Legislature(1995 - 1996)

04/15/1996 09:10 AM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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        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.                                      

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