SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE May 1, 1998 9:06 a.m. MEMBERS PRESENT Senator Gary Wilken, Chairman Senator Loren Leman, Vice-Chairman Senator Lyda Green Senator Jerry Ward Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 366(title am) "An Act prohibiting a court from finding that a minor is a child in need of aid solely on the basis that the child's family is poor, lacks adequate housing, or lives a lifestyle that is different from the generally accepted lifestyle standard of the community where the family lives." PREVIOUS SENATE COMMITTEE ACTION HB 366 - No previous Senate committee action. WITNESS REGISTER Lisa Torkelson Aide to Representative Fred Dyson Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Answered questions regarding HB 366 Susan Wibker Assistant Attorney General Department of Law 1031 West 4th Ave., Suite 200 Anchorage, Alaska 99501-1994 POSITION STATEMENT: Answered questions regarding HB 366 Representative Fred Dyson Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of HB 366 ACTION NARRATIVE TAPE 98-41, SIDE A Number 001 CHAIRMAN WILKEN called the Senate Health, Education and Social Services (HESS) Committee into a work session at 9:06 a.m. while he awaited a quorum. Senators Leman and Green arrived at 9:08 a.m. The order of business before the committee was HB 366. HB 366 - NO CINA BASED SOLELY ON POVERTY LISA TORKELSON, legislative aide to Representative Fred Dyson, sponsor of HB 366, stated the bill will prevent DFYS from declaring a child as a Child in Need of Aid (CINA) on the basis that the child is poor, homeless, or lives a lifestyle that is not considered quite normal. She recounted a case in which a mother was reported to DFYS as being neglectful because her children ate a vegetarian diet, and it took the woman quite some time to clear the matter with DFYS. Also, many families live on boats for long periods of time. Representative Dyson is concerned that a DFYS worker, new to Alaska, might find such an alternative lifestyle unacceptable. HB 366 will preclude DFYS's involvement in such situations, unless other conditions exist, such as sexual abuse. Number 059 CHAIRMAN WILKEN asked Ms. Torkelson if SB 272, considered by the committee on the previous Wednesday, contained the provisions of HB 366. MS. TORKELSON said that was correct. CHAIRMAN WILKEN asked if the two bills contain any differences. MS. TORKELSON believed they were the same. CHAIRMAN WILKEN asked if HB 366 will act as an insurance policy. SENATOR LEMAN asked what the phrase "adequate housing" means. MS. TORKELSON answered it means living in a shelter. If a person has no housing and is living in another's shelter, that person could be considered to lack adequate housing. She noted a tent may not be considered adequate. SENATOR LEMAN asked if the bill contains a definition of adequate housing. SUSAN WIBKER, Assistant Attorney General, stated the Department of Law supports HB 366. She explained there is no specific statutory definition of the phrase "adequate housing." SENATOR LEMAN asked Ms. Wibker what adequate housing meant to her. MS. WIBKER stated if a family is not living in a structure, and instead lives in a car, DFYS could not take legal custody of the children based on where the children live. Number 119 SENATOR GREEN asked what would happen if the temperature was 20 below zero, or 102 degrees. MS. WIBKER answered the social worker would try to help the family get into adequate housing but DFYS would not have grounds to take legal custody of the children. If the children's health and safety were at risk, and the family did nothing about it, even when offered assistance, DFYS might then be able to take custody. SENATOR GREEN stated DFYS and various assistance groups train people in living skills to enable them to live a normal life. She asked if those services would cease from being offered if HB 366 is enacted. Number 143 MS. WIBKER said nothing would preclude DFYS from offering assistance. Many times when a DFYS worker goes to a home, the worker provides information about available services and offers assistance with application forms. SENATOR GREEN asked if a child found to be in need of aid is removed from the home. MS. WIBKER said not automatically. Most of the children in legal custody of the state live at home since removal is a separate question and legal burden. SENATOR GREEN asked if DFYS has oversight of a child in need of aid. MS. WIBKER said that is correct, and that the child would be living with his/her parents. Number 156 SENATOR GREEN asked what the difference would be in the level of service provided by DFYS in the absence of the CINA determination. MS. WIBKER said if the child is not in the legal custody of the state, a DFYS worker could offer to provide assistance, which the family could accept on a voluntary basis. If the family was not interested, the worker would have no grounds to do anything. SENATOR GREEN commented she had a similar conversation with a DFYS worker in the recent past, who pointed out that DFYS's ability to strongly encourage families to change their lifestyles regarding things like sanitation, food preparation, and general slovenly circumstances is much greater because of the hammer DFYS has. She questioned whether HB 366 will remove that hammer. MS. WIBKER said she does not believe so, if the worker was referring to situations in which DFYS has no legal grounds to do anything, but wants to make suggestions to a family. If the family refuses to make any changes, the question then becomes whether the situation will later give rise to the state taking legal custody if no changes are made. For example, DFYS could not take legal custody on the basis that the family lives in a filthy house. However, if the condition of the house presents the risk of hepatitis to a child because feces is all around, a health hazard exists. The DFYS worker would make efforts to assist the family to correct the problem but if the family refuses, DFYS would have to determine whether the health risk is great enough to warrant taking custody of the child. In those cases a doctor might be consulted regarding the health risk. SENATOR GREEN asked if the Department of Law supports HB 366. MS. WIBKER said it does. SENATOR GREEN asked if DFYS field workers support this legislation. MS. WIBKER said she has not talked to all of the field workers. She stated the department circulates proposed legislation to employees at all levels, and invites comments. Number 220 REPRESENTATIVE DYSON informed committee members he sponsored this legislation because he and his wife got involved in a case in which a woman reported her sister to DFYS because the sister's children were malnourished. The children were vegetarians and were not in jeopardy of malnourishment. Second, many families, including his own at one time, live on boats. His concern is that the status of a family should not be considered grounds for DFYS interference with custody; the child would have to be in danger before DFYS could intervene. HB 366 is meant to act as a preventative measure just in case DFYS has a less enlightened professional group at sometime in the future. Alaskans appreciate diverse lifestyles, and he wants to prevent DFYS from taking away someone's children only because a home does not have indoor plumbing or a similar condition exists. Number 244 SENATOR LEMAN questioned whether a standard definition of the term "lifestyle different from generally accepted lifestyle" exists. He noted some behaviors cross the line and are generally unaccepted, and he would not want those lifestyles to be protected by this law. MS. WIBKER replied that phrase would mean, to an attorney for the Department of Law that has to intervene on behalf of the child, that in order for DFYS to have legal custody, DFYS should have to prove abuse or neglect. If the only evidence DFYS has is that the family lives in a cabin with no running water, DFYS should not be involved in the case. The bill may protect lifestyles that some may not approve of, but it says if a lifestyle does not involve abuse or neglect, DFYS should not be involved. HB 366 is designed to be a limitation on the state's ability to interfere with families. REPRESENTATIVE DYSON added this issue gets down to the fact that the Legislature has not empowered DFYS to take custody of a child because the parents are doing things that others might consider morally incorrect, such as engaging in permiscuous behavior or believing in a natural law philosophy. In his view, this bill will create a balancing act; some of the cases will require judgment calls but overall, HB 366 strengthens family rights short of neglect and abuse. SENATOR LEMAN moved HB 366 out of committee with individual recommendations. There being no objection, the motion carried. There being no further business before the committee, CHAIRMAN WILKEN adjourned the meeting at 9:30 a.m.