Legislature(1997 - 1998)
04/29/1998 09:09 AM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE
April 29, 1998
9:09 a.m.
MEMBERS PRESENT
Senator Gary Wilken, Chairman
Senator Loren Leman, Vice-Chairman
Senator Jerry Ward
Senator Johnny Ellis
MEMBERS ABSENT
Senator Lyda Green
COMMITTEE CALENDAR
SENATE BILL NO. 272
"An Act relating to children in need of aid matters and
proceedings; relating to murder of children, criminally negligent
homicide, kidnaping, 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."
PASSED CSSB 272(HES) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 272 - See HESS minutes dated 4/8/98.
WITNESS REGISTER
Representative Fred Dyson
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Supports CSSB 272(HES)
Russell Webb
Deputy Commissioner
Department of Health & Human Services
P.O. Box 110601
Juneau, Alaska 99811-0601
POSITION STATEMENT: Supports CSSB 272(HES)
Susan Wibker
Assistant Attorney General
Department of Law
1031 W 4th Ave., Suite 200
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Explained the provisions of CSSB 272(HES)and
supports it.
Marci Schmidt
2040 Wasilla Fishhook Road
Wasilla, Alaska 99654
POSITION STATEMENT: Commented on CSSB 272(HES)
Diana Buffington
Children's Rights Council of Alaska
317 Maple Street
Kodiak, Alaska 99615
POSITION STATEMENT: Opposed to HB 375
Pam Gillham
P.O. Box 2561
Soldotna, Alaska 99669
POSITION STATEMENT: Opposed to HB 375
Walter Gauthier
Guardians of Family Rights
Homer, Alaska
POSITION STATEMENT: Opposed to CSSB 272(HES)
Heather Guildner
P.O. Box 75303
Fairbanks, Alaska 99707
POSITION STATEMENT: Opposed to CSSB 272(HES)
Gene Altig
4396 Al Cory Road
Fairbanks, Alaska 99705
POSITION STATEMENT: Opposed to CSSB 272(HES)
Harry Niehaus
P.O. Box 55455
North Pole, Alaska 99705
POSITION STATEMENT: Opposed to CSSB 272(HES)
ACTION NARRATIVE
TAPE 98-40, SIDE A
Number 001
CHAIRMAN WILKEN called the Senate Health, Education and Social
Services (HESS) Committee to order at 9:09 a.m. Present were
Senators Ward, Ellis, and Chairman Wilken. The first order of
business before the committee was SB 272.
SB 272 - CRIMES AGAINST CHILDREN/FOSTER CARE
CHAIRMAN WILKEN announced a HESS committee substitute was prepared
for SB 272.
SENATOR WARD objected to its adoption.
The committee took a brief at-ease.
CHAIRMAN WILKEN noted the bill being discussed by the committee was
version A, the original bill. He asked Representative Dyson to
brief the committee on the measure.
REPRESENTATIVE DYSON made the following comments about SB 272. In
light of tragedies that were widely reported in the newspapers, the
Governor put together a task force on child protective services
last summer, in which Representative Dyson participated. The Task
force worked to identify problems with child protective services
and find solutions. Task Force activities particularly germane to
the Legislature were the identification of statutory problems that
need to be addressed. Congress passed a child protection law in
1996 that requires state legislatures, in their first session, to
bring state laws into conformity with the federal law. The federal
law requires that the primary emphasis of state laws be placed on
child protection. SB 272 changes the emphasis in Alaska statute
from preservation of the birth family to child protection. Susan
Wibker was a member of the task force group that worked on
legislation. Ms. Wibker has spent most of her career prosecuting
crimes against children. Representative Dyson and his staff have
spent the last 2+ months working with this group during which time
they have probably made 100 changes to this bill. This legislation
has been heard by two House committees, and scores of amendments
were proposed. As Representative Dyson's "non-sponsor" statement
clarifies, SB 272 does not guarantee that the Division of Family
and Youth Services (DFYS) will be perfect; it does not guarantee
that the Courts will do the right thing; it does not guarantee that
every out-of-home child placement will be successful. Portions of
SB 272 do strengthen the hand of foster parents and gets them the
information they need to know about a foster child, and it allows
foster parents to attend placement hearings and court proceedings.
