was taken:
The first amendment, H.1 [0-GH2009\H.1, Lauterbach, 4/17/98] was
amended in three sections and adopted as Amendments 1, 2 and 3.
Although sometimes there was reference to amending the bill itself,
rather than amending the amendment, the following contains the
changes that were adopted. [The line numbers at the left
correspond with the beginnings of key points in amendment H.1,
although the lines do not fall identically here.]
AMENDMENT 1. Page 1, lines 1 through 21, of amendment H.1
originally read:
1 Page 21, line 31, following "child":
Insert ", including the right to direct the child's
medical care and the right to exercise reasonable corporal
discipline"
4 Page 22, lines 9 - 23:
Delete all material and insert:
"(2) it is the policy of the state to strengthen families
and to protect children from child abuse and neglect; the
state recognizes that, in some cases, protection of a child
may require removal of the child from the child's home;
however,
9 (A) except in those cases involving serious risk to
a child's health or safety, the Department of Health and
Social Services should provide time-limited family
support services to the child and the child's family in
order to offer parents the opportunity to remedy parental
conduct or conditions in the home that placed the child
at risk of harm so that a child may return home safely
and permanently; and
15 (B) the state also recognizes that when a child is
removed from the home, visitation between the child and
the child's parents or guardian and immediate family
members reduces the trauma for the child and enhances the
likelihood that the child will be able to return home;
therefore, whenever a child is removed from the parental
home, the Department of Health and Social Services should
encourage frequent, regular, and reasonable visitation of
the child with the child's parent or guardian and
immediate family members;"
The above was amended to strike the word "immediate" before "family
members" on lines 17 and 21 of H.1, subsection (2)(B); the
committee aide indicated there had been discussion that it should
be similarly stricken throughout the amendments.
The foregoing was adopted as Amendment 1.
AMENDMENT 2. Page 1, line 22, through page 2, line 4, of amendment
H.1 originally read:
22 Page 23, line 10:
Delete "immediate and regular"
Insert "reasonable"
2 Page 23, line 11:
Delete "extended"
Insert "immediate"
This was deleted, then replaced by "Amendment to Amendment #1",
which originally read:
Page 23, line 10-11
Delete (E)
Replace with "frequent, regular, and reasonable
visitation with the parent or guardian and immediate family
members should be encouraged; and [no end quotation marks
provided]
The above replacement was amended by deleting the word "immediate".
It was then adopted as Amendment 2.
AMENDMENT 3. Page 2, line 5, through page 3, line 21, of amendment
H.1 originally read:
[Page 2]
5 Page 23, lines 18 - 20:
Delete all material.
7 Renumber the following paragraph accordingly.
8 Page 25, line 9, following "injury":
Insert ", as evidenced by an observable and substantial
impairment in the child's ability to function"
11 Page 25, line 29, following "child":
Insert ", as evidenced by an observable and substantial
impairment in the child's ability to function, or have
resulted in exposure of the child to domestic violence as
defined in AS 18.66.990"
15 Page 26, lines 8 - 10:
Delete "has caused substantial physical harm to the child
or creates a risk of substantial physical harm to the child"
Insert "places the child at substantial risk of physical
harm or mental injury"
19 Page 26, line 13, following "Abandonment.":
Insert "(a)"
21 Page 26, lines 16 - 17:
Delete "and the failure is accompanied by intention on
the part of the parent or guardian to permit the failure to
continue for an indefinite period"
[Page 3]
1 Page 27, following line 3:
Insert a new subsection to read:
"(b) For purposes of (a) of this section, a parent
or guardian who is a victim of domestic violence, or who
has a child in the parent's or guardian's care who is the
victim of domestic violence, is considered to have
justifiable cause to take an action or to fail to take an
action that would otherwise be considered to be
abandonment of a child under (a) of this section if the
action or failure to act is necessary to protect the
parent or guardian, or a child in the care of the parent
or guardian, from further acts of domestic violence.
However, a parent or guardian who initially had
justifiable cause to act or fail to act as described in
this subsection may be considered to have abandoned the
child without justifiable cause for purposes of (a) of
this section if the parent or guardian does not take
reasonable steps to reunify with or provide care for the
abandoned child after becoming secure from further acts
of domestic violence or after providing that another
child in the care of the parent or guardian is secure
from further acts of domestic violence."
16 Page 30, line 7, following "hearing.":
Insert "When determining whether to grant a continuance
for good cause, the court shall take into consideration the
age of the child and the potential adverse effect that the
delay may have on the child."
20 Page 30, lines 24 - 25:
Delete "the child's health care providers."
The above from H.1 was amended as follows:
On page 2, beginning on line 9, the phrase "as evidenced by an
observable and substantial impairment in the child's ability to
function" was deleted. It was replaced with the phrase, "as
defined in [AS] 47.17.290".
On page 2, line 14, subsection "(3)(a)" was added following "AS
18.66.990". However, lines 12 through 14 were then deleted
entirely and replaced with the phrase, "or placed the child at
substantial risk of mental injury".
The foregoing was adopted as Amendment 3.
AMENDMENT 4. There was a motion to adopt Amendment 4 [0-
GH2009\H.2, Lauterbach, 4/16/98] for discussion purposes. [Five
pages long, it is not provided herein but is in the committee
packet and is attached to the hard copy of the committee minutes.
The first two and a half pages were proposed by the Alaska Court
System and offered by Representative Dyson. Doug Wooliver of the
court system addressed permanency hearings and other topics, and
the committee went through the first page. The third tape begins
nine or ten minutes after Amendment 4 was first brought up.]
TAPE 98-66, SIDE A
Number 0001
MS. TORKELSON referred to page 2, Amendment 4, continuing to page
3, line 3. She told members Section 41 is rewritten to group like
areas together.
CHAIRMAN GREEN asked whether that just replaces everything removed
on the prior page [which says, "Page 32, line 27, through page 33,
line 25: Delete all material and insert:"].
Number 0041
REPRESENTATIVE DYSON said yes, adding that William Hitchcock,
Children's Master, Alaska Court System, had looked at this section,
which had been amended several times, from the perspective of a
judge; he had reordered and reorganized it so that it makes more
sense to read through. The changes are not substantive.
CHAIRMAN GREEN asked whether there was any objection; there was
none. He next called members' attention to page 3, line 4,
Amendment 4, which says, "Page 34, lines 26 - 27: Delete all
material".
MS. TORKELSON said she believes that completes the court-requested
amendments.
REPRESENTATIVE JAMES asked about line 25 of the bill, then noted
that the subsequent change to page 34, line 28, completes that.
REPRESENTATIVE BRIAN PORTER asked what it does.
Number 0275
MS. WIBKER referred to page 34, lines 26 and 27, of the bill. She
said the court commits children to the custody of the department
but doesn't have authority to place children. The drafter
clarified this to say that if the court orders a child committed to
the department under (c) of this section for placement in licensed
foster care, the court shall order the department to provide the
foster parents with information in subsection (1). And then in
subsection (2), the foster parents are ordered to do certain things
for the department. This section is broken into (1), with
subsections (A), (B) and (C), and (2), with subsections (A), (B)
and (C). Ms. Wibker said when children are committed to the
custody of the department, the department will give certain
information to the foster parent, who in turn will maintain
records, provide records to the department, and maintain the
confidentiality of records. She concluded, "So, to understand the
amendment, you really have to go through the rest of the page. The
amendment is just better organized."
Number 0380
MS. TORKELSON commented that it is Legislative Legal Services'
version of her own memorandum.
CHAIRMAN GREEN inquired about Representative Berkowitz' suggestion
about electronic mail in this section.
REPRESENTATIVE BERKOWITZ indicated it is on page 35, line 7, of the
bill that he is considering adding e-mail.
MS. TORKELSON asked if his suggestion is "names, addresses,
telephone numbers and e-mail."
REPRESENTATIVE BERKOWITZ said yes.
Number 0450
REPRESENTATIVE ROKEBERG objected, expressing concern that e-mail
may be out of date soon.
REPRESENTATIVE BERKOWITZ said he wouldn't pursue it at this point.
Number 0480
CHAIRMAN GREEN asked whether there was any objection to page 3,
lines 4 - 15, Amendment 4.
MS. TORKELSON indicated it would be through line 28, to include
subsection (B). She noted that it is Legislative Legal Services'
reworking of sections and subsections.
Number 0513
REPRESENTATIVE PORTER asked whether that means there is no
substantive change.
MS. WIBKER responded that the substantive change just adds in that
the foster parent will maintain records for the department. Other
than that, it is just better organized. However, there is a
technical error on page 3, line 8, Amendment 4, which inserts
"section for placement in licensed foster care, the court shall
order the ". That should read, "section and the department places
the child in licensed foster care, the department shall provide".
Ms. Wibker said it is a duty the department should do, without a
court order; part of that is a suggestion from Mr. Webb.
REPRESENTATIVE JAMES pointed out the need to remove "department to
provide" from subsection (1), then.
Number 0720
MS. TORKELSON asked whether they could provide it to Legislative
Legal Services as a conceptual amendment that says they don't want
the court to order it.
CHAIRMAN GREEN agreed to that.
Number 0803
MS. TORKELSON next referred to page 4, lines 1 - 2, Amendment 4,
which says:
Page 35, line 13: Delete ", without a court order,"
MS. TORKELSON explained, "As we understood, the problem with both
(s) and (t) of the bill was ... putting the court within these two
sections. And so, ... of the amendment, lines 1, 3, 6 are just
basically taking out the court: 'the department may not change the
placement of a child' in line 13 of the bill; and in line 25 of the
bill, 'return receipt requested, of an intent to change the
placement of a child whose change of placement is not governed'.
It takes the court out of that section but leaves the basic idea."
Number 0866
REPRESENTATIVE DYSON added, "What we were after here - and it's an
honest point of contention between my office and the department -
is to minimize the number of changes of placement of the child.
The department argues that what we have before you here, in the
committee substitute, is too rigorous and puts an undue burden on
the department. We have absolutely agreed to take out the court
order here, so that they don't have to go to court to get a change
of placement; and we agree on that. Now, later in the evening I
will certainly petition you to hear from the department that all of
section (s) and (t) should be changed. ... So, the first three
changes here, on top of page 4, are just getting the court out of
the pipeline here."
CHAIRMAN GREEN asked whether there was any objection to those first
three sets of changes. Hearing none, he asked Ms. Torkelson to
continue.
Number 0954
MS. TORKELSON referred to page 36, line 1 [page 4, lines 8 - 10,
Amendment 4]. She said "timely" has been indicated to be an
important inclusion, keeping in mind that time is a big factor in
a child's life.
MS. TORKELSON then referred to page 37, line 17 [page 4, lines 11 -
13, Amendment 4]. She said Legislative Legal Services had noted
that "parents" should be "parent or guardian", because not every
child has two parents. A similar change is made to page 37, line
19, of the bill [page 4, lines 14 - 16, Amendment 4].
REPRESENTATIVE DYSON told members the last portion adds, "if
community services are available and desired by the parent or
guardian".
Number 1058
MS. TORKELSON referred to page 38, line 6 [page 4, line 20 - 21,
Amendment 4]. Page 38, lines 5 and 6, read: "(2) the parent or
guardian has (A) committed homicide under AS 11.41.100 - 11.41.130
of a child;". She said this insertion of "a parent of the child or
of" following the word "of", suggested by Legislative Legal
Services, combines into one concise sentence the homicide of a
child and the homicide of a parent.
Number 1101
MS. TORKELSON referred to page 39, line 8 [page 4, lines 22 - 23,
Amendment 4]. She said "or" is being deleted in (8) because of the
addition of (10) on page 5 of the amendment. On page 5, "or" is
added to (9), followed by "(10) the parent or guardian is
incarcerated and is unavailable to care for the child during a
significant period of the child's minority, considering the child's
age and need for care by an adult". Ms. Torkelson noted that this
is all talking about reasonable efforts. If the parent is in jail
the whole time of the child's youth, until age 18, there is really
not an easy time to reunify the child with the parent.
MS. TORKELSON next discussed page 46, lines 29 through 32 [page 5,
lines 5 - 10, Amendment 4]. She said these change "minor" to
"child" for consistency within this title.
Number 1194
REPRESENTATIVE DYSON said he sensed agreement with the housekeeping
changes just discussed, but he pointed out that the last change on
page 5 is substantive.
MS. TORKELSON addressed that change. Page 5, lines 11 - 13,
Amendment 4, read:
Page 59, lines 23 - 24:
Delete "an additional period of up to 90 days"
Insert "one or two additional periods of up to 90 days
each"
MS. TORKELSON said they understand from the Department of Public
Safety that they cannot always get federal fingerprint information
within 180 days. She explained, "We're talking about an emergency
foster home license. Emergency means they have everything but the
fingerprint check by the federal government."
