HOUSE BILL 6 "An Act amending laws relating to the disclosure of information relating to certain minors." Co-Chair Therriault noted for the record that at the previous meeting, Representative Kelly had submitted Amendment #4 which he would offer in replacement of Amendments #1, #2 and #3. [Copy on file]. Representative Kelly MOVED to adopt Amendment #4. [Copy on file]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative Kelly explained that Amendments #1, #2 and #3 had contained material which the Department of Law predicted to be problematic. Amendment #4 creates language to address those concerns. Amendment #4 would: 1. Give the Department the authority to determine when to disclose records for minors in the informal adjustment process who had knowingly failed to comply with terms and conditions of the adjustment process. 2. Removes burglary in the 2nd degree from the list of crimes required to be disclosed and makes burglary in the 1st degree contingent on a previous conviction of that crime (in the informal adjustment process). 3. Removes misconduct involving a controlled substance in the 4th degree. Co-Chair Therriault questioned if the Department had been consulted regarding the directional changes recommended through adoption of the amendment. Representative Kelly replied that the Department had recommended the changes in the first meeting that the bill was heard by the Committee. Representative G. Davis asked again if Representative Kelly had worked directly with the Department in constructing Amendment #4. Representative Kelly stated that he had. 2 Co-Chair Therriault WITHDREW his OBJECTION to adopting Amendment #4. There being NO further OBJECTIONS, Amendment clarification by the Department of Law regarding a portion of the amendment. Representative J. Davies MOVED to adopt Amendment #5. [Copy on file]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative J. Davies explained that the amendment would provide that the petition be filed to the modified list. It would remove the discretion of the Department of Health and Social Services (DHSS) on those youth who have mandatory disclosure, moving them through the discretionary path. Every case disclosed would be required to file a petition. The disclosure would occur when the Court formally adjudicated the minor as delinquent. The intent would be that the minor could make improvements in their level of maturity and get back to the "straight and narrow" path. The informal adjustment path would be the place to deal with that type of minor. He acknowledged the concern that exists in making the file mandatory which would increase the number of court cases. In response to Co-Chair Hanley, Representative J. Davies explained that the disclosure list would result in a mandatory filing of the petition. Co-Chair Hanley inquired if there would be less flexibility for the Department. He suggested it would be optional for the Department to disclose names going through the adjustment process. Representative Kelly stated that was not correct. It would be optional for the Department to disclose when the minor is not in compliance with the terms of the adjustment. Co-Chair Hanley pointed out under the scenario presented by Representative Davies, youths would automatically go into placement and then enter into the adjustment process. He questioned if the Department would have the option, for those youth in the adjustment process, to disclose the names of those who had not complied with the terms of their rehabilitation. Representative J. Davies commented that had not been included, although, noted that he would not object to adding that language. A roll call vote was taken on the MOTION to adopt Amendment IN FAVOR: Grussendorf, Martin, Moses, J. Davies OPPOSED: Kelly, Kohring, G. Davis, Foster, Therriault 3 Representatives Hanley and Mulder were not present for the vote. The MOTION FAILED (4-5). Representative J. Davies WITHDREW Amendment #6. [Copy on file]. Representative Martin MOVED to adopt Amendment #7. [Copy on file]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative Martin explained that his amendment would address the concern of a youth being labeled "guilty" too early in the process. He suggested that "disclosure" too early could misuse the system; the amendment provides a time certain. Representative Kelly replied that the amendment would interrupt the time frame already established. He added that in Court, many cases "in the interest of justice" are not heard at all. Of the number of referrals, there are few which come out adjudicated. He believed that the option would create an incentive for kids to always go through the petition and adjustment process. Representative Kelly emphasized that "crimes" are what is most important in the proposed legislation. He stressed that these are serious, bold and dangerous acts made by unhealthy kids. The community needs to know that there is