Summary of Proceedings

of The

Joint Judiciary Interim Committee

Oil & Gas Conservation Commission                                                                            July 8 and 9, 2002

777 West 1^st Street                                                                                                      Casper, Wyoming

PRESENT:       Senator John Schiffer, Chairman;

                        Representative Jeff Wasserburger, Vice Chairman;

                        Senators John Hanes, Rae Lynn Job, Curt Meier and Kathryn Sessions;

                        Representatives Lorna Johnson, Jack Landon, Randall B. Luthi (July 9 only), Layton Morgan, Dave Rader, Colin Simpson, Jim Slater  and Stephen Watt.

                        Legislative Service Office:  John Rivera, Senior Staff Attorney.

                        Others:  See Appendix "A."

ABSENT:         Representative Randall B. Luthi (July 8 only).

AGENDA:        See Appendix "B."

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Monday

July 8, 2002

The meeting was called to order at 8:10 a.m., on Thursday, June 28, 2001, by Chairman Schiffer.  After roll call and an explanation of the purposes of the meeting by Chairman Schiffer, the following is a summary of the proceedings of the Joint Judiciary Interim Committee (hereinafter, "the Committee").

1.  Approval of Minutes

Senator Job moved, seconded by Senator Sessions, to approve the minutes of the May 1, 2002 meeting. The motion carried unanimously

2.  03LSO-0009.W3, Title 14 revisions

Ms. Susan Lehman, Director, Department of Family Services, introduced Mr. Les Pozsgi, Administrator of the Division of Juvenile Services, and Ms. Donna Sheen, Coordinator of the Title 14 Committee, who would present the draft legislation. Director Lehman explained the purposes of the bill had been to resolve conflicts that had become part of Title 14 as it was amended over the years. She explained that the Department had assembled a notebook (Appendix C) to assist the Committee in understanding the changes proposed by the draft legislation. A tab was left at the end of the notebook to allow Committee members to insert their versions of the draft bill.

Judge Gary Hartman explained he had participated in the Title 14 Committee as a member of the subcommittees looking at the multidisciplinary team process and court processes. He described the efforts of the two subcommittees and advised that the subcommittees continue working on issues they have not been able yet to resolve.

Mr. Pozsgi stated that 160 people had participated in the Title 14 review. While the Committee is reviewing the draft bill, he requested members be aware that the bill is not a complete and polished product. The Title 14 Committee simply ran out of time to resolve all issues it was considering. The bill before this Committee is just a first step.  Issues not yet resolved include: changing the age jurisdiction for children in need of supervision (CHINS) to include youths to age 17 years and the age of jurisdiction over children in neglect actions to age 21 years; development of a family court system; and, shifting the focus from CHINS to families in need of supervision (FINS).

Ms. Sheen presented the bill in a PowerPoint format (see tab 16, Appendix C). As Ms. Sheen presented the bill, Chairman Schiffer advised Committee members to ask any questions they may have while discussing a particular section of the bill.

Representative Simpson asked why language in W.S. 14-3-202(a)(ii)(B) relating to "skin bruising" was being stricken. Ms. Sheen explained the Title 14 Committee had discussed this in great detail and strongly felt it necessary to strike the language as shown in that subparagraph. Representative Simpson also asked about the change in the evidentiary standard for abuse and neglect. After an explanation by Ms. Sheen and Judge Hartman, Representative Simpson asked the Department to provide to the Committee a copy of the Department's rules governing appeals and the expungement requirements for purposes of the central registry of child protection cases. Ms. Sheen added the Title 14 Committee would like to do more work with respect to the central registry provisions for consideration by the Committee.

While provisions relating to temporary protective custody were being explained, Mr. Rivera advised that the proposed provision authorizing the issuance of telephonic notices could potentially include the issuance of search warrants. He explained that Article 1, Section 4 of the Wyoming Constitution specifies that a search warrant can only be issued if supported by a affidavit, which may cause a problem with the language as proposed. Ms. Sheen requested permission for the Title 14 Committee to revisit the language to see if better language can be drafted to avoid a constitutional problem with the provision.

The Committee questioned the granting of exclusive jurisdiction to the juvenile court in delinquency matters. A suggestion was made to include language requiring notice to the district attorney, including proposed screenings of the juvenile, once the court automation project is state-wide. The Department was asked to look at the cost of a pilot project to expedite the processing  of juveniles.

Representative Watt suggested giving the juvenile court original jurisdiction in all matters involving juveniles. Chairman Schiffer advised that provision would pose a problem for municipalities. He suggested that Ms. Sheen look at other alternatives such as enhancing the pilot project idea,  "piggy-backing" on the judiciary's court automation project, or working with the Wyoming County Commissioners' Association (WCCA) and the Statistical Reporting Service at the University of Wyoming to coordinate the reporting of citations issues to minors, since minors and their families are mobile in today's society.

