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L.G. v. State; Dept of Health & Social Services (12/15/00) sp-5349
L.G. v. State; Dept of Health & Social Services (12/15/00) sp-5349
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
L.G., )
) Supreme Court No. S-9140
Appellant, )
) Superior Court No.
v. ) 4FA-94-29 CP
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF HEALTH AND SOCIAL SERVICES,)
)
Appellee. ) [No. 5349 - December 15, 2000]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: Michelle McComb, Assistant
Public Defender, Fairbanks, Barbara Brink, Public Defender,
Anchorage, for Appellant. Nora King, Assistant Attorney General,
Fairbanks, Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
The parental rights of L.G. (Linda) [Fn. 1] to her
daughters, J.G. and S.G., were terminated on April 1, 1999.
Superior Court Judge Richard D. Savell found that there was
evidence beyond a reasonable doubt, including the testimony of
qualified expert witnesses, that the daughters were likely to
suffer serious emotional and physical harm if returned to Linda's
custody. Judge Savell also found that there was good cause to
deviate from the placement preferences of the Indian Child Welfare
Act (ICWA) to place J.G. with Foster Mother P.S. Linda appeals.
We conclude that Judge Savell's findings are supported by the
evidence and affirm the termination of parental rights and the
finding of good cause to deviate from ICWA's placement preferences.
II. FACTS AND PROCEEDINGS
J.G. was born on September 16, 1991. In the first year
after J.G.'s birth, Linda lived intermittently with her daughter at
the Polaris Hotel in Fairbanks, a site known for drug trafficking
and prostitution. Linda's long history of substance abuse
continued after J.G.'s birth, leading to Linda's hospitalization
and her arrest for assaulting her brother with a knife while drunk.
While Linda was drinking or hospitalized because of drinking, she
left J.G. with J.G.'s father, A.D. (Father). Doctors saw burn
marks on the child when Father brought J.G. to the hospital to
visit Linda.
In the fall of 1992 Deborah Hayes, an intern with the
Division of Family and Youth Services (DFYS), was admitted to
Linda's room at the Polaris Hotel. J.G. had been awake and mobile
while Linda slept. After Hayes noticed track marks on Linda's
arms, Linda said that Father "made her take drugs" and admitted
that she had taken drugs the night before.
Linda was sentenced to seven months in jail for
assaulting her brother. During her imprisonment, Linda left J.G.
in Father's care. After being released from jail, Linda continued
to drink to excess, violated her probation by using cocaine, and
was returned to jail. Linda again left J.G. with Father, despite
her reservations about his ability to care for the child; Linda had
at least once left J.G. in Father's care and returned to find him
intoxicated.
J.G. came into state custody for the first time when
Father reported that he could not continue to care for the child.
J.G. was placed with Linda's mother, C.L. (Grandmother). On May 9,
1994, however, Grandmother asked that the child be placed
elsewhere. That same day, Linda's brother dropped the child off at
the social work division with Lorita Clough, a social worker whom
the child had never met. J.G. was unable to understand what was
happening, and repeatedly asked where her uncle was.
J.G. was placed in the Village Center, but was removed
from there after one month and eleven days. J.G. was then placed
with Shirley Moses, but was removed after ten days when a
caseworker realized that Moses had gone north to work and left J.G.
in the care of her daughter. On July 6, 1994, J.G. was placed with
Foster Mother P.S.
When Foster Mother P.S. became J.G.'s foster parent, J.G.
appeared to be developmentally delayed. J.G. did not speak in
complete sentences, screamed for what she wanted, and tended to be
violent. Foster Mother P.S. established a routine for J.G., and
J.G. was able to overcome her developmental delays and behavioral
problems. While in Foster Mother P.S.'s care, J.G. was taken to
see her grandparents almost every Sunday.
When released from jail for the birth of S.G., Linda was
directed to enter a treatment program. S.G. was born on October 1,
1994, but Linda did not enter a treatment program until March 1995.
