HB 348 - VIDEO/AUDIOTAPE INTERVIEW OF ABUSED MINOR CHAIR JEANNETTE JAMES called the meeting to order at 1:05 p.m. and read her sponsor statement for HB 348: "The intent of this bill is to have a video camera or audio tape recorder turned on immediately at the start of the original, initial official interview with an allegedly abused or neglected child and to record the entire interview and all subsequent interviews with the child. "When dealing with emotion-laden situations, adults' perceptions and memories are not necessarily reliable; and children can be lead to make imaginary happenings sound like fact and to finally believe these fantasies themselves. The credibility of all parties can become suspect and an accurate objective judgment is then impossible. This bill would help dispel incorrect perceptions and allow fairness to all parties involved. "Last year's similar HB 350 met with strong resistance from DFYS and other state agencies. This year, an ombudsman's investigation found: - Arguments in favor of videotaping or at least audiotaping are as compelling as those against the practice.... - Administrative convenience does not justify lack of agency accountability in this sensitive area.... - Where video and audio recorders might have intimidated children in the 1960s, the same likely cannot be said in the 1990s, and finally.... - Social workers questioned by the ombudsman investigator either said that audiotaping would not be a problem and might be easier than note taking, or said that a videotape would be the best way to review a case. "HB 348 will help implement sound public policy by requiring accountability of agency action in the sensitive area of state interference in private family life." CHAIR JAMES gave instructions for the individuals testifying via teleconference and requested written as well as verbal testimony. DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Alaska Department of Law, testified via teleconference from Juneau in opposition to HB 348. He stated five major points. MR. GUANELI'S first point was that child abuse investigations are extremely sensitive, and taking children to a formal setting for taping would interfere by making children uncomfortable and reluctant to divulge information. MR. GUANELI'S second objection was that the bill was far too broad in that it covers all people who work for government entities. That means if a child tried to discuss suspected abuse with a teacher, a school nurse, or a public defender, the conversation could not take place "without a tape recorder being drug out." He added the bill could be unconstitutional; violating a person's Sixth Amendment right to counsel. MR. GUANELI'S third objection was the possibility that if an interview was not conducted properly, evidence would not be admissible in court. He noted the most crucial evidence is often the first report a child gives to someone, and this could be lost. MR. GUANELI'S fourth point dealt with the ombudsman's solution to the problem of not being able to tell what went on in the (Bethel case) interview, which was "somewhat repugnant" to him; that solution being, "We don't know what happened there so let's videotape everything, every interview." He continued, "Even though there were two social workers there, presumably both social workers reached the same conclusion, but that wasn't good enough for the ombudsman; they wanted everything taped. I think it is inappropriate to introduce Big Brother into all government agencies." MR. GUANELI'S final point was that the thrust of the ombudsman's summary was whether the interview (in the Bethel case) should have taken place at all, whether the information available actually justified the interview. He noted we should want these interviews to take place, in most cases, to protect the child. If the abuse had actually occurred and an interview had not taken place, the parents would probably have sued the state because an interview was not done. He noted the DFYS is "damned if they do and damned if they don't" conduct interviews. He concluded that HB 348 is not the correct solution. STEVE EMERSON, Intake Supervisor, Division of Family and Youth Services (DFYS), Department of Health and Social Services, testified in Fairbanks as a "private citizen," stating the current position of the DFYS on HB 348 is neutral, but he personally had two areas of concern; one was practical and one dealt with the effectiveness of videotaping. MR. EMERSON noted other states which use videotaping are not mandated to do so, rather they choose to do so in specific cases, and they have state-of-the-art rooms and equipment conducive to making the child comfortable. He said all research agrees that setting up cameras in full view of children is intimidating and sends the message to the child "we don't believe you to begin with." Each of the approximately 40 bush offices would have to be equipped, and remote sites can't be expected to have the proper equipment. MR. EMERSON added children usually disclose abuse over a long period of time; a videotape only represents a segment of time and could be misleading if viewed as the whole case. Also, videotaping would not fix the problem of bad interviewing, so why not take the millions of dollars this would cost and pour it into training social workers. He said videotaping could help protect the perpetrator of the abuse rather than the victim if it intimidates the child and inhibits disclosure. The risk of a technical error, something as simple as the batteries going dead, could cause dismissal of the charge. MR. EMERSON concluded the administrative responsibility of maintaining the integrity and confidentiality of the videotapes would be an enormous burden to the state. The proposed system has no true benefit. No legislator has come by the DFYS office to see how busy the social workers are; putting this extra burden on them would only serve to put more children at risk. THOMAS J. SYLSBERRY, SR., testified in Fairbanks, stating he had over 30 years experience as a youth corrections officer, although he was representing himself. He said he had observed social workers all his life and felt they were out of control; he had watched them destroy more families than they ever repaired. APRIL D. RODGERS testified in Fairbanks, saying the department has too much discretion. Her son was twice put in placements, out of her home, which were dangerous to him. One resulted in a drug overdose and the other in a felony charge against him. A superior court judge stated the court had no authority. Videotaping of interviews would be a small check and balance, and it could be done unobtrusively. Right now the department is allowed more discretion than parents have. SCOTT CALDER testified in Fairbanks, stating HB 348 is essential in order to improve life for everyone in the community, especially children, by reducing the threat that families of innocent people anywhere, any time, and for no reason, might lose their liberty. The government is attacking families. Without a means to detect an error, there is no science; without a test of a truth, no fact exists. He added the extra burden to social workers is not the issue; it is the burden upon the state and the public which concerns him. He cited a 1993 U.S. Supreme Court case which changed expert scientific testimony by eliminating the general agreement criteria as a necessary test. THOMAS J. SYLSBERRY, JR., testified in Fairbanks, referring to initial interviews with children in which the allegations a social worker puts on paper are not always what the children say. He discussed an interview he had observed in which the child was lead on by the social worker's repeatedly pointing to the child's genitals. He watched the child repeatedly shake her head, but the written record was what the social worker wanted to write, not what happened. Taping the interview would hold social workers to the truth. He added children are not intimidated by cameras. VERNINA BERGEIR, V.O.C.A.L. representative, testified from Washington, stating children's testimonies produce unreliable results simply because they are children. This is why some societies have prohibited children from giving testimonies in court. Children younger than six years old cannot tell the difference between events that go on inside their heads and those that go on outside their heads; this is why no society in the history of the world has ever begun a formal education until the children are age five or six. Most people do not want to know that the government is so corrupt and so incompetent as to let a thing like the McMartin case go on for five years when they knew the McMartins were innocent the first year. Videotaping is needed so children are not interrogated repeatedly for long periods of time. She knew of a case where a child was questioned for 12 hours. JEANNIE MARIE PHIPPS, Member, Board of Directors, Guardians of Family Rights, testified from Delta Junction, stating the DFYS needs to be held accountable. Parents should be notified before an interview is conducted. People should be able to face their accusers. Videotaping is one of the best ideas to accomplish this. The taping should be conducted by an unbiased party not associated with the DFYS, and the date and time should be on the tape as it is running so people can tell the tape has not been tampered with. GENE OTTENSTROER, Guardians of Family Rights/Victims of the State, testified from Delta, noting the bill needs some minor changes such as not waiting until after the interview to notify the parents. Parents should be notified before the interview. Files should be started on social workers who lie to parents and lie on the witness stand. An outside unbiased party should do the videotaping. We need some way to prosecute social workers who do wrong. Children should be kept in the hands of their parents; even though some parents don't deserve to keep their children, some foster homes are even worse. JODI DELANEY, Member, Concerned Parents for Reform, testified in Fairbanks noting there are thousands of families in Alaska who have been wronged. Alaska leads the nation in false allegations of child abuse. There are no checks and balances, and families are being destroyed. In her personal experience, the system destroyed her family when the social worker who did the interviews filed false allegations. There were no records to back it up. If it had been videotaped, the social worker would have been seen to be dysfunctional and Ms. Delaney's life and family would not have been destroyed. MS. DELANEY added HB 348 was brought together as a first step in changing the system, to assist and educate social workers in getting to the root of false allegations and to help people who have been wronged. The tapes could be transcribed so everyone would be working with the same hard copy; thus no individual opinions would devastate families, and checks and balances would be established. MS. DELANEY noted if HB 348 is passed, minimum interrogation would be required. As it is now, a child has to be interviewed 8 to 11 times before going into a courtroom, and each allegation involves a minimum of 80 hours of interrogation by "the division." She noted that no one supports child abuse, but "worst of all" is the abuse the agency is getting away with. The requirements of HB 348 would be a lot cheaper than litigation which would occur without the bill. She added it is a myth that teachers would have to run down and get a video camera; teachers are there to teach. They would notify the DFYS or a trooper to do