MINUTES OF THE
SENATE Committee on Human Resources and Facilities
Seventy-second Session
April 30, 2003
The Senate Committee on Human Resources and Facilities was called to order by Chairman Raymond D. Rawson, at 1:47 p.m., on Wednesday, April 30, 2003, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4401, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Raymond D. Rawson, Chairman
Senator Barbara K. Cegavske, Vice Chairman
Senator Maurice E. Washington
Senator Dennis Nolan
Senator Joseph Neal
Senator Bernice Mathews
Senator Valerie Wiener
GUEST LEGISLATORS PRESENT:
Assemblyman David E. Goldwater, Assembly District No. 10
Assemblywoman Barbara E. Buckley, Assembly District No. 8
STAFF MEMBERS PRESENT:
H. Pepper Sturm, Committee Policy Analyst
Patricia Vardakis, Committee Secretary
OTHERS PRESENT:
Gary Vause
The Honorable Gerald W. Hardcastle, Family Division, Eighth Judicial District
Randall L. Todd, Dr.P.H., State Epidemiologist, Health Division, Department of Human Resources
Michael J. Capello, Lobbyist, Washoe County
The Honorable Deborah Schumacher, Family Division, Second Judicial District
Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Services
Karen R. Dickerson, Deputy Attorney General, Office of the Attorney General
Robert O. Sack, Lobbyist, Washoe County District Health Department
Sean Gamble, Lobbyist, Clark County Health District
Lisa Fitzgerald
Chairman Rawson:
I will open the hearing on Assembly Bill (A.B.) 497.
ASSEMBLY BILL 497 (1st Reprint): Exempts licensed child care facility from certain regulations applicable to food establishment. (BDR 40-1199)
Assemblyman David E. Goldwater, Assembly District No. 10:
A constituent who owned a child care facility explained to me the Clark County Health District was requiring his facility to have a full commercial kitchen to cut apples or serve sandwiches. Upon my investigation I discovered this was the Clark County Health District’s interpretation of the statute. Child care facilities should be able to cut apples, boil Easter eggs, and make peanut butter and jelly sandwiches without having to have the same commercial kitchen requirements as The Mirage Hotel and Casino dining room.
The bill is in first reprint because the Clark County Health District wanted to oversee when there was a public health issue in a day care center. Day care centers will have a lesser standard, but will have some oversight from the Clark County Health Authority and the Clark County Health District.
Senator Washington:
A few sessions ago this issue was discussed and the Clark County Health District wanted to oversee food services. Child care centers became involved in the legislation. I thought child care centers were regulated by the county. They are licensed per square foot for a certain number of children. Why does the Clark County Health District need to oversee these centers?
Assemblyman Goldwater:
I asked the same question. Child care facilities are licensed by the State and in some cases by the county. The legislation opened a health regulation that was more broad and onerous than anticipated by the Legislature. We need to lessen their ability. If there are food service functions in the child care facility, where is a health care issue? The health district should have some oversight. Market forces would govern food service in child care facilities.
Chairman Rawson:
Does A.B. 497 in its present form accomplish your purpose?
Assemblyman Goldwater:
If the bill is interpreted correctly, then the answer is yes. The health district’s testimony on record which states, child care facilities will no longer need to meet the requirements of a commercial kitchen, but the health district will retain oversight if there are health problems.
Chairman Rawson:
Food preparation is an important issue. If food were not prepared properly children would be at risk. We certainly want to protect them. My concern is will the bill accomplish its purpose?
Assemblyman Goldwater:
If all goes according to what is projected, it will protect the children.
Senator Neal:
The Head Start program prepares food for children. The program is State and federally regulated. The facilities must have a complete kitchen. Would the bill affect the requirements of the Head Start program? I would like to investigate this concern.
Assemblyman Goldwater:
I do not believe the Head Start program wants to do away with the food preparation protocol nor will this bill take away that right. This bill was intended for the child care facility where cutting an apple will not require them to have a full commercial kitchen.
Chairman Rawson:
I do not see anything in the bill that will be more restrictive for Head Start.
Senator Neal:
We would not want any regulations to be less than what already is in practice.
Chairman Rawson:
There are good restrictions in A.B. 497. It is for limited menus.
Assemblyman Goldwater:
Section 3, line 15 describes the limited menu.
Chairman Rawson:
A container of milk properly processed could be given to a child without a commercial kitchen. This could not be done without the bill.
Gary Vause:
I own and operate child care facilities, private kindergartens, before-and-after school programs, infant/toddler programs, summer camps, and a whole range of other child care services and programs in Clark County. Last August, the Clark County Health District adopted regulations concerning child care facilities. Prior, they had temporary guidelines but wanted to make them permanent. In doing so they claimed they were prohibited from treating child care facilities as anything other than a commercial facility because of Nevada Revised Statutes (NRS). They were specifically referring to chapter 446 of NRS. I wondered why child care facilities needed to follow those provisions. We could not continue our practice concerning menus, which consists of canned goods and previously cooked foods. We use regular ovens and ranges. Safe food handling techniques are used thereby avoiding food-caused illnesses. I questioned the intent of the Legislature. I asked the health department to wait until the Legislature could provide their intent, but their answer was no. The regulations were adopted.
The regulations are cost prohibitive. To retrofit a facility and change over to a commercial kitchen is costly. The money could be put to better use for the children, or improve staff wages. I have reviewed the language of the bill. It will enable child care facilities to continue our practices.
Senator Nolan:
Do the people preparing food at your facilities have a health card or formal training in food service?
Mr. Vause:
They do have a health card and have attended a health department film on food handling. They are required to have a tuberculosis test. Their health card expires every 3 years whereas the public school health card expires every 6 or 10 years.
