Legislature(2017 - 2018)BUTROVICH 205
04/06/2018 01:30 PM Senate HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| SCR18 | |
| SB134 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 134 | TELECONFERENCED | |
| *+ | SCR 18 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 134-TERMINATION OF PARENTAL RTS;GUARDIANS
1:36:30 PM
CHAIR WILSON reconvened the meeting and announced the
consideration of SB 134.
SENATOR BERTA GARDNER, Alaska State Legislature, sponsor of SB
134, said the bill is the termination of parental rights when a
child is born of a rape with clear and convincing evidence, with
court approval, and always in the best interests of the child.
1:38:27 PM
NATHANIEL GRABMAN, Staff, Senator Berta Gardner, Alaska State
Legislature, presented SB 134 on behalf of the sponsor. He said
that in 2015 the Rape Survivor Child Custody Act was passed into
law as Title IV of Federal Justice for Victims of Trafficking
Act. That law encouraged states to have statutes which allow
parental rights to be terminated in cases where conception
occurred involving clear and convincing evidence of rape. AS
25.23.180, originally passed into law in 1987, fulfills the
requirements of this federal law and makes the state eligible
for certain federal grant funding, which Alaska has received in
the last two years. Section (c) of this law contains three
subsections which allow for termination of parental rights for
these distinct reasons: 1. Child in Need of Aid (CINA), 2.
Adoption, and 3. Child conceived of rape. SB 134 clarifies the
existing statute by explicitly stating that the relationship
between parent and child may be terminated through the
following:
An independent proceeding issued on the grounds that
the parent committed an act constituting sexual
assault, sexual abuse of a minor, or incest under the
rules of this state, or a comparable offense under the
laws of the state where the act occurred, that
resulted in conception of the child and that
termination of the parental rights of the biological
parent are in the best interests of the child.
MR. GRABMAN said Senator Gardner had intended to create
legislation to allow for the termination of parental rights to a
child born of rape before she discovered that it already
existed. The issue is that the statute drafted is in Chapter 23
of Title 25, which is specific to adoption. Its existence is not
well known, even to family law attorneys. Senator Gardner has
heard of at least one case in which a judge interpreted the
statute as not relevant to a case which did not involve adoption
or Child in Need of Aid proceedings. As can be seen in
supporting documents, the legislative intent was clear at the
time: a desire to create a mechanism by which a woman could
terminate the parental rights of a rapist father. Because the
existing adoption statute already contained provisions relating
to the termination of parental rights, the statute was inserted
into that section of state law with additional references made
to AS 47.10, the Child in Need of Aid section. While legally
efficient, this placement within those statutes has hindered
awareness of the statute as well as contributing to
misinterpretations of the circumstances under which the law may
be utilized. SB 134 aims to address both shortcomings. SB 134
has 18 sections, but only four make substantive changes to
existing statute or court rules.
1:41:14 PM
MR. GRABMAN said almost every section references Section 11, so
he will start the sectional there.
Section 11. Restructures AS 25.23.180(c) to clarify
that termination for parental rights may be ordered in
an independent proceeding on the grounds that a parent
committed an act constituting sexual assault, sexual
abuse of a minor, or incest that resulted in the
conception of a child.
Section 1. Conforms a cross-reference for purposes of
court venue for the termination of parental rights on
the grounds that the parent has committed an act
constituting sexual assault, sexual abuse of a minor,
or incest that resulted in the conception of the
child, consistent with section 11 of this bill.
Section 2. Conforms a cross-reference for purposes of
the exception to consent to adoption required
consistent with section 11 of this bill.
Section 3. Authorizes the court to appoint a guardian
ad litem for cases involving petitions for the
termination of parental rights of a parent who has
committed an act constituting sexual assault, sexual
abuse of a minor, or incest that resulted in the
conception of a child under section 11 of this bill.
MR. GRABMAN said Sections 4-10 and 12-15 are conforming
language.
Section 16. Adds a new subsection to AS 25.23.180 to
clarify that a petition for termination of parental
rights for the grounds specified in section 11 of the
bill may be filed to initiate an independent
proceeding not connected to a petition for adoption or
a proceeding under AS 47.10.
MR. GRABMAN said Section 17 is conforming language.
Section 18. Describes how AS 25.23.180, as amended by
this bill, has the effect of changing court rules.
1:43:27 PM
SENATOR BEGICH summarized that there is existing statutory
authority to do this, but it is narrow and not clear to family
law attorneys that they can do this termination. The bill
clarifies the law and makes sure it applies to all the
instances.
MR. GRABMAN said that is a good summary. They have asked family
law attorneys about their knowledge of the statute and received
a variety of responses, ranging from not knowing it existed to
adamantly stating that termination of a parent's rights was not
possible outside of Child in Need of Aid or adoption
proceedings. A large part of the motivation for the bill is to
increase awareness that this law exists and to clarify
proceedings can be undertaken outside of those two categories.
CHAIR WILSON asked if it is correct that if this law were to
pass, the state would not be leaving federal funding on the
table.
SENATOR GARDNER replied she believes that the federal government
recognizes that existing statute does do what SB 134 does. That
is part of the problem because it is so unclear. The state has
claimed grants from the federal government in 2016 and 2017. The
federal government says the state does have the statute but if
the courts disagree and family law attorneys don't understand
that that is in existence, this effort is needed to make sure
that there is no dispute.
