Legislature(2005 - 2006)BUTROVICH 205
02/07/2005 01:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB84 | |
| SB51 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 84 | TELECONFERENCED | |
| + | SB 51 | TELECONFERENCED | |
| + | TELECONFERENCED |
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.
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