HB 200-ADOPTION OF CHILD IN STATE CUSTODY  3:04:21 PM CHAIR SEATON announced that the first order of business would be HOUSE BILL NO. 200, "An Act establishing procedures related to a petition for adoption of a child in state custody; adding a definition of 'proxy for a formal petition'; amending Rule 6(a), Alaska Adoption Rules; and providing for an effective date." 3:05:53 PM REPRESENTATIVE VAZQUEZ moved to adopt the proposed committee substitute (CS) for HB 200, labeled 29-GH1262\W, Glover, 3/24/16, as the working draft. CHAIR SEATON objected for discussion. 3:06:17 PM CHRISTY LAWTON, Director, Central Office, Office of Children's Services, Department of Health and Social Services, said that proposed HB 200 offered "something for everybody and has a lot of positive attributes that will really improve services and access for child in need of aid (CINA) matters. She described the legal background for an adoption case, listing a Supreme Court case in Alaska, Native Village of Tununak v. State of Alaska, Department of Health and Social Services, Office of Children's Services, and H.S. and K.S., case number 334 P.3d 165, as well as the U.S. Supreme Court case, 133 S.Ct 2552, Adoptive Couple v. Baby Girl, in South Carolina. She explained that the U.S. Supreme Court case had been settled prior to settlement of the Alaska case, and it stated, in sum, that in order to be considered for adoption of the child, there must first be filed a formal petition to adopt the child. The Alaska Supreme Court had then taken its lead from the decision by the U.S. Supreme Court. She relayed that in the Alaska case, although the foster family had filed a formal petition to adopt, the grandmother had not filed, even though at that time it was not a requirement to be considered. She reported that the Alaska agencies, along with the governor's office, the Alaska Federation of Natives, and other tribal entities came together to seek a solution reconciling the U.S. Supreme Court decision and the federal law recognized since 1978 under the Indian Child Welfare Act (ICWA). She explained that this law specified placement preferences when children were going to be adopted or placed. She added that non-native children also had placement preferences that needed to be followed. Under ICWA, native child placement preferences were extended to tribal members of the child or the parent. She explained that, as the formal application for adoption could be a very bureaucratic process to formally recognize consideration, it was now suggested to instead use a proxy for adoption, in lieu of the formal petition. She said that the proxy could be submitted "orally, in writing, via fax, in a meeting, in a hearing, in a number of different ways where they basically just state their intent to be considered for the immediate and permanent placement of the child." She pointed out that this would not negate the eventual requirement to file a formal petition to adopt, as it was still necessary to provide this documentation to the court. The proxy would preserve and protect the intention for recognition by the ICWA preferences, and would subsequently initiate the policy of evaluation for appropriateness of placement. This report would then be filed with the courts for consideration by all the parties. She further explained that the adoption hearings would be conjoined with the CINA case. She stated that the proposed bill provided for a mechanism to streamline a number of different legal decisions that could impact a child in the state child welfare system. She pointed out that, currently, adoption, guardianship, and civil custody matters all happened in different courts, often with different judges and at different times, which often created redundancies and delays for the involved parties in the quest for permanency for the child. She stated that the proposed bill would provide a one judge, one child, one family model, such that all the hearings would be conjoined under a CINA hearing, thereby allowing the judge to be most informed and best equipped to provide a good judicial determination. She offered her belief that this would create significant efficiencies for all the involved parties, and would expedite children to permanency. 3:13:48 PM MS. LAWTON paraphrased the changes from Version A to Version W, Detailed Sectional Analysis, [included in members' packets], which read: Section 1: adds to the legislative intent "guardianship and civil custody matters" in addition to adoptions. Section 2: adds language to allow petitioners n adoption matters to have the matter finalized in the judicial district in which they reside if no party in child in need-of-aid case objects. Section 3: adds reference to AS 13.20.050(b). Section 4: adds language to allow petitioners in adoption matters to have the matter finalized in the judicial district in which they reside if no party in child in need-of-aid case objects. Section 5: changed "must" to "shall" and adds reference to AS 25.23.030(d). 3:15:18 PM MS. LAWTON moved on and stated that there were no changes to Section 6, and paraphrased the changes to Section 7 in the sectional analysis, which read: Section 7: This section now includes that in addition to guardianship and adoption cases needed to be heard within the child-in-need-of-aid matter, so too, shall civil custody matters where there is action which involves divorce or legal separation proceeds regarding a child in state's custody. 