Legislature(1995 - 1996)
04/15/1996 09:10 AM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 339 TERMINATION OF PARENTAL RTS OF PRISONERS Number 331 CHAIRMAN GREEN introduced HB 339 as the next order of business before the committee. REPRESENTATIVE ROKEBERG, Prime Sponsor, informed the committee that HB 339 had five hearings in the House and was substantially amended on the House floor. HB 339 allows the courts to consider that a parent is incarcerated when determining whether or not to terminate parental rights. When the courts determine whether to terminate parental rights, the court must consider that the child is in need of aid as a result of parental conduct as well as considering if the conduct is likely to continue. The case law in Alaska indicates that incarceration does not constitute willful abandonment which is the key to this issue. Representative Rokeberg discussed the Nada A. v State case in which Alaska Supreme Court Justice Compton wrote a dissenting opinion requesting that the legislature pursue this issue. This was reiterated in the case A.M. v State of Alaska last year. In both cases, the court did not have the authority to consider parental incarceration as a form of willful abandonment. Representative Rokeberg believed that the controversy in the bill was resolved in the House by clarifying in statute that the length of the parent's incarceration, the age of the child, and a significant amount of time would have to occur before this would be considered. The procedure to terminate parental rights is a lengthy, full hearing before the Superior Court in order to protect the rights of everyone involved. The state courts and departments must consider the Indian Child Welfare Act because it is a federal statute. In conclusion, Representative Rokeberg urged support HB 339. Number 392 PEGGY THOMAS, foster parent, informed the committee that she was the foster parent in the A.M. v State of Alaska. When Ms. Thomas received the two children, Mark was four and Samantha was 18 months old. The children have been with Ms. Thomas for six years. The Tlingit mother of the children has relinquished her parental rights and would like the children to be available for adoption. The children have contact with their mother. Currently, the father is in prison in Palmer after being convicted of theft and sexual abuse of a minor in the second degree. The sexual abuse was against Mark and Samantha's half sister. There is no reconciliation for the mother and father of Mark and Samantha. She informed the committee that the father is due to be released May 14th. The children have court ordered phone contact with their father every week. She emphasized that the children need some permanency. Ms. Thomas urged the committee to support HB 339. SENATOR SALO inquired as to how HB 339 would effect Ms. Thomas' case. PEGGY THOMAS said that the bill will not effect her case. SENATOR SALO asked how the bill could have effected Ms. Thomas' case. PEGGY THOMAS believed that the bill would have allowed the judge to terminate the father's rights on the basis of the father's background and the likelihood that the sexual abuse would continue. SENATOR SALO asked Ms. Thomas if she expected the father to want the children back. PEGGY THOMAS replied yes. The father must complete some requirements of the Division of Family & Youth Services (DFYS) before he can have the children back. Number 432 DIANE WORLEY, Director of the Division of Family & Youth Services, stated that the department supports HB 339. This bill would not effect all children of incarcerated parents, only a small number of children would be impacted. If there is a caring, loving parent in charge of the children, then the children would not be in need of aid. This bill would only effect those cases in which a parent or both parents were incarcerated for an extended amount of time, and no arrangements had been made for the children. The likelihood of the conduct of the parent would also be a point to consider. Ms. Worley reiterated that HB 339 does not effect the Indian Child Welfare act. HB 339 would probably not impact a lot of cases, but would help in cases such as Ms. Thomas'. SENATOR LEMAN recalled a case in which two people murdered three people in East Anchorage. One of the murderers was a 13-year-old girl who was subsequently convicted and incarcerated. During her incarceration, the 13-year-old became pregnant and delivered a child. That child was taken from the 13-year-old and raised by her mother. Senator Leman assumed that in such a case, the court would want to terminate parental rights if possible. Would HB 339 effect such a case? DIANE WORLEY explained that in such a case, the 13-year-old's parental rights may not be terminated if her mother was willing and able to raise the child. The decision to terminate parental rights in such a case would also depend upon the wishes of the mother of the 13-year-old. The mother of the 13-year-old could also take legal guardianship of the child. There are many factors that could be taken into account depending upon the circumstances. SENATOR MILLER in the same case posed by Senator Leman, what if a third non-related party wanted to adopt the child? Could HB 339 be used to terminate parental rights or would it just make the process easier? DIANE WORLEY explained that DFYS first looks for relative placement of a child. If there are no relatives, then foster care or adoption would be the next possibility. In the case posed by Senator Leman, if the 13-year-old was going to be incarcerated for the majority of the child's youth then HB 339 could come into play. Number 488 CHAIRMAN GREEN asked if the termination of parental rights establishes long-term foster care or adoption. Are those the options? DIANE WORLEY clarified that the termination of parental rights could result in adoption by a third party or a relative, a guardianship, or a permanent foster adopt placement. SENATOR SALO inquired as to what would prevent a new hearing regarding the termination of parental rights in a case such as Ms. Thomas' if the statute changed. DIANE WORLEY understood that in Ms. Thomas' case the father will be released soon. If the father is incarcerated again, then HB 339 would apply. In Ms. Thomas' case, the actions of the father could lead to the indications that he is not a fit parent. SENATOR SALO said that waiting for the father to reoffend would place the children in danger. DIANE WORLEY agreed, but noted that DFYS will do everything possible to protect the children. If DFYS feels that placing the children in the father's care would put the children in danger, DFYS would not allow it to occur. REPRESENTATIVE ROKEBERG pointed out that Ms. Thomas' case is still in litigation regarding such issues. SENATOR GREEN understood that DFYS already has the authority to assess whether an incarcerated parent who is released could adequately care for their children. DFYS is concerned with parents who face long-term incarceration. DIANE WORLEY agreed. Number 522 JAN RUTHERDALE, Assistant Attorney General in the Department of Law, stated that the department supports the passage of HB 339. She informed the committee that she represented the state in Ms. Thomas' case. The state alleged many grounds, but the court only went on one ground. The case was reversed on that ground and remanded. She pointed out that other grounds remain such as the sexual abuse of the step-sister of the children. Ms. Rutherdale felt confident that the court would find that the children are in imminent danger of sexual abuse. This case is a sad comment on the system. With HB 339, the termination of parental rights in such cases would be easier. The court would review if the parent would be incarcerated for a significant portion of the child's minority and has the parent failed to make adequate arrangements for the child. HB 339 would not come into play if permanent arrangements have been made for the child. Ms. Rutherdale said that HB 339 could apply to someone in jail for a significant amount of time who has not made arrangements for their child when the bill goes into effect. SENATOR MILLER moved to report CSHB 339(JUD) am with individual recommendations and accompanying fiscal notes out of committee. Hearing no objection, it was so ordered.