Chairman Rawson:
We will hear testimony on A.B. 132.
ASSEMBLY BILL 132 (1st Reprint): Provides that certain proceedings concerning abuse or neglect of children are presumptively open to public. (BDR 38‑689)
Assemblywoman Barbara E. Buckley, Assembly District No. 8:
Assembly Bill 132 was one of the recommendations made by the Legislative Committee on Children, Youth and Family. This is a new idea for Nevada. The bill considers opening some of our child welfare hearings to the public. Previously, this has happened with our juvenile delinquency hearings. It may be disconcerting to some individuals. Judge Hardcastle, Family Division, Eighth Judicial District, presented this idea to the interim committee and convinced us to proceed with the bill. There are a number of jurisdictions that have decided this is the proper procedure. The National Council of Juvenile and Family Court Judges have stated:
Traditional notions of secrecy and confidentiality should be reexamined and relaxed to promote public confidence in the court’s work. The public has the right to know how courts deal with children and families. The court should be open to the media, interested professionals, students, and when appropriate the public in order to hold itself accountable, educate others, and encourage greater community participation.
An estimated 17 to 25 states had opened this type of hearing to the public. In most of these hearings it can be determined early in the proceedings whether or not the parent had neglected or abused the child. After the initial hearing, when the child was removed from the home, all subsequent hearings were about what happened to the child. The abuse and neglect was no longer debated. Most of the hearings, and secrecy behind them, camouflage the weakness in our system such as, under funding of our system, caseworkers overload, and the separation of siblings. The things being protected are not in the interest of the children; it is the failings of our system. This was the reason the committee proposed this bill for the Legislature’s consideration.
In the Assembly, the bill was modified to allay some of the concerns of people who feel this is a new concept. The compromise and change in Assembly Bill 497 are as follows: (1) It provides for a protective custody hearing, which is 72 hours after the child was taken into custody and the adjudicatory hearings presumptively closed. (2) If the court finds by a preponderance of the evidence that the child was in need of protection, they may have proceeded immediately to make a proper disposition. If they proceeded immediately the hearing was presumptively closed. (3) If the court makes the finding the child was in need of protection, but chooses to hold the dispositional hearing later, the hearing was presumptively open; and, (4) All subsequent hearings are presumptively open.
When the information maybe more sensitive and the ruling has not been made then we are in favor of closing the hearings. This was the compromise given in the Assembly to lessen people’s concerns. If this measure is passed, we can examine the efforts over the next biennium.
Chairman Rawson:
Once the adjudicatory hearing is held, what will the child be subjected to in subsequent hearings?
Assemblywoman Buckley:
The children are rarely in attendance. Attorneys for children try to get them into court to no avail. We had Allison Combs, Principal Research Analyst, conduct a survey of all the judges to determine how often children attended the early hearings. There was not one judge who could identify any case where the child was in court to determine whether or not abuse or neglect had occurred. They relied mostly on the police and the protective worker who examined if abuse or neglect occurred.
The Honorable Gerald W. Hardcastle, Family Division, Eighth Judicial District:
The initial hearing is called a probable cause hearing and held within 72 hours after the child is bought into protective custody. The child never attends those hearings. The hearing is done on the record and the determination is whether or not there is eminent danger to the child, and good reason to remove the child from the home. The children may testify, and the hearing would be presumptively closed under this statute. There are children who would testify, probably infrequently, about what has happened to them on some occasions. I like to have any child 10 years of age or older at the review and dispositional hearings. About 50 percent of the time children do attend, but if there are sensitive matters to discuss the children may be asked to leave, or I could clear the courtroom and just speak to the children. There are many remedies available to accommodate the children.
Assemblywoman Buckley:
The judge still has the discretion to close a hearing that is presumptively open. In addition to removing a child from the hearing, the judge could determine to exercise their discretion. The standard is on page 2, starting with lines 21 and 22, because it is not in the best interest of the child. There are certain protections in the bill.
Chairman Rawson:
Are television cameras included in an open hearing?
Judge Hardcastle:
When the press is allowed access to any hearing you try to accommodate them. There has been an occasion where reporters were permitted in the courtroom, but no cameras were allowed. Judges will impose reasonable restrictions on who is permitted in the courtroom. If a child is going to testify, a judge would not allow a camera in the courtroom.
Senator Washington:
Do I understand the language in section 1, lines 6 through 8, to mean the hearing is closed until the judge makes the determination to open it at a certain point in the hearing?
Judge Hardcastle:
There are different presumptions throughout the proceedings. The protective custody hearings remain closed. The adjudicatory hearings are presumptively closed unless the judge makes certain findings.
Senator Washington:
What are those findings?
Judge Hardcastle:
The findings would need to be in the best interest of the child, the subject of the proceeding under this statute. If the finding is made, the judge can open the trial part of the hearing. The review hearings are presumptively open; however, the court can close the hearing.
Senator Washington:
Would the definition of “best interest of the child” come under the determination of the judge?
Judge Hardcastle:
Yes.
Senator Washington:
Is there any criterion used to determine whether it is in the best interest of the child?
Judge Hardcastle:
The bill speaks to taking into account the desires of the child. A judge would look at anything that would impact the child. Such considerations as age, nature of the charges, and virtually anything having a bearing on the child.
Senator Washington:
Does the judge need to give a written decision as to his determination?
Judge Hardcastle:
The judge must state specific findings, which means they will be a part of the record. I believe open government is best. The citizens can be trusted with information. The public can tell the “good guys” from the “bad guys.” If we can trust agencies, attorneys, judges, and court staff with information, then we can trust the citizens with the information of the happenings in child welfare. We need to give protection to the children. We have reached a compromise about closing parts of the hearings. There are those persons who propose closing certain types of hearings. In the final analysis, you can try to define each circumstance in which to close a hearing. It is better to empower the judge to make that determination, which is what the bill accomplishes. We can trust the judgment of juvenile court judges to make the right decisions.
