Aging, Children and Youth, Legislative & Military Affairs- House

Team by representative back. Who's hiding behind the column. You're recognized to present your resolution. Thank you madam chair thanks committee I will do this quicker resolutions in recognition of a gentleman who's who's really on our end of native our cans and is not a lot of work he's operated out observatory upon paging mountain it'll be fifty years this year hi this is solely funded by private funds he's written thirty five books on the on a straw maze just been a great character in this resolution recognizes I will go through all of this act all the things he's done but all those treatments in this life. Are there any questions by committee. First. We hit your Mike button. Okay not a question okay any other questions. Okay what's your motion representative Springer. Okay we have a motion do pass all in favor say aye. Pose no. Congratulations you passed a resolution thank you thank you Committee. is represented Gazaway. In here anywhere. Okay I have committee I have messaged him to see if he is coming to run his bills today as far as I knew he was. So maybe we can just hold on a few minutes and see if we need to recess or not. Sounds good to me do I see a second option. Yes he says he's on his way now. Senators have more time to prepare questions for him thank you for. Did you hear any of that because I forgot to turn my Michael Flynn representative McElroy started singing to turn my Michael. Okay we'll go out. Representative Gazaway you're recognized to present house bill eighteen thirteen that we're starting. It is okay thank you madam chair and thank you committee I apologize was up taking care of. Some other business before a. The record get over here but I appreciate. Your patience manager I have to witnesses here who are here to testify explaining this bill today would you allow them introduce themselves yes please. Thank you madam chair my name is Glen Hoggard I am an attorney I represent parents in DHS cases of I thank you we probably should come to pass in what cases there foster care cases been doing it for seventeen years I have a personal services contract with the state all parent council in BHS cases are contractors and not state employees I need to put a disclaimer in a set on the Arkansas Bar Association legislation committee I am not here today in that capacity. Good afternoon committee my name is Anna and beau I am the attorney for DHS for the purpose of these bills I supervise the attorneys who represent DCFS all across the state and these are parent councils bills as Mr Harvard explained about his role in this but DHS obviously supported parent counts on these and and provided some technical support I'm here to help answer questions from our perspective in these cases. Representative Smith you have a question. Okay. Thank you. That makes sense. Sorry representative Gazaway you may continue okay thank you manager committee house bill eighteen thirteen as you've heard this is part of a package of bills at the next three bills H. B. thirteen fourteen eighteen thirteen is before teenage B. fifteen R. three agreed upon bills from the parent council which represents parents in dependency neglect proceedings also DHS which represents the state my understanding is that as all the other stakeholders were involved in this along with I think attorney at law items and and other groups that met these are agreed upon bills eighteen thirteen deals with when a Punit punitive parent has the right to counsel under the Arkansas juvenile code this particular bill. Will allow for. Punitive parents where punitive and typically this punitive father someone who's not legally been recognized as the father yet but who has who is believed to be the father and then Arkansas also maintains what's called the putative father registry where if you believe you're the father of a child you can have your name added to the putative father registry now that's not the only way to be if recognized as appear to father but that's one way and so what this bill does just generally and I let the witnesses explain in more detail but it It allows for counsel legal counsel to be appointed for punitive parents earlier in the process than what is currently allowed to get those picked people who believe that their parents involved and with lawyers from the outset which is a little bit opposed to how that it works now which is that it's usually when counsel is appointed for those individuals it comes much later in the process and much closer to the termination of parental rights hearing and so again with these bills coming from the parent council the purpose is is to try to provide parents counsel and legal representation earlier in the process as opposed to later in the process and that will allow them to have their rights protected and to the extent that they can parent children so that those children don't end up in the foster care system or in the custody of the state hopefully that will allow means to for that to happen earlier in the process that's the way that I understand this bill and that it works generally but I have the experts are with me who I think can explain in more detail. Are there any questions by committee. Questions. anybody signed up to speak for or against this bill. Check. I would like to close for your bill Madam sure but before we go any further just for the committee's information and they probably they may just want to vote and get this over with but I would like for the two witnesses who are here who really have have more expertise and can explain this in more detail to be able to offer the committee a better explanation of what I gave more detailed explanation on how this exactly works okay representative very do you have a question so far. Okay you're recognized thank you manager and the representative Gazaway or maybe your witnesses can can you elaborate little unnoticed the term significant throughout the what did you no answer a relative term but what are the court considers