Legislature(1995 - 1996)

02/15/1996 03:05 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 589                                                                    
 CO-CHAIR BUNDE announced asked Representative Rokeberg to give his            
 opening statements regarding HB 339.                                          
 REPRESENTATIVE ROKEBERG pointed out the committee substitute,                 
 sectional analysis and a copy of a court case which were added to             
 the original bill packet.                                                     
 Number 663                                                                    
 REPRESENTATIVE ROKEBERG moved to adopt committee substitute                   
 9-LS1124\F dated 2/13/96, as the working document.                            
 CO-CHAIR BUNDE asked if there were any objections.  Hearing none,             
 committee substitute 9-LS1124\F was adopted for discussion                    
 REPRESENTATIVE ROKEBERG said the committee substitute addresses the           
 concerns that were raised at the last hearing and since then the              
 Department of Health & Social Services has brought to his attention           
 a new case that was adjudicated by the Alaska Supreme Court on                
 January 26, 1996, which has made a definite impact on their                   
 operations.  He felt it was appropriate to address the concerns               
 that were brought up in that case and as a result, Section 2 of the           
 committee substitute was added.  A purpose section was added to the           
 bill which specifically brings to the attention of not only the               
 legislature but the court system as well, the intent of this                  
 legislation to meet the requests of the Supreme Court in the both             
 cases; that is in Section 1(a) the S.A. and D.A. case and in                  
 Section 1(b) the A.M. case and Nada A. case.                                  
 REPRESENTATIVE ROKEBERG referred to page 4, line 1 of the committee           
 substitute, and said the word "incarceration" was added to address            
 the concerns brought up at the last meeting about incarceration as            
 a result of a voluntary act committed by a parent.  On page 4 of              
 the committee substitute, language was added to overcome some of              
 the concerns expressed regarding the period of incarceration and              
 its sufficient length.                                                        
 REPRESENTATIVE ROKEBERG referred to page 2, Section 2, line 10 of             
 the committee substitute and said "caring or" has been deleted and            
 the words "and able" have been added.  He pointed out for the                 
 record that the draftsmanship does not remove the caring standard             
 from interpretation in this section, but it also meets the court's            
 concerns as expressed in the S.A. and D.A. case.  He directed                 
 committee members' attention to page 23 of the Supreme Court Case             
 which states "Mere `willingness' is not an acceptable alternative             
 to `caring,' and the legislature did not intend it to be."  It                
 continues that "willingness" which the statute demands must be                
 accompanied with the ability to provide care successfully.  Those             
 key elements are the reason why "caring" was deleted and "able" was           
 inserted in order to provide a higher standard of willing and able            
 in order to allow the court to find a child in need of aid.                   
 Number 939                                                                    
 JAN RUTHERDALE, Assistant Attorney General, Department of Law,                
 pointed out that Section 2, which was added, is really quite simple           
 and basically reflects where the department has been going up until           
 three weeks ago when the Supreme Court reversed course.  She said             
 it's not making something new, but it is fixing the law so the                
 department can go back to where they were up until three weeks ago.           
 It fixes it in two areas:  First, not only does a parent have to be           
 willing, ability has to be read into it and adding the word "able"            
 makes it clear that the parent has to be not only willing to care             
 and be providing care, but actually able to provide the care.                 
 Number 1057                                                                   
 CO-CHAIR BUNDE asked if the Department of Law supports the bill.              
 MS. RUTHERDALE replied yes.                                                   
 CO-CHAIR BUNDE said when he hears the word able, it raises                    
 questions in his mind about the mentally handicapped who may be               
 willing but not able to care for their children.  He asked Ms.                
 Rutherdale if this was getting into a grey area.                              
 MS. RUTHERDALE responded she didn't believe so, because that issue            
 has been litigated.  There is case law which basically says you               
 can't just terminate parental rights for example if a parent is not           
 able to care for a child just because they are mentally                       
 handicapped.  The court has said a condition is not conduct;                  
 parental conduct has to be looked at.  That doesn't mean a person             
 is protected from the state ever assuming custody just because they           
 are handicapped; they still look at if the parent can provide care.           
 CO-CHAIR BUNDE asked if the use of the word "able" connotates                 
 conduct, not condition.                                                       
 MS. RUTHERDALE said that was right.  With respect to the changes              
 made regarding the termination, she thinks these changes do address           
 the concerns that were raised by the committee at the last hearing.           
 She had a personal concern with the way the bill was previously               
 drafted in that the court would say you can't get around the fact             
 that incarceration is not conduct, and she feels that issue has               
 been met straight on now by saying that it doesn't matter if                  
 incarceration is not conduct, the definition is being expanded to             
 include parental conduct and incarceration.  She believes the                 
 insertion of the language "sufficiently long to seriously damage              
 the parent and child relationship or to cause serious emotional or            
 physical harm to the child" in Section 3 will help all cases.  What           
 is really being looked at is how does this affect the child, and              
 she feels this is a much cleaner definition.  It focuses on the               
 child and what termination of parental rights can do for the child.           
 Obviously, if the parental condition or incarceration is not going            
 to continue to the point where it's going to be either damaging to            
 the parent/child relationship or causing serious emotional,                   
 physical harm, then the parental rights shouldn't be terminated.              
 CO-CHAIR BUNDE said he assumed it was written that way to allow for           
 judgment in specific cases.                                                   
 MS. RUTHERDALE said that's right, it really is a case-by-case                 
 basis, but she feels it gives the judges a real clear standard to             
 judge the "likelihood to continue" issue.                                     
