(Revision. 12/12/16)
For definitions of adjudication, disposition, and other court hearings, see the respective sections in this chapter.
"Abandonment": Abandonment is defined for purposes of Child in Need of Aid (CINA) matters in AS 47.10.013. The court may find abandonment of a child if a parent or guardian has shown a conscious disregard of parental responsibilities toward the child by a failure or unwillingness to provide reasonable support, maintain regular contact, or provide normal supervision, considering the child's age and need for care by an adult. Abandonment by a parent or guardian may occur after the department has assumed custody of a child on other grounds, where the parent or guardian either engages in the conduct described above, fails to participate in a suitable Reunification plan, or fails to respond to the notice of CINA proceedings regarding the child. A parent or guardian who is a victim of domestic violence may, under some circumstances, be justified in committing an act or omission that would otherwise constitute abandonment.
"Active Efforts": Active Efforts toward reunification, as required by the Indian Child Welfare Act (ICWA), require a higher level of services than “reasonable efforts” (see paragraph V below). Active efforts mean affirmative active, thorough and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Where and agency is involved in the child-custody proceedings, active efforts must involve assisting the parent or parents or Indian Custodian through the steps of a case plan with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and the way of life of the Indian child’s Tribe and should be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and Tribe. Active efforts are to be tailored to the facts and circumstances of the case and may include, for example:
Conducting a comprehensive, assessment of the circumstances of the Indian child’s family, with focus on safe reunification as the most desirable goal;
Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;
Identifying, notifying and inviting representatives of the Indian child’s Tribe to participate in providing support and services to the Indian child’s family and in family team meetings; permanency planning, and resolution of placement issues;
Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents;
Offering and employing all available culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s Tribe;
Taking steps to keep siblings together whenever possible;
Supporting regular visits with parents or Indian custodians in the most nature setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of a child;
Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources;
Monitoring progress and participation in services;
Considering alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available; and
Providing post-reunification services and monitoring.
"Affidavit": An affidavit is a written statement made under oath and notarized by an authorized person, such as a notary public. Affidavits are often used to support motions filed with the court, and under some circumstances, they can be used in place of oral testimony in court.
"Appeal": An appeal is a request that a higher court reviews the decision of a lower court. In CINA cases, if the superior court enters a final judgment in a case – for example, an order terminating parental rights – and a party disagrees with that judgment, the party may ask the Alaska Supreme Court to review the case and overturn the judgment.
"Best Interests": Although the court in a CINA case is always required to consider what is in the best interests of the child, the term “best interests” is not defined by federal or state law. The term is construed very broadly, encompassing all aspects of the child’s physical, mental, cultural, spiritual, emotion and psychological well-being. (See also “Contrary to the Welfare” in paragraph I below.)
"Beyond a Reasonable Doubt": The highest standard of proof in our legal system. Proof Beyond a Reasonable Doubt means proof that is so convincing; there remains no reasonable question of the truth of the matter. This standard does not require that all possible doubt be eliminated; rather it requires that the evidence leaves no doubt based on reason and common sense.