While out of jail, Linda never saw J.G. Linda was sent back to
jail for using cocaine in April 1995, and S.G. was eventually
placed with Foster Mother R.K. Foster Mother P.S. brought J.G. to
visit her mother while Linda was in jail, but J.G. exhibited little
reaction to these visits.
Linda went from jail into the Regional Center for Alcohol
and Other Addictions in May 1995. In June she entered the Women
and Children's Residential Treatment Program. Her participation in
treatment was court-ordered. While in the Women and Children's
structured residential program, Linda was, in many respects, a
model client.
Linda was reunited with her children in October 1995.
After being returned to Linda's care, J.G. would attach to adults
and then become fearful if separated from them. J.G. was also
violent towards other children. Because J.G. appeared anxious, she
was prescribed Defakote. Although J.G. had been returned to her
mother's custody, Foster Mother P.S. continued to care for J.G.
almost every Saturday.
Linda left the Women and Children's program in early
1996. Within two weeks of leaving, she relapsed. Foster Mother
R.K. had repeatedly attempted to call Linda on one evening during
this period. Foster Mother R.K. was told by J.G. that she could
not get Linda up, although Foster Mother R.K. could hear the child
trying to awaken her mother. On the day of her relapse, Linda
passed out. When Women and Children's personnel came to the
apartment to help her get the children ready for day care and Head
Start, Linda was still passed out and still intoxicated. Lynn
Marie Eldridge, the clinical supervisor for the Women and
Children's program, testified that this relapse was cocaine based.
Linda refused to submit to urinalysis, but did agree to enter
detox. J.G. and S.G. were placed in Foster Mother R.K.'s home.
After detox, Linda re-entered the Women and Children's
program and the children were returned to her care. Within a week,
however, Linda relapsed again. Eldridge testified that this
relapse, too, involved cocaine use. Linda again refused to submit
to urinalysis, and her children were placed with Foster Mother R.K.
Foster Mother P.S. continued to maintain contact with J.G. after
the girl was placed with Foster Mother R.K., and took care of her
almost every weekend.
Linda returned to serious alcohol abuse, which resulted
in her hospitalization, caused her to fear for her own life, and
led her to drink for three days in a row without sleep.
Ultimately, Linda asked the Women and Children's program to readmit
her, knowing that her parental rights could be terminated if she
did not change her life. Linda was required to spend three months
at the Regional Center for Alcohol and Other Addictions before re-
entering the Women and Children's program. After Linda re-entered
the Women and Children's program, J.G. and S.G. were again placed
with her. While in the Women and Children's program, Linda
successfully completed her GED and worked for a short time at a
part-time job.
After being discharged from the Women and Children's
program, however, Linda's urinalysis tested positive for cocaine.
J.G. and S.G. were again removed from Linda's custody. The girls
were first placed with Emily Crook, but Crook asked that the
children be removed from her care because of S.G.'s behavior. J.G.
and S.G. were then placed in the Bermudez foster home, a non-ICWA
compliant placement, because their younger sister had been placed
there.
Linda refused to enter extended residential treatment in
Anchorage, and was unsuccessful in gaining admission to the
Regional Center for Alcohol and Other Addictions as an out-patient.
Linda visited her children at DFYS only twice. Linda was charged
with DWI in October 1997. During the next twelve months, Linda
never saw her children.
After months went by without contact between Linda and
her children, DFYS's ICWA committee unanimously recommended that
Linda's parental rights be terminated and that the children be
immediately placed in permanent homes. Despite the fact that such
a placement would be non-ICWA compliant, the committee believed
that J.G. clearly needed to be placed with Foster Mother P.S. J.G.
was placed with Foster Mother P.S., and S.G. was placed with Foster
Mother R.K.
While in Foster Mother R.K.'s custody, S.G. encountered
Linda at Grandmother's house. S.G. exhibited out-of-control
behavior after that encounter. S.G. has also had nightmares.
According to Foster Mother R.K., S.G. has said that she misses her
sisters, but has never mentioned Linda and shows no desire to
return to her mother.