Assembly Bill 132 is a compromise. My feelings prior to the compromise was that all hearings should be open and allow the judge to determine if a hearing should be closed. I, as well as others have accepted the compromise bill. It is good policy for our State which ranks last in every category pertaining to children. By passing A.B. 132 we will start to do better for our children. I urge the committee to accept and pass the bill as written.
Senator Nolan:
Is it probable in highly emotional cases, which could be made public, could that determine the participant’s behavior in court?
Judge Hardcastle:
These cases are open to the public but the proceedings could be closed.
Senator Nolan:
I am referring to the child-custody cases. Are they open to the public?
Judge Hardcastle:
Yes.
Chairman Rawson:
In juvenile cases where the verdicts are sealed, are those trials open to the public?
Judge Hardcastle:
The delinquency hearings are opened to the public. People feel juvenile delinquencies are a plague on society. They should be opened, but the hearings involve children. We are inconsistent in our thinking.
Senator Cegavske:
I assume the procedures in the past were to protect the children. What has changed? Exposing children to more than is necessary is everyone’s concern. I am hesitant about this legislation.
Judge Hardcastle:
When juvenile court began in Illinois in 1899 the hearings were closed. There was a concept concerning these types of hearings. There was a paternalistic judge sitting in a room with a child who had gone wrong, and the judge was there to take care of him. As time went on the court’s jurisdiction expanded to abused and neglected children with the same model in place. During the 1960s, the U.S. Supreme Court became involved in child welfare and delinquency rights and expanded the concept of these cases. We discovered the paternalistic model was not working. We were not being kind to children. Children were not being treated fairly. They were not given protections as adults were given.
There has been a dramatic formalization of our system making it a more adversarial system. There is a tremendous amount of involvement in any case. There will be attorneys for the parents, child, the division, and representatives of the division. In order to see that the children are receiving the services and benefits, we are asking to allow the public to observe what we do. The initial premise was this was between the judge and the child. This is the community’s child now. This child belongs to all of us and we owe an obligation to the child. The public should know what happens in the court.
Senator Cegavske:
Do I need to know the identity of the child and everything that happens? With an open hearing can their name and face be protected? Children can be cruel to other children in school. I am concerned about the substance of information printed about the children. I do not want to expose or exploit the children to more harm than they have already experienced.
Judge Hardcastle:
In states where there are open hearings, the horror stories have not come to fruition. The circumstances where children would be embarrassed have not happened. The information is available to the newspaper. It just stops at some point and they do not get the information right. Studies have shown the identity of the child is known prior to the court proceedings. What is not known is how the courts and agencies handled the case. If they deal with systemic issues, the studies indicate, the newspapers do respect the privacy rights of children.
Assemblywoman Buckley:
I was persuaded because we have opened the courts in child custody and juvenile delinquency cases. The courts and agencies working with these children are recommending we reexamine this issue. In 1994 the National Council of Juvenile and Family Court Judges in 1994 said we should begin reexamining all of our traditional notions of secrecy concerning these cases. The public has the right to know. The National Center for State Courts, July 2000, stated:
Out of the 22 states that did it the consensus was that open court hearings did not negatively impact children’s privacy rights, and did positively affect the handling of child welfare cases. Through open court hearings the welfare system can be held more accountable and the public can become better educated about the needs of the child welfare system.
Children want people to know what is happening to them so they can be helped. Opening the hearings would promote a better system. It would be beneficial for the public to know about a caseworker who manages 50 cases because the Legislature had not increased funding for child welfare. The media would only attend the sensational cases. They never print the names of the children out of respect for the children, and the value they place on their work.
Senator Cegavske:
Are you saying this is about everyone’s accountability and we are opening this for public scrutiny?
Assemblywoman Buckley:
Yes. The hearings about abuse and neglect are closed. After guilt is determined, the issue of concern is what is going to happen to the child. This was the reason all states found the child’s privacy rights were not affected by the open hearings. If the judge feels the child will be embarrassed, the hearing will be closed. A safeguard is built into the bill.
Senator Cegavske:
Are you saying our present system is not working?
Assemblywoman Buckley:
The Clark County system is the most dysfunctional child welfare system in the country. We have a bifurcated child welfare system. The county had the responsibility in the beginning, and the responsibility was transferred to the State.
Senator Cegavske:
As State employees, we should be doing something to help this situation because it is obvious the system does not work.
Senator Neal:
After sitting on the committee and hearing Judge Hardcastle’s testimony, I feel A.B. 132 is appropriate. If there is a reason to close the hearing, the judge can do so. Therein lies the protection of the child.
Senator Washington:
We have worked on this issue for a long time and need to comport with the Adoption and Safe Family Act of 1997, which has shortened the timeline to 12 months. Based on the resources available, the agencies are doing the best job possible for the children. All the legislation that has been passed has been in the best interest of the child, and not have the child go from one situation to another. The judges in Washoe County have been open in their proceedings dealing with families and the placement of children. I favor having an open proceeding because it gives accountability to our governmental agencies. The compromise would protect courts from liability issues.
Chairman Rawson:
Dr. Todd will present testimony on the fiscal note of A.B. 315.
Randall L. Todd, Dr.P.H., State Epidemiologist, Health Division, Department of Human Resources:
Testimony was offered in the Assembly. One recommendation for amending this bill was to include a provision whereby someone is appropriately designated, not just the State health officer, would be the individual who would carry out the intent of this bill, and has been included in the amended version before you. In testimony before the Assembly committee, we sought to clarify … the legislative intent in this bill. Specifically, we indicated that it is our understanding, and we are seeking to get this verified from the two committees, are that the trends you are asking us to evaluate are statistically significant trends. The trends, if they are identified and do prove to be statistically significant, there is, at least in the professional opinion of the health officer, a likelihood that we can find a preventable cause, if we investigate them.