Representative Simpson pointed out the temporary custody provisions in W.S. 14-3-208(a) contained language requiring notice to the child protection agency and the parents, but that language does not appear in W.S. 14-3-405. By amending W.S. 14-3-206(b) by deleting "section" and inserting "article", the problem could be resolved.

Representative Simpson  expressed concern with the proposed language that would require the  parents to make an admission of the acts alleging neglect or abuse before a consent decree could be entered. The proposed language may result in more litigation, rather than less. Judge Hartman replied that the requirement would be a negotiating tool which would wipe the slate clean if the parents fulfilled the terms of the consent decree. He stated that the American Bar Association recommends eliminating the consent decree provisions, but if they are to remain in Wyoming law, then an admission of the acts alleging neglect or abuse by the parents should be required.

In response to a question why a six month review of an out-of-home placement is only allowed once after the initial placement, Judge Hartman stated the six month reviews can be conducted more than once if the child remains in-home, but to allow more than one review of an out-of-home placement would create problems with federal law requirements that the child can only be placed out-of-home for fifteen months before a plan for reunification must be implemented unless a compelling reason exists for continued out-of-home placement.

Ms. Sheen explained the provisions that would eliminate the concept of guardians ad litem and replace them with attorneys or lay advocates to represent the best interests of the child and attorneys to represent the child. She advised that the federal Child Abuse Prevention and Treatment Act (CAPTA) requires that someone be appointed for the child in a child protection case. Under proposed language in the bill, a court could appoint an attorney for the best interests of the child, or can also appoint a lay advocate who must work with the attorney. The Board of Judicial Policy and Administration would be required under the bill to develop guidelines for the use of lay advocates. Chairman Schiffer expressed concern that Board guidelines may cost a judge his discretion and may lose current lay advocates who might not meet the guidelines. Ms. Sheen said the provision may  not be well stated, but the intent was to require that, if no lay advocate is available, the attorney appointed should act in the best interests of the child and the attorney's fees would be paid by the county or the state. She stated the language had been crafted in an effort to avoid two attorneys being appointed in a specific case to represent a juvenile for different purposes.

Chairman Schiffer asked if the Public Defender's Office could provide the representation to minors. Mr. Pozsgi replied he would work with Mr. Ken Koski, State Public Defender, to determine what it might cost for the Public Defender's Office to provide representation for minors.

Chairman Schiffer suggested several options including:

·         One attorney appointed and paid by the county to represent the child's best interests;

·         One attorney provided by the Public Defender's Office to represent the child;

·         Create a new state agency to provide representation; or

·         Provide more funding to counties to provide all potential representation for the child.

Representative Landon stated another alternative was to allow for a volunteer program as drafted and if it doesn't work, look at funding a program to provide the representation.

Representative Simpson asked if "lay advocate" had been defined. Ms. Sheen indicated that it had not. She advised the Board of Judicial Policy and Administration preferred using that term rather than "court-appointed special advocate (CASA)" because the former is a broader term and not all communities have CASAs, which could also be limiting. Representative Simpson indicated he preferred the use of special advocates in W.S. 14-3-416(a).

Representative Simpson requested that the bill be amended on page 120, line 16, by deleting "not", and on line 18, by deleting "unless" and inserting "if".

When Ms. Sheen discussed the changes to the multidisciplinary team composition and functions, Representative Simpson stated the language on page 129 of the bill did not clearly state when the predisposition report is due. Ms. Sheen stated she would attempt to clarify the language. Representative Simpson asked that she also provide the language to clarify when the case plan is due. He suggested that subsection (e), on page 128, state the case plan shall be done within sixty days and subsection (m) on, page 129 should require that the predispositional report be provided two days prior to disposition.

Mr. Pozsgi stated that the Department did not present changes to the child in need of supervision (CHINS) statutes to provide for families in need of supervision (FINS), or revise the termination of parental rights statutes due to time constraints.

Ms. Sheen explained the changes in section 1 of the bill would create a new Uniform Parentage Act (UPA), which would:

·         Change the classification of paternity actions;

·         Provide that there is no presumption of paternity created when a man holds a child out as his own;

·         Change the statute of limitations for paternity actions under some circumstances;

·         Allow challenges to paternity;

·         Allow a disavowal of paternity, if accompanied by an affidavit of paternity from another man; and

·         Amend the necessity of making the child a party, although LSO is researching to determine if a child is a necessary party to a paternity action.

After a question could not be answered regarding the distinction between not providing notice to a parent in a termination of parental rights action if a child is under one year of age, and requiring notice if the child has attained one year of age, the Committee directed staff to delete W.S. 14-2-604 and 14-2-605 from the draft bill.