Number 1258
REPRESENTATIVE CON BUNDE asked whether they hadn't covered this in
the House Health, Education and Social Services Committee (HES).
MS. TORKELSON said they had put 90 days in there.
REPRESENTATIVE DYSON indicated they had suggested a renewal for
another 90 days, but the department is now saying that still isn't
enough. Therefore, this provides a third 90-day period, if
necessary. Representative Dyson reminded members that the state
would have already gone through all its criminal records; this is
waiting for the federal information.
MS. TORKELSON added that it is fingerprint information.
REPRESENTATIVE DYSON noted indications that the federal
government's performance in this area is likely to improve.
REPRESENTATIVE PORTER commented, "One of the problems is that
sometimes they reject the prints; you'd have to start all over
again. And that really is a problem."
REPRESENTATIVE BUNDE said he removes his objection to Amendment 4,
as modified.
Number 1350
CHAIRMAN GREEN asked whether there was any other objection. There
being none, Amendment 4, as amended, was adopted.
Number 1380
REPRESENTATIVE BUNDE made a motion to adopt Amendment 5, a 3-page
amendment (hand-labeled 4B), which said at the top, "Proposed
Amendments to CS to HB 375 after 4/17 hearing."
REPRESENTATIVE PORTER objected for discussion purposes.
Number 1501
MS. WIBKER explained that after the previous Friday's hearing, she
had highlighted things that had come to her attention. The first
is a housekeeping change on page 3, line 7, so that it reads "child
or minor"; that is because that statute refers to both a child in
need of aid and juvenile delinquency.
CHAIRMAN GREEN asked why one wouldn't suffice.
Number 1561
MS. WIBKER replied, "Because when you're talking about 47.10, it's
proper to use 'child'; when you're talking about 47.12, it's proper
to use 'minor.' And that statute is talking about both."
MS. WIBKER referred to the second proposed change in Amendment 5,
which read:
Page 15, line 7, line 9, line 26, line 28, delete "AS
11.41.460"
MS. WIBKER explained that AS 11.41.460 is misdemeanor indecent
exposure; she isn't sure whether the committee wishes, in the
statutes dealing with teaching certificates, to refuse to give a
teaching certificate, or to revoke one, if a person has a
misdemeanor conviction for indecent exposure.
MS. WIBKER mentioned the hearing on April 17, 1998, where the
committee had discussed that; noting that the existing statute
includes misdemeanor indecent exposure, she corrected her own
statement from that meeting. She told members, "Senator Pearce has
the same amendment in a different bill, and there was some debate
in her bill, whether or not to include misdemeanor indecent
exposure. I thought that she took it out, but I went to double-
check, just to be sure, and it is still in there."
REPRESENTATIVE PORTER asked, "Didn't we determine that misdemeanor
indecent exposure was intentional exposure, and other acts, as
opposed to getting caught behind the bush?"
MS. WIBKER said it requires an exposure with also a reckless
disregard for the offensive disregard on the person.
REPRESENTATIVE PORTER paraphrased as he read from AS 11.41.460,
which says, "intentionally exposes the offender's genitals to
another person with reckless disregard for the offensive,
insulting, or frightening effect the act may have on that person."
REPRESENTATIVE BERKOWITZ said that is in this jurisdiction, but the
City of Seward has statutes where public urination is indecent
exposure. In other states, without going into the litany of
exposures possible, some are youthful folly or exuberance.
CHAIRMAN GREEN asked the committee's wish about leaving in or
removing AS 11.41.460.
REPRESENTATIVE BERKOWITZ said he wishes to remove it.
Number 1693
REPRESENTATIVE PORTER objected. He explained, "I think that is the
specific reference that should stay in, because that's the one that
defines what I just read." He noted that it would exclude Seward's
ordinance.
REPRESENTATIVE BERKOWITZ responded that it wouldn't exclude
streaking or perhaps something in another jurisdiction that would
be mooning.
REPRESENTATIVE PORTER said no, mooning is not genitals.
REPRESENTATIVE BERKOWITZ replied that in another jurisdiction, it
could be construed as substantially similar.
REPRESENTATIVE JAMES said it depends on how far one bends over.
Number 1801
CHAIRMAN GREEN requested a roll call vote on that portion of
Amendment 5, saying the motion was to remove AS 11.41.460 in four
places on page 15, and a "yes" vote would be to take it out.
Voting "yes" was Representative Berkowitz. Voting "no" were
Representatives Bunde, James, Porter, Rokeberg and Green.
Representatives Croft was excused. Therefore, the motion failed by
a vote of 5-1. [Amendment 5 was therefore amended by removing the
portion that would have deleted "AS 11.41.460" on page 15.]
Number 1812
MS. WIBKER referred to the next proposed change in Amendment 5,
which read:
Page 26, line 1-2 should read: "the parent, guardian or
custodian's ability to parent has been substantially impaired
by the addictive or habitual use of an intoxicant and the
addictive or habitual use of the intoxicant has resulted in a
substantial risk of harm to the child;"
MS. WIBKER said she believes that was suggested by Representative
Croft at the April 17, 1998, hearing, and that Representative
Porter may have come up with the language. It deals with the
statute on addiction to substances. There had been concern that
they add that the addictive or habitual use of the intoxicant has
resulted in a substantial risk of harm to the child. The first
clause would be replaced with this language.
MS. TORKELSON added that after "intoxicant" on line 2, it would
say, "and the addictive or habitual use of the intoxicant has
resulted in a substantial risk of harm to the child;".
Number 1888
REPRESENTATIVE BERKOWITZ said if he recalls the conversation, one
concern was that the other parent also had to be absent. There was
concern about one parent having a substance abuse problem when the
other parent did not.
MS. WIBKER said she believes this was the proposal after that
discussion, as a way to resolve the concerns. This would require
a substantial risk of harm to the child.
Number 1917
REPRESENTATIVE BERKOWITZ told members it is not his intent that if
one parent has a substance abuse problem, but the other doesn't,
the problem of one parent can be used as a vehicle for initiating
proceedings, of and by itself.
MS. WIBKER replied, "That's why that language was added. Only if
their ability to parent is substantially impaired and there is a
substantial risk of harm to the child."
Number 1970
REPRESENTATIVE ROKEBERG said Representative Berkowitz brings up a
good point. In this whole section, which is very important, it is
written in the singular, as to a parent.
MS. WIBKER said the law is that the conduct of one parent may bring
the child under the jurisdiction of the court.
REPRESENTATIVE asked, "Notwithstanding the other parent is ready,
willing and able to provide that care?"
MS. WIBKER said that is correct. It becomes a placement issue,
rather than a jurisdiction issue. Generally, the conduct of one
parent does bring the child under the jurisdiction of the court,
such as when one parent sexually abuses or batters the child, or is
an alcoholic. Separate from that is a placement issue. Both state
and federal law require that the state make efforts to prevent the
need for removal and have what they call a kinship preference,
which is placement with a relative.
REPRESENTATIVE ROKEBERG asked what happens to the other parent
here.
MS. WIBKER replied, "You place the child with that parent if you
can."
REPRESENTATIVE PORTER said, "Which induces the bad one to leave."
REPRESENTATIVE JAMES noted that the state is still supervising the
family.
REPRESENTATIVE ROKEBERG expressed concern. He asked, "If there's
a parent there willing to take the child, what's the business of
the state have to do with anything, injecting themselves in there?"
CHAIRMAN GREEN said, "Except that we've added that if there is a
substantial risk to the child."
REPRESENTATIVE ROKEBERG said it is only from one parent.
CHAIRMAN GREEN said that is all it takes.
MS. WIBKER agreed that if one parent is endangering the child, it
is enough.
Number 2042
REPRESENTATIVE BUNDE posed a situation where there are two parents,
one of whom is a crack addict and dealer, and that behavior causes
gunfire in the home. That person would have to leave the home,
which couldn't be done unless the child was found in need of aid
and placed with the other parent. Then the first parent couldn't
come back.
REPRESENTATIVE ROKEBERG said the logic escapes him, suggesting it
is a philosophical debate.
Number 2073
MS. WIBKER brought up the next proposed change in Amendment 5,
which read:
page 28, line 26 should read: "the child, each parent, the
tribe, the foster parent...... [no end quotation marks
provided]
MS. WIBKER explained that this just adds the tribe to the list of
people that would be notified. She said the reason is that tribes
are parties, whereas foster parents are not. It didn't seem right
to list foster parents as getting formal service and notice of a
procedure without including the tribe.
CHAIRMAN GREEN asked whether there was any objection; none was
heard.
Number 2096
MS. WIBKER addressed the next proposed change in Amendment 5, which
read:
page 34, lines 10 - 24 should be replaced with:
(p) if a child is removed from the parental home, the
department shall provide reasonable visitation between the
child and the child's parents, guardian, and immediate family.
The court may require the department to file a visitation plan
with the court. The department may deny visitation to the
parents, guardian or immediate family members if there is
clear and convincing evidence that visits are not in the
child's best interests. Any parent or guardian who is denied
visitation may request a review hearing.
MS. WIBKER informed members this is alternative language proposed
by the state. The language in CSHB 375(HES) has a lot of detail
about the time and frequency of visits. This makes a more general
statement, without locking the department into a specific time
schedule; it basically reflects the current state of the law.
Number 2119
REPRESENTATIVE DYSON indicated this has been a contentious point.
He said the department, probably rightly, feels that if there are
specific times like 72 hours or at least once a week, they may be
subject to action when it doesn't happen for one reason or another.
They don't want that kind of vulnerability, although they say they
are committed to early, frequent visitation from the family
members. Representative Dyson stated, "This is one of those cases
where Mr. Webb has promised me that in the training for the staff,
and in their policy and so on, early, regular visitation by parents
will be a part of it. And I've asked him to make that a part of
the reporting that they do to us on how they're doing with these
kids."
Number 2165
REPRESENTATIVE BUNDE asked if the three levels of evidence are
preponderance, clear and convincing, and beyond a reasonable doubt.
He stated his understanding that this elevates the level of proof
to the highest civil level.
MS. WIBKER affirmed that, adding that this is the current state of
the law. By law, the department must provide visits unless there
is this level of evidence to stop it.
REPRESENTATIVE BUNDE said that mollifies some of his concerns.
Number 2203
REPRESENTATIVE BERKOWITZ pointed out that "immediate" is in here,
which they had exorcised earlier; he asked whether they are going
to do that again. He then asked what happens when there is one
Caucasian parent and one Native parent.
MS. WIBKER replied that if it is an Indian child, it falls under
the Indian Child Welfare Act and the standard is (indisc.).
REPRESENTATIVE BERKOWITZ asked whether it is based on the child,
not the parent.
MS. WIBKER said it is the child that the court has jurisdiction
over.
CHAIRMAN GREEN asked if the child of one Caucasian parent and one
Indian parent would still be considered an Indian child.
MS. WIBKER said yes.
REPRESENTATIVE ROKEBERG asked what the standard is.
MS. WIBKER said it is whatever the federal law is that defines it.
Number 2250
REPRESENTATIVE BUNDE announced that he would like to withdraw his
three amendments, which hadn't been formally offered, as well as
himself. He indicated he may reintroduce one of those amendments
later.
CHAIRMAN GREEN asked whether there was any objection to the
proposed change in (p) just discussed.
REPRESENTATIVE BERKOWITZ mentioned removal of "immediate."
REPRESENTATIVE ROKEBERG pointed out that it occurs twice there.
Number 2338
CHAIRMAN GREEN next brought up the proposed change that read:
Page 35, lines 4-5, delete "for placement in licensed foster
care or for placement with a relative of the child,"
MS. WIBKER advised members to ignore that, as the change had been
made when going through Representative Dyson's amendments; she
indicated that was confirmed by Mr. Webb.
CHAIRMAN GREEN next asked whether there was any objection to
deleting "or custodian" from page 35, line 5; none was heard.
Number 2407
CHAIRMAN GREEN brought up the next proposed change in Amendment 5,
which read [original punctuation provided]:
Page 35, lines 12-31 and page 36, lines 1-4 should be replaced
with:
(s) the department may transfer a child, in the child's best
interests, from one placement setting to another, and the
child, the child's parents or guardian, the child's foster
parents or out of home caregiver, the child's guardian ad
litem, the child's attorney, and the child's tribe, are
entitled to advance notice of any non-emergency transfer. Any
party opposed to the proposed transfer may request a hearing
and must prove an abuse of discretion by the department for
the court to deny the transfer. A foster parent or out of
home caregiver who requests a change in placement of the
child, should provide the department with reasonable advance
notice of the requested change.
MS. WIBKER advised members that Representative Dyson had referred
to this earlier. It relates to changes in placement, such as from
one foster home to another, or from one relative to another. In
CSHB 375(HES) there are sections (s) and (t), which have a great
deal of detail on the procedure for doing that. She said the
department is proposing some broader language that doesn't lock the
department into the procedure.
MS. WIBKER continued, saying that as proposed by the department,
(s) generally represents current law, which is that the department
has discretion to place; generally, the department moves a child,
and if somebody objects, there is a hearing to see whether the
department abused its discretion. Ms. Wibker stated, "What we're
proposing is, prior to the move, the department should give people
notice. People should have a chance to object, and there should be
a hearing prior to the move on whether or not it's an abuse of
discretion, to prevent precipitous moves. ... I believe the same
policy is in both ... provisions, but this is a broader statement;
it just doesn't have as much detail."
CHAIRMAN GREEN suggested in effect they are taking (s) and (t) both
out, then substituting a new (s).
MS. WIBKER replied, "That's our proposal. Under the existing (s)
in the committee substitute, it talks about situations where the
department ... can move a child. It talks about a procedure that
would require 14 days' written notice by certified mail before a
move. And I think the way that the alternative (s) is proposed,
for example, the department could call all of the parties or
immediately fax them something, and allow them to object to a
proposed change in placement." She said it is less secretarial
work for the department.
Number 2460
REPRESENTATIVE BERKOWITZ pointed out that abuse of discretion is a
pretty high standard. He asked what the consequence would be of
going to a lesser standard.
MS. WIBKER replied that abuse of discretion is the current state of
the case law, because the way the statutes are set up, the
legislature gave the department discretion to place and took that
away from the courts.
REPRESENTATIVE BERKOWITZ suggested that because the overarching
principle is the best interest of the child, the transfer request
should be tied to that.
TAPE 98-66, SIDE B
Number 0001
REPRESENTATIVE BERKOWITZ said he doesn't want to set up a situation
where the child's interests are subsumed by the department's. He
suggested something along the lines of, "the party opposed must
prove that it is not in the best interests of the child to approve
the transfer," proved by a preponderance of the evidence, or by
clear and convincing evidence.
MS. WIBKER stated her understanding that he was talking about what
the opposing party must prove to stop the move.
REPRESENTATIVE BERKOWITZ replied, "Right. ... You have to prove
that it's not in the best interest of the child. In other words,
the department has to prove that it is in the best interests of the
child."
MS. WIBKER said they have to do that anyway. The first line is
existing law; the move can be made in the child's best interest.
Number 0060
REPRESENTATIVE BERKOWITZ pointed out that it is the interest as
determined at the department's discretion, not the interest as
validated by the objective court, an important distinction. For an
outside party to challenge the department based on abuse of
discretion, that is nearly impossible to prove. Representative
Berkowitz explained, "But for them to assert that it's not in the
best interests of the child - which is what the litigation should
be about - is a threshold we can reach either with clear or
convincing, with beyond a reasonable doubt, with preponderance.
And that's where the focus ought to be."
MS. WIBKER asked whether Representative Berkowitz was suggesting a
party opposed to the proposed transfer may request a hearing and
must prove, by clear and convincing evidence, that it is not in the
child's best interest.
REPRESENTATIVE BERKOWITZ replied that he would say it is by a
preponderance that it is not in the best interest, because all of
the standards they have used so far have been the preponderance
that it is in the best interest.
Number 0104
REPRESENTATIVE DYSON said Representative Berkowitz, with his usual
clarity, has gotten right to the heart of the matter. He noted
that the decision about that is a judgment call.
Number 0150
CHAIRMAN GREEN asked whether all the department has to do is prove
it is in the best interest, but for an objection there must be
proof that the department abused its discretion.
MS. WIBKER said that is the current state of the law.
CHAIRMAN GREEN replied that it seems a little one-sided.
MS. WIBKER said she thinks it is because the department has the
liability for the placement. The department has to license the
home, pay for the home, inspect the home, make the home visits, and
train the people. If another party can come in and object, saying
the child should be put elsewhere, then the department is still
liable for the placement.
Number 0180
REPRESENTATIVE DYSON objected, saying that is not his reading of
it. He noted that they are talking about a challenge of a change
of placement. The child would already be in a department-approved
situation.
Number 0190
REPRESENTATIVE JAMES suggested that if the department would have
made a decision to change the placement, with the argument then
being whether there should have been a change, it is not the
situation Ms. Wibker described.
MS. WIBKER responded that if it is from one department-approved
home to another, she believes Representative Dyson makes a good
argument. However, if the parent convinces the court that the
child should be at the parent's home or with the parent's sister,
and the child is in the legal custody of the department, it puts
the department in an awkward position of being liable for a
placement they didn't choose. "Under Representative Dyson's
suggestion, it works, because the department has clearly approved
of both placements; but if a party can challenge a placement, and
go in and suggest another placement, it doesn't work so well," she
concluded.
Number 0229
REPRESENTATIVE BERKOWITZ noted that this section just says the
department may transfer a child from one placement setting to
another. The child would be in a department-approved setting, and
now the department would be getting ready to move it to another
setting. He said it isn't as if the other interested party can
come in and say, "I want it to come to me" or "I want it to go to
my aunt," for example.
REPRESENTATIVE JAMES asked, "But what if they wanted to leave it
there?"
REPRESENTATIVE BERKOWITZ responded, "If I understand correctly
Representative James' question, if you're challenging the move
because you don't think it's in the best interests of the child to
move, and you want the child to remain where he or she is, then you
can challenge on the best interests of the child, under this
section."
Number 0261
REPRESENTATIVE ROKEBERG said to Representative Dyson that it seems
he is setting down some specific time frames, whereas the
department, at its discretion, now can remove the child without any
notification. He asked if that is correct.
MS. WIBKER said that is correct, and that is not a good situation.
REPRESENTATIVE ROKEBERG responded that there is essentially a 30-
day period for notification, then a response, and it could actually
go beyond that because of time for an adjudicative hearing. He
asked what kind of court is assumed to be taking this matter up,
and whether it would normally be done by a master.
MS. WIBKER replied that sometimes it is a children's master, and
sometimes those cases are set in superior court for a contested
evidentiary hearing before a superior court judge.
REPRESENTATIVE ROKEBERG said it may be a practical time period, but
perhaps too protracted. In addition, when he read subsection (t),
he didn't believe the burden of proof and the level of evidence
were addressed. He stated, "I would tend to prefer your (s) and
(t), but (t) is not perfected here, I don't think, as it should be,
as I look at it. Would that be a correct analysis?"
REPRESENTATIVE DYSON said yes.
Number 0355
REPRESENTATIVE ROKEBERG asked if there is a way to shorten it, add
what he'd been talking about, and maybe expedite it but still make
it reasonable. He mentioned an ex-foster parent constituent who
had written him about the yo-yo effect of having a child go back
and forth. Representative Rokeberg then stated, "I would prefer
not to adopt this amendment, and ask the Representative to look
into it further and bring it back to the committee, on this one."
Number 0373
MR. WEBB told members subsections (s) and (t) are problematic for
a number of practical reasons. There are other reasons why section
(s) is particularly problematic. For instance, the department
would not be able to remove a child under the language in (indisc.)
in the existing bill. If the care being given by a licensed foster
parent weren't adequate, the state would have to wait until there
was a report of harm, of abuse or neglect, on the part of a foster
parent. The fact of the care not being adequate, and not meeting
the child's need, wouldn't be enough to enable the department to
remove a child from a placement.
MR. WEBB said the policy agreement is that the department ought to
limit the number of placements that children have to go through.
And the language suggested in (s) does that, and sets up a
standard. He stated, "Then the question gets to, I think, what
Representative Berkowitz has said: What's the standard for
removing the child? And it ought to be the child's best interests.
And that's a much better construction, it seems, from a practical
standpoint. It focuses on the purpose, which is to focus on the
interests of the child, ... and gives people with an interest in
that child's well-being the ability to call into question an action
by the department. But it doesn't set up ... a very cumbersome
process that both is, I think, harmful to the child, as in (s), and
very, very cumbersome in terms of trying to practically implement,
as those things are in (t)."
Number 0451
REPRESENTATIVE PORTER inquired whether a determination that this
transfer was not in the child's best interest would be an abuse of
discretion by the department.
MS. WIBKER answered that a judge would have to make that finding.
REPRESENTATIVE PORTER asked whether it didn't follow.
REPRESENTATIVE BERKOWITZ said not necessarily.
MS. WIBKER added, "Abuse of discretion's pretty high."
REPRESENTATIVE BERKOWITZ agreed it is way up there.
Number 0475
REPRESENTATIVE PORTER responded that if that wouldn't follow, he
would suggest changing that.
MR. WEBB stated his belief that the proposed language would get
where they need to go.
REPRESENTATIVE PORTER suggested that instead of having to prove
there was abuse of discretion by the department, it should be
proving that the move was not in the best interests of the child.
Number 0490
REPRESENTATIVE BERKOWITZ suggested it read that any party opposed
to the proposed transfer may request a hearing and must prove, by
a preponderance of the evidence, that it is not in the best
interests of the child for the court to approve the transfer.
CHAIRMAN GREEN asked whether they want a preponderance of the
evidence or clear and convincing evidence.
REPRESENTATIVE DYSON said the court is not in the game.
REPRESENTATIVE JAMES asked who would conduct the hearing.
CHAIRMAN GREEN said, "If you had an objection, they are."
REPRESENTATIVE ROKEBERG said, "But no, they already got the child
out of the house, before this all happens. That's the point."
REPRESENTATIVE BERKOWITZ disagreed.
Number 0533
MS. WIBKER said, "Under current law, that's the case. What we're
proposing is ... a change, so that if the department wants to move
a child, they have to notify everybody in advance. If everybody
agrees, you do it. If somebody disagrees, they get a hearing and
get a chance to stop it before it happens. That is a change."
AN UNIDENTIFIED SPEAKER said, "Unless it's an emergency."
MS. WIBKER acknowledged that.
REPRESENTATIVE DYSON noted that they agree on that.
CHAIRMAN GREEN asked about the standard of proof again.
Number 0561
REPRESENTATIVE BERKOWITZ said "preponderance," which is what they
have been using. The alternative is by clear and convincing
evidence.
CHAIRMAN GREEN said that raises it, but it is not impossible.
REPRESENTATIVE BERKOWITZ added, "I just think, as a matter of
equity, if the department is going to be going after children by a
preponderance, then they should be required to live by that
standard as well."
CHAIRMAN GREEN said that is a pretty good point.
Number 0584
REPRESENTATIVE ROKEBERG said it is a huge change for the department
to set up this proceeding prior to transfer of a child, which he
indicated may itself reduce the occurrences targeted by
Representative Dyson. He stated that he doesn't believe they
should put up artificial hurdles by raising the standards so high
that they must involve high-powered attorneys, rather than having
a master handle it in a relatively informal setting.
CHAIRMAN GREEN mentioned that they are eliminating the exhaustive
list that would be, as Mr. Webb indicated, a burden. He suggested
there should be some approach that wouldn't be an extremely high
standard. Even if something were questionable, it wouldn't
necessarily be an abuse, he noted.
Number 0649
REPRESENTATIVE BERKOWITZ said, "Abuse of discretion is not only did
they do the wrong thing, but they did it in the wrong way."
CHAIRMAN GREEN agreed that is tough.
Number 0659
REPRESENTATIVE PORTER suggested that a compromise would be proving
it is against the best interests of the child, but by clear and
convincing evidence.
CHAIRMAN GREEN said he likes that one, because it is a fairly high
standard but can at least be done.
MS. WIBKER asked whether the proposal is, "The opposing party must
prove by clear and convincing evidence that it is contrary to the
best interest of the child."
CHAIRMAN GREEN affirmed that.
Number 0680
REPRESENTATIVE BERKOWITZ noted that they would already have a child
in need of aid, which is why the department would have some form of
custody. He expressed his belief that the standard the state uses
on parents should be clear and convincing evidence. However, if
the standard is going to be a preponderance of the evidence, he
believes the state should be held to that same standard.
CHAIRMAN GREEN responded that here, they are talking about a child
in custody, and this is a matter of moving the child around. That
is a little different from determining whether a child is in need
of aid. He said he could see where if they lowered the standard
for placement too much, there would be arguments about every move.
Number 0716
REPRESENTATIVE ROKEBERG asked whether one of the most common
instances is where the parent requests the child back but it
doesn't work out, creating a yo-yo effect.