SB 272 does not force DFYS to shape up but it does set performance
standards, i.e. the federal legislation requires that DFYS focus
on placing children in permanent, safe homes; some children have
been in the DFYS system for seven years, and have been placed 70 or
80 times. The Legislature cannot pass legislation that will
guarantee that birth parents will overcome drug and other social
problems. Representative Dyson repeated that if SB 272 passes, the
Legislature will be criticized for empowering a rogue bureaucracy
and allowing DFYS to use gestapo tactics, and for destroying
families, however most of this bill is a major step forward to
protect children. Alaska will be disqualified from receiving about
$10 million if it does not conform its statutes to federal law.
One of the problems identified by the child protection task force
was that existing confidentiality laws keep departments and
agencies from sharing information about crimes against children.
This bill allows involved parties to share information. Several
portions of SB 272 are a response to comments by state judges
regarding problems in existing law. Current statute requires
courts to return a child to his/her birth parents if those parents
are willing or able to care for the child. In some cases, a parent
has been serving a ten year prison sentence, and although the
parent was unable to care for the child, he/she was willing,
therefore the court could not require DFYS to permanently place a
child. Parents who have sole charge of a child and are
incapacitated by alcohol or drugs could be charged with neglect
under SB 272.
REPRESENTATIVE DYSON explained SB 272 guarantees that foster
parents receive information about a foster child. He had a young
girl molested at his house by a 14 year old boy in his care who he
later learned had two prior molesting convictions. The boy had
also set houses on fire. The foster parents the boy was recently
placed with received no prior information either. A bill sponsored
by Senator Pearce, and another sponsored by Senator Halford,
address a significant portion of the criminalization provisions in
SB 272 which the committee might choose to remove. SB 272 also
establishes a multidisciplinary team to investigate crimes against
children, as most jurisdictions throughout the country have done.
The intent of that approach is to connect the appropriate
individuals in order to prevent a victimized child from having to
go through multiple investigations. That process allows some of
the evidence to be admissible so that a child does not have to be
interviewed numerous times about traumatic events. SB 272 also
creates a child fatality review team in statute, to establish a
clearinghouse for unexplained deaths of children. The team has
begun operation, and has found seven or eight cases in the last 18
months that might have been homicides. DFYS has undergone some
profound changes. It has new leadership and is well on its way to
dealing with some of its problems. SB 272 contains many
accountability reporting requirements. DFYS has committed to
privatizing adoption services and has started to privatize foster
care services.
Number 197
SENATOR WARD asked about the status of HB 375.
REPRESENTATIVE DYSON answered it has passed out of the House
Judiciary Committee and is now in the House Finance Committee.
SENATOR WARD questioned when the Senate HESS committee substitute
was produced (version E).
REPRESENTATIVE DYSON replied version E is identical to the House
Judiciary Committee version which was adopted a week ago. He noted
they tried to get all of the amendments put into it but it is not
perfect.
CHAIRMAN WILKEN clarified that the language in the legislation
sponsored by Senator Halford and Senator Pearce is highlighted in
blue and yellow ink in the proposed committee substitute.
Number 216
SENATOR WARD asked if both Senator Halford's and Senator Pearce's
bills are rolled into the proposed committee substitute.
CHAIRMAN WILKEN explained they are in the proposed committee
substitute, but if the committee substitute is adopted, that
language should be removed as it is duplicative.
SENATOR WARD maintained his objection to the adoption of CSSB
272(HES).
CHAIRMAN WILKEN asked Senator Ward what questions he had about the
proposed committee substitute.
SENATOR WARD replied he does not understand the contents of the
proposed committee substitute well enough to adopt it and he was
unsure whether the Legislature should go in this direction.
SENATOR LEMAN stated a lot of work has been done on the proposed
committee substitute and that it is a good starting point. He
moved to adopt CSSB 272(HES), version E.
SENATOR WARD objected to the motion.
The motion to adopt CSSB 272(HES) as the working document before
the committee passed with Senators Leman, Ellis, and Chairman
Wilken voting for the motion, and Senator Ward voting against it.
CHAIRMAN WILKEN noted CSSB 272(HES) is identical to HB 375. He
repeated that the parts of the bill highlighted in yellow and blue
ink are addressed by SB 218 and SB 323. He suggested the
highlighted sections be removed from CSSB 272(HES).
Number 240
SENATOR WARD noted HB 375 has been working its way through the
House for quite some time. He asked if it lacks support to pass
the other body.
REPRESENTATIVE DYSON responded HB 375 is a House Majority priority
and is expected to be reported out of the House Finance Committee
shortly.
