Legislature(2005 - 2006)BUTROVICH 205
02/09/2005 01:30 PM HEALTH, EDUCATION & SOCIAL SERVICES
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 84-CHILD PROTECTION CONFIDENTIALITY 1:33:25 PM CHAIR FRED DYSON announced SB 84 to be up for consideration. JAN RUTHERDALE, Assistant Attorney General, Department of Law, said she had prepared some amendments for SB 84. The first amendment is as follows: AMENDMENT 1 Page 6, line 26 after "department" add: ",the governor, or the legislature" Page 8, line 9: delete "may" and add "shall" Page 8, line 15-16: delete "in accordance with" and add "under" MS. RUTHERDALE explained that the first change addressed Senator Elton's concern with the Governor or the Legislature convening an investigative body to review a specific case. SENATOR LYDA GREEN joined the committee at 1:35. 1:36:36 PM CHAIR DYSON noted that there were no objections to the first change. MS. RUTHERDALE explained that the change on page 8, line 9, was in response to Senator Elton's concern about changing the original language of "shall" to "may". She didn't think it mattered either way and put the original language back. However, she explained: This is a little wider. This covers all the regulations including that specific concern about the sufficient legitimate interest paragraph that had been moved from another section. So, it may not be necessary in some cases.... Apparently there is case law that requires whenever there's a term or standard is used for the public, we're required to have regulations. The case law puts that "shall" in there, so it doesn't matter either way.... CHAIR DYSON asked what is a reasonable expectation for a time frame in which regulations get promulgated after a law is passed and if it had been challenged in court. MS. RUTHERDALE replied that she didn't know the answer. However, she said: I want to amend a statement I made last time, which was that I didn't believe there was any regulations that had been promulgated and there are regulations that apply to confidentiality, but those are very old.... I didn't want to leave the impression there are no regulations.... 1:38:17 PM MS. RUTHERDALE said the third change on page 8 was the result of a technical edit that had replaced "under" with "in accordance with" and a person in her department with expertise in tort liability said it would be important to use the word "under". SENATOR WILKEN moved to adopt Amendment 1. There were no objections and Amendment 1 was adopted. CHAIR DYSON announced that Amendment 2 was up for consideration and dealt with the issue of why parents aren't on the list of folks who can get confidential information. AMENDMENT 2 Page 5, line 13: delete "and" Page 5, line 14: after "section," add "and as provided to all parties in a child in need of aid proceeding in accordance with court rules," Page 5, line 22: delete "(1) a guardian ad litem appointed by the court;" and renumber accordingly 1:40:05 PM MS. RUTHERDALE explained why section 3 belongs where it is and not in subsection (b). Concern was raised at the last hearing that parents aren't on the subsection (b) list of people that the agency can disclose confidential information to and she explained that parents are parties to a case and they get all this information and more. It's not discretionary. They have access to the file on the child. She read the definition of "parties" in Child In Need of Aid Rule 2(l): Party means the child, the parents, the guardian - you won't always have a guardian, but sometimes you have both parents and guardians caring for the child - the guardian ad litem and the department. Those people would be the parties to the case in all cases. Then: An Indian custodian who has intervened - an Indian custodian is a term out of the Indian Child Welfare Act... but it would be like a grandparent who has assumed a parental role in raising the kids. They are not legally a guardian, but they are the custodian.... It's not an automatic intervention. They actually have to move to intervene before they get party status. And then the Indian child's tribe - if there is an Indian child's tribe - who has intervened - it's not automatic; they have to actually move to intervene. Then any other person who has been allowed to intervene in the court.... So parents, no question, they are a party to the case and as parties to the case, like in all civil cases, they are entitled to discovery and there is court rules and specifically in the Child In Need of Aid (CINA) case, but it generally refers back to the civil process with a few exceptions. 1:44:46 PM She explained a discovery order in terms of access and said the point is, it's not appropriate to place access into statute. "This is sort of the province of the court to have these orders determining what the discovery is...." The district attorney's office said the criminal discovery process is the same. She thought this amendment was a good solution. The other amendment - removing subsection (b)(1) a guardian ad litem appointed by the court - doesn't necessarily have to be done, but a guardian is a party and it seems odd that they are the only party that is actually listed. So, the amendment cleans that up. 1:47:56 PM CHAIR DYSON asked if subsection (a) talks about parties of a case that are always considered a party to a case unless they are excluded or non-existent and subsection (b) talks about non- parties that may be included. MS. RUTHERDALE replied that was correct. SENATOR WILKIN moved to adopt Amendment 2. There were no objections and Amendment 2 was adopted. 1:49:49 PM BETTY ROLLINS, Fairbanks resident, took exception to Ms. Rutherdale's statement because they are not talking just about court action where people are parties to a case, but about day- to-day operations. She asked why the state is fighting so hard to keep parents out of the loop. Public defenders have up to 100 cases during a year and this doesn't give them time to respond to each parent. She insisted: The parent must be privileged to any information that the foster parent, the guardian ad litem, anyone in this case...without their attorney - because many times I've seen cases where the parent will continually call their attorney and they don't see him until the date of the hearing. She said the federal law doesn't really state that people are allowed to get public information and she thought that should be clarified. 1:51:44 PM SCOTT CALDER, Fairbanks resident, stated that the Permanency Planning Act of 1990 in Chapter 1.17, SLA1990 concerned the citizen review panel that was never properly implemented. His experience is that things are not as they are represented by the state. He agreed with the changing "may" to "shall" amendment. His experience was that parents were abused or shuffled around a little too harshly in these proceedings. He also wanted to see greater respect for tribal representatives. 1:55:49 PM CHAIR DYSON reiterated that the primary issue here is to protect children. MR. CALDER responded that you can't promote safety of children by keeping information from their parents. 1:57:43 PM SENATOR KIM ELTON moved to report CSSB 84(HES) from committee with individual recommendations and attached fiscal note. There were no objections and it was so ordered.