Legislature(1995 - 1996)
01/23/1996 03:00 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 339 - TERMINATE PARENTAL RIGHTS OF PRISONERS Number 1693 CO-CHAIR TOOHEY asked Representative Rokeberg to give his sponsor statement on HB 339. REPRESENTATIVE ROKEBERG said because of the technical nature of this bill, he would read his sponsor statement to clarify the issue and make sure committee members had read the statement. He stated this particular bill is an act relating to the termination of parental rights of incarcerated parents. HB 339 gives the courts the authority to consider incarceration in child custody cases dealing with termination of parental rights. Currently, the courts do not have the statutory authority to do this. HB 339 will allow the courts to look at a parent's imprisonment, whether the length of the prison term will include a significant portion of the child's minority, and to consider whether or not the parent has failed to make adequate provisions for the care of the child during the prison term. Now if a parent is in prison for 10 or 15 years and parental rights have not been terminated, the child can linger in a foster home for years without any sense of permanency and belonging. This legislation will let the courts look at the effect on the relationship when a parent is in prison and ultimately, give them a tool to make custody decisions for children. Number 1766 REPRESENTATIVE ROKEBERG continued that in order to terminate parental rights, the courts have the burden of proof of showing that the youth is a Child in Need of Aid (CINA) as a result of parental conduct, and that conduct is likely to continue to exist. Alaska Statute 47.10.010 says that the court may order the state to assume custody of a minor who is found to be a child in need of aid as a result of the child having no parent, guardian, custodian, or relative willing to provide care, including physical abandonment. The courts said in the A.M. v. State of Alaska case that "the destruction must be brought about by the acts of the parent, and in order to constitute abandonment, the acts of the parent must be willful." Representative Rokeberg pointed out that being sent to prison does not, by itself, qualify as willful abandonment, which is a key point. Number 1804 REPRESENTATIVE ROKEBERG stated the courts have explicitly asked the legislature to amend the statutes to cover situations where parents are in prison. The first time was in 1991 in Nada A. v. State. Last year, Alaska State Supreme Court Justice Compton again reiterated his request for legislative relief in A.M. v. State of Alaska. Representative Rokeberg urged committee members to look at this legislation and give it consideration. Number 1820 REPRESENTATIVE ROKEBERG referred to the last sentence on page 29 of the first excerpt from court opinions contained in committee member packets which states, "In Nada A., I urged the Alaska Legislature to define more clearly the effect of incarceration on parental rights. I do so again." He then directed committee members to the highlighted areas on page 442 of the Pacific Reporter, 2d Series, where Justice Compton is quoted as saying, "I urge the legislature to amend AS 47.10.080(c)(3) so that parental rights may be terminated when a parent destroys the parent-child relationship by willfully committing a crime and failing to make adequate provisions for the care of the child during a period of incarceration." He pointed out the two letters of support contained in the bill packet. Number 1928 PEGGY THOMAS testified she had been a foster parent for 12 years and presently has the children referred to in A.M. v. State of Alaska in her custody. They have been in her custody for five years. She said that Mark and Samantha first came to her attention in July 1990 when their father needed to serve two week-ends in jail and he requested the state of Alaska to take custody of them while he was serving his time because he had no relatives to care for them and their mother was unable to do so. They first became her foster children in 1990 for the two week-ends. In September 1990, the state assumed care of them again when their father was arrested for sexual abuse of a minor and theft in the second degree. It was at this time that Mark and Samantha came into her care full time. The father was subsequently sentenced to ten years of incarceration with one year suspended, for a total of nine years to serve. She explained that means five years in jail and he will be out of jail on May 14. She said that Mark and Samantha came to live with her in February 1991 when Samantha was 18-months old and Mark had just turned 4 years old. Mark began calling her mom about that time because he obviously needed someone in his life to fill that role. She commented the children often have phone contact with their birth mother, who currently lives out of state. There is a court order by their father for the children to contact him weekly. She explained that is done because he is serving his time in Palmer, so every Saturday morning the children have telephone contact with their father. MS. THOMAS pointed out that Mark and Samantha have grown up in her home and she is the only mother that Samantha knows. She does, however, know she has another mother and she knows her father. The mother has relinquished her parental rights and has no problem with Ms. Thomas adopting the children. On the other hand, the father wants his children back when he gets out of jail. The father had entered into the sex offender treatment program at Hiland Mountain, but dropped out because it was too difficult for him. So he is an untreated sex offender. Ms. Thomas said she wished