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ARIZONA STATE SENATE |
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45TH LEGISLATURE SECOND REGULAR SESSION
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MINUTES OF COMMITTEE ONFAMILY SERVICES |
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DATE: |
March 13, 2002 |
TIME: 8:00 a.m. |
ROOM: SHR 3 |
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CHAIRMAN: |
Senator Hartley |
VICE CHAIRMAN: |
Senator Hellon |
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ANALYST: |
Barbara Guenther |
COMMITTEE SECRETARY: |
Carol Dager |
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INTERN: |
Elizabeth Baskett ASSISTANT ANALYST: Tracey Landers |
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ATTENDANCE |
BILLS |
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Committee Members |
Pr |
Ab |
Ex |
Bill Number |
Disposition |
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Senator Jarrett |
X |
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SB 1072 |
FAILED |
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Senator Lopez |
X |
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SB 1195 |
FAILED |
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Senator Petersen |
X |
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SB 1254 |
DP |
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Senator Solomon |
X |
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SB 1256 |
DPA |
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Senator Hellon, Vice Chairman |
X |
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SB 1287 |
DPA |
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Senator Hartley, Chairman |
X |
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SB 1288 |
DP |
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SB 1298 |
HELD |
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SB 1299 |
HELD |
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SB 1318 |
DPA/SE |
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SB 1388 |
FAILED |
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SB 1433 |
FAILED |
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SB 1434 |
DPA/SE |
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SB 1435 |
FAILED |
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GOVERNOR’S APPOINTMENTS |
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Name |
Position |
Recommendation |
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Chairman Hartley called the meeting to order at 8:20 a.m., and attendance was taken. Attendees Sign-In Sheet (Attachment A).
Senator Hartley announced that she would be holding SB 1298 and SB 1299.
SB 1298 – children; medication; behavioral health – HELD
SB 1299 – children's behavioral health – HELD
APPROVAL OF MINUTES
Senator Hartley moved the minutes of February 13, 2002 be approved. Without objection, the minutes were approved as distributed.
CONSIDERATION OF BILLS
SB 1072 – early emancipation of minors – FAILED
Tracey Landers, Family Services Committee Assistant Research Analyst, explained SB 1072 requires the court to inquire if it is in the best interest of a juvenile to emancipate instead of ordering out-of-home placement.
Senator Jarrett questioned what problem this bill will solve. Ms. Landers referred to a letter from a constituent who was in an abusive home and wanted out-of-home placement; however, the judge kept sending her back to the home. The constituent felt that if she could be emancipated, the problem would be solved.
Senator Smith provided some insight into the problem, noting that when he was a principal of a high school, there were 16-year-old children living on their own because of family problems. He suggested that this bill would give these children the protection that they need. Currently, it is against the law for a 16-year-old to live on their own.
Senator Hartley asked for further clarification on the bill. Barbara Guenther, Family Services Committee Research Analyst, replied that currently when a child is in the care, custody, and control of the Department of Economic Security (DES), the judge can either return the child home or put the child in an out-of-home placement. This particular bill would set up one more option, which is to emancipate. Although this bill gives the responsibilities of an adult to a child who is emancipated, it does not give them any of the legal rights that an adult has. Most states that have statutory emancipation, which Arizona does not, also indicate that the juvenile would be allowed to contract for themselves, sign agreements, sign for their own healthcare, etc. This bill does not contain any of those provisions. Most other states that have emancipation also require that the judge look at certain factors; such as, are they financially independent and self-sufficient. This bill does not contain any of those provisions, it only allows the judge a third option.
David Sands, Legislative Officer, Administrative Office of the Courts (AOC), pointed out that court opinions have indicated that if a child enters the military or is married, the child is emancipated. This bill does not fit well in the court's process. This bill would only apply to dependency cases; at the beginning of the process, the court would make an inquiry and perhaps emancipate the child. Typically, in a dependency process, the court is trying to determine if the child is being neglected. He said that he would urge some further consideration of this bill before proceeding with it.
Anna Arnold, Assistant Director, DES, testified that they oppose the bill.
