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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.