Legislature(1995 - 1996)
02/15/1996 03:05 PM House HES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 339 - TERMINATE PARENTAL RIGHTS OF PRISONERS Number 589 CO-CHAIR BUNDE announced asked Representative Rokeberg to give his opening statements regarding HB 339. REPRESENTATIVE ROKEBERG pointed out the committee substitute, sectional analysis and a copy of a court case which were added to the original bill packet. Number 663 REPRESENTATIVE ROKEBERG moved to adopt committee substitute 9-LS1124\F dated 2/13/96, as the working document. CO-CHAIR BUNDE asked if there were any objections. Hearing none, committee substitute 9-LS1124\F was adopted for discussion purposes. REPRESENTATIVE ROKEBERG said the committee substitute addresses the concerns that were raised at the last hearing and since then the Department of Health & Social Services has brought to his attention a new case that was adjudicated by the Alaska Supreme Court on January 26, 1996, which has made a definite impact on their operations. He felt it was appropriate to address the concerns that were brought up in that case and as a result, Section 2 of the committee substitute was added. A purpose section was added to the bill which specifically brings to the attention of not only the legislature but the court system as well, the intent of this legislation to meet the requests of the Supreme Court in the both cases; that is in Section 1(a) the S.A. and D.A. case and in Section 1(b) the A.M. case and Nada A. case. REPRESENTATIVE ROKEBERG referred to page 4, line 1 of the committee substitute, and said the word "incarceration" was added to address the concerns brought up at the last meeting about incarceration as a result of a voluntary act committed by a parent. On page 4 of the committee substitute, language was added to overcome some of the concerns expressed regarding the period of incarceration and its sufficient length. REPRESENTATIVE ROKEBERG referred to page 2, Section 2, line 10 of the committee substitute and said "caring or" has been deleted and the words "and able" have been added. He pointed out for the record that the draftsmanship does not remove the caring standard from interpretation in this section, but it also meets the court's concerns as expressed in the S.A. and D.A. case. He directed committee members' attention to page 23 of the Supreme Court Case which states "Mere `willingness' is not an acceptable alternative to `caring,' and the legislature did not intend it to be." It continues that "willingness" which the statute demands must be accompanied with the ability to provide care successfully. Those key elements are the reason why "caring" was deleted and "able" was inserted in order to provide a higher standard of willing and able in order to allow the court to find a child in need of aid. Number 939 JAN RUTHERDALE, Assistant Attorney General, Department of Law, pointed out that Section 2, which was added, is really quite simple and basically reflects where the department has been going up until three weeks ago when the Supreme Court reversed course. She said it's not making something new, but it is fixing the law so the department can go back to where they were up until three weeks ago. It fixes it in two areas: First, not only does a parent have to be willing, ability has to be read into it and adding the word "able" makes it clear that the parent has to be not only willing to care and be providing care, but actually able to provide the care. Number 1057 CO-CHAIR BUNDE asked if the Department of Law supports the bill. MS. RUTHERDALE replied yes. CO-CHAIR BUNDE said when he hears the word able, it raises questions in his mind about the mentally handicapped who may be willing but not able to care for their children. He asked Ms. Rutherdale if this was getting into a grey area. MS. RUTHERDALE responded she didn't believe so, because that issue has been litigated. There is case law which basically says you can't just terminate parental rights for example if a parent is not able to care for a child just because they are mentally handicapped. The court has said a condition is not conduct; parental conduct has to be looked at. That doesn't mean a person is protected from the state ever assuming custody just because they are handicapped; they still look at if the parent can provide care. CO-CHAIR BUNDE asked if the use of the word "able" connotates conduct, not condition. MS. RUTHERDALE said that was right. With respect to the changes made regarding the termination, she thinks these changes do address the concerns that were raised by the committee at the last hearing. She had a personal concern with the way the bill was previously drafted in that the court would say you can't get around the fact that incarceration is not conduct, and she feels that issue has been met straight on now by saying that it doesn't matter if incarceration is not conduct, the definition is being expanded to include parental conduct and incarceration. She believes the insertion of the language "sufficiently long to seriously damage the parent and child relationship or to cause serious emotional or physical harm to the child" in Section 3 will help all cases. What is really being looked at is how does this affect the child, and she feels this is a much cleaner definition. It focuses on the child and what termination of parental rights can do for the child. Obviously, if the parental condition or incarceration is not going to continue to the point where it's going to be either damaging to the parent/child relationship or causing serious emotional, physical harm, then the parental rights shouldn't be terminated. CO-CHAIR BUNDE said he assumed it was written that way to allow for judgment in specific cases. MS. RUTHERDALE said that's right, it really is a case-by-case basis, but she feels it gives the judges a real clear standard to judge the "likelihood to continue" issue. Number 1243 REPRESENTATIVE BRICE