this legislation was in effect at this time so the judge could make a decision that the father is incarcerated, his behavior has not changed and most likely will not change. He has had a history since he was a juvenile and it seems likely that it will continue. The children have become part of her family. Mark feels a loyalty to his father and really doesn't know where he fits in to the pattern. It affects him the most because he is the oldest and remembers being with his mom and dad. Samantha, on the other hand, is more stable because she has grown up in the Thomas home for five years, which is the majority of her life. MS. THOMAS informed the committee they still do not have a decision from Judge Carpeneti as to the termination of the father's parental rights. She said at this time she doesn't know if the children will be living with her nor do the children know if they will be sent back to live with their father. She felt the Division of Family & Youth Services would not allow that to happen, but they don't know at this time. She emphasized the children want permanency and have both started using Thomas as their last name on their own. Number 2117 REPRESENTATIVE ROBINSON said that because of the sexual abuse, the Division of Family & Youth Services would intervene, so even when the father gets out of jail, the children will still be in limbo. MS. THOMAS agreed that it will continue on for awhile, because they are not going to give the children back right away. REPRESENTATIVE ROKEBERG thanked Ms. Thomas for her testimony and acknowledged her difficult situation. Number 2150 JAN RUTHERDALE, Assistant Attorney General, Human Services Section, Department of Law, testified that her duties were to represent social workers, Child in Need of Aid cases, and sometimes termination cases. She was the attorney that represented the A.M. v. State of Alaska case, which went to the Supreme Court in 1995. She said this is an excellent example, and hopefully the worst example, of how complicated a case can get when you are working with this legal fiction that because the person is in jail, and since that's an involuntary act, we have to sort of pretend they are not in jail and look at conduct other than the conduct leading up to what got them into jail or the conduct they had in caring for their children before they got to jail. She said the court constantly focuses on what a person's parental conduct is, which is a good thing to focus on because you should always look at how a person's conduct can affect their ability to raise their child. She said it seemed to her in this case, and she argued this at the Supreme Court level, that the conduct in committing the act itself that lead to the incarceration, which obviously was voluntarily, was in itself a conscious disregard of a parental obligation. If there is a likelihood of a person committing a very serious crime, for example, sexual abuse of a minor, and gets caught it will result in incarceration for a lengthy period of time. That means an absent father or mother in that child's life. She stated in this case they were not able to argue that this man had five years or more to spend in jail, which was a very significant portion and a very important part of these young children's lives. MS. RUTHERDALE pointed out this case has become very complicated. She said the trial was in the fall 1992, the court didn't rule on it until August 1993. It was argued before the Supreme Court in March 1994, and even though the rules say that it is expedited in children's cases, a decision was not issued until February 1995 which was almost a year later. It was remanded - they didn't lose. The Supreme Court said the court needed to re-look at it. The remand hearing was in May 1995, and the court has still not ruled. She commented there is a hearing on Friday, January 26, to deal with a very minor issue. Once that issue is dealt with, the case can go various ways from there. She said there is no question that whatever way the court rules, it will be appealed again. If the state loses, they will appeal; if the father loses, he will appeal. No one has any idea how long it will take after that and in the meantime, these children are getting older and need some permanency in their life. Number 2293 MS. RUTHERDALE said this legislation is a very important step toward freeing children for adoption. She expressed concern with two different areas of the bill. She referred to subsection 1, line 9, "(1) parent is incarcerated as the result of a voluntary act committed by the parent;" and reiterated that a person can never be incarcerated for a crime without it being a voluntary act. A person could be in jail on a 24-hour intoxication hold, but that would not result in someone seeking to terminate parental rights on that basis. She commented she knew this was put in the bill because the court says going to jail is an involuntary act, and we have to look at voluntary conduct. She said the concern is that perhaps it would muddy the issue. TAPE 96-3, SIDE B Number 004 MS. RUTHERDALE added that since all people in jail, having been convicted of a criminal act, by nature it has to be a voluntary act, it may not make a difference one way or another. She referred to subsection (2), "period of incarceration imposed includes a significant portion of the child's minority;" and said the thought behind that is for example, if the father of a 15-year-old goes to jail for two years, it is not that big of a deal because the child knows who his/her father is, the attachments have been formed and it would probably do more harm to have the parental rights terminated than for the child to wait those two years out