Thirdly, such investigations would go forward pending the availability of fiscal resources to carry them out. I think learned from the investigation of the childhood leukemia cluster in Fallon that these can be extremely costly investigations to carry out. It is appropriate to carry them out if they are significant and if there is even a remote likelihood we could find a preventable cause that we can something about … . We did not choose to put a fiscal note on this bill with the assumption that those three points were indeed the intent of the Legislature in passing this bill. I did comment to the Assembly committee that if it was not the intent, rather you wish us to investigate all trends, whether they are significant or not; or, whether or not we can find something useful from such an investigation; and whether or not we have fiscal resources to do it, we likely would have to go back and put a fiscal note on this, and it would be a substantial one.
Chairman Rawson:
I would like Dr. Todd’s testimony recorded verbatim for the record.
Michael J. Capello, Lobbyist, Washoe County:
I have provided the committee with a chart (Exhibit C) of the compromise that was reached. From the Social Service’s Department’s prospective, one of the key issues was the early phases of the hearing; the protective custody portion should be closed. You will note the report, investigation, and the protective custody hearing under the bill would be closed. The adjudicatory hearing would be presumed closed. The judge would have the opportunity to open the hearing. From that point forward the hearing would be presumptively open and the judge would have the ability to close the hearing.
Our fundamental issue up to the point of the adjudicatory hearing was the abuse and neglect allegations with respect to the parents. The concerns about the allegations and issues publicly scrutinized prior to the abuse and neglect allegations could prove not to be good policy. Many times the issues are very sensitive and have implications for the children and the parents. This represents the compromise Judge Hardcastle mentioned in his testimony.
Chairman Rawson:
The chart (Exhibit C) is helpful to the committee. Recently there has been media frenzy about cases. The public has many questions and theories about cases. There are people who feel the public does not have a right to know. Is there a point where the child would be compromised? The concern of the committee is whether there would be permanent damage to the child?
Mr. Capello:
The cases are all individual. If a judge were to rule an adjudicatory hearing open, there could be an issue discussed which could cause damage to the child. This certainly could happen.
Chairman Rawson:
For example, in a presumptively open hearing of parental rights would these issues be revealed?
Mr. Capello:
Yes. When the process gets to the termination of a parental rights hearing, all the circumstances in the case would be relived.
Chairman Rawson:
There should also be an interest in seeing parental rights are not taken in a light manner.
Mr. Capello:
Everyone has a different perspective on the issue, but the interest of the child and improving the system is primary.
Senator Nolan:
In custody dispute hearings allegations occur on both sides whether or not they are legitimate. Would allegations be falsely made to obtain custody of the child? Are we going to find people playing to the press, or will this be a deterrent?
Mr. Capello:
The bulk of the allegations are sorted out during the report and investigation phase of the hearings, and would remain closed. To get to the protective custody hearing the child welfare agency had to make a determination the child was in imminent risk of harm. Substantive information is needed by the agency to remove the child. To reach the adjudication portion the Division of Child and Family Services, of the Department of Human Services, would need allegations and supporting evidence put into a petition. In custody disputes allegations are made by either or both parties, and are resolved in earlier phases of the case where it would remain closed to public scrutiny.
Senator Washington:
Are the entire proceedings open in the Utah statute?
Mr. Capello:
I have not read the Utah statute.
Chairman Rawson:
There may be other testifiers who could answer your question.
The Honorable Deborah Schumacher, Family Division, Second Judicial District:
I have been handling abuse and neglect cases for 11 years, as Washoe County’s Juvenile Master. Since 1997 I have handled cases as a district court judge. I am also the lead judge of Washoe County’s model court effort. We are a model court in the area of dependency, which obligates us to systematically work to examine and improve our court.
I am in opposition to A.B. 132. I do not have any quarrels with the goals articulated by Assemblywoman Buckley or Judge Hardcastle. We should have a child welfare system that is accountable. The public should be educated regarding our child welfare system. We should reexamine the secrecy of the system. Those same beliefs lead me to conclude our children are best served not by the current statute but by a law that would presumptively close the hearings and allow the judge to “when appropriate open to the public.” You can trust juvenile court judges to decide which is best. It is my experience the media is not likely to come to many of these hearings. I believe the goals you have been given, as the reason to pass this statute will not be truly furthered by this statute. I believe the unintended negative consequences outweigh any small benefit to accountability. Opening hearings to the public will not engender a wellspring of interest about our child welfare system.
I believe the public should be educated about child welfare and I have taken steps in that direction. In 1995, I brought to Washoe County a program called the Court Appointed Special Advocates (CASA) Public Partners program. We invited every member of the Legislature, Washoe County commissioners, public officers, and interested individuals in Washoe County to become honorary CASAs. There was no work required. We wanted them to sign the same confidentiality agreements that CASA signed in exchange for receiving information about a case as it worked its way through the system. This would be a way of learning about the system. We chose a random case and the honorary CASAs to attend the hearings, learn about the case, and receive our paperwork. The response was poor and the program folded for lack of interest. It will take a lot of work by people such as Judge Hardcastle, Assemblywoman Buckley, and myself not to open the hearing to the public. There may be a handful of requests in a year to attend our hearings.
Judge Schumacher said that in 11 years no one from the media or a public interest agency had asked to witness a hearing. I wish they would ask. What happens is the neighbors, extended family, friends, and people who have heard about the case in an informal way, not the public, are asking to sit in the hearing. Some have honorable motives, but not all.