3:15:49 PM MS. LAWTON continued and advised there were no changes to Section 8, and paraphrased the changes to Section 9 in the sectional analysis, which read: Section 9: adds reference to three newly created sections AS 47.10.111/112/113. AS 47.10.111 provides further clarity about what happens when a petition is filed, how it will be held in abeyance until the permanent plan is reviewed by the court. It further establishes timeframes the department must meet. It further adds clarity about party status and who would be considered a party or not. AS 47.10.112 provides the clarity and language about the use of a "proxy" and describes how the "proxy" seeks to preserve the placement preferences outlined under the Indian Child Welfare Act for those children where the Act applies. It also further defines extended family member within the meaning of ICWA, and that a biological parent individually or through counsel may also request a "proxy" made to the department on behalf of an extended family member, member of the Indian child's Tribe, or other Indian family member. CHAIR SEATON requested clarification that Section 9 created the proxy system. MS. LAWTON replied yes. 3:17:18 PM MS. LAWTON continued paraphrasing the changes from Version A to Version W of the proposed bill, which read: Section 10: clarifies that the definition of "adult family member" is in statute, and adds the ICWA language for extended family member. Section 11: clarifies that the definition of "adult family member" is in statute, and adds the ICWA language for extended family member. 3:17:45 PM MS. LAWTON continued: Section 12: added new paragraphs to more clearly define "Indian child" and "Indian child's Tribe". Section 13: adds further detail to the definition of "family friend" that now includes members of Indian child's Tribe, a member of the Tribe in which the child's biological parent is a member or another Indian family member. Section 14: adds language indicating the petition to adoption can also be brought in the district where the petitioner resides. MS. LAWTON shared there were no changes to Section 15, and moved to Sections 16 and 17, which read: Section 16: further states that Alaska Adoption Rules now indicate that a proceed shall be heard as a part of the child-in-need of-aid matter or in the judicial district in which the petitioner resides if notice is provided to the parties and no one objects. Section 17: adds clarity that the court rules now include petitions for adoption or legal guardianship. Also, details about the findings the court must make about whether the petitioner is entitled to placement preferences under ICWA or state statute, whichever apply as well as the compliance of placement preferences in relation to a proxy or if there is good cause to deviate from those preferences. 3:19:21 PM MS. LAWTON then directed attention to Section 18, which read: Section 18: adds reference to new subsections related applicability. MS. LAWTON stated that there were no changes to Section 19, and continued to Sections 20 and 21, which read: Section 20: clarifies that regulations can be adopted upon the signing of the bill but all the other provisions are not effective until January 1, 2017 to give time for implementation. Section 21: clarifies that regulations can be adopted upon the signing of the bill but all the other provisions are not effective until January 1, 2017 to give time for implementation. 3:20:02 PM REPRESENTATIVE STUTES asked whether this proxy was related solely to the Indian children. MS. LAWTON replied that the use of a proxy was only applicable if the child was qualified under ICWA, and then family members, both native and non-native, could use the proxy for that process. REPRESENTATIVE STUTES said that her problem with the proposed bill was that, as there were many children in foster homes wishing to be adopted, this "excludes the Filipino community, this excludes the Caucasian community, this excludes any other minority." She advised this was problematic for her, to focus on "just the Indian or the Native Alaskan group." She shared a conversation with Representative Gara, in which he expressed the possibility of incorporating an amendment which would include children of all ethnicities. 3:21:46 PM MS. LAWTON reiterated that the provision for the proxy was specific to Alaska Native children under the Indian Child Welfare Act, which is specific to this group. She reported that all other children had placement preferences for adoption, as well as temporary placement that outlined a hierarchy for looking at family relatives and family friends prior to looking at strangers. She expressed concern for a proposed amendment because currently there is a zero fiscal note, and any changes would make it difficult to manage without additional resources. 3:23:10 PM KATIE LYBRAND, Assistant Attorney General, Child Protection Section, Civil Division (Juneau), Department of Law, in response to Representative Stutes, clarified that the other provisions of the proposed bill related to guardianship and adoption being heard as part of the child-in-need of aid proceedings applied to all children coming into state custody. She stated that there were placement preferences, outlined in state statute, for children not subject to the Indian Child Welfare Act (ICWA), and that the proposed bill did not change these preferences. She explained that the adoptive placement preferences under ICWA were triggered by a formal petition to adopt, as supported by the U.S. Supreme Court. She stated that the proposed bill only addressed this barrier, hence its focus on Indian children. REPRESENTATIVE STUTES relayed that she was clear that this "relates to some kids in foster home and not others." She stated that this troubled her as there were so many children in foster care and the state was proposing legislation that was not treating everyone equally. She questioned the cost to give this advantage to all children. 