HB 10-CHILD IN NEED OF AID/PROTECTION; DUTIES  3:05:13 PM CHAIR SPOHNHOLZ announced that the first order of business would be HOUSE BILL NO. 10, "An Act relating to the duties of the Department of Health and Social Services; relating to child-in- need-of-aid proceedings; relating to child protection; and amending Rules 6(a), 6(b)(2) and (3), 10(c)(2) and (3), 10(e)(2), 10.1, 15(f)(2), 17(c), 17(d)(2), 17.1(b), 17.1(d)(3), 17.2(a), 17.2(e), 17.2(f), 17.3, 18(c), and 19.1(c), Alaska Child in Need of Aid Rules of Procedure, and repealing Rules 17.1(a), 17.1(c), and 17.1(d)(2), Alaska Child in Need of Aid Rules of Procedure." 3:05:27 PM REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, paraphrased from the Sponsor Statement [Included in members' packets], which read: Inequality should not be tolerated! Currently, the Office of Children Services (OCS) has two discriminatory standards for Alaska's children. Congress passed the Indian Child Welfare Act (ICWA) in 1978 as a response to then-prevalent culturally insensitive state government child welfare practices that negatively impacted "Indian children", their families, and their tribes. The ICWA aims to ensure that Indian children are removed from their parents only after carefully crafted efforts have been made to maintain the Indian family. In 1996, the Alaska Court System received a major federal grant to study and improve the state's handling of child protection cases, including child abuse, neglect, foster care, and adoption litigation. These cases are called child in need of aid cases, or CINA. The CINA guide describes how these cases are handled by the state, the roles played by various individuals, agencies, and courts. The child's ethnicity changes the level of the State's duty. When the child in custody is Indian, the State has an affirmative duty to make "active efforts" to reunify the family (ICWA). When the child is non- Indian, the State must make "reasonable efforts" (CINA). "Active efforts" is a more stringent standard than "reasonable efforts," which embody duties that touch on important rights of parents. HB 10 raises the standard so that all of Alaska's children are treated the same. REPRESENTATIVE WILSON stated that one standard would make it easier for the department, as all staff would be trained specifically for this standard. She pointed out that there was a difference between active and reasonable. Reasonable was determined as the parents need to follow the guidelines and find the services; whereas, active required the case worker to be more active in the program. Whether in an Alaska Native community or not, most parents found themselves scared and not knowing how the system worked. She declared that a steadier means to find the necessary resources to reunify the family, including counseling and drug rehabilitation, was the purpose. 3:08:54 PM REPRESENTATIVE WILSON paraphrased the Sectional Analysis, [included in members' packets], which read as follows: Section 1. AS 47.05.065 This section is amended to ensure that remedial and rehabilitative programs are offered to all families so they have the opportunity to remedy the parental conduct or condition in the home that placed the child at risk of damage or harm and that the more stringent requirement of "active" efforts (as opposed to "reasonable" efforts) are made. That the child is placed in a safe, secure, and stable environment that is in the least restrictive setting that most approximates a family home in which the child's needs may be met and that is within reasonable proximate to the child's home Sec. 2. AS 47.10.011 This section is amended to ensure that the more stringent standards are used by the court when determining, by a preponderance of the evidence, that a child is in need of aid. Sec. 3. AS 47.10.011 This section is amended by adding a new subsection so that the same standards used to make a determination of physical damage or harm are parallel to the more stringent standards of U.S.C. 1901-1963, as set forth in the Indian Child Welfare Act of 1978, (ICWA) regardless of whether the child is an Indian child. Sec. 4. AS 47.10.013(a) This section is amended to require that the court substantiate the more stringent standards of "serious" risk, as opposed to "substantial" risk. It also adds "emotional or physical damage," in addition to "harm" to parallel ICWA standards. Sec. 5. AS 47.10.015. This section is amended to ensure that the more stringent standards of ICWA are used by the court when determining, by a preponderance of the evidence, that a child was a victim of harm or neglect from the conduct by, or conditions created by a parent, guardian or