I am in favor of the compromise, which would close some hearings. In my courtroom there are a lot of personal details about the children. When we have a trial the children do testify. The trial is closed. Normally the parents plead the case. We also have review hearings. The court is charged with reviewing the case plan for the child and the appropriateness of the child’s residential placement. The case plan must include the entire child’s clinical needs and what is being done to meet them. We routinely talk about whether or not the child is fetal alcohol or drug affected. Does the child have psychiatric diagnosis and what psychotropic drugs have been prescribed for this child? Does the child have a human immunodeficiency virus status? What is the child’s intelligence quotient? What is the content of this child’s special education plan and when was it last reviewed? Is this child a sexualized victim or is this child acting out? Does the environment need to be changed because they cannot get along with a certain age group?
Senator Neal:
As a judge would you not have this information prior to the hearing?
Judge Schumacher:
We do have the information.
Senator Neal:
Knowing the details could you close the hearing?
Judge Schumacher:
Yes, we could close the hearing, but this is the routine. The public defender has the right as the parent’s or child’s attorney. We have the right and obligation to discuss the programs put in place as to whether they meet these needs and if they are adequate.
Senator Neal:
I am referring to the application of this bill, which you are opposing. The information before you go on the bench to make a determination.
Judge Schumacher:
Yes, you are right. This kind of discussion is in the vast majority of my hearings. I would close the vast majority of my hearings if I followed your suggestion. This would defeat the purpose of the bill. If you pass this bill, I will assume it is my obligation to follow it and close only the extraordinary hearings.
Senator Neal:
If you were dealing with a situation that could embarrass the child, would you be obligated to close the hearing? You would not want the child to be stigmatized.
Judge Schumacher:
I agree with you. I think this kind of information is the substance of most of my hearings. From where I sit, they should be open because most of them include information that is stigmatizing. I agree with protecting the child, but where we disagree about how this should be done.
Senator Neal:
Then you close the hearing.
Judge Schumacher:
I do not believe the intent of this bill is to have most hearings closed. I believe you are telling me most hearings should be open and the extraordinary should be closed. If most hearings resulted in stigmatizing information, I would say that it is a good reason to think about whether they should be opened. We talk about whether the paternity of the child was established. Many times the mother has had multiple partners and the father’s identity was not known. This type of sensitive information is a regular part of review hearings. The embarrassment to the child does not stop when we have dealt with the allegations of the actions of that child’s parent. We have a similar discussion regarding the parents. In my opinion we have privacy issues for the child and the parent. The reality of our child welfare system is most children go home to the parents. We cannot make a strict division between the child’s interest and the parent’s interest. Our law requires reunification, and there are not enough available foster homes.
I am concerned about the free flow of information to people who will be a part of this child’s life such as the neighbors, friends, and the extended family, not the media. I am more concerned the information will spread among this child’s significant others, and the media may inappropriately publish a name. If you pass a bill that allowed hearings to be presumptively closed subject to being opened and you learn the judges are not appropriately allowing public-interest entities who want to talk about structure and accountability, and they are not doing what they should, I will be the first to say it did not work and the hearings need to be opened. Presently, the cost is too high and the benefit too small.
Chairman Rawson:
The Legislators are placed in a difficult position with this issue. It comes down to a matter of conscience. It is difficult to see the people we respect and rely on disagreeing on this issue. Was there significant discussion in the Assembly on this issue?
Judge Schumacher:
I left aftergiving my testimony to the Assembly and did not hear any of the discussion.
Senator Washington:
Would an open proceeding hamper the permanent placement plan for the children?
Judge Schumacher:
It would not hamper their permanent placement. It is other ill effects I am concerned about.
Senator Washington:
Is the federal requirement of permanent placement within 12 months a concern?
Judge Schumacher:
We discuss in open court results of substance abuse and mental health evaluations. Ninety percent or more of our parents have a substance-abuse problem. They are covered under other federal confidentiality statutes. I do not know how these discussions could be conducted in open court.
Senator Washington:
Would you comment on the article Judge McGee wrote regarding open proceedings?
Judge Schumacher:
I have been told Judge McGee supports the compromise.
Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Services:
The division is opposed to the bill. We worked as closely with the Interim Committee on Children, Youth and Families. We supported every initiative proposed by the committee. Our position is that this has nothing to do with secrecy, but with keeping children safe and families together whenever possible. We believe the compromise should include all juvenile court hearings are presumptively closed, which would allow the judge or other interested parties the opportunity to have the right to open the hearings or petition them to be opened if there was a specific purpose. Such a position would empower judges to open courts when it was in the public interest and keep them closed otherwise. The value of the compromise means the judge would need to consider every time a child‘s best interest was at stake before the hearing was opened, and not before it was closed.
The amendment to the bill alleviated many concerns. The dispositional hearings would be presumptively open under this amendment, but there would be open discussion about private matters, which could result in humiliation and embarrassment to children who have already been traumatized. This is our biggest concern. Children are not always in attendance, but there would be discussions about private issues. The fact they are not in the court is not the issue. It is my belief children do not want public discussions of the sexual abuse or beatings they have suffered. They do not want the fact their father is being treated for substance abuse, or their mother abandoned them discussed in the general public. They do not need to be traumatized again by having this occur.
This amendment does state the judge should take the wishes of the child into consideration. This would only occur if someone made a motion to close the hearing. Many of the families do admit to the abuse or neglect in order to begin the process to work with us to alleviate the problems that lead us to taking their children. I believe they would be much less likely to do so in a public forum. Very few parents now contest our actions or our service plans. This would not happen if this bill passes. There would be more court hearings to rule on motions to open or close hearings. There would be more time in court for our already overworked caseworkers, leaving less time to visit the children.