"Child in Need of Aid": Under AS 47.10.011, a child may be a child in need of aid based on one or more of the following circumstances:
Abandonment: the child has been abandoned (see paragraph A above);
Incarceration: a parent, guardian, or custodian (P/G/C) of the child is incarcerated, the other parent is absent or has caused the child to be a child in need of aid, and the incarcerated P/G/C has not made adequate arrangements for the child;
Caretaker No Longer Willing/Able: a custodian with whom the child has been left is unwilling or unable to provide care, and the whereabouts of the parent or guardian is unknown;
Medical Neglect: the child is in need of medical treatment to cure, alleviate, or prevent substantial physical harm (see paragraph T below) or is in need of treatment for mental injury (see paragraph Q below), and the child's P/G/C has knowingly failed to provide the treatment;
Child’s Conduct: the child is habitually absent from home or refuses to accept available care, and the child's conduct places the child at substantial risk of physical or mental injury;
Physical Harm: the child has suffered substantial physical harm, or is at substantial risk of suffering such harm, as a result of conduct by or conditions created by the child's P/G/C or by the failure of the P/G/C to supervise the child adequately;
Sexual Abuse: the child has suffered sexual abuse, or is at substantial risk of suffering sexual abuse, as a result of conduct by or conditions created by the child's P/G/C or by the failure of the P/G/C to supervise the child adequately (if the P/G/C has actual notice that a person has been convicted of a sex offense against a minor within the past 15 years, is registered or required to register as a sex offender, or is under investigation for a sex offense against a minor, and the P/G/C subsequently allows a child to be left with that person, this alone may constitute sufficient evidence that the child is at substantial risk of being sexually abused);
Mental Injury (including exposure to domestic violence): conduct by or conditions created by the P/G/C have
Resulted in mental injury to the child (as supported by the testimony of an Expert Witness – see paragraph Q below); or
Placed the child at substantial risk of mental injury as a result of;
"Neglect": the child or another child in the same household has been subjected to neglect (see paragraph R below);
"Substance Abuse": the ability of the P/G/C to parent the child has been substantially impaired by the P/G/C’s addictive or habitual use of an intoxicant, and such use has resulted in a substantial risk of harm to the child (if a court has previously found that a child is a child in need of aid based on the P/G/C’s substance use, the resumption of use by the P/G/C within one year after rehabilitation, this alone may constitute sufficient evidence that the child is in need of aid under this subparagraph);
"Mental Health": the child’s P/G/C has a mental illness, serious emotional disturbance, or mental deficiency of nature and duration that places the child at substantial risk of physical harm or mental injury;
"Enticement into Criminal Behavior": the child has committed an illegal act as a result of pressure, guidance, or approval from the child's P/G/C.
"Clear and Convincing Evidence": A high standard of proof in our legal system, more stringent than a Preponderance of Evidence (see paragraph U below) but less stringent than proof beyond a reasonable doubt (see paragraph F above). The evidence is clear and convincing if it produces a firm belief in the truth of the matter.
"Contrary to the Welfare": The term “contrary to the welfare” is not defined by federal or state law. Essentially, Contrary to the Welfare of a child is what is not in the child’s best interests (see paragraph E above).
"Custody": Custody of a child means the legal authority to make decisions about the child and responsibility to provide for the child. The scope of the department’s duties and responsibilities on a child in its custody are described in AS 47.10.084. Custody and placement are separate concepts; the department may have custody of a child while the child remains placed in the home.
"Deposition": A Deposition is a form of discovery (see paragraph L below) in which the testimony of a witness is taken under oath outside of court, using the same question-and-answer examination process that is practiced in court. Depositions are preserved for later use by recording them on video or audio equipment.
"Discovery": Discovery is the process by which relevant information held by one party in a case is disclosed to another party. In a CINA case, the department is required to provide a copy of its file, with certain exceptions, to all other legal parties in the case. Discovery is an ongoing obligation; as new information is received and documentation is generated, it must be made available to the other parties in a timely manner.
"Expert Witness": An expert witness is a witness with specialized knowledge, skill, experience, or training who may assist the trier of fact (in a CINA case, the judge) in understanding concepts that are outside the scope of the average person’s knowledge. The court rules allow expert witnesses to offer opinions that lay witnesses would not normally be permitted to offer. OCS PS Specialists may be qualified as expert witnesses under some circumstances.
A Qualified Expert Witness as defined by ICWA, is an individual that must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe. A person may be designated by the Indian child’s Tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child’s Tribe.
The court or any party may request the assistance of the Indian child’s Tribe or the BIA office serving the Indian child’s Tribe in locating persons qualified to serve as expert witnesses.
The social worker regularly assigned to the Indian child may not serve as a qualified expert witness in the child-custody proceeding concerning the child.
