SENATE CS FOR CS FOR HOUSE BILL NO. 408(JUD) "An Act relating to the standard of proof required to terminate parental rights in child- in-need-of-aid proceedings; relating to a healing arts practitioner's duty to report a child adversely affected by or withdrawing from exposure to a controlled substance or alcohol; relating to disclosure of confidential or privileged information about certain children by the Departments of Health and Social Services and Administration; relating to permanent fund dividends paid to foster children and adopted children; relating to child abuse or neglect investigations and training; amending Rule 18, Alaska Child in Need of Aid Rules of Procedure; and providing for an effective date." This was the first hearing for this bill in the Senate Finance Committee. AT EASE 12:00:23 PM / 12:01:30 PM RYNNIEVA MOSS, Staff to Representative John Coghill, expressed support for the language proposals of the Department of Health and Social Services. The original bill, as introduced on behalf of Governor Murkowski, has been revised. She read the sectional analysis, titled "Family Rights Act of 2006, SCS CS HB 408(JUD), Sectional for Senate Judiciary CS", into the record as follows. Section 1. This section contains language that would release OCS [Office of Children's Services] from providing family support services when they can show the court, by clear and convincing evidence, that the parent or guardian poses substantial risk to a child, has committed a homicide of a child, or parent has taken such actions as described in Section 1. This raises the level of proof from "a preponderance of the evidence". (Requested by Department of Law) Section 2. This section raises the standard for the department showing they have complied with reasonable efforts to provide family support services from a "preponderance of evidence" to "clear and convincing evidence". (Requested by OCS language; Rep. Coghill legislation-HB 261, 2001) Ms. Moss stated that evidence indicates that the existing standards would not assist certain families. Section 3. This section is language clean up to accommodate Section 2 amendments. (Department of Law) Section 4. When a public official or an employee requests information from the department, they will now have five working days to respond. (HB 327 - Rep. Chenault) Ms. Moss explained this language would resolve a dispute between the legislature and the Department of Law in that it would allow OCS to release information regarding harm inflicted on a child were the parent to make "public disclosure of the perpetrator being charged with the crime or there has been a fatality or near fatality of a child". She recalled an instance in which the Department of Law prohibited release of such information. Section 5. Clarifies the intent of HB 53 that once a report of harm has resulted in a parent making public disclosure, the alleged perpetrator being charged with a crime, or has resulted in fatality or near fatality of a child, OCS is able to disclose the nature and validity of any report of harm about a child in a report of harm. (Representative Coghill) 12:05:23 PM Section 6. Broadens the department's ability to discuss a report of harm pertaining to not only children in the family or household, but also children who may be under the care of a perpetrator in a report of harm. (Representative Coghill) Section 7. Last summer two teenagers were placed in a foster home and the foster parents were appointed as legal guardians. The State released the teens' permanent fund dividends to the legal guardians. The placement did not work and the children were removed from the home without their dividends. Section 6 says the only way a child's past dividend can be released is if the child is adopted and has remained adopted for one year, the child turns eighteen and the PFD's are released by OCS, the child is returned to the parent(s), or the department is ordered to do so by the court. The one-year provision is put in place because there is a high rate of adoptions being disturbed. Subsection (c) clarifies this applies to legal guardians of children who have been in state custody, unless the guardianship was established for an incapacitated person. (Representative Coghill) Section 8. This section requires practitioners of the healing arts involved in the delivery or care of a child who determines the child is adversely affected by a controlled substance or alcohol to notify OCS. It clarifies that a "controlled substance" does not include prescription medication, but rather "a drug, substance, or immediate precursor included in the schedules set in AS 11.71.140 - 11.71.190". Ms. Moss noted an amendment was drafted to replace "child" with "infant" in the language of Section 8. Section 9. This provision consolidates HB 346 sponsored by Representative Mark Neuman into HB 408. The provision requires social worker training to include constitutional and statutory rights of children and families, requires cooperation by OCS with law enforcement to ensure the possibility of criminal charges is not compromised in the investigation, and that the alleged perpetrator be advised of what the specific complaint or allegation is without disclosing the identity of the accuser. Section 10. Indirect Court Rule change dealing with changing "preponderance of evidence" in Sections 1, 2, & 3 to "clear and convincing evidence". (Department of Law) Section 11. Applicability language to clarify that pending cases and non-pending cases still within the statute of limitation will have "clear and convincing evidence" standard applied to them. (Department of Law) Section 12. Because Sections 1, 2, & 3 will result in an Indirect Court Rule Amendment, those section[s] of the bill will only take place if the vote on Section 9 receives a two-thirds vote of each house of the legislature. (Department of Law) Section 13. Immediate effective date clause. 