Legislature(2005 - 2006)BUTROVICH 205


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 75(HES) Out of Committee
Moved CSSB 73(HES) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 84(HES) Out of Committee
Moved SB 51 Out of Committee
             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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                                       

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