MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 26, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 11:00 a.m., on Friday, February 26, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus*
Senator Raymond C. Shaffer
Senator Ernest E. Adler
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Maddie Fischer, Primary Secretary
Marilyn Hofmann, Committee Secretary
GUEST LEGISLATORS PRESENT:
Senator Diana Glomb
OTHERS PRESENT:
Tammy L. Tovey, Deputy Attorney General, State of Nevada, Office of the Attorney General, Human Resources Division
Wanda Scott, State of Nevada, Department of Human Resources, Division of Child and Family Services
Janine Hansen, State President, Nevada Eagle Forum
Andrea L. (Ande) Engleman, Nevada State Press Association
John H Sarb, Administrator, State of Nevada, Department of Human Resources, Division of Child and Family Services
Bobbie Gang, National Association of Social Workers, Nevada Chapter
Senator James opened the hearing on three bills pertaining to adoptions, Senate Bill (S.B.) 78, Senate Bill (S.B.) 79 and Senate Bill (S.B.) 80.
* Committee members only present for a portion of the meeting. This is noted in the body of the minutes.
SENATE BILL 78: Prohibits persons and organizations not licensed to place children for adoption from advertising certain services relating to adoption of children.
SENATE BILL 611
OF THE 66TH SESSION: Makes various changes regarding provision of services for children and families.
The sponsor of S.B. 78, Senator Diana Glomb was the first to testify.
She referred to S.B. 611 of the 66th Session, and spoke from a prepared statement, attached hereto as Exhibit C.
Senator Glomb discussed proposed amendments to the bill, a copy of which is attached as Exhibit D.
Senator Adler stated he had a problem with the bill and referred to the large number of agencies which counseled people regarding adoptions. He said he believed the language of the bill would make these agencies "criminals" if they gave such advice. Senator Adler stated he believed such agencies have the right to advertise and give counsel.
The next to testify was Tammy L. Tovey, Deputy Attorney General, State of Nevada, Office of the Attorney General, Human Resources Division. Ms. Tovey answered Senator Adler's concern by stating they were not trying to prohibit counseling but rather attempting to prohibit persons from advertising that they have children available for placement. Senator Adler referred to a situation where a physician "connects" an expectant mother with adoptive parents, but does not take a fee in any manner, and indicated he would be guilty of a misdemeanor under the legislation. The senator stated he believed a better method would be to cap any fees charged by a group or an attorney. Senator Adler said he also thought there would be a "first amendment" problem with restricted advertising. Ms. Tovey responded by indicating there was an amendment to the statute made in the last session of the legislature, which would allow an "exchange of information without money changing hands," without penalty. She said that was addressed in Nevada Revised Statutes (NRS) 127.240.
Senator James asked Ms. Tovey what the exceptions set forth in NRS 127.240.283-285 involved. Ms. Tovey indicated NRS 127.240.283 was the provision allowing the welfare division to advertise, such as references to "Wednesday's Child" and "Nevada's Kids." She said NRS 127.240.285 set forth a limitation on an attorney's participation in an adoption proceeding and controlled legal fees. Senator James asked if NRS 127.240(4) would answer the concerns of Senator Adler regarding doctors. Ms. Tovey stated she believed it would. Senator Adler indicated a doctor's examination of a child related to an adoption could place the doctor in a bad position. Ms. Tovey indicated this would have nothing to do with "bringing the parties together." Senator James referred to language regarding the "sharing of information" and said after the information was shared, the doctor could examine the baby in connection with the adoption and be paid for that service. Ms. Tovey said this was two separate issues, "...an examination to determine the baby's health...but the money [paid] was not for the purpose of bringing the parties together." Senator James pointed out the language said "...any other service related to the adoption...." Ms. Tovey stated the examination was entirely separate from the adoption itself.
Senator Titus entered the room at 11:15 a.m.
Senator Glomb suggested having the parties proposing the legislation get together with members of the committee to work out the problems with the language. She said the report of the interim study committee could be reviewed in order to fully understand the intent of the bill. She pointed out the major change in the existing statute would be to make the offense a gross misdemeanor instead of a misdemeanor. Senator James agreed with Senator Glomb's suggestion and appointed Senators Adler, Shaffer and Jacobsen a subcommittee to study S.B. 78.