1:46:02 PM
SENATOR GIESSEL referenced the letter from Miles Curtis from
Petersburg about SB 134 and asked if this was one of the cases
that was brought to her attention.
SENATOR GARDNER said that is one of the cases that is not really
black and white. It has confounding factors which are that both
parents were very young and the father's family has been raising
the child. It is a situation where the best interests of the
child may be to not terminate parental rights, but that is for
the court to decide.
MR. GRABMAN noted an article from the Juneau Empire dated May 1,
2016 that tells the story of Angelica Curtis and her family. She
was 13 and in a romantic relationship with a man who was over
the age of majority when she became pregnant. The biological
father was convicted of statutory rape and spent several years
in prison. The families have had an ongoing court battle. Part
of the court case involves the statute the bill seeks to
clarify.
SENATOR GIESSEL asked for clarification that this bill is not a
remedy for that case.
1:48:23 PM
MR. GRABMAN said the bill aims to clarify in statute that
termination of parental rights can be used in independent
proceedings outside of Child in Need of Aid or adoption
proceedings. It is not intended to be a hammer to break that
case.
SENATOR GARDNER added that part of the problem for the mother in
that case is the best interests of the child. The child has
spent a considerable amount of time with the paternal
grandparents.
SENATOR BEGICH summarized that by making the law clearer, it
provides guidance to the court to put the best interests of the
child forward and to clearly understand that the best interests
of the child should be the determining factor in this kind of
instance.
1:49:57 PM
SENATOR GARDNER said yes, that is exactly right. Alaska statute
broadly attempts to always have the best interests of the child
paramount.
SENATOR BEGICH said the letter from Miles Curtis supports an
action like this because it would make it clear, similar to a
Washington state law. The father is looking for that kind of
clarity.
SENATOR GARDNER clarified that Miles Curtis is the maternal
grandparent. She believes that is his intent. The language in
Section 3 allows for appointment of guardian ad litem to
advocate for best interests of the child.
SENATOR BEGICH summarized that Senator Gardner became aware that
the law as originally written is not clear.
SENATOR GARDNER said that is exactly right. There is no
intention to solve the problem of a specific case. Rather, the
idea is to solve a problem for the entire category of people,
usually women, raising a child from rape. It could apply to a
father of a child.
1:52:56 PM
NANCY MEADE, General Counsel, Alaska Court System, introduced
herself and offered to answer questions on SB 134.
CHAIR WILSON asked if SB 134 is necessary for family law, since
the federal government recognizes that Alaska has this in
statute.
MS. MEADE said the sponsor's goal is to clarify existing law.
Whether it is necessary is the legislature's call. The Court is
neutral. She understands this has been confusing. Perhaps it
would be beneficial to attorneys, parties, and even judges, to
have it more explicitly spelled out. SB 134 is more explicit
than what is in current law.
1:54:42 PM
CHAIR WILSON opened public testimony on SB 134.
1:54:51 PM
MILES CURTIS, Representing Self, supported SB 134. He said this
is something his family has had to go through for the past five
years. Clarification is important because the courts have
refused to allow a hearing to attempt to terminate the father's
rights. The child, who is now eight, has been in his and his
wife's custody for the first six years of his life. The court
just recently placed him with the paternal grandfather, who,
ironically, wasn't even asking for custody. Judicial discretion
is used quite liberally in cases like this. He has been asking
Senator Gardner to change the law slightly to make it not so
discretionary. They have been through the wringer. They have
moved several times. They are thousands of dollars in debt to
lawyers. It has been a hardship. His daughter has posttraumatic
stress disorder (PTSD). Congress has recognized that PTSD is an
issue for women who have to testify against their abusers in
court, but Alaska courts have not and it is used against her. He
would like to see a law like Washington state's that takes the
state out of the equation. The problem now is not the abuser, it
is Alaska and its court system.
MR. CURTIS said improve the bill so that rapists as parents are
never in the best interests of the child. Laws should be clear
and concise. That can benefit people in the future who have to
go through this.
1:58:49 PM
CHAIR WILSON closed public testimony on SB 134.
CHAIR WILSON said he had looked at this concept before he was in
the legislature. As part of a SART [Sexual Assault Response
Team] response, forensic nurses ask victims if they would like
Plan B [to prevent pregnancy]. When he asked why that was part
of the response, he was astounded when told that fathers can
still have parental rights to a child. This bill is not pro-life
per se, but it gives another option to help limit a victim's
connection to a perpetrator. He is supportive of this bill.
SENATOR GIESSEL said at first she could not believe that a law
like this was not in place. She has been convinced that the
legislature needs to substantiate and confirm that law.
SENATOR BEGICH said he also appreciates the bill. The
legislature should be very clear that there ought to be a path
to terminate the parental rights of rapists.
2:01:45 PM
SENATOR GIESSEL moved SB 134, Version 30-LS1182\A, from
committee with individual recommendations and attached fiscal
note.
2:02:05 PM
CHAIR WILSON found no objection and SB 134 was moved from the
Senate Health and Social Services Standing Committee.