A fiscal note has not been done on this bill. There are two issues concerning this matter. The testimony will be different. Testimony could not be given in the same manner; names and other confidential matters could not be discussed. Many parents will want attorneys to represent them in court and will file motions to close these hearings. The result will be more hearings, more court time for our workers, and less time for them to visit families. There is also the financial issue.
The federal Child Abuse Prevention and Treatment Act (CAPTA) is very clear, open hearings violate their rules. We have identified 11 states that have some form of open hearings. They have not enforced the fact they cannot get Child Abuse Prevention and Treatment Act funds. There were concerns because there was a precedent in other departments when violations of policy were allowed to occur for an extended period of time. The federal government claimed back costs for the violations.
The media in other states had published names, and pictures of children and their siblings. They followed them around playgrounds and schools. The media does not have a professional ethics committee or standards. The U.S. Supreme Court ruled the media cannot be punished if they published confidential information. There are no benefits to this bill, but there are several potential drawbacks. States that have open hearings have not reported improvements in their functionality that we have been able to find.
I will quote Esther Watenburg a member of the Minnesota Supreme Court task force who studied this issue:
There is not one shred of evidence to support the assumptions that press and public access to dependency hearings will improve the quality of the judge, child advocacy work, or reduce the overloaded caseload.
She went on to say it did not show any negative effects, but showed no evidence to support it would help.
I agree with Judge Schumacher that it would be better to have these hearings presumptively closed. This would have the stipulation the judge could open the hearing for good cause. The judge would actively make a decision as to whether it was the correct action. It would allow the media and others to have a hearing opened if they chose. We would work with the judges to create regulations for those events. I have had 27 foster children. If you asked them if they wanted their hearings open, they would not want their situations discussed publicly. I urge you to not victimize these children a second time by opening their private traumas to the general public.
Senator Cegavske:
What did you mean by CAPTA funds? Will this bill require funding?
Mr. Cotton:
States have received substantial funding to operate child abuse and prevention programs. The federal government has stated in their policies that states cannot have open hearings.
Senator Cegavske:
Are you saying we could lose funding?
Mr. Cotton:
There has not been any state that has lost funding due to opening a hearing. Even though there is a section in this bill, which will stop the practice if losing funding is eminent. There could be retroactive penalties. The day the bill passes we are required to notify the federal government we are not in compliance.
Senator Cegavske:
I wanted to ask Assemblywoman Buckley and Judge Hardcastle if making the hearings presumptively closed would satisfy their needs?
Chairman Rawson:
First, we will hear the rest of the testimony.
Karen R. Dickerson, Deputy Attorney General, Office of the Attorney General:
I have appeared for chapter 432B of Nevada Revised Statutes cases in every county in the State, except Clark County. I confirm that in every review hearing there was a majority of substance abuse issues and mental health issues which were discussed in detail. I am reading from prepared testimony (Exhibit D) concerning compliance with federal laws and it impacts federal funding. I have provided the committee a summary of those compliance issues and the related legal cites (Exhibit E).
Senator Neal:
Would A.B. 132 make Nevada out of compliance with federal regulations?
Ms. Dickerson:
You are correct.
Senator Neal:
I am referring to the chart (Exhibit C), the report of child abuse/neglect, investigation, protective custody, and adjudicatory hearings are closed, and the disposition hearing would be open. Are you saying this chart (Exhibit C) is not correct? Would this violate CAPTA?
Ms. Dickerson:
I believe it violates CAPTA. After the adjudicatory hearing it is law and what the division wants to do is reunify with the parents. Every hearing thereafter until the termination of parental rights trial, the issue concerns trying to reunify the children or find appropriate placements. All the issues Judge Schumacher raised are discussed in those hearings
Senator Neal:
Have you researched any of the 22 states that have adopted this plan?
Ms. Dickerson:
My research showed 10 states have hearings that are presumptively open, and the other states have hearings open in varying degrees.
Senator Neal:
How long have the 10 states had their hearings opened?
Ms. Dickerson:
It has been a number of years. I have provided the committee with a law review article called “Pandora’s Box: Opening Child Protection Cases to the Press and Public”(Exhibit F. Original is on file in the Research Library.) which addresses many of the issues we have discussed.
Senator Neal:
Why have those states been found to be not in compliance with the federal regulations?
Ms. Dickerson:
The federal government may not be always timely in their findings about lack of compliance.
Senator Neal:
Mr. Cotton, I do not recall the statements you have made before this committee being the same as when you were present during the hearings.
Mr. Cotton:
What statements are you referring to?
Senator Neal:
The issues encompassed in A.B. 132.
Mr. Cotton:
I do not recall if the CAPTA issues were discussed at that time. I have testified to the reasons I oppose this bill then and now. The U.S. Department of Health and Human Services is investigating looking into some issues of the CAPTA. Its issue is not at the top of their list. We wanted the committee to be aware of the risk of losing the funding. None of the states using open hearings have been sanctioned.
Senator Neal:
Do you have a problem if A.B. 132 follows the chart (Exhibit C)?
Mr. Cotton:
Yes, I do.
Senator Neal:
What are your problems with the bill?
Mr. Cotton:
The points I previously listed in my testimony.
Senator Neal:
I am referring to the portion of the chart where the hearings are closed.
Mr. Cotton:
My entire testimony concerned the portion you are referencing. I am concerned the information shared would cause great stress to the children who are already traumatized.
Senator Neal:
If a judge closes the hearing and has all the facts of the case, what is the harm in the judge making his determination in open court?
Mr. Cotton:
If you are referring to having the entire hearing closed and then having the hearing opened to hear the dispositional order, there could still be a problem. Most dispositional orders include treatment; therefore, there could be drug and alcohol issues, psychological issues, and lack of the child’s educational functioning. Every case is different. If the case is presumptively closed, it places the judge in a position of having to actively say this case should be opened.