The next to testify was Wanda Scott, State of Nevada, Department of Human Resources, Division of Child and Family Services. Ms. Scott provided a prepared statement, set forth herein as Exhibit E. She stated a birth mother who is cared for by a physician prior to the birth of her baby, "...may share with the physician or staff that she is interested in adoption...a member of the staff may refer the birth mother to another person who is interested in adopting." Ms. Scott said those parties then go to the division of child and family services, where it is handled "like any other adoption." She said the physician would certainly be paid for his services in terms of providing medical care, "...but certainly not for actually bringing those parties together." Ms. Scott indicated the changes made in the last session to NRS 127.240 "...takes Senator Adler's concerns into consideration." She said the reason for the introduction of S.B. 78 had to do "...with the method some of the out-of-state attorneys handle the practice of adoption within our state." Ms. Scott stated there was evidence of misrepresentation of Nevada's law regarding home studies, among other things. She added there were cases of out-of-state attorneys seeking birth parents in Nevada who might wish to place their child for adoption. Ms. Scott said these cases were not brought to the department's attention so they might begin the adoption process. She said the department has received complaints from persons who have been misled by attorneys from out of the State of Nevada. Ms. Scott added the hospital would contact the department if a birth mother wished to "hand over her baby to adoptive parents" and the department would find no home study had been done. The department would then notify the hospital that according to Interstate Compact regulations, they could not authorize them to release the baby to leave the state. She reiterated the purpose of the department was to "harness" attorneys from out of the state "...who may not take the time to learn the law."
Senator Adler said one of his problems with S.B. 78 was that it does not mention out-of-state attorneys, who actually would be practicing without a license in Nevada. He again referred to agencies in Nevada such as the Crisis Center and said, "Whenever they connect a mother with an adoptive parent, they are guilty of a misdemeanor...I don't know why we would want to do that." Senator Adler added, "The bill should be designed to get the out-of-state attorneys and not everybody else that is out there." Ms. Scott answered they received referrals from the types of organizations Senator Adler referred to and Senator Adler responded, "If you read our statute...I think every one of those referrals...every one of those volunteers in a crisis pregnancy center commits a crime on a daily basis." Ms. Tovey reiterated earlier testimony that counseling a birth mother and advertising there were babies available were two distinct, separate issues.
Senator Titus referred to the legislation which was heard in the last session in the Senate Committee on Judiciary and said any money paid for adoption services was considered to be a "broker's fee," not a medical examination or legal services. She said the receipt of such a fee for "setting a parent up with the baby...is what we don't want to allow." Senator Titus made clear the intention was to control the
"brokerage" type of situation, not to make it a crime to simply tell someone about a possible adoption situation. She added she believed that problem was entirely addressed during the last session of the legislature.
Senator James asked the appointed subcommittee to study any constitutional ramifications of S.B. 78, and see if the bill was drafted in the best way possible to address the concerns of the Department of Human Resources regarding advertising by out-of-state entities. He stated this type of advertising would fall into the area of interstate commerce and added, "Radio and television...magazines and newspapers...come from everywhere." Ms. Tovey stated the statute is intended to prohibit advertising regarding children to be placed for adoption by people who are not licensed within a child placement agency. Senator James stated he believed the state should be "more vigilant" regarding the enforcement of the present law. The chairman added, "I don't want to see us pass this law in whatever form and have a court say, 'You can't do that.' Then we have to wait 2 years to come back so we can prohibit what you are trying to prohibit." Senator James admonished the subcommittee to work on the bill with a goal to "...get something out of this that will prohibit advertising in Nevada, but is not going to be an unreasonable restriction on interstate commerce or free speech, which would make it void."