The State of Alaska, Department of Health and Social
Services, petitioned to terminate Linda's parental rights to J.G.
and S.G. and to commit the girls to the department's custody for
adoptive purposes. After seven days of hearings, Judge Savell
issued an oral ruling and a written order terminating Linda's
parental rights and finding good cause to deviate from ICWA's
placement preferences so as to place J.G. with Foster Mother P.S.
Linda appeals.
III. DISCUSSION
A. Standard of Review
In a case involving the termination of parental rights,
the trial court's factual findings will be reviewed under a clearly
erroneous standard, and will be overturned only if this court is
left with a definite and firm conviction that a mistake has been
made. [Fn. 2] The trial court's decision that a witness is
qualified to testify as an expert is reviewed for abuse of
discretion; [Fn. 3] the test for determining abuse of discretion is
whether the reasons for the exercise of discretion are clearly
untenable and unreasonable. [Fn. 4] However, a determination of
whether the trial court's findings comport with the requirements of
ICWA involves a question of law and will be reviewed de novo. [Fn.
5]
We will reverse a lower court's adoptive placement
preference determination only if convinced that the record as a
whole reveals an abuse of discretion or if controlling factual
findings are clearly erroneous. [Fn. 6] The trial court abuses its
discretion if it considers improper factors or improperly weighs
certain factors in making its determination. [Fn. 7]
B. The Superior Court Did Not Err in Terminating Linda's
Parental Rights.
1. Substantial evidence supported the superior court's
finding that J.G. and S.G. would suffer serious emotional harm if
returned to Linda's custody.
In his oral findings and written order terminating
Linda's parental rights to J.G. and S.G., Judge Savell stated that
there was "evidence beyond a reasonable doubt, including the
testimony of expert witnesses[,] that [J.G.] and [S.G.] would
suffer serious emotional . . . harm if returned to the care and
custody of [Linda]." Linda argues that because there was no
evidence that J.G. and S.G. had suffered from significant
behavioral difficulties in the past, Judge Savell erred in finding
that Linda's continued custody of her children was likely to cause
them serious emotional harm. However, our review convinces us that
Judge Savell's finding of likely future emotional harm is amply
supported by the evidence.
Termination of parental rights to an Indian child
requires "a determination, supported by evidence beyond a
reasonable doubt, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent
. . . is likely to result in serious emotional or physical damage
to the child." [Fn. 8] Because sec. 1912(f) "looks to likely
future
harm to the child," [Fn. 9] a trial court's findings "properly
focus[] on the risk of future harm . . . rather than on the
infliction of past injury." [Fn. 10] Contrary to Linda's argument,
then, termination of her parental rights did not require proof that
her daughters had suffered serious emotional harm in the past;
rather, it only required proof that they were likely to suffer such
harm in the future.
Proof that a parent's continued custody of her children
is likely to cause them serious harm requires both proof that the
parent's conduct is likely to harm the children, and proof that it
is unlikely that the parent will change her conduct. [Fn. 11]
These two elements can be proved through the testimony of a single
expert witness, [Fn. 12] by aggregating the testimony of expert
witnesses, [Fn. 13] or by aggregating the testimony of expert and
lay witnesses. [Fn. 14]
Substantial lay testimony established the effects of
Linda's repeated substance abuse on her children. J.G. and S.G.
were both first placed in state custody after Linda violated her
probation by using cocaine. Both girls were again taken from their
mother's custody after her first, second, and third relapses, each
of which also involved the use of cocaine.
Qualified expert witnesses testified that repeated
separations like those endured by J.G. and S.G. were likely to
cause the girls serious emotional harm. Deborah Hayes, who
qualified as an expert witness in social work with a speciality in
permanency planning, testified that multiple placements make it
harder for children to attach to their caregivers. Hayes also
testified that children who do not have a healthy attachment to a
permanent caregiver are more likely to exhibit emotionally
disturbed behaviors, including tantrums and aggression.