Senator Hartley announced that the following individual was present in opposition to the bill: David Miller, Lobbyist, Arizona Council of Human Service Providers.
Senator Hellon moved SB 1072 be returned with a DO PASS recommendation.
The motion FAILED with a roll call vote of 0-6-0 (Attachment 1).
SB 1195 – family importance; state policy – FAILED
Elizabeth Baskett, Family Services Committee Intern, explained SB 1195 declares the State’s policy on the importance of family involvement in serving children who come into contact with the juvenile justice system, child welfare system or other state systems.
Senator Smith, sponsor of the bill, noted that the State spent a great deal of money four years ago for Deloitte & Touche to evaluate the programs for juveniles who were deferred from adult court. As a result, Deloitte & Touche made many recommendations and a committee (with five subcommittees) was formed to implement the recommendations. One of the subcommittees covered the issue of family involvement and this bill is a result of their effort. There was some opposition from the Christian Scientist group regarding the reference to "medical" on page 1, line 29, because medical refers to doctors and they believe that faith and prayer will solve the problems. He said that he does not agree that any small organization should dictate the language of the bill. He indicated that there was another problem with the bill regarding "family contact." There was some concern that the bill did not mentioned anything about domestic violence. He pointed out that Judge Scott said that it is a superfluous issue because all judges are trained in domestic violence and can identify if there is a problem.
Senator Hartley questioned why this recommendation was not presented as a resolution. Senator Smith replied that the committee wanted this in statute to emphasize the importance of the family in dealing with juveniles.
Senator Petersen said that he has some concerns. He referred to the section of the bill that talks about the child's parents, and if possible, the extended family "must" participate with the court. It does not say "may." He suggested that puts a lot of burden on the system and pointed out that there are times that family contact is a negative factor and the courts would not want family involvement in those cases. He indicated that if it is in statute that families must participate with the courts, it would create more problems than it solves. Senator Smith replied that this was discussed at great length with all the people who are dealing with juveniles. He said that he feels the people who are doing the work are the best people to provide the necessary information or make recommendations to improve the system to get the job done. He stressed that when dealing with a child, if there is no family involvement, there is no way to ensure that there will be improvement.
Senator Petersen asked if he felt that all parents were good role models for children. Senator Smith responded no. Senator Petersen suggested that some parents are bad role models and maybe it would be best not to have them in a child's life. Senator Smith replied that is true; however, that would be a decision that the judge would make. He emphasized that it is important that the parents meet with the judge, along with the juvenile, so he can assess the situation and make the appropriate decision.
Senator Smith added that when this bill was discussed, there were many people with expertise representing the juvenile detention center, courts, Governor's office, AOC, etc.
Allie Bones, Systems Advocate, Arizona Coalition Against Domestic Violence, noted her opposition with the following comments: the bill forces families to cooperate, without recognition that there can be domestic violence in the family (for example, extenuating circumstances that make cooperation among family members impossible). They have visited with Senator Smith about how to make this bill safe for families with domestic violence, which would create a barrier in families working together.
Senator Hellon moved SB 1195 be returned with a DO PASS recommendation.
The motion FAILED with a roll call vote of 3-3-0 (Attachment 2).
SB 1254 – appropriation; Navajo chapter house – DO PASS
Ms. Guenther explained SB 1254 appropriates $300,000 in FY 2002-2003 from the state general fund to DES for construction of Navajo chapter house facilities in Red Valley.
Senator Hartley wondered where Red Valley was located.
Senator Jackson, sponsor of the bill, stated that Red Valley is a small community west of Shiprock, New Mexico. He provided a letter from the Navajo Nation (Attachment B) and pointed out that this bill does request new monies. He indicated that there is another bill for the senior citizens that was approved last year with an amount of $714,000. He said that he would prefer that the senior citizen bill be the priority.