3:25:49 PM REPRESENTATIVE VAZQUEZ directed attention to the proposed committee substitute, Version W, page 1, line 9, and asked about the "additional flexibility" referenced. MS. LAWTON explained that this "additional flexibility" referred to the initial use of a proxy in lieu of the formal petition during the identification of interest for temporary and permanent placement. REPRESENTATIVE VAZQUEZ asked if the proxy was a less formal means of communication of the desire to adopt. MS. LAWTON said that this was the current mechanism which allowed individuals to identify themselves to the courts and the Office of Children's Services as interested in the immediate and permanent placement of children. REPRESENTATIVE VAZQUEZ asked if the proxy would comply with the U.S. Supreme Court decision. MS. LAWTON said that it would. REPRESENTATIVE VAZQUEZ asked for the copy of the U.S. Supreme Court decision. REPRESENTATIVE VAZQUEZ referenced page 2, line 1 - line 7, of Version W, and asked if a "tribal customary adoption" was within the inherent authority of the tribe. MS. LAWTON explained that there were currently three tribes in Alaska that had exclusive jurisdiction over child welfare matters, while the remaining 226 tribes had concurrent jurisdiction with the State of Alaska in these child welfare matters. This allowed for assertion of jurisdiction for movement of a case to tribal court at any time, with the state no longer involved. She noted that tribal customary adoptions could be kept in the state courts with the tribe and family working in conjunction with the state; however, as the final adoption was often implemented through the tribal customary adoption, there was a mechanism to carry out the adoption while allowing the family to continue receiving support from the state. She stated that this was more culturally appropriate. MS. LYBRAND, in response to Representative Vazquez, added that the main difference was for the entire adoption being performed by the tribe, whereas the other situation was to have the adoption take place in tribal court although the family would continue to receive support and have involvement from the state. REPRESENTATIVE VAZQUEZ asked which sections applied to both native and non-native children in custody. MS. LYBRAND directed attention to Version W and said that in Section 9 only the added AS 47.10.112 specifically applied to children subject to the Indian Children Welfare Act; all other parts of Section 9 applied to all children. She said that many of the sections, including Sections 2, 3, 4, 5, 6, 7, and 8 applied to both children subject to ICWA and those who were not. She noted that the specific amendment in Section 10 only applied to Indian children, as well as the amendments clarifying definitions for Indian children in Sections 11, 12, and 13. She relayed that Section 14, 15, 16, 17, 18, 19, and 20 applied to all children in state custody. REPRESENTATIVE FOSTER stated his support of the proposed bill, and although it was not all inclusive, there were many good things. He stated his support for any efforts to include non- natives, and emphasized that the ICWA provisions were very important to his Alaska Native constituents. 3:35:32 PM REPRESENTATIVE VAZQUEZ asked for clarification that, as the proxy makes it more accessible to individuals, why it was only applicable to Alaska Native children. MS. LAWTON explained that this was specific to Alaska Native children to ensure that the adoption placement preferences and provisions as outlined by ICWA were recognized and considered by the courts and the parties. REPRESENTATIVE VAZQUEZ said she that she still did not understand. MS. LYBRAND explained that the intent of the proxy procedure was to preserve the adoption placement preferences in ICWA which only applied to Indian children. She reiterated that there were existing placement preferences which applied to all children when they came into state custody. She stressed that the department was always striving to first place children with family, and those preferences already existed in statute. She relayed that this was seeking to address that specific issue for Indian children in light of the recent U.S. Supreme Court decision that a formal petition was necessary to trigger the adoptive placement preferences. The proposed bill would reduce that barrier by allowing for the proxy procedure. MS. LAWTON clarified that the court system was working on the petition form to adopt, in order to make it easier for all petitioners and remove the need for an attorney. She pointed out that in all the scenarios, it would be necessary for completion of the formal petition "at some point along the continuum." She reported that, for people interested in adopting children not covered under ICWA, there could be a formal petition to adopt or just a verbal request for adoption to initiate the consideration for evaluation of placement. She stated that for the ICWA adoption placement preferences to be adhered to, the proxy could be submitted in lieu of the petition. REPRESENTATIVE STUTES asked if the proxy would eliminate some of the time involved during the formal petition process. MS. LAWTON explained that, ultimately before an adoption could be finalized, an adoption petition would have to be filed. REPRESENTATIVE STUTES asked if, as the proxy eliminated some of the up-front time, why this was not applicable to all everyone. MS. LAWTON replied that this was a timing issue. REPRESENTATIVE STUTES asked why this option could not be tailored to offer to all children. CHAIR SEATON offered his understanding that, as the proxy allowed for the ICWA priorities to be in place, it was offered to tribal members. The proxy allowed for the preference of tribal members. He mused about a way to add another proxy for a new set of preferences other than those preferences used every time a child was brought into custody. He pointed out that there was not a tribal membership preference defined for other groups. MS. LAWTON expressed her agreement that this was a good representation. REPRESENTATIVE STUTES reiterated her interpretation for the proxy. MS. LAWTON, in response to Representative Stutes, said that there may have been some miscommunication. She explained that the proxy was a timing issue, it did not change the efficiency or speed for the case, but simply provided the court a formal means to give recognition to the federal law for placement provisions offered to Indian children which were different than all other children for the reasons outlined in the act [ICWA] when it was created in 1978. She noted that these reasons still