Protecting Alaska's Children from Neglect: the Appropriate Legislative Response to in Re S.a. and R.j.m. v. State

• Citation: Vol. 14
• Publication year: 1997

§ 14 Alaska L. Rev. 501. PROTECTING ALASKA'S CHILDREN FROM NEGLECT: THE APPROPRIATE LEGISLATIVE RESPONSE TO IN RE S.A. AND R.J.M. V. STATE

Alaska Law Review
Volume 14
Cited: 14 Alaska L. Rev. 501

PROTECTING ALASKA'S CHILDREN FROM NEGLECT: THE APPROPRIATE LEGISLATIVE RESPONSE TO IN RE S.A. AND R.J.M. V. STATE

Charles Talley Wells, Jr.(fn*)

I. INTRODUCTION

II. BACKGROUND

A. Alaska's CINA Jurisdiction Section

B. Subsection (a)(1) and the In re S.A. Decision

C. Subsection (a)(6) and the R.J.M. v. State Decision

III. PROPOSED LEGISLATION

A. Previously Proposed Legislation to Amend Subsection (a)(1)

B. The Department of Law's Recent Proposal to Amend Subsection (a)(6)

IV. THE LEGISLATURE SHOULD PASS THE DEPARTMENT OF LAW'S NEW PROPOSAL

A. Alaska Should Protect Children from Emotional, Mental, and Prospective Neglect

B. The Proposal Provides An Appropriate Standard For Intervention

C. The Proposal is Consistent with the Rest of the CINA Chapter

V. CONCLUSION

FOOTNOTES

I. INTRODUCTION

The Alaska Supreme Court has jeopardized Alaska's ability to protect its children through two divided opinions that have sharply curtailed when children can be found to be children in need of aid ("CINA") under Alaska statutory law. In January 1996, the supreme court in In re S.A. ^[1] overruled three of its own cases and decided that Alaska courts do not have jurisdiction to intervene on a child's behalf based solely on evidence that a parent is willing but unable to provide for a child's needs. ^[2] In September 1997, the su- [*pg 502] preme court in R.J.M. v. State ^[3] decided that Alaska courts do not have jurisdiction to intervene to protect a child based solely on evidence that the child has suffered emotional neglect. ^[4] While many children in need of aid remain unaffected by these two decisions because they are protected by other subsections of the CINA jurisdiction section, ^[5] these decisions decidedly have left children vulnerable in certain cases of neglect. ^[6]

In response to the first decision, the Alaska legislature considered amending the CINA jurisdiction section to allow the state explicit authority to intervene on behalf of a child who does not have a parent "able to care" for him or her. ^[7] The legislation was not adopted because the proposed amendment was too controversial. ^[8] Legislators and commentators considered the term "able" too broad, ^[9] and they were concerned that the term might lead to discrimination against handicapped parents. ^[10]

The Alaska Department of Law responded to these concerns by proposing a narrower amendment to the CINA jurisdiction section. ^[11] Avoiding the broad language of the earlier legislative approach, the Department of Law's new proposal concentrated on protecting children from emotional, mental, and prospective ne- [*pg 503] glect. ^[12] The amendment would define the term neglect to mean the "deprivation of the child's physical, mental or emotional needs." ^[13] The proposal narrowed in on protecting children in certain cases of neglect because children in other harmful situations were still protected by other subsections of the jurisdiction section.

The Department of Law's proposal has become more timely in the wake of the more recent R.J.M. decision. The amendment was introduced after S.A. because at that time it appeared there were gaps in the state's ability to protect its children. Now, R.J.M. has made clear that the CINA jurisdiction section contains a serious gap in its ability to protect children in certain cases of neglect.

This Note encourages the Alaska legislature to adopt the Department of Law's proposal because it provides the statutory foundation necessary for the protection of Alaska's children. Part II of the Note provides a background for the Department's proposal. Part III provides descriptions of the previous legislative proposal and the Department of Law's current proposal. Part IV argues that the Department's current proposal should be adopted because (1) children should be protected from emotional, mental, and prospective neglect, (2) the proposal provides an appropriate standard for intervention, and (3) the proposal is consistent with the rest of the CINA chapter.

II. BACKGROUND

A. Alaska's CINA Jurisdiction Section The critical issue for an Alaska juvenile court in a child abuse, neglect, or abandonment case is whether a minor qualifies as a child in need of aid under Alaska statute. ^[14] In making this determination, the court follows the standards laid out in the jurisdictional section of the CINA chapter, which gives the court the legal authority to intervene in the life of a family to protect a child. ^[15] Ultimately, the section can provide a court with the authority to terminate parental rights. ^[16]

The section delineates the following six circumstances in which a court should find that a child is in need of aid:

(1) the child being habitually absent from home or refusing to [*pg 504] accept available care, or having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment by . . . [the child's parent or parents;]

(2) the child being in need of medical treatment to cure, alleviate, or prevent substantial physical harm, or in need of treatment for mental harm as evidenced by failure to thrive, severe anxiety, depression, withdrawal, or untoward aggressive behavior or hostility toward others, and the child's parent, guardian, or custodian has knowingly failed to provide the treatment;

(3) the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child will suffer such harm as a result of the actions done by or conditions created by the child's parent, guardian, or custodian or the failure of the parent, guardian, or custodian adequately to supervise the child;

(4) the child having been, or being in imminent and substantial danger of being, sexually abused either by the child's parent, guardian, or custodian, or as a result of conditions created by the child's parent, guardian, or custodian, or by the failure of the parent, guardian, or custodian adequately to supervise the child;

(5) the child committing delinquent acts as a result of pressure, guidance, or approval from the child's parents, guardian, or custodian;

(6) the child having suffered substantial physical abuse or neglect as a result of conditions created by the child's parent, guardian, or custodian. ^[17]

Most of these subsections have not created substantial controversy and have been afforded their plain meaning by the courts. ^[18] Subsections (a)(1) and (a)(6), however, have provoked litigation concerning their coverage. ^[19] The S.A. case and the original proposal concern subsection (a)(1). ^[20] The R.J.M. case and the Department's current proposal concern subsection (a)(6). ^[21] This note will concentrate primarily on these two subsections.

B. Subsection (a)(1) and the In re S.A. Decision The core question under subsection (a)(1) is whether the inability of a parent to provide care authorizes a court to find a child in need of aid. The subsection states that a child is in need of aid as a result of "the child . . . having no parent, guardian, custodian, [*pg 505] or relative caring or willing to provide care . . . ." ^[22] "Caring" and "care" are defined as "provid[ing] for the physical, emotional, mental, and social needs of the child." ^[23] Subsection (a)(1) clearly protects three types of children: (1) a child who has run away from home; (2) a child who has been abandoned; and (3) a child whose parent is unwilling to care for him. A question that has arisen repeatedly is whether the subsection protects a fourth type of child: one whose parent is unable to care for him or her. ^[24]

Inconsistent messages from the Alaska Supreme Court between 1988 and 1995 created confusion over the subsection's interpretation. The supreme court indicated in four cases that subsection (a)(1) permits a court to find a child in need of aid due to parental inability to care for him or her. ^[25] In one case, the court quoted an earlier decision stating that "'a finding of inability to care would be grounds for jurisdiction under subsection [(a)(1)] . . . .'" ^[26]

Yet, during the same period, the court indicated in another decision that the subsection permits a finding of jurisdiction only when a parent is both unable and unwilling to provide care. ^[27] In that case, the court specifically examined the parent's willingness to care for the child. ^[28] The court rejected the State's attempt to combine willingness and ability to care, explaining that "the State's conflation of willingness to care and ability to satisfy needs leads to absurd conclusions." ^[29]

In S.A, a divided supreme court thoroughly analyzed the subsection for the first time and concluded that subsection (a)(1) does not allow a court to protect children solely on evidence that the parents are unable to care for them. ^[30] It explicitly overruled three of the cases that had stated courts could make a CINA determination simply based on evidence that the children's parents were unable to care for them. ^[31]

[*pg 506] The court based its decision on the plain language of the subsection and on the structure and purpose of the CINA statute. ^[32] It concluded from its plain-language analysis that the...