Senator Solomon pointed out that there is a trust fund, which cannot be used until 2004. She noted that there is no provision to pay back the general fund from the trust account. Ms. Guenther affirmed that statement. Senator Solomon asked if there will be money available in 2004 through the trust fund. Ms. Guenther replied that it would be up to the Navajo Nation to prioritize how they are going to use the money in their trust fund. Senator Solomon stated that the only way she would want this bill to move forward is to assure that the money from the trust would pay back the general fund in 2004.
Senator Hellon moved SB 1254 be returned with a DO PASS recommendation.
The motion CARRIED with a roll call vote of 5-1-0 (Attachment 3).
SB 1256 – appropriations; tribal senior centers – DO PASS AMENDED
Ms. Guenther explained that SB 1256 appropriates $1 million in FY 2002-2003 from the state general fund to the DES for Hopi and Navajo senior centers. She also explained the seven-line Hartley amendment dated 03/05/02 at 3:11 p.m., reducing the Navajo allocation to $300,000 and eliminating the Hopi allocation because another bill already addressed the Hopi need.
Senator Jackson, sponsor of the bill, indicated that this bill asks for restoring the money that was appropriated last year. He said that he is opposed to the amendment because it changes the amount from $714,300 to $300,000.
Senator Lopez mentioned that over the years, the Legislature has provided funds for senior centers and questioned the status of the construction projects. Tincer Nez, Jr., Administrative Services Officer, Navajo Nation, replied that there were two appropriations made to the Navajo Nation in SB 1317 and HB 2485. All of those funds have gone through the processes and they currently have plans to begin construction on the initial nine projects that were approved.
Mr. Nez noted that he opposes the amendment to strike the $714,300 to $300,000 for Navajo Nation senior centers, but is aware of the State's financial situation and would be thankful with whatever can be done. He indicated that they plan to complete these projects in the next year or year and one-half. He said that there are seven new communities planned for the present bill, explaining that some of those projects have current matching funds available. The Navajo Nation has already appropriated $2 million in the FY 2002 budget.
Mr. Nez pointed out that some of these rural communities are the most isolated in Arizona, they are undeveloped and lack infrastructure. One of their goals is to provide services for seniors to keep them in the community. To do so, saves the State money by not sending the seniors to long-term care facilities.
Frank C. Yazzie, Senior Center Supervisor, Navajo Nation Senior Centers, testified that he opposes the amendment because it would severely cut the tribe's plans to fund construction of senior centers originally planned for round two of State funding. He said that his community has 165 elders to whom they provide numerous services.
Nora Tallman, Senior Center Supervisor, Navajo Nation Senior Centers, provided information regarding a community with a population of 2,000. Of those, 350 are seniors currently not receiving any type of services. The community is very small, in a remote area, and the only services available are a small clinic, a boarding school, and a chapter house which is a local government entity. Some of these seniors are exposed to physical and emotional abuse, neglected by their children. She stressed that this community is in desperate need of funds.
Senator Hellon moved SB 1256 be returned with a DO PASS recommendation.
Senator Hellon moved the Hartley seven-line amendment dated 03/05/02,
3:11 p.m. be ADOPTED (Attachment C). The motion CARRIED by voice vote.
Senator Hellon moved SB 1256 be returned with an AS AMENDED, DO PASS recommendation. The motion CARRIED with a roll call vote of 5-1-0 (Attachment 4).
SB 1287 – adoption – DO PASS AMENDED
Ms. Guenther explained SB 1287 codifies the notice to a potential father of a planned adoption, requires completion of a paternity action if consent to adopt is withheld and deems sexual intercourse as notice of pregnancy. She also described the four-page Hellon amendment dated 02/20/02 at 12:05 p.m. that makes language consistent throughout the bill.
Michael Herrod, representing himself, testified that the primary purpose of the bill is to clarify statutes and practice.
Heidi LaPointe, Director, Arizona Family Adoption Services, noted that this bill clarifies the original intent of the law.
Senator Hellon moved SB 1287 be returned with a DO PASS recommendation.
Senator Hellon moved SB 1287 be returned with an AS AMENDED, DO PASS recommendation. The motion CARRIED with a roll call vote of 4-2-0 (Attachment 5).