sig significant. Represent very we purposefully use the word significant because it is a word that the courts used and appellate case opinion and so we are taking their language and plugging into the statute on purpose of there is not a. Specified set of actions that a punitive parent can take that will cause the trial court judge to deem them to have their parental rights to have attached as a punitive parent we have not put in a specific set of things there's kind of a set of guidelines that again we took out of the appellate court cases but we do that on purpose and it's going to be up to the individual juvenile court judge to decide. Representative Springer you're recognized for a question. Thank you madam chair I would just like to know you said that there was a you this bill is going to shorten the time period that the punitive parent is involved what is that time period it would have been previously and what is it going to be once this legislation is passed. So my understanding of it is not let the experts can answer but I don't know that it shortens the period of time as much as it does to get them involved sooner in the process okay so what. Thank you for the House they get in the process as compared to previous on so under the current statute The parents that are entitled to appointed counsel or legal parents which is a defined term it's the birth mother the father the. Person who would be married to the birth mother at the time the child is born in the and thirdly. Anyone who has had a paternity determination by a court of competent jurisdiction so those of the three legal parents if you're not one of those three are considered to be punitive pair and you're not entitled under the current statute to appointed counsel at the front end of the case and so you are entitled if the case gets all the way out to the back end for termination print rights then we give that punitive parent attorney in our premises we're going to move that from the back to the front will eliminate appointing attorneys to Q. two parents at the end of the case that haven't done anything in that have not been determined by the court for their significant contacts to have attached in our hope is I believe is that by moving from the back to the front we'll have one more pair involved in the case will have one more opportunity to get the child back to a family member and hopefully that will increase the ability of the parent to survive the process because I have an appointed attorney. Final question madam chair you're recognized so so that I'm still trying to understand the and so what what what what does this per person become involved in something when you don't know who but a birth father or mother or well the person has been designated and so what is the what is the process for you identifying that person if they're not already know eight thirteen deals with the appointed counsel. The question is answered and the provisions of eight fifteen. But I'll go ahead and in with chairs permission I would address the question that you're asking well I guess I'm ahead of myself so yes well I want to sure so the the things that a punitive parent must do what we're looking to recognizes a parent that's had a custodial relationship with the child even though they're not legal parent. We're looking for parent that's been involved in terms of paying child support where there's been a determination of attorney by court in the child support order we're looking for the PD parent who can say I've spent time with this child I have bought diapers for this child I have who is there a sensually saying I am a parent I will be considered a pair of we're distinguishing between that parent in the punitive parent who doesn't particularly want to have anything to do with it is mostly afraid they're gonna get tagged with child support. Thank you representative McKenzie you're recognized for a question thank you madam Speaker what what injured making here just so I understand for the non custodial parent with regard to counsel is looks like we are making a change correct. So the appointment of I'm sorry okay so the appointment for a. You repair where the court finds that their eligible for appointed counsel will occur at the front end of the case and that's the principal change of eight thirteen eighteen thirteen is when a move that they're ineligible to get an attorney now we're gonna make them eligible that will occur at the front of the case and it will. Eliminate the appointment of an attorney for punitive parent at the end of the case where the only issue this left to be decided as termination of parental rights. You're recognized I'm sorry I is there a difference here between the peer to a parent and non custodial parent. Sure the beauty parent is a classification that deals with the determination of tourney. It is very urgent Gazaway said it's almost always fathers right now I can't say always because of the seven years I've been doing this at two cases where mothers have contested there. Maternity but. It and plus I don't think we can get very gender specific in these because of the federal law that we're dealing with. But the difference between custodial and punitive. From the legal standpoint if a parent is custodial that means there's probably been a determination by another court in a previous proceeding that they are right apparent in our entitled to custody punitive hasn't had that. Thank you so that's I'm trying to get at here are non custodial parent we already have parental determination it looks like we're making a change with regard to their right to counsel on this that's what I'm trying to get so the the case that we're looking at is where are the appointment council sorry yes me the case willing urging cans were there's a dad that's at home who's been taking care of the child and for whatever reason or whatever factor happens moms out of the house and she gets arrested and has warrants and maybe blows hot on a drug test we want that dad who had physical custody and have been