Dr. Marti Cranor, who qualified as an expert in clinical
psychology with a specialty in child protection, testified that
children removed from substance abusing parents will have greater
attachment issues and a greater need for consistent, routine, and
predictable interactions with their caregivers. Dr. Cranor also
testified that it was essentially too late for J.G. and S.G. to be
returned to their mother's custody -- because the girls had already
endured so many placements, to remove them from their current
placements would impair their ability to attach to any caregiver in
the future.
The expert testimony of Hayes and Dr. Cranor was backed
up by the evidence of J.G. and S.G.'s past behavioral problems.
After Linda's probation violation for cocaine use sent J.G. on an
odyssey from Father's care to Grandmother's, from Grandmother's to
Clough's, from Clough's to the Village Center's, from the Village
Center's to Moses's, from Moses's to Moses's daughter's, and
finally from Moses's daughter's to Foster Mother P.S.'s, she
arrived in Foster Mother P.S.'s care a violent and developmentally
delayed child. Although J.G. overcame her behavioral problems in
Foster Mother P.S.'s care, she again became violent, disruptive,
and anxious when she was returned to Linda.
Linda's relapses into cocaine use sent S.G., too, through
multiple placements. Like J.G., S.G. experienced behavioral
problems as a consequence. When J.G. and S.G. were placed with
Crook after Linda's third and final relapse, S.G.'s behavioral
problems caused Crook to request the girls' removal. When moved
from Crook's to Foster Mother R.K.'s care, S.G. cried during the
day and had nightmares at night. After S.G. encountered Linda
while on an overnight visit to her grandmother's house, S.G. threw
a violent fit and hit both Foster Mother R.K. and her husband.
Given this evidence, there was no clear error in the
trial court's factual findings that Linda's repeated separations
from her daughters had caused them serious mental injury, and that
both girls were at a substantial risk of suffering further mental
injury if returned to her care.
2. The trial court did not abuse its discretion by
qualifying Lorita Clough as an expert in Yupik culture.
Linda also argues that Judge Savell erred in qualifying
Lorita Clough as an expert witness. Our review of the record
convinces us that Judge Savell did not abuse his discretion by
qualifying Clough as an expert witness in Yupik culture.
By setting such a strong standard of proof in sec.
1912(f),
Congress intended to keep Native children from being separated from
their families solely on the basis of testimony from social workers
who lacked the familiarity with Native culture necessary to
distinguish between "the cultural and social standards prevailing
in Indian communities and families" and actual abuse or neglect.
[Fn. 15] A witness may gain the familiarity that will qualify her
as an expert under ICWA either through personal contact, or through
work experience, with Native cultures. In In re Parental Rights of
T.O., for example, we held that a trial judge did not abuse his
discretion in qualifying two witnesses as experts, where one
witness, a social worker, was a member of the relevant Native
community and had Native children, and the other had twenty years
of experience teaching and counseling Native Alaskans. [Fn. 16]
Similarly, the guidelines to ICWA state that:
[M]ost likely to meet the requirements for a
qualified expert witness for purposes of Indian child custody
proceedings [are] . . .
(i) A member of the Indian child's tribe
who is recognized by the tribal community as knowledgeable in
tribal customs as they pertain to family organization and
childrearing practices; [or]
(ii) A lay expert witness having substan-
tial experience in the delivery of child and
family services to Indians, and extensive knowledge of prevailing
social and cultural standards and childrearing practices within the
Indian child's tribe.[ [Fn. 17]]
Clough was raised in Chevak, while J.G. and S.G.'s tribal
affiliation is with the village of Emmonak. Clough, J.G., and S.G.
are all Yupik, however. Clough offered undisputed testimony that
Yupik child-rearing practices in Chevak and Emmonak are the same.
Clough learned about Yupik child-rearing practices through
knowledge passed on by village elders, and was able to describe the
important role played in child rearing by the Yupik extended
family. Clough regularly sought input from the appropriate village
when her work involved Native children, and had asked the village
of Emmonak to send a member to Fairbanks to meet with J.G. and S.G.
