2.4.2 Non-Emergency Custody/Petition Filing Procedures
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2.4.2 Non-Emergency Custody/Petition Filing Procedures

(Revision. 9/1/13)

Authority:Authority:

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

AS 47.10.010 Jurisdiction

 

Purpose:Purpose:

To ensure that appropriate notification of a petition for custody is provided and that the Tribal affiliation of Alaska Native/American Indian children is verified.

 

Background Information:Background Information:

Federal Law:

  1. In any involuntary proceeding in state court where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement will notify the parent and the child’s Tribe of the pending proceedings and of their right to intervene.

  2. 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 Tribal Jurisdiction 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.

State Law:

The Office of Children’s Services (OCS) may file a petition for custody when an investigation of a report of child maltreatment results in a determination that the child is subjected to conditions in AS 47.10.011 and that it is in the child’s best interest to be in state custody.

 

Policy:

  1. If a determination is made that legal custody is necessary to protect the child, but emergency circumstances requiring immediate removal do not exist, a non-emergency CINA petition will be filed.

  2. OCS will not file a non-emergency petition for a child who is a member of a Tribe with exclusive jurisdiction.

  3. When it has been determined that it is appropriate to file a non-emergency petition, the Protective Services Specialist (PSS) will complete and file the petition. The non-emergency petition must specifically state that parental conduct or conditions described in AS 47.10.011 exist but immediate removal is not necessary under AS 47.10.142(a). The PSS will consult with the Assistant Attorney General (AAG) regarding the drafting and filing of the non-emergency CINA petition, in accordance with regional/local procedures

  4. If the PSS files the non-emergency CINA petition but determines on or before the temporary custody hearing that the family’s progress and/or compliance with the case plan has made legal custody unnecessary to protect the child, the PSS will timely provide an affidavit to the AAG that sets forth a brief but sufficient basis to support a motion to dismiss the case.