SB 1288 – adoption; confidential intermediaries – DO PASS
Ms. Guenther explained SB 1288 allows a confidential intermediary to contact a person who is at least 18 years of age if the adoption was completed before April 1, 1993. Before that time, all adoption records were sealed, without exception.
Teri Day, Birthparent, representing herself, distributed a letter (Attachment E) and discussed the content of the letter regarding the adoption of her daughter in 1982.
Lou Bacchi, Case Coordinator, City Prosecutor's Office, pointed out that he is Ms. Day's boyfriend and explained that he helped with the search for her daughter. He mentioned that she and her daughter have been reunited, even though it was technically against the law. In the process of the searching, it appeared that an adoption is a contract. Under a contract, three things are required, offer, consideration, and acceptance. To change the law appears to change that contract. Technically the change would void the contract. Under current situations, there may be adoptive children who enlist in the Army, fight for their country, and die and never know who their birthparents are. The birthparents would not be able to search for their children until the child turns 21 and at that time they may find out that the child had died. He urged the committee to pass the bill.
Senator Hellon moved SB 1288 be returned with a DO PASS recommendation.
The motion CARRIED with a roll call vote of 6-0-0 (Attachment 6).
SB 1318 – appropriations; health programs – DO PASS AMENDED/STRIKE EVERYTHING
Ms. Guenther explained SB 1318 appropriates approximately $8.7 million in each of FY 2001-2002 and FY 2002-2003 from three funds for three health-related programs administered by either the Department of Health Services (DHS) or the DES. She also explained the 15-line Hartley strike-everything amendment dated 02/19/02 at 1:30 p.m., which makes the appropriation conditional upon receipt of adequate monies and changes the fund source.
Peggy Stemmler, Physician, Arizona Chapter of American Academy of Pediatrics, noted that they support these important and evidence-based programs to improve children's health and well being.
Donald Vance, Lobbyist, American Association of Retired Persons, (AARP), noted that they support the bill with reservations and will try to confer with sponsor.
Senator Hartley announced the following individuals were present in support of the bill: David Miller, Lobbyist, Arizona Council of Human Service Providers; and Suzanne Schunk, Director, Family Support Services.
Senator Hellon moved SB 1318 be returned with a DO PASS recommendation.
Senator Hellon moved SB 1318 be returned with an AS AMENDED, DO PASS recommendation. The motion CARRIED with a roll call vote of 6-0-0 (Attachment 7).
SB 1388 – child visitation; violation; citation – FAILED
Ms. Baskett explained SB 1388 allows a peace officer to issue a citation to a person who fails to comply with a visitation or parenting time order and sets monetary penalties. She also explained the 22-line Petersen amendment dated 03/05/02 at 3:03 p.m. replaced financial penalties with a referral to conciliation services.
Senator Hartley announced that David Sands, Legislative Officer, AOC, was present in opposition to the bill.
Senator Peterson stated that for a number of years he served as chairman of the Child Support Coordinating Council, Domestic Relations Reform Study Subcommittee, and Family Services Committee. He said that in many divorce cases with visitation rights, children are used as pawns. He noted that citations are given for speeding; however, in areas that are more sensitive, such as not returning a child on time from their visitation, the police officer can only file a report. The onus is then on the nonoffending parent to bring an action in court against the offending parent. Many officers have noted that it is frustrating to only be able to fill out a report. He suggested that he got this idea from a member of the conciliation court, who noted that Texas is already doing this. This bill would make the abuse of the visitation schedule a little more serious that just a police report being filed.
Senator Hellon moved SB 1388 be returned with a DO PASS recommendation.
Senator Hellon moved SB 1388 be returned with an AS AMENDED, DO PASS recommendation. The motion FAILED with a roll call vote of 2-4-0 (Attachment 8).
SB 1433 – parental alienation syndrome; custody; prohibition – FAILED
Ms. Guenther explained SB 1433 prohibits the court, when determining custody, from allowing testimony regarding parental alienation syndrome (PAS) unless that syndrome is recognized by the American Medical Association (AMA) or the American Psychiatric Association (APA) as a valid medical or psychiatric condition.
