2.3.3 Emergency Custody/Probable Cause Hearing and Court Orders

25 U.S.C §§ 1901–1923 Indian Child Welfare Act of 1978 (ICWA) (P. L. 95-608)

AS 47.10.030(b) & (d) Summons and Custody of Minor

AS 47.10.142 Emergency Custody and Temporary Placement Hearing

CINA Rule 14 Stipulations

 

To ensure that Protective Services (PS) Specialists are appropriately prepared for hearings, that all parties entitled to notification are identified and notified, and that inquiries to identify the Indian child’s Tribe are made during the hearing.

Federal Law:

The state must notify the parent or Indian Custodian and the Tribe of any court proceeding pertaining to a child who is an Indian child as defined in ICWA, i.e., a child who is a member of an Indian Tribe, or a child who is eligible for membership in an Indian Tribe and is the biological child of a member of an Indian Tribe.

State Law:

1. A probable cause/temporary custody hearing must be held within 48 hours after the filing of an emergency petition.

2. The child, each parent, the child’s Tribe, foster parent or other out-of-home care provider, guardian, and guardian ad litem must be given notice of all hearings. In addition, each grandparent of the child must be given notice if:

   1. the grandparent has contacted Office of Children’s Services (OCS), provided evidence acceptable to OCS of being the child’s grandparent, requested notice of hearings in the child’s case, and provided OCS with a current mailing address; or

   2. OCS staff is aware that the child has a grandparent and has the grandparent’s mailing address on file.

   3. Evidence of Relationship:

      1. If the grandparent claims to be a grandparent of the child and the child's parent(s) confirms the claim, this constitutes acceptable evidence of the relationship.

      2. If a parent of the child is not available to confirm the claim, or if the child's parent(s) denies the relationship, the grandparent will be required to provide evidence in the form of birth certificates.

   4. OCS is not required to give notice of hearings if:

      1. the grandparent has been convicted of a crime in which the child was the victim; or

      2. the grandparent is prohibited by court order to have contact with the child.

3. State Court Rule: Parents may stipulate, or agree, that probable cause exists to believe the child is a Child In Need of Aid. In doing so, the parents need not admit to the allegations contained in the petition.