12:09:39 PM Senator Stedman referenced Sec. 47.10.115. Permanent fund dividend., added by Section 7 on page 5 of the bill. He understood the Permanent Fund dividend (PFD) was the property of the child, and asked whether the child would have some legal recourse when he or she turned 18. Ms. Moss responded that the issue had not yet been determined, but was under investigation by the Attorney General's office in Fairbanks. 12:10:38 PM Senator Stedman realized that parents often use a child's PFD to house, clothe, and fed the child. He considered it a different situation when a parent used a child's PFD for unneeded items. Co-Chair Green asked if Senator Stedman was referring to the case of an adopted or foster child. Senator Stedman affirmed, and clarified he was speaking of a case where a child had been in foster care for a period of time that allowed the foster care provider access to the child's PFDs. Co-Chair Green inquired if a natural parent would be held to the same standard. Senator Stedman affirmed. Co-Chair Green stated that natural parents are not currently held to that standard. Senator Stedman opined that all legal guardians should be able to use a child's PFD only to meet basic needs, and expected a court opinion on that issue. He supported the language in the bill. Co-Chair Green voiced intent to conclude testimony on the bill and address amendments at a later date. Ms. Moss clarified that there were no amendments forthcoming. 12:13:13 PM BEVERLY SMITH, Christian Science Committee on Publication for Alaska, referred to a memorandum from the organization dated April 22, 2006 [copy on file], and requested that consideration be given to the addition of language to Section 8. This proposed amendment would insert a new subsection to AS 47.17.024. Duties of practitioners of the healing arts., amended by Section 8 on page 6, following line 15 to read as follows. (c) Nothing in this chapter shall compel a religious healing practitioner to disclose information learned through sacred communications with a person seeking his or her spiritual help and enjoined to be kept confidential under the discipline of his or her church or religious organization. Ms. Smith stated that this language would allow Christian Science practitioners to maintain their religious customs. Certain communications between parishioners should be kept confidential. This provision would also assure that a practitioner would report crimes committed against a child. She additionally supported the proposed language change of "child" to "infant". 12:17:19 PM Senator Bunde asked if the proposed amendment would prevent a Christian Science practitioner from reporting knowledge of a child who appeared to be affected by prenatal drug use. Ms. Smith responded that practitioners are primarily concerned with the best interest of the child. They would have to use their judgment. Church doctrine would not prevent them from reporting a child in danger. Co-Chair Green understood that the language in bill would address that situation. Ms. Smith concurred. The change to "infant" from "child" might provide more clear direction in that instance, as a child could be "affected" by a parent's alcoholism, but in a different manner than an infant with fetal alcohol symptoms. 12:18:55 PM Senator Bunde furthered that the current language proposal stated that the practitioner "cannot be compelled" to disclose information, but language elsewhere in the bill stipulates a doctor "shall report" evidence of drug use. This appeared to leave practitioners with more discretion than doctors when reporting medical observations. 12:19:25 PM Co-Chair Green read the current language as follows: "a practitioner of the healing arts involved in the delivery or care of a child who the practitioner determines has been adversely affected by, or is withdrawing from exposure to, a controlled substance or alcohol shall immediately notify the nearest office of the department of the child's condition". She interpreted the requested amendment as applying to knowledge gained through a conversation with a family. She likened the confidentiality afforded by the proposed amendment to a psychiatrist's doctor-client privilege. 12:20:31 PM Senator Dyson asked for a definition of "sacred communication" as it appears within the suggested amendment. Ms. Smith explained that because a Christian Science practitioner is not technically a member of the clergy, but acts in that capacity, "sacred communication" would apply to conversations between practitioners and parishioners, as well as clergy. Senator Dyson surmised the definition was similar to confidential. He commented that mandatory reporting requirements apply to the medical field, but not clergy. Christian Science practitioners were in the difficult position of providing both types of services. Ms. Smith agreed, and desired to make the Committee aware of this disconnect in the law. The proposed amendment would satisfy the current requirements in this bill. 12:22:43 PM TAMMY SANDOVAL, Acting Deputy Commissioner, Office of Children's Services, Department of Health and Social Services, testified that the original intent of this legislation was to provide for compliance with federal law. A person assisting in the delivery of an infant must report if that infant was adversely affected by alcohol or a controlled substance. The Department of Health and Social Services would then be obligated to investigate the matter. The bill was HELD in Committee. RECESS TO CALL OF THE CHAIR 12:24:34 PM / 2:37:11 PM