Legislature(1995 - 1996)
03/06/1996 01:18 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 6, 1996
1:18 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
Representative Bettye Davis
COMMITTEE CALENDAR
HOUSE BILL 457
"An Act relating to the unlicensed practice of certain occupations
for which licenses are required."
- CSHB 457(STA) MOVED FROM COMMITTEE
HOUSE BILL 339
"An Act relating to the termination of parental rights of
incarcerated parents."
- HEARD AND HELD
HOUSE BILL 341
"An Act establishing a tax court to consider and determine certain
taxes and penalties due and collateral matters, and amending
provisions relating to taxpayer challenges to the assessment, levy,
and collection of taxes by the state; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 457
SHORT TITLE: FINES: UNLICENSED PRACTICE OF OCCUPATION
SPONSOR(S): REPRESENTATIVE(S) JAMES
JRN-DATE JRN-PG ACTION
01/30/96 2569 (H) READ THE FIRST TIME - REFERRAL(S)
01/30/96 2570 (H) STATE AFFAIRS, JUDICIARY
02/06/96 (H) STA AT 8:00 AM CAPITOL 102
02/06/96 (H) MINUTE(STA)
02/08/96 (H) STA AT 8:00 AM CAPITOL 102
02/08/96 (H) MINUTE(STA)
02/15/96 (H) STA AT 8:00 AM CAPITOL 102
02/15/96 (H) MINUTE(STA)
02/22/96 (H) STA AT 8:00 AM CAPITOL 102
02/22/96 (H) MINUTE(STA)
02/23/96 2869 (H) STA RPT CS(STA) 4DP
02/22/96 2869 (H) DP: IVAN, WILLIS, PORTER, JAMES
02/23/96 2869 (H) ZERO FISCAL NOTE (DCED)
03/06/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 339
SHORT TITLE: PRISON & TERMINATION OF PARENTAL RIGHTS
SPONSOR(S): REPRESENTATIVE(S) ROKEBERG,Mulder,Robinson
JRN-DATE JRN-PG ACTION
05/08/95 1976 (H) READ THE FIRST TIME - REFERRAL(S)
05/08/95 1976 (H) HES, STATE AFFAIRS, JUDICIARY
01/23/96 (H) HES AT 3:00 PM CAPITOL 106
01/23/96 (H) MINUTE(HES)
01/24/96 2528 (H) COSPONSOR(S): MULDER
01/30/96 2573 (H) COSPONSOR(S): ROBINSON
02/15/96 (H) HES AT 3:00 PM CAPITOL 106
02/15/96 (H) MINUTE(HES)
02/19/96 2800 (H) HES RPT CS(HES) NT 3DP 3NR
02/19/96 2801 (H) DP: ROKEBERG, TOOHEY, ROBINSON
02/19/96 2801 (H) NR: G.DAVIS, BUNDE, BRICE
02/19/96 2801 (H) ZERO FISCAL NOTE (DHSS)
02/22/96 (H) STA AT 8:00 AM CAPITOL 102
02/22/96 (H) MINUTE(STA)
02/23/96 2867 (H) STA RPT CS(HES) NT 3DP 1NR
02/23/96 2868 (H) DP: JAMES, PORTER, WILLIS
02/23/96 2868 (H) NR: IVAN
02/23/96 2868 (H) ZERO FISCAL NOTE (LAW)
02/23/96 2868 (H) ZERO FISCAL NOTE (DHSS) 2/19/96
02/23/96 2868 (H) REFERRED TO JUDICIARY
03/06/96 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 341
SHORT TITLE: TAX APPEALS/ASSESSMENT/LEVY/COLLECTION
SPONSOR(S): REPRESENTATIVE(S) GREEN
JRN-DATE JRN-PG ACTION
05/09/95 2042 (H) READ THE FIRST TIME - REFERRAL(S)
05/09/95 2042 (H) RES, JUD, FINANCE
10/24/95 (H) RES AT 9:00 AM ANCHORAGE LIO
10/24/95 (H) MINUTE(RES)
01/19/96 (H) RES AT 9:00 AM CAPITOL 124
01/19/96 (H) MINUTE(RES)
01/24/96 (H) RES AT 8:00 AM CAPITOL 124
01/24/96 (H) MINUTE(RES)
01/26/96 2536 (H) RES RPT CS(RES) NT 1DP 4NR 3AM
01/26/96 2537 (H) DP: GREEN
01/26/96 2537 (H) NR: OGAN, AUSTERMAN, KOTT, WILLIAMS
01/26/96 2537 (H) AM: NICHOLIA, DAVIES, LONG
01/26/96 2537 (H) FISCAL NOTE (COURT)
01/26/96 2537 (H) ZERO FISCAL NOTE (REV)
01/26/96 (H) RES AT 8:00 AM CAPITOL 124
01/26/96 (H) JUD AT 1:00 PM CAPITOL 120
01/26/96 (H) MINUTE(RES)
01/26/96 (H) MINUTE(JUD)
01/29/96 (H) JUD AT 1:00 PM CAPITOL 120
01/29/96 (H) MINUTE(JUD)
02/28/96 (H) JUD AT 3:00 PM CAPITOL 124
02/29/96 (H) JUD AT 4:00 PM HOUSE FINANCE 519
03/01/96 (H) JUD AT 8:00 AM CAPITOL 124
03/06/96 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE JEANNETTE JAMES
Alaska State Legislature
State Capitol, Room 102
Juneau, Alaska 99801-1182
Telephone: (907) 465-3743
POSITION STATEMENT: Testified on HB 457
REPRESENTATIVE NORMAN ROKEBERG
Alaska State Legislature
State Capitol, Room 110
Juneau, Alaska 99801-1182
Telephone: (907) 465-4968
POSITION STATEMENT: Testified on HB 339
JAN RUTHERDALE, Assistant Attorney General
Human Services Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Provided information on HB 339
DIANE WORLEY, Director
Division of Family & Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-3191
POSITION STATEMENT: Testified in support of HB 339
DIRK NELSON, Social Worker Union
P.O. Box 2437
Valdez, Alaska 99686
Telephone: (907) 835-5894
POSITION STATEMENT: Testified against HB 339
LIZ DODD
Alaska Affiliate
American Civil Liberties Union
100 Parks Street
Juneau, Alaska 99801
Telephone: (907) 463-2601
POSITION STATEMENT: Testified against HB 339
BLAIR MCCUNE, Assistant Public Defender
Alaska Public Defender Agency
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Provided information on HB 339
PHILLIP PALLENBERG, Supervising Attorney
Public Defender Agency
P.O. Box 1110216
Juneau, Alaska 99811-0216
Telephone: (907) 465-4911
POSITION STATEMENT: Provided information on HB 339
SCOTT CALDER
P.O. Box 75011
Fairbanks, Alaska 99707
Telephone: (907) 474-0174
POSITION STATEMENT: Testified regarding HB 339
ACTION NARRATIVE
TAPE 96-29, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting
to order at 1:18 p.m. Members present at the call to order were
Representatives Green, Bunde, and Toohey. Representatives
Finkelstein and Vezey arrived at their respective times of 1:25
p.m. and 1:55 p.m. Representative Davies was absent.