referred to the wording "likely to continue to exist sufficiently long to seriously damage the parent and child relationship or to cause serious emotional or physical harm to the child" and asked if cigarette smoke, which over a long period of time has been shown to cause serious physical harm, is a concern. MS. RUTHERDALE said first you have to show that the child is a child in need of aid. It's a two part test. She thinks Representative Brice's concern has been addressed because the child would never become a child in need of aid. Assuming the child is in a safe foster care, it's rare where parental rights need to be terminated to prevent physical harm unless, of course, the child is suicidal. Number 1322 DIANE WORLEY, Director, Division of Family & Youth Services, Department of Health & Social Services, testified in support of HB 339. The division feels the addition of Section 2 as well as the changes made in Section 3 are positive changes for the best interest of the child. Number 1356 REPRESENTATIVE ROBINSON said in the past there have been some feelings regarding foster parents getting involved and actually adopting the children. She believes it should be given some thought because she personally feels the foster parent should have some rights to adopt the children if they've been caring for the children and have shown to be good parents. MS. WORLEY said Representative Robinson was absolutely right and one of the goals of the Division of Family & Youth Services is permanency planning for all children, whether that be continuing in their natural family, returning to their natural family as quickly as possible, or when that is not possible, to find a permanent situation whether it be a guardianship, adoption, relative placement or whatever that will ensure the child a permanent place and a permanent home with loving, caring and able parents. Number 1442 LYNN STIMLER, American Civil Liberties Union, said she had been requesting the latest work draft of HB 339 from the Legislative Information Office. However, the LIO didn't receive it until about 3 minutes before the hearing started. She received work draft C at about 1:30 p.m., and it's very different from the version before the committee. She was fairly troubled because at least up until work draft C, she had some serious constitutional issues to raise. She said it was very difficult for her to give the committee (indisc.) testimony, but she would express her concerns, some of which might not apply to this draft. MS. STIMLER said up to draft C, the ACLU was concerned about perhaps unconstitutionally vague language regarding parents failing to make adequate provisions. Their concern was whether this was open to a constitutional challenge under double jeopardy. She added new cases are moving through the federal courts where the courts are holding that additional sanctions to prisoners amount to double jeopardy. The ACLU is also concerned about due process from a prisoner perspective. She thought there is an issue about whether incarcerated parents fit cleanly into this statutory scheme and whether the incarcerated prisoner who is a single parent with no family but does have a reasonable relationship with the child, is going to have the ability to contest the termination proceedings in a way that is in the best interest of the family. She was also somewhat concerned about how the Indian Child Welfare Act (ICWA) fits into this and whether that had been considered by the legislature. She commented that a high percentage of the prisoners are Native American. MS. STIMLER concluded that her overall concerns are not of the caliber they would have been if the ACLU had been given a chance to work with other organizations and formulate their testimony. CO-CHAIR BUNDE remarked the information had been sent out as quickly as the committee got it. To ally some of Ms. Stimler's concerns, he said HB 339 has a State Affairs Committee referral after the HESS Committee, with a further referral to the House Judiciary Committee. He felt this would allow ample opportunity for Ms. Stimler to testify on the various versions as it goes along. MS. STIMLER commented her goal was to ensure the legislature received quality testimony from the ACLU that can be relied on. Number 1622 STEVE CONN, Executive Director, Alaska Public Interest Research Group, said he was certain the Department of Law was not factoring in the Indian Child Welfare Act and the related case law in its entirety. The impact of this on Alaska Natives and Alaska Native families, in a legal sense, is going to be truly profound. In fact, it was Alaska and the termination of parental rights back in the 70s, that led to the passage of the Indian Child Welfare Act. He thought there may be problems with cruel and unusual punishment or double jeopardy. Also, it may be perceived as a bill of attainder and certainly deserved a fiscal note because it is going to create havoc. When all the shouting is done, he'd like some of the sponsors of this legislation to go to the Palmer Correctional Facility on visitors day, watch inmates greet their children and their loved ones and then ask yourself if it's not better for child and parent alike that these relationships be sustained and maintained rather than rendered asunder by legislation such as this. REPRESENTATIVE ROKEBERG said he would appreciate Ms. Stimler contacting his office after her review of the draft committee substitute. He reiterated the cases that generated this legislation are cited in the Purpose Section for case citations. MS. STIMLER replied the ACLU would be contacting his office. CO-CHAIR BUNDE closed public testimony and asked what the wishes were of the committee. Number 1717 CO-CHAIR TOOHEY made a motion to pass CSHB 339(HES) out of the House HESS Committee with a zero fiscal note and individual recommendations. Hearing no objection, it was so ordered.
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