Lisa Kaiser, President, National Voices for Rights of Children, pointed out that judges are making rulings on a term or condition that is not recognized in law or by the medical profession. PAS was developed by Dr. Richard Gardner. She read the National Judicial curriculum: "PAS refers to a process employed by one parent to cause disaffection, estrangement, and falling out between the other parent and child. The primary proponent of this syndrome has described it generally as a product of one parent, usually the mother, encouraging the child to falsely accuse the other parent, usually the father, of sexual abuse. Courts have seriously questioned the existence and usefulness of this syndrome. The problem is the term has become a new trend in the court system whenever there is a custody dispute. "
Ms. Kaiser noted that when there are cases of legitimate child abuse, sexual abuse, or domestic violence, by allowing this syndrome to be the deciding factor of custody of parents, it is not only a very dangerous thing to do, it often puts the children in more harm's way. She explained that the courts should exercise extreme caution when presented with allegations of PAS by a domestic violence perpetrator. This may be a batterer's attempt to continue power and control over the battered party. Children might align with the battered parent for many legitimate reasons. The children may feel ambivalent about their battering parent, fearful for their own safety, worried about the mother's survival, embarrassed by the batterer's behavior, or angry that they had to leave home, sad or depressed at the lost hope of an ideal family. For these reasons, conduct that the perpetrator might characterize as parental alienation syndrome is more likely a child's reasonable expression of fear or anger. There are many reasons why children might show their fear or hesitation for being with one parent over another. There are cases where parents falsely accuse each other; however, that should not allow the court to automatically stamp each case where there is a dispute where alienation is involved.
Diana March, Attorney, representing herself, testified that she has been practicing law for nine years and has handled tremendous amounts of cases with sexual abuse allegations, as well as domestic violence cases. Before going into the law profession, she worked with abused children, aged 2 to 6, in California. After becoming frustrated with doing behavioral modifications with these small emotionally, and sometimes physically, crippled children, she decided to try to make a difference in the legal profession. She since has discovered that the law is not better. She explained that there are judges that come to family court through a rotation process. The courts are trying to work on a unified family court and have judges that are truly able to handle these issues.
Senator Hartley questioned that if something is listed as a syndrome, it is duly noted as not being validated; however, when the condition shifts from a syndrome to a disorder, it is then recognized by the courts. Ms. March replied yes.
Senator Solomon asked if there are any other syndromes where the Legislature determines what can or cannot be brought before the courts. Ms. March responded that she is not aware of any. She noted that there are guidelines in Arizona Revised Statutes (ARS) §25-403 and Arizona Revised Statutes (ARS) §25-408. She said that the responsible evaluators formulate their reports with those guidelines in mind. At some point, it would be a good idea to have some statutory framework specifically geared toward sex abuse cases in those evaluations.
Ms. March explained that this is the only syndrome that she is aware of that does not have any kind of peer review or statistical support. Senator Solomon suggested that a good attorney would bring out those facts in testimony.
Ms. March noted that this theory, developed by a psychologist without peer review, is not reliable for the purpose that it has been utilized in court settings. This would not pass the Frye or Daubert tests, and yet, is being "touted" by attorneys and used as a sword and shield in the most difficult cases that judges face. This causes the investigative process to come to a screeching halt, at the cost of children's safety, and emotional, mental and physical well being. This "theory" has undermined the entire process that should be geared toward protecting the best interests of children.
Senator Hartley announced that the following individuals were present in support of the bill: Shawn Cox, Director, Justice for Children; and Allie Bones, Systems Advocate, Arizona Coalition Against Domestic Violence.
Senator Hamilton, sponsor of the bill, commented that he has had many complaints about the use of PAS. He pointed out that Dr. Gardner has other theories that are bizarre and feels that he is not credible. He noted that decisions that are made based solely on PAS often are punitive to one of the parents.
Senator Hartley said that she agrees; however, she has a major problem with prohibiting the courts from hearing testimony about one specific syndrome. Senator Hamilton indicated that this practice is questionable and that is why they brought forth this bill.
