Legislature(1995 - 1996)

01/23/1996 03:00 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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            
 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           
 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               
 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               
 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             
 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.                                                  

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