custodian. Sec. 6. AS 47.10.030(c) This section is amended to require the court to make a finding that the conditions or surroundings that prevention of imminent physical damage or harm to the child requires the immediate assumption of custody by the court, the court may order, by endorsement upon the summons, that the officer serving the summons shall take the child into custody and make temporary placement of the child that the court directs. Sec. 7. AS 47.10.080(c) AS 47.10.80(1) requires the department to place the child in a setting as provided under AS 47.14.100 or 25 U.S.C. 1915(b) and requires active efforts to find a permanent placement for the child. Sec. 8. AS 47.10.080(f) This section is amended to require an additional finding by the court as to whether the child should be returned to the custody of the parent or guardian. Sec. 9. AS 47.10.080(l) It requires a more stringent standard that when the department is establishing the permanent plan for the child, the court shall make appropriate written findings, including findings related to whether "returning the child to the child's parent or guardian is likely to result in serious emotional or physical damage to the child". Sec. 10. AS 47.10.080(p) This section is amended to require the more stringent standards of ICWA in that active efforts must provide opportunities for and to facilitate reasonable visitation if the child is removed from the parental home. Sec. 11. AS 47.10.080 NEW SUB SECTION AS 47.10.080 is amended by adding a new subsection which would require that an order issued under this section not allow removal of a child from the child's home or continued placement of the child outside the child's home unless there is, at the time the order is issued, clear and convincing evidence, including the testimony of a qualified expert witness who is not employed by the department, that the child is likely to suffer serious emotional or physical damage if left with or returned to the child's parent or guardian. Sec. 12. AS 47.10.081(b) This section has been revised to require the determination of whether continued custody of the child by the child's parent or guardian is likely to result in serious emotional or physical damage and be included in the disposition report. Sec. 13. AS 47.10.086(a) This section has been repealed and reenacted to identify family support services; and that remedial services and rehabilitative programs may include services and programs provided by the community, or other organizations. It also requires "active" measures in referring and obtaining support services for a parent or guardian. The department's duty to make active efforts under this subsection includes the duty to assist the child's parent or guardian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. The department shall tailor its active efforts to the facts and circumstances of the case and list the efforts. Sec. 14. AS 47.10.086(b) This section is amended to parallel the more stringent standards as in ICWA. Sec. 15. AS 47.10.086(d) This section is amended to parallel the more stringent standards as in ICWA. Sec. 16. AS 47.10.086(e) This section is amended to parallel the more stringent standards as in ICWA. Sec. 17. AS 47.10.086(f) This section is amended to parallel the more stringent standards as in ICWA. Sec. 18. AS 47.10.088(a) This section is amended to parallel the more stringent standards as in ICWA. It requires that evidence beyond a reasonable doubt, including the testimony of a qualified expert witness, who is not employed by the department, that continued custody of the child by the parent or guardian is likely to result in serious physical or emotional damage to the child. Sec. 19. AS 47.10.088(b) This section is amended for house-keeping purposes and to parallel the more stringent standards as in ICWA. Sec. 20. AS 47.10.088(d) The section is amended to read that the department shall petition for termination of a parent's rights to a child, without making further active efforts, when a child is under the jurisdiction of the court under AS 47.10.010 and 47.10.011 and the court has made a finding under AS 47.10.086(b) that the best interests of the child do not require further active efforts by the department unless the department had documented a compelling reason for determining that the petition would not be in the best interest of the child. A compelling reason under this subsection may include care by a relative for the child. Sec. 21. AS 47.10.088(g) This section is amended so that the department must parallel the ICWA standards. In filing a petition to terminate parental rights, the department must determine that continued custody of the child by the child's parents or guardian would likely result in serious emotional or physical damage. Sec. 22. AS 47.10.142(a) This section is amended to parallel the more stringent standards as in ICWA. Sec. 23. AS 47.10.142(b) This section is amended to allow for the department to take emergency custody of a minor from the minor's parent or guardian only if it is necessary to prevent the imminent physical damage or harm to the child. Sec. 24. AS 47.10.142(d) This section is amended to parallel the more stringent standards as in ICWA. The court must determine that allowing the department's continuing temporary legal custody of the child is based on the necessity to prevent imminent physical damage or harm to the child. 3:18:51 PM Sec. 25. AS 47.10.142(e) This section is amended to direct the court to also determine at the temporary custody hearing whether (1) by a preponderance of the evidence, removal of the child is necessary to prevent imminent physical damage or harm to the child, or (2) by clear and convincing evidence, including the testimony of a qualified expert witness who is not employed by the department, the child would likely suffer serious physical or emotional damage if left in the child's home. If the Court finds that probable cause exists for believing that the child is a child in need of aid and that a sufficient showing has been made under either (1) or (2) of this subsection, it shall order the child committed to the department for temporary placement outside the home of the child's parent or guardian. If the court finds that probably cause does not exist for believing the child is a child in need of aid, but that a sufficient showing has not been made under (1) or (2) of their subsection the court shall order the child to be either committed to the custody of the department with temporary placement to be in the child's home or returned to the custody of the child's parent or guardian. Sec. 26. AS 47.10.142(f) This section is amended for house-keeping purposes to parallel the more stringent standards as in ICWA. The provision, except as provided in (i) of this section, limits the temporary placement under this section to 30 days. Sec. 27. AS 47.10.142(h) This section is amended to change the timeline for court review of the placement plan and actual placement of the child under AS 47.10.080 (I) to occur within 30 days, as opposed to 12 months, after a child is committed to the department. Sec. 28. AS 47.10.142 This section is amended by adding a new paragraph to read: The court may only order a child committed to for temporary placement under (e) and (f) of this section for more than 30 days if the court determines by clear and convincing evidence, including the testimony of a qualified expert witness who is not employed by the department, that custody of the child by the child's parent or guardian is likely to result in imminent physical damage or harm to the child or that extraordinary circumstances exist. Sec. 29. AS 47.10.990 This section is amended by adding a new paragraphs [sic] to define "active effort," "emotional damage," and "remedial services and rehabilitative programs". Sec. 30. AS 47.14.100(r) is amended to read: This section is amended to parallel the more stringent efforts as in ICWA. Sec. 31. AS 47.17.290(3) This section is amended to parallel the more stringent definition of "child abuse or neglect". Sec. 32. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 6(a), Alaska Child in Need of Aid Rules of Procedure; amends the "Emergency Custody Without Court Order" standards to parallel the ICWA standards. Sec. 33. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 6(b)(2), Alaska Child in Need of Aid Rules of Procedure; amends the "Form, Contents of Motion" standards for removal of a child to parallel the ICWA standards. Sec. 34. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 6(b)(2), Alaska Child in Need of Aid Rules of Procedure, is amended to read: (3) Order; amends the standards for emergency orders of removal of a child to parallel ICWA standards. Sec. 35. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 10(c)(2), Alaska Child in Need of Aid Rules of Procedure; amends the standards for removal of a child to parallel the ICWA standards. Sec. 36. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 10(c)(3), Alaska Child in Need of Aid Rules of Procedure; amends the standards for removal of a child to parallel the ICWA standards. Sec. 37. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 10(e)(2), Alaska Child in Need of Aid Rules of Procedure; amends that standards for the return of the child to the child's home to parallel ICWA standards. Sec. 38. The uncodified law of the State of Alaska is  amended by adding a new section to read: DIRECT COURT RULE AMENDMENT. Rule 10.1(a)(1), Alaska Child in Need of Aid Rules of Procedure; amends Findings to parallel ICWA standards. Sec. 39. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 15(f)(2), Alaska Child in Need of Aid Rules of Procedure; amends the inquiry and findings required by CINA Rule 10.1 to parallel ICWA standards. Sec. 40. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 17(c), Alaska Child in Need of Aid Rules of Procedure; amends the Requirements for Disposition to parallel ICWA standards. Sec. 41. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 17(d)(2), Alaska Child in Need of Aid Rules of Procedure; amends the standards the court uses to approve the removal of the child from the child's home to parallel ICWA standards. Sec. 42. The uncodified law of the State of Alaska is  amended by adding a new section to read: DIRECT COURT RULE AMENDMENT. Rule 17.1(b), Alaska Child in Need of Aid Rules of Procedure, amends the standard used by the court in determining if a continuation of active efforts is not in the best interest of the child by paralleling them to the ICWA standard. Sec. 43. The uncodified law of the State of Alaska is  amended by adding a new section to read: DIRECT COURT RULE AMENDMENT. Rule 17.1(d)(3), Alaska Child in Need of Aid Rules of Procedure; amends the standard to determine the Child's Best Interests to parallel the ICWA standard. Sec. 44. The uncodified law of the State of Alaska is  amended by adding a new section to read: DIRECT COURT RULE AMENDMENT. Rule 17.2(a), Alaska Child in Need of Aid Rules of Procedure; amends the standards for Purpose and Timing of the Hearing for a child in need of aid to parallel ICWA standards. 3:28:01 PM Sec. 45. The uncodified law of the State of Alaska is  amended by adding a new section to read: DIRECT COURT RULE AMENDMENT. Rule 17.2(e), Alaska Child in Need of Ai d Rules of Procedure; amends the standards used by the court for making written findings to parallel ICWA standards. Sec. 46. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 17.2(f), Alaska Child in Need of Aid Rules of Procedure; amends the standards used to apply additional findings to parallel ICWA standards. Sec. 47. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 17(3), Alaska Child in Need of Aid Rules of Procedure; amends the standard applied to petition or proxy for adoption or legal guardianship of a child under AS 47.10.111 Sec. 48. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 18(c), Alaska Child in Need of Aid Rules of Procedure; amends the standard applied to Burden of Proof to parallel ICWA standards. Sec. 49. The uncodified law of the State of Alaska is  amended by adding a new section: DIRECT COURT RULE AMENDMENT. Rule 19.1(c), Alaska Child in Need of Aid Rules of Procedure; amends the standard applied for Disposition Order, pursuant to AS 47.10.100(a) to parallel ICWA standards. Sec. 50. The uncodified law of the State of Alaska is  amended by adding a new section: REPEAL OF COURT RULES. Rule 17.1(a), 17.1(c), and 17.1(d)(2), Alaska Child in Need of Aid Rules of Procedure, are repealed. Sec. 51. AS 47.10.086(c), 47.10.086(g), 47.10.088(e), 47.10.990(11), 47.10.990(21), 47.10.990(27) and 47.10.990(30) are repealed. Sec. 52. The uncodified law of the State of Alaska is  amended by adding a new section: TWO-THIRDS VOTE NOT REQUIRED. Because the provisions of Rules 6(a), 6(b)(2) and (3), 10(c)(2) and (3), 10(e)(2), 10.1, 15(f)(2), 17(c), 17(d)(2), 17.1(a), 17.1(b), 17.1(c), 17.1(d)(2) and (3), 17.2(a), 17.3 and 18(c), Alaska Child in Need of Aid Rules of Procedure, that are affected by the provisions of this Act were adopted under the Alaska Supreme Court's interpretive authority exercised under art. IV, sec. 1, Constitution of the State of Alaska, secs. 32 - 45, 48, and 50 of this Act take effect even if secs. 32 - 45, 47, 48, and 50 of this Act do not receive the two thirds majority vote normally applicable to changing court rules under art. IV, sec. 15, Constitution of the State of Alaska. Sec. 53. The uncodified law of the State of Alaska is  amended by adding a new section: APPLICABILITY. This Act applies to child-in-need-of-aid petitions filed or pending on or after the effective date of this Act. Sec. 54. The uncodified law of the State of Alaska is  amended by adding a new section: CONDITIONAL EFFECT. AS 47.10.080(l), as amended by sec. 9 of this Act, AS 47.10.081(b), as amended by sec. 12 of this Act, and AS 47.10.142(d), as amended by sec. 24 of this Act take effect only if secs. 9, 12, and 24 of this Act receive the two thirds majority vote of each house required by art. IV, sec. 15, Constitution of the State of Alaska. 