Testifying in opposition to S.B. 78 was Janine Hansen, State President of Nevada Eagle Forum. Ms. Hansen stated the organization was very much in favor of improving adoption laws in Nevada and participated in hearings of the interim committee. She said, however, "...we have serious concerns with this bill." Ms. Hansen said Nevada has one of the lowest adoption rates per thousand in the nation, with only 6.4 children being adopted for every 1,000 children either born out of wedlock or aborted. Ms. Hansen said passage of S.B. 78 could make it possible for advertising promoting adoption to become illegal. She pointed to an example of an advertisement placed in the newspaper 2 years ago by her organization, which listed licensed adoption services as well as several crisis pregnancy centers and a home for unwed mothers. Ms. Hansen stated a discussion with the director of such a home expressed concern regarding the bill, saying it would "tighten up" their opportunities to discuss or counsel regarding adoption. She continued her remarks:
This bill cannot only apply to out-of-state people. It will apply to those of us who are in the state that have tried to promote adoption. We understand the intent...to try to stop out-of-state attorneys from taking advantage... stealing the babies here and taking them there...charging a fee. We applaud that attempt. Our concern is this will not help those of us who are promoting adoption....
Ms. Hansen continued to say anything which tightens the rules so much it hinders opportunities for the mother to choose adoption, makes it more unlikely she will choose that avenue. She reiterated Nevada was already one of the most difficult states in which to effect an adoption.
Senator James asked Senator Glomb if it was correct to discourage prospective adoptive parents from looking for a child in Nevada by way of advertising. He said the language of the bill addresses that issue and would make it illegal. Senator Glomb said one of the positive events coming out of the interim committee was a "meeting of the minds" concerning many issues. She said she had worked with Ms. Hansen and they "want to make adoption easier." Senator Glomb added they wanted to encourage "routing through the correct channels." She said if someone at a home for unwed mothers was interested in offering a child for adoption, "...you don't want to prohibit [a prospective adoptive parent] from talking with and working with that young woman." The senator stated their primary concern was having that young woman go to someone who does not understand adoption laws and the importance of home visits.
Senator James asked Ms. Hansen how she might suggest amending S.B. 78 "...to accomplish the objective you agree with but avoid whatever problems you [have]...." Ms. Hansen stated she did not know how to correct the bill and added, "How do you prohibit advertising for out-of-state firms without prohibiting it in the State of Nevada?" She asked the chairman if her organization would be in trouble for placing an advertisement such as they did 2 years ago. Senator Adler said he believed they were "throwing out too broad a net," since the real problem was the attorneys. He said he believed it would be easy to control the out-of-state attorneys by defining the action as the "practice of law in the State of Nevada." Senator Adler added the social workers sent by those attorneys "to gather up babies" need to be defined as their agents, making the act illegal in the state.
Senator James stated the appointed subcommittee would consider the issues before the work session to be held in one week.
Andrea (Ande) Engleman, Nevada State Press Association, submitted a statement. She said the association was neither for nor against the bill, but they do need direction regarding the law affecting advertising. Ms. Engleman stated Nevada newspapers have rejected all advertising regarding adoption since passage of the law in 1991. She said this was done because they were uncertain whether the newspapers could be held liable "...if the wrong kind of ad ran in the newspaper. Ms. Engleman indicated many of the people hired to accept advertising, "...don't know what the laws of the state are...you can't expect them to be attorneys." She said the telephone companies solicit advertising from attorneys from out of the state for classified sections of the telephone book. Ms. Engleman stated the association filed a complaint with the welfare division, asking if it were legal for the newspapers to run advertisements for adoption. She said they were told it was illegal, but nothing was ever done to remove or prohibit advertising in telephone directories. Ms. Engleman concluded, "We would just like an equal and fair playing field...we would like to know exactly what the rules are...what advertising we can accept and what advertising we cannot...."
Senator James stated the point was well taken and pointed to the constitutional issue involved. He encouraged Ms. Engleman to have the association's legal counsel put together whatever analysis he may have and present it to the subcommittee.
There was no further testimony on S.B. 78 and the hearing was closed on the bill.
SENATE BILL 79: Eliminates requirement that adoptive parents of child with special needs have limited financial resources to receive financial assistance.
The first to testify was Senator Diana Glomb, who read from a prepared statement, set forth as Exhibit F. Senator Glomb added there was a fiscal note which had been prepared by the agency, which would add $54,000 in the year 1994 and $59,000 in the year 1995. Senator James indicated this would cover the projected additional subsidy requests for 15 children. Senator Glomb pointed out passage of the bill would save the state money.