 Number 1243                                                                   
 REPRESENTATIVE BRICE referred to the wording "likely to continue to           
 exist sufficiently long to seriously damage the parent and child              
 relationship or to cause serious emotional or physical harm to the            
 child" and asked if cigarette smoke, which over a long period of              
 time has been shown to cause serious physical harm, is a concern.             
 MS. RUTHERDALE said first you have to show that the child is a                
 child in need of aid.  It's a two part test.  She thinks                      
 Representative Brice's concern has been addressed because the child           
 would never become a child in need of aid.  Assuming the child is             
 in a safe foster care, it's rare where parental rights need to be             
 terminated to prevent physical harm unless, of course, the child is           
 Number 1322                                                                   
 DIANE WORLEY, Director, Division of Family & Youth Services,                  
 Department of Health & Social Services, testified in support of HB
 339.  The division feels the addition of Section 2 as well as the             
 changes made in Section 3 are positive changes for the best                   
 interest of the child.                                                        
 Number 1356                                                                   
 REPRESENTATIVE ROBINSON said in the past there have been some                 
 feelings regarding foster parents getting involved and actually               
 adopting the children.  She believes it should be given some                  
 thought because she personally feels the foster parent should have            
 some rights to adopt the children if they've been caring for the              
 children and have shown to be good parents.                                   
 MS. WORLEY said Representative Robinson was absolutely right and              
 one of the goals of the Division of Family & Youth Services is                
 permanency planning for all children, whether that be continuing in           
 their natural family, returning to their natural family as quickly            
 as possible, or when that is not possible, to find a permanent                
 situation whether it be a guardianship, adoption, relative                    
 placement or whatever that will ensure the child a permanent place            
 and a permanent home with loving, caring and able parents.                    
 Number 1442                                                                   
 LYNN STIMLER, American Civil Liberties Union, said she had been               
 requesting the latest work draft of HB 339 from the Legislative               
 Information Office.  However, the LIO didn't receive it until about           
 3 minutes before the hearing started.  She received work draft C at           
 about 1:30 p.m., and it's very different from the version before              
 the committee.  She was fairly troubled because at least up until             
 work draft C, she had some serious constitutional issues to raise.            
 She said it was very difficult for her to give the committee                  
 (indisc.) testimony, but she would express her concerns, some of              
 which might not apply to this draft.                                          
 MS. STIMLER said up to draft C, the ACLU was concerned about                  
 perhaps unconstitutionally vague language regarding parents failing           
 to make adequate provisions.  Their concern was whether this was              
 open to a constitutional challenge under double jeopardy.  She                
 added new cases are moving through the federal courts where the               
 courts are holding that additional sanctions to prisoners amount to           
 double jeopardy.  The ACLU is also concerned about due process from           
 a prisoner perspective.  She thought there is an issue about                  
 whether incarcerated parents fit cleanly into this statutory scheme           
 and whether the incarcerated prisoner who is a single parent with             
 no family but does have a reasonable relationship with the child,             
 is going to have the ability to contest the termination proceedings           
 in a way that is in the best interest of the family.  She was also            
 somewhat concerned about how the Indian Child Welfare Act (ICWA)              
 fits into this and whether that had been considered by the                    
 legislature.  She commented that a high percentage of the prisoners           
 are Native American.                                                          
 MS. STIMLER concluded that her overall concerns are not of the                
 caliber they would have been if the ACLU had been given a chance to           
 work with other organizations and formulate their testimony.                  
 CO-CHAIR BUNDE remarked the information had been sent out as                  
 quickly as the committee got it.  To ally some of Ms. Stimler's               
 concerns, he said HB 339 has a State Affairs Committee referral               
 after the HESS Committee, with a further referral to the House                
 Judiciary Committee.  He felt this would allow ample opportunity              
 for Ms. Stimler to testify on the various versions as it goes                 
 MS. STIMLER commented her goal was to ensure the legislature                  
 received quality testimony from the ACLU that can be relied on.               
 Number 1622                                                                   
 STEVE CONN, Executive Director, Alaska Public Interest Research               
 Group, said he was certain the Department of Law was not factoring            
 in the Indian Child Welfare Act and the related case law in its               
 entirety.  The impact of this on Alaska Natives and Alaska Native             
 families, in a legal sense, is going to be truly profound.  In                
 fact, it was Alaska and the termination of parental rights back in            
 the 70s, that led to the passage of the Indian Child Welfare Act.             
 He thought there may be problems with cruel and unusual punishment            
 or double jeopardy.  Also, it may be perceived as a bill of                   
 attainder and certainly deserved a fiscal note because it is going            
 to create havoc.  When all the shouting is done, he'd like some of            
 the sponsors of this legislation to go to the Palmer Correctional             
 Facility on visitors day, watch inmates greet their children and              
 their loved ones and then ask yourself if it's not better for child           
 and parent alike that these relationships be sustained and                    
 maintained rather than rendered asunder by legislation such as                
 REPRESENTATIVE ROKEBERG said he would appreciate Ms. Stimler                  
 contacting his office after her review of the draft committee                 
 substitute.   He reiterated the cases that generated this                     
 legislation are cited in the Purpose Section for case citations.              
 MS. STIMLER replied the ACLU would be contacting his office.                  
 CO-CHAIR BUNDE closed public testimony and asked what the wishes              
 were of the committee.                                                        
 Number 1717                                                                   
 CO-CHAIR TOOHEY made a motion to pass CSHB 339(HES) out of the                
 House HESS Committee with a zero fiscal note and individual                   
 recommendations.  Hearing no objection, it was so ordered.                    

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