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In the Matter of D.D.S. (3/4/94), 869 P 2d 160
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of: )
) Supreme Court No. S-5687
D. D. S., ) Superior Court No.
) 3AN-91-491 CP
a Minor Under the Age )
of Eighteen (18) Years. ) O P I N I O N
Date of Birth: 07/15/91 )
) [No. 4058 - March 4, 1994]
Petition for Review from the Superior
Court of the State of Alaska, Third Judicial
Peter A. Michalski, Judge.
Appearances: Dianne Olsen, Assistant
Attorney General, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for
Petitioner Department of Health & Social
Services. Margi Mock and David B. Koch,
Assistant Public Defenders, and John B.
Salemi, Public Defender, Anchorage, for
Respondents M.S. and M.N.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices.
[Burke, Justice, not participating]
MOORE, Chief Justice.
This case involves a petition filed by the Alaska
Department of Health and Social Services (Department) to
terminate the parental rights of M.S. and M.N. over their child
D.D.S. on the grounds of alcohol-related neglect. The issue
presented is whether AS 47.37.210, which provides that "the
registration and other records of [alcohol] treatment facilities
shall remain confidential and are privileged to the patient,"
creates an evidentiary privilege in Child in Need of Aid (CINA)
proceedings. At trial, the superior court denied the
Department's motion for access to the parents' treatment records.
The Department then filed a petition for expedited review with
this court. We reverse the superior court's decision and hold
that, to whatever extent AS 47.37.210 may be interpreted to
create an evidentiary privilege, such privilege does not apply in
FACTS AND PROCEEDINGS
On October 13, 1991, the Alaska Department of Health
and Social Services, Division of Family and Youth Services (DFYS)
took custody of D.D.S., an Indian child as defined by the Indian
Child Welfare Act, 25 U.S.C. 1901-1963 (1988). This action
was taken as a result of a police response to a disturbance call.
The parents were found intoxicated, fighting, and unable to care
for the child, then three months old. In addition, there was
also evidence of a history of domestic violence.
After DFYS assumed custody of the child, the parents
agreed to participate in treatment for alcohol abuse. However,
numerous attempts at treatment met with little success, as
neither parent was able to complete an in-patient treatment
Following these unsuccessful attempts at
rehabilitation, the Department filed a Petition for Termination
of Parental Rights on the ground that the parents' continued
alcohol abuse made D.D.S. a child in need of aid. To prevail on
this petition, the Department must make several showings. First,
it must establish by clear and convincing evidence that D.D.S. is
a child in need of aid pursuant to AS 47.10.010(a)(2), and that
the offending parental conduct is likely to continue to exist
absent the termination of parental rights. AS 47.10.080(c)(3).
In addition, because the Indian Child Welfare Act is
applicable, the Department must prove by evidence beyond a
reasonable doubt, including that to be supplied by expert
testimony, that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or
physical damage to the child. 25 U.S.C. 1912(f) (1988).
Finally, the Department must show that active efforts have been
made to provide remedial services to the parents, but these
efforts have been unsuccessful. 25 U.S.C. 1912(d) (1988).
Trial on the petition was set for May 1993. Prior to
trial, the Department moved for access to the parents' alcohol
treatment records from several programs in which the parents had
participated. The Department's motion was based upon federal
law, which permits a court to order access to the records of
federally funded treatment programs upon a showing of good cause.
42 U.S.C.A. 290dd-2(a), (b)(2)(C) (West Supp. 1993).1
Superior Court Judge Peter Michalski denied the motion
on the ground that AS 47.37.210 prohibited the release of the
records. The Department then moved to continue the trial on the
basis that it could not adequately protect the interests of the
minor without the records. The court granted the continuance.
The Department then filed a petition for review with this court,
which was granted by order dated July 1, 1993.
At issue in this case is whether AS 47.37.210 bars the
use of alcohol treatment records in the particular context of a
CINA proceeding. This is a question of statutory interpretation
subject to de novo review by this court. Zsupnik v. State, 789
P.2d 357, 359 (Alaska 1990).
Alaska Statute 47.37.210 provides:
Records of alcoholics and intoxicated
(a) Except as required by AS
28.35.030(d), the registration and other
records of treatment facilities shall remain
confidential and are privileged to the
(b) Notwithstanding (a) of this
section, the director may make available
information from patients' records for
purposes of research into the causes and
treatment of alcoholism. No information may
disclose a patient's name.