MS. WIBKER answered that the most common move is from a foster
parent calling and saying, "I want this child out of here."
However, Representative Rokeberg is correct in that most contested
hearings are because a parent has decided the child should be back
with him or her, but the department is proposing that the child go
elsewhere. She added that there is then a placement review
hearing.
Number 0762
MR. WEBB pointed out that if the department moved to return a child
home, they have now given a foster parent status to object to that,
so that the foster parent now has virtually the same rights to
object to a return to the child's home that the parent has.
REPRESENTATIVE PORTER responded, "At this stage, ... I think it's
not improper to give some degree of deference to the professional
position here, that's not a foster parent that is now more attached
than they should be, and those kinds of things. So, clear and
convincing that it's in the best interest of the child, I think, is
a ...."
REPRESENTATIVE BERKOWITZ said he sees the logic.
Number 0807
REPRESENTATIVE PORTER made a motion to amend the portion of
Amendment 5 dealing with page 35, lines 12 through 31, to read,
toward the end, "Any party opposed to the proposed transfer may
request a hearing and must prove, by clear and convincing evidence,
that the transfer would be contrary to the best interests of the
child."
CHAIRMAN GREEN asked whether there was any objection. There being
none, that amendment to Amendment 5 was adopted.
REPRESENTATIVE PORTER noted that it would continue on, "A foster
parent ...."
CHAIRMAN GREEN asked about problems with inserting (s), as amended.
Number 0858
MS. WIBKER said it is not as complicated as it looks. She
explained, "If you go back to page 30, the current statute talks
about court orders on page 30. And at the end of court orders,
they stick in this stuff about moving children. And so, since we
just adopted (s) as the part of the statute that would deal with
transferring children, lines 21, after the semicolon, through lines
26 should be deleted. We just took care of that in another place."
She said that section is taken care of in (s), which they had just
created.
REPRESENTATIVE ROKEBERG asked whether that includes the existing
statute as well.
MS. WIBKER replied, "Correct. The existing statute really mixes up
a custody order and a transfer of placement; it puts them all
together. ... And we just cleaned it up."
Number 0916
MS. WIBKER addressed the next portion of Amendment 5, which read
[original punctuation retained]:
Page 36, lines 22-24, the added language should be deleted OR
delete line 22 "and the right and responsibility to obtain
legal representation for,."
MS. WIBKER referred to the bold language on in the bill on page 36,
lines 22 through 24, which read, ", and the right and
responsibility to obtain legal representation for, and make
decisions of legal or financial significance concerning, the
child". She said these are things that generally the department
would not have the responsibility to do. A court would decide if
a child needed a GAL or an attorney, and a guardian or GAL would
make decisions of legal or financial significance.
CHAIRMAN GREEN noted that the amendment would take out all the bold
language.
Number 0956
MS. TORKELSON responded that they are okay with taking it out as a
duty of the department, but not as a right of the parent. She said
she doesn't know how Legislative Legal Services could work that.
MS. WIBKER suggested moving it to the section on residual
responsibilities.
MS. TORKELSON referred to the findings in Section 27 and said they
are trying to make this equal to the wording in the findings
section, where they had put that parents have the right and
responsibility to obtain legal representation for the child, as
well as to protect, nurture, train, discipline the child, decide
where and with whom the child shall live, and so forth. She
suggested having a conceptual amendment.
Number 1068
REPRESENTATIVE DYSON objected to taking it out, saying that if the
child is in the state's custody and is heir to an estate, for
instance, whoever has custody has a responsibility to prosecute
that child's interests. Similarly, if a child gets charged with a
crime or a tort, the child needs representation; Representative
Dyson said he had this put in here because he believes the state
has the responsibility to get representation for the child.
REPRESENTATIVE BERKOWITZ commented, "In loco parentis, in the place
of the parents."
CHAIRMAN GREEN asked the wish of the committee.
REPRESENTATIVE ROKEBERG said he would delete [the proposed changes
relating to] page 36, lines 22 to 24, from the amendment.
CHAIRMAN GREEN asked whether there was any objection to deleting
that from Amendment 5. Hearing none, he announced that the bold
language stays in.
Number 1151
CHAIRMAN GREEN referred to the next line of Amendment 5, which
read:
Page 41, line 29 "take" should be "make" (typo).
MS. WIBKER said it is a typographical error. It says "take
reasonable efforts" but should be "make reasonable efforts".
Number 1160
MS. WIBKER addressed the next proposed change in Amendment 5, which
read:
page 43, line 19 should read "may or shall upon request"
disclose....
[Page 43, lines 19 and 20, read, "(b) A state or municipal agency
or employee shall [MAY] disclose appropriate information regarding
a case to".]
MS. WIBKER told members the department is bound to keep things
confidential, with a specified list of exceptions in statute. The
committee substitute says "the department shall disclose," which
turns an exception to confidentiality into a duty. They propose
that it read, "may or shall upon request". That way, the
department is allowed to give information about a child to these
particular people, as exceptions to confidentiality, and if there
is a request, the department must answer the request.
Number 1208
REPRESENTATIVE DYSON responded, "We put the 'shall' in here
intentionally." He told members a consistent complaint he has
heard and dealt with personally is not getting necessary
information to foster parents, including behavioral problems,
occasionally medical problems, and certainly criminal activity.
That is the reason it is put in the imperative.
MS. TORKELSON added that Legislative Legal Services had explained
to her that putting in "appropriate information" helps with
confidentiality, because everything cannot be disclosed to
everybody. Someone determines what is appropriate, and then each
person to whom it is to be disclosed is "as may be necessary."
This gives the department the decision about what is appropriate
and necessary, and then the department would have to disclose that.
Number 1287
REPRESENTATIVE DYSON said his [previous] amendment had put in
"shall disclose" but allowed the department to decide what is
appropriate or necessary. He stated the belief that the department
has a lot of discretion here.
REPRESENTATIVE PORTER asked where the "as necessary" is.
MS. TORKELSON said it is in each one. For example, in (2) it says
"a person or an agency requested by the department", and at the end
of that it says, "as necessary to enable the provision of the
consultation or services". She cited other examples, noting that
what is necessary for a school may not be the same as for a foster
parent.
Number 1335
REPRESENTATIVE PORTER said information that isn't necessary for
that purpose may not be deemed appropriate, then.
MS. TORKELSON agreed, restating that if it is deemed appropriate
and necessary, the department had better provide it to the person.
REPRESENTATIVE DYSON requested that the department be allowed to
speak to this, as they have a different opinion.
REPRESENTATIVE ROKEBERG pointed out that "as may be necessary" is
in existing law; for example, it is in (4) and (5) on page 44.
Number 1363
MR. WEBB stated, "I think we've dealt pretty satisfactorily in
other areas of the law, in terms of the ... information that foster
parents require. We've mandated that the department provide that,
in another section that we amended earlier. So, I think that's of
a lesser concern."
MR. WEBB then indicated the department does not object to providing
information upon request, but is concerned with the language,
"shall disclose appropriate information," as it is the department's
discretion about what is appropriate. He explained, "We'll be
constantly criticized for having exercised that discretion
inappropriately. Somebody will conclude that we've not provided
them with adequate information; we haven't sought them out and
provided them with information. ... I think the language that is
drafted in our amendment here requires that we do it upon request;
it doesn't mandate that we go out and provide people with
information they haven't asked for and don't want."
MS. TORKELSON asked, if DFYS has the information, how a school is
supposed to know what to request. She said in current law, it
states that they may disclose information to a foster parent. She
discussed an example where lack of disclosure by the department
could have caused problems. Ms. Torkelson stated, "So, we're just
saying, ... if it's appropriate and necessary, then you should
disclose it." She added that she couldn't imagine a school not
wanting information, for example, that DFYS believes appropriate
and necessary in order to protect other children.
Number 1508
REPRESENTATIVE ROKEBERG suggested that what had been described
needs to be mandated, but this is a whole laundry list that will
create a huge fiscal responsibility in the department. He
suggested perhaps this could be redone so that information that
needs to be appropriately transmitted by the department can be only
in a certain sphere of information.
REPRESENTATIVE DYSON responded that certainly the department will
decide what is appropriate to be sent.
REPRESENTATIVE ROKEBERG acknowledged the difference between
information requested by a party, with the mandate to provide it,
and information that needs to be transmitted.
Number 1593
REPRESENTATIVE DYSON said they are dealing with eliminating the
barriers to confidentiality.
REPRESENTATIVE ROKEBERG agreed, but said one size doesn't
necessarily fit all in this particular section. He asked whether
he is on the right track.
Number 1607
MS. TORKELSON said that is why the "as necessary" was added in each
section, because Legislative Legal Services said what is necessary
for one isn't necessary for another, and perhaps some
confidentiality laws could be violated. Not everything should be
disclosed to everyone, because there could be potential harm to the
child or others.
Number 1636
MR. WEBB suggested the practical effect of what the department is
proposing here is to do exactly what he believes Representative
Dyson is trying to get at, which is to give the department
discretion to provide information that people need, but to make
certain they give it to people when they request it from the
department. He noted that foster parents are dealt with
separately, and there is a long list of things the department must
give them; he restated that they have already amended the bill to
do that. Mr. Webb added, "I think practically we're ... within
about that far of being in the same place."
Number 1669
REPRESENTATIVE PORTER responded, "It's a close call, but I think,
considering the past history, I would rather leave it the way it
is. And then if it becomes a burdensome problem, come back and
tell us about it."
CHAIRMAN GREEN said that would be his choice, as well.
REPRESENTATIVE ROKEBERG mentioned the possibility, as it moves
along, of identifying information that really needs to be mandated
with a "shall," leaving the rest as "may."
Number 1700
CHAIRMAN GREEN made a motion to strike the portion of Amendment 5
relating to page 43, page 19; no objection was heard.
CHAIRMAN GREEN briefly mentioned the next line of Amendment 5,
which read:
Page 45, lines 17-22, "minor" should be replaced with "child."
CHAIRMAN GREEN moved on to the next proposed change in Amendment 5,
which read:
Page 48, line 11 should read:
"...consistent attempts made during a reasonable
time....."
MS. WIBKER explained that it just needs to have "made" inserted.
Number 1760
REPRESENTATIVE ROKEBERG referred to the next proposed change in
Amendment 5, which read:
Page 48, line 23 should read "may or shall upon request"
disclose...
REPRESENTATIVE ROKEBERG asked who they are trying to satisfy in
Section 58 there. He noted it is the same language previously
discussed.
MS. WIBKER replied that it is the exact same issue, but with a
juvenile delinquency case instead of a CINA case.
REPRESENTATIVE PORTER made a motion to strike that from Amendment
5.
CHAIRMAN GREEN asked whether there was any objection; no objection
was heard.
Number 1802
MS. WIBKER referred to the next proposed change in Amendment 5,
which read:
Page 50, lines 27 through page 51, line 18 should be replaced
with:
(e) A child may not be placed in a foster home or in the
care of an agency or institution providing care for children
if a relative by blood or marriage requests placement of the
child in the relative home. However, the department may
retain custody of the child and provide for its placement in
the same manner as for other children if
(1) the department makes a determination, supported
by clear and convincing evidence, that placement of the
child with the relative will result in physical or
emotional damage. In making that determination.....de
novo; or
(2) the department determines that a member of the
relative's household who is 16 years of age or older has
a criminal record or was the perpetrator in a
substantiated report of abuse under AS 47.17; or
(3) the department disqualifies the relative home
based on the results of a criminal background check from
criminal justice information available under AS 12.62.
The department must conduct a criminal background check
of available criminal justice information received under
AS 12.62. The department may conduct a fingerprint
background check of a relative requesting placement of
the the [sic] child. The department shall not place a
child with any relative who does not meet the standards
required for placement in foster care as defined in AS
47.35.022(a) and (b).
For purposes of obtaining criminal justice
information under this subsection, the department is a
criminal justice agency conducting a criminal justice
activity under AS 12.62.
MS. WIBKER told members this section deals with criminal background
checks on relatives, which are not required by federal law. She
asked Representative Dyson to correct her if she was wrong, then
said she believes they had agreed that the department would be
required to do the initial criminal background check of local
records on relatives, the kind of thing they would do for an
emergency placement. However, doing a fingerprint FBI criminal
background check on relatives would be permissive, at the
department's discretion.