existed. She stated that this preserved that decision for the record when discussion arose for permanent placement of the child. REPRESENTATIVE STUTES questioned whether the proxy had anything to do with timing. MS. LAWTON replied that she did not understand the question about timing. She reiterated that, in order for the court to recognize that there were placement preferences for children covered by the ICWA, it was not necessary to file a petition "to call that out." REPRESENTATIVE STUTES said that it did not make sense to her. 3:48:14 PM REPRESENTATIVE TARR asked to clarify that, as tribal governments had sovereignty, a relationship that the federal government did not have with other ethnic groups, this made the placement preferences unique. MS. LAWTON replied "yes." REPRESENTATIVE TARR asked if, as the standard practice was to first place a child with a family member, then all children were being treated in the same way in order to respect cultural and ethnic background. She relayed that the standard practice ensured that initial efforts were made to "match that up." MS. LAWTON replied that other federal laws map out the responses and standard practice of child welfare for any ethnicity. REPRESENTATIVE TARR pointed out that the tribal relationship did not exist with other cultural groups. MS. LAWTON expressed her agreement that this was a unique situation, as the significant difference with ICWA was not race based, but was based on a political status as Alaska Natives had an inherent right to govern and have jurisdiction over their families, a government to government relationship. She pointed out that no other ethnicity benefited from such a relationship. REPRESENTATIVE STUTES asked if she could file a proxy to stop the adoption process in order for the courts to recognize that she was a relative and that she wanted custody of the child. MS. LAWTON replied that, unless the child was covered under ICWA, she could not file a proxy, but that she could file a petition in court or contact the Office of Children's Services (OCS) and state her interest. At that point, OCS would notify the parties that there was an interested relative and would work with her to establish placement. REPRESENTATIVE STUTES interrupted Ms. Lawton and said, "So, the short answer is no." MS. LAWTON continued and stated that OCS would collaborate with her, regardless. REPRESENTATIVE STUTES reiterated, "So, the short answer is no." MS. LAWTON stated that the proxy would not apply if this was not an Indian child. REPRESENTATIVE STUTES said, "Yes, the answer is no." MS. LAWTON replied, "[The answer to] your original question, if that would apply to -- assuming you weren't talking about a child covered under the Indian Child Welfare Act, yes, is no." 3:53:11 PM CHAIR SEATON directed attention to the proposed committee substitute, Version W, page 1, line 9, and read: "an individual seeking immediate permanent placement of an Indian child in state custody with additional flexibility to preserve and apply the placement preferences outlined in the Indian Child Welfare Act with respect to that individual." He stated his understanding that an individual with one of these preferences, under federal law that was different than state preferences, including tribal membership, who wanted to seek immediate and permanent placement would use this to notify the court that they wanted to apply these placement preferences as outlined in ICWA. MS. LAWTON replied that the proposed bill would provide for the recognition of those preferences by the courts. CHAIR SEATON asked whether, before a court could act on these in a final adoption, it was necessary for the standard application to be filed. MS. LAWTON replied that the court would be overseeing the people wanting the child for adoption, assisting in determination of the best placement for the child, and providing its input, before an adoption was finalized. She relayed that it might not necessarily be the person who had filed the proxy. 3:55:26 PM REPRESENTATIVE TALERICO asked if a proxy could be filed on your own behalf. MS. LAWTON explained that the proxy could be filed on behalf of a family member or other tribal member through the tribe, or the parent could identify someone through the parent's council. REPRESENTATIVE TALERICO offered that, although the customary definition of proxy was to take action on behalf of someone else, someone was allowed to submit a proxy on their own behalf. MS. LAWTON expressed her agreement. CHAIR SEATON clarified that it would only be inclusive of those outlined on the preference established in ICWA, and would not include anyone outside this system. MS. LAWTON expressed her agreement and stated that the preferences for a relative to an Indian child often included relatives who were non-Native, and they would be included. 3:57:23 PM REPRESENTATIVE TARR reflected on why the tool of a proxy could not be used in other adoption cases. She listed the process for any adoption, which included the immediate search for family members for possible placement early in the process. She mused that, by final adoption, the proxy was not as important. She asked if this was a fair comparison, and if it was necessary for a proxy in these other cases. MS. LAWTON expressed agreement that the law mapped out specific timeframes, such that once a child came into custody, there had to have been an exhaustive relative search, then relatives were noticed for their right to be considered for placement. She pointed out that this was an on-going process. She said that, in all adoption proceedings, relatives denied for placement had an opportunity to have the decision reviewed. She offered her belief that the use of a proxy allowed for many family members to be notified and the placement preferences [under ICWA] to be considered. She pointed out that, although they may not dictate, the placement preferences had to be recognized and considered by the court in acknowledgement of the federal law. [HB 200 was held over.]