The Department first argues that AS 47.37.210 does not
create an evidentiary privilege because its enactment did not
comply with the requirements of article IV, section 15 of the
Alaska Constitution.3 The Department failed to raise this
argument below, and the superior court did not rule upon this
question. We therefore deem the argument waived and decline to
address the issue. Gates v. City of Tenakee Springs, 822 P.2d
455, 460 (Alaska 1991); see also Whitney-Fidalgo Seafoods, Inc.
v. Beukers, 554 P.2d 250, 251 n.1 (Alaska 1976) (declining to
address issue not addressed by trial court in case heard on
petition for review).
The Department alternatively contends that an alcohol
treatment privilege, if recognized, should not apply in child
protection proceedings. We find this argument persuasive and
conclude that, even if AS 47.37.210 may fairly be interpreted to
create such an evidentiary privilege, this privilege is
inapplicable in CINA proceedings.
There can be no question that the Department's interest
in protecting the children of this state is compelling in nature.
This compelling interest is reflected in several enactments of
the Alaska Legislature. For example, AS 47.17.010-.020 requires
practitioners of the healing arts, including social workers and
paid employees of substance abuse treatment centers, to report
any suspected cases of child abuse or neglect to the Department.
In cases arising from such a report, AS 47.17.060 expressly
abrogates the physician-patient and husband-wife privilege.4 The
purpose of these provisions, as stated by the Legislature, is to
provide protective services in an effort to
(1) prevent further harm to the
(2) safeguard and enhance the
general well-being of children in this
(3) preserve family life unless
that effort is likely to result in
physical or emotional damage to the
AS 47.17.010. Similarly, the testimonial privilege pertaining to
domestic violence victim counseling, provided under AS 25.35.100,
does not apply to reports of suspected child abuse or neglect
made pursuant to AS 47.17 or to CINA proceedings under AS 47.10.
AS 25.35.110 (1), (6).
By enacting the Alaska CINA Rules in 1987, this court
has also recognized the State's strong interest in protecting and
preserving the well-being of the children of this state. These
rules, applicable to the termination proceeding at issue here,
govern practice and procedure in all CINA proceedings brought
under AS 47.10.010(a)(2). CINA Rule 1(b). CINA rules are to "be
construed and applied to promote fairness; accurate fact-finding;
the expeditious determination of children's matters; and the best
interests of the child . . . ." CINA Rule 1(c). Thus, an
affirmative duty is placed on the court to determine the best
interests of a child who is the subject of a CINA proceeding.
See Roth v. Roth, 793 S.W.2d 590, 592 (Mo. App. 1990).
Pursuant to this purpose, this court has promulgated
CINA Rule 9(b), which provides that "[t]he physician and
psychotherapist-patient privilege, Evidence Rule 504, and the
husband-wife privileges, Evidence Rule 505, do not apply in Child
in Need of Aid proceedings." This rule evinces the court's
intent to give greater protection to the interests of an
allegedly neglected or abused child than to the interest of the
child's parents in confidentiality. It also reflects our view
that the trial court should have access to all pertinent evidence
relating to such abuse or neglect in determining the best
interests of the child. See Roth, 793 S.W.2d at 592 (pursuant to
duty to ascertain best interests of child, the judge "should
. . . have at his/her disposal all available pertinent
evidence"); In re the Adoption of Embick, 506 A.2d 455, 460-61
(Pa. Super. 1986) (in an involuntary termination case, the court
must examine all evidentiary resources and conduct full and
It would be illogical, in light of the State's
compelling interest in protecting the welfare of its children and
the court's affirmative duty to determine the best interests of
the child, to give greater protection to alcohol treatment
records than we give to confidential communications between a
physician and his or her patient. We therefore place any
evidentiary privilege pertaining to alcohol treatment records
under AS 47.37.210 on the same footing as the physician and
psychotherapist-patient privileges, which under Rule 9(b) are
abrogated in CINA proceedings.5 See In re Gigi B, 335 N.Y.S.2d
535, 539 (Fam. Ct. 1972) (placing statutory privilege for drug
addiction treatment records on same footing as doctor-patient,
husband-wife, and social worker-client privileges, which, under
New York law, are abrogated in abuse and neglect proceedings).