a danger presented by these youths. The legislation is not a consequence. He reiterated that his concern is public safety and disagreed with the amendment. Representative J. Davies proposed a "conceptual" amendment to Amendment #7 which would grant the Department discretion to disclose in those cases where filing the petition, that the Department also recommended incarceration, but the Court set the minor free prior to adjudication. Co-Chair Therriault asked where that language would be inserted. Representative J. Davies restated that it was a "conceptual" amendment to be drafted by Legal Services and placed appropriately. (Tape Change HFC 97-64, Side 2). Representative J. Davies pointed out that there are cases where the Department recommends incarceration. In some cases, the Court will release the minor into the custody of the parent. It would be in those cases where the conceptual amendment would be appropriate. 4 The concept being in those cases, the Department would recommend incarceration and the Court then would release or over-rule that motion prior to the adjudication, and at that time, the Department would be authorized, if it was in the interest of "public safety" to disclose the name. In most cases, disclosure would occur at adjudication, although, in those cases where the Department had recommended incarceration and the child had been released, disclosure would be prior to adjudication. Co-Chair Therriault OBJECTED to adoption of amendment to Amendment #7. A roll call vote was taken on the MOTION to incorporate the conceptual amendment into Amendment #7. IN FAVOR: Martin, Moses, J. Davies, Grussendorf OPPOSED: Kelly, Kohring, G. Davis, Foster, Hanley, Therriault Representative Mulder was not present for the vote. The MOTION FAILED (4-6). A roll call vote was taken on the MOTION to adopt Amendment IN FAVOR: Martin, Moses, J. Davies, Grussendorf OPPOSED: Kohring, G. Davis, Foster, Kelly, Therriault, Hanley Representative Mulder was not present for the vote. The MOTION FAILED (4-6). Representative Martin MOVED to adopt Amendment #8. [Copy on file]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative Martin spoke to Amendment #8 which would allow the prosecuting attorney to have the opportunity to evaluate the consideration of "public safety" and at the same time guard the innocence and safety of the child. He believed that the amendment could provide a "balance" to the system. Co-Chair Therriault voiced concern to Line 5 of the amendment which indicates that the prosecuting attorney "may" seek an order of the Court authorizing the disclosure. He thought the language of the amendment would give the petition process more opportunities for retention of 5 confidentiality then it would during the adjustment process, which would "weaken" the legislation. MARGO KNUTH, ASSISTANT ATTORNEY GENERAL, GOVERNOR'S CHILDREN'S CONFERENCE, DEPARTMENT OF LAW, responded that the amendment would allow the prosecuting attorney to seek a disclosure if the disclosure had been moved to the point of adjudication. The amendment would provide an "escape" clause which would allow the attorney to decide public disclosure before the adjudication would be necessary because of a public safety issue. She continued, that could be filed by the attorney and by the attorney's discretion, and then the Court would make a finding that either it would be necessary for protecting the public safety or that there may be other compelling reasons besides public safety. Representative Kelly noted that he opposed Amendment #8. Representative J. Davies proposed an amendment to Amendment suggested that would remove one of the optional points in the process, although, would retain the ultimate option by using "if" on Line 7. The language would make it mandatory that the Court consider the issue. Ms. Knuth pointed out that during the informal adjustment side, the point of disclosure is reached when there is an informal adjustment on that charge. If a mistake had been made in the charge, there would be no disclosure on that side. Whereas, on the petition side, by having the disclosure the moment the petition is filed, there could be the chance that a mistake had been made and that there was a wrong charge. She reiterated that the point of the legislation is to stipulate that there is a public safety issue with some youth offenders. Co-Chair Therriault reminded members that the proposed intent was to address the more serious offenders. Ms. Knuth pointed out that on the petition side, the petition must be filed in order to hold the child in custody. You can not have an offender in detention without a petition being filed. There are circumstances when it would be appropriate to hold the youth. There are hundreds of petitions which do not go forward to the adjudication process. She explained that part of it was a management technique of how to handle some kids who are acting