(Revision. 8/15/23)
AS 25.23.125 Preference of Minor to Be Adopted; Guardian ad Litem; Protective Orders
AS 25.23.127 Adult Family Member Preference to Adopt
AS 47.10.990(28) Definitions
AS 47.10.088(i) Termination of Parental Rights and Responsibilities
AS 47.10.990(1) Definitions (Adult Family Member)
AS 47.14.100 Powers and Duties of Department over Care of Child
25 U.S.C 1901–1923 Indian Child Welfare Act of 1978 (ICWA) (P. L. 95-608)
42 U.S.C. 671(a)(18),
(19),(23)(a), & (29) State Plan for Foster Care and Adoption Assistance (Title IV-E)
42 U.S.C. 675(1)(E) Definitions (Title IV-E)
Federal Register, Vol. 81, No. 114 Rules and Regulations (effective 12/12/16)
The following procedures outline the steps regarding searches for relatives/extended family, following placement preferences, and processing requests for placement.
Within 30 days of removing a child from the parent(s) care, the state must exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives/Extended Family Member of the child subject to exceptions due to family or domestic violence. The notice must specify that the child has been, or is being removed from the home, and explain the options the relative/extended family member has under federal and state law to be considered as a placement option and participate in the care of the child.
The Multi-Ethnic Placement Act indicates that states may not deny or delay the placement of a child:
Based on the race, color, or national origin of the adoptive or foster parent or the child; or
When an approved family is available outside of the State.
States will make reasonable efforts to place siblings in the same foster care, guardianship, or adoptive placement unless the state documents that it would be contrary to the safety or well-being of any of the siblings.
For a child with a permanency plan of adoption, guardianship, or placement in another permanent home, child specific recruitment efforts must include the use of the state, regional, and national adoption exchanges including electronic exchange systems to facilitate timely placement of the child.
Pursuant to the Indian Child Welfare Act, any Indian child accepted for foster care or pre-adoptive placement shall be placed in the least restrictive setting which:
most approximates a family, taking into consideration a sibling attachment;
allows the Indian child’s special needs, if any, to be met; and/or
is in reasonable proximity to the Indian child’s home, extended family, or siblings.
is in foster care or pre-adoptive placement of an Indian child under State law, where the Indian child’s Tribe has not established a different order of preference, preference shall be given, in descending order to placement with:
a member of the Indian child’s extended family;
a foster home that is licensed, approved, or specified by the Indian child’s Tribe;
an Indian Foster Home licensed or approved by an authorized non-Indian licensing authority; or
an institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.
Adoptive Placement Preferences: In any adoptive placement of an Indian child under State law, where the Indian child’s Tribe has not established a different order of preference, preference shall be given, in descending order to placement with:
a member of the Indian child’s extended family;
other members of the Indian child’s Tribe; or
other Indian families.
Determination of “good cause” to depart from the placement preferences:
The party seeking a departure from the ICWA placement preferences should hold the burden of proving by Clear and Convincing Evidence that there is “good cause” to depart from the placement preferences.
A court’s determination of “good cause” should be based on one or more of the following considerations:
the request of one or both of the Indian child’s parents, if they attest that they have reviewed the placement options if any, that comply with the order of preference;
the request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;
the presence of a sibling attachment that can be maintained only through a particular placement;
the extraordinary physical, mental or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live;
the unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preferences criteria, but none has been located. For proposes of this analysis, the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child’s parent or extended family resides or with which the Indian child’s parent or extended family members maintain social and cultural ties.
The following factors do not constitute good cause:
Placement may not depart from the preferences based on the socioeconomic status of any placement relative to another placement.
Placement may not depart from the preferences based solely on ordinary bonding or attachment that followed from time spent in a non-preferred placement that was made in violation of ICWA.
If any party does not agree that good cause exists to place the child outside the placement preferences, that party may request a court hearing to review the alternative placement that has been proposed.
Return of Custody: Whenever an adoption of an Indian child is vacated or set aside, or the adoptive parent voluntarily consents to termination of their parental rights, notice must be provided to the biological parent or prior Indian Custodian and Tribe of the vacated adoption or termination of parental rights. The biological parents or prior Indian custodian may petition for return of custody, and the court shall grant the petition unless there is a showing that return of custody is not in the best interests of the child.
Change of Placement: If an Indian child in OCS custody is to be moved from one placement setting to another, and the child is not being returned to the parent or Indian custodian, the new placement shall be made through compliance with the placement preferences of the ICWA.
When a child is removed from the home, the department shall place the child, in the absence of clear and convincing evidence of good cause to the contrary;
in the least restrictive setting that most closely approximates a family and that meets the child's special needs, if any; and
within reasonable proximity to the child's home, taking into account any special needs of the child and the preferences of the child or parent.
