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(Cite
as: 1981 WL 38670 (Alaska A.G.))
Office
of the Attorney General
State
of Alaska
*1
File No. J-66-422-81
June
9, 1981
Notices
of Independent Adoptions
Helen
D. Beirne
Commissioner
Department
of Health and Social Services
You have asked what action is required of the department
when notice of a petition for adoption is received under
AS 20.15.100. You have also asked about the department's responsibility
with respect to the notice requirements of the Indian Child
Welfare Act. I shall address these questions in that order.
You have stated:
Division of Social Services policy has been that when a
notice of petition is
received by an office, it is reviewed to ascertain whether
the family is known to the Division on a child
protection matter; and, if so, the court is notified. If
the court has requested a study, this information becomes a
part of the report to the court. If, however, the
family is not known to the Division, and no report
is requested, no action is taken upon receipt of the
petition other than to review it.
Although
AS 20.15.100 is ambiguous, your approach appears to be a
sound one. AS 20.15.100 states in pertinent part:
Sec. 20.15.100. NOTICE OF PETITION, INVESTIGATION AND HEARING. (a) After
the filing of a petition to adopt a minor, the
court shall fix a time and place for hearing the
petition. At least 20 days before the date of hearing,
notice of the filing of the petition and of the
time and place of hearing shall be given by the
petitioner to (1) the department, unless the adoption is by
a stepparent of the child; (2) any agency or person
whose consent to the adoption is required by this chapter,
but who has not consented; and (3) a person whose
consent is dispensed with upon any ground mentioned in AS
20.15.050(a)(1), (2), (3), (6), (7), (8) and (9), but who
has not consented. The notice to the department shall be
accompanied by a copy of the petition. In this subsection,
'stepparent' means the spouse of a natural parent of the
child residing in the same household.
.
. . .
(d)
Except as provided in (g) and (i) of this section,
an investigation shall be made by the department or any
other qualified agency or person designated by the court to
inquire into the conditions and antecedents of a minor sought
to be adopted and of the petitioner for the purpose
of ascertaining whether the adoptive home is a suitable home
for the minor and whether the proposed adoption is in
the best interest of the minor.
AS
20.15.100(a) is clear: The petitioner shall give notice of the
petition and hearing to the department at least 20 days
before the hearing. The question of when the department is
required to make an investigation, however, is less clear. AS
20.15.100(d) is ambiguous. The words 'designated by the court' seem
to apply only to 'any other qualified agency or person,'
and not to 'the department'. That is, since the 'department'
is defined as meaning the Department of Health and Social
Services, AS 20.15.240(6), it makes no sense to speak of
'the department . . . designated by the court'. Thus,
a literal interpretation of subsection (d) would seem to require
the department to make the investigation unless the court designates
another agency or person to make it. [FN1]
*2
However, the language of subsection (e) makes it apparent that
this is not the case; rather, the court shall designate
that the department, or an agency or a person shall
make the investigation. [FN2]
It refers to 'the designation by the court of the
department, agency or person to make the investigation'.
Additionally, this seems to be in accord with the courts'
practice--when the court has wanted the department to do an
investigation, it has indicated this by requesting one.
AS 20.15.100, like all of AS 20.15, is a revised
version of the Uniform Adoption Act drafted by the National
Conference of Commissioners on Uniform Laws. The pertinent language with
respect to notice and investigations is virtually identical. The Commissioners'
Note to § 11
of that Act [FN3]
states in part:
Subsection (b) and following sections require, unless dispensed with by
the court, or other circumstances, that an investigation be made
by a designated person to determine whether the adoptive home
is a suitable home for the minor and whether the
proposed adoption is in the best interest of the minor.
In an agency placement, the investigation may well have been
done prior to the filing of the petition. In private
placements, the first opportunity to secure knowledge of the existence
of the child may arise as a result of the
adoption petition.
The
department, under this interpretation, has no duty to make an
investigation unless designated to do so by the court. [FN4]
You also indicated that sometimes, when the department does not
recommend in favor of adoption in cases in which it
has been requested to make an investigation, that recommendation is
disregarded. AS 20.15.100(f) requires the
report of the investigation to contain an evaluation of the
placement and a recommendation as to whether the petition should
be granted. The assumption of this subsection, according to the
Commissioners' Note, is that the court is entitled to the
'expert' judgment of the agency or other official making the
investigation. However, the recommendation is not binding on the court,
which may accept or reject the recommendation as it sees
fit. The court must make its own determination of whether
the adoption is in the best interests of the child.
See AS 20.15.120.
The second question you have asked is what the department's
responsibility is with respect to insuring compliance with the requirements
of the Indian Child Welfare Act regarding notice to the
parent and village if one of the parents' rights is
being terminated involuntarily under AS 20.15.050. Under the Indian Child
Welfare Act, the duty of giving notice falls on the
party who is seeking custody, i.e., the petitioner. [FN5]
While this ordinarily would be the department in a foster
care placement, in an adoptive placement it is not. The
Act makes no provision for ensuring compliance with the notice
requirement except that an Indian child who is the subject
of a foster care placement or termination of parental rights
proceeding, his parent, Indian custodian or tribe may petition to
have that proceeding invalidated if the notice requirement is violated.
[FN6]
Thus, under the Indian Child Welfare Act, the department must
concern itself with the notice requirements only when it is
the
party seeking custody.
*3
Wilson L. Condon
Attorney
General
Linda
Scoccia
Assistant
Attorney General
[FN1]
Subsection (h) contains similar phrasing and supports this interpretation.
[FN2]
Subsection (e) provides:
(e) A written report of the investigation shall be filed
with the court by the investigator before the petition is
heard so long as the report is filed within 30
days of the designation by the court of the department,
agency or person to make the investigation.
[FN3]
Section 11 provides in part:
§ 11.
[Notice of Petition, Investigation and Hearing]
(a) After the filing of a petition to adopt a
minor, the Court shall fix a time and place for
hearing the petition. At least 20 days before the date
of hearing,
notice of the filing of the petition and of the
time and place of hearing shall be given by the
petitioner to (1) [Public Welfare Department]; (2) any agency or
person whose consent to the adoption is required by this
Act but who has not consented; and (3) a person
whose consent is dispensed with upon any ground mentioned in
paragraphs (1), (2), (6), (8), and (9) of subsection (a)
of section 6 but who has not consented. The notice
to [Public Welfare Department] shall be accompanied by a copy
of the petition.
(b) An investigation shall be made by the [Public Welfare
Department] or any other qualified agency or person designated by
the Court to inquire into the conditions and antecedents of
a minor sought to be adopted and of the petitioner
for the purpose of ascertaining whether the adoptive home is
a suitable home for the minor and whether the proposed
adoption is in the best interest of the minor.
[FN4]
In Coca v. New Mexico Health & Social Services Dept.,
555 P.2d 381 (New Mexico 1976), the department complained that
it had received only 3- days notice of the hearing
on the petition for adoption, rather than the statutorily required
20 days. The Court held that since it had not
requested an investigation, the department had no duties to perform
with respect to the adoption hearing, and thus it was
not in any way prejudiced by the short notice.
[FN5]
25 U.S.C. § 1912(a)
provides in part: 'In any involuntary proceeding in a State
court, where the court knows or has reason to know
that an Indian child is involved, the party seeking the
foster care placement of, or termination of parental rights to,
an Indian child shall notify the parent or Indian custodian
of the Indian child's tribe . . .' [emphasis added].
[FN6]
See 25 U. S. C. 1914. This section also provides
for invalidation of proceedings for violations of sections 1911 and
1913, which pertain to jurisdiction, rights of intervention, consent (and
its withdrawal) to foster care placements and termination of parental
rights, among other things. However, it may be noted that
the Act does not provide for invalidation of proceedings which
violate section 1915, which deals with preference requirements.
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