CHAIRMAN WILKEN clarified HB 375 was referred to the House HESS,
Judiciary, and Finance Committees. It has passed the first two
committees and now resides in the House Finance Committee.
Number 258
SUSAN WIBKER, Assistant Attorney General, stated she represents the
Department of Health and Social Services (DHSS). She made the
following comments about CSSB 272(HES). This legislation was
reviewed by the House HESS Committee for six to seven weeks,
beginning in early February. That committee did a line-by-line
analysis of the bill, took significant public testimony, and
considered amendments. The bill was then heard by the House
Judiciary Committee which also did a line-by-line analysis and
considered amendments. Three Representatives are members of both
committees and are very familiar with the bill. A committee
substitute moved from the House Judiciary Committee around midnight
last Thursday to the House Finance Committee.
MS. WIBKER stated it has been a pleasure to work with
Representative Dyson on this bill. His experience as a foster
parent for 20 years provided an invaluable perspective regarding
children's needs and problems and interactions with DFYS social
workers. Representative Dyson was able to clarify what agency
problems are myth and what are real. She agreed with
Representative Dyson's assessment that this bill is the result of
a lot of committee work, and noted she is happy with the final
product.
RUSSELL WEBB, Deputy Commissioner of DHSS, agreed with Ms. Wibker's
comments. Representative Dyson held DHSS's feet to the fire on a
number of issues. DHSS continues to disagree on some very minor
aspects of the legislation, but overall the working relationship
has been very productive. This legislation is absolutely essential
for a variety of reasons, not the least of which is to place
children into safe, permanent homes much more quickly. It puts the
focus on protecting children and holds DFYS and parents
accountable. He emphasized that nothing in this legislation
reduces the procedural safeguards in current law for families, and
agencies will be held more accountable. He urged the committee to
move the bill, as it is very important for the children of Alaska.
Number 306
SENATOR WARD asked if the Administration supports CSSB 272(HES) in
its entirety and whether any provisions in that version are not
mandated by federal law.
MS. WIBKER replied portions of the bill are not mandated by federal
law.
SENATOR WARD asked Ms. Wibker to review those portions.
MS. WIBKER stated the criminal portions are not required by federal
law. The federal law requires changes in the way DHSS operates;
those requirements comprise about half of the bill.
Number 318
CHAIRMAN WILKEN asked if the criminal portions of CSSB 272(HES) are
the same as the contents of SB 218 and SB 323.
MS. WIBKER replied those two bills cover a great deal of the
criminal portions.
CHAIRMAN WILKEN asked whether deleting those provisions from CSSB
272(HES) will add to, or detract from, this measure.
MS. WIBKER said deleting those provisions will not detract from the
bill, if SB 218 and SB 323 pass as written. Senator Halford's bill
is almost identical to the criminal provisions in this bill, and
Senator Pearce's bill is identical to four of the provisions in
CSSB 272(HES).
CHAIRMAN WILKEN asked if the criminal provisions of CSSB 272(HES)
are not federally mandated, so that their removal would alleviate
Senator Ward's concerns.
SENATOR WARD stated other parts of CSSB 272(HES) are not federally
mandated.
CHAIRMAN WILKEN suggested removing the highlighted language in CSSB
272(HES).
SENATOR WARD objected.
SENATOR LEMAN moved to delete the highlighted language in CSSB
272(HES).
SENATOR WARD maintained his objection.
SENATOR ELLIS indicated he does not object to removing the
highlighted language and moving those provisions forward as
separate legislation if it is the will of the committee, but he
expressed concern that SB 218 and SB 323 will have to travel
further as separate legislation at this late date in the session.
CHAIRMAN WILKEN asked Representative Dyson to speak on the motion.
REPRESENTATIVE DYSON thought Senator Ellis' point was well taken,
but he noted that language could be amended back into CSSB 272(HES)
at a later point if it looks like SB 218 and SB 323 are not going
to make it to the floor. He felt removing that language serves a
valid concern of Senator Ward, and that is that CSSB 272(HES) ends
up being an omnibus child protection bill. Other committees have
already removed portions of the bill that pertained to child
support and enforcement and sexual predator registration. Those
issues are important but extraneous. He thought simplifying the
bill will help it to move along.
Number 360
SENATOR ELLIS asked if Senators Pearce and Halford had a preference
as to how this legislation be handled.