HB 457 - FINES: UNLICENSED PRACTICE OF OCCUPATION
Number 083
REPRESENTATIVE JEANNETTE JAMES testified on HB 457 and stated that
this legislation was requested by the Legislative Budget and Audit
as a part of the sunset audits on various boards. Current law
allows enforcement of practicing certain occupations without a
license only through the courts and this bill allows the department
to impose a civil penalty if a person practices or offers to
practice an occupation in this state that is regulated under AS
08.01.00. The civil penalty may not exceed $5000 for each offense.
The bill also provides for enforcement mechanisms.
REPRESENTATIVE JAMES noted that there was a concern indicated about
the due process of this legislation, but the agency which has
jurisdiction is under the rule of the Administrative Procedures
Act.
Number 181
REPRESENTATIVE CYNTHIA TOOHEY asked if this was a wide spread
problem in the state.
REPRESENTATIVE JAMES said she would have to list all of those
occupations which are noted under this section in order to give the
committee an indication where there might be some problems. She
said that it would be pretty hard for someone to do some of the
activities covered without a license, but there are some
occupations where they could hold themselves out to do a service.
She said that yes, there is some concern.
Number 249
REPRESENTATIVE BUNDE asked if there was support from the department
for this legislation. Representative James responded that, yes
there was.
CHAIRMAN PORTER noted for the information of the committee that in
their review of the legislation they were concerned that there was
language providing for the department to subpena witnesses, but not
for potential defendants. This is not the case.
Number 296
REPRESENTATIVE BUNDE made a motion to move CSHB 457(STA) from the
House Judiciary Committee with individual recommendations and
attached zero fiscal note. Hearing no objection it was so moved.
HB 339 - PRISON & TERMINATION OF PARENTAL RIGHTS
Number 446
REPRESENTATIVE NORMAN ROKEBERG testified on HB 339. He stated that
a loop-hole was discovered in the law regarding the termination of
parental rights. The Supreme Court specifically asked the
legislature to make changes in the law when considering what's best
for a child so that they're not precluded from looking at cases
where parents are in prison. These requests for changes were made
on two separate occasions, one in 1983 and again in 1985. What
this legislation does is to allow the courts to consider situations
where a parent is in prison and that the prison term is long enough
to have an impact on the child's relationship with this parent and
could potentially cause harm to the child especially given the
length and duration.
REPRESENTATIVE ROKEBERG noted that the purpose section of the
Heath, Education & Social Services (HESS) Committee Substitute is
very clear regarding what this bill does. The court has repeatedly
asked the legislature to solve this problem, which is that they're
precluded from taking into account a parent being in prison as a
reason to terminate this relationship. He drew the committee's
attention to page 4, lines 3 and 4. This new language clearly
states the level of deterioration which must take place in order to
terminate (indisc. - witness covered the microphone with papers.)
REPRESENTATIVE ROKEBERG stressed that the termination of parental
rights is not an area which the court enters into lightly, but they
want to be able to consider everything, including whether or not
the parents are in prison. He said that he was really surprised
that the only group opposed to this is the Alaska Public Defender's
agency who represent prisoners before the court on a regular basis.
He asked if they ever represent these same children in the same
court. The Public Defender Agency believe that opposition to this
bill is in the best interest of the child and Representative
Rokeberg believed that they were wrong.
REPRESENTATIVE ROKEBERG noted that the other thing the agency
doesn't like is a word change on page 2, line 10 from "caring or
willing" to "willing and able." This change was made on behalf of
the Department of Health and Social Services and was supported by
the State Affairs Committee as well. It has been a long standing
practice by the department to interpret the statute as "willing and
able". The administration has convinced him that it's important to
tighten the title before it goes on to the Senate. This bill has
had two HESS Committee hearings and a State Affairs Committee
hearing.
REPRESENTATIVE ROKEBERG mentioned that the new Committee
Substitute, Version M before the committee had been drafted to
allow for only a new title. The substantive portions of the bill
had not been changed.
Number 810
JAN RUTHERDALE, Assistant Attorney General, Human Services
Division, Department of Law came forward to state that she was
available to answer any question the committee may have. The
Department of Law supports this legislation.
REPRESENTATIVE GREEN made a motion to adopt CSHB 339, version M as
the draft legislation before the House Judiciary Committee.
Hearing no objection it was so moved.
DIANE WORLEY, Director, Division of Family & Youth Services,
Department of Health & Social Services testified in support of HB
339 and stated that basically they were in favor of this change
because there are cases where they want to do permanency planning
for children, they want to move forward when there are situations
when they realize very quickly that there are no short term
solutions and they want to move quickly to get the child into
permanent placement. This would add in this child having a
positive childhood. In this case "willing and able" meets their
criteria. This allows for clearer criteria when determining
placement of a child and when to consider parental termination.
Number 950
REPRESENTATIVE BUNDE stated that he had an on-going concern and
referred to state policy that it's always best to return a child to
their biological parent. This has lead to children going back to
very abusive arenas. He asked Ms. Worley if she saw this
legislation as a shift away from this policy, that there are times
when it's not automatically best to send children back to their
biological parents.