Our decision is further supported by CINA Rule 1(f),
which governs those situations not expressly covered by the CINA
Rules. The rule provides:
Where no specific procedure is
prescribed by these rules, the court may
proceed in any lawful manner, including
application of the Civil Rules, applicable
statutes, the Alaska and United States
Constitutions or the common law. Such a
procedure may not be inconsistent with these
rules and may not unduly delay or otherwise
interfere with the unique character and
purpose of child in need of aid proceedings.
CINA Rule 1(f) (emphasis added). As discussed above, exclusion
of alcohol treatment records in the "unique"setting of a CINA
proceeding would interfere with the court's duty to examine all
pertinent evidence in determining the child's best interests and
would be inconsistent with the expressed intent of the CINA rules
to give greater protection to the welfare of the child than to
the parents' confidentiality interests.
Our decision is also consistent with the approach
suggested by Dean Wigmore. Wigmore states that four criteria
must be met to justify an evidentiary privilege:
(1) The communications must
originate in a confidence that they will
not be disclosed.
(2) This element of
confidentiality must be essential to the
full and satisfactory maintenance of the
relation between the parties.
(3) The relation must be one which
in the opinion of the community ought to
be sedulously fostered.
(4) The injury that would inure to
the relation by the disclosure of the
communications must be greater than the
benefit thereby gained for the correct
disposal of litigation.
8 John H. Wigmore, Evidence 2285, at 527 (McNaughton's rev. ed.
1961) (emphasis omitted). According to Wigmore, "[o]nly if these
four conditions are present should a privilege be recognized."
We find that Wigmore's fourth requirement for the
recognition of an evidentiary privilege, i.e., that the injury
resulting from disclosure must outweigh the benefit thereby
gained from the correct disposition of the issue before the
court, clearly is not met in the CINA context. Using Wigmore's
approach, we conclude that the benefits of protecting a child who
is the subject of a CINA proceeding outweigh any injury to a
parent's statutory right to maintain the confidentiality of his
or her alcohol treatment records. See Embick, 506 A.2d at 461
(citing Wigmore in support of conclusion that statutory
psychologist-client privilege did not apply in proceeding to
terminate parental rights); see also Perry v. Fiumano, 403
N.Y.S.2d 382, 385 (App. Div. 1978) ("Wigmore's test surely has
relevance in a custody proceeding").
Therefore, we are satisfied that the statutory alcohol
treatment privilege must yield in a CINA proceeding where a
parent's alcohol abuse is at issue. This is particularly true in
light of the fact that, under the CINA rules, the proceedings are
closed to the public and the records of such proceedings are
confidential. CINA Rules 3(e), 22. These rules minimize any
intrusion into the parents' confidentiality rights resulting from
Our conclusion is also consistent with case law from
other jurisdictions. For example, in Embick, 506 A.2d 455, a
Pennsylvania court addressed the applicability of a statutory
psychologist-client privilege to a proceeding to terminate
parental rights. Relying in part on Wigmore's analysis, the
court concluded that the statutory privilege must give way in the
termination context. Id. at 461. The court noted that "[i]t
would be anomalous to insist that the hearing court examine all
evidentiary resources, conduct a full and comprehensive hearing,
and, at the same time, deprive the hearing court of material
testimony concerning the mental or emotional condition of the
natural parents." Id.
In reaching this conclusion, the court relied on Perry
v. Fiumano, 403 N.Y.S.2d 382 (App. Div. 1978). Embick, 506 A.2d
at 461. In Perry, the court held that a statutory social worker-
client privilege did not apply in a child custody proceeding.
Perry, 403 N.Y.S.2d at 386. Recognizing that, under New York
law, this privilege (along with the husband-wife and physician-
patient privileges) did not apply in child protective
proceedings, the parents nonetheless argued that, "absent a
legislative expression prohibiting the exercise of a privilege in
custody cases, the courts should not judicially impose such a
limitation." Id. at 385-86 (emphasis added).
The court, however, disagreed, stating that the
statutory provision abrogating the privilege in the child
protection context was enacted "to help protect children from
injury or mistreatment and to help safeguard their physical,
mental, and emotional well-being . . . ." Id. at 386 (quoting
1011 of the New York Family Court Act). The court also noted
that New York law did not require a social worker to treat as
confidential any communication which revealed the contemplation
of a harmful act. Id. The court found that these statutes
evinced the legislative intent to protect "the health, safety and
welfare" of the children of the state. Id. Thus, the court
concluded that "we do not find it an impermissible encroachment
upon the legislative function to hold that . . . the rule of
privilege protecting such communications must yield to the
'dominant . . . duty of the court to guard the welfare of its
wards.'" Id. (citations omitted).
