(Revision. 9/1/13)
25 U.S.C. § 1912 Indian Child Welfare Act of 1978
42 U.S.C. § 675(5)(e) Definitions (Title IV-E)
AS 25.23.180 Relinquishment and Termination of Parent and Child Relationships
AS 47.10.080 Judgments and Orders
AS 47.10.088 Involuntary Termination of Parental Rights and Responsibilities
Alaska Child in Need of Aid Rule 18
Purpose of Termination of Parental Rights: The parental rights of one or both parents of a child may be permanently terminated in order to free the child for adoption or other permanent placement. Termination of parental rights means the complete severance of the legal parent-child relationship. Proceedings to terminate the parental rights of a parent are initiated by filing a Petition for Termination of Parental Rights.
When to File a Petition:
A petition to terminate parental rights to a child in the department’s custody may be filed with, or at any time after the filing of, a Petition for Adjudication of Child in Need of Aid. The process for determining whether the department should seek termination of parental rights in a particular case is outlined in section 3.9 Preparation for Termination of Parental Rights . The best interest of the child is the primary consideration.
Under certain circumstances, the department is required by law to file a petition to terminate parental rights. Unless an exception applies (see paragraph B.3 below), the department must file a petition if one or more of the following circumstances exists:
The child has been in foster care for a total of at least 15 of the most recent 22 months.
The date of entry into foster care is defined by state law as the earlier of: the date of the first judicial finding of child abuse or neglect, or 60 days after the date of removal from the home. The department’s policy is that the date of entry into foster care is the date of the first finding of child abuse or neglect, i.e. the first probable cause hearing.
Trial home visit periods are excluded from the time calculation.
The court has determined that the child is abandoned and the child is younger than six years of age, in which case the petition must be filed within 60 days of the judicial finding of abandonment.
The court has made a finding that the best interests of the child do not require further reasonable efforts by the department toward Reunification with the parent.
The parent has made three or more attempts within a 15-month period to remedy the parent's conduct or conditions in the home that cause the child to be in need of aid, without lasting change.
The parent has made no effort to remedy the parent's conduct or conditions in the home that cause the child to be in need of aid by the time of the permanency hearing.
The parent has been convicted of: (1) murder or manslaughter of another child of the parent; or (2) aiding or abetting, attempting, conspiring, or soliciting to commit such a murder or manslaughter; or (3) a felony assault that results in serious injury to the child or another child of the parent; in which case the petition must be filed within 60 days of a judicial determination that reasonable efforts to reunify the child and parent are not required.
There are exceptions to the requirement that a petition to terminate parental rights be filed under the circumstances described in paragraph B.2. The department is not required to file a petition if the department
is required to make reasonable efforts but has not provided to the parent, consistent with the time period in the department's case plan, the family support services that the department has determined are necessary for the safe return of the child to the home; or
has documented a compelling reason, as decided at a permanency planning conference, for determining that filing a petition would not be in the best interests of the child. Compelling reasons not to file a petition may include, but are not limited to, the following:
The parent has made substantial progress in eliminating the problems causing the child’s continued placement in foster care, it is likely that the child will be able to safely return home within three months, and no prior extension has been granted.
The child is over the age of 14 and
has a close and positive relationship with the parent, and an alternative permanent plan that does not require termination of parental rights will provide the most secure and appropriate placement for the child; or
is firmly opposed to termination of parental rights, thus making it likely that any adoptive placement will result in disruption. (To help the child make an informed decision about termination and adoption, the PS Specialist must make certain that the child has received meaningful counseling about the benefits of adoption and that the child is aware of the possibility of an adoption which allows for continued contact with members of his or her birth family. Counseling must take place before this compelling reason is invoked and cannot be provided by an employee of the Office of Children’s Services.)
There are insufficient grounds for the termination of parental rights.
Where the child is an Indian child as defined in the Indian Child Welfare Act (ICWA), the child’s Tribal culture does not acknowledge termination of parental rights as a viable option, and the Tribe has identified and offered an alternative permanent placement plan for the child that is in the best interest of the child.