CHAIRMAN WILKEN stated they were not asked.
SENATOR LEMAN stated his motion to delete the highlighted language
includes adjusting the title to accommodate the deletions, if
necessary.
CHAIRMAN WILKEN recognized the possible title change as part of the
motion on the floor.
There being no further discussion on the motion, a roll call vote
was taken. The motion carried with Senator Ward voting against it
and Senators Ellis, Leman, and Chairman Wilken voting for it.
Number 370
MS. WIBKER continued her explanation of CSSB 272(HES). The child
fatality review team section begins at the end of page 9 and ends
on page 15. Such teams are allowed, but not required, under the
federal law, and if those teams are established in statute, their
results must be publicly reported or disclosed. Alaska's child
fatality review team has been operating, although it is not in
statute. Team members can search records under the direction of
the medical examiner. A number of experts will be able to gather
a large amount of information that would otherwise be protected as
confidential, and team members will be able to discuss the
information with each other. A death investigation will ensure
that a death that may have been written off as accidental, the
result of Sudden Infant Death Syndrome or natural causes, was not
actually a homicide. Based on the work Alaska's team has already
done, DHSS believes as many as 10-12 child deaths per year written
off as accidental are actually homicides.
MS. WIBKER explained part of the bill required by federal law
begins on page 29, line 17. That provision allows foster parents
and relatives, who care for children, to be notified of any
hearings regarding the child, to attend that hearing, and to be
given the opportunity to be heard. Generally, only legal parties
to a proceeding and their counsel would attend these hearings.
This provision expands those rights to the people who care for the
child every day.
Number 404
SENATOR WARD noted the reference to the word "tribe" on page 29,
line 16, and asked if the bill contains a definition of that word.
MS. WIBKER replied the word "tribe" is defined under the Indian
Child Welfare Act (ICWA), and that tribes are parties to all
proceedings.
SENATOR WARD asked if that definition refers to the 218 recognized
tribes.
MS. WIBKER was not aware of the number and said she would have to
look up the definition.
DEPUTY COMMISSIONER WEBB stated he believes the tribes referred to
are those recognized by the U.S. Secretary of the Interior.
SENATOR WARD asked if they are the 218 tribes recognized by Ada
Deer or whether it refers to Metlakatla and Tyonek only.
DEPUTY COMMISSIONER WEBB said it would be the larger number.
REPRESENTATIVE DYSON stated he assumes it refers to the tribes
recognized by the federal government.
MS. WIBKER continued. Another federally required change, on page
30, lines 7-8, is a practice already occurring in Alaska. The
federal law requires that a guardian ad litem be appointed to
represent the best interest of the child in any child protective
proceeding. Under current Alaska law, a judge may appoint a
guardian ad litem; CSSB 272(HES) requires a judge to make those
appointments. References to permanency hearings are contained on
pages 32 and 33. The federal law requires that every child placed
out of the home have a permanency hearing 12 months after removal
from the home, and that a permanency hearing be held annually
afterward. "Permanency hearing" is a new phrase which pertains to
an annual hearing for children in out-of-home placement. Language
on the bottom of page 36 requires the court to consider the health
and safety of the child as the paramount concern, and is a
federally required change. A major shift required by federal law
begins at the bottom of page 37, on line 25, with the words
"reasonable efforts". That provision requires DFYS to make a
reasonable effort to offer services to a family to prevent the need
to remove a child from the home, and to enable a child to return
home. Under existing Alaska law, preservation of the family and
reuniting children with their families was DFYS's required goal in
every case, no matter what prompted the removal. Federal law now
requires DFYS to immediately seek a safe, permanent home for
children living in homes in which a homicide of a child took place,
a felony level assault on a child that resulted in serious injuries
took place, or sexual abuse, chronic abuse, or torture of a child
occurred. In those circumstances, it is not reasonable to ask DFYS
to treat a family and return the children home.
SENATOR LEMAN asked Ms. Wibker where that section is located in the
bill.
MS. WIBKER answered that language begins on page 38, line 23. She
explained DFYS would ask the court to make such a determination
when it believes the level of violence in a home is too high to
safely return the child.