At the time of the hearing, Clough had worked for DFYS as
a social worker for almost ten years. Ninety percent of the
mothers and children with whom Clough had worked were Alaska
Natives, and some of them were Yupik. Before joining DFYS,
moreover, Clough had worked at the Fairbanks Native Association's
Youth Drug & Alcohol Prevention and Women in Crisis Counseling and
Assistance Programs.
The trial judge's reasons for qualifying an expert
witness must be clearly untenable and unreasonable to constitute an
abuse of discretion. [Fn. 18] Judge Savell specifically requested
that the state provide further foundation evidence establishing a
"nexus with family and child-rearing practices" after Linda's
counsel first objected to Clough's qualifications as an expert in
Yupik culture. After hearing further testimony about Clough's
knowledge of Yupik child-rearing practices and family structure,
the trial judge acted within his discretion in deciding that Clough
was qualified to testify as an expert by virtue of her personal
familiarity with Yupik culture and her ten or more years of
experience working with Native children and mothers.
3. When there is clear evidence of physical neglect, a
trial judge may terminate parental rights without hearing testimony
from an expert in Native culture.
Lorita Clough was the only witness whom the trial judge
qualified as an expert in Native culture. In arguing that Clough
was not qualified as an expert in Yupik culture, Linda implicitly
argues that her parental rights should not have been terminated
without hearing testimony from at least one expert in Native
culture. In response, the state contends that ICWA does not
require testimony from an expert in Native culture when cultural
concerns are not implicated in a termination proceeding, and that
Linda's physical neglect of J.G. and S.G. was not a cultural issue.
Given the clear evidence that J.G. and S.G. faced a serious risk of
physical neglect if they were returned to their mother's custody,
Judge Savell would not have erred in terminating Linda's parental
rights even if he had not heard any testimony from an expert in
Native culture.
Legislative history indicates that the primary reason for
requiring qualified expert testimony in ICWA termination
proceedings was to prevent courts from basing their decisions
solely upon the testimony of social workers who possessed neither
the specialized professional education nor the familiarity with
Native culture necessary to distinguish between cultural variations
in child-rearing practices and actual abuse or neglect. [Fn. 19]
Because ICWA does not always require testimony from witnesses with
both types of expertise, [Fn. 20] however, virtually all the courts
that have considered the question have concluded that so long as a
termination proceeding does not implicate cultural bias, ICWA's
proof requirements can be satisfied by a qualified expert witness
without any special familiarity with Native cultural standards.
[Fn. 21] Accordingly, where there is clear evidence that a child
faces a serious risk of physical neglect if she remains in her
parent's care, a trial judge may terminate parental rights without
hearing testimony from an expert in Native cultures. [Fn. 22]
Our conclusion that termination proceedings under sec.
1912(f) will not always require testimony from an expert in Native
culture is consistent with our holding in E.M. v. State, Department
of Social Services. [Fn. 23] In E.M., lay testimony established
that, on numerous occasions, E.M. left his child alone or "in the
care of anyone who happened to be present in [E.M.'s] apartment;"
that E.M.'s residence was dangerous; and that E.M. had repeatedly
refused to submit to urinalysis and made "little or no progress in
attempting to meet the requirements of his court-ordered case
plan." [Fn. 24] A doctor and a social worker testified, as expert
witnesses, that the father's unstable conduct was likely to
continue and that he would not be able to provide a safe home for
his child. [Fn. 25] Despite the fact that neither expert witness
had any special knowledge of Native culture or child-rearing
practices, we affirmed the trial court's order terminating the
father's parental rights. [Fn. 26]
Like E.M.'s child, J.G. and S.G. were put at risk of
serious physical harm by Linda's neglect. Linda raised J.G. in a
hotel known for drug trafficking and prostitution, and lived there
with a man who, by Linda's own account, forced her to take drugs.
Linda left her daughters unsupervised while she was under the
influence of alcohol or drugs, and left her children in the custody
of an inadequate caretaker while she was out drinking, hospitalized
because of drinking, and imprisoned after assaulting her brother
while drinking.