Diane Young, representing herself, testified that she has been an advocate for victims of violence for eight years. She urged the Committee to focus on what is happening to the children and not what is happening to the parents. In child custody cases, if a parent dares to allege child sexual abuse, despite abundant evidence, that parent stands the real risk of losing custody to the person who is committing that abuse. Far worse, the child may be condemned to a life of unspeakable abuse, knowing that there is no help for them. She emphasized that Richard Gardner, the architect of PAS: 1) suggests that the protective parent fabricates abuse in an attempt to alienate the other parent and gain leverage in custody; 2) encourages therapists to threaten and manipulate the course of treatment; 3) suggests threatening the child with jail for the protective parent and even for the child; and 4) encourages the judge to impose sanctions, fines, transfer of custody, and jail.
Ms. Young explained that PAS cases began appearing in court after child support laws changed in the early 1990s. Fathers and their lawyers went aggressively for custody after the laws were changed to be based on how much time a parent had with the child. If a parent had sole custody, no support was paid. PAS was discovered as a great tool to get custody away from women, especially those who were claiming sex abuse. PAS is also being used in cases that do not involve molestation or abuse allegations. Instead it is being used when custodial parents want to move away with a new spouse or take a new job.
Ms. Young stated that Dr. Gardner has written that children are naturally sexual and may initiate sexual encounters by seducing an adult. She noted that Dr. Gardner claims that incest is widespread and is probably an ancient tradition.
Ms. Young stressed that if the courts continue this practice, more children will be abused. She said that it is important to wake up to this pitiless double abuse of children and their protective parents. Blaming the crime on the victim desecrates the most fundamental precepts of justice.
Senator Hellon moved SB 1433 be returned with a DO PASS recommendation.
The motion FAILED with a roll call vote of 2-3-1 (Attachment 9).
SB 1434 – CPS; foster care; compensation – DO PASS AMENDED/STRIKE EVERYTHING
Ms. Guenther explained SB 1434 requires the juvenile court, when ordering one or both parents of a child placed in foster care to pay child support to DES, to use child support factors pursuant to marital relations statutes. It also establishes a foster care support fund (fund) and allocates reimbursement priorities. She also explained two amendments: 1) the Petersen, four-page, strike-everything amendment dated 03/08/02 at 12:23 p.m.; and 2) the Petersen six-line amendment dated 03/12/02 at 4:17 p.m., which corrects drafting errors.
Senator Petersen wondered that in these situations where there is a foster care child, how many would be able to pay child support. He stated that he knows that the child support rate of enforcement and effectiveness has improved substantially. He asked what percentage the State is collecting.
Anna Arnold, Assistant Director, DES, replied that she does not have that information with her. She noted that there is a parental assessment law, and the money collected last year was approximately $153,000; however, she does not know how many people contributed to that. In addition, the federal government requires the State to collect funds for children under the Aid for Families with Dependent Children (AFDC) guidelines. In those circumstances, Child Support Enforcement must pursue the orders and collect the funds. A percentage of those funds go to the federal government for their share and the remainder is retained by the State. The amount collected last year under those circumstances was approximately $100,000.
Senator Petersen indicated that the State is trying to improve the overall child support enforcement. He said that he thinks the percentage is up to 20%. At one time, Arizona was one of the worse states in the nation in collecting child support. While this bill sounds good in holding people accountable, the State does not have a good record of collecting child support. The collection costs far outweigh the support collected.
Ms. Guenther responded that for the parental assessment funds for FY 2000, there were 244 new assessments that year. She stated that she felt the child support was a little higher. She noted that there will be some significant collaboration needed between the two divisions. Last year, a law was passed that extended child support enforcement tools to parent assessments and child support orders through dependencies. It will take a considerable amount of coordination between the two divisions.
Senator Hellon moved SB 1434 be returned with a DO PASS recommendation.
Senator Hellon moved the Petersen six-line amendment dated 03/12/02, 4:17 p.m.
be ADOPTED (Attachment I). The motion CARRIED by voice vote.