The parents’ actions or inactions are not the cause of the child being in need of aid (e.g., the child is developmentally disabled, delinquent, or otherwise has needs that simply cannot be met by the parents without assistance from the state despite appropriate parenting).
The child is 16 years of age or older, and the permanency plan is another planned permanent living arrangement. (To help the child make an informed decision, the PS Specialist must make certain that the child has received meaningful counseling about becoming self-sufficient. Counseling must take place before this compelling reason is invoked and cannot be provided by an employee of the Office of Children’s Services.)
The child has sibling(s) who will not be the subject of termination proceedings, and it is not in the best interest of the child to separate from the other sibling(s).
Findings Required for Termination of Parental Rights:
The rights and responsibilities of a parent to a child may be terminated for purposes of freeing the child for adoption or other permanent placement if the department proves to the court
by Clear and Convincing Evidence that:
the child has been subjected to conduct or conditions described in AS 47.10.011; and
the parent has not remedied the conduct or conditions in the home that place the child at substantial risk of harm or has failed, within a Reasonable Time, to remedy the conduct or conditions in the home that place the child at substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury; and
that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts; and
that the termination is in the best interest of the child; and
if the child is an Indian child as defined in the Indian Child Welfare Act,
by clear and convincing evidence that Active Efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful; and
by evidence Beyond a Reasonable Doubt, including the testimony of a qualified Expert Witness, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
In determining whether a parent has remedied the conduct or conditions that place the child at risk of harm, the court may consider any fact relating to the best interests of the child, including:
the likelihood of returning the child to the parent within a reasonable time based on the child’s age or needs;
the amount of effort by the parent to remedy the conduct or the conditions in the home;
the harm caused to the child;
the likelihood that the harmful conduct will continue;
the history of conduct by or conditions created by the parent.
The duration of a parent’s incarceration is a factor to be considered in termination proceedings. The court may determine that a parent’s incarceration is sufficient grounds for determining that a child is a child in need of aid and that the parent’s parental rights should be terminated if the court finds, by clear and convincing evidence, that:
the period of incarceration that the parent is scheduled to serve during the child’s minority is significant considering the child’s age and the child’s need for an adult’s care and supervision;
there is not another parent willing and able to care for the child; and
the incarcerated parent has failed to make adequate provisions for care of the child during the period of incarceration that will be during the child’s minority.
Procedural Steps in Drafting and Filing a Petition:
The PSS consults with the PSS IV and the AAG regarding all facts and information available so that a mutual decision about the content of a petition can be made.
The PSS prepares a termination worksheet using the templates available in ORCA. The worksheet is then transmitted to the Attorney General’s Office for use in drafting a petition.
In some offices, it may be customary for the PSS to prepare the petition itself rather than a worksheet. If the PSS prepares the petition, a draft should be provided to the AAG for review and/or for filing with the court.
Form of Petition: The following information must be included in a Petition for Termination of Parental Rights:
name, address, and age of the child;
names and addresses of the parent(s) of the child and the legal guardian or Indian Custodian of the child if appropriate;
name, work address, and occupation of PS Specialist;
the possible Tribal affiliation(s) of the child;
facts that support each of the findings required for termination of parental rights, including the specific section(s) of AS 47.10.011 describing the conduct or conditions to which the child has been subjected, as well as specific dates, times, and places of all relevant occurrences, in order to give the parent and the court sufficient information about the conduct or conditions supporting termination.
Service of Petition and Notice of Hearing:
Each parent, guardian, Indian custodian, the Indian child’s Tribe, and the guardian ad litem (GAL) must be served with a copy of the petition. Consult with the AAG regarding who will serve the petition and how service will occur.
Upon receiving the petition, the court will calendar a trial setting conference for purposes of scheduling a termination trial.
If adjudication has not yet occurred, the department must notify the parties of its intent to combine adjudication and termination and must show good cause for the court to combine the proceedings.