MS. WORLEY thought that this certainly was the case. The
department believes that if whenever possible, when the child can
be safe, it is best that they return to their parents, but there
will always be situations where a child is never going to be in a
safe environment. In these cases, when they are able to recognize
this early on, it is the department's preference to move forward so
the child has an opportunity for a positive childhood. If the only
parent involved with a child is incarcerated and they'll possibly
be in jail for 20 years, the department's hope is to set up a plan
that would be appropriate for this child to have permanent
placement. Depending on the situation, they try to individualize
every plan.
Number 1084
CHAIRMAN PORTER asked that under these situations if a parent is
incarcerated for an extended period of time and has a minor child,
if there is another parent who is otherwise generally able or
another relative able would these individuals have preference
rather than institute parental termination.
MS. WORLEY stated, absolutely. In a case where there are two
parents and one was incarcerated, but the other parent was a
perfectly fine parent with no other problems, then the department
would not even be involved in the situation. Just the fact that a
person is incarcerated would not put this child in debate. She
also noted that relative placements are their top priority. They
look for these first and foremost with almost every case.
Number 1208
REPRESENTATIVE GREEN asked about a parent with a minor child and
whether the parent is abusive or not, but they would like their
child to live with a relative. Would the department become
involved in a situation like this. Let's just say, first of all,
a parent is abusive and to circumvent the child being taken from
the family, the parent arranges for this child to live with a
relative.
MS. WORLEY noted that if this child had been abused and taken into
state custody, then the department would have final say where this
child is placed. If this had not come to their attention, or the
family is not involved with the system, then it's likely this child
could live with relatives without the department becoming involved.
Number 1305
REPRESENTATIVE GREEN asked about the child who doesn't like
discipline, but the child states that they are being mentally
abused and wants out.
MS. WORLEY stated that this situation doesn't happen quite as often
as they'd think, but her belief is that social workers and the
child protective service staff are trained to make assessments. If
there were no facts or conclusive evidence that there was something
going on the state would not be involved. The department strongly
supports discipline in homes and encourages parents to utilize
effective discipline methods with their children. She added that
she certainly trusts the work of her staff to make good
determinations about family situations.
Number 1359
MS. WORLEY responded to a question posed by Representative
Finkelstein regarding the word "able." She referred to a
hypothetical situation that if a parent was seriously abusive and
didn't have adequate ability to provide basic needs for their child
and they made the argument that they were "willing" to care for
this child, but under the circumstances they aren't able to care
for this child. If both these criteria are incorporated, just
because a parent is willing, often times parents aren't able to
provide basic necessities for a child. Also, just because a parent
isn't able to provide for their child, the department is willing to
help with additional services to aid in rearing their children.
REPRESENTATIVE DAVID FINKELSTEIN said he feared other uses of the
term able, because it seems like the example Ms. Worley used is
addressed in (b) and (c) of this legislation and deals with
substantial physical harm or having suffered or being threatened
by...it seemed to him that this option already exists. He asked
about financially being able to provide for a child.
MS. WORLEY noted that the department does not use economics as a
base standard for whether a parent is able or not to provide for
their child. She noted that there are a lot of people who are
economically strapped who still provide for their children. She
again mentioned other public services to help with the financial
aspects of a family.
Number 1495
REPRESENTATIVE FINKELSTEIN stated that he doesn't question so much
what the department would do, but what this change in the law would
allow. It seemed to him that it allows the department to put a
child into this "child in need of aid" category in a circumstance
where the parents are not financially able to take care of them,
even though this may not be their policy to do this, it certainly
seems to give them the latitude to do this.
CHAIRMAN PORTER asked Ms. Worley if the department was asking that
this wording be changed to correct the incarcerated parent problem
or for an expanded definition of the word able.
MS. WORLEY responded that she believed that the intent was not for
an expanded definition of able. She thought it was for the
purposes of clarity and the word "able" seemed to tighten up this
definition.
CHAIRMAN PORTER stated that with all due respect there was another
opinion as to whether this was a tightening or loosening. He asked
as it related to the incarceration situation, if the wording were
caring, willing and available, would this fix the problem.
Chairman Porter referred to the Supreme Court cases which the
legislature has been specifically asked to legislatively say
whether or not this absence is a reason for termination. He
thought that this was the intent of this present legislation to
narrow the scope.
MS. WORLEY said she would have to think about this. She thought
that this was where they were moving with incarceration. Ms.
Worley said she'd like Ms. Rutherdale to address some of the legal
issues regarding HB 339.
Number 1680
DIRK NELSON, Social Worker, Board of Alaska Civil Liberties Union,
testified as an individual against HB 339. He felt as though this
legislation was developed for just a handful of cases. Some
parents may end up in jail for issues where child abuse is not an
issue. People are currently being jailed contradictory to the
state's constitution. He used the example of people being jailed
for cultivating marijuana even though the Supreme Court ruled that
this is acceptable practice. He would hate to see that the state
is wrong and further punish someone who has already been victimized
once.
MR. NELSON thought that terminating parental rights in conjunction
with incarcerating them might be interpreted to be double jeopardy.
He pointed out that while someone has been sentenced criminally,
certainly taking someone's status as a parent away is a second
punishment. He also thought that this was a punishment to the
child. He didn't see anything in this bill which would require the
state to consult the child. He frequently sees guardian ad litem
individuals make their decisions based on what's best for the child
under the assumption that all children don't really know what they
need anyway.
MR. NELSON stated that HB 339 extends the right to Department of
Youth and Family Services (DYFS) beyond simply keeping the child
safe and healthy. An incarcerated parent doesn't necessarily
terminate the child's emotional ties to that parent. This bill
does not specify conditions and would therefore leave standards
open to interpretation by individual social workers and attorney
generals where there may already be too much room for independent
action. He noted a DYFS employee who was prone to violating
department policy and/or created their own policy as a reminder of
the need to check the power of the state.
MR. NELSON questioned whether or not the department should have
this type of power to increase termination of a sanctified bond.
He noted a concept espoused by a writer named Stein. Mr. Stein
made the point that as society pursues the ideal family they draw
up templates to define what these families will look like. The
irony of this is, if they hold up these templates to any family, no
family will pass them 100 percent. Mr. Nelson summed up his
comments by stating that this legislation gives DYFS too much power
especially to social workers who have a lot of independent
abilities to make independent decisions.