If an adult family member or family friend has requested placement of a child in their home and the department denies the Request for Placement, the department must inform the family member or family friend within 45 days of the request, the basis for denial and the right to request a hearing to review the decision.
The department shall continue to search for a suitable adoptive or permanent legal guardian for a child who is in the custody of the state and who is less than 18 years of age unless the permanency plan for the child is another planned permanency living arrangement or custody is being released.
When a petition for termination of parental rights is filed, the department shall concurrently identify, recruit, process, and approve a qualified person or family for an adoption. Before identifying a placement of the child in an adoptive home, the department shall attempt to locate all living adult family members of the child and, if an adult family member expresses an interest in adopting the child, investigate the adult family member's ability to care for the child.
The department is required to give preference to an adult family member when placing a child out-of-home and placing siblings together.
Placement decisions must take into account waivers, variances, or exemptions allowed under the licensing statutes (AS 47.32.030(a, 3) and AS 47.32.032). Poverty or inadequate or crowded housing is not considered good cause not to place a child with an adult family member or adult family friend, as long as the housing is safe for the child and within community standards.
The department shall make reasonable efforts to place siblings in the same placement if the siblings are residing in the same home when taken into the custody of the department. If siblings are not placed together after reasonable efforts have been made, the case PS Specialist IV for the Division with responsibility for the custody of children shall document in the file the efforts that were made and the reason separating the siblings for placement purposes is in the best interest of the children. In this subsection, "sibling" means two or more persons who are related by blood, adoption, or marriage as a child of one or both parents.
The person who filed the petition, or proxy, for adoption or legal guardianship is entitled to placement preferences in AS 47.14.100(c) or 25 U.S.C 1915(a), whichever is applicable and if 25 U.S.C 1915(a) applies; the current placement is in compliance with or whether there is good cause to deviate from the placement preferences.
Policy:
The Office of Children’s Services recognizes the importance of the family unit, the extended family, and culture as resources for the well-being of children. Placement settings are evaluated on the best interests and needs of the child. When a child is removed from their home, the department will place the child:
in the least restrictive setting that most approximates a family taking into consideration sibling attachment;
within reasonable proximity to the child’s home, extended family, or siblings;
allowing the child’s special needs if any, to be met; and
following the order of preference specified by AS 47.14.100(e)(3).
For Indian children, it is vital to maintain cultural continuity in the placement setting. Placement of Indian children will follow the ICWA preferences unless the child’s Tribe issues a resolution to change the order of the placement preferences, or the court has made the determination that there is good cause to depart from the placement preferences.
Within 30 days of a child being removed from the home, a diligent search for relatives/extended family must occur. The search continues throughout the case for relatives/extended family including searching for relatives/extended family that can provide emotional support to the child or youth while they are in custody or are transitioning out of custody.
All relatives/extended family members will be documented in the relative tab in ORCA. All relative/extended family member search efforts will be documented in an ORCA activity note. The PSS IV must document in a supervisory activity note that the diligent search for relatives/extended family is ongoing and actively occurring.
The PSS must ensure relatives/extended family members are informed of their right to request placement of a child. Notices are sent by the PSS or designated OCS staff member within the first 30 days following removal, as new relatives are identified and when the permanency plan changes to adoption or guardianship.
Notification will be sent to the grandparents and other adult relatives/extended family of their right to be considered for permanent placement of the child(ren).
Reasonable efforts will be made to place siblings together, provided it is in the best interest of the children (see CPS manual section 4.14 Tribal Jurisdiction).
All placement-related activities will be documented in a Relative/Placement Search Activity Note, including:
efforts to identify and locate relatives/extended family and potential placement resources;
communication with relatives/extended family, family friends, and Tribal members about considering placement;
communication with non-relative homes and institutions about considering placement; and
efforts to obtain a higher placement preference for the child(ren).
Adoptive placement may not be delayed pending completion of a search for a legally preferred placement. Diligent search efforts for a preferred placement must be completed and documented in ORCA.
All appropriate potential permanent placement resources will be considered, regardless of whether the placement resource is located inside or outside of Alaska.
For children with permanency goals other than reunification, a Relatives of a Child report will be provided in discovery as part of the relative search efforts.
Out-of-preference placements of Alaskan Native/American Indian children will be monitored by the OCS regional ICWA Specialists in out-of-preference placement meetings. Efforts to identify ICWA preference placements will be documented in an out of home placement review ORCA activity note.
When a petition or proxy for adoption or legal guardianship of a child is filed with the court, a determination if the prospective family is entitled to the ICWA placement preferences will be made by the court.