"Indian Child Welfare Act (ICWA)": The Indian Child Welfare Act (ICWA), found at Title 25, sections 1901-1963 of the United States Code, is a set of federal laws enacted in 1978 that governs child protection proceedings involving “Indian children.” Federal regulations were issued in 2016, and define an “Indian child” as any unmarried person who is under age 18 and either:
Is a member or citizen of an Indian Tribe (see paragraph BB below); or
Is eligible for membership or citizenship in an Indian Tribe and is the biological child of a member/citizen of an Indian Tribe.
If there is reason to know the child may be an Indian child, the case shall be treated as an ICWA case until it is determined on the record that the child does not meet the definition of an “Indian child.” If ICWA does apply to a CINA case, then its requirements must be followed in addition to all applicable state law requirements. ICWA imposes the requirement to provide active efforts toward reunification (see paragraph B above). ICWA specifies placement preferences for a child in state custody. It also requires the court to make certain findings in CINA cases by higher standards of proof. The child’s Tribe may intervene as a party in a CINA case governed by ICWA. The child’s Tribe may also request that the case is transferred to the Jurisdiction of the Tribe (see section 4.15(D)(2).
"Jurisdiction": Jurisdiction is the power to exercise authority over persons and things. A court must have jurisdiction over the person and the subject matter to exercise its authority.
"Mental Health Professional": In certain types of hearings, the testimony of a mental health professional may be required. AS 47.30.915 defines what qualifications a person must have to be considered a “mental health professional” for purposes of CINA proceedings. It includes licensed psychiatrists and physicians; licensed clinical psychologists and psychological associates; licensed registered nurses who hold a master’s degree in psychiatric nursing; licensed marital and family therapists; licensed professional counselors; licensed clinical social workers; and others with a master’s degree in mental health with at least one year’s experience in the mental health field who are being supervised by a licensed professional described above.
"Mental Injury/Emotional Damage": Mental injury to a child is defined in AS 47.17.290 as a serious injury to the child as evidenced by an observable and substantial impairment in the child’s ability to function in a developmentally appropriate manner. The existence of such impairment must be supported by the opinion of a qualified expert witness (see paragraph M above). Expert testimony is not required to establish that a child is at risk of mental injury. The term “emotional damage,” as used in ICWA cases, is not specifically defined in ICWA and thus may be interpreted more broadly than “mental injury” in CINA proceedings.
"Neglect": Neglect is defined in AS 47.10.014. The court may find neglect of a child if the P/G/C fails to provide the child with adequate food, clothing, shelter, education, medical attention, or other care and control necessary for the child's physical and mental health and development, though financially able to do so or offered financial or other reasonable means to do so. Under this definition, poverty alone is not a sufficient basis for a finding of neglect.
"Petition": A petition is a formal written request that the court takes a particular action. For purposes of CINA cases, petitions differ from motions in that motions – which may be oral or written – are made to the court by legal representatives, while the parties themselves submit petitions. Thus, a petition filed by the department will usually be prepared and signed by the assigned PS Specialist, with or without the assistance of an AAG. Common petitions filed in connection with CINA proceedings are petitions for adjudication, termination, adoption, and guardianship.
"Physical Harm/Damage": Physical harm to a child is defined in AS 47.10.015 as conduct or conditions created by the child’s P/G/C resulting in physical injury to, physical mistreatment of, or sexual contact with, the child. AS 47.10.015 also defines “substantial risk of physical harm” as a negligent act or omission by a child’s P/G/C that creates a substantial risk of physical injury to the child. In CINA proceedings, the terms “physical harm” and “physical damage” are often used interchangeably.
"Preponderance of Evidence": A standard of proof in our legal system. There is a preponderance of evidence when the evidence establishes that something is more likely true than not true.
"Reasonable Efforts": Federal and state law require that the department makes reasonable efforts to prevent the unnecessary removal of a child from the child’s home, to promote reunification with the P/G/C, and to finalize the permanency plan for the child.
To prevent removal: Reasonable efforts to prevent a child’s removal from the home, as described AS 47.10.086, mean identifying and actively offering family support services aimed at addressing the safety concerns in the home that place the child at risk of harm. The department must refer the P/G/C to community-based services whenever such services are desired by the P/G/C and available in the P/G/C’s community. Reasonable efforts also require that the department document its actions in providing services to the family. Various factors may affect the level of services necessary to constitute reasonable efforts, such as the parent or guardian’s willingness to participate in services being offered, the parent or guardian’s level of cooperation with the department and other service providers, or whether the parent or guardian is incarcerated or unavailable. The court looks at the entirety of the department's efforts from the time of its involvement with the family. Reasonable efforts to prevent removal are not required when it is necessary to remove the child from home immediately due to emergency circumstances.
To promote reunification: Reasonable efforts toward reunification, as described AS 47.10.086, mean identifying and actively offering family support services that will assist the child’s P/G/C in remedying the conduct or conditions in the home that cause the child to be in need of aid. The department must refer the P/G/C to community-based services whenever such services are desired by the P/G/C and available in the P/G/C’s community. Reasonable efforts also require that the department document its actions in providing services to the family. Various factors may affect the level of services necessary to constitute reasonable efforts, such as the parent or guardian’s willingness to participate in services being offered, the parent or guardian’s level of cooperation with the department and other service providers, or whether the parent or guardian is incarcerated or unavailable. The court looks at the entirety of the department's efforts from the time of its involvement with the family. Reasonable efforts may be ceased after having been made for a period of time or may be dispensed with altogether, under certain circumstances.
To finalize permanency plan: Reasonable efforts to finalize the permanency plan for the child mean identifying and implementing the steps necessary to achieve the permanency goal for the child in a timely manner. Where the permanency plan for a child is something other than reunification, the department’s efforts may include identifying and securing a permanent home for the child, petitioning the court for termination of parental rights, obtaining an adoption or guardianship home study, negotiating an adoption or guardianship subsidy, and/or providing the child with independent living services.
"Reasonable Time": Reasonable Time is defined in AS 47.10.990 as a period of time that serves the best interests of the child, taking into account the child’s age, emotional and developmental needs, and ability to form and maintain lasting attachments.
"Removal/Out-of-Home Placement": Removal of a child, also referred to as out-of-home placement, means placing the child in the physical care of someone other than the child’s P/G/C. Removal may include situations in which the child is living in the same residence as the P/G/C, but the P/G/C’s ability to exercise physical care and control of the child without approval is restricted by the department. “Foster care placement” as used in ICWA means a removal, even when the placement is an unlicensed relative or family friend.
"Stipulation": A Stipulation is an agreement between the parties that is submitted to the court. If accepted by the court, a stipulation becomes binding on the stipulating parties.
"Subpoena": A subpoena is a court order that requires a person to appear as a witness in a judicial proceeding, such as a court hearing or deposition. A subpoena may further require the person to bring certain documents with them when they appear.
"Supervision": Upon determining that a child is or may be in need of aid, the court may release the child to the custody of the child’s P/G/C or other suitable person and require the department to supervise the care and treatment of the child. When the court grants the department supervision, the department does not have custody of the child and therefore does not have the authority to direct the care and control of the child. The department’s limited duty is to monitor the family to ensure the child’s safety and well-being. Supervision is rarely requested or ordered in most jurisdictions.
"Tribe/Indian Child’s Tribe": A Tribe, or “Indian Tribe” as used in federal law, is an organized group or community of indigenous people within the United States that is recognized under federal law as eligible for services provided to “Indians” by the Secretary of the Interior. Alaska Native Villages are included in this definition. Not all Alaska Native groups or communities are federally recognized as Tribes, and not all children of Alaska Native heritage are “Indian children” as defined in ICWA (see paragraph N above). The “Indian child’s Tribe” means:
The Indian Tribe in which an Indian child is a member or eligible for membership; or
In the case of an Indian child who is a member of or eligible for membership in more than one Tribe, the Indian Tribe described in 23.109 of the Federal ICWA Regulations.