out. Representative Kelly pointed out that the bill stipulates that disclosure is at adjustment not "after" adjustment. Ms. Knuth responded that adjustment follows a certain amount of occurrences which have taken place. At the adjustment, there is disclosure. When a petition is filed, the child is 6 in detention and there has been an arrest, then the investigation would be catching up with it. There is a group for whom petitions have been filed, who have not had the investigation to determine if the charge was correct. Representative J. Davies pointed out that there are situations at that time, in which the minor has not admitted guilt. Representative Kelly emphasized that "disclosing" information means that both guilt and innocence can be disclosed, stressing that the outcome of the case will be publicized if there is innocence, also. The police and school will have access to that information. He warned that the argument of disclosure hinges on the threat to public safety. Co-Chair Hanley inquired that if the amendment was adopted, would the disclosure be eliminated when recommended by the prosecuting attorney. Ms. Knuth replied that Amendment #8 assumes that Amendment #7 would have passed. Without Amendment #7, Amendment #8 takes on a different form. Ms Knuth was not clear if that form would make sense without inclusion of the other amendment. Co-Chair Hanley thought that the amendment proposed that the Court make the decision if disclosure were to happen. Ms. Knuth advised that the amendment's intent was to move disclosure from the time of petition to the time of adjudication. If there was a public safety issue, then there would be the opportunity to disclose when that situation arose. Representative J. Davies emphasized that if a child was charged, it would make the front page of the paper, although, when found innocent, that information would be buried somewhere within the paper. Representative Grussendorf agreed that the headline of the charge would "over-ride" the acknowledgement of innocence. Representative Martin stressed the importance of protecting the innocent youth. Representative J. Davies withdrew the initial proposal to amend Amendment #8. He then MOVED to offer a new amendment to Amendment #8. Co-Chair Therriault pointed out that the current structure of the amendment was technically flawed. Representative J. Davies noted that his amendment would address that flaw. The amendment would change Line 5, deleting "may" and inserting "shall", and at Line 9, would add a new sentence after disclosure: "If the Court does not authorize disclosure, and the minor is ultimately an adjudicated delinquent, the disclosure shall occur at that time." 7 Representative Martin noted that he would accept that as a "friendly" amendment to Amendment #8. Co-Chair Hanley proposed that the adjudication process of the delinquent would need to address the serious crimes. Ms. Knuth advised that it would be appropriate to add a phrase: "Adjudicated as a delinquent based on minors commission of an offense that is a felony set out in (B) of this section". Representative J. Davies proposed to adopt the amendment as a conceptual amendment and have Legal Services draft the appropriate language. A roll call vote was taken on the MOTION to add the conceptual language to Amendment #8. IN FAVOR: Martin, Moses, J. Davies, G. Davis, Grussendorf, Hanley OPPOSED: Foster, Kelly, Kohring, Therriault Representative Mulder was not present for the vote. The MOTION PASSED (6-4). A roll call vote was taken on the MOTION to adopt the amended Amendment #8. IN FAVOR: Moses, J. Davies, Grussendorf, Martin OPPOSED: G. Davis, Foster, Kelly, Kohring, Therriault, Hanley Representative Mulder was not present for the vote. The MOTION FAILED (4-6). Representative J. Davies MOVED to adopt Amendment #9. [Copy on file]. Co-Chair Therriault OBJECTED for the purpose of discussion. Co-Chair Therriault asked Ms. Knuth about a concern in Amendment #4 regarding the use of "burglary". He asked at what point the offenders name would be released when a "rash" of burglaries occurred in a neighborhood and a minor was charged with one. Would all the charges then be brought forward at one time. Ms. Knuth replied that the language needs more thought. Current language would not require disclosure standings. She acknowledged that she understood the intent of the sponsor, and that the language did not get it "there". 