the taping. If there is abuse happening in the school while they are waiting, that is another problem. TAPE 95-58, SIDE B PAT OBRIST testified in Fairbanks regarding her personal situation with her two children, ages 11 and 12, who were taken from her because of sexual abuse charges due to her giving her son an enema. The state of Alaska claims it cannot help her, since the children were put in the custody of their father in California, who is now abusing them. She said the custody investigator, not the DFYS, handled her case and accepted false allegations. She asked advise on where to go to get help for families like hers who are torn apart by false allegations. WALTER GAUTHIER, Member, Guardians of Family Rights, testified from Homer, stating he believed videotaping interviews with minors who have allegedly been abused is an absolute necessity. Previous testimony "shows clearly that testimony of social workers is often at absolute variance with the facts." Guardians of Family Rights in Kenai has tape recorded evidence of a DFYS social worker giving perjured testimony. He stated, "Since DFYS, the court system, and the state assistant attorney generals who prosecute these child abuse cases are all paid by the same people in Juneau, none of them are interested in enforcing the law between each other." He stated all people lie. An interviewer's message has a large effect on what a child will say. A six-year-old child held in a room for many hours will say anything just to be set free. The DFYS officers counsel parents that if they will admit to the abuse, the family can get back together. Once the DFYS has the testimony, the family never is put back together. Federal agencies pay the state of Alaska over $30,000 for every child put into foster care by the state; DFYS is hungry for case loads to maintain their jobs and their budgets. LYNNE HOFFMAN, testifying in Fairbanks, responded to the previous testimony by saying it is a huge misconception that the DFYS is hungry to maintain a case load. She pointed out it is not the DFYS or the social worker who suspects child abuse, but rather concerned citizens. The agency has been working toward a family centered approach with the goal of offering services to families while keeping children in their homes and avoiding unnecessary out-of-home placement. Contrary to what many people want to believe, social workers work very hard to keep children in their homes, often being criticized for doing so by the community. The perception that social workers are "bent on bagging abusers" is totally inaccurate. In contrast to those who believe the DFYS is overzealous, many believe the DFYS is not doing enough to protect children. Social workers would welcome the opportunity and capability of videotaping some interviews with children, to assist all parties involved, especially those cases involving young children who are difficult to interview due to their limited verbal skills, but requiring taping of all interviews would be intrusive and expensive. Funds could better be used to provide more social workers and additional training. She added that although social workers may make the initial decision to remove a child from its home, judges and other legal people are involved in the process within 48 hours. CHAIR JAMES reminded the listeners that, although all testimony has involved videotaping, HB 348 allows the use of an audiotape recorder if using a video camera is not practical. She added that amendments and revisions to the bill can be made to meet people's concerns. HARRY NIEHAUS testified in Fairbanks as a member of Guardians of Family Rights, stating he would like to see it spelled out exactly when video would be replaced with audio, and under what specific circumstances. If it were left vague, the DFYS would take advantage of it and misconstrue it. No one should have immunity from the law. People need to be kept accountable and HB 348 is a good first step toward this, but the time, date, and place need to be part of the record. Only under extreme and specified circumstances should audio be substituted. NAOMI HODSON, Member, Guardians of Family Rights, testified from Kenai/Soldotna, saying videotaping has been used there and it does include the date and time so every minute can be accounted for. She noted audiotaping can be started and stopped without detection. Taping is necessary to protect everyone concerned. SHERRIE GOLL, Member, Alaska Women's Lobby, testified from Haines, stating physical and sexual abuse of children is a very serious thing in our state and in our nation. The state has a duty to protect children from abuse. To imagine that DFYS social workers will somehow financially benefit from falsely accusing people of abusing their children is to completely misunderstand what child protection is about. She said some of the testimony she has heard is somewhat frightening in its near paranoia regarding government and law enforcement. She stated the focus needs to be on the protection of children, and at the same time people need to be protected from false allegations. The option of audiotaping in the bill needs to be discussed further, as well as the question of the necessity of pointing a camera at a child disclosing abuse. CHAIR JAMES asked if any committee members had comments. REPRESENTATIVE BRIAN PORTER commented from Anchorage, referring to the last couple of lines of the bill which read, "If videotaping of the initial interview or a subsequent interview is impractical, the interview shall be audiotaped." He stated he had presumed it meant if it was logistically impractical or if it appeared to interfere with the child's ability to communicate, videotaping would not be required. He asked if that would be the intent. CHAIR JAMES said she had intended to