Mr. Joe Evans, WCCA, testified that the costs associated with the revisions to Title 14 are a major concern to the WCCA. He asked the Committee to keep the cost of the various proposals in the bill in mind when considering whether to sponsor such revisions. He reminded the Committee that the WCCA is sponsoring a two-year juvenile diversion project at the cost of $1.8 million which is only half completed. He will provide additional information at the Committee's next meeting if the Committee is interested.

Ms. Sheen proceeded to explain the UPA, as proposed in the bill, contains a provision alluding to gestational agreements, but the actual gestational agreement provisions were not included in the bill.  The Committee directed that the gestational agreement provisions be drafted as a proposed amendment to the bill for consideration at the next meeting.

Additional issues the Title 14 Committee wants to consider for presentation at some time in the future include: county funding issues for legal representation; development of initiatives to encourage community level interventions; reorganization of the Title 14 statutes after all substantive changes have been made; clarification and consolidation of confidentiality provisions in Title 14; revise CHINS provisions to include FINS; examine court processes regarding jurisdiction, screening, etc.;  and revisions to the central registry for child abuse provisions.

Senator Hanes asked if the Title 14 Committee coordinated with the Department of Health, in light of the new substance abuse control plan established by 2002 House Bill 59. Mr. Pozsgi advised that such coordination did occur, resulting in the intensive supervision program for juvenile probationers, as proposed in the bill.

Representative Simpson requested the central registry statutes be revised, using the Colorado provisions as a model. His concern was with due process issues relating to persons being placed or removed from the central registry.

Representative Landon asked why W.S. 14-2-123(c) was necessary. Director Lehman advised the provision was intended to ensure that existing law isn't superceded by the new UPA. He also asked what the effect of W.S. 14-2-610 could be. Mr. Rivera stated that it appears that an untimely registration of paternity could mean that the Department would not be required to furnish notice to the registrant in a termination of parental rights action. Ms. Lehman concurred in that opinion. Representative Landon requested that a better term than "issues" be substituted on pages 125, 158 and 182.

Representative Simpson suggested that the statute of limitations language contained in W.S. 14-2-806, on page 49, line 3, would read better if it was consistent with the existing language in W.S. 14-2-104(a)(ii)(B). He also questioned the cross-reference to W.S. 14-2-209 on page 7, line 7. Mr. Rivera stated he would verify what the correct citation should be.

With no further business before the Committee, Chairman Schiffer recessed the meeting at 5:05 p.m., Monday, July 8, 2002.

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Tuesday

July 9, 2002

2.  03LSO-0009.W3, Title 14 revisions (continued)

Chairman Schiffer reconvened the meeting at 8:05 a.m. He advised the Committee would continue consideration of 03LSO-0009.W3, Title 14 revisions.

Chairman Schiffer expressed a concern with provisions affecting the representation of juveniles. Wealthier families may be in a position to obtain better representation under the provisions as drafted because of the possibility of dual representation for the child. He believes that more extensive use of lay advocates or establishing a system to provide comparable representation to all juveniles to ensure a base of representation may resolve this concern.

Ms. Sheen discussed the provisions proposed for repeal in the bill. She explained that most provisions are being recreated in other parts of the bill. Ms. Pozsgi explained the changes and repeals affecting child care licensing would only affect wilderness programs adversely and he doesn't expect much uproar about those changes.

Representative Wasserburger questioned the penalties for failure to report suspected cases of child abuse or neglect. Ms. Sheen advised the penalties were derived from the model UPA. The Title 14 Committee believed the penalties should be specified in statute. There is no good faith exception to the reporting requirement. Ms. Sheen stated she could check other states statutes to see if it is possible to refine the language.

Chairman Schiffer suggested staff should revise W.S. 14-3-205, on page 91, to eliminate the penalty clause in such a way that the provision can still be considered by the Committee.

Representative Luthi advised that the adult protective services penalties enacted last session have only been in effect nine days, since July 1, and he has already heard many complaints about those penalties.

The Committee directed that the term "medical staff member" should be better defined on page 110.

Representative Watt suggested that the bill should have a penalty for false or malicious reporting of child abuse or neglect. Ms. Sheen advised the Title 4 Committee had considered, but was unwilling to propose such penalties.

Chairman Schiffer asked Committee members to contact Mr. Rivera directly if they want individual amendments to the bill drafted for Committee consideration at the next meeting.

Director Lehman stated the Department is willing to do the research with respect to what other states are doing in those matters of concern expressed by the Committee.

3.   Board of Parole

Mr. Ken Roberts, Chairman, Board of Parole, advised the Board has been considering separating the Board from the Department of Corrections. If the Board were to become a separate operating entity, it would need either an executive director or a full-time chairman because the workload of the Board requires a full-time administrator who has the necessary expertise to fulfill the duties of the Board. Related issues the Board is considering include costs of becoming a separate entity and how files will be shared with the Department of Corrections.