in state custody, if need be. On the other hand, in Samantha's case where she was 18-months-old when she first went into state custody, five years is a lifetime for a child. It is so important for the children to have that permanency. The basic thought is that it is sort of a sliding scale: as they are younger, a less period of time is more significant; as they are older, a greater period of time could be tolerated. Last week someone in Ms. Rutherdale's office who deals with legislation, pointed out it is possible that a court could read that a different way to say that if a child is two- years-old and he/she has 16 years before reaching majority, a for year period of incarceration is a small part of that 16 years. She pointed out it could almost be read that the older the child is, the more significant it becomes because it is a greater proportion of the amount of time left in the child's minority. Number 085 CO-CHAIR TOOHEY asked if Ms. Rutherdale thought that any judge in his right mind would return a child to a single parent who doesn't have a job, and is a convicted, untreated sex offender. MS. RUTHERDALE said she didn't think any judge would do that, but it doesn't solve the whole problem of foster care. CO-CHAIR TOOHEY commented that the bill would be going to the Judiciary Committee next and suggested that Ms. Rutherdale explore the various possibilities with that committee. MS. RUTHERDALE said she was certainly willing to work with the committee and she thought a lot of it was policy call. CO-CHAIR BUNDE asked how many cases in Alaska would fall under the purview of this statute. MS. RUTHERDALE responded in terms of termination of parental rights, it is a very drastic measure and isn't done that frequently. She noted that while she did not have statistics available for Anchorage, she thought with the larger population in Anchorage it was probably much more common there. Her colleagues in Anchorage have indicated they would like to have the bill changed because they have run into the problem. She added that it could be perhaps five to ten cases in the last ten years, somewhere in that range. Number 171 REPRESENTATIVE VEZEY said he agreed with Ms. Rutherdale's colleagues regarding the language in subsection (2) and thought Ms. Rutherdale's testimony conflicted with the way he read it. MS. RUTHERDALE commented that is the problem. REPRESENTATIVE VEZEY said he would read it that a child who was 15 years of age and only had three more years to majority, two years would be a significant portion of that child's minority. He asked what kind of incarceration would not be as a result of a voluntary act. MS. RUTHERDALE said that is just the point. She added a person can be jailed if found drunk on the street and there's no room at the alcohol facility, or an unruly person who needs to be incarcerated to be protected from others. In those situations, it would be 24 hours of incarceration at the most. In response to Representative Vezey's question, she said there really isn't any. REPRESENTATIVE VEZEY said subparagraph (3) seemed to conflict with some of the testimony that was given. MS. RUTHERDALE said the law states that if there is a relative who is willing and able to care for the child, then the child is not a child in need of aid. She said she could envision a situation where the child was placed with the mother, and the parental rights in that situation obviously could not be terminated. Or there could be a situation where the mother is out of the picture, and the child is placed with the grandmother. That would be okay under the current law. The problem of foster care drift is not present if the child is with a private arrangement. The state is not involved and foster care is not involved. On the other hand, with foster care, there will always be foster care parents who can't deal with a situation, and then the child has to be transferred. Number 269 REPRESENTATIVE VEZEY said that doesn't address the problem she mentioned earlier of the sex offender who had not undergone sex offender treatment. He thought subparagraph (3) would be a loophole around that. MS. RUTHERDALE responded that was true, it would be. She added but if the parent went to reclaim that child from the grandmother, the state could step in at that point and place the child back with the grandmother. REPRESENTATIVE VEZEY asked what kind of conduct was referred to on line 6. He assumed it was an act relating to the incarceration. MS. RUTHERDALE explained there is another section already in existence; that being (c)(3) which states that you have to find that a child is a child in need of aid as a result of parental conduct, and the courts are saying for purposes of parental conduct, they can meet that finding if they find these things. It can be looked at one way as sort of an exception to that general rule that you have to find parental conduct. The legislature is saying the court can find parental conduct if these three provisions are satisfied. She said, "Another way to look at it I suppose is that parental conduct is the act, the voluntary act in subparagraph (1), the voluntary act that results in incarceration is the conduct." That is what the Supreme Court has said. She said they are not going to read that into the statute. If that is what is meant, it will have to be spelled out. REPRESENTATIVE VEZEY asked if the proposed bill says that the parent's criminal conduct is likely to continue if parental rights are not terminated. He commented that didn't make any sense to him. MS. RUTHERDALE agreed and said she thought it was to prove that the conduct that got the person into jail in the first place is likely to continue. You would