leave some discretion to the Department of Health and Social Services in cases where the equipment is not available or the child seems to be intimidated, though it is obvious some people would like them to have no discretion and to have everything finely defined which her basic philosophies sometimes indicate is smart. As HB 348 goes through the process, it will be better defined. She did not intend to prohibit asking questions of a child just because a camera is not available in an emergency situation. CHAIR JAMES related her firsthand experience with an associate in Washington whose four children were taken away due to a false report of sexual abuse based on a single conversation the father had had with his 12-year-old daughter regarding menstruation. This was a case of damage being done by overzealousness. Since these situations occur when every single allegation is required to be investigated, perhaps that is where we need to begin. CHAIR JAMES added the demands of the public to the education system and the social service departments over the last 30 or 40 years have taken away parents' authority in raising their own children. Instead of having a program where teachers and social service workers encourage children to discuss problems with their parents, parents are seen as the enemy. She stated people are clamoring to do something about teen-age crime and to make parents responsible for their children, but how can we make parents responsible when we have taken away their responsibility and their authority to raise their own children. HB 348 is a small step, but the system needs to be changed. The definition of "abuse" is a matter of personal opinion. She finds children are afraid of her now because they have been told adults can be bad. CHAIR JAMES referred to the case in Bethel which turned out to be an unfounded complaint, yet the whole family was disrupted and distressed and will never get over it completely. She stated her personal opinion that, though it is a hard thing to say, one case of abuse that has gone unnoticed is not as dangerous as one innocent family falsely accused and torn apart. MS. HODSON agreed with Chair James, adding that teen-agers who don't like being grounded or put on restriction by their parents, who don't get everything just their way, can "holler abuse" and be put into custody, given all new clothes and whatever they want without restrictions. Parents must be given back control of their children, and videotaping will help prevent kids from making false claims against their parents. CHAIR JAMES agreed and commented the cost and the inconvenience would be justified in such cases. MR. GAUTHIER asked if this hearing was being tape recorded. CHAIR JAMES said it was. MR. GAUTHIER asked if hearings such as this are recorded, what makes our children any less important? People lie; machines don't. REPRESENTATIVE CAREN ROBINSON commented from Juneau that she would like the committee to get more data, rather than just personal examples and ideas. She had some specific requests: 1. She would like information from the Departments of Law, Health and Social Services, and Public Safety, regarding exactly what is happening across the state. When she left the field in 1986, they were striving to set up sexual assault interview rooms across the state, and she would like to know what has taken place since then. 2. The Cowper Administration had a task force on child sexual abuse recommendations. She would like each committee member to get a copy of that, and she would like to know which recommendations have been followed. 3. In the 1980s, an agreement was set up between all the departments on how they would interact on child sexual abuse cases, and she would like each member to get copies of that interagency agreement. She would be really distressed to see Alaska go backwards to the days when we viewed child sexual abuse differently. We need to see how we can make the system work better. 4. She would like the committee to look at what is happening now with the foster care review board. Over half a million dollars had been allocated for these reviews and reports. 5. The child sexual assault center in Seattle could furnish information which would help in making final decisions. CHAIR JAMES thanked Representative Robinson for her suggestions and asked her to help acquire all this information for the committee. RONDI ALDRIDGE, Member, Concerned Parents for Reform, testified in Fairbanks, stating mandatory videotaping of all abuse and neglect allegations would be in the best interest of everyone concerned. It would eliminate any doubt about what was said by the child, the social worker, the parent, or the reporter, and make everyone accountable. It would also eliminate the trauma of repeated interrogation to the victim, and it would eliminate all opinions. It would eliminate false allegations made by children to use the system as a vehicle to get out of where they don't want to be or to get where they think they want to be. Retaliations aimed at harming innocent people would also be eliminated. Audio recordings could be tampered with or erased. Videotaping would have hard-copy transcript back-up. Alaska leads over 60 percent above any other state in child abuse. MS. ALDRIDGE discussed her own case in which her son made true allegations against a now-convicted pedophile. His repeated interrogations could have been avoided if the initial interview had been videotaped. DENNIS SNIDER testified in Fairbanks, stating his children were in temporary custody of the DFYS. Though he has taken all the courses and done everything the DFYS asked, and his kids want to be with him, the family is still not together. He doesn't know where to go to reunite his family. They are bogged down in the system and lost in