Senator Neal:
Is there any danger in totally closing the hearing?
Mr. Cotton:
To whom would it be a danger?
Senator Neal:
Would it be a danger to the child?
Mr. Cotton:
I am not certain what the danger would be if the hearing was closed.
Senator Neal:
Who would oversee the protection of the child?
Mr. Cotton:
There are many people involved in the courtroom from a professional viewpoint.
Senator Neal:
What you are saying is you have to be accurate in all of your judgments, and it should not be open to public scrutiny?
Mr. Cotton:
The judge makes the determination.
Ms. Dickerson:
In 95 percent of the cases, attorneys are appointed for the children as their advocate.
Senator Neal:
What are some of the unintended consequences?
Ms. Dickerson:
I did not make such a statement.
Mr. Cotton:
It was not part of my testimony.
Chairman Rawson:
Would we be out of compliance with CAPTA if A.B. 132 were presumptively closed throughout the process?
Ms. Dickerson:
If the judge opens the hearings and the confidentiality rules are broken, then we would be out of compliance.
Chairman Rawson:
Does there have to be a presumption? Could a judge be tasked with the responsibility with determining in every case whether the hearings will be open or closed? Does that violate a judicial standard?
Mr. Cotton:
On every case there is a hearing and discussion. We are presently concerned about the time our workers spend in court.
Senator Washington:
Can the media attend a hearing that is presumptively closed?
Ms. Dickerson:
The judge would make the decision to open the hearing to the media or others.
Senator Washington:
How often is the media present?
Ms. Dickerson:
Every hearing in which I have appeared it has been closed to anyone not directly involved with the case.
Senator Washington:
Except for the high-profile cases, I assume?
Ms. Dickerson:
No, they are closed. Custody disputes and divorce hearings are open. The division is routinely subpoenaed in those cases because the parties use the division as a weapon to get custody of their children. We do honor confidentiality and will only give those records and testimony on camera to the judge. The judge can decide whether the information should be given in open court.
Senator Washington:
I assume high-profile cases such as the Mailin Stafford case are publicized because they involve a death. The case was dragged out through the courts and the media, which exposed the system in a different light. Are they the type of cases?
Ms. Dickerson:
Yes. Cases involving criminal proceedings and the death of a child are open to the public.
Senator Washington:
After the Mailin Stafford case there was a public outcry. Why did it take so long to expose the shortcomings of the department?
Mr. Cotton:
We are trying to strengthen our quality assurance from a State level for the State and the county to look closer at such cases to enable us to avoid those types of circumstances. We would work with the judges to create regulations to designate certain types of cases the judge can open without any problems. In other types of high-profile cases where the child’s name was publicized, we could discuss to put in regulations. The cases you are referring to would be the cases that could be open. Some states have laws allowing the state department or others to openly talk about certain cases.
Senator Neal:
You made reference to federal law?
Ms. Dickerson:
The information can be found in my handout (Exhibit F).
Assemblywoman Buckley:
Every state that adopted this concept would not be doing this if it jeopardized federal funding. We are out of compliance with federal law in many areas. One, a child must find a permanent home within 12 months; our time frame is 32 months. A child must have mental health treatment, and the list continues. The National Center for State Courts in conjunction with the Children’s Bureau of the U.S. Department of Health and Human Services wanted to clarify this further. Pending in Congress under the CAPTA reauthorization citation S342, in a conference committee specifically clarified that nothing shall be construed to limit the states’ flexibility regarding public access to court proceedings involving child abuse and neglect. The federal government has moved ahead to a better system by having it be more open. The criminal proceeding where this is discussed in detail is open to the public. We have brought you a compromised version of the bill. Judge Hardcastle, Mike Cappello, and Judge McGee have worked out a good compromise.
Judge Hardcastle:
It is well known when states open their hearings to the public they are in violation of CAPTA. Hearings presumptively closed will violate CAPTA if is subsequently opened. States have asked the federal government to give them a letter stating they will not enforce the law but were denied. The federal government is in the process of changing CAPTA law. It has not been an impediment to the states to have allowed access to information that would be protected under CAPTA. The federal government has never enforced the CAPTA law in any state. In my opinion the agencies do want to keep the public out of the courtroom. Assembly Bill 132 is a tool to allow the public access to this information. Once the public understands the information they will help us do a better job. We need to ask the public, “Is this how you want your child welfare system to work?”
Senator Mathews:
If the need is to improve our welfare system, opening children’s records will not accomplish it. We need to improve the system in the State.
Judge Hardcastle:
It will open up a process the public has a right to have an interest in, a process that is flawed and has many defects. The public is not aware because they cannot view the hearing.
Senator Mathews:
For the record, “I support open government 100 percent. I also support children. Children can be damaged twice. In private with their parents, and then in public when we want to do something like this.”
Chairman Rawson:
I will let the committee consider this bill. It will be scheduled for a work session soon.
Senator Cegavske:
What is your opinion of the amendment proposed by Mr. Cotton?
Judge Hardcastle:
Assembly Bill 132 is a compromise from where it originated. Many people involved in this bill were concerned about opening various hearings. The bill as presented is a fair compromise. To compromise this further is unfair.
Chairman Rawson:
I will open the hearing on A.B. 273.
ASSEMBLY BILL 273 (1st Reprint): Establishes procedures for permanently placing an abused or neglected child with a guardian. (BDR 38-688)
Assemblywoman Buckley:
It is a good idea to allow guardianships of abused children to be done within the abuse and neglect hearings. If the permanency plan is a guardianship, the agency needs to go to a separate proceeding. In Clark County it would be another judge, another lawsuit, and another filing fee. This bill would streamline the process. It allows the guardianship to be done in chapter 432B of NRS actions. This will save time, money, and helps find permanency faster. The bill has had unanimous support in the Assembly. We recommend its support to you.