Absent or Unknown Parent: When a petition is filed to terminate the rights of a parent whose identity and/or address is unknown, diligent efforts must be made and documented to identify and/or locate the parent for purposes of notice.
If the parent’s identity is known, but the parent’s whereabouts are unknown, notice by publication in a newspaper may be necessary.
The PSS prepares an Affidavit of Diligent Inquiry describing the diligent efforts made to locate the Absent Parent. The affidavit must include the names and locations of persons and agencies contacted, dates of the contacts, and the results of the contacts.
The AAG files the Affidavit of Diligent Inquiry with a motion for an order to publish notice to the absent parent. When the court has issued an order to publish notice, the AAG arranges for the publication of notice of the date of the termination hearing and for appointment of an attorney for the absent parent.
Notice must be published once a week for four consecutive weeks and must be completed at least 30 days before the hearing is held. This means that when scheduling a termination hearing in a case requiring publication, it should be presumed that at least 60 days will be needed to complete the publication process.
If the parent’s identity remains unknown despite diligent efforts, the PS Specialist will ask the AAG to file a motion to waive notice to the unknown parent.
If the Legal Father of a child denies biological paternity, genetic testing should be arranged.
Withdrawal of Petition/Holding Petition in Abeyance: The PSS may ask the AAG to move to withdraw the petition, or to hold the petition in abeyance, when circumstances change prior to the hearing such that the department no longer seeks termination of parental rights. The petition may be refiled or reactivated at a later date if appropriate.
Termination Trial:
Time Limits:
No later than six months after the date the petition was filed, the court must hold a trial on the petition, unless the court finds good cause for a continuance. When determining whether to grant a continuance for good cause, the court takes into consideration the age of the child and the potential adverse effect that the delay may have on the child.
The termination trial cannot be held until at least 10 days after receipt of notice by the parent or Indian custodian, and the Tribe or the Bureau of Indian Affairs. The parent, Indian custodian, or Tribe may request an additional 20 days to prepare for the trial.
Burden of proof: The department bears the burden of proving each of the elements necessary for termination of parental rights.
Expert witnesses: In cases involving Indian children, the department is required to present expert testimony in support of a finding that continued custody by the parent(s) is likely to result in serious emotional or physical damage to the child. Persons with the following characteristics are likely to qualify as expert witnesses for purposes of Indian child custody proceedings:
A professional person having substantial education and experience in an appropriate specialty;
A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian community, relevant to the Indian child;
A member of the Indian child’s Tribe who is recognized within the Tribal community as knowledgeable in Tribal customs as they pertain to family organization and childrearing practices;
A member of the child’s Tribe is always preferred, but a member of the child's ethnic and/or language group who is recognized as knowledgeable in Tribal customs as they pertain to family organization and childrearing practices also qualifies as an expert witness.
The department may rely on expert testimony in cases involving non-Indian children as well, depending on the facts or issues to be litigated.
Order Terminating Parental Rights:
The court shall issue an order on the petition within 90 days after the last day of the termination trial.
The court may order the termination of parental rights of one or both parents and commit the child to the custody of the department. The rights of one parent may be terminated without affecting the rights of the other parent. Each parent’s rights must be terminated in order for a child to be legally free for adoption. While both parents’ rights may be terminated based on evidence presented at one trial, separate trials regarding each parent may be held depending on the circumstances.
If the court finds that the department has not proved one or more of the necessary elements for termination of parental rights, parental rights remain intact, and the department’s obligations toward the parent remain unchanged. If the department believes it can meet its burden at a later date, the AAG may request a subsequent hearing on the existing petition. It is usually not necessary to file a new petition or to re-prove the elements that were proved at the first trial.
Effect of Termination of Parental Rights: Once the court issues an order terminating a parent’s parental rights, the parent’s legal relationship with the child is ended, and the parent is no longer a Party to the Case. Neither the parent nor the parent’s attorney should be served with further documents, unless otherwise ordered by the court.
Post-Termination Reports: If a permanent placement for the child was not approved at the time of the termination trial, the following post-termination reports to the court are required: