(Revision. 9/1/13)
25 U.S.C. §§ 1901–1923 Indian Child Welfare Act of 1978 (ICWA) (P. L. 95-608)
AS 47.10.142 Emergency Custody and Temporary Placement Hearing
The state may initiate a child protection proceeding involving an Indian child, unless the child’s Tribe has exclusive Jurisdiction over the child. (See section 4.15 for an explanation of exclusive jurisdiction.) If a state court has jurisdiction over the proceeding, the child’s Tribe (as defined under ICWA) may intervene in the CINA case. The child’s Tribe may also request that the proceeding be transferred to the jurisdiction of the Tribe.
When a child is at risk of imminent physical damage or harm, the state may take emergency custody of a child and file an emergency petition, even if the Indian child’s Tribe has exclusive jurisdiction.
The Office of Children’s Services (OCS) may take emergency custody of a child if:
the child has been abandoned as abandonment is described in AS 47.10.013; or
the child has been neglected by the child’s parents, Indian Custodian, or guardian, as neglect is described in AS 47.10.014, and OCS determines that immediate removal from the child’s surrounding is necessary to protect the child’s life or provide immediate necessary medical attention; or
the child has been subjected to physical harm by a person responsible for the child’s welfare, and OCS determines that immediate removal from the child’s surroundings is necessary to protect the child’s life or that immediate medical attention is necessary; or
the child or a sibling has been sexually abused under circumstances listed in AS 47.10.011(7).
OCS may assume emergency custody of a child when:
the situation meets one of the requirements in the Background Information section above; and
the Protective Services Specialist (PSS) has determined that Present Danger exists; and
a safety plan to keep the child safe in his or her own home or in the home of a relative or family friend
is not possible because the parents are not willing or able to cooperate, or the parents have abandoned the child; or
is not appropriate due to the severity of the abuse.
Voluntary Placement Agreements are not appropriate in situations which require emergency custody. This is true even if parents cooperate in planning for the child's protection, as the agreement may be terminated at any time unilaterally by the parent. This would therefore subject the child to possible further harm without OCS protection. Policy and procedure on voluntary placements are addressed in section 2.6.2 Voluntary Placements.
Prior to the placement of any child in foster care, timely, reasonable efforts will be made to provide family support services to the child and to the parents, Indian custodian, or guardian of the child that are designed to prevent out-of-home placement of the child. See section 3.3 Service Efforts to Prevent Placement and/or Services to Return Child to Home, for definitions and requirements. In emergency situations where it is assessed that the safety of the child precludes preventive services, the PSS must document in the case plan why such services were not provided.
Contact with parents, Indian custodian, or guardians prior to assumption of emergency custody is almost always appropriate since assessment of parental conduct or condition is critical to the determination of immediate risk to the child. However, prior contact is generally not made with the parents if the child has been sexually abused or has been physically abused to a degree or in a manner that is potentially life threatening, or when the child has been abandoned and the parents are unable to be located within a Reasonable Time. Risk to the child could be increased as a result of prior notice to the parent, who may take the opportunity to flee with the child or to coerce the child to deny that abuse has occurred.
When OCS assumes emergency custody of a child and there are other children in the home, the PSS will assess whether the other children would be safe if left in the home.
Regardless of whether there is placement of the child, the PSS will arrange for a medical exam at the earliest possible date, prior to the probable cause hearing. When a child is under emergency custody, parental permission is not necessary for the exam or any diagnostic or documenting photos or x-rays.
The PS Specialist will notify the Tribe (when applicable) before removing the child from the Tribal village, and the PSS will make every effort to place the child within the village.
Within 24 hours of the removal from the child's community of residence that is not the Tribal village, the PSS will make a diligent effort to notify the child’s Tribe (when applicable) of the removal, the placement, and the date and time of the temporary custody hearing.
Termination of Removals: If the emergency removal of a child is terminated before a Child In Need Of Aid petition is filed or heard, the PS Specialist will provide the Tribe with a copy of its report to the court regarding the removal and return.