the paperwork. If the DFYS's purpose is to reunite the family, they should do so. DOUGLAS O'BRIEN representing SKID 18 Press, testified in Fairbanks, stating he entered the system through an error in the court which granted him the wrong person's divorce and custody case. After several years of battling this, he completed two volumes analyzing what is going on with the system. The books are sanctioned by the Children's Rights Council, numerous father's rights groups and parental groups around and country, and point out that we have a broken system. We have people in two different areas, one being the advocacy arena which is an adversarial system, and the second being the social services arena where people are trained to look for deviance and wrong-doing. Because of this, they are not looking for any holistic reuniting or maintenance of families. The system is corrosive, it is damaging our families, and it is very expensive. If fundamental changes can be made, taking the system away from an adversarial and advocacy system and looking toward holistic maintenance of the family, we can have a good system. MR. O'BRIEN added the system is much worse than people think. Once you get in, you cannot get out. HB 348 can stop a lot of the coercive, illegal, unconstitutional gathering of documentation unfounded on any real evidence. Regulatory law violates the very foundation of this country, which is the family. TAPE 95-59, SIDE A JULIE HICKS, testified in Fairbanks as a member of Guardians of Family Rights, noting the purpose statement of the reporting laws includes limiting the number of interviews children are exposed to, and having the interviews videotaped will accomplish this. CHARLES MCKEE testified from Anchorage. He referenced a brief he is publishing and stated HB 348 does not deal with the problem that people are ignoring the Christian foundation of this country which establishes the true relationship of a family. CHAIR JAMES stated for the record, that written testimony from two testifiers in Delta will be made part of the record. MS. DELANEY testified again, stating a study has shown that professionals are out to save their professions, and she is out to save families. There is a fear of exposure within the agencies and we need a check and balance. The ombudsman's report shows that the interview notes from the case in Bethel were torn up and destroyed. Mandatory audiotaping is already in the existing manual and it is not followed. In the middle of the instructions for an interview it says "Now turn on the recorder" and this isn't done. MS. DELANEY continued it angers her that the agency doesn't think the families who have been testifying have done in-depth, independent research, because they have, starting at the Washington, D.C. level and working down. They know where the funding comes from, and they know social workers don't set out to destroy families. It is the system that is failing us; the system is out of balance. Law enforcement officers in this state are beginning to have video cameras on their uniforms. Why would the agency disagree with having that for interviews with children? Agency people tell her morale is broken, and the family bonds that are broken can no longer be repaired. She said her group works with very strong professionals and suggested law enforcement and social service agencies not underestimate the power of the people they are speaking to, because they will not stop and they will continue to demand the wrongs be made right, and the records be corrected. Professionals have called her, and professionals are now turning each other in. MS. DELANEY added she supports mandatory videotaping, but she does not support audio recording except in an emergency situation in a rural area, though she does not see why that is necessary when all villages are set up with video recording for their homicide departments. The Citizens Review Panel on Permanency Planning needs to become active as a check and balance for our foster care system. The Division of Family and Youth Services is where it all begins, and that is the place to start. She pointed out that many of the people in her groups have education levels which exceed those of the professionals who are out to save face. CYNTHIA HENRY, Member, Fairbanks North Star Borough School Board, asked Chair James to give the status of the bill. CHAIR JAMES thanked Ms. Henry for attending the meeting and for listening to the people of the district. She answered the question by saying the bill is in House State Affairs, and that it did not have to have that referral. She had requested a State Affairs referral so she would be in charge of the bill during the interim and could hold a hearing, although most of the scrutiny will occur when the bill goes to the Health and Social Services committee, then it goes to Judiciary and Finance. It then goes to the Senate, where it will also have committee referrals. It is a big assignment to get the bill through the whole process in one legislative session, and it will take a great deal of public input. RAYNA HAMM asked for clarification on a point brought up by the first testifier. She asked if Chair James intended the bill to cover school teachers and school nurses. CHAIR JAMES replied the bill as currently written does include anyone who would be interviewing a child regarding alleged abuse, in any capacity or location. The focus of the bill is that all interviews be taped in case suggestions are given to the children. If a young child is questioned and an idea implanted, years later the child can falsely remember the idea as something that really happened, as opposed to something visualized because of the interviewer's questions. There is a great deal of information available now regarding suggestive interviews.