MS. WIBKER explained, "And I believe the reason we decided to do
that was because ... there is a requirement in statute that we use
relatives unless there is clear and convincing evidence that
placement with a relative would result in physical or emotional
damage to the child. And the court does a de novo review of each
one of those decisions. That's the current law, and we're not
proposing to change that. But we're proposing, I guess, to add to
the tools that the department can use to make a decision as to
whether a relative is a good placement, is to allow the department
to do APSIN [Alaska Public Safety Information Network] and the
local available criminal background check, check for sex offender
registration, things like that, and then, at the discretion of the
department, do the fingerprint background check. There's some
concern that this would have a chilling effect on relatives'
stepping forward and taking care of children. And by the same
token, we shouldn't be placing ... children with relatives if
there's a danger there. So it's an attempt to balance those two
priorities."
Number 1926
REPRESENTATIVE BERKOWITZ said they are talking about physical or
emotional damage. He asked whether the language they were using
before wasn't physical or mental injury.
REPRESENTATIVE PORTER asked why they had changed.
MS. WIBKER said this is the existing law, but if they want to
change it to be consistent, they could do that. She added,
"Emotional damage is our definition of mental injury."
REPRESENTATIVE BERKOWITZ said, "But we don't know what that is."
Number 1965
REPRESENTATIVE PORTER asked whether there is a definition of
emotional damage.
MS. WIBKER said no.
REPRESENTATIVE DYSON said that is why they had used "mental
injury."
MS. TORKELSON said "emotional harm" in the original version was a
new term, with a new definition. "And we felt is was a little
broad and could be construed, possibly, or abused, and so we
preferred, as long as the mental injury met with federal standards,
we just left it as is," she added.
REPRESENTATIVE DYSON stated, "And Ms. Wibker is right in that we
concur in this amendment."
Number 2020
REPRESENTATIVE BERKOWITZ made a motion to substitute "mental
injury" for "emotional damage" in this portion of Amendment 5.
CHAIRMAN GREEN asked whether there was any objection; none was
heard. He then asked whether there was any objection to
substituting (e), as provided in Amendment 5, as amended.
REPRESENTATIVE BERKOWITZ stated that he wants to ensure that Social
Security numbers and fingerprints are not part of the public
domain, but are just confidential records maintained by the
department.
Number 2080
MR. WEBB spoke to that, saying he had checked that day with one of
the department's licensing staff. He told members, "And indeed,
fingerprints and Social Security numbers that are attendant to the
criminal history checks are indeed confidential, and not part of
the public licensing file, with one exception, and that is on the
foster home license application; they do give their Social Security
number. They're aware that that's a part of the public file. The
department has no objection to redacting that piece of information
from the public portion of the file. So that should not be an
issue."
CHAIRMAN GREEN said, "You would maintain it, but it wouldn't be in
the public portion of the file."
MR. WEBB said it would be blacked out.
CHAIRMAN GREEN suggested that would comply with both federal
requirements and privacy requirements.
Number 2133
CHAIRMAN GREEN addressed the next line of Amendment 5, which read:
Page 51, lines 19-30 delete entirely.
REPRESENTATIVE DYSON advised members, "Our Section 62 here, in the
committee substitute, was a ... well-intended effort to get the
perpetrator out of the house, if that was a possible solution, and
leave the child in the home with the non-offending parent. And, as
I remember, the department has basically said that that's always
their intention if that's possible, and that ... they will do that,
and do that under existing law; and the way we wrote this was
cumbersome and not really kind of workable. And, of course, we had
words in here like their getting a protective order from the court,
... and so on and so forth, that don't work."
CHAIRMAN GREEN asked, "You have no objection, then, to this
removal?"
REPRESENTATIVE DYSON replied, "We don't know how to do what we want
to do, so ... the answer to your question is yes."
Number 2226
MS. WIBKER said she believes there is another section that
basically lays out the same thing, under AS 47.35, where it talks
about duties of the department in domestic violence cases.
Number 2254
REPRESENTATIVE BERKOWITZ said he likes the intent; if there is one
bad parent and one good parent, the child gets to stay with the
good parent. He suggested working on language to allow that to
happen, and offered to do that, perhaps later. He stated, "My
experience in those sort of situations has been, ... particularly
in the situation where one parent doesn't believe that the other
parent did something wrong, you're not going to have complete
compliance. But if there were some sort of provision for at least
visitations for the bad parent, this might be workable."
Number 2319
MS. WIBKER referred members to page 56, Section 72. She said, "It
outlines the steps that you should take to keep the child with the
non-offending parent, remove the offending parent."
REPRESENTATIVE ROKEBERG asked whether that is just for domestic
violence cases or would include a "CINA kid."
MS. WIBKER replied, "It's a child that's a CINA kid because of
domestic violence."
REPRESENTATIVE ROKEBERG suggested Section 62 has a broader
application.
REPRESENTATIVE DYSON concurred.
MS. WIBKER also concurred, adding that this is the current approach
in all cases of child sexual abuse and domestic violence.
REPRESENTATIVE ROKEBERG suggested it is a template.
REPRESENTATIVE BERKOWITZ stated, "This is sort of hopscotching a
little bit, but to maintain the intent of ... page 51, lines 19
through 30, on page 56, if the department determines in an
investigation of abuse or neglect that a child is in danger, that
a child is essentially someone under 47.10.011, the department
shall take appropriate steps for the protection of the child.
Appropriate steps includes all this other stuff. And to sort of
screen out the domestic violence, so it's more inclusive of just
the basic CINA concept ...?"
MS. WIBKER replied, "You don't need to do that. If you want to,
you can. But the current federal and state law that requires you
to take steps to [ends mid-speech because of tape change]."
TAPE 98-67, SIDE A
Number 0006
REPRESENTATIVE BERKOWITZ asked whether that is in statute anywhere,
then noted that it is for the domestic violence cases, but not for
the sex offender cases or substance abuse cases. He suggested
paralleling that language for the other instances.
MS. WIBKER replied, "You're correct. It's specifically in statute
for domestic violence, and that statute is the broad definition of
domestic violence, which includes sexual abuse. You're correct
that it's specifically in statute for those cases, not for other
things. But it is ... required in other provisions of law,
although not specific."
REPRESENTATIVE BERKOWITZ asked, "Could you use, essentially,
Section 72 to allow the good, non-drug-addicted parent a reasonable
efforts situation?"
MS. WIBKER answered that as written right now, no, because that is
a specific statute on domestic violence.
Number 0107
REPRESENTATIVE ROKEBERG said without some appropriate language to
replace Section 62, he doesn't believe the bill will go anywhere.
Whether needed statutorily or not, it will be needed for public
relations throughout the entire state.
Number 0152
REPRESENTATIVE BERKOWITZ offered a conceptual amendment, for when
they come back to this, to have the drafters prepare something
"that parallels the language that's in Section 72 that matches the
other conduct."
MS. WIBKER said one proposal would be, on page 51, line 22, to put
a period after "with one parent". She suggested that it say a
child may not be placed with an out-of-home care provider if the
department determines that the child can remain safely at home with
one parent or guardian.
CHAIRMAN GREEN asked if she was proposing to drop the rest.
TWO UNIDENTIFIED MALE SPEAKERS said yes.
MS. WIBKER stated that the department has to do whatever it can do
to avoid an out-of-home placement, and to make an in-home placement
safe.
REPRESENTATIVE BERKOWITZ said, "The parent or guardian."
MS. WIBKER affirmed that.
Number 0262
REPRESENTATIVE ROKEBERG asked about a reference to this section in
the CINA jurisdiction section, on page 24.
MS. WIBKER replied, "47.14 deals with placements of children."
REPRESENTATIVE ROKEBERG responded, "So does 47.14.100 now. Could
we put a reference in ... Section 31 to Section 62?"
MS. WIBKER said, "You can."
Number 0300
REPRESENTATIVE ROKEBERG noted that it would be a separate
amendment, which he would make when it was appropriate.
Number 0341
REPRESENTATIVE BERKOWITZ made a motion to delete from Amendment 5
the portion that says, "Page 51, lines 19-30 delete entirely." He
indicated it was because they had just amended the bill.
REPRESENTATIVE PORTER pointed out that it wasn't officially amended
yet.
REPRESENTATIVE BERKOWITZ started to make a motion to amend the
bill, then noted there was still a motion relating to Amendment 5.
REPRESENTATIVE ROKEBERG asked that he hold off, indicating they
would get to it later.
Number 0400
MS. WIBKER brought up the next proposed change in Amendment 5,
which read:
Page 59, lines 17-25, should read, "may issue a provisional
foster home license on an emergency basis until the results of
the fingerprint background check required under AS
47.35.017(b) are received by the department, provided the
applicant meets the minimal requirements for emergency
......foster home. Delete lines 22 - 25 sentence. [sic]
[The full sentence on page 59, lines 22 through 25, read: "The
department may extend a provisional foster home license issued
under this subsection for an additional period of up to 90 days in
order to obtain the information from the national criminal
background check required under AS 47.35.017(b)(6)."]
MS. WIBKER said this is similar to, and basically subsumed in, what
they just did. She stated, "The department's position is that this
is redundant to what we just did, which is you require the
department not remove a child if there is a way to keep a child at
home safely with one parent; you do that, whatever that requires."
Number 0474
MS. TORKELSON stated her understanding that Section 70 was
automatically added by Legislative Legal Services through their
revisor/drafter process. She said, "I think that's how it got in
the bill in the first place, is because we added this removal of
the perpetrator ... in Section 62. And so, by adding it there,
they have to mess with this section. So if we take only a portion
of this out, it will probably get, maybe, automatically changed."
REPRESENTATIVE PORTER noted that they had taken the language out
regarding injunctions.
CHAIRMAN GREEN suggested leaving it up to the revisor, then, or
perhaps making a note about it.
MR. JARDELL told members, "My reading would be that you can take it
out. You've taken it out on the other one."
Number 0544
MS. WIBKER said, "And then, the only last thing is, if you'll
recall, this deals with the problem of having to issue a
provisional license to a foster home and then wait for the results
of a fingerprint background check. Public Safety says that can be
anywhere from six weeks to six months, and that's to the time the
fingerprints get back to Public Safety, and not necessarily to the
department. So, rather than a time limit, we just propose that the
provisional license issue until the results of the fingerprints are
back. And the reason that we proposed that was because we were
concerned that a license would lapse, and that we would have to
possibly be put in a position of removing a child. I believe that
what Representative Dyson proposed were ... 90-days segments. But
... we need some fix, so that we don't have these placements lapse
because fingerprints aren't back."
Number 0612
REPRESENTATIVE ROKEBERG said he likes the department's language a
little better, because it takes up less room in the statute books.
MS. TORKELSON responded that this isn't a normal foster parent
license; they are talking about an emergency basis. She suggested
they might as well provide a regular license if it is going to take
three-quarters of a year. By requiring an active check every 90
days, there would be an awareness that it is an emergency license.
REPRESENTATIVE ROKEBERG asked, "Are we worried that the check will
come back bad? Is that the point?"
Number 0700
MS. WIBKER noted that they would have already done the local check,
including courthouse records, APSIN, and the sex offender
registration. She suggested the problem may be that these requests
are a low priority for the FBI, with no guarantees as to time.
REPRESENTATIVE BERKOWITZ said he would think, though, that in order
to avoid civil liability for bad placements, the department would
be rather insistent, or at least as thorough as possible, to ensure
that foster homes are as well-researched as possible. He added,
"My guess is that if you're negligent and place someone in a bad
situation, you're liable."
MS. WIBKER agreed, "We'll get sued."
Number 0747
REPRESENTATIVE ROKEBERG asked how much administrative rigamarole is
involved in issuing a temporary extension.
MR. WEBB said there are two things about it. It is an extra
burden; he doesn't know the specific amount of paperwork, but it
requires tracking, filling out papers, and making sure it is in the
payment system so payment gets made to the foster parent. The
department's interest is in getting these completed as quickly as
possible and making sure that, indeed, they have done everything
they can, because they will be held liable if anything bad happens
to a child in an emergency placement home. However, they are not
able to get the fingerprint checks, which are beyond their control.
"So, to force us to ... go back and run through extra steps of
meaningless paperwork, based on something that's beyond our
control, with no real value added, seems to be unnecessary," Mr.
Webb concluded.
Number 0832
REPRESENTATIVE ROKEBERG asked whether they now issue provisional
licenses.
MR. WEBB affirmed that.
REPRESENTATIVE ROKEBERG inquired whether there has ever been a
"negative" return on the fingerprints, or a bad experience that
otherwise wouldn't have occurred had the department finished the
background check.
MR. WEBB replied, "I can't give you the specific numbers. I'm sure
that there has been an instance in which we've gotten a background
check at some point down the line. That happens on nonemergency
licenses as well."
Number 0875
REPRESENTATIVE DYSON stated, "This is not the end of the world.