Mr. Steve Lindly, Liaison to the Board of Parole, provided a history of the program under the Board of Charities and Reform and after government reorganization in the early 1990s. Currently the program has a budget of approximately $550,000 for a biennium with a coordinator and three support staff. If the Board becomes a separate operating entity with a full-time chairman, that person would make most parole decisions to alleviate the workload of part-time board members. If the Board had an executive director, the Board would then use a hearing officer who would make recommendations, thereby allowing the Board to make easier final decisions. Mr. Lindly foresees the separate operating agency consisting of five staff positions.

In response to questions from Chairman Schiffer, Director Uphoff stated there would be no greater risk of bad decisions regarding potential parolees. 2002 House Bill 59 will help reduce recidivism because many parole failures are related to substance abuse.  If there is a downside to the suggested change, it would be the additional expense of a separate entity. The cost factor may exist anyway since the workload is going to require changes that will require additional funding. Appointees to the Board were originally promised that 12 to 13 days would be needed to fulfill their duties. In recent years, the amount of time Board members spend on Board duties has doubled.

Mr. Ken Keller, Division of Prisons, advised the Department of Corrections is considering a one-time major release of non-violent offenders. The state of Utah recently had a similar release of over 400 inmates with an 85% success rate. He cited statistics contained in Appendix D, responses by the Department of Corrections to questions posed by the Committee at its previous meeting, in support of the need for the one-time release of non-violent offenders. Director Uphoff said a limited resource prison bed is better not used for persons whose parole has been revoked solely due to substance abuse. The alternatives proposed by 2002 House Bill 59, i.e., a secure treatment facility, intensive supervision program (ISP), etc., would be better options. The ISP option may require additional staff.

4.  Site Tours

The Committee toured the North Casper Probation and Parole Office to observe a community-based supervision program that is located in the neighborhood where the probationers and parolees are located. The caseload of the officer staffing the office consists of those probationers and parolees living in the neighborhood. After hearing a description of the program and its operation, the Committee left for a tour of Community Alternatives of Casper (CAC).

After a tour of the CAC, Brain Betts, Director, provided Appendix E, describing the assessment and treatment services provided by CAC, and answered questions posed by the Committee.

Mr. Lindly advised that the Department may be proposing changes to the Community Corrections Act, including allowing the Department to contract with local boards, as well as providers, and to allow qualified inmates within 24 months of their release dates to participate in community corrections programs. Currently inmates must be within 9 months of their release date to participate. Chairman Schiffer directed staff to provide drafts of the proposed legislation prior to the next meeting and, at the request of the Committee, the Department should provide a rationale for the requested changes.

Senator Sessions asked for a cost comparison of privately operated community corrections programs and a publicly run program. Senator Hanes advised the community corrections program is required by federal law. Director Uphoff stated she would try to get the costs of the community corrections programs before the next meeting.

5.  Department of Corrections Issues

Chairman Schiffer advised the Committee to hold on to Appendix D distributed earlier in response to questions the Committee had posed at its previous meeting. The responses may form a basis for discussion at the next meeting of the Committee. He also explained the Department would next be providing a draft report of the escape by inmate Alfred Morrill. He recommended the Committee not raise personnel issues or other matters that may require going into executive session. He prefers the meeting remain open to the public.

Director Uphoff provided Appendix F, the Department of Corrections Report to the Joint Judiciary Interim Committee on the Escape of Inmate Alfred O. Morrill. She explained that the Department conducted a serious incident review, which resulted in the report she provided to the Committee. The report described the events leading up to the escape and the corrective actions taken by the Department to prevent future escape attempts. She stated that policies will have to be strictly enforced, employees will have to be better supervised and procedures periodically reviewed.  If leadership at the Penitentiary can't ensure compliance with procedures, then changes will have to be considered.

6.  Other Issues

After Committee discussion, Chairman Schiffer indicated the next Committee meeting would occur in mid-September. The Committee will consider the revised 03LSO-0009.W3, Title 14 revisions, a draft of the Uniform Trust Code and various corrections options including: how to structure the possible facility; what level of prisoners will be housed there; what types of programs will be offered; and, the physical location of the facility. He directed staff to work with the Department of Corrections to submit a request to Kim Rendelson, National Institute of Corrections, to provide a consultant to present at the next Committee meeting.

There being no further business before the Committee, Chairman Schiffer adjourned the meeting at 4:45 p.m., Tuesday, July 9, 2002.

Respectfully submitted,

Senator John Schiffer

Chairman

NOTE:  Due to the bulk of the appendices, they are not included with this summary.  Copies of the appendices are on file at the Legislative Service Office for review by interested persons.