Legislature(1995 - 1996)

03/06/1996 01:18 PM JUD

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

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