3:37:24 PM REPRESENTATIVE JOHNSTON directed attention to the qualified external witness mentioned in Sections 11, 25, and 28, and asked how Representative Wilson visualized this working. REPRESENTATIVE WILSON replied that this was currently done in ICWA (Indian Child Welfare Act of 1978) cases, and it depended on the issues with the parents. She explained that, currently in non-ICWA cases, the expert witness could be the case worker, which would change in the proposed legislation. REPRESENTATIVE JOHNSTON asked if there was a state or federal contract with the expert witness. REPRESENTATIVE WILSON explained that currently this was determined by the attorneys. She stated that the fiscal note reflected the state expense for an expert witness. She said that parents could fight an OCS determination, hence the need for the expert witness. She said this need for a witness could also be necessary for terminations, as most cases not under ICWA utilized the case worker. 3:39:51 PM REPRESENTATIVE KITO referenced the aforementioned loss of federal funding mentioned in the fiscal notes [Included in members' packets], and asked about the reason for this loss of federal funding. REPRESENTATIVE WILSON explained that some grammatical changes in one phrase were necessary, as there needed to be a connection for child placement, but not necessarily for the child. She declared that she had no intention to eliminate federal funding. She shared that she was working with the Department of Health and Social Services to accomplish her goals without losing federal funding. She noted that the phrase indicated for change was "contrary to the welfare." 3:41:54 PM CHRISTY LAWTON, Director, Central Office, Office of Children's Services (OCS), Department of Health and Social Services, relayed that the statement was "contrary to the welfare for the child to stay in their own home," and that a judge had to make that finding at the very first order which indicated that OCS had the authority to have custody as there were reasons for OCS to have custody. It had to be associated to removal of the child from the home. She noted that if that first finding was lost, any eligible further funding throughout the life of the case would be lost. She relayed that OCS had spoken with Representative Wilson for ways to change the language in the proposed bill, as it was necessary to indicate that the court had ruled it was unsafe for the child to be in their own home. She added that revenue could be lost if the language from ICWA was imported into the proposed bill, as the standards for removal of a child and to keep them in a foster home would necessitate a judge acknowledging that OCS had made active efforts to prevent removal, and active efforts to promote reunification. She stated that this was a very difficult standard to meet, and, if the standard could not be met, and with the elimination of the reasonable efforts option, the state would have to support the cost of care from the general fund when the threshold for active efforts had not been met. 3:43:35 PM REPRESENTATIVE KITO referenced the standards necessary for the termination of parental rights, and asked if there was the ability within OCS to perform an investigation to meet these standards identified in the proposed legislation. MS. LAWTON opined that the language in the proposed bill would not change what they do when it was necessary to terminate parental rights. 3:44:08 PM REPRESENTATIVE SULLIVAN-LEONARD declared that the proposed bill was "an incredible piece of legislation." She expressed that every child should be treated the same, and that it was concerning that the system did not treat everyone the same. She asked what the catalyst was to make these changes. REPRESENTATIVE WILSON replied that two standards made it more difficult for the entire system, including the staff, the attorneys, and the courts. She declared that, as the standards outside ICWA were much lower for removing children, most judges had to rule in favor of removal. She said that a change to the necessity of proof over hearsay would still allow OCS for voluntary counseling without taking legal custody. 3:46:34 PM REPRESENTATIVE KITO commented that, throughout the proposed bill, there had been a change from mental injury, defined on page 21 as including more than emotional trauma, to emotional damage. He asked if this change would continue to cover as much as was previously covered by mental injury. REPRESENTATIVE WILSON opined that, although it would not cover everything previously covered, the goal was to mirror for consistency. She explained that throughout the proposed bill, the child had to be in harm's way, in order to be removed. 