And I don't think that reviewing this every 90 days, and revisiting
the decision, is an unbearable burden." He acknowledged it is a
piece of paper that needs to be looked at, but suggested that if
there needs to be a renewal because the information hasn't come
back, it can be done in conjunction with regular visits that DFYS
should be making anyway. Representative Dyson said he appreciates
the department's desire to not have extra burden. But there are
also a lot of things that have caused problems in the last few
years because things have slipped. At the task force level, there
had been continual testimony of, "We used to do this, and we
drifted away from it."
REPRESENTATIVE ROKEBERG asked whether this is just paperwork or
actually protects children.
REPRESENTATIVE DYSON indicated he believes that looking at it every
90 days will prevent that "drift," and that a requirement that
somebody visit the home is not unreasonable.
Number 0996
REPRESENTATIVE PORTER said a previous amendment removed the real
obstacle of having to actually terminate a temporary placement
because this wasn't back. This is paperwork, and he would rather
have the 90-day checks. He said in addition, he doesn't know how
they can pass an amendment that counteracts an amendment they just
passed. Representative Porter made a motion to delete from
Amendment 5 the portion addressing page 59, lines 17 - 25.
CHAIRMAN GREEN asked whether there was any objection; none was
heard.
Number 1071
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 5, as
amended. There being no objection, it was so ordered.
REPRESENTATIVE BERKOWITZ said, "I move to make the motion that I'd
made earlier regarding Section 62, the details which elude me at
this moment."
CHAIRMAN GREEN said, "That we stop with 'one parent' and add 'or
guardian'.
REPRESENTATIVE BERKOWITZ concurred.
CHAIRMAN GREEN asked whether there was any objection.
REPRESENTATIVE ROKEBERG added, "And delete the balance of the
section."
CHAIRMAN GREEN agreed. Hearing no objection, he indicated
Amendment 6 was adopted.
Number 1179
REPRESENTATIVE ROKEBERG made a motion to adopt a conceptual
amendment, Amendment 7, that on page 24, line 26, after "AS
47.10.019", they add the phrase "and AS 47.14.100". He noted that
they had just amended that in Section 62.
CHAIRMAN GREEN asked whether there was any objection. There being
none, Amendment 7 was adopted.
Number 1289
DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, told members
he had two amendments, hand-marked as 7 and 8.
CHAIRMAN GREEN noted that those would now be Amendments 8 and 9.
MR. GUANELI told members there had been a fairly good discussion,
at the bill's first hearing in this committee, of the provision on
page 7 relating to endangering the welfare of a child in the second
degree. He stated his understanding that Representative Berkowitz
had expressed concern about having possession of a controlled
substance be a trigger for this offense in caring for a child;
Representative Porter had indicated he certainly wanted possessory
offenses involving marijuana to stay; and Representative James had
indicated she had concerns about children being in places where
drugs are stored. Mr. Guaneli stated, "And so, what I have
attempted to do, is try to - between these two amendments - create
something of a compromise. And I hope it doesn't alienate
everyone."
Number 1395
MR. GUANELI first discussed Amendment 8, which read:
Page 7, line 24 to page 8, line 3, DELETE and REPLACE with:
Sec. 11.51.110. Endangering the welfare of a child in
the second degree. (a) A person commits the offense of
endangering the welfare of a child in the second degree if the
person, while caring for a child under 10 years of age,
(1) causes or allows the child to enter or remain in
a dwelling or vehicle in which a controlled substance is
stored in violation of AS 11.71; or
(2) is impaired by an intoxicant, whether or not
prescribed for the person under AS 17.30, and there is no
third person present to care for the child who is at least 12
years of age and not impaired by an intoxicant.
Page 8, lines 5-8, DELETE and REPLACE with ["lines 5-8 was
later discovered to be in error; it was specified that it
should read "lines 5-7"]
"impaired" means that a person is unconscious or a person is
physically or mentally affected so that the person does not
have the ability to care for the basic safety or personal
needs of a child with the caution characteristic of a sober
person of ordinary prudence;
Page 47, line 31: Insert
"hazardous volatile material or substance" has the meaning
given in AS 47.37.270;
Page 48, line 2: Replace the word "inhalants" with "a
hazardous volatile material or substance misused by inhaling
its vapors"
MR. GUANELI referred to the proposed changes to page 7 in Amendment
8. He pointed out that this is no longer limited to parents,
guardians, or persons in that situation, because a variety of
relatives or friends might care for children. The possessory
offense is gone, which he said he would address later. He noted
that in (a)(1), it says causes or allows the child to enter or
remain in a dwelling or vehicle in which a controlled substance is
stored in violation of our drug laws.
REPRESENTATIVE ROKEBERG asked whether controlled substances are
drugs only, not alcohol.
MR. GUANELI affirmed that, saying AS 11.71 is drug laws; there is
a long list of controlled substances, starting with heroin,
cocaine, and so forth, and including prescription drugs that have
abusive properties. If it is in violation of AS 11.71, it means a
person has no prescription for it or anything like that. This is
to prevent people from having illegal drugs in their homes where
young children are present, with the idea that kids get into drugs.
MR. GUANELI said the second subsection is similar to what there was
before, broken into two subsections. He stated, "And the word used
to be 'incapacitated'. It's now 'impaired', and there was some
discussion of, I think, a preference for the use of the phrase
'impaired'. And the offense would be committed by being impaired
by an intoxicant, whether or not it's prescribed for you, and there
is no third person present to care for the child who is at least 12
years of age and not impaired by an intoxicant."
MR. GUANELI referred to the proposed changes to page 8 in Amendment
8, again saying the definition of incapacitated has been changed to
impaired. He said he had offered at the previous hearing to draft
something comparable to the court instructions for being under the
influence for drunk driving purposes; the language from those
instructions is "with a caution characteristic of a sober person of
ordinary prudence." Mr. Guaneli explained that he'd thought it
would be helpful to courts to use the language they are familiar
with in terms of drunk driving cases, in the definition of
impaired.
MR. GUANELI next discussed the proposed changes to pages 47 and 48
in Amendment 8. He said the crime is "impaired by an intoxicant."
The definition of "intoxicant" on page 8 refers to a provision in
Title 47 that says an intoxicant is any number of things: alcohol,
drugs or an inhalant. The problem is that inhalant is not defined
anywhere in that chapter. He said he had looked around for some
way to deal with "inhalant." There happens to be a definition
elsewhere in Title 47, called 'hazardous volatile material or
substance,' which has a fairly detailed definition in current law.
Mr. Guaneli stated, "And the phrase that is used in Title 47.37,
which deals with people who are incapacitated by alcohol and other
substances, is that you misuse a hazardous volatile material or
substance. And I can pass around exactly what that is." [He
handed out copies of AS 47.37.270.]
Number 1600
MS. TORKELSON noted that people can get high on a number of things,
including gas from pressurized whipping cream cans, markers and so
forth.
MR. GUANELI responded that in this definition of hazardous volatile
material or substance, subsection (10) of the statute handed out,
it says it is readily vaporizable, poses a threat, and includes but
is not limited to gasoline, petroleum distillates, common household
materials and substances whose containers bear notice warning that
inhalation of vapors or gases may cause physical harm. He stated,
"So I guess the answer to the question is if whipping cream or
these other things have a notice saying 'don't inhale it; it would
cause you harm,' that's something you shouldn't be doing. So, this
is the amendment that, I think, addressed a number of the concerns
that I heard about the endangering the welfare provision."
Number 1679
MR. GUANELI said he would skip to Amendment 9, as he believes it
may address part of Representative Porter's concern about wanting
to do something about people who possess drugs while caring for a
child. Amendment 9 read:
Add a new section to the bill.
* Sec. ___. AS 12.55.155(c)(23) is amended to read:
(23) the defendant is convicted of an offense specified in AS
11.71 and (A) the offense involved the delivery of a
controlled substance under circumstances manifesting an intent
to distribute the substance as part of a commercial
enterprise; or (B) at the time of the conduct resulting in the
conviction, the defendant was caring for or assisting in the
care of a child under 10 years of age;
MR. GUANELI explained that it adds to the list of aggravating
factors for sentencing purposes. An offense specified in AS 11.71
is a drug offense, covering everything from sale of heroin to
minors to possession of marijuana. This would be guidance to the
courts that among the conduct that makes a drug offense an
aggravated offense is being convicted of any kind of drug offense
while caring for, or assisting in the care of, a child. He
suggested that would cover concerns he had heard about possession
of marijuana.
MR. GUANELI added that because it is an aggravating offense in the
presumptive sentencing system, and because misdemeanor possession
of marijuana doesn't strictly come under presumptive sentencing, it
isn't something the court is mandated to aggravate the sentence
for. However, it is among the things a prosecutor can point to,
saying, "This is something you ought to consider as being an
aggravated offense and, therefore, adjust the sentence
accordingly." Mr. Guaneli said this is an attempt to reconcile the
sometimes-conflicting views he had heard at the previous hearing.
Number 1763
REPRESENTATIVE PORTER made a motion to adopt Amendment 8.
CHAIRMAN GREEN pointed out that the change to page 8, lines 5-8,
would delete the definition of intoxicant altogether.
MR. GUANELI said that was not his intention. He agreed it should
read lines 5-7.
REPRESENTATIVE ROKEBERG noted that endangering the welfare of a
child in the second degree is a violation. He asked what the
punishment is.
MR. GUANELI said no jail time and up to a $300 fine. No public
defender would be appointed, and there would be no jury trial. It
is simply a matter of identifying people who are careless in their
care of children.
REPRESENTATIVE ROKEBERG suggested a mere violation could turn into
an aggravator.
MR. GUANELI explained that the violation in endangering the welfare
of a child has to do directly with caring for children and doing
any one of these other things. The aggravating factor in the
additional amendment has to do with committing any type of drug
offense, whether it is possession, sale, growing marijuana, et
cetera.
REPRESENTATIVE BERKOWITZ said the aggravator only applies to
felonies. Endangering the welfare of a child in the second degree
is a misdemeanor.
MR. GUANELI said it also states that a person is convicted of a
offense specified in AS 11.71, a drug offense.
REPRESENTATIVE ROKEBERG acknowledged he had misread it.
Number 1889
REPRESENTATIVE BERKOWITZ said his own concern with endangering the
welfare of a child in the second degree is the phrase, "causes or
allows a child to enter or remain in a dwelling." There is no
requirement of knowledge.
MR. GUANELI responded, "The fact that the dwelling or vehicle
contains a controlled substance, the state would have to prove that
the person is reckless as to that circumstance. This would be a
circumstance of the offense, and there's other statutes that say
when you have a circumstance specified in the law, the state has to
prove that, that the person is reckless. In other words, they have
to be aware of, and consciously disregard, a risk that ... the
drugs are there. And I think that's appropriate in this
circumstance, because ... if we were required to prove that someone
in fact knew that there were drugs, what we'd get is, 'Oh well, I
sort of suspected my husband's been selling drugs and he's got them
in the back room, but he didn't tell me, and I didn't know for
sure.' And I think that ... as long as we can prove that they are
reckless as to the fact of drugs, in most cases, it's going to be
easy. They're going to be there. There's going to be a marijuana
growing in the bathroom; it's going to be on the table. But that's
the way that would be interpreted."
Number 1946
REPRESENTATIVE BERKOWITZ responded, "It's also going to be
situations where, 'I know my friend smokes dope, and I bring my kid
over to his house just for a social visit, and we leave.' I mean,
I know he's got dope in the house; it has nothing to do with the
visit."
MR. GUANELI said this offense would technically apply in that case.
Number 1974
REPRESENTATIVE PORTER renewed his motion to adopt Amendment 8, with
the amendment that was made. There being no objection, it was so
ordered.
Number 1980
REPRESENTATIVE PORTER made a motion to adopt Amendment 9, discussed
previously. There being no objection, it was so ordered.
Number 2004
REPRESENTATIVE BERKOWITZ offered Amendment 10, which read:
Page 6, line 4, following "genitals":
Delete "to another person"
Page 6, line 5, following "have"
Delete "on that person"
REPRESENTATIVE BERKOWITZ explained that he had prosecuted a case
once where someone was masturbating in front of the federal
building, and it was clear that other people had been observing
that person. After losing the case, Representative Berkowitz was
told by the jury that because he hadn't shown that this act was
directed at a given individual, he hadn't proven the elements.
"And they were right," he added.
MR. GUANELI said there is merit in that point about the specific
elements.
REPRESENTATIVE PORTER asked about saying something like "to public
view."
REPRESENTATIVE BERKOWITZ replied that it is caught up because it is
with reckless disregard for the offensive, insulting or frightening
effect it could have. He mentioned people doing things in their
own rooms or own homes.
