(Revision. 10/1/15)
25 U.S.C. § 1912 Indian Child Welfare Act of 1978
AS 47.10.010(a) Jurisdiction
Alaska Child in Need of Aid Rules 10, 10.1
Purpose of Hearing: At a probable cause/temporary custody hearing, the court considers the allegations in the petition and determines:
Whether there is probable cause to believe the child is a child in need of aid;
Whether the department should be granted temporary custody of the child; and
Whether the child should be placed outside of the home.
Time Limit: If an emergency petition has been filed, the hearing must be held within 48 hours of the filing of the petition. If a non-emergency petition has been filed, the hearing must be held within a “reasonable time” (usually within two weeks).
Standard of Proof: "Probable cause” means enough evidence to convince the court that there is a fair probability or substantial chance that the child has been subjected to conditions or conduct described in at least one subsection of AS 47.10.011.
Presentation of Evidence: Often the parties in a case will stipulate to probable cause and temporary custody, thereby eliminating the need for presentation of evidence. However, if a party opposes the department’s petition, the PSS and/or other witnesses may be required to testify regarding the allegations in the petition. Because hearsay is generally admissible at a probable cause/temporary custody hearing, the child will not usually have to testify at this stage of the proceedings.
Dismissal for Lack of Probable Cause: If the court determines that probable cause does not exist, this means the court does not have jurisdiction under the child in need of aid statutes, and the case must be dismissed.
Legal Custody or Supervision: If the court finds that there is probable cause, the court will next determine whether the child should be placed in the temporary legal custody of the department or left in the legal custody of the parent, guardian, or Indian Custodian under the supervision of the department until disposition.
Removal Findings: If the court grants the department temporary legal custody of the child, the court will next determine whether the child should be placed outside of the home or remain placed in the home. In order for the department to place the child outside of the home, the court must find that continued placement in the home of the child’s parent, guardian, or Indian custodian is Contrary to the Welfare of the child; and, if the child is an Indian child, that:
removal from the child’s parent or Indian custodian is necessary to prevent imminent physical harm to the child; or
there is Clear and Convincing Evidence, including the testimony of a qualified Expert Witness, that the child is likely to suffer serious emotional or physical damage if left in the custody of the parent or Indian custodian.
If the testimony of an expert is necessary, the PSS should consult with the AAG to determine who should be offered as an expert witness.
Efforts to Prevent Removal: If placement outside of the home is requested, the court must also make findings regarding the department’s efforts to prevent out-of-home placement.
The court must determine whether the department has made reasonable efforts to prevent out-of-home placement. If the department assumed emergency custody of the child, the court may find that it was not possible under the circumstances to make efforts that would have prevented removal of the child.
If the child is an Indian child, the court must determine whether the department has made Active Efforts (a higher level of efforts than reasonable efforts) to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and whether the department has complied with the placement preferences of section 1915(b) of the Indian Child Welfare Act.
A finding that the department has not made active or reasonable efforts does not alone require the department to return the child to the home. It may, however, affect the department’s ability to obtain federal foster care funding for the child.
Other Findings, Orders, and Inquiries: The court may make other findings or orders regarding the terms, conditions, and duration of the child’s placement. The court may also inquire of the parents regarding Tribal affiliation(s), placement options, or the whereabouts of any Absent Parent, if this information has not been provided previously.
Supervision – No Removal: If the court grants the department supervision of the child rather than temporary legal custody, the department cannot remove the child from the home absent an emergency or further court order.
Further Proceedings: At the conclusion of the hearing, if the case has not been dismissed, the court will schedule a pretrial conference, and the parties will set a time and place to meet informally prior to the pretrial conference to discuss the case.