Senator Hellon moved SB 1434 be returned with an AS AMENDED, DO PASS recommendation. The motion CARRIED with a roll call vote of 4-1-1 (Attachment 10).
SB 1435 – court appointed evaluators; limited immunity – FAILED
Ms. Landers explained SB 1435 provides limited immunity for court-appointed child custody evaluators.
Ron Johnson, Director of Government Relations, State Bar of Arizona, testified that they oppose the bill. In principle, they agree with many of the concerns that the bill tries to articulate, but they do have problems with the bill. He said that the primary concern is that this bill will be a substantial deterrent for anyone wanting to serve as a court-appointed child custody evaluator. What it does is substantially expose the evaluators to liability. Although the bill does say that it provides them qualified immunity, presently they already have absolute immunity as an arm of the court. He pointed out that immunity from liability refers to civil liability. These people are not exempt from criminal liability. Evaluators have their own licensing board that regulate them and if there are complaints about what they are doing, the board is the appropriate forum to deal with those. He emphasized that this bill would create substantial problems in getting anyone to serve as a child custody evaluator because the door would be wide open for lawsuits.
Allie Bones, Systems Advocate, Arizona Coalition Against Domestic Violence, stated that they support this bill to ensure accountability of the evaluators who make crucial decisions. Some of the people who will testify today will say that the evaluators make recommendations; however, she said that she knows for a fact that they are making decisions. Their recommendations are taken by the judges and are not researched. She explained that she has had meetings with evaluators who have readily admitted that they do not have training on many of the issues. She said that she understands that Child Protective Services (CPS) has concerns about this bill as well.
David Sands, AOC, pointed out that Ron Johnson indicated what the effect will be on the Administration of Justice. Although the bill is phrased broadly, it really is designed to address custody evaluators. He noted that these evaluators are licensed professionals that are placed on a list by the court to be selected and give independent evaluations to guide the court's decision in custody matters. Contrary to what others have said, he said that he would like to think that the courts are not simply rubber stamps for these people's decisions. The evaluators do offer reports to the court and the court considers those along with all other custody factors. The evaluators do not make the decisions. It is important to note that evaluators are most often appointed in the high conflict cases, where the parents cannot agree on how to raise the children. In those situations, no matter what decision is made, one party is going to find the decision unwelcomed.
Mr. Sands suggested that the statute purports to grant immunity with some exceptions, but in fact it does not do that, because evaluators in this category already have immunity through court decisions. This bill conflicts directly with that decision. What this bill accomplishes is to provide a roadmap for dissatisfied parents to bring lawsuits, alleging one of the exceptions under this bill. Will the suit be successful? It does not matter because the intent and effect will be to drag a person into court and discourage them from offering further testimony.
Mr. Sands read from a court case: "Without immunity, these professionals risk exposure to lawsuits whenever they perform quasi judicial duties. Exposure to liability could deter their acceptance of court appointments or color their recommendations. Threat of liability can undermine objectivity and independence. Immunity removes the possibility that a professional who has delegated judicial duties to aid the court will become a lightning rod for harassing litigation." That is the concern that the Court of Appeals expressed when they decided that immunity was appropriate. He said that the concern they have is that without that sort of immunity, they will not have the benefit of these people and will have to go back to the old system of deciding between two paid experts.
Senator Petersen asked if he would agree that there is a significant problem in the way the court evaluators do not have any oversight in the way they go about their business. Or does he think that the courts have set up good measurements of accountability on how court-appointed evaluators go about their business. Mr. Sands said that his belief is that by selecting these professionals and placing them on a select list, the court has made a prior determination that there is some degree of reliability on the part of these people. It is important to note that this is only one element of the testimony that the court will take into consideration. These experts can be examined by either party's attorney or by the parents. If there are some discrepancies or problems with the way the evaluation has been conducted, that will be exposed in the course of the hearing.
Senator Petersen indicated that the judges often do not have any rules of how they check on the reliability of the court-appointed evaluators. He said that he knows for a fact that some evaluators never even talk to all the parties. He stressed that this bill talks about when evidence has been fabricated or altered. He inquired as to what would happen if a judge found out that evidence had been fabricated or altered. Mr. Sands replied that it could be criminal; at a minimum it would be contemptuous. He noted that it is not usual for the court to forward complaints to the boards.