Similarly, in In re Baby X, 293 N.W.2d 736 (Mich. App.
1980), the court ordered production of substance abuse records in
a neglect proceeding, despite a state statute which provided that
such records were confidential. The statute permitted a court to
order only the disclosure of whether a specific person was in
treatment with an agency. Id. at 740 n.4. The court, however,
found the records admissible, concluding that "in neglect
proceedings, confidentiality must give way to the best interests
of the child." Id. at 741; see also DeBlasio v. DeBlasio, 590
N.Y.S.2d 227, 228 (App. Div. 1992) ("we conclude that the
defendant's interest in preserving confidentiality must yield to
the paramount interest of protecting the well-being of the
parties' young child"). In support of its decision, the Baby X
court cited a Michigan statute which required health care
professionals to report suspected cases of abuse or neglect.
Baby X, 293 N.W.2d at 739.
Based on the above analysis, we conclude that AS
47.37.210 does not establish a privilege precluding the admission
of alcohol treatment records in a CINA proceeding. However,
under federal law, these records may be disclosed only upon a
showing of "good cause." 42 U.S.C.A. 290dd-2(a), (b)(2)(C)
(West Supp. 1993). In determining good cause, "the court shall
weigh the public interest and the need for disclosure against the
injury to the patient, to the physician-patient relationship, and
to the treatment services." Id. 290dd-2(b)(2)(C).
At trial, the superior court concluded that the
treatment records sought by the State were privileged under AS
47.37.210. The court therefore did not reach the issue of
whether the Department had established "good cause"as required
under the federal statute. We now reverse the superior court's
determination that the records at issue were privileged under AS
47.37.210. We remand to the superior court for a determination
on the "good cause"issue under 42 U.S.C.A. 290dd-2 and for
further proceedings consistent with this opinion.
REVERSED AND REMANDED.
1 Federal regulations implementing this statute
specifically allow states to grant greater privacy protections
than those provided under federal law. The regulations state
that "[i]f a disclosure permitted under these regulations is
prohibited under State law, neither these regulations nor the
authorizing statutes may be construed to authorize any violation
of that State law." 42 C.F.R. 2.20 (1992).
2 AS 28.35.030(d) requires treatment programs to provide
the court with information regarding those persons who, as part
of a sentence for driving while intoxicated, are ordered to take
part in such programs.
3 This provision reads:
The supreme court shall make and promulgate
rules governing the administration of all
courts. It shall make and promulgate rules
governing practice and procedure in civil and
criminal cases in all courts. These rules
may be changed by the legislature by two-
thirds vote of the members elected to each
Alaska Const. art. IV, 15 (emphasis added); see also Leege v.
Martin, 379 P.2d 447, 451 (Alaska 1963) (stating that, under
article IV, 15, "a legislative enactment will not be effective
to change court rules of practice and procedure unless the bill
specifically states that its purpose is to effect such a
4 AS 47.17.060 provides:
Evidence not Privileged. Neither the
physician-patient nor the husband-wife
privilege is a ground for excluding evidence
regarding a child's harm, or its cause, in a
judicial proceeding related to a report made
under this chapter.
5 The physician and psychotherapist-patient privileges
are set forth in Evidence Rule 504. We note that under Rule
504(a)(3)(B), the term "psychotherapist"is defined to include
licensed or certified psychologists engaged in the diagnosis or
treatment of alcohol addiction. Alaska R. Evid. 504(a)(3)(B).
We also take note of the official comment to section 15
of the Uniform Alcoholism and Intoxication Treatment Act, from
which AS 47.37.210 derives.
The treatment of privileged information
in the courts and disclosure with the consent
of the patient are matters of general state
Unif. Alcoholism and Intoxication Treatment Act 15 cmt., 9
U.L.A. 102-03 (1988) (emphasis added). In construing the meaning
of legislation derived from uniform codes, this court has often
relied on the official code commentary as a guide to legislative
meaning. See, e.g., Northern Commercial Co. v. Cobb, 778 P.2d
205, 207 n.2 (Alaska 1989). In this case, we conclude that the
legislature intended the alcohol treatment privilege to be
treated in like manner and be subject to the same exceptions as
other similar evidentiary privileges provided under general state