LIZ DODD, Alaska Affiliate, American Civil Liberties Union (ACLU)
testified against HB 339. She noted that the stated purposes for
HB 339 are two fold, the first, to change the statutory criteria
for when termination proceedings concerning children in need of aid
can be considered, and second, to create statute that would make a
parent's incarceration a legitimate factor to be considered by
state agencies in deciding when to initiate termination
proceedings. The bill states it's explicit purpose is to overrule
a January 1996 Alaska Supreme Court case in which the court
attempted to clarify an interpretation of the first of six criteria
that guide when the state makes a determination of parental rights.
The second stated purpose of the bill is to respond to, "the Alaska
Supreme Court's invitation" to create a statutory basis for making
incarceration a factor that can be considered in parental
termination proceedings concerning children in need of aid. Ms.
Dodd stated that "invitation" is inferred from concurring opinions
signed onto in various cases three of which she referred to as
being in the bill file which she had reviewed.
MS. DODD believed that three Supreme Court justices at various
times wrote not in the body of the opinion, but in the concurrences
and a partial dissent that was attached to one of the opinions,
their wish that the legislature would address this question of
incarceration. One of these opinions spoke extensively to this
1996 opinion where the court had tightened up the state's leigh way
in using Section (a) of this statute, which is this "able" to care
for children as has been discussed. In all of these cases, all of
the justices agreed with the outcome with specific comments. She
thought this was important to note. They all agreed that on the
use of the existing statute as applied to these cases that the
outcome of them was not unjust. None of them thought that the
court had been forced by the existing statute to do the wrong
thing.
MS. DODD noted that a close review of these findings related to
this bill shows that the current statute provides as good a
balancing of parental and children's rights as can be expected
given the unavoidable conflicts inherent with this issue. It
appears in two of these three cases, justice was served. This
pointed to the fact that this was just a subjective reading of
these cases and her subjective reading of the same was whether or
not the child was well taken care of in these situations. In the
case where she felt uncomfortable with what had happened involved
the state where they were able to enforce other sections of the
existing statute, instead they chose to enforce Section (a) in an
attempt to broaden it and the court didn't take the bait.
Consequently, this child may not have been as well protected.
MS. DODD asked if there was a concrete problem which needed a
drastic fix such as this with the proposed legislation. She
allowed that there may be cases out there where justice has been
served under the present statute, but they do not appear to be
these three cases which she noted. The ACLU believes that the
questions so carefully considered in the court's opinions on these
matters, as well as those obviously studied closely in preparing
this legislation are of extremely serious concern. She was certain
that all those people supporting and opposing this legislation
bring along a shared concern for the rights of children and that
all of them when faced with the faulty dilemma of having to
sacrifice either the rights of adults or the rights of children
would act to protect the child, however when the rights of parents
do collide with the rights of their children, laws must be crafted
in such a way as to direct state officials to solutions that
wherever possible, protect the rights of all. After all, the
removal of a child from a parent is always going to be in some way
harmful to the well being of both.
MS. DODD pointed out that where parenting rights cannot co-exist
with protections that government owes it's children, the state must
be armed with legislation and statutes which define clearly the
state's role in exerting protections. If the standard for
termination of the parental rights is too loose children may
unjustly be taken from their parents, if the standard is too
restrictive children will be forced into harms way. She added that
one important thing to keep in mind is that most parents in our
society exert very broad authority over their children and are
rarely restricted in the methods chosen for raising their children.
Regardless of the harm done to scores of children in their homes
most parent's "ability" in raising their children will never be
reviewed by the state. Ms. Dodd continued that in 1996 most
parents will probably still assert that their parental rights are
akin to property rights and these rights should not be interfered
with by the state. Ms. Dodd reminded the committee that what they
were talking about here were only some families, families which for
some reason (often times poverty), have wandered into the sights of
state supervision. Government, through the authority of the
constitution is compelled to provide to all people equal protection
under it's laws and to work for the greatest possible extension of
life, liberty and the pursuit of happiness. Children are the most
helpless among us, they rely on their parents and other adults
close to them, to feed and shelter, to nurture and protect them.
When a child's dependence on an adult results in harm to the child,
the state is duty bound to take actions to cure this situation.
MS. DODD noted that through long standing policy the United States
has refuted the notion of likening children to private property in
laws which seek to protect children as vulnerable individuals
deserving of protection. Laws protecting children reflect the
finest impulses in society. As one can see in reading the three
cases mentioned in the stated purpose of this bill, even with
arguably imperfect statutory language, our court has been able to
consistently protect both children and families. There is a
critical fact which is not discussed in either the bill or the
court's opinions that lead to the bill. The critical fact is the
overall inequality that permeates our society today, the fact that
as is evident in two of the three cases, Alaska natives are more
likely than non-natives to find themselves in parenting termination
controversies and the fact that poor people, because of their
necessary relationship to social service agencies, live under a
much greater level of government scrutiny than those of us more
well-to-do. Because of this tent of inequality, under which we all
dwell, when some parents abandon or abuse their kids there are no
consequences.
MS. DODD summed up her comments by stating that situations where
termination of parental rights should be allowed should be stated
explicitly in law and she noted sections (b) through (f) of the
statute. The ACLU doesn't think that there is a need for these
revisions. In this society, the language which provides the state
the mechanism for taking children away from parents needs to be
absolutely precise. She noted that the duration of time for
incarceration should be explicit because there's a change where if
someone was only serving two years in jail, this bill could be
applied to their situation.
Number 2300
REPRESENTATIVE TOOHEY asked Ms. Dodd if she really thought that
DYFS would take a child away from their parent who is incarcerated
for two months.
MS. DODD noted that one of the cases in the bill folder where the
department did take away the rights of a woman who she thought they
shouldn't have and the Alaska Supreme Court also thought the lower
court was in error. She referred to a very specific statute which
corrected this situation. She asked how much discretion should be
given to a state agency.
Number 2340
REPRESENTATIVE ROKEBERG noted for clarification that this bill is
in two separate Sections, Section 2 of this bill addresses a child
in need of aid with the addition of language "willing and able."