The next to testify was Wanda Scott, State of Nevada, Department of Human Resources, Division of Child and Family Services. Ms. Scott provided the committee with a statement, set forth as Exhibit G. She stressed the importance of the legislation, because of the increase in the number of children with special needs which come into care. Ms. Scott said adoptive parents, many who are in the "middle-income" range, are concerned about being able to meet the future financial needs of the children.
Senator James asked Senator Glomb how the state would "save money" by passage of S.B. 79. Senator Glomb replied:
When we place a child in foster care, the estimated cost to the state is between $800 and $1,000 per month for the care of that child. When we place the child in a permanent adoptive home and just grant the subsidy, the subsidy is much less. The adoptive parents offset some of the cost of the care for that child. The net result is a savings to the state.
Senator James pointed out the fiscal note which indicated it would cost the state additional money.
John H. Sarb, Administrator, State of Nevada, Department of Human Resources, Division of Child and Family Services, stepped forward to address the chairman's question. Mr. Sarb stated the amounts noted in the fiscal note represent an increase in the subsidy category. He said, however, they would see a reduction well above those amounts in a different category, i.e, foster care. Mr. Sarb added, "We are hanging onto a lot of kids in foster care that we could get adopted... [they] would be far better off being adopted...." Senator James pointed out the confusion because he did not have the complete figures and asked Mr. Sarb to provide the committee with a breakdown.
Senator Titus asked Mr. Sarb if there was a "move on" to do federal legislation which would provide matching funds. Mr. Sarb answered a bill which would have provided such funds was vetoed during the last administration, but it is anticipated it will be reintroduced and passed during the present administration. He stressed S.B. 79 would have to pass in order to take advantage of any such federal funds.
Senator Adler stated a $60,000 fiscal note "...could be taken care of by one family who has medical insurance adopting a special needs child," since state Medicaid funds would not be necessary.
The next to testify was Janine Hansen, State President, Nevada Eagle Forum. Ms. Hansen stated the organization supported S.B. 79 and stressed the importance of increasing adoptions of special needs children. She also encouraged "continued exploration for more ideas to help these children get into permanent homes."
The last person to testify on the bill was Bobbie Gang, representing the National Association of Social Workers, Nevada Chapter. Ms. Gang stated the association would like to be on record in support of S.B. 79, because it will promote adoption of specials needs children.
Senator James closed the hearing on S.B. 79, and opened the hearing on Senate Bill 80 (S.B. 80).
SENATE BILL 80: Allows licensed child-placing agency to investigate home where child is to be placed for adoption.
The first to testify was Senator Diana Glomb, who provided a statement set forth as Exhibit H. She said the interim committee which reviewed child and family services concluded any licensed child placement agency should be allowed to perform the investigations required prior to a child being placed in a home. Senator Glomb pointed out the focus of S.B. 80 would be to allow the division to focus its attention on special needs children.
Senator Jacobsen asked if the state utilized a "uniform application" so child placement agencies would use the same form. Responding to his question was Wanda Scott, State of Nevada, Department of Human Resources, Division of Child and Family Services. Ms. Scott said each of the three child placement agencies, together with the division, have a formalized application process set up. She stated they were attempting to streamline the application process at this time. Ms. Scott added they were considering having the Arizona Children's Home Association evaluate the community for a possible site location in Nevada.
Senator Jacobsen asked if a "home study" looked into the background of those living in the home. Ms. Scott stated it did and added they conducted a "child neglect and abuse reporting check" to make sure the people who reside in the home do not have any previous history of abusing or neglecting children. She said they have extensive interviews, require personal references and law enforcement checks. Ms. Scott indicated those investigations are done as quickly as possible and take from 1 to 2 months.
The next to speak was John H. Sarb, Administrator, State of Nevada Department of Human Resources, Division of Child and Family Services. Mr. Sarb said the two largest factors which "drive the length of time"
are personal references, because people do not supply the requested information, and background checks from other states.