MS. WIBKER indicated a part of this provision that is not federally
required is on page 39, lines 5-9. The additions from line 5
through 31 and on page 40, lines 1-2, are additions to statute that
pertain to reasons why DFYS should not make a reasonable effort to
return a child to its family. Those additions were added as
amendments by committees. The language on page 40, beginning on
line 3, pertains to incarcerated parents and is existing law. She
explained the federal requirements previously mentioned are on page
38: homicide; felony assault; abandonment; sexual abuse; torture;
chronic physical abuse; and chronic neglect. House members
preferred the words "mental injury" rather than emotional abuse and
emotional neglect, as that term is defined in statute.
Number 499
SENATOR LEMAN stated DFYS has made some tragic mistakes in the past
that have resulted in children being removed from the home, and
only through substantial expenses and time, were the children able
to be returned. In one case, a family that practiced corporal
punishment in the home had their children removed. The children
could not be returned unless the parents signed a statement saying
they would no longer exercise corporal punishment. Senator Leman
stated corporal punishment can result in physical harm, however
appropriate corporal punishment should not be a reason to remove a
child from the home and not returned.
MS. WIBKER stated corporal punishment is addressed in CSSB
272(HES); it is allowed and not prevented. The legislative
findings section of the bill (page 22) provides that parents have
the right to exercise reasonable corporal discipline. The point at
which that would cross the line to abuse and prompt an
investigation is when it rises to the level of what would be
considered to be a criminal assault.
SENATOR LEMAN clarified he believes there is a line, and when
people cross that line, appropriate action should be taken.
Number 524
MS. WIBKER continued her overview and stated Section D on page 40
was an amendment added in committee that is not federally required.
The provision, beginning at line 24 on page 40, is federally
mandated and requires that in any case in which the court
determines that it is not reasonable to reunite the child with the
family, a permanency hearing will be held within 30 days. The
purpose of a permanency hearing is to bring together the parties
involved to decide who will raise the child permanently, whether it
be a relative, friend of the family, teacher, or foster parent.
SENATOR WARD asked if that person must be appointed by the court.
MS. WIBKER replied the home must be inspected, licensed, and
approved as a placement. A background investigation must also be
undertaken, which includes a criminal background and fingerprint
check.
MS. WIBKER explained a provision pertaining to termination of
parental rights begins on page 41. The federally mandated parts of
that provision are on page 42, lines 1-11. In the past, DFYS had
the discretion to decide when to file a petition to terminate
parental rights. Federal law now requires DFYS to file a petition
to terminate parental rights in cases where a child has been in
foster care for 15 of the most recent 22 months. The purpose of
that provision is to prevent children from languishing in foster
care for years at a time and to place them in a permanent, safe
home. This requirement also pertains to abandoned infants who are
defined in state law as abandoned children younger than age 6
because young children need to attach and bond in safe homes.
Federal law also requires DFYS to petition to terminate parental
rights if a homicide or felony assault of a child took place (page
42, line 9).
Number 558
REPRESENTATIVE DYSON assured committee members that in a situation
in which one parent is healthy and the other is a perpetrator, the
law requires that every effort be made to get the perpetrator away
from the child and to keep the child with the healthy parent.
MS. WIBKER clarified that provision was an amendment made in
committee. The previous requirement under federal and state law
required DFYS to always try to avoid removal and exercise a
preference for relatives. The amendment was added so that if one
parent was violent and the other protective, DFYS should make an
effort to leave the child with the protective parent if the violent
parent is removed.
MS. WIBKER stated the provision on lines 12-16, on page 42, is not
federally required.
SENATOR WARD asked if it is a federal mandate to petition to
terminate parental rights if a child has been in foster care for at
least 15 of the most recent 22 months.
MS. WIBKER said that is correct. She explained that the remainder
of page 42 (lines 16-31) are federally required changes. If DFYS
is required to file a petition and does not, it must document a
compelling reason to the court for not doing so. DFYS might not
file a petition if a relative is willing to serve as a permanent
legal guardian for the child. Language at the bottom of page 42
(beginning at line 26) contains a federal calculation for
determining the amount of time a child has been in foster care.
MS. WIBKER indicated the paragraph on page 43, lines 8-14, pertains
to concurrent planning, and is federally required. DFYS must have
a permanent plan for a child even when it is working to reunify the
child with his/her family. She clarified the portions she just
identified regarding the termination of parental rights are some of
the most controversial changes. A great deal of testimony was
heard in opposition to changing the goal of reunifying children
with their parents in current statute.
