Legislature(1995 - 1996)

03/20/1996 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HB 339 - PRISON & TERMINATION OF PARENTAL RIGHTS                            
                                                                               
 CHAIRMAN PORTER noted that there were five bills before the                   
 committee for consideration as follows:  HB 339, HB 387, HJR 51, HB
 368 and HB 443, the latter of which would not be heard.  He                   
 summarized concerns regarding HB 339 and the proposed changes to              
 this legislation.  There were two provisions in this legislation,             
 the first sought to provide specifics which the state and the                 
 courts could consider for the termination of parental rights, the             
 fact that the parent was incarcerated.  The second provision dealt            
 with changing the entire scope of determining whether or not                  
 parental rights should be terminated and the language which                   
 addressed this more specifically "willing and able," by adding the            
 word able.  This second section was completely deleted from the               
 committee substitute.  The legislation before the committee merely            
 purports to do what the original intent was and that is to consider           
 incarceration of a parent when assessing parental rights.                     
 Number 222                                                                    
                                                                               
 REPRESENTATIVE NORMAN ROKEBERG stated that this was a fair                    
 characterization of where the legislation stood and he complimented           
 the Chairman for his concise description.  He than asked for the              
 committee's consideration and support of CSHB 339 version (R).                
 Representative Rokeberg also added that the deleted portion as                
 noted would be considered separately.                                         
                                                                               
 Number 311                                                                    
                                                                               
 LIZ DODD, Esq., American Civil Liberties Union (ACLU), Alaska                 
 Chapter testified on CSHB 339 version (R).  She referred to page 5            
 of the Public Defender's memorandum which proposed that three                 
 paragraphs from a prior version of the legislation be included in             
 the present version (R) in order to narrow the scope of determining           
 parental rights.  The ACLU felt that the period of incarceration              
 imposed should include a significant portion of the child's                   
 minority.  The present bill is very broad on this note and allows             
 for a lot of discretion.  By putting this section in it would                 
 narrow this intent to minority children and accomplish the stated             
 purpose.                                                                      
                                                                               
 MS. DODD continued by stating that the section the ACLU would like            
 put back in this legislation is the clause that the parent has to             
 have failed to make adequate provisions for the care of the child             
 during the period of incarceration.  She felt as though the parent            
 should have this right.  Ms. Dodd noted that if this bill does get            
 passed the ACLU would like an additional paragraph drafted by the             
 Public Defender's Agency which would allow a judge some discretion            
 to retain some residual parental rights to the parent when the                
 termination takes place, such as visitation, for example.                     
                                                                               
 MS. DODD noted some general concerns about the bill.  She wondered            
 about the applicability of it in terms of a person incarcerated in            
 Lemon Creek and their child is in the custody of a grandparent.  If           
 the grandmother dies, can parental rights be lost under this                  
 scenario in this ex post facto way.  Once this legislation goes               
 into effect will someone already incarcerated come under the                  
 jurisdiction of this legislation.                                             
                                                                               
 MS. DODD also wondered if this legislation would have an impact on            
 sentencing.  It's such a severe act to have a child taken away, how           
 would judges interact with this.  Would they be less willing to               
 impose a stricter sentence under these circumstances.                         
                                                                               
 Number 627                                                                    
                                                                               
 REPRESENTATIVE JOSEPH GREEN inquired as to whether or not Ms. Dodd            
 was suggesting in section 3 of the Public Defender's memorandum               
 about a child's minority if parental rights were terminated would             
 this be applicable from the time the person is incarcerated and               
 their child is ten years old, for example.  Would the incarceration           
 from the time the bill be passed mean that this termination would             
 be in effect until this child becomes an adult, or would the ten              
 years of the child's prior life before this bill was passed be                
 included.  He asked what they were talking about in regards to                
 defining a child's life.  Would this include from the time the                
 child was born or from the time this bill goes into effect or for             
 the time this person is incarcerated.                                         
                                                                               
 MS. DODD said she assumed it would be the significant term of the             
 child's life and their remaining minority.  At least the language             
 which she proposed would narrow this time period considerably.                
                                                                               