entrusted with physical because that child to be allowed in the case as a party to have an attorney appointed him if he meets the other criteria which are finances in the V. ask for an appointed attorney there the other two criteria and then he then be given the opportunity get immediate custody of that child as soon as a state gets involved. Are there any other questions by committee. You should have further information you'd like them to give Ballinger I do and so I think that's one important distinction that you made about noncustodial parents versus punitive parents because at the beginning of the statute says the court may appoint an attorney to a and then we talk about non custodial parent and then later on in the statute we talk about punitive parent one of the things that is. A common thing throughout this legislation is a whether or not whether you're noncustodial or punitive whether you've demonstrated a significant custodial relationship with the child and significant custodial relationship you know the things that they look at their of I think or or kind of what's been described about the been involved in their life you know paid for any of their expenses and that sort of thing I think if I'm not mistaken and really what I think this is trying to address are those parents whether they're noncustodial but have been recognized as a parent or other punitive in other words they've not been recognized as a parent but everybody kind of knows that they're the parent they've they've been there since day one that maybe there has been a DNA test yet but they've been there since day one they've been living with mom for example for three years they've been paying the bills have been paid in the finances DHS comes in and makes the removal and then they show up to court and instead of saying like well you're not a parent you know you need to go get a DNA test we don't recognize you as a parent the court can recognize them as a punitive parent because they've had that significant custodial relationship and appoint them an attorney immediately as opposed to having to wait is kind of my understanding about how this works but. But I do I think I understand representative mackenzie's question which is. We talk we speak about noncustodial parents at the beginning of the bill then we talk about punitive parents later if we're making a distinction our noncustodial parents treated now versus punitive parents is how as I think her question and somebody could address that you guys would be more appropriate committee sure ninety nine twenty seven three sixteen H. is the current code that addresses who is eligible for appointed attorney. It's a legal parent from whom custody is removed so noncustodial parent and meet that definition the present time we're going to include the noncustodial parent and definition. And then already addressed punitive unless you want to go back to. I think you've covered it. One last thing I'll say about punitive parents. A lot of times and I've encountered this in my practice where you have to send a request for if someone you believe someone may be a punitive parent or you're concerned that someone may be issued a parent primarily I've seen this through adoptions the state maintains was called of the putative father registry and sometimes you have to send letters to determine whether or not someone has put their name on that putative father registry because if they have their entitled to notice I think what this bill recognizes very few people ever do that and so. We won't be recognized punitive parents not as just the ones who have taken the initiative to go put their name on a list because that's very few and in practice that I actually do that but the punitive parent is that person who's acted as a parent who everyone assumes is a parent who's taking on the responsibilities not cut and obligations of a parent maybe for a good period of time had a significant relationship with the child it hasn't been legally recognized as such and so we want to get them involved with an attorney early in the process as opposed to later so I think that's what the bill does not sure if that helps but. Are there any other questions by committee. Is there anyone in the audience here to speak for or against this bill. Representative Gazaway would like to close for your bill thank you madam chair I'm close for the bill and would I'm not on the committee's I can't make a motion that I would appreciate a good vote. What's the will of committee. We have a motion to pass by representative very all in favor say aye. Opposed no. Congratulations your bill is passed. Next is house bill eighteen thirteen. You are recognized to present I'm sorry fourteen thank you you're recognized to present the. Thank you madam chair this concerns the definition in section one we talk about the definition of parents of this kind of goes along with what we were just talking about and the biggest changes you'll see on page two we say someone who's been found by a court of competent jurisdiction to be biological father the juvenile and then we add here or to have otherwise to establish paternity that you know can be through a DNA test or otherwise then we say or who is listed on as the parent on the birth certificate of the child that would be another way to start out if you're in a DHS proceeding is recognizing that person is the parent well they're they're listed on the birth certificate as the parent. So that would be another way to do that section to. Basically addresses when you're at a hearing about who can be heard as a witness and I think a lot of times what happens in these cases is that sometimes people just show up and want to be heard. And this addresses You know their ability to appear if they're going to do that and they're going to try to give testimony to hearing and they have to do that as a witness and that's kind of set out in section two and three section three says that they may not offer evidence unless they're called as a witness so and if if you've been