SB 288-EMERGENCY CHILD CUSTODY PLACEMENT  MS. JACQUELINE TUPOU, staff to Senator Green, sponsor, explained to members that current law provides that the court must determine within 48 hours of removing a child from the home whether continued placement in the home is contrary to the welfare of the child. However, judges use varied language when making that determination. SB 288 says that judges must specifically state that it is contrary to the welfare of the child to remain in the home. That language is Title IV-E compliant and will result in an increase of Title IV-E funding of $500,000 in FY 05. MS. JOANNE GIBBENS, Program Administrator for the Office of Children's Services, Department of Health and Social Services (DHSS), affirmed that SB 288 requires the court to make a specific judicial determination at the very first hearing when emergency custody of a child is taken. He explained that the federal purpose for this requirement is to protect the rights of parents and children by ensuring that states are not removing children unnecessarily. The federal government ties funding to this requirement. SB 288 codifies what should be and, in most cases, is current practice. The purpose of the bill is simply to make sure the court enters findings that are already required by federal law. It does not change the standards used by the court to make out of home placement decisions. CHAIR SEEKINS announced that Senators Therriault and Ogan had joined the committee. SENATOR ELLIS asked why the state is not complying with the federal law now. MS. GIBBENS said ideally this would be happening in every first court hearing, but it does not. SB 288 is a trigger to remind judges of this requirement. It also aligns Alaska statute with the federal requirement. SENATOR ELLIS noted that Senator Green has expressed concern in the past about depending on receipt of federal funds and the possible need to use state funds if the federal funds are cut. He noted with the huge federal deficit, there may be cutbacks in the future. He asked if she has any concerns about accepting these federal funds. CHAIR SEEKINS said he would expect Senator Green to defend her own history. MS. TUPOU said she does believe this is a good program and not only will this determination make a difference for Title IV-E funds, it will make a difference in the child's entire placement in the program, i.e., with adoption subsidies. She added that many times the court will grant a continuance if the parents cannot be found, so no language is put on the record at the first hearing. SB 288 will require the court to tighten up the language. SENATOR ELLIS asked Ms. Tupou if she believes that accepting the federal funds would benefit Alaska. MS. TUPOU said in this situation, where children are in such dire need that they need to be removed from the home, the state should use the resources that are available. SENATOR SEEKINS said he sees this bill as accomplishing two purposes. First, it brings Alaska statute into compliance with federal law, which could be the primary intent. Second, it could assist in obtaining federal funds. MS. TUPOU agreed. SENATOR FRENCH asked Ms. Gibbens what happens if the judge does not have enough information at the first hearing to make a finding. MS. GIBBENS said a social worker might file a petition with the court at the first hearing and the parents are not present and cannot respond to the petition. In many of those cases, the judge will order a continuance. In that case, the judge may say that based on the evidence available at that time, the child should remain in an out of home placement until the continuance hearing. At the next hearing, the judge will make another hearing. MS. TUPOU informed members that she distributed a copy of a response from Assistant Attorney General Nemecek to Senator Green that answered three questions. She noted that the second response directly relates to Senator French's question. She said Senator Green was very concerned about usurping due process rights and would be agreeable to an amendment to change the words "shall determine" to "shall make a preliminary determination" to emphasize the transitory nature of the first hearing. She then pointed out the first answer in Mr. Nemecek's response pertains to the word, "emergency" on page 1, line 14 of the bill ("remains in the emergency custody of the department"). She was told that word was originally included because it was required for federal compliance but that is incorrect and is actually legally confusing. She said Senator Green would also be agreeable to removing that word. SENATOR FRENCH pointed out the word "after" on page 1, line 14, on version A, differs from the word "at" used in the DHSS letter. He questioned whether the word "at" is more appropriate to emphasize the fact that you want the judge to make the determination now not after the hearing. MS. TUPOU explained that the revisor switched the words accidentally but that was corrected in version H. CHAIR SEEKINS called an at-ease and, upon reconvening, clarified that version H, the Senate Health, Education, and Social Services Committee version, was before the committee. SENATOR THERRIAULT moved to adopt CSSB 288(HES) as the working document before the committee. CHAIR SEEKINS announced that without objection, the motion carried and noted the HES version contains the word "at". SENATOR OGAN pointed out that the committee referrals on version A and version H are different. CHAIR SEEKINS affirmed that SB 288 picked up a Senate Finance Committee referral. He then closed public testimony, as no one else wished to testify. 8:19 a.m. CHAIR SEEKINS asked Ms. Tupou to clarify the amendments she suggested. MS. TUPOU told members the first conceptual amendment [Amendment 1] would be to remove the word "emergency" on line 14, page 1, where it reads: ...remains in the emergency custody of the department. The second amendment [Amendment 2] is to change the language on line 1 of page 2 to read: The judge shall make a preliminary determination SENATOR FRENCH asked if the second change will make a big difference. MS. TUPOU said, according to Mr. Nemecek's response, it will not. SENATOR FRENCH said the question of what is contrary to the welfare of the child would come up in every hearing conducted in the course of the placement. He said he would not insist on that language because every finding is preliminary and never final. He maintained that the change is only a matter of housekeeping and not a change to procedure. MS. TUPOU said that is correct and referred to Mr. Nemecek's response to question 3, which states, "This does not alter current legal standards for those children." SENATOR FRENCH asked if it will make any changes to legal procedure. MS. TUPOU said not that she is aware of. SENATOR OGAN referred to the removal of the probable cause language in Section 1 and asked, "...why is having that probable cause language a problem in existing law and is there a probable cause finding for removing a child that's required under due process?" MS. TUPOU responded the probable cause determination is determined in a temporary custody hearing. Section 1 refers to an instance of a continuance, during which there is a probable cause finding. If the hearing is not a continuance, the temporary custody hearing will take place simultaneously. SENATOR OGAN questioned why that language needs to be removed and what problem will be fixed. SENATOR THERRIAULT clarified that the language was removed from subsection (d) but placed in subsection (e) as the drafter felt that to be the more appropriate placement, so nothing will be lost. CHAIR SEEKINS entertained a motion to remove the word "emergency" on page 1, line 14. SENATOR THERRIAULT asked whether there is any significance to the term "emergency custody" versus just "custody." MS. TUPOU deferred to Mr. Nemecek. MR. VENNIE NEMECEK, Assistant Attorney General, Department of Law, explained that the problem with using the word "emergency" is that generally that refers to both an assumption of legal and physical custody. The intent of that sentence is to refer to legal custody because the physical placement is dealt with in the subsequent sentence. He recommended removing the word "emergency" because it confuses the matter. SENATOR THERRIAULT asked which is clearer in the legal world. MR. NEMECEK said in his experience, it will not make a difference. CHAIR SEEKINS asked if by eliminating the modifier "emergency" or "temporary," the language will say whenever, at this point during a continuance, that child will remain in the custody, whatever type that may be, and that will cover all bases. MR. NEMECEK said it does and explained that in general, when custody is viewed from AS 47.10, it refers to legal custody. SENATOR FRENCH pointed out this is about a temporary custody hearing yet that phrase is used the least in the two subsections. He believes replacing the word "emergency" with the word "temporary" might ease the concerns of the parents whose child was taken away and make the language more consistent. He so moved. CHAIR SEEKINS asked Mr. Nemecek and Ms. Tupou if that solution would satisfy their concern. MR. NEMECEK and MS. TUPOU said it would. SENATOR FRENCH repeated his motion to replace the word "emergency" with the word "temporary" on page 1, line 14. CHAIR SEEKINS announced that the motion carried without objection. He then noted that with no further discussion, he would hold the bill for a second hearing and announced an at- ease.