The incarceration standard for the courts to consider is in Section
3 and these are totally separate issues, but these sections have
one common umbilical and that is within the purview of defining a
child in need of aid. This bill was introduced by Representative
Rokeberg, originally consisting of only Section 3, then it was
heard in the State Affairs Committee in this original form and once
it reached the HESS Committee, the Department of Law came to him
with this new section because of the case which was adjudicated in
January 1996.
Number 2400
BLAIR MCCUNE, Assistant Public Defender, Alaska Public Defender
Agency testified by teleconference from Anchorage in regards to HB
339. He noted the written memorandum which he submitted to the
committee for consideration and added that it was Section 2 of the
pending legislation which the agency was concerned about. There
are many situations in which the DYFS becomes involved with
families and the Public Defender's practice regarding these cases
is pretty severe, including physical harm, abuse or neglect.
TAPE 96-29, SIDE B
Number 000
MR. MCCUNE noted that abandonment is included in subsection (a) of
the pending legislation and beyond this there is (b), (c), (d), (e)
and (f) which take into account pretty much every situation where
the state should, or ought to be involved in a family's affairs.
He stated that adding the language "and able" to Section (a) seems
to the Public Defender's Agency a radical departure from what had
be allowed before. He referred to an example illustrated in his
memorandum where a radio station in Fairbanks, advertized that
there was a child who needed a very expense operation outside of
Alaska and solicited money from members of the community. This
child had the operation outside of state. When considering an
ability to care standard, care is very broadly defined in the
Alaska Statutes and it means to provide for the physical, mental,
emotional and social needs of a child. In this case of the child
in need of an operation, perhaps the physical needs of this child
were not being met, but the parents were very willing and
concerned. They wanted to provide all of the care which they could
within their resources. If the term "and able" is added to the
existing language, it would seem to fit situations such as this
one. The Public Defender Agency is concerned about an expansion of
the state's jurisdiction or their ability to take children in
situations where it's really not called for.
MR. MCCLUNE gave another example regarding parental discipline or
a child not obeying their parents. Where the court, social worker,
or psychologist might say that the immense emotional, mental and
social needs of a particular child are not being met, that the
parents are not able to meet these particular needs because their
not loving enough or nurturing enough, or too angry, etc., these
types of situations are where willingness wouldn't be a problem,
but if the word "ability" was added to the standard, then there
would be some real close judgment calls.
MR. MCCLUNE stated that in the Supreme Court case Matter of S.A.
and what Justice Matthews was concerned about with this case was
the findings of the trial court as he put it, where the children
would not be able to "meet their potential", since the parents
would not be able to "satisfy the child's need for structure and
consistency." If a standard is applied to determine ability, he
felt as though a dangerous situation could arise. The Public
Defender Agency's main comment is that this question of ability to
care should be looked at carefully and should be something the
legislature in making such a radical departure should think about
quite a bit.
MR. MCCLUNE noted that as far as Section 3 is concerned, the agency
had less comment on this, but they thought that the original
language was better. If the parent is incarcerated as a result of
a voluntary act by the parent and the period of incarceration
imposed is a significant portion of the child's minority and the
parent has failed to make adequate provisions for care during the
period of incarceration, the court could take this into account.
They also would ask the committee to consider adding another
section to this legislation in order to allow for open adoptions or
providing for residual parental rights if a termination must be
instituted.
Number 315
PHILLIP PALLENBERG, Supervising Attorney, Public Defender Agency,
Juneau, testified by telephone from Haines on HB 339. He felt as
though he brought a different perspective to these testimony
proceedings. He is the attorney for A.M. who is the father in the
case cited and this is one of the two Supreme Court cases sought to
be overturned by this legislation. He has been involved with this
case for a long time and knows a lot about it, although he didn't
argue it in the Supreme Court. He also noted the S.A. case. Mr.
Pallenberg pointed out that the decision in the S.A. case which
read the "willing and able" language differently than what the
state would like it to be read, if this language is changed it
would have a profound effect on the A.M. case. He felt as though
the interplay of these two cases lead the Attorney General's office
to seek this change.
MR. PALLENBERG referred to Ms. Rutherdale who wrote the letter on
behalf of the Department of Law which is in the file, was also the
attorney on the A.M. case. He thought that the problem which the
state was trying to address is a problem frankly of the Department
of Law's making, which is that they pursued termination of parental
rights in the A.M. case under subsection (a) rather than the other
subsections. The various subsections of AS 47.10.010 set out real
specific grounds for finding a child to be a child in need of aid.
Each of these subsections address a different problem. Mr.
Pallenberg referred to Mr. McCune's memorandum which outlines these
subsections in detail. Mr. Pallenberg felt subsection (a) was
intended to address two specific situations, number one, a child
refusing to go home and number two, a child not having a home. He
said that what the Department of Law is trying to do is enlarge
subsection (a) so that it swallows up the other subsections. This
would represent a real substantial broadening of the situations in
which the state can become involved with in family's lives.
MR. PALLENBERG noted that in the A.M. case the state initially
filed for termination of parental rights under several subsections,
such as sexual abuse, physical abuse, etc. and under subsection
(a), the basis of which A.M. was incarcerated, however, when this
case came to trial the state essentially abandoned the other
subsections and went under subsection (a). The reason the Supreme
Court overturned the trial court's decision terminating parental
rights was that incarceration under the Supreme Court's
interpretation isn't grounds for termination under subsection (a)
or even abandonment.
MR. PALLENBERG continued that in the Supreme Court language under
A.M. it essentially spelled out that subsection (a) was the only
ground for termination which was actively argued by the state,
although they had initially brought the case under subsections (c),
(d) & (f). They chose a trial to go only under subsection (a) and
it was only under subsection (a) which the court terminated. This
lead to a strange result, with a father who was incarcerated for a
nine year sentence for sexually abusing his stepdaughter. The
termination decision was not based upon the likelihood of sexual
abuse. His position was that this result was not because the law
was wrong relating to the A.M. case, but because the Attorney
General's office chose to go under the wrong subsections.
MR. PALLENBERG pointed out that the answer to this problem isn't to
change the law, because the law is already there, the department
just didn't pursue it under the right subsections. The problem
isn't with the law because it already provides the tools to the
Department of Law and DYFS to take custody of children when their
parents are sexual abusers and when a parent is in jail for this.