have to show the person is not rehabilitated. For example, if a sex offender in jail is not going through sex offender treatment, the prospects of rehabilitation are really poor, so his conduct is likely to continue. REPRESENTATIVE BRICE referred to subparagraph (3) "parent has failed to make adequate provisions for care of the child during the period of incarceration" and noted that Ms. Rutherdale had said adequate provisions for child care is a family member. He asked if that implicitly says foster care is inadequate. MS. RUTHERDALE said no, but the foster care implies state action whereas subparagraph (3) implies private action. REPRESENTATIVE BRICE asked how. MS. RUTHERDALE replied because the parent on their own is making adequate provisions. She said she may be reading something in to it, but to call the Division of Family & Youth Services and ask them to get your child is not an adequate provision. She thought it should be clarified more that the parent has failed to make adequate provisions, which would include guardianship with a person who is suitable to care for the child. CO-CHAIR BUNDE said he understood the past program of the state has been to return a child to their natural parents at all costs, even if it costs the child. He referred to Co-Chair Toohey's earlier example and said he disagreed in that he thought the courts have put children back in the custody of untreated sex offenders. He limited his previous statement to say that the past state program has been to return children to their natural parents as much as possible. MS. RUTHERDALE said that was right. CO-CHAIR BUNDE inquired with regard to foster care if there wasn't a state limitation that only allows a person to care for a child for so long, it was not to be considered an adoption, and not to even try to adopt. He asked if that was still a program. MS. RUTHERDALE said in the case of Ms. Thomas, she was strictly a foster parent in the beginning, but as time went on and the decision to terminate parental rights was made, she was looked to as a permanent placement. So, it can change. She said foster parents may be told not to get attached to these children. But psychologically, Ms. Thomas has to protect herself for that awful day that may happen when she has to give them up. CO-CHAIR BUNDE said he was asking if the laws have changed. He noted that he and his wife had been foster parents in the past and they were told it was temporary care and not to get attached. MS. RUTHERDALE commented it was difficult for the children, as well. Initially, the courts try to reunify the children with their parents, but hopefully not at all costs. If that is not going to work, then permanency is looked at and if termination and adoption is an option, then that is pursued. Number 569 REPRESENTATIVE ROBINSON commented she had a couple of cases in mind that she wanted to make sure the individuals would testify at the next hearing because it clearly has happened. She said quite often what happens is that if the mother is still in the picture, people wouldn't even be looking to intervene. She illustrated a situation where the father would get out of jail, the mother and father would get back together again or the father becomes part of that life, and there may be another assault, another victim, and the father goes back to jail again. She commented this was kind of a unique situation as there are actually two protective parents who are trying to protect the child, although the mother had made the determination to relinquish her parental rights. She said she is aware of another foster care situation where the mother made a determination to give up her parental rights, the father was in jail for sexually assaulting the children, got out of jail and got custody of the children again. Number 599 REPRESENTATIVE ROKEBERG thanked Ms. Rutherdale for her testimony and said he had an amendment that corrected Section 1, and he would be happy to work with her as the bill proceeds. He noted that Ms. Thomas has an imminent date of May 14 and asked if passage of this legislation would be helpful to her in her situation. MS. RUTHERDALE said she thought it was unfortunately too late for her. REPRESENTATIVE ROKEBERG referred to the letter from Kathleen Weeks in which she stated, "I have seen too many parents that desperately wanted to adopt a child when the child was prevented from being adopted by the potential future parenting of a birth parent in jail for a long term sentence." He asked Ms. Rutherdale if she was aware of circumstances where the potential of an adoption existed, but the law is a barrier or an obstacle for that type of activity to take place. MS. RUTHERDALE asked if he was referring to a potential adoption. REPRESENTATIVE ROKEBERG responded affirmatively. MS. RUTHERDALE said yes, that was right. REPRESENTATIVE ROKEBERG said it was difficult to get good statistics on how many people this really affected, because people are cut off from even pursuing adoptions. MS. RUTHERDALE said that was true and added she only works with public adoptions and of course, there are a lot of private adoptions, too. REPRESENTATIVE ROBINSON referred to the issue of adequate provision of care and commented there could be a situation where the only option available to a parent would be to go to the state and ask them for child care while the parent goes to jail. To her that would be adequate care. She thought that section really needed to be clarified. CO-CHAIR TOOHEY said she would return this bill to the sponsor for additional work with Ms. Rutherdale. The bill could be brought before the committee again. Co-Chair Toohey turned the gavel over to Co-Chair Bunde for HB 60.