8 Representative J. Davies spoke to Amendment #9 which would restrict disclosure to minors who are sixteen years of age at the time of the offense. He suggested that would reduce the number of disclosures. (Tape Change HFC 97-65, Side 1). Representative J. Davies reiterated that the amendment would address the possibility of indiscretion and reaffirmation of the youth and to protect from disclosure so that reaffirmation could be successful. A roll call vote was taken on the MOTION. IN FAVOR: J. Davies, Grussendorf, Martin, Moses OPPOSED: G. Davis, Foster, Kelly, Kohring, Hanley, Therriault Representative Mulder was not present for the vote. The MOTION FAILED (4-6). Representative Grussendorf MOVED to adopt Amendment #10. [Copy on file]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative Grussendorf explained that the amendment would remove the public disclosure on the portion of the process where the offender is in the informal adjustment period. If the probation officer decides not to adjudicate and brings it into the adjustment period, it would be obvious that the probation officer believed that there exists a social redeeming value left in the youth. The type of people in that category are usually those that have committed non-violent crimes. He reiterated, it has been found that most youths who go through the adjustment process, do not enter into the judicial system again. Representative Grussendorf concluded that to leave current language in the bill would cause the family great humiliation. Representative Kelly responded that those persons who commit a crime which is not a threat to public safety, would not have their names disclosed. He suggested that the youth who commit these crimes have often lost their sense of "shame". He spoke to shame as a family value. He adamantly disagreed that the average person was not capable of making compassionate choices and forgiveness for the person that had been shamed and had committed the crimes and made retribution from their mistakes. Removing the names from the adjustment process, would remove the amount of knowledge that the community has to protect themselves. He objected 9 to Amendment #10. Representative Grussendorf pointed out that "sometimes" the shame becomes a family thing that works against the accused young person, slowing the speed of the healing process. He urged that the bill would be stronger effect without the section proposed for elimination in Amendment #10. The Judicial Council has indicated support for elimination of that language. Co-Chair Therriault informed members that the adoption of Amendment #4 had added language to the section recommended for deletion. A roll call vote was taken on the MOTION to adopt Amendment IN FAVOR: J. Davies, Grussendorf, Martin, Moses OPPOSED: G. Davis, Foster, Kelly, Kohring, Therriault, Hanley Representative Mulder was not present for the vote. The MOTION FAILED (4-6). Representative J. Davies MOVED a change to Page 4, Line 26, deleting "five" and inserting "two" years. Following a momentary at-ease, Representative J. Davies WITHDREW the proposed change and offered to work with the sponsor, Representative Kelly regarding that concern. Co-Chair Therriault referenced a letter dated March 18, 1997, from the Diane Worley, Department of Health and Social Services, who addressed the loss of federal funds anticipated with the passage of HB 6 and HCR 4. [Copy on file]. The questions addressed include what percentage of minors in foster care who are eligible for IV-E funds are delinquents, how many delinquent youth in foster care would be impacted by HB 6, and whether the restructuring proposed by the Division of Family and Youth Services (DFYS) could be altered to separate delinquents affected by HB 6 to further minimize the loss of federal funds. Co-Chair Therriault advised that the fiscal notes which would accompany passage of HB 6 would be notes numbered 1-3 and 12-19. KATHY TIBBLES, SOCIAL SERVICE PROGRAM OFFICER, DIVISION OF FAMILY AND YOUTH SERVICES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, explained that the letter submitted by the Department was an attempt to provide a history and description of a complex program. She pointed out that the federal IV-E funds were based on children in out-of-home care under the responsibility of a IV-E agency. Adjusted 10 youth are not in out-of-home care and the Department would not be receiving any reimbursement on foster care funds because no funds would be expended on them. To separate the youth who might be in out-of-home care, subject to disclosure, from those youth who are in out-of-home care who are not subject to disclosure, there would not be very many children that are not subject to the disclosure, who the Department would be receiving reimbursement. The IV-E program is strictly related to the number of kids and the percentage of IV-E eligible kids who are in out-of-home care under the jurisdiction of IV-E agency. Representative Kelly MOVED to report CS HB 6 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. There being NO OBJECTIONS, it was so ordered. CS HB 6 (FIN) was reported out of Committee with a "do pass" recommendation and with eight fiscal notes by the Department of Health and Social Services dated 2/21/97 and zero fiscal notes by the Department of Administration dated 1/31/97, the Department of Law dated 1/31/97 and the Department of Public Safety dated 1/31/97.