Ms. Scott asked the committee to review a statement prepared by the division, which is set forth as Exhibit I. She said the major point dealt with placement of a child in a home in violation of the home study process. Ms. Scott indicated the question was what sort of action could an agency take in that situation. She added the concern was with an increase of children being placed "without following the law as it will be written." Senator James pointed out section 4 of the bill addressed that issue. Ms. Scott referred Senator James to their testimony set out in Exhibit I and said they "need to take a look at whether or not we are looking at strict enforcement, in which case children are likely to be removed," or if there will be a provision for the division to continue operating in the manner they have before. Senator James asked Ms. Scott if she had a problem with the more detailed procedure. Ms. Scott answered they were looking at the matter of "strict enforcement," in a case where a child has been placed prior to a home study being completed. She indicated in this type of situation a child would have to be removed from the home while a home study was being completed.
Senator McGinness referred to language of the bill which said "...the court shall prohibit the placement...or order the removal of the child, if the child was so placed." He said he did not believe this language gave any latitude to the division. Senator James pointed out the district court may be petitioned if the division believes someone has violated the provision regarding a home study. He said he felt if the division did not think the district court should issue a mandatory order, then the court would not be petitioned. Senator James asked Ms. Scott, "Your question...does this mean that short of exercising that discretion...the 'may'...you can't do anything else?" He added, "If you don't exercise the discretion to go to court...you are worried, since we have affirmatively provided for that...you don't have the power to do anything short of that?"
Tammy L. Tovey, Deputy Attorney General, State of Nevada, Office of the Attorney General, Human Resources Division, came forward to answer Senator James' question. She indicated she would interpret the "may" language to provide discretion for the division. Ms. Tovey continued, "Once the petition is brought, then the court shall...." Senator James asked, "What if they decide they don't want to bring a petition...what can they do...they may believe there is a violation, but they have decided not to go to court." Ms. Tovey indicated at this time they proceed as follows:
I receive a call from one of the social workers. We have been advised there is a potential illegal placement... without a home study being done. The worker will evaluate the situation to determine whether or not they feel the child is in some sort of danger. If they don't feel the child is in danger, they will proceed as quickly as they can to evaluate the home...only if they feel there is some sort of danger will they file a petition.
Ms. Tovey stated in four years of being with the division, she has never had to petition the court to remove a child from a home in this situation. She added Ms. Scott's concern was that passage of S.B. 80 would limit the discretion to leave the child in the home and proceed with a home study. Ms. Tovey stated she believed section 4 of the bill would provide that discretion.
The next to testify on the bill was Bobbie Gang, representing the National Association of Social Workers, Nevada Chapter. Ms. Gang stated the association was in favor of S.B. 80. She said one question they had concerned the type of licensing which would be required for those persons doing investigations for licensed child placement services. Senator James asked John Sarb, Administrator, State of Nevada, Department of Human Resources, Division of Child and Family Services to respond to the question. Mr. Sarb answered the regulations required the person to be a licensed social worker with child welfare experience. Senator James asked if the regulation should be codified, and Mr. Sarb indicated those regulations were codified at this time.
There was no further testimony, and Senator James closed the hearing on S.B. 80.
Senator Titus requested committee introduction of four Bill Draft Requests (BDRs), which came out of the interim study on gaming.
BILL DRAFT REQUEST 41-321: Makes various changes relating to gaming policy committee.
BILL DRAFT REQUEST 41-322: Makes various changes regarding regulation of gaming.
BILL DRAFT REQUEST 41-324: Requires licensees who are involved in foreign gaming to conduct their activities in other jurisdictions in lawful and suitable manner.
BILL DRAFT REQUEST R-323: Urges Congress to amend Indian Gaming Regulatory Act.
SENATOR SMITH MOVED FOR COMMITTEE INTRODUCTION OF BDR 41-321, BDR 41-322, BDR 41-324, AND BDR R-323.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
* * * * *
For the record, Senator James thanked Senator Diana Glomb for her work on the three bills presented, over the three days of public hearings on adoption legislation.
There being no further business to come before the committee, the meeting was adjourned.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
February 26, 1993
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