Legislature(1995 - 1996)
03/20/1996 01:10 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 CHAIRMAN PORTER noted that there were five bills before the committee for consideration as follows: HB 339, HB 387, HJR 51, HB 368 and HB 443, the latter of which would not be heard. He summarized concerns regarding HB 339 and the proposed changes to this legislation. There were two provisions in this legislation, the first sought to provide specifics which the state and the courts could consider for the termination of parental rights, the fact that the parent was incarcerated. The second provision dealt with changing the entire scope of determining whether or not parental rights should be terminated and the language which addressed this more specifically "willing and able," by adding the word able. This second section was completely deleted from the committee substitute. The legislation before the committee merely purports to do what the original intent was and that is to consider incarceration of a parent when assessing parental rights. Number 222 REPRESENTATIVE NORMAN ROKEBERG stated that this was a fair characterization of where the legislation stood and he complimented the Chairman for his concise description. He than asked for the committee's consideration and support of CSHB 339 version (R). Representative Rokeberg also added that the deleted portion as noted would be considered separately. Number 311 LIZ DODD, Esq., American Civil Liberties Union (ACLU), Alaska Chapter testified on CSHB 339 version (R). She referred to page 5 of the Public Defender's memorandum which proposed that three paragraphs from a prior version of the legislation be included in the present version (R) in order to narrow the scope of determining parental rights. The ACLU felt that the period of incarceration imposed should include a significant portion of the child's minority. The present bill is very broad on this note and allows for a lot of discretion. By putting this section in it would narrow this intent to minority children and accomplish the stated purpose. MS. DODD continued by stating that the section the ACLU would like put back in this legislation is the clause that the parent has to have failed to make adequate provisions for the care of the child during the period of incarceration. She felt as though the parent should have this right. Ms. Dodd noted that if this bill does get passed the ACLU would like an additional paragraph drafted by the Public Defender's Agency which would allow a judge some discretion to retain some residual parental rights to the parent when the termination takes place, such as visitation, for example. MS. DODD noted some general concerns about the bill. She wondered about the applicability of it in terms of a person incarcerated in Lemon Creek and their child is in the custody of a grandparent. If the grandmother dies, can parental rights be lost under this scenario in this ex post facto way. Once this legislation goes into effect will someone already incarcerated come under the jurisdiction of this legislation. MS. DODD also wondered if this legislation would have an impact on sentencing. It's such a severe act to have a child taken away, how would judges interact with this. Would they be less willing to impose a stricter sentence under these circumstances. Number 627 REPRESENTATIVE JOSEPH GREEN inquired as to whether or not Ms. Dodd was suggesting in section 3 of the Public Defender's memorandum about a child's minority if parental rights were terminated would this be applicable from the time the person is incarcerated and their child is ten years old, for example. Would the incarceration from the time the bill be passed mean that this termination would be in effect until this child becomes an adult, or would the ten years of the child's prior life before this bill was passed be included. He asked what they were talking about in regards to defining a child's life. Would this include from the time the child was born or from the time this bill goes into effect or for the time this person is incarcerated. MS. DODD said she assumed it would be the significant term of the child's life and their remaining minority. At least the language which she proposed would narrow this time period considerably. Number 785 DIRK NELSON, American Civil Liberties Union, testified by teleconference from Valdez regarding CSHB 339 version (R). Mr. Nelson echoed Ms. Dodd's concerns and said the Division of Youth and Family Services (DYFS) on the surface was a good concept, but individual social workers and attorney generals cannot be trusted with this type of authority and power. He cited the history as to why incarceration has not been considered before when terminating parental rights, the concept of double jeopardy for one. MR. NELSON summarized by stating that he didn't think this bill was constitutional and he doesn't believe that the relationship between a child and parent should be brought to an end by a third party because of an incarceration. Number 973 REPRESENTATIVE CYNTHIA TOOHEY made a motion to adopt CSHB 339 version (R) as the committee's working draft. There being no objection the motion so passed. REPRESENTATIVE CON BUNDE noted the suggestion that language should be added to specify more clearly the terms of a child's minority when considering the termination of parental rights. REPRESENTATIVE ROKEBERG offered that the definition by law of a child is a minor and a minor is a child. REPRESENTATIVE BUNDE stated that it should be taken into account how much longer a child is going to be a minor, how large a portion of a child's minority the incarceration would include. Number 1080 CHAIRMAN PORTER spoke to the notion of including language to reflect this concept. He was concerned about this concept because it would require that there be a substantial sentence applied before a termination would be considered. It would eliminate the ability of the court to consider frequent short sentences which cause these same types of problems in a child's life. Especially due to alcohol, people cycle in and out of jail houses for years. These types of cycles can cause considerable problems. Chairman Porter also addressed one of the other issues raised by Ms. Dodd about a judge not wanting to institute a sufficient sentence based on a minority child's future, he thought that one way around this would be to not include this type of provision so that no matter what the sentence is, termination of parental rights should be considered. REPRESENTATIVE ROKEBERG stated that he agreed with this perspective and added that trying to establish some sort of mathematical equation or another standard would take away any discretion a judge could have. Number 1170 REPRESENTATIVE DAVID FINKELSTEIN offered an amendment number 1 to CSHB 339 version (R) which read as follows: "(A) If parental rights are terminated under this section due to incarceration, the court shall also make a specific finding concerning what residual parental rights are in the best interests of the child and should be retained by the parent whose rights are terminated." He stated that this amendment would require that a specific finding be included on any residual parental rights. It doesn't say what those would be and all options would remain available. REPRESENTATIVE ROKEBERG stated that he opposed the amendment because this was precisely why he introduced the bill. Number 1300 CHAIRMAN PORTER requested a roll call vote. Representatives Finkelstein and Davis voted yes. Representatives Green, Bunde, Toohey, Vezey and Porter voted no. The amendment number 1 failed. Number 1285 REPRESENTATIVE AL VEZEY commended Representative Rokeberg for working on this legislation. It was a difficult issue and he was presently torn on this bill and was not certain how he would vote if it was brought to the floor. REPRESENTATIVE TOOHEY stated she too commended this legislation. Some of her colleges felt as though this bill benefited older children, but she felt as though it's stated purpose was for infants. She felt this legislation was important for a child in need. Representative Toohey then made a motion to move CSHB 339 version (R) from the House Judiciary Committee with individual recommendations and a zero fiscal note. There being no objection it was so moved.