(Revision. 9/1/13)
25 U.S.C. § 1901–1923 Indian Child Welfare Act of 1978
AS 47.10.030 Summons and Custody of Minor
AS 47.10.050 Appointment of Guardian ad Litem
AS 47.10.084 Legal Custody, Guardianship, and Residual Parental Rights and Responsibilities
Alaska Adoption Rule 12
Alaska Child in Need of Aid Rules 2, 7
A “party” to a Child in Need of Aid (CINA) case means the child, the parents, the guardian, the guardian ad litem (GAL), the department, an Indian Custodian, if applicable, an Indian child’s Tribe that has intervened, and any other person who has been allowed to intervene by the court. Each party may be represented by legal counsel. Other participants who are not legal parties but who have limited rights and responsibilities include grandparents and foster parents/caregivers. Parties and participants are entitled to notice at different stages of the proceedings; see section 6.6.3 Notifications for a detailed explanation of notice requirements. It is essential for Protective Services Specialists (PSS) to know and understand the role of each party and participant.
The child is the focus of all child protection proceedings. While younger children generally do not participate in court hearings unless called to testify, it is important that older children be kept informed of the status of legal proceedings and invited to court hearings when appropriate. The PSS may collaborate with the GAL and Court Appointed Special Advocate (CASA) to ensure that children are appropriately informed and heard.
Rights and Responsibilities: When a child is committed to the custody of the department but parental rights have not been terminated, the child’s parents retain residual rights and responsibilities.
Unless granted by court order to a guardian, parents’ residual rights and responsibilities include:
the right and responsibility of reasonable visitation;
the right to consent to marriage;
the right to consent to adoption;
the right to consent to military enlistment;
the right to consent to major medical treatment except in cases of emergency or cases covered by AS 25.20.025 (major medical treatment includes the administration of medication used to treat a mental health disorder); and
the responsibility for financial support.
If parental rights have been terminated, there are no residual parental rights or responsibilities, unless a right of contact or visitation was retained in a relinquishment. The department assumes all residual parental rights unless a guardian has been appointed.
When a child is committed to the custody of the department and the department places the child with the child’s parent, the parent has the responsibility to provide for food, clothing, shelter, education, and medical care for the child.
Role in Court Proceedings: Parents are parties to their child’s case and
are served with notice of all court hearings pertaining to their child;
have the right to be represented by counsel at all stages of the proceedings (when appropriate, the court may appoint an attorney for a parent);
have a right to be heard in all court proceedings pertaining to their child (if the court decides to exclude a parent during the child’s testimony, the parent has a right to listen to a recording of the testimony); and
have a right to request that a hearing be closed to the public.
A guardian is a person appointed by the court to act as a parent to a child. A child who is taken into custody by the department may already have a guardian, or the court may appoint a guardian during the course of a (CINA) case. A “guardian ad litem” is not a guardian.
Rights and Responsibilities: If the court appoints a guardian for the child, the guardian's rights and responsibilities will be specified by court order and may include:
the right and responsibility of reasonable visitation;
the right to consent to marriage;
the right to consent to military enlistment;
the right to consent to major medical treatment;
the right and responsibility to obtain representation for the child in legal actions; and
the right and responsibility to make decisions of legal or financial significance concerning the child.
These rights, similar to those of a parent, may be affected by the department having custody in the same way a parent’s rights may be affected.
Role in Court Proceedings: While a guardianship is in effect, a guardian’s role in the child’s case is similar to the role of a parent.
Rights and Responsibilities:
A child’s grandparent has the right to advance written notice of all court hearings in the child’s case, as outlined in section 6.6.3 Notifications, if:
the grandparent has contacted 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
OCS staff is aware that the child has a grandparent and has the grandparent’s mailing address on file.
Evidence of Relationship:
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.
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.
OCS is not required to give notice of hearings if:
the grandparent has been convicted of a crime in which the child was the victim; or
the grandparent is prohibited by court order from having contact with the child.
If the PSS receives documentation of a grandparent having been convicted of a crime against the child or that a court order has been issued prohibiting contact with the child, the PSS will inform the OCS-designated administrative clerk that notification should cease.
Grandparents do not have party status unless permitted by the court to intervene.
Role in Court Proceedings: Grandparents who are entitled to notice are entitled to be heard at the hearing. The court may limit the presence of the grandparent if:
it is in the best interest of the child; or
it is necessary to protect the parties’ privacy interests, and it will not be detrimental to the child to do so.
Rights and Responsibilities:
The department becomes the legal custodian of a child when the court commits the child to the custody of the department. When this happens, certain responsibilities are imposed upon the department:
the responsibility of physical care and control of the child, including determination of where and with whom the child will live;
the responsibility to provide the child with food, shelter, education, and medical care unless the child in the department’s custody is placed with a parent;
the right and responsibility to protect, nurture, train and discipline the child; and
the right and responsibility to make decisions of financial significance concerning the child.
PSS responsibilities:
The PSS assesses the level of danger to a child and takes whatever action is necessary to ensure the child's well-being.
The PSS meets with the parents and develops a case plan, assists the parents in obtaining services and completing case plan requirements, and monitors the parents’ progress. In some cases, the PSS may perform these activities with a guardian or Indian custodian rather than a parent.
The PSS arranges for reasonable visitation between the child and the parents, guardian, Indian custodian, and other relatives as appropriate.
The PSS documents all actions taken and provides the documentation to the assistant attorney general (AAG) for distribution to the parties as discovery.
If the permanency plan for the child has a goal other than Reunification, the PSS makes efforts to place the child in a placement consistent with the permanency plan and takes whatever action is necessary to achieve the plan.
The PSS attends all court hearings and meetings and keeps track of all future hearing and meeting dates, deadlines, and expiration dates.
Role in Court Proceedings:
With regard to court proceedings, the primary functions of the PSS are to evaluate the need for legal intervention, ensure that there is sufficient evidence to justify legal intervention, attend all hearings and meetings, make recommendations regarding disposition of the case, and testify if called upon to do so.
The PSS consults with the PSS IV and the AAG in choosing the appropriate legal steps. The PSS may be asked to assist the AAG in preparing the case for court.
The PSS is responsible for preparing, or assisting in the preparation of, court paperwork. The PSS, in consultation with the AAG, will ensure that court documents are completed as required and timely filed.
"Indian custodian" means any Indian person who has legal custody of an Indian child under Tribal law or custom, or under State law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child.
Rights and Responsibilities: Under the Indian Child Welfare Act (ICWA), the Indian custodian is a full legal Party to the Case and is granted some of the same rights that a parent has, though not all. The Indian custodian has a right to court-appointed counsel if they cannot afford to hire an attorney.
Role in Court Proceedings: While an Indian custodianship is in effect, an Indian custodian’s role in the child’s case is similar to the role of a parent. However, an Indian custodian’s role may change or end during the course of the case depending on the circumstances.
An Indian child’s Tribe is the Tribe in which the child is a member or eligible for membership. Multiple Tribes may be involved at the investigation phase of a case. In CINA proceedings, the child’s Tribe is the Tribe with which the child has the most significant contacts. The Tribes determine which Tribe has the most significant contacts. The Tribe with less significant contacts may still participate in a CINA case as a secondary Tribe. If all parties agree, a non-intervening Tribe may participate in the case and may have access to information as outlined in section 6.1.1 Confidentiality, Background Information.
Rights and Responsibilities
Jurisdiction: See section 4.14 Tribal Jurisdiction.
Intervention: The Indian child's Tribe has the right to intervene at any point in a proceeding. If the Tribe moves to intervene and that intervention is accepted by a state court, the Tribe becomes a full legal party to the case.
Discovery and Examination of Records: Once an Indian child’s Tribe intervenes and becomes a party to the case, the Tribe may examine all reports or other documents filed with the court, as well as any information upon which the department will make decisions regarding the child.
Transfer of Jurisdiction: An Indian child’s Tribe has the right to request that a proceeding be transferred to the jurisdiction of its Tribal court. If such a transfer occurs, the case filed in state court will be closed. See section 4.14 Tribal Jurisdiction for specific transfer requirements and procedures.
Role in Court Proceedings: The Tribe’s role in an Indian child’s case is to ensure that the child’s Indian heritage is recognized and respected, the child’s cultural needs are met, and ties to the child’s family and village are maintained.
Rights and Responsibilities: Foster parents and relative caregivers have the right to notice of all hearings but do not have party status. At emergency placement, the PSS will tell the foster parent/caregiver that there will be a hearing within 72 hours and that the PSS will notify the foster parent/caregiver of the time of the hearing as soon as the PS Specialist knows. The PSS should ask the foster parent/caregiver to keep the PSS notified of where the foster parent/caregiver can be reached.
Role in Court Proceedings: Foster parents/caregivers are entitled to be heard at the hearing, but the court may limit the presence of the foster parent/caregiver if:
it is in the best interest of the child; or
it is necessary to protect the parties’ privacy interests, and it will not be detrimental to the child to do so.
Assistant Attorney General (AAG): The AAG is the attorney who represents the department in the case. The function of the AAG is to assist PSS in bringing a petition before the court. The AAG is responsible for reviewing the petition before it is filed and for preparing other required legal documents. As the legal representative of the department, the AAG provides consultation and legal guidance in matters regarding children's proceedings and advocates for the department at all hearings. Although the AAG works closely with OCS PSS in court proceedings, it is important to remember that the AAG represents the department as a state agency, not the individual PSS personally.
Guardian ad litem (GAL): The GAL is appointed by the court to serve as an advocate for the best interests of the child and to ensure that the court has adequate information regarding the case in order to consider all options. In many areas the GAL is an attorney, but anyone can be appointed. Occasionally a non-attorney GAL may be assisted by an attorney, usually at a contested hearing where complicated legal issues are being litigated. While the PSS should work cooperatively with the GAL, it is important to remember that the GAL is independent of OCS and may differ with the department’s position in a case. Information provided by a PSS to a GAL is not protected by any privilege and is therefore discoverable to all parties.
Court Appointed Special Advocate (CASA): A CASA is a volunteer who is trained to assist the GAL in advocating for the best interests of the child. Some CASAs may be trained to perform all the duties of a GAL. Each CASA is supervised by an active GAL and is independent of OCS.
Child's Attorney: The function of the child's attorney is to advocate what the child wants when the child is old enough to state his/her position. Attorneys for children are used in delinquency proceedings or in child protection proceedings when the GAL and the child substantially disagree on what is in the child's best interest.
Parent's Attorney: The function of the parent's attorney is to ensure that the rights of the parent are adequately protected and to advocate the parent's position in court. Any legal (i.e., biological or adoptive) parent, even a non-custodial one, is entitled to counsel.
Attorney for Guardian, Indian Custodian, or Tribe: In some cases, a guardian, Indian custodian, or Tribe may be represented by an attorney.
Superior Court: The function of the Superior Court is to conduct hearings in matters concerning minors who were under eighteen years of age at the time the petition was filed. The two types of children's matters heard in Superior Court are CINA cases and juvenile delinquency cases. A delinquent child is one who is found to have violated a criminal law of the state. A child in need of aid is one in need of protection from abuse or neglect. The court has the authority to enforce the child protection statutes and to monitor services to families. In some cases, the court may terminate the parent/child relationship and permanently remove the child from their parents.
Masters: In Anchorage, a superior court master (a magistrate who is appointed for a year at a time to conduct CINA and delinquency proceedings) hears most non-contested CINA cases and makes recommendations to the superior court judge as to the appropriate findings and orders. In other locations, particularly where no superior court judge resides, the magistrate or a district court judge may be appointed as a master for a particular court proceeding, e.g., to preside over a temporary custody hearing or to take a Stipulation. Masters can issue some orders independently, but others must be approved by a superior court judge to be final.
Magistrates and District Court Judges: In addition to situations where a magistrate or district court judge has been ordered to act as a master, magistrates and district court judges may act when a child is in danger and immediate action is required, and no superior court judge or authorized master is available. The action taken, however, must be the least restrictive (in terms of interference with the family relationship) action necessary to protect the minor and must be one which a superior court judge would be authorized to take under the circumstances. The magistrate must immediately notify the superior court of the facts of the case and transfer the case file to the superior court for further action.