There was also substantial evidence that Linda's physical
neglect of her children was likely to continue. Linda had
repeatedly violated her parole and the requirements of her
treatment programs by drinking, doing drugs, and refusing to submit
to urinalysis. Sonia Mazurek, the children's guardian ad litem,
told the court that Linda's behavior revealed clear patterns of
substance abuse. Mazurek did not believe that Linda could avoid
relapse outside the bounds of a structured program, or that either
J.G. or S.G. could safely be returned to Linda's custody. Jody
Pritchard, who qualified as an expert in the provision of treatment
to mothers with substance abuse issues, testified that Linda had
been using cocaine as well as alcohol and that cocaine addiction is
much harder to treat than alcohol addiction. Pritchard also
testified that while Linda had been successful in staying sober
within structured treatment programs, her fear of being responsible
for her own actions led her to relapse repeatedly upon leaving
those programs.
Based upon this lay and expert testimony, the trial court
found that Linda's "addictive and habitual use of alcohol and
cocaine" had resulted in a "substantial risk to the children;" that
Linda's neglect, "each time [she] chose to return to substance
abuse," kept her from caring for her children adequately; and that
"[Linda's] parental conduct [was] likely to continue." The trial
court's factual findings are well supported by the record. Far
from reflecting mere cultural differences in the care of Native
children, Linda's history of serious substance abuse places J.G.
and S.G. at a clear risk of future harm if returned to her custody.
Given the clear evidence of physical neglect, termination of
Linda's parental rights did not require testimony from an expert in
Native culture.
C. The Trial Court Had Good Cause to Deviate from ICWA's
Placement Preferences to Promote J.G.'s Best Interests.
Linda contends that there was no "good cause" for the
state to deviate from ICWA's placement preferences and place J.G.
with Foster Mother P.S. We conclude, however, that Judge Savell's
factual finding that J.G. faced a certainty of serious emotional
harm if she were removed from Foster Mother P.S.'s custody was not
clearly erroneous, and that Judge Savell did not abuse his
discretion by weighing J.G.'s best interests as of paramount
importance in the placement decision.
In any pre-adoptive placement of an Indian child
a preference shall be given, in the absence of
good cause to the contrary, to a placement with --
(i) a member of the Indian child's extended
family;
(ii) a foster home licensed, approved, or
specified by the Indian child's tribe;
(iii)an Indian foster home licensed or
approved by an authorized non-Indian
licensing authority; or
(iv) an institution for children approved by
an Indian tribe or operated by an Indian organization which has a
program suitable to meet the Indian child's needs.[ [Fn. 27]]
The state concedes that J.G.'s placement with Foster Mother P.S. is
not compliant with ICWA's preferences; Foster Mother P.S. does not
qualify under any of the four provisions of sec. 1915(b), while
Grandmother and Foster Mother R.K. (a foster mother approved by
J.G.'s tribe) do.
Although ICWA does not define "good cause," this court
has held that
[w]hether there is good cause to deviate from
ICWA's placement preferences in a particular
case depends on many factors including, but not necessarily limited
to, the best interest of the child, the wishes of the biological
parents, the suitability of persons preferred for placement and the
child's ties to the tribe.[ [Fn. 28]]
Similarly, the Bureau of Indian Affair's Guidelines offer, as
examples of the kinds of factors that can provide good cause to
deviate:
(i) The request of the biological parents or
the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional
needs of the child as established by testimony of a qualified
expert witness.
(iii)The unavailability of suitable families
for placement after a diligent search has
been completed for families meeting the preference criteria.[ [Fn.
29]]
Courts in other jurisdictions have held that "the certainty of
emotional or psychological damage to the child if removed from the
primary caretaker may also be considered by the court in
determining whether good cause exists to deviate from the placement
preferences of . . . ICWA." [Fn. 30] Most significantly, this
court has held that "although ICWA and the guidelines draw
attention to important considerations, the best interests of the
child remain paramount." [Fn. 31]
As Judge Savell noted, the experts agreed that removing
J.G. from her placement with Foster Mother P.S. was certain to
cause her serious emotional or psychological damage. Dr. Cranor
testified that -- having been through eleven placements already --
J.G. was essentially at the end of her capacity to withstand the
stress of another placement. Similarly, Lorita Clough testified
that because of J.G.'s history of multiple placements, J.G. would
not be able to tolerate another move without risking her ability to
ever again attach to a caregiver. Mazurek, J.G.'s guardian ad
litem, also believed that J.G. could not "make it" unless she
stayed in her current placement with Foster Mother P.S. Judge
Savell did not clearly err in finding that "[J.G.'s] ability to
bond and to trust is at its boundaries; another separation is
certain to cause serious emotional harm and would create a
significant likelihood that her ability to attach would be
irrevocably destroyed."
There was also evidence that J.G. could retain her
connection to her tribal heritage even if placed with Foster Mother
P.S. J.G.'s permanent placement with Foster Mother P.S. was
unanimously approved by DFYS's ICWA review committee, which
included an adoption specialist and a Native liaison, usually
included a Native Alaskan, and invited participation by the Emmonak
tribal representative. J.G.'s placement with Foster Mother P.S.
was also supported by Lorita Clough, who testified about the
importance of the girls maintaining ties to their extended family
and tribal heritage. When Foster Mother P.S. first cared for J.G.,
moreover, she regularly took the girl to visit with her Native
grandparents.
The suitability of alternative placements was a closer
question. After J.G. was placed with Grandmother in 1994,
Grandmother asked that the child be placed elsewhere and had J.G.
dropped off, without further warning, at the office of a case
worker whom the two-year-old girl had never met. Over the next
five years, Grandmother not only did not offer herself as a
placement, but told the DFYS case worker that she considered calls
about the girls to be harassment and ordered the case worker never
to call again. Although placement with Foster Mother R.K. would
allow J.G. to be placed with S.G., Judge Savell specifically found
that because of J.G.'s weakened ability to attach, placement with
Foster Mother R.K. "would be destructive to [J.G.]."
"[L]argely because of the harm another move would cause,"
Judge Savell found that there had been, and continued to be, good
cause to place J.G. with Foster Mother P.S. Judge Savell did not
abuse his discretion by weighing J.G.'s best interests as of
paramount importance in finding good cause to deviate from ICWA's
placement preferences.
IV. CONCLUSION
In deciding to terminate Linda's parental rights, Judge
Savell found that Linda's history of abandonment and substance
abuse placed her daughters at a serious risk of emotional and
physical harm if they were returned to her custody. Judge Savell
also found that J.G.'s extraordinary emotional needs necessitated
her placement with Foster Mother P.S. Both of Judge Savell's
decisions are supported by the facts and legally sound.
Accordingly, we AFFIRM the trial court's order terminating Linda's
parental rights and finding good cause to deviate from ICWA's
preferences in the placement of J.G.
FOOTNOTES
Footnote 1:
A pseudonym has been used for L.G.
Footnote 2:
See E.M. v. State, Dep't of Health and Social Servs., 959 P.2d
766, 768 (Alaska 1998).
Footnote 3:
See Jordan v. Jordan, 983 P.2d 1258, 1261 n.5 (Alaska 1999).
Footnote 4:
See Bailey v. Lenord, 625 P.2d 849, 854 (Alaska 1981).
Footnote 5:
See E.M., 959 P.2d at 768.
Footnote 6:
See In re Adoption of F.H., 851 P.2d 1361, 1363 (Alaska 1993).
Footnote 7:
See id.
Footnote 8:
25 U.S.C. sec. 1912(f).
Footnote 9:
In re J.R.B. & T.W.G., 715 P.2d 1170, 1172 (Alaska 1986).
Footnote 10:
E.M., 959 P.2d at 771.
Footnote 11:
See In re Parental Rights of T.O., 759 P.2d 1308, 1310 (Alaska
1988).
Footnote 12:
See D.A.W. v. State, 699 P.2d 340, 342 (Alaska 1985).
Footnote 13:
See In re Parental Rights of T.O., 759 P.2d at 1310-11.
Footnote 14:
See In re Kreft, 384 N.W.2d 843, 847-48 (Mich. App. 1986).
Footnote 15:
25 U.S.C. sec. 1901(5); see also H.R. Rep. No. 1386 (1978),
reprinted in 1978 U.S.C.C.A.N. 7532-33.
Footnote 16:
See 759 P.2d 1308, 1309-10 (Alaska 1988).
Footnote 17:
44 Fed. Reg. 67,593 (1979).
Footnote 18:
See Bailey v. Lenord, 625 P.2d 849, 854 (Alaska 1981).
Footnote 19:
See 25 U.S.C. sec. 1901(5); see also H.R. Rep. No. 1386
(1978), reprinted in 1978 U.S.C.C.A.N. 7532-33.
Footnote 20:
See Jordan v. Jordan, 983 P.2d 1258, 1261 (Alaska 1999)
(noting that, despite their lack of familiarity with Native
culture, two experts "appeared to meet the third basis to qualify
as expert witnesses -- 'substantial education' in the field of
their speciality").
Footnote 21:
See Rachelle S. v. Department of Economic Sec., 958 P.2d
459, 461-62 (Ariz. App. 1998) ("[D]istinctive knowledge of Indian
culture is necessary only when cultural mores are involved.");
People in Interest of R.L., 961 P.2d 606, 609 (Colo. App. 1998)
("[I]f termination is based on parental unfitness unrelated to
Indian culture and society, an expert witness qualified to testify
pursuant to 25 U.S.C. sec. 1912(f) need not possess special
knowledge
of Indian life."); In re Baby Boy Doe, 902 P.2d 477, 485 (Idaho
1995) ("Special knowledge of Indian life is not necessary where a
professional person has substantial education and experience and
testifies on matters not implicating cultural bias."); In re N.L.,
754 P.2d 863, 868 (Okla. 1988) ("The determination [in an ICWA
proceeding] must include consideration of tribal family practices
unless cultural bias is clearly not implicated."); State ex rel.
Juv. Dep't v. Tucker, 710 P.2d 793, 799 (Or. App. 1985) ("[W]hen
cultural bias is clearly not implicated, the necessary proof may be
provided by expert witnesses who do not possess special knowledge
of Indian life."). But see In re Welfare of M.S.S., 465 N.W.2d
412, 417 (Minn. App. 1991) ("The experts should also be conversant
with Indian culture and child-rearing practices, lest 'the problems
Congress has tried to remedy may remain despite the adoption of
[ICWA].'" (citation and internal quotation omitted)).
Footnote 22:
See In re D.C., 715 P.2d 1, 1 n.1 (Alaska 1986) (noting that
in a case involving the sexual abuse of the child, there was "no
abuse of discretion in the trial court's determination that the
witness was a qualified expert for purposes of [ICWA], given her
education, training, and work experience in the field of sexual
abuse of children.").
Footnote 23:
959 P.2d 766 (Alaska 1998).
Footnote 24:
Id. at 769-70.
Footnote 25:
See id.
Footnote 26:
See id. at 770-71.
Footnote 27:
25 U.S.C. sec. 1915(b) (emphasis added).
Footnote 28:
In re Adoption of F.H., 851 P.2d 1361, 1363-64 (Alaska 1993).
Footnote 29:
Guidelines for State Courts; Indian Child Custody Proceedings,
44 Fed. Reg. 67,594 (1979).
Footnote 30:
People ex rel. A.N.W., 976 P.2d 365, 369 (Colo. App. 1999);
see also In re Baby Doe, 902 P.2d 477, 487 (Idaho 1995).
Footnote 31:
Adoption of N.P.S., 868 P.2d 934, 936 (Alaska 1994) (emphasis
added).