 Number 785                                                                    
                                                                               
 DIRK NELSON, American Civil Liberties Union, testified by                     
 teleconference from Valdez regarding CSHB 339 version (R).  Mr.               
 Nelson echoed Ms. Dodd's concerns and said the Division of Youth              
 and Family Services (DYFS) on the surface was a good concept, but             
 individual social workers and attorney generals cannot be trusted             
 with this type of authority and power.  He cited the history as to            
 why incarceration has not been considered before when terminating             
 parental rights, the concept of double jeopardy for one.                      
                                                                               
 MR. NELSON summarized by stating that he didn't think this bill was           
 constitutional and he doesn't believe that the relationship between           
 a child and parent should be brought to an end by a third party               
 because of an incarceration.                                                  
                                                                               
 Number 973                                                                    
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY made a motion to adopt CSHB 339                 
 version (R) as the committee's working draft.  There being no                 
 objection the motion so passed.                                               
                                                                               
 REPRESENTATIVE CON BUNDE noted the suggestion that language should            
 be added to specify more clearly the terms of a child's minority              
 when considering the termination of parental rights.                          
                                                                               
 REPRESENTATIVE ROKEBERG offered that the definition by law of a               
 child is a minor and a minor is a child.                                      
                                                                               
 REPRESENTATIVE BUNDE stated that it should be taken into account              
 how much longer a child is going to be a minor, how large a portion           
 of a child's minority the incarceration would include.                        
                                                                               
 Number 1080                                                                   
                                                                               
 CHAIRMAN PORTER spoke to the notion of including language to                  
 reflect this concept.  He was concerned about this concept because            
 it would require that there be a substantial sentence applied                 
 before a termination would be considered.  It would eliminate the             
 ability of the court to consider frequent short sentences which               
 cause these same types of problems in a child's life.  Especially             
 due to alcohol, people cycle in and out of jail houses for years.             
 These types of cycles can cause considerable problems.  Chairman              
 Porter also addressed one of the other issues raised by Ms. Dodd              
 about a judge not wanting to institute a sufficient sentence based            
 on a minority child's future, he thought that one way around this             
 would be to not include this type of provision so that no matter              
 what the sentence is, termination of parental rights should be                
 considered.                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG stated that he agreed with this perspective           
 and added that trying to establish some sort of mathematical                  
 equation or another standard would take away any discretion a judge           
 could have.                                                                   
                                                                               
 Number 1170                                                                   
                                                                               
 REPRESENTATIVE DAVID FINKELSTEIN offered an amendment number 1 to             
 CSHB 339 version (R) which read as follows:                                   
                                                                               
 "(A) If parental rights are terminated under this section due to              
 incarceration, the court shall also make a specific finding                   
 concerning what residual parental rights are in the best interests            
 of the child and should be retained by the parent whose rights are            
 terminated."                                                                  
                                                                               
 He stated that this amendment would require that a specific finding           
 be included on any residual parental rights.  It doesn't say what             
 those would be and all options would remain available.                        
                                                                               
 REPRESENTATIVE ROKEBERG stated that he opposed the amendment                  
 because this was precisely why he introduced the bill.                        
                                                                               
 Number 1300                                                                   
                                                                               
 CHAIRMAN PORTER requested a roll call vote.  Representatives                  
 Finkelstein and Davis voted yes.  Representatives Green, Bunde,               
 Toohey, Vezey and Porter voted no.  The amendment number 1 failed.            
                                                                               
 Number 1285                                                                   
                                                                               
 REPRESENTATIVE AL VEZEY commended Representative Rokeberg for                 
 working on this legislation.  It was a difficult issue and he was             
 presently torn on this bill and was not certain how he would vote             
 if it was brought to the floor.                                               
                                                                               
 REPRESENTATIVE TOOHEY stated she too commended this legislation.              
 Some of her colleges felt as though this bill benefited older                 
 children, but she felt as though it's stated purpose was for                  
 infants.  She felt this legislation was important for a child in              
 need.   Representative Toohey then made a motion to move CSHB 339             
 version (R) from the House Judiciary Committee with individual                
 recommendations and a zero fiscal note.  There being no objection             
 it was so moved.                                                              

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