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. (iii) whether there is any other effective way to obtain the information; and (iv) whether the public interest and need for disclosure outweighs the potential injury to the patient and the patient’s psychotherapist relationship. (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. Before ruling on such a request, the court may inspect records in camera. The court may allow, limit, or prohibit disclosure and use of the communication. (E) If the court grants the request for disclosure of the child’s privileged information, the court order must: (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 15 ALASKA COURT RULES 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. 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. (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 16 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. (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. (3) A party may seek review of other issues related to temporary custody or supervision under CINA Rule 19.1(d). (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; by SCO 1265 effective July 15, 1997; by SCO 1355 effective July 15, 1999; by SCO 1398 effective October 15, 2000; and by SCO 1978 effective October 17, 2022) Note: Ch. 43, SLA 2001, amends AS 47.10.030, AS to add provisions 47.10.070(a), and AS 47.10.080(f) 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).