involved in these cases and I've seen it from time to time people just show up and stand up in court and say like I want to be heard. Well they need to be called as a witness quite honestly they need to be put under oath and they ought and that's how other their testimony on B. receive not just some you know kind of rambling statement that they want to make from out in the. Out in the gallery and so I think that's what this bill seeks to do but again we have experts here who can address it more detail than me. I could just add about the especially the parent definition and this is a of definition and a bill that's particular to juvenile court proceedings this is not going to be the same type of thing you'd see in a domestic relations case we've just as as Mr Harvard mentioned some case law has developed where this issue a parent is really determinative and you would think if you're involved in a case everyone knows who the parent who is defending against having this child removed from them or maybe they're rights at the end if it doesn't turn out that we can reunify and so this issue a parent has become sort of an an element of the grounds that are alleged against against these parties sometimes so it's really really important that we know who a parent is and that they meet this definition so we needed to tweak the definition a little bit including the part about being on the birth certificate that's in particular something that's not going to be common in domestic relations law you can't get on the birth certificate and less you sign it and up and acknowledgment of paternity which is already mentioned but sometimes we don't have that and the department of health has assured us that there's no other way to get on the birth certificate but if we don't have that a knowledge mint and are evidence of that element is the person to get we need to be able to use that as proof and so that's sort of what the rest of the bill that's all kind of an evidentiary issue that we're just trying to clean up so the same thing about foster parents is represented Gazaway said maybe they'll appear and they'll be heard by the court but we really want to make sure that's in the record that it's sworn testimony so both are sort of an evidentiary consideration that we want to make sure cleanup. With with on. The. Under current law foster parents pre adoptive parents and really care givers all are given opportunity by the court to be heard in any of the hearings and we have anywhere from from four to a half a dozen and sometimes more hearings in the course of the case at the present time there's no requisite that when those statements are given by those folks that they're on the record that they're sworn in as witnesses and were attempting to put those that piece of testimony are are that statement I guess as you call it on the equal footing with the parents and other folks are called will put those folks on the record and if there's any documents or any evidence that those three categories of people want to have put before the court it'll be done an evidentiary manner. Are there any questions by committee. Is there anyone in the audience here to speak for or against this bill. Representive guess we would like to close for your bill. The manager I'm closed and would appreciate a good vote. Thank you we have a motion to pass by representative very all in favor say aye. Opposed no. Congratulations your bill is passed. And for the trifectas now we will hear H. B. eighteen fifteen. You're recognized. Thank you madam chair this bill it kind of moves along goes in conjunction with the bills that we talked about deals with the termination of parental rights for a punitive parent. And you know again we talk about punitive parents as those who have demonstrated a significant custodial personal or financial relationship with the juvenile or if they're listed on the punitive father registry for instance You know these are people and parents that we want to make sure are heard from you before final rights are terminated. Let's we talk about also in here about DNA test if there's a punitive parent. you know we want to make sure that. If they've had those contacts that they get the notice an opportunity to be heard before final rights are terminated and there could be DNA test ordered by the court And the court can make certain findings with regard to that punitive parent at that peer to peer and has not been involved in the child's life for instance that I think they can be. dismissed from the case in certain instances allows the court said on page four to make a determination about paternity and this is in dependency neglect proceeding so typically and I think I hope I explain this correctly then correct me if I'm wrong but typically paternity is only established in domestic relations court and that's kind of a separate action is not something that's taken up in the DHS court or dependency neglect court and this will allow a judge sitting in dependency neglect court. To make determinations about paternity if there's you know in certain circumstances and so that data is found on page four. And you know again this is really the the rest of the bill is about. Insuring that punitive parents have noticed in the opportunity to be heard section five on page six a termination of parental rights shall not be considered as an involuntary termination that's important because if you're involved in these cases if there isn't what's called an involuntary termination. If you ever have and and and correct me if I'm wrong explain this in more detail that's important because if you've ever you're involved in DHS court again like for second time and you've had an involuntary termination. That's held against you in future DHS proceedings and so we try to clarify here that You know termination will be considered an involuntary termination under certain circumstances so that it won't be used against him in future proceedings. And then. Section six is about again before termination of parental rights is considered