REPRESENTATIVE PORTER said this is supposed to be an intentional
act. He stated, "And I get along with reckless disregard for the
natural and probable result of the act, but that doesn't happen out
in the woods. If you're taking a whiz and Betty Lou and her kid
come by, and there's nobody else within 50 miles, and ... lo and
behold, you know, your language says, basically, that I should have
expected Betty Lou and her kid."
Number 2130
REPRESENTATIVE BERKOWITZ asked about the wording, "that act might
have on another person."
REPRESENTATIVE PORTER said he would go for that.
CHAIRMAN GREEN said, "And we'd still take it out of line 4."
REPRESENTATIVE BERKOWITZ agreed.
REPRESENTATIVE PORTER inquired about replacing it with something.
CHAIRMAN GREEN questioned whether they would need to.
REPRESENTATIVE PORTER said, "No, because if I'm intentionally
trying to hide, I have committed the offense ...."
CHAIRMAN GREEN disagreed, saying it is not reckless disregard if
someone is trying to hide.
REPRESENTATIVE PORTER stated, "It just says if I have intentionally
exposed my genitals ...."
CHAIRMAN GREEN added, "With reckless disregard."
MR. GUANELI suggested the phrase, "in the presence of other
persons."
CHAIRMAN GREEN said that wouldn't help in the woods.
REPRESENTATIVE PORTER disagreed, saying, "That helps your
situation, and that helps my problem."
REPRESENTATIVE ROKEBERG commented that it is "the window thing."
MR. GUANELI then suggested, "in the presence of another person,"
rather than making it plural. He added, "So, scratch the word 'to'
and 'in the presence of'."
REPRESENTATIVE BERKOWITZ commented that he'd been waiting for this
for six years. [There was laughter.]
Number 2200
CHAIRMAN GREEN, hearing no objection, indicated that was Amendment
10.
Number 2220
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 11, his
own handwritten amendment, which read:
p.8 line 31
Insert: (after "16,")
whose death has been caused by any of the conditions described
in AS 47.10.014 or AS 47.10.015,
REPRESENTATIVE BERKOWITZ explained, "I'm not excusing manslaughter,
and I'll put all those caveats out here, but this whole bill
addresses child abuse and child neglect. And rather than open up
the entire minimum sentence for manslaughter, for victims under the
age of 16 - which would include victims who got caught up in drunk
drivings, it would include accidental shootings, it would include
all of the sort of tragic deaths that happen - I want to ensure
that there's some causality with what we're trying to do in this
bill." He noted that the sections he is talking about relate to
negligence and physical harm, particularly by the parent, guardian
or custodian of a child, and there seems to be a causal
relationship between the added penalty and the amendment.
CHAIRMAN GREEN said he didn't see anything wrong with that. He
asked whether there was any objection.
REPRESENTATIVE ROKEBERG asked what AS 47.10.014 and AS 47.10.015
are.
REPRESENTATIVE BERKOWITZ said they are neglect and physical harm of
children, defined on page 27.
Number 2291
MR. GUANELI told members he and Representative Berkowitz had
discussed this. In general, he himself doesn't have much of a
problem with this as a concept. However, by referencing 47.10.015,
physical harm, among the acts described, it strikes him that they
are excluding a shaken baby syndrome caused by a boyfriend,
grandparent or someone else.
REPRESENTATIVE BERKOWITZ said that would seem to be the custodian.
MR. GUANELI mentioned that Senator Halford's bill, SB 218, deals
with all of the homicide offenses covered in this bill, and he
recalled the question asked at the previous hearing about what
happens if both bills pass but there is some conflict. He said one
alternative, to speed this along, and if they think Senator
Halford's bill will move through the House, is to delete the
homicide provisions from this bill and take up that question in the
context of that bill. He noted that it was 11 p.m. and that he had
just seen this language.
REPRESENTATIVE PORTER suggested they leave it in here, and if the
other bill gets over and it is included, they can take this out in
the Senate.
REPRESENTATIVE ROKEBERG noted that this has a House Finance
Committee referral, as well.
Number 2387
MR. GUANELI said in that case, he would prefer language on page 3
of the bill, at line 14, which is in the second-degree murder
statutes and which he believes addresses Representative Berkowitz'
concern. That language says, "a person knowingly engages in
conduct directed toward a child under the age of 16". That would
be shaking a baby, or not providing food or some kind of care,
rather than driving down the road drunk and happening to "hit a car
with children."
REPRESENTATIVE BERKOWITZ said that is fine by him.
Number 2445
MR. GUANELI then suggested the language of the amendment should
read:
On page 8, lines 30 and 31, it ought to read, "For
manslaughter, where the conduct was directed towards a child
under the age of 16, seven years;"
TAPE 98-67, SIDE B
Number 0006
[A small portion of the discussion is missing because of the tape
change. However, the language provided by the committee aide to
Legislative Legal Services following the hearing read: "when the
conduct was knowingly directed toward a child under the age of 16."
Missing on tape is the motion to adopt Amendment 11.]
REPRESENTATIVE PORTER noted the friendly amendment to Amendment 11.
CHAIRMAN GREEN asked whether there was any objection; none was
heard.
Number 0039
REPRESENTATIVE BERKOWITZ next offered Amendment 12, on page 29,
line 22, to delete "in the courtroom or in chambers". He explained
that a judge might want to go to a home or some other setting.
MS. WIBKER said she had never had a judge do that.
REPRESENTATIVE ROKEBERG asked whether they should say, "as
specified or selected by the judge."
CHAIRMAN GREEN asked whether dropping that causes any problem.
MS. WIBKER said she doesn't think it changes anything, as the
courts have tremendous flexibility in conducting children's
proceedings.
CHAIRMAN GREEN asked whether there was any objection to Amendment
12. Hearing none, he announced they would move on to the next
amendment.
Number 0095
CHAIRMAN GREEN noted that Representative Berkowitz had indicated
earlier that he wanted some kind of notice to family members, at
the top of that page.
Number 0126
REPRESENTATIVE BERKOWITZ responded that it regards Section 34,
notifying the family in some regard about the proceedings and the
possibility of termination. He didn't have specific language, just
a conceptual amendment that the family be notified.
CHAIRMAN GREEN asked whether there was any objection to
notification of the family.
REPRESENTATIVE BERKOWITZ indicated the wish to include grandparents
and step-parents.
CHAIRMAN GREEN asked whether it could become a burden to try to
figure out who all those people are.
Number 0161
MS. WIBKER said they need to decide how they want social workers
spending their time, whether it would be doing home visits, setting
up rehabilitation plans and getting people into treatment or else
sending out notice and so forth.
REPRESENTATIVE PORTER said especially in this state, grandparents
could be in Maine and might never have seen the child.
CHAIRMAN GREEN said, "You don't want to make that amendment."
REPRESENTATIVE BERKOWITZ responded, "I didn't; you brought it up,
actually." [There was laughter.]
Number 0183
REPRESENTATIVE BERKOWITZ next discussed a subject that would turn
into Amendment 13. Noting that he had talked about this before
with Ms. Wibker, he referred to page 40, lines 16 through 18, and
read from (1)(A), which says, "(1) by clear and convincing evidence
that (A) the child is a child in need of aid as described in AS
47.10.011". He said all that means to him is clear and convincing
evidence that it is a CINA case, not clear and convincing evidence
that any condition that made it a CINA case, such as that the
parent abandoned the child, or any of the laundry list of
conditions, exists; he believes it should be the latter.
REPRESENTATIVE ROKEBERG noted that it is a preponderance in the
CINA case.
Number 0268
REPRESENTATIVE BERKOWITZ agreed, saying the problem is they wind up
in situation where they could bootstrap a termination based on a
preponderance, instead of based on clear and convincing evidence.
He said, "I want to amend, 'by clear and convincing evidence [that]
the child is a child in need of aid, as shown ....'"
Number 0303
REPRESENTATIVE ROKEBERG suggested they would have to change the
standard in that one section.
MS. WIBKER disagreed.
REPRESENTATIVE BERKOWITZ said at a termination hearing, not an
adjudication, he wants to make sure the facts being used to
terminate have been shown by clear and convincing evidence, not
simply by a preponderance of the evidence. He explained, "I don't
want the court to be able to reach back and say, 'Well, we showed
by preponderance of the evidence at the adjudication that the kid
had been abandoned.'"
Number 0329
MS. WIBKER said, "For termination, it's clear and convincing. For
adjudication, it's preponderance. And the burden on the state is
to prove the facts by clear and convincing evidence that made the
child a child in need of aid. That is, if the child is a child in
need of aid because of abandonment, for termination you must prove
that by clear and convincing evidence."
REPRESENTATIVE BERKOWITZ responded, "But this language doesn't
necessarily indicate that you have to show abandonment by 'clear
and convincing.'"
Number 0358
REPRESENTATIVE ROKEBERG proposed adding a reference in Section 31
that these must be raised to the clear and convincing standard to
be applicable in the .088 termination section.
REPRESENTATIVE BERKOWITZ referred to page 40, line 16. He stated,
"It would be by clear and convincing evidence that the conditions
described in AS 47.10.011, subsections (1) through (12), exist."
MR. WEBB pointed out that they would have to prove all of (1)
through (12), then.
Number 0450
MS. WIBKER told members that what Representative Berkowitz desires
is what is happening in the way the courts interpret this. She
explained, "I can adjudicate by a preponderance that there's sexual
abuse. If I want to terminate, I have to prove by clear and
convincing evidence that the child is at risk of sexual abuse in
the home. So, I have to prove the facts at a higher level, higher
burden of proof. That is how it works in practice."
REPRESENTATIVE ROKEBERG referred to page 40, line 17, and suggested
it say, "a child in need of aid, as in each subsection described in
...."
REPRESENTATIVE PORTER interjected, "Well, if you're going to do
that, you just changed by a preponderance to clear and convincing
on page 24, line 27, if that's what you want to do."
REPRESENTATIVE BERKOWITZ disagreed, saying that page 24 is at the
adjudication stage, which is the finding that there is a CINA case.
When they move down the road to termination, he wants to make sure
that the facts that led to the adjudication are shown again, to a
clear and convincing standard, rather than to the preponderance
standard.
REPRESENTATIVE PORTER asked whether Representative Berkowitz cares
that they are established by a preponderance.
REPRESENTATIVE BERKOWITZ said no.
Number 0539
REPRESENTATIVE ROKEBERG suggested on page 40, line 17, saying, "by
clear and convincing evidence that (A) the child is a child in need
of aid in one or more of the subsections in [AS] 47.10.011".
MR. JARDELL told members, "If you took the language out of
47.10.011 that says if the court 'finds by a preponderance that the
child has been subjected to', and you just take that language out
and put it in here, and say, 'if the court finds by clear and
convincing evidence that the child has been subjected to any of the
provisions in 47.10.011', it would get you where you want to be."
REPRESENTATIVE PORTER restated his opinion that they were already
there.
Number 0596
REPRESENTATIVE ROKEBERG offered the above as a conceptual
amendment.
CHAIRMAN GREEN, hearing no objection, labeled that as Amendment 13.
Number 0638
MR. JARDELL referred to page 17, Section 21, relating to
presumptions of custody. He advised members that this deals with
subject matter that isn't particularly relevant to the rest of the
bill: custody determinations if there were prior domestic violence
proceedings. Mr. Jardell said it may be a good idea, but they are
not hearing from the family law bar, nor have they heard anybody
speak to this except for Blair McCune of the Public Defender
Agency, who had inquired why this was tacked onto the bill. Mr.
Jardell agreed this is not the place to address these provisions
and suggested they should be in another bill in order to determine
whether these presumptions are a good idea or not.
Number 0702
REPRESENTATIVE PORTER asked why he doesn't believe this is relevant
to the bill.
MR. JARDELL replied that this would be in any divorce action or
custody dispute from the courts, but not foster care.
REPRESENTATIVE PORTER noted that it involves a domestic violence
proceeding.
MR. JARDELL agreed but said it is not a CINA case issue. Rather,
it is an issue in making a custody decision, in or after a divorce
proceeding; if there is domestic violence involved, then these
presumptions kick in. "And it's just not consistent with the
subject matter of the bill, and I think you could probably have
three or four hours of discussions on it, if it was in a separate
bill, by itself," he concluded.
CHAIRMAN GREEN asked whether this is covered elsewhere in law.
MR. JARDELL replied that he doesn't think these actual presumptions
are covered in law, and it may be a great idea to do so. Nor is he
sure it is covered under the title, although that is quite long.
But it is strange to see AS 25.20 in this bill, dealing with
custody determinations and proceedings that aren't CINA cases and
that aren't regulated by DFYS.
