Rule 10. Temporary Custody Hearing

(a) Time of Hearing.

(1) At the request of the petitioner, the court shall

schedule a temporary custody hearing:

(A) within 48 hours, including weekends and holidays, of

when the court is notified by the filing of a petition that

emergency custody was taken pursuant to CINA Rule 6; or

(B) no later than five business days following the filing

of a petition when emergency custody has not been taken.

(2) The court may continue a temporary custody hearing

at the request of a parent or guardian upon a showing of good

cause for why the parent or guardian is not prepared to respond

to the petition. A continuance must be requested before or at

the outset of the hearing.

(b) Conduct of Hearing.

(1) Opening Address. The court shall first determine

whether the persons specified in CINA Rule 7(b) have

received notice of the hearing. The court shall then 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 disposition, 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

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. If the hearing is being held

because emergency custody was taken pursuant to CINA Rule

6(a) or (b), the court shall also advise the child’s parents or

guardian, if they are present at the hearing, that they each have

the right to request a continuance of the hearing if they are not

prepared to respond to the allegation that the child is a child in

need of aid.

(3) 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 that the child is a child in need of aid under

AS 47.10.011.

(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 finds probable cause to believe that the child is a child in

need of aid under AS 47.10.011.

he petition if the court does not find probable

cause to believe that the child is a child in need of aid under

AS 47.10.011.

(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 finds probable cause to believe that the child is a child in

need of aid under AS 47.10.011.

(3) The court may approve the removal of the child from

the child’s home only if the court finds that continued

placement in the home is contrary to the welfare of the child;

and, in cases involving an Indian child, either: (A) that

removal from the child’s parent or Indian custodian is

necessary to prevent imminent physical damage or harm to the

child; or (B) that there is clear and convincing evidence,

including testimony of qualified expert witnesses, that the

child is likely to suffer serious emotional or physical damage if

left in the custody of the parent or Indian custodian.

(4) In any case in which the court has approved the

removal of the child pursuant to the preceding subparagraph,

the court shall make the inquiry and findings required by

CINA Rule 10.1.

(d) Subsequent Proceedings. If the court orders the

child placed in the temporary custody of the Department or

orders the child returned to the home with supervision by the

Department, the court must set the time for the adjudication

hearing and for the pretrial conference and meeting of parties

required by CINA Rule 13. The court may also set the time to

file motions, complete discovery, exchange witness and exhibit

lists, and file pretrial briefs. The court may schedule a

disposition hearing in conjunction with the adjudication

hearing. In such cases, the order setting the time for

adjudication and disposition must also set the time to submit

reports in aid of disposition.

rties

required by CINA Rule 13. The court may also set the time to

file motions, complete discovery, exchange witness and exhibit

lists, and file pretrial briefs. The court may schedule a

disposition hearing in conjunction with the adjudication

hearing. In such cases, the order setting the time for

adjudication and disposition must also set the time to submit

reports in aid of disposition.

(e) Review.

(1) If circumstances relating to the child’s placement

change pending adjudication or disposition, any party may

request that the court review the temporary custody or

supervision order.

(2) When a party seeks the return of a child to the child’s

home pending adjudication or disposition, if the party makes a

prima facie showing that removal is no longer necessary, the

burden of proof shifts to the Department as described below:

(A) in cases involving a non-Indian child, the court shall

return the child to the home unless the Department proves by a

preponderance of the evidence that return to the home is

contrary to the welfare of the child;

(B) in cases involving an Indian child, the court shall

restore the child to the child’s parent or Indian custodian unless

the Department proves (i) by a preponderance of the evidence

that removal from the parent or Indian custodian is still

necessary to prevent imminent physical damage or harm to the

child; or (ii) by clear and convincing evidence, including the

testimony of qualified expert witnesses, that the child is likely

to suffer serious emotional or physical damage if returned to

the custody of the parent or Indian custodian.

) by a preponderance of the evidence

that removal from the parent or Indian custodian is still

necessary to prevent imminent physical damage or harm to the

child; or (ii) by clear and convincing evidence, including the

testimony of qualified expert witnesses, that the child is likely

to suffer serious emotional or physical damage if returned to

the custody of the parent or Indian custodian.

(3) A party may seek review of other issues related to

temporary custody or supervision under CINA Rule 19.1(d).

Note:

Ch. 43, SLA 2001, amends AS 47.10.030, AS

47.10.070(a), and AS 47.10.080(f) to add provisions

concerning notice to and participation by grandparents.

According to §6 of the Act, these provisions have the effect of

amending Child in Need of Aid Rules 3, 7, 10, 15, 17, and 19

by requiring that grandparents be given notice of and an

opportunity to be heard at certain child-in-need-of-aid

proceedings.

Cross References

CROSS REFERENCE: AS 47.10.142(d) and (e); 25 U.S.C. §

1912(a); 25 U.S.C. § 1913(a); 25 U.S.C. § 1922; 42 U.S.C. § 672(a)(1).