Legislature(2005 - 2006)BUTROVICH 205
02/07/2005 01:30 PM HEALTH, EDUCATION & SOCIAL SERVICES
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SB 84-CHILD PROTECTION CONFIDENTIALITY CHAIR DYSON asked Marcia Kennai and Jan Rutherdale to present SB 84. MARCIA KENNAI, deputy commissioner, Office of Children's Services (OCS), and Jan Rutherdale, assistant attorney general, Department of Law introduced SB 84. Ms. Kennai said SB 84 would protect children's rights while providing disclosure of some agency information. SB 84 opens all child-in-need-of-aid (CINA) hearings to the public except in certain circumstances. It expands the circumstances under which the department is required to share confidential information on CINA proceedings. SB 84 would increase accountability and increase public awareness and trust. 1:36:51 PM MS. RUTHERDALE offered historical background on the issue. Child protection cases were open hearings in the past due to the fear of children being sold into slavery. Hearings were later closed to protect children and the stigma attached. Federal law provides confidentiality of records, presuming it includes court hearings. In the last 10 years, the press has exposed problems in the system. 1:40:16 PM SENATOR ELTON asked Ms. Rutherdale, "Since federal law has changed to open up court proceedings, how many other states have done so?" MS. KENNAI advised 13 states were open with judicial discretion and 5 states are completely open. SENATOR ELTON asked how it works when a judge admonishes people who fail to keep secrecy. MS. RUTHERDALE replied if the court asks for secrecy and a person divulges information, next time they come to court they could be excluded from proceedings. The press is generally respectful of abuse victims. 1:43:36 PM CHAIR DYSON asked whether the person would be subject to contempt of court. MS. RUTHERDALE answered yes. Alaska allows the court to open proceedings if no one objects. The courts announce when the proceedings are confidential. 1:44:47 PM CHAIR DYSON asked whether Paragraph (11) on page 6 takes care of allowing for critical information to be dispersed to professionals who provide services to the child. MS. RUTHERDALE answered it does not. Paragraph (11) deals with issues such as a sex offender living in a neighborhood. The Office of Child Services, (OCS) could warn the mother of a child living next door. That section allows the release of information to a child at risk. The term caregiver is a broad definition. 1:47:35 PM MS. RUTHERDALE advised an existing provision in subsection 9, subparagraph 2, "a person or agency requested by the department to provide consultation or services" that would include a professional to give services to a child or parent. That section allows appropriate information to be shared. CHAIR DYSON noted the amendment added the word "confidential" on line 21. MS. RUTHERDALE advised it was done as a housekeeping measure. MS. KENNAI stated item 11 refers to childcare providers, and the department can now share any vital information with a parent or municipality. 1:50:20 PM CHAIR DYSON clarified the issue is whether the professional treating the child can access necessary information in order to treat the child. MS. RUTHERDALE answered SB 84 has that issue covered. SENATOR ELTON asked whether the state determines the information to be released. MS. RUTHERDALE answered it is at the discretion of the records holder. The person determining what is released has the complete record. This saves time. Some information is private even to relatives. 1:52:57 PM CHAIR DYSON said some information in the record is not relevant even to the people treating the child. MS. RUTHERDALE advised the system has checks and balances. Information can be released as a court order. CHAIR DYSON reminded the committee that due to previous legislation, legislators could get access to those records. 1:54:07 PM SENATOR DONNY OLSON mentioned the situation with the Mat-Su abuse case and said SB 84 seems to give a broad ability for information to be too available to the public. MS. KENNAI answered a lot of erroneous information comes out anyway. When a parent or foster parent gets charged, the documents are public. SENATOR OLSON said reading into SB 84 appears to further open information to the public. SENATOR OLSON asked what happens if you have parents who are separated and they disagree regarding disclosure. MS. RUTHERDALE emphasized there are two sections to SB 84. One has to do with court hearings and records and the other, agency records. There are two parts of agency records, one is the "shall release appropriate information", and the other section allows for release to the public, but only in three narrow situations. 1:57:32 PM OCS is allowed to respond to the report of harm, the outcome, the services provided, and the course of action. The task force addressed the issue of parents trying their cases through the press. SB 84 allows the state the ability to respond to such situations. SB 84 is tailored to respond to a particular parent, or a narrow report of harm having to do with the parent. The reason it is so narrow is there are still federal requirements for confidentiality. Federal law allows parents to waive their right for confidentiality. 2:00:34 PM CHAIR DYSON asked whether anything in SB 84 would have prevented what happened in the Mat-Su valley situation. He added in that case the children had been adopted and once the adoption process is finished, the state is finished. MS. KENNAI replied it would not have prevented that particular situation and agreed with Chair Dyson's comments. SENATOR ELTON stated Paragraph (11) appears to allow a broader release of information, but it removes the requirement to adopt regulations that might determine to whom information can be released. He asked who makes the determination on whether it is appropriate to release information. MS. RUTHERDALE responded the verbiage was moved to Section 13, subparagraph (N) that allows the agency to adopt regulations. 2:03:30 PM SENATOR ELTON asked Ms. Rutherdale to speak to the issue of dropping the word "shall" and introducing "may". MS. RUTHERDALE could not reply. CHAIR DYSON advised he is open to amending SB 84 and addressing it in judiciary. SENATOR ELTON reported he is not sure how he feels about SB 84. 2:04:42 PM CHAIR DYSON advised his interest in Section 16, page 8. "However, the court may limit the presence of those persons in a hearing that has been closed." 2:05:59 PM MS. RUTHERDALE clarified it is not a change it is the current law. 2:09:15 PM SCOTT CALDER, Fairbanks, testified via teleconference that SB 84 is intrinsically related to a history of problems. He finds Sections 1 and 2 acceptable. Section 3 has problems on lines 9- 13 where hearings are closed to the public during an initial court hearing and a hearing following an initial hearing in which a parent, child, or other party of a case is present but has not had an opportunity to obtain legal representation. The first few court hearings are when the family is most violated by agency activity. This is when public scrutiny is most needed. 2:11:00 PM CHAIR DYSON asked Mr. Calder if initial hearings should be open to the public. MR. CALDER replied the DOL often relies on the appearance of judicial review on its activities. In the early stages, many times the people are at a disadvantage. 2:12:31 PM CHAIR DYSON asked about a handbook for parents explaining their rights. MR. CALDER said it was never produced. The agency did produce a "fill-in-the-blank" publication, which causes the parent to feel subservient. CHAIR DYSON asked Ms. Rutherdale if parents have a clear right to ask the judge for legal help. MS. RUTHERDALE answered yes. CHAIR DYSON asked whether they have the right to ask the judge to postpone the action until they have legal representation. MS. RUTHERDALE replied she was not sure. 2:14:30 PM MS. RUTHERDALE explained in an emergency state custody hearing, the judge would inform the parents of their rights and give them the option of leaving the child in state custody until their attorney was available. MR. CALDER said the public should be involved early and often. Section 7 puts the parent in a disadvantaged position unless authorized by the court. He advised the committee to eliminate Section 7. Section 8 is unacceptable. Section 9 should have the parent at the top of the list of people who can receive information. Confidentiality has been used as a weapon against children and families by the DOL. Parents should have all information regarding the child unless good cause to do otherwise has been shown. 2:17:12 PM CHAIR DYSON asked Ms. Rutherdale why the parent isn't on the list. MS. RUTHERDALE answered parents are parties in the action. The attorney may share any documents concerning the case with their client. CHAIR DYSON asked what is the reason for not having parents on the list. MS. RUTHERDALE answered the reason is that attorneys are given full access to the information and they can share the information with their clients. There have been instances where parents have left sensitive information in a public place. 2:20:11 PM CHAIR DYSON said the list involves a lot of people who have less interest in the case. He asked if they could add parents to the list. MS. RUTHERDALE advised she would get back to the committee regarding that issue. The court order allows the parents to get any necessary information they need. AS 47.10.093 (a) says you cannot release records without a court order. Subsection (b) says you can disclose the appropriate information under certain circumstances without the court order. It's a known provision. 2:23:03 PM CHAIR DYSON asked whether that works for parents who are representing themselves. MS. RUTHERDALE said they would have to go back to the court. CHAIR DYSON noted in the case of parents who live remotely from court, it could be inconvenient. MR. CALDER cited a US Supreme Court ruling that says, "Parents are not any other person". He maintained parents are innocent until proven guilty. Section 9 refers to a review panel established by the DOL to review actions by the DOL. Mr. Calder maintained that this is unacceptable. 2:25:17 PM The DOL should receive public scrutiny. Section 11 should be broadened to include parents generally, in terms of the interest of their own children. Section 13 should point out the fact that the parent has the authority to request the information. Section 14 should not allow immunity from liability. 2:27:53 PM Page 9, Section 17, (a) and (b) [version\A] should be eliminated because it denies public access to the initial court hearing. 2:29:31 PM MR. CALDER summed up his testimony advising that there is a history of abuse of power by the state government. 2:31:26 PM CHAIR DYSON asked Mr. Calder for his written testimony. SENATOR ELTON asked regarding page 6, line 26 [version\A], what is the purpose of saying information could only be disclosed to a departmentally established review panel. MS. RUTHERDALE said anything could be discussed within the department. On a specific case the DOL will have an internal review, Section 9 allows them to bring in a member of the public who is knowledgeable of the case. 2:33:14 PM SENATOR ELTON said this would preclude the review established by the Governor. The Governor may want to move the review outside the department. MS. KENNAI said the DOL has a public citizen review panel that reviews policy and procedure, but this section of SB 84 refers to the commissioner or deputy commissioner being able to establish an internal review panel, which allows the department to bring in someone from the outside who is knowledgeable about the particular case. 2:35:56 PM CHAIR DYSON asked the reason the citizen review panel is not on the list of people able to access the information. MS. RUTHERDALE answered the citizen review panel addresses system problems not specific cases. SENATOR ELTON asked whether there is anything in SB 84 or current state law that allows confidential information to be shared with either a governor's panel or a legislative panel staff member. MS. RUTHERDALE said in specific cases there are mechanisms in existence. 2:39:16 PM SENATOR ELTON asked if a legislative audit staff has access to confidential information. MS. KENNAI answered legislators can request a legislative audit. SENATOR ELTON asked whether both the legislator and the audit staff could have access to confidential information. MS. RUTHERDALE did not know the answer. SENATOR GARY WILKEN repeated earlier questions regarding why parents are not included in the list of people able to access confidential information. 2:41:47 PM MS. RUTHERDALE advised the committee that mechanisms already exist and those mechanisms are adequate. This is a partial discovery tool. More records are available through the court. SENATOR WILKEN asked Ms. Rutherdale to give an example of what trouble could be caused by adding a line with qualifications that speaks to the parent privileges. 2:45:04 PM MS. RUTHERDALE could not think of one. CHAIR DYSON said it seems strange to not have parents on the list. He advised the committee that he would hold SB 84 until the next committee meeting. CHAIR DYSON asked whether the Indian Child Welfare Act (ICWA) representatives should be on the list. 2:47:18 PM MS. RUTHERDALE said the system is already set up to share information. If a tribe intervenes in a case, the order will allow free flowing exchange of information. 2:49:57 PM SENATOR OLSON suggested eliminating Section 8. MS. RUTHERDALE said it would open up everything. SENATOR OLSON announced he would like to have everything open to the parent. He stated he is in favor of parents raising children as opposed to the government raising children. MS. RUTHERDALE: answered AS 47.10.093(a) refers to children who fall within the chapter, meaning there has been a petition filed. Parents and attorneys do have full access in formal cases. SB 84 addresses non-parties. MS. KENNAI pointed out most of the information they have comes from the parent. 2:52:30 PM CHAIR DYSON noted this would be a case involving a child who comes to the state through abuse. Chair Dyson suggested the committee take SB 84 up again in the next committee meeting and asked to have "parent" added to the list or have a solid reason why they would not be added.