MS. WIBKER said she didn't have a position on this.
Number 0793
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, Department of Public Safety, disagreed with Mr.
Jardell's position, saying this was amended in the House Health,
Education and Social Services Committee after some discussion. She
said she believes it very much has to do with the protection of
children, if one accepts the premise that domestic violence in a
family situation is harmful to children, and it increases the risk
to them of child abuse.
Number 0822
REPRESENTATIVE ROKEBERG asked whether this had been in another bill
at one time.
MS. ANDREEN restated that this was amended in the previous
committee, adding that it hadn't been introduced elsewhere.
MR. JARDELL explained that Chapter 25 is child support and custody
provisions. He reiterated that it may be a very good idea, but
most of the testimony has been on DFYS aspects of the bill. He
expressed concern that those most affected by it, including family
lawyers and family bar members, may not be aware of it. He said it
is only in Section 21, plus the following four or five pages of
conforming language.
REPRESENTATIVE PORTER stated his belief that it fits within the
title, which includes child abuse and neglect, as this is a
presumption of neglect.
Number 0914
MR. JARDELL indicated there are issues, whether or not
substantiated, about how much deference judges have in domestic
violence cases. He said he doesn't take away from the real need of
stopping domestic violence, but this lends itself to some abusive
situations of the law when someone goes after custody. He believes
automatic presumption of custody should be looked into on its own.
REPRESENTATIVE ROKEBERG read from page 17, beginning at line 12,
"If the court finds in a proceeding involving child custody that
domestic violence has occurred, rebuttable presumptions arise". He
noted that it doesn't say a crime of domestic violence, then asked,
"That's a pretty easy go, isn't it?"
Number 0978
MR. JARDELL replied, "My first impression would be that it is, that
if you called and made a complaint, that there was a domestic
violence charge, even if it wasn't prosecuted, using that in a
civil matter - that it has occurred - you have a burden of
preponderance of the evidence." He restated that it is something
that deserves some attention and looking into.
REPRESENTATIVE PORTER responded that the presumption is rebuttable.
If two people divorce, and if at some time past one was involved in
domestic violence against the other, that could be brought up as a
presumption that custody would not be a good idea for the offending
parent. He suggested if the offending parent had gone through
awareness training and so forth, it would not be that difficult to
overcome the presumption.
MR. JARDELL said in that case, it may not be. Furthermore, right
now judges look to the best interests of children in placement, and
will not place a child where they believe the child will be harmed.
He said he couldn't speak to the need for this, or its practical
effects, but this deals with a matter that wouldn't be under DFYS,
although it relates to children. He restated his opinion that it
is not necessarily consistent with the rest of the bill in subject
matter and would be better approached in another bill. He
acknowledged that it is for the committee to decide.
CHAIRMAN GREEN asked Ms. Torkelson whether she remembers the
discussion about this in the House Health and Social Services
Committee.
Number 1120
MS. TORKELSON replied, "Jayne Andreen came to our office and
requested it be put in. [Representative Dyson] and I both looked
at it. It sounded good. ... We were a vehicle for them. And we
don't really have a position one way or the other, as far as taking
it out now, leaving it in; that would be the will of the committee.
It sounded good to us at the time, and it was discussed, and it
made sense."
Number 1153
CHAIRMAN GREEN asked Ms. Andreen, "The fact that this may be a good
idea, is it because this bill is available? Would there be another
opportunity to put this in law through a different vehicle?"
MS. ANDREEN said she is not aware of another vehicle this would fit
into. One reason the council felt this is a good vehicle is
because it focuses on the protection of children. She referred to
the rebuttable presumption, which she said comes out of the model
code put together by the National Council of Juvenile and Family
Court Judges, and which says this is important in domestic violence
cases as a way to further protect children. Ms. Andreen pointed
out that Legislative Legal Services had looked at it for single-
subject requirements. She indicated she is pleased that only one
group has come forward to say they don't know whether it belongs
here, and she said it has already gone through that test.
MS. ANDREEN continued, saying what is important is that a whole
court process has to take place, including a determination that
domestic violence occurred. She stated, "Right now, what happens
in the nonoffending parent - who most often has been threatened
with loss of the children or injury to the children or the
nonoffending parent if they object in any way to anything that the
batterer wants to have happen - has to prove to the court that it's
not in the best interests of the child to have contact or to be
given custody to the batterer. This, in our minds, merely shifts
that focus to, 'It's up to that batterer, that proven offender, to
say, "No, it is okay; I have been through the treatment" or "I have
done this" or "I have done that" or "It occurred ten years ago and
nothing has happened since then,"' which we think is a more
appropriate way to approach it."
Number 1277
REPRESENTATIVE DYSON told members that his sense of the House
Finance Committee is that they are into stripping extraneous things
from bills. He said Senate members have told him they have a
similar predisposition. He suggested this committee could pass the
bill out with some confidence that the appropriateness of these
pieces in the bill would be addressed on the Senate side.
REPRESENTATIVE BERKOWITZ asked what the inspiration was for the
language in these sections.
MS. ANDREEN replied that it came in part from the language in the
model code. In addition, this language was originally in the
Governor's domestic violence bill in 1996.
Number 1329
REPRESENTATIVE BERKOWITZ asked what deviations there are from the
model code.
MS. ANDREEN said she hadn't brought that with her, but as she
recalls, this goes into more detail in terms of laying out what
would be looked at.
REPRESENTATIVE PORTER said it had been discussed quite a bit in the
previous committee, of which he is a member; he was satisfied that
it was generally topical, and he felt comfortable leaving it in.
Number 1367
REPRESENTATIVE BERKOWITZ asked whether there had been adverse
testimony in the previous committee.
CHAIRMAN GREEN said he didn't recall any about applicability.
Number 1415
MS. TORKELSON replied that a lot of amendments presented in the
House Health, Education and Social Services Committee were not
given much time beforehand for study by groups. The Office of
Public Advocacy (OPA) had indicated uncertainty about the
rebuttable presumption, and Ms. Torkelson had suggested they get
together with Ms. Andreen's office, then come back with a solution.
Ms. Andreen had told her OPA is okay with this wording, to Ms.
Torkelson's understanding.
Number 1489
REPRESENTATIVE BERKOWITZ asked Ms. Andreen whom she had talked to
at OPA.
MS. ANDREEN said it was Barbara Malchick, who had told Ms. Andreen
that OPA's one concern was whether it fit here. When asked whether
OPA had concerns or problems with the content, Ms. Malchick had
said no.
REPRESENTATIVE BERKOWITZ said that is good enough for him.
Number 1519
REPRESENTATIVE ROKEBERG referred to an unspecified letter in
committee packets, which he described as lucid and clear, and which
made some interesting points. He read as follows: "These
sections, 21 to 25, need to be in an independent bill or combined
into House Bill 307, Section 3. These sections are not part of any
federal law or regulation. ... The custody issues involving
marriage or a relationship or similar to a marriage really have no
place in a child protection bill. The CRC, this organization,
fully agrees with the rebuttable presumption in custody hearings.
... To date, 29 states have adopted some form of presumed joint
custody. (Indisc.) local chapter says in presumed joint hearings
and in interim custody decisions, the decision maker shall presume
that both parents are equally good parents .... When invoking a
rebuttable presumption, the clear and convincing evidence standard
of proof shall apply in all cases where one parent is wanting to
have sole custody for any reason."
REPRESENTATIVE ROKEBERG said that seems to make some sense. He
asked whether his understanding is correct that, as this bill is
drafted, the rebuttable presumption would be for any kind of
domestic violence offendee, even if there was a prayer for sole
custody.
Number 1607
MS. ANDREEN replied, "That's correct; I think I'm following you."
REPRESENTATIVE ROKEBERG suggested that isn't a fair playing field;
the 29 states that have a rebuttable presumption do so for joint
custody, not sole custody. He said if there is no distinction made
here on that, it is a question the committee should look at. If
someone wants sole custody, there should be a higher standard.
Number 1696
MS. ANDREEN referred to page 17, line 15. She said the rebuttable
presumption applies but would not preclude the court's ability to
order joint legal custody.
REPRESENTATIVE ROKEBERG agreed it doesn't preclude it, but said it
certainly affects the balance of the whole proceeding.
REPRESENTATIVE BERKOWITZ told members he isn't utterly convinced of
this. Because there is provision for sole, joint legal and joint
physical custody, it allows a court to make a determination based
on the best interests of the child. He agreed this section doesn't
belong in here, but said it isn't too far afield from the subject
matter. He offered to check and bring any problems to the
attention of the House Finance Committee. He suggested this is as
good as they could do at this late hour.
CHAIRMAN GREEN commented, "Well, the only concern is that we
complain about the Finance Committee rewriting bills, and then we
kick bills up to them to get them rewritten."
CHAIRMAN GREEN asked the wish of the committee on this issue.
REPRESENTATIVE ROKEBERG suggested that the more there is in the
bill, the less chance it has of making it.
Number 1852
REPRESENTATIVE BERKOWITZ made a motion to move CSHB 375(HES), as
amended, from committee with attached fiscal notes and individual
recommendations.
CHAIRMAN GREEN asked whether there was any objection. There being
none, CSHB 375(JUD) moved from the House Judiciary Standing
Committee.
Number 1871
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, spoke up via teleconference from Anchorage.
CHAIRMAN GREEN apologized, indicating he didn't know anyone was
still listening.
MR. McCUNE informed members he is concerned about adding the
substantial risk of mental injury to the key subsection regarding
CINA jurisdiction, starting on page 24, which he believes was added
to subsection (8) [Section 31 of the bill], where it deals with
domestic violence. He read the definition of mental injury, saying
it means the injury to the emotional well-being or mental alacrity
or psychological capacity of the child, as evidenced by an
observable and substantial impairment of the child's ability to
function in a developmentally appropriate manner.
MR. McCUNE said that is a fairly broad definition, and if they are
talking about specifics of that, they are casting a pretty broad
net. He noted the department's concern with domestic violence and
its effects. He said in the earlier versions of the bill, it was
prima facie evidence and so on. His expressed a preference for
"mental injury of the child," but indicated he preferred prima
facie evidence rather than "risk or substantial risk of mental
injury".
CHAIRMAN GREEN asked whether Mr. McCune could provide anything in
writing.
Number 2043
MR. McCUNE replied that he had sent a fax the previous Monday to
Mr. Jardell.
MR. JARDELL said he didn't recall it.
CHAIRMAN GREEN requested that Mr. McCune fax another copy, if
possible.
MR. McCUNE told members there is one more technical issue. He
referred to subsection (10) [Section 31 of the bill], which says,
"the parent, guardian, or custodian's ability to parent". He
inquired whether the committee wants to take custodian out of
there, on page 26, line 1, as a custodian would be someone like a
babysitter.
CHAIRMAN GREEN indicated he would try to telephone Mr. McCune about
these issues.
Number 2266
MR. McCUNE referred to page 27, line 16, which says [beginning on
line 15], "(2) a negligent act or omission by a parent, guardian,
or custodian creates a substantial risk of injury to the child."
He stated, "In an earlier version of the bill, they went into
detail on that, and the detail that's found ... on page 7, at the
tops of section (2) and so on. ... That seems like a pretty broad
definition when we say physical harm."
CHAIRMAN GREEN noted that they have the same "custodian" language
in there, as well, acknowledging it is fairly much throughout. He
asked whether Mr. McCune's concern is that it is too broad.
Number 2352
MR. McCUNE affirmed that, adding that subsection (1) is clear. He
then advised members that he also has concerns about Section 43 on
page 35, subsections (s) and (t), including concerns about its
effect on a statute, which they are not amending here, that
provides placement of the child with a relative. He stated, "What
would happen is if the child's in foster care, and then the social
worker or someone involved in the case says, 'Oh, there's a
relative who's ready, willing and able to take care of the child,'
that that would have a whole process and involve a lot of notice,
when the relative is a preferred placement."
CHAIRMAN GREEN asked what the problem is.
MR. McCUNE explained that sometimes they aren't able to find
relatives right away, and there could be a placement in a foster
home. He said he hopes he is reading this right, but he is seeing
14 days' notice, for example.
TAPE 98-68, SIDE A
Number 0006
MR. McCUNE said he hadn't received all the amendments, although he
had a few.
CHAIRMAN GREEN suggested the best thing would be to provide Mr.
McCune a copy of CSHB 375(JUD), so that he wouldn't have to go
through the amendments. He asked whether anyone else was waiting
on teleconference, then concluded the hearing. [CSHB 375(JUD) had
already been moved from committee.]
ADJOURNMENT
Number 0088
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 11:45 p.m.
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