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Rule 10. Temporary Custody Hearing.
(a) Time of Hearing. At the request of the petitioner, the court shall schedule a temporary custody hearing:
(1) within 48 hours, including weekends and holidays, of when the court is notified of emergency custody taken pursuant to CINA Rule 6(a) or (b); or
(2) within a reasonable time following a petition for temporary custody or adjudication when emergency custody has not been taken.
(b) Conduct of Hearing.
(1) Opening address. The court shall determine whether all parties have received copies of the petition and understand its contents and shall advise the parties of the nature of the proceedings and possible disposition. In addition, the court shall advise the parties of the possibility of a temporary custody or supervision order pending adjudication and final deposition, and that the parents may be liable for child support payments if the child is placed outside the home at any time during the proceeding.
(2) Advice of rights. The court shall advise the parties of their right to counsel, including the right to court-appointed counsel if applicable; the child's right to a guardian ad litem; their right to a hearing at which the state is required to present evidence to prove the allegations in its petition; their right to confront and cross-examine witnesses at such a hearing, to present witnesses on their own behalf, and to compulsory process to compel these witnesses to attend; and their privilege against self-incrimination. In cases involving an Indian child, the court shall also advise the parties of an Indian custodian's or tribe's right to intervene.
(3) In cases involving an Indian child, the Department must present evidence which demonstrates its efforts to comply with the placement requirements of 25 U.S.C. Section 1915(b).
(4) The court may admit hearsay evidence which would be otherwise inadmissible under the Evidence Rules if the hearsay is probative of a material fact, has circumstantial guarantees of trustworthiness, and the appearing parties are given a fair opportunity to meet it.
(c) Findings of Fact and Order.
(1) The court shall order the child returned to the home and dismiss the petition if the court does not find probable cause to believe the child is a child in need of aid under the provisions of AS 47.10.010(a).
(2) The court shall order the child placed in the temporary custody of the Department or order the child returned to the home with supervision by the Department if the court makes a finding that there is probable cause to believe that the child is a child in need of aid.
(3) The court may grant the Department authority to remove the child from the child's home only if the court makes the following additional findings:
(A) in the case of a non-Indian child, that continued placement in the home is contrary to the welfare of the child; and
(B) in cases involving an Indian child, either: (i) that removal from the parent's or Indian custodian's care is necessary to prevent imminent danger of physical harm or damage to the child; or (ii) that there is clear and convincing evidence, including the testimony of qualified expert witnesses, that the child is likely to suffer physical or emotional damage if left in the custody of the parent or Indian custodian.
(4) In any case in which the Department has removed the child from the home pursuant to CINA Rule 6, or in which the court has authorized the Department to remove the child pursuant to the preceding subparagraph, the court shall make findings:
(A) as to whether, under 42 U.S.C. Section 671(a)(15), reasonable efforts under the circumstances of each case were made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return to the home; and
(B) in cases involving an Indian child, concerning the Department's efforts to comply with the placement requirements of 25 U.S.C. Section 1915(b).
(d) Review.
(1) The court must hold a hearing to review an order for temporary custody or supervision not more than 90 days from the date of the original hearing or any subsequent review hearing.
(2) If circumstances relating to the child's placement change at any time between the temporary custody hearing and a final disposition, any party may request that the court review the initial temporary custody or supervision order. In cases involving an Indian child, any party may move the court to return the child to the home of the parents or Indian custodian. The court shall return the Indian child to the home if the movant shows by a preponderance of the evidence that removal is no longer necessary to prevent imminent physical harm or damage.
(SCO 845 effective August 15, 1987; amended by SCO 898 effective July 15, 1988; by SCO 914 effective January 15, 1989; by SCO 915 effective January 15, 1989; by SCO 1010 effective January 15, 1990; by SCO 1105 effective January 15, 1993; and by SCO 1265 effective July 15, 1997)
Cross References
CROSS REFERENCES: AS 47.10.030(c); AS 47.10.142 (d); 25 U.S.C. Section 1912(a); 25 U.S.C. Section 1913(a).
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Copyright 1995-1999 by Touch N' Go Systems, Inc. All rights reserved. No copyright claim is made to the text of the rules.
Last Modified 7/14/1999