TAPE 98-40, SIDE B
REPRESENTATIVE DYSON commented that people in the foster care
business have noted that children entering the foster care system
now are significantly different than 20 years ago. Many more
children have been victims of criminal activity, and the problems
encountered by foster parents are exacerbated by the trauma
experienced by the children. Of the 15 foster children that have
lived with him, three were prostituted in Anchorage, ten had been
sexually assaulted, one was chained outside for part of the winter
and suffered frostbite as a result, one was rented out to the
landlord to cover the rent, and one who is now in federal prison
was assaulted by her grandfather beginning at age nine. When that
girl was 11 her mother rented her to four high school boys for a
weekend and she was hospitalized for 2+ months as a result. He
hoped that other foster parents' experience has been vastly
different from his, however he has been told that his experience is
not atypical. One of the children was prostituted to Asian flight
crews on their stops in Anchorage. He stated everyone wants
families to work, and some families have problems they can't manage
temporarily, but most of the families that DFYS works with are in
utter chaos. He encouraged committee members to realize that there
are two kinds of families that this bill addresses. The families
with temporary problems need all the support the state can give
them, but others are victimizing their children. He stated if DFYS
decides to remove a child from a home because that home is
dangerous, it has to appear before a magistrate within 48 hours and
make the case that the child should be in state custody. Parents
have the right to contest the removal and to be represented. That
system does not always work well because the perception of those
parents is that the process is a rubber stamp operation. He did
not know whether that is true, but stated DHSS is attempting to
educate magistrates and judges to increase their understanding.
The parents' representative needs to be empowered to present their
side of the case because that is the major protection parents have
against arbitrary and capricious acts by DFYS. He stated this bill
does not make that process work perfectly.
Number 538
MS. WIBKER continued her identification of sections of the bill
affected by federal law. The multidisciplinary child protection
teams (page 53) are permitted by federal law. Those teams could
not be established in the past because of confidentiality
restrictions. The federal law permits the use of teams of experts
to assist the agency with decision making. The other major federal
change requires that anytime DFYS licenses or pays a family to care
for children, it must do a thorough criminal background check,
including an FBI fingerprint check. The federal law contains
guidelines regarding what types of criminal history, such as a
sexual offense against a child, would prohibit a person from caring
for children. Some criminal histories, if more than five years
old, such as a marijuana possession, would not automatically
disqualify a person from becoming a foster parent.
Number 516
SENATOR WARD asked if the language on page 53, line 23, regarding
the multidisciplinary team, is permitted by federal law and not
required.
MS. WIBKER said that is correct.
SENATOR WARD asked who created the team concept under this new
federally permitted provision.
MS. WIBKER replied the DFYS staff had already begun establishing
teams and using them for investigation assistance, and parts of
this provision were added by Representative Dyson.
CHAIRMAN WILKEN took teleconference testimony.
Number 508
MARCI SCHMIDT, a volunteer for Parents United for Custodial
Justice, gave the following testimony. Alaska needs to follow the
federal law because DFYS workers have a hard time comprehending how
to handle cases before them now. She does not know how DFYS will
implement all of the changes in the bill that are not federally
required. She cautioned the Legislature will have to revisit this
issue again in a year or two, and that more damage will occur in
the meantime. She questioned how DFYS intends to locate absent
parents under the federal parent locator services.
CHAIRMAN WILKEN replied Representative Dyson's staff noted the
question and would answer it at a later time.
MS. SCHMIDT questioned whether the provision giving workers full
immunity for job duties should be changed as it makes her nervous.
Any worker in the private sector who made a serious mistake would
be liable. She asked legislators to consider the Colorado law
which is about 12 pages long because she believes CSSB 272(HES)
will require too much, too soon.
CHAIRMAN WILKEN stated the committee noted Ms. Schmidt's two
questions.
DIANA BUFFINGTON, President and State Coordinator for the
Children's Rights Council of Alaska (CRC), stated the CRC adamantly
believes a child has the right to frequent, continuing, and
meaningful relationships with both parents and their extended
families. A child also has the right to adequate food, shelter,
clothing, medical care and education and to protection from sexual,
physical or emotional harm. CRC does not support this version of
HB 375, nor the previous four or five versions. CRC recommends
that the Legislature let HB 375 die. DFYS could wait on
recommendations from a legislative commission, as put forth in HB
384. A simpler version of HB 375 could be provided concerning the
Adoption and Safe Family Act (ASFA) of 1997 or the Child Prevention
and Treatment Act (CPTA) of 1996. HB 375 may one day affect
legislators as parents or grandparents, as they find themselves
under investigation by DFYS. Donna Shelala (ph) of the Department
of Health and Human Services testified in 1996 that, "Close to one
million children a year are abused and neglected nationwide. While
these numbers may be staggering, we should also be concerned by the
nearly two million false and unsubstantiated reports of child abuse
and neglect that are wrongly filed, and in some cases maliciously."
Other agencies estimate the number of false and unwarranted
allegations at 63 to 80 percent. The high level of false
allegations lead to more severe cases going uninvestigated or
underinvestigated. HB 375 has been misrepresented by the House
committees, Ms. Wibker, and Commissioner Perdue regarding
conformance with federal requirements. HB 375 cannot be fixed and
does not set a standard of duty through the development of a state
plan as required by CPTA. DHSS has not been forthcoming with CRC's
requests for a state plan filed with DHSS in 1997. Sections 15-17
and 63-77 are not cohesive with the legislative intent of the bill.
Those sections need to be independent of the bill. They are the
desire of DHSS and are not required by federal law. Those sections
are part of CPTA amendments, but they can be delayed until June 30,
1999. Citizen review panels are designed for oversight of the
department, not to provide volunteer workers for the agency. If
that section in the bill is not altered, CRC will file a federal
noncompliance complaint with the U.S. Department of Health and
Human Services. CRC believes the child's physical safety and
emotional stability is paramount. A DFYS determination will
establish substantial risk to the child. The burden of proof
should always be on DFYS.
Number 406
SENATOR WARD asked Ms. Buffington to submit her written testimony
to committee members.
CHAIRMAN WILKEN noted Ms. Buffington's testimony, sent to
Representatives Hanlon and Therriault, was in committee members'
packets.
Number 396
PAM GILLHAM, representing herself as a foster parent, stated her
concern with CSSB 272(HES) is that it gives DFYS additional
privileges and immunity when its record has been extremely poor.
The bill contains no provisions to force DFYS to correct its
existing problems. The child fatality review team provision
prevents that team's findings from being used in court proceedings
so there is no use to having the teams. Section 11 provides that
a parent merely has to be in possession of a drug to allow DFYS to
remove the child from the home. The fact that a parent smoked
marijuana does not make that person a bad parent, and under that
provision President Clinton could be considered a bad parent.
Foster parents should be allowed in the courtroom because they are
the people with the most current information about the child. The
ability of DFYS to do a criminal background check on a parent when
a child has been removed from the home should be a requirement.
Ms. Gillham said she does not believe this bill should be passed
into law because it contains more bad than good provisions. As a
foster parent, she and her husband were interviewed at 1:00 p.m. by
DFYS. By 2:30 that same day, DFYS placed a foster child in their
home. DFYS did no background check, and did a fingerprint check
three months later. She stated DFYS is sadly neglecting its
current duties, and to give them more power and duties will cause
more problems.
Number 333
WALTER GAUTHIER, representing Guardians of Family Rights, asked
committee members if they received two newspaper articles he faxed
to them.
CHAIRMAN WILKEN replied committee members did not receive them.
MR. GAUTHIER stated while he applauds Representative Dyson's good
intentions, it is possible that DFYS has been cultivating
Representative Dyson and legislators to achieve its political ends.
CSSB 272(HES) can be likened to outlawing cars because a person was
killed by a drunk driver. The shenanigans in the House committees
was unbelievable; people who signed up were not allowed to testify,
and delays and changes in the teleconference times were purposeful.
Public testimony was limited to three minutes per person on a 60
page bill while the bureaucracy droned on and on. The House
Judiciary Committee delayed action until midnight on the evening of
the Republican convention in Fairbanks. Ms. Wibker testified
before the House HESS Committee that almost every part of HB 375
was required by federal law until he distributed copies of the CPTA
and ASFA to the committee. Now Ms. Wibker testifies that about six
of the 60 pages are actually required by federal law. He asked
committee members to take into consideration the political goals of
the bureaucrats who misrepresent and exaggerate their
interpretation of federal law to achieve more power and money for
an agency. CSSB 272(HES) allows social workers to access all
federal databases for information on anyone who has been
anonymously reported to DFYS. The meetings of the multidisciplinary
teams will be secret, as well as their evidence and testimony. The
evidence will be non-admissible in court, and not subject to
subpoena, yet team members will be able to present their
conclusions to the court based on that evidence. The accused will
have no ability to cross examine or refute the evidence. He
refuted Ms. Wibker's testimony that relatives are always the first
choice of DFYS as guardians. In Kenai, 30 grandparents were not
considered by the courts as alternative caretakers, and are not
even allowed visitation with their grandchildren who are in the
custody of DFYS. Mr. Gauthier stated the state will not lose $10
million in federal money for noncompliance as no state has ever
been denied Title IV funds.
Number 258
SENATOR WARD asked Mr. Gauthier to resend the newspaper articles to
the committee, as well as his written testimony.
MR. GUATHIER agreed and said he would send website addresses that
contain information about the federal legislation.
HEATHER GUILDNER, representing herself as a parent, questioned why
HB 375 is being considered. The bill pretends to target child
abuse, neglect and fatalities, however Alaska law already contains
protections against those acts. Although she is the parent of a
molested child, she opposes this bill because the innocent parents
are constantly suspected of child abuse. Innocent parents become
afraid to take their children to doctors and dentists for fear of
reports of abuse. DFYS is out of hand and should not be allowed to
interpret the vague terms contained in the bill, such as emotional
abuse and emotional and social needs. Many good parents are
frightened by DFYS.
GENE ALTIG, representing himself, stated he agrees that children
need to bond to their parents, especially at an early age, so to
take a child from a family is an abuse in itself. Children do not
feel safe when they are taken from their homes, and giving parents
only 48 hours to prove the case is unrealistic. He believes
parents who prostitute their children should be convicted of a
felony. He believes many of the provisions in the bill could be
misinterpreted, such as corporal punishment, or whether parents
could be considered neglectful of providing adequate medical care
if they did not want their child to take ritalin. He cautioned
that the bill does not define the line between abuse and acceptable
parenting styles. Also, DFYS workers should not be given immunity
for their actions.
Number 135
HARRY NIEHAUS, representing Guardians of Family Rights, stated the
reason so many people are in opposition to CSSB 272(HES) is that
DFYS is a brutal, bureaucratic agency. Many parents rights groups
have formed because the rights of the family are being destroyed by
the few who are abusive. Social workers need to be held
accountable, and the bill needs to contain definitions for terms
such as "mental anguish". Parents have had their children removed
from their homes for six months for verbal abuse. CSSB 272(HES)
should be trashed.
BLAIR MCCUNE, Deputy Director of the Alaska Public Defender Agency,
stated CSSB 272(HES) has been the result of a lot of hard work. A
large part of the Public Defender Agency's case load is
representing parents in Child in Need of Aid (CINA) proceedings.
The issue being addressed by this bill is at what point does a
government agency have the right to intervene in a family's life.
The rubber meets the road on this issue on page 26 which describes
when DFYS can intervene through court action to remove a child from
the home or take other appropriate measures. Regarding the
vagueness of the term "mental injury" as noted by a previous
speaker, Mr. McCune said that term is defined in AS 47.17.290 but
it is fairly broad. He pointed out a section was added on page 26,
lines 6-7, that allows the state to take custody if a substantial
risk of mental injury exists. He expressed concern that the power
that section gives to DFYS is too broad as it goes beyond the line
of when the state should get involved. Mr. McCune stated it is
important to realize that in the overwhelming number of cases in
which DFYS has received a report of harm, the child remains in the
home or is speedily returned to the home. Public defenders try to
work with families to find placement with relatives to keep
children out of foster care. He urged the Legislature to focus on
preventive services and treatment services to parents for alcohol
and drug abuse.
There was no further public testimony on CSSB 272(HES).
SENATOR LEMAN commented he concurs with some of the concerns
expressed by the people who testified, he applauds Representative
Dyson and his staff, as well as DFYS, for working on this issue,
and he believes those involved have come a long way in improving
Alaska laws to protect children, yet he remains concerned about
some of the definitions in the bill and the ability of DFYS to act
in an overzealous manner. He stated he would like to request that
the Senate Judiciary Committee review the concerns expressed at
this meeting. He then moved to report CSSB 272(HES) as amended
from committee.
SENATOR WARD objected.
The motion carried with Senators Ellis, Wilken, and Leman voting to
move the bill from committee, and Senator Ward voting against the
motion. Therefore, CSSB 272(HES) am passed out of committee with
individual recommendations.
There being no further business to come before the committee,
CHAIRMAN WILKEN adjourned the meeting.
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