MR. PALLENBERG said he was not as concerned about the incarceration
language as much as he is about the "willing and able" language.
It was his opinion that this willing and able language is largely
motivated by the Department of Law's request and by their own
mistakes in the A.M. case which is still under review in the trial
court. With all due respect to Ms. Rutherdale, she is the one that
handled this case and the one who is writing these letters
advocating these changes.
Number 579
REPRESENTATIVE ROKEBERG asked Mr. Pallenberg to clarify statements
he made regarding Section 3 which deals with the court's ability to
consider incarceration in and of itself, he asked if Mr. Pallenberg
agreed with this section of the legislation.
MR. PALLENBERG agreed with the concept, but felt as though the
original language did a better job with this than the committee
substitute. The committee substitute as drafted is vague and over
broad. The way it is written now, the basis for incarceration as
a factor is that it would have substantial impact on the
parent/child relationship generally. He felt that this standard
could be applied to a host of situations where this shouldn't be
applied. He used the example of a parent going to jail for a month
and they miss an important event, this could arguably damage the
parent/child relationship. This is not certainly the type of
situation where the incarceration ought to be a factor in taking
custody or intervening in this family's life. The original bill
addressed the real problem, which is parents who are going to jail
for a long time and aren't able to fulfill the role of their
child's life that they ought to.
Number 660
CHAIRMAN PORTER asked what Mr. Pallenberg's impression was
regarding the case which he handled, that if the state would have
perhaps used (c) the committee wouldn't be here today.
MR. PALLENBERG said he needed to chose his words cautiously since
this case is still in litigation.
CHAIRMAN PORTER asked about a hypothetical case where an adolescent
has a single parent and this parent is incarcerated for 20 years
and there aren't any apparent relatives to assume custody, would
subsection (c) be applicable and perhaps have a normal chance of
being used successfully for terminating parental rights. This
subsection (c) is defined, "If a child has suffered imminent harm
or is in imminent and substantial risk, that the child could suffer
such harm as a result of a parent or guardian's actions, conditions
created by them or the failure to supervise."
MR. PALLENBERG stated that he wasn't sure if this would apply. In
a situation such as this, the language in the original bill would
come into play and allow termination.
Number 721
SCOTT CALDER, testified by teleconference from Fairbanks about HB
339 and stated that he was in complete agreement with the remarks
of Dirk Nelson and in substantial agreement with the views
represented by the ACLU, as well as the Public Defenders who
presented their information.
Number 988
JAN RUTHERDALE, Assistant Attorney General, Department of Law,
responded to Mr. Pallenberg's statements about the S.A. case
regarding Subsection 2 which was not a result of the A.M. case, a
case which she has personally litigated. It just so happens that
she represents the Department of Law statewide because she is
located in Juneau. She mentioned a committee which worked very
hard on this legislation to come up with the proper language. She
did not litigate the S.A. case, but the S.A. case is extremely
significant. She said she couldn't emphasis enough that the
Supreme Court reversed itself on three cases concerning this issue
and she thought that the committee could appreciate that this is a
very significant turnaround. Ms. Rutherdale noted that what they
were trying to do is go back to where they were up until a month or
two ago when the S.A. case came out.
MS. RUTHERDALE stated that in respect to the A.M. case, the other
subsections were never abandoned by the state, but the court
decided to rule under subsection (a) only and not under the other
grounds as alleged. Ms. Rutherdale said she didn't force the judge
to reconsider this point because he generally ruled in her favor.
This case was appealed and then reversed. The case is in remand so
that the court can take into consideration the rulings of the
court. This raises an interesting point. This case went to
termination trial in 1992. It's now 1996. Four years has been
spent on the litigation of this case. If they had this
incarceration provision, it wouldn't have taken this long. These
kids would have been in a permanent home.
MS. RUTHERDALE referred to a comment made by Ms. Dodd that
implicated that they were making bad law based on a few cases. She
stated that it may be true that there is only a handful of cases
which this affects, but for these children this is a significant
thing. If they are able to save these few cases and allow these
children permanent homes, this is very significant.
MS. RUTHERDALE noted that the Public Defender Agency seems to want
to basically wipe out the "caring" definition because "caring" is
defined under this statute.
Number 1196
CHAIRMAN PORTER asked specifically about this definition of
"caring" and whether or not it refers to "caring or willing,"
because he had a different take on this. He thought this
definition of "caring" was more of a "desiring to."
MS. RUTHERDALE said that no, this wouldn't be the meaning and this
was why they used the phrase "able to care" so it would be crystal
clear before the Supreme Court that there won't be any
interpretation like that, that the court will know what the
legislature is saying "we're not talking about willingness, we're
talking about ability." The statute outlines "caring or care"
which means meeting the "needs" as outlined in this same statute.
CHAIRMAN PORTER stated that he couldn't imagine how this
interpretation came about. He then read the language, "The child
being habitually absent from home or refusing to accept available
care or having no parent, guardian, custodian, or relative caring
to provide care." It was his opinion that this was synonymous with
desiring to provide care, but stretching this into this "ability to
care for" is a stretch which he didn't feel was there.
MS. RUTHERDALE said that "caring and care" is defined as an ability
to meet various needs within the statute. It specifically refers
to for purposes of AS 47.10.080 that caring and care means this,
although she did not specifically give the definition. She said
that there was no secret agenda in all of this. She said that they
were trying to make this clear so that they can get back to where
they were two months ago. Ms. Rutherdale said that maybe this
wasn't necessary, because the statute says, "providing for the
needs."
MS. RUTHERDALE noted that it was hard to talk about providing for
someone's needs without slipping in the words "ability to provide,"
because this is what it means.
Number 1354
CHAIRMAN PORTER stressed that he has real strong personal concerns
about the wording suggested. He stated that he had no idea
"caring" meant what it did as Ms. Rutherdale noted it was. He said
this was a surprise because he had never gone to the definition
section. If this is what it means, he has a concern about the
existing statute. If this is what they want it to say, he has some
concerns about where the department is trying to go. He suggested
that they hold this bill over to address these types of concerns.
Chairman Porter thought that this legislation addressed Justice
Eastaugh's concerns about the interpretation of the definition that
deals with the termination of rights. He noted that if they were
trying to clarify carte blanche about what the ability of a parent
is, he said "not on my shift."