3:47:49 PM CHAIR SPOHNHOLZ asked if there were any operational changes with this change in language. MS. LAWTON explained that emotional damage was not defined under ICWA, although it was specifically and narrowly defined in current statute. She noted that it was necessary for an observable impairment, and that a qualified expert, usually a mental health expert, needed to testify to that impairment. She pointed out that OCS did not often file for custody under this subsection as the threshold was quite high. She shared that, instead, if it was believed there was emotional harm related to domestic violence, OCS would file under neglect. She opined that the proposed bill would potentially broaden the ability by the department, as it would not be as narrow as it was currently. 3:49:00 PM REPRESENTATIVE TARR offered her belief that, although part of the bill was to align with ICWA standards, she had questions regarding other changes. She directed attention to page 20, line 22, and asked about the difficulty for meeting this standard. Citing her personal experiences, she declared that this would be difficult to substantiate, and asked if children could be left in harmful situations if this standard could not be met. REPRESENTATIVE WILSON replied that this mirrored what was currently required by ICWA, and she offered her belief that it had not been a problem. 3:50:58 PM MS. LAWTON, in response to Representative Tarr, opined that, currently under ICWA, OCS only needed the witness if the parent did not agree and was contesting the judicial determination. She said that a witness who was not a case worker could be the supervisor or the regional ICWA specialist. She reported that currently it was very difficult to find expert witnesses for ICWA cases, specifically, cultural experts. She stated that a bigger challenge was the limitations placed on the court to potentially order the child into state custody. She added that it could be time consuming and costly to find expert witnesses and bring them to the court. She opined that it could leave a gap, though she was not able to quantify how often this would occur. 3:52:29 PM REPRESENTATIVE TARR acknowledged that "these situations can be so sticky" and that it was the desire to give the parents every opportunity. She relayed that some of the individuals, however, were master manipulators. She expressed her concern that having a high standard for imminent danger allowed for manipulation to create difficulty in meeting that standard, while in the meantime, the children would remain in an unsafe situation. REPRESENTATIVE WILSON countered that the damage for removing a child could be huge, and that nobody wanted a child to be injured. She relayed that numerous studies showed that moving a child could do more damage. She asked, "where is that threshold?" She pointed to the proposed bill, and asked to what level were they willing to go to make sure that children were removed when in harm's way. She suggested that it was better to add the voluntary actions before removing children. 3:55:22 PM REPRESENTATIVE KITO asked if there were any other impacts as far as transition of cases between the Indian Child Welfare system and the state system when making those programs similar. MS. LAWTON replied that the proposed bill would not have any impact on the OCS ability for transfer of jurisdiction from state court to tribal court. CHAIR SPOHNHOLZ spoke about the "natural sticky tension that exists in our child welfare system," and the daily challenges faced by OCS for finding the "sweet spot that protects as many children as possible while maintaining as many families as possible." She noted that it was recognized that removal of a child from their family was an adverse childhood experience, but that leaving them where they were while continuing to experience harm was also an adverse childhood experience. She offered her belief that it was necessary, as feelings could be very intense and run very high, to take the time to step back, let the intensity dissipate, and approach the issue with calm, cool, collected wisdom. She acknowledged that the sponsor had good intention and wanted to do the best for the children of Alaska. She commended the work done by the staff at OCS, sharing that this work did not receive the respect that it deserved, and comparing it to the work performed by firefighters and police officers for everyday intensity. CHAIR SPOHNHOLZ announced that HB 10 would be held over.