Legislature(1995 - 1996)
03/06/1996 01:18 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 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.