MS. RUTHERDALE said she understood his concerns. She noted that
this definition has been in existence for 15 years and it's been
working for this long.
CHAIRMAN PORTER responded that amendments to statute are proposed
for various reasons and "by accident" might be one of them.
MS. RUTHERDALE offered that the legislature "shouldn't put trust,
like you know, trust us, we'll exercise this, great, I think the
court has to give, have confidence that the court system will be
able to be the final arbitrator, which they are, to say 'no, you've
gone too far.'" In fact, in the S.A. case it was unanimous, all
five justices said that DYFS went too far. They thought that the
superior court went too far and they overruled. Even the
"dissenting in part" members, Eastaugh and Compton, agreed that
this was too broad a use of the statute. The courts are saying no,
this is what the statute means.
CHAIRMAN PORTER used as an illustration of the three branches of
government and noted that Ms. Rutherdale wanted the agency to
interpret a rule provided by legislation that has no definition so
then the court can then tell the legislature what the legislature
meant. He didn't like this.
MS. RUTHERDALE again noted the definition that's been in existence.
CHAIRMAN PORTER noted that this statute has a definition in this
particular application which has caused some concern for the court.
This tells him that the statute isn't specific. He readily
admitted that he came upon this definition of caring by accident.
Number 1536
REPRESENTATIVE FINKELSTEIN said that he did look at the definition
referred to by Ms. Rutherdale and noted that it had nothing to do
with the concept of "ability." "As a matter of fact, there is
someone there who is in that role. Put it into context, it says
that there is one of these folks, 'guardian, (indisc.), relative
caring or willing to provide the care.' It just means that they
exist. It has nothing to do with ability." He didn't understand
how someone could interpret this as a foothold in the door for the
issues of ability. He understood this to mean that there is
someone there providing for these needs, not necessarily that they
have the ability to provide for these needs, but just that they are
in this role.
MS. RUTHERDALE made the argument that there is this person present
who is providing for the mental, social, physical, and emotional
needs of a child and that it doesn't matter that the child isn't
going to school because the parent is passed out on the couch every
day. This child is not getting their emotional needs met because
the child has no boundaries. These are the types of issues which
are pervasive...
REPRESENTATIVE FINKELSTEIN made the point that she could get to
these situations in a number of ways, including physical
abandonment under another section. He noted that Ms. Rutherdale's
focus on this word "caring" was all he was commenting on. All of
the circumstances which Ms. Rutherdale described she could get to
through a variety of other ways. The argument which he was trying
to make regarded Ms. Rutherdale's ability to get the concept of
"ability" out the definition of "caring," and he noted that he did
not see a definition regarding ability in the statute as indicated
by Ms. Rutherdale.
CHAIRMAN PORTER suggested either one of two things, either trim the
bill down to address the specific question posed by Justice
Eastaugh, or if possible he suggested that DYFS, Department of Law
and the Public Defender's Agency which expressed their concerns
(the latter which Chairman Porter tended to agree with), to come up
with an agreement regarding the specific subsections (a) - (f),
etc., with some possible enhancements. Then the committee would
certainly take a look at these revisions. Otherwise, he said he
was resistant to an open-ended definition of the word "caring" and
the word "able".
Number 1750
MS. RUTHERDALE said that this would be difficult. She then went on
to add that the examples raised in Mr. McCune's memo were just "red
herrings." She noted that financially able would fall under
subsection (b), but the department would not get this far because
the state doesn't have the resources to provide out-of-state
operations for children. The only way they could provide this is
through medicaid eligibility which is determined by the parent. In
other words, it's the charities and community people paying for
these bone marrow transplants because people can't afford them
which gets these things done. The Department of Law doesn't have
the willingness or the ability to provide these services.
CHAIRMAN PORTER noted that he didn't want anybody to interpret what
he has said as a concern about the current department and their
abilities or hidden agendas, etc., but it's purely from the
position of writing a piece of legislation which should be clear
and not subject to abuse by someone who is unscrupulous that will
come along later on.
MS. RUTHERDALE reminded Chairman Porter that he wished to correct
the problem raised by Justice Eastaugh's dissent, but at the same
time Chairman Porter was saying that "caring and willing" are the
same thing.
CHAIRMAN PORTER said no, that her definition of "caring and able"
seem to be the same thing. He felt as though she was trying to
further clarify a definition by adding "able," but he's not happy
with her interpretation about what "caring" is, so he felt as
though this was too different things. "That one is an open-ended
'can of worms' I guess and the other specific one of does anything
in a, b, c, d, e, f, cover an extended incarceration being a
grounds for termination." Under the original bill and it's
original drafting, he agreed that no one on this committee would
have a problem with this.
Number 1909
MS. RUTHERDALE noted that subsection 2 and 3, as Representative
Rokeberg pointed out are two different things. Subsection (c) in
her opinion is a much improved version of the original bill and she
offered to go through the three provisions of the original bill,
two of them which are completely unnecessary. She felt that the
committee wouldn't want to have unnecessary verbiage in the bill.
In regards to the remaining one provision, it was so ambiguous that
members of the HESS committee and she had completely different
interpretations of it. She noted that this was not a fault of
Representative Rokeberg, but she was the one which originally had
this suggestion. This was last year when she first came upon it
and over the past year after talking with individuals and thinking
about how this could be said and what is it really that the Supreme
Court is objecting to, Section 3, really tightens up the language
to help accomplish their objectives.
CHAIRMAN PORTER offered that if Section 3 is generally acceptable
this is fine. If everybody doesn't want to try to deal with these
other issues they could just have a bill consisting of Section 3,
but if she felt as though there was a need to deal with the
"caring" interpretation...
MS. RUTHERDALE stressed that it wreaks havoc and calls into
question many cases where children are already in custody. It
creates a "big hole" in the legislative scheme because when it was
originally drafted it was done so to cover specific, horrific
situations such as sexual abuse, etc., as Justice Eastaugh noted as
well.
Number 2080
CHAIRMAN PORTER noted that perceived necessity breeds some
innovation, especially looking at Representative Finkelstein's
interpretation of the definition, but he added that he wasn't sure
whether this innovation was appropriate.