again making sure the punitive parents. Are involved in the case and not dismissed and less there's been notice an opportunity to be heard but again I would let the experts explain this in more detail because they know better than I do. I'll let Mr Hauger talk about some of the the involuntary part but I just wanted to comment from DHS is perspective and again this was this was parent councils bill but we really did work closely entity it's quite convoluted and there's quite a lot of a bit a lot there and the reason that is is because again that the case law has developed to where we've really gotten some decisions that we've work sort of unintended we weren't that wasn't a an outcome we predicted and so we're left with this lawn and this is sometimes a response that we're having to go back and revise this section in multiple parts because of this issue about who is the parent what is their status and so pretty H. us it's really important that we have that we clean up where we can that we respond in the statute to the to the case law that's come down especially on the front end so a lot of the sections deal with when we filed the case because DHS is the party that's bringing that case so we have to have a pretty good framework to know who is the parent who do we file a lawsuit against so this addresses that and then also on the back in if we're not able to reunify a family whose rights are at stake and ultimately if we're looking at a termination parental rights we have to make sure that child is free for adoption and so these this is these are obviously you can tell all these bills are related so especially on the front end about the the who is a parent if if or even you know who is entitled to counsel if they weren't married if they weren't the custodial parent or maybe they had a a significant relationship at the beginning but maybe don't stay involved in the case and what we do at the end and this is really what this bill is seeking to do is what we do who is entitled to notice and then what we do for notice at the end and then to make sure that this child is cleared for adoption that we have severed all legal rights even if they aren't clearly a custodial parent or something that we recognized because in our cases we still have to make sure that child is free for adoption in these punitive parents who maybe had significant contacts the judge from. At the beginning but they don't stay involved in the case what do we do do we terminate their rights but do they have any it's this constant sort of a factual analysis on these cases and so this is another effort we brought legislation before they're trying to clean this up and this is just a kind of a collaboration to try again and make sure that we're we're really resolving all rights properly. From the parent council side of one of the things that eighteen fifteen does as we move DNA testing from where it is in the code now into this portion of the code for specific purpose we had some judges that were suggesting that they warning powered to order DNA testing we all thought they were now we're going to make certain that they know that they are in addition to that there is language in eighteen fifteen that permits the judge to make a finding of paternity without any DNA test again we all think that the circuit court judge has that authority that ability but there are been some of the June court judges that say that they believe it should be over in domestic relations so we're just given the forty in the juvenile code so there's not a question that they have that authority of as it pertains to termination print rights of a struggle sometimes with a double negative that is not involuntary so let me just convert that when there is a a contested termination proceeding if the parent loses that contested termination proceeding that loss of the termination proceeding can then with the subsequent child however long later be used as a ground to terminate the parental rights on this subsequent child. Put another way there are ten enumerated grounds one of which the state was proven order terminating parental rights. If that case is coming home and it was contested in the parental rights were terminated and ten years later this parent has another child runs afoul of the department again the mere fact that there was a contested termination previously is a ground to terminate on this subsequent child fourteen years later without any other. I'm not going to say it that way it is legally doable without any other proof now I'm I want to sing the virtues of department here I I've in my seventeen years do in these cases I'm the department is not going to do it just on that basis alone they're not looking out to do that there's going to be some other reason that the case exist but this involves a punitive parent if the peer to peer. Rights never attach and yet their rights are terminated that can't be counted against them and we think that's the right thing to do and then finally When the Q. parents rights can be terminated this bill sets forth how that looks how the what the process is in it then for as as a museum bill stated it been freeze a child for adoption because all parental rights all potential protect parental rights including actual parental rights have been terminated. Are there any questions by committee. Is there anyone in the audience here to speak for or against this bill. Representative Gazaway woodland close for your bill. I would thank you madam chair will not one thing I would just remind the committee. We have on I have on both sides here the attorney for the state and DHS and an attorney that represents parents and they have agreed on this and I think that's remarkable which says that it must be a pretty good bill and so with that I would appreciate a good vote. Thank you. Well okay we have a a recommendation motion do pass from representative McElroy all in favor say aye. Opposed no. Congratulations you've passed your bill. Thank you manager thank you Committee. And with no further business