The bill allows us to establish a guardianship where the permanency plan for the child is guardianship without a separate proceeding.
Senator Wiener:
What has been changed in the reprint version of the bill?
Judge Schumacher:
There was language clarification. One of the substantive changes clarifies that after the guardianship is granted in the NRS 432B proceeding, thereafter any amendment, substitution of guardian, or any changes of the guardianship needs to comply with chapter 159 of NRS. Another change allows the court to appoint the guardian for the child for the limited period of 6 months where that person is not a Nevada resident. Our current chapter 159 of NRS does not allow a non‑Nevada resident to become a guardian. This would allow that guardianship to be granted, and require the guardianship to be established in the state where the child will be residing. We do not want to supervise children under guardianship who no longer reside in our State. This will expedite permanency.
Mr. Cotton:
The division is in favor of this bill. There is a small fiscal note of $6000 attached to the bill for the purpose of training staff.
Chairman Rawson:
I will close the hearing on A.B. 273 and will hear further testimony on A.B. 497.
Robert O. Sack, Lobbyist, Washoe County District Health Department:
Assembly Bill 497 reflects what is presently our practice. It would not cause any changes. We prefer not to have this in regulation because it might limit us in the future. This bill should not be an impediment to the Head Start program.
Sean Gamble, Lobbyist, Clark County Health District:
The current law is too restrictive for child care facilities. This bill would exempt the child care facilities from having a commercial kitchen, not taking away any of the other statutes. The facility would need to have someone on staff trained in food-safety handling procedures.
Senator Neal:
Would a facility be included where a meal was prepared?
Chairman Rawson:
Senator Neal is concerned about the Head Start program.
Ms. Gamble:
All this bill does is change the requirements of the kitchen.
Mr. Sack:
If they were preparing the food, which is considered a potentially hazardous food, we would require a permit and the full conditions would still apply. We would still be able to regulate those kitchens where they are preparing food versus the cutting of an apple.
Senator Cegavske:
Would this include home day care facilities?
Ms. Gamble:
Any child care facility would need a commercial kitchen if they wanted to serve food.
Senator Cegavske:
How did this go undetected?
Chairman Rawson:
This was done in regulation.
Mr. Sack:
It is the way jurisdictions have used the regulation. In a home child care facility we have not required a full kitchen. Most child care facilities try to keep food as simple as possible.
Senator Cegavske:
Were the regulations from the counties?
Chairman Rawson:
The State health department passed the regulation.
Senator Cegavske:
Why is this being brought to the Legislative Branch of the government?
Chairman Rawson:
When you have a regulation that is too restrictive it must be changed through legislation.
Lisa Fitzgerald:
I have worked in the child care field in Nevada since 1989. One of our centers has a bid for cabinetry for $18,000, and in another center there was a $39,000 bid to change an oven hood in order to meet the requirements. Our daily food preparations are very minor. There are many ways to use this money to protect our children. In my experience there has never been problems with food-borne illnesses in our centers, which is due to the strict regulations of the health department. Basically we are a warming service to get food to proper temperature. We need to decide whether these costs are to the good or detriment of our children. In many instances this is the only balanced, hot meal these children receive each day. The costs may be prohibitive; therefore, forcing many of the facilities to let the children bring their lunches. This will take us out of the equation of providing a well-rounded program.
Chairman Rawson:
Assembly Bill 497 has an effective date of July 1, 2003. If the bill were amended to have an “upon passage and approval” would that be adequate?
Ms. Fitzgerald:
Are you saying to make all these changes without this amendment?
Chairman Rawson:
Yes.
Ms. Fitzgerald:
Most of the centers are looking at $25,000 to $100,000 in costs.
Chairman Rawson:
When does construction need to start? Is July 1 adequate for you? If we pass the bill it will take effect July 1, 2003. Does that meet your purposes?
Ms. Fitzgerald:
Yes.
Senator Neal:
What is the average number of children you have in your facilities?
Ms. Fitzgerald:
We have 11 centers averaging 100 children a day.
Senator Neal:
What type of meal do you prepare?
Ms. Fitzgerald:
A daily menu might be meatballs, rice, gravy, green beans, and a fruit. A snack might be graham crackers, peanut butter, fruit, and a glass of milk.
Senator Neal:
How many meals do you prepare?
Ms. Fitzgerald:
We prepare one meal and two snacks.
Senator Neal:
When is the main meal served?
Ms. Fitzgerald:
Toddlers and infants are fed at 11 a.m., and preschool about 11:30 a.m.
Senator Neal:
Do you have equipment to warm the food?
Ms. Fitzgerald:
We have a regular kitchen.
Senator Neal:
What was the amount of children for which food is prepared?
Ms. Fitzgerald:
We prepare meals for an average of 100 children per site.
Chairman Rawson:
I will accept a motion on A.B. 497.
SENATOR WIENER MOVED TO DO PASS A.B. 497.
SENATOR CEGAVSKE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR NEAL VOTED NO. SENATORS WASHINGTON AND NOLAN WERE ABSENT FOR THE VOTE.)
****
SENATOR WIENER MOVED TO DO PASS A.B. 273.
SENATOR CEGAVSKE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS WASHINGTON AND NOLAN WERE ABSENT FOR THE VOTE.)
*****
Chairman Rawson:
Assembly Bill 132 will be scheduled for a work session. There being no further business at this time, I will adjourn this meeting at 4:12 p.m.
RESPECTFULLY SUBMITTED:
Patricia Vardakis,
Committee Secretary
APPROVED BY:
Senator Raymond D. Rawson, Chairman
DATE: