Legislature(2005 - 2006)BUTROVICH 205


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
             SB 84-CHILD PROTECTION CONFIDENTIALITY                                                                         
CHAIR DYSON asked Marcia Kennai  and Jan Rutherdale to present SB                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
MR. CALDER said  it was never produced. The agency  did produce a                                                               
"fill-in-the-blank" publication, which causes  the parent to feel                                                               
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                                                               
MS. RUTHERDALE  answered parents are  parties in the  action. The                                                               
attorney may share  any documents concerning the  case with their                                                               
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                                                               
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                                                               
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.                                                                                                    

Document Name Date/Time Subjects