Senator Petersen asked if any judge has ever dismissed a court-appointed evaluator because they did not do a proper job. Mr. Sands answered that he did not know.
Larry Lee, representing himself, explained that his exwife asked for a court-appointed evaluator in their custody case. He noted that he has been a baseball, basketball, and soccer coach, does not have any criminal history, never received a speeding ticket, never tried drugs, and has never been drunk. In this case, there was a court-appointed evaluator whom he did not know nor did he provide any input to the evaluator. His wife did know the evaluator. This evaluator was the most expensive evaluator in the State; $250 an hour in 1995. Mr. Lee pointed out that at the time he was making $7.50 an hour. He motioned the court for another evaluator; the court denied it. He asked the court to have the fee for the evaluator allocated proportionally to his wife's income as well as his (she made 85% of the income); the court denied it. He asked the court to have his wife pay the evaluator's bill; the court denied it. The evaluator requested a $3,000 retainer. He did not have $1,500 and the court motioned that he deed his equity of the home to his wife. The evaluation asked for sole custody, which was his wife's request. He quoted what the judge said: "This father has been in this child's life from the beginning. I do not see sole custody in this case. I want you to see how this can be joint custody." He stated that he was very relieved. He said that his mother's prayer chain was praying, as he was. He did not care if he lost his house or car, but he did not want to lose his son. He said to this day, he would rather be with his son. He stressed that it is unfortunate that he only has his son every other weekend and twice during the week for two hours and he is paying child support. Mr. Lee emphasized that there needs to be accountability with court-appointed evaluators.
Senator Petersen suggested that because of the concerns Mr. Lee brought up five years ago, some changes have been made because of Senator Hamilton and Judge Armstrong. They have worked on the idea of rotating the evaluators.
Mr. Lee pointed out that he has asked for the evaluator's records on him, videotapes, etc., which he is entitled to; however, the evaluator has refused to provide them to him. The divorce has been final for five years. He said that he would like to review the information to understand how the evaluator determined that the mother should have sole custody.
Anna Arnold, Assistant Director, DES, indicated that she is concerned about how the bill is drafted and the implications on CPS. It appears that it might result in CPS playing a larger role in the domestic relations court in relation to custody evaluations. Currently, there is an old statute that is being changed that does allow the court to order an investigation concerning custodial arrangements for children in contested custody proceedings and other proceedings at the request of the parent or the child's custodian. She mentioned that occasionally they get those requests from the court. There is another statute that restricts the court from ordering CPS from doing an investigation unless the child may be a victim of child abuse or neglect.
Ms. Arnold noted that this bill would require CPS to do reports, attend domestic relations hearings, testify, etc.; however, there is no appropriation for additional duties assumed by CPS. If the private evaluators were discouraged from being available to the court, she said that she thinks that would result in more referrals made to CPS.
Shawn Cox, Director, Justice for Children, noted that they are in favor of this bill because it provides for some accountability for those providers that determine custody of children.
Janice Goldstein, Arizona Trial Lawyers Association, testified that they oppose the bill and are concerned about the language.
Lisa Kaiser, President, National Voices for Rights of Children, noted that they support the bill because it holds evaluators to some degree of accountability in the determination of child safety and custody and helps to insure an unbiased report.
Senator Hartley announced that L. Davis, representing self, was present in opposition to the bill.
Senator Hartley announced that Diane Young, representing herself, was present in support of the bill.
Senator Hellon moved SB 1435 be returned with a DO PASS recommendation.
The motion FAILED with a roll call vote of 1-4-1 (Attachment 11).
There being no further business, the meeting was adjourned at 10:59 a.m.
Respectfully submitted,
Carol Dager
Committee Secretary
(Tapes and attachments on file in the Secretary of the Senate’s Office/Resource Center, Room 115.)
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Committee on Family Services
14 March 13, 2002
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