REPRESENTATIVE ROKEBERG said he hoped he had made himself clear
that the original bill strictly dealt with Section 3 and that the
department did approach him about the additional sections along
with the S.A. case example. After reviewing the S.A. case, he
noted Justice Eastaugh concurred in part and disagreed with the
majority's definition of ability under the subsection (a). He
quoted Eastaugh, "In my view, these grounds are unconvincing, (that
is to say (b) - (f)) both as a matter of statutory construction and
common sense. Ability to care, is and must be relevant to an
inquiry under subsection (a)." He felt as though it was clear from
the testimony heard today that some ambiguities had been exposed in
existing statute and as a result of the S.A. case there seemed to
be some urgency on the part of the legislature to step in and help
clarify this ambiguity.
REPRESENTATIVE ROKEBERG said that he was not wetted to "and able"
particularly, but felt that if they tried to sweep this under the
rug they wouldn't be helping the state or those children...
Number 2242
CHAIRMAN PORTER stated that he was under the impression that there
was a need to put something in the language that section (a) deals
with to make crystal clear that "willingness" was not the only
criteria to be used in order that someone could be specific
someplace else. This wouldn't be ambiguous because of an open-
ended apparent provision which says that if someone is willing to
care for the child, the state would not be able to terminate
rights. He thought this was why these two sections were married in
the same bill. He noted that if this was not the case, then maybe
they should proceed with Section 3 and deal with the concept of
"caring and able" through some other fashion. "Now that the cat is
out of the bag, so to speak, I've got some concerns."
REPRESENTATIVE FINKELSTEIN felt as though Section 3 did accomplish
something on it's only, even without changing the child in aid
provisions. The legislative intent would be clear that the
treatment of incarceration is relevant and there's a standard as to
when this will be the basis. He felt as though this accomplishes
much of what's been suggested without having to make changes in the
child in aid provisions.
Number 2370
MS. RUTHERDALE stated that these are entirely separate. Again,
subsection 3 only deals with termination cases, subsection 2 deals
with any cases including a child in need of aid. The legislature
seems concerned with the problem of juvenile delinquency and
children who don't respond to society's structure. She noted that
children like this don't come out of no where, but out of the early
development years when and if their parents are intoxicated. These
parents might not be sexually abusing or hitting them, but these
parents are just so drugged out or intoxicated. She then mentioned
theoretically that a relative might step in while the parents go on
a drinking binge, meanwhile this child is being bounced around, the
relative can't take it anymore and they appeal to the state for
help to give them the authority to say no to this cycle by being
able to retain custody of this child. This legislation would allow
the creation of a framework where the child can be raised with the
parents, hopefully, in a home where they can have this consistency
and predictability of care that is so crucial to avoiding juvenile
delinquents later on. These kinds of on-going types of problems
which aren't addressed in subsections (b) - (f), can be addressed
in subsection (a). She noted that if they take this away from the
department, they will suffer the consequences later.
TAPE 96-30, SIDE A
Number 096
CHAIRMAN PORTER said he had been exposed to these types of
situations himself and although he understood the concern which
these situations present, one of the approaches which the
legislature has tried to take is the concept that if the state is
going to make parents responsible for their children, the state
must give them authority to be responsible. Giving someone else
the ability to make assessments concerning whether a parent is able
or not, he didn't think this was standing behind parents to the
extent of making them responsible for their children. He felt
certain that Ms. Rutherdale could articulate as she just did,
within the framework of (a) - (f) to cover the circumstances which
she spoke about. He noted that she was talking about child neglect
and knew that she wouldn't want to try to do this to a standard of
beyond a reasonable doubt, so he said "come up with a civil
standard, or a civil violation in this area," but added that carte
blanche was just as egregious on the other side.
REPRESENTATIVE FINKELSTEIN again noted his perspective that these
determinations about what's best for a child could be made under
physical abandonment, etc.
MS. RUTHERDALE agreed that maybe this could be redefined, the
problem is that there is case law which deals with physical
abandonment which is very narrow right now.
Number 335
REPRESENTATIVE ROKEBERG noted that physical abandonment was
precisely the issue which brought up this Section 3 because the
courts have found that it's not the legislative intent that
incarceration was actually abandonment.
CHAIRMAN PORTER added that this was why he thought Section 2 was
married to Section 3 because of the court's interpretation that if
a parent is incarcerated this doesn't necessarily mean that they
aren't willing.
MS. RUTHERDALE said that this would be a problem if there wasn't a
provision providing for abandonment. Until the Supreme Court tells
the department otherwise, if someone is incarcerated they've
abandoned their child, there is no one there to take care of this
child. The state can then take custody of this child, but the
state cannot terminate parental rights because under termination
they look at the conduct, not the status.
Number 335
REPRESENTATIVE ROKEBERG suggested that the Department of Law, HESS,
Rokeberg's and Porter's staff meet and allow them to review the
provisions, especially Section 2. To clarify, he noted that the
committee would like a clearer definition of what subsection (a)
addresses, and what the intention is, and perhaps that they could
develop some additional language to address this. If failing this
and no consensus is made, then he recommended continuing with the
CS as encompassing Section 3 alone.
REPRESENTATIVE VEZEY had some concerns with Section 3 in that it
takes it just as far to the other side of what the good would be
and makes an equally undesirable situation. "I think we all know
what we mean when we read that, but I think everyone here has a
different opinion about what that is." He felt as though they
needed to put some kind of a quantitative guideline in this
subsection as to an amount of time a parent is incarcerated. He
asked if they were talking about 30 days, which he noted was a long
time, or were they talking about 5 years, which could also arguably
considered a long time, not necessarily though for a 17 year old
child who will be emancipated in 12 months.
Number 509
REPRESENTATIVE ROKEBERG felt as though Representative Vezey made a
good point, but what the legislature is endeavoring to do, is to
give a judge a limited amount of discretion to make this judgement
because there will be differences based on the age of the child and
the length of incarceration.
CHAIRMAN PORTER felt as though Representative Rokeberg's suggestion
regarding the departments to meet for revisions to the legislation
was a good idea and asked him to coordinate this effort.
ADJOURNMENT
CHAIRMAN PORTER adjourned the House Judiciary Committee meeting at
3:00 p.m.
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