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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marcia V. v. State, Office of Children's Services (01/21/2009) sp-6333
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MARCIA V., | ) |
| ) Supreme Court No. S- 13065 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-06-131 CN |
| ) | |
| STATE OF ALASKA, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6333 - January 21, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Jack W. Smith, Judge.
Appearances: G. Blair McCune, Anchorage, for
Appellant. Laura C. Bottger, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Appellee. Leslie N. Dickson, Assistant Public
Advocate, and Rachel Levitt, Public Advocate,
Anchorage, Guardian Ad Litem.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
A mother appeals the termination of parental rights to
her daughter, an Indian child for purposes of the Indian Child
Welfare Act (ICWA). The ICWA standard for termination is
evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.1 The mother
argues that the trial court erred (1) in considering the experts
qualifications as sufficient to meet the requirements of ICWA;
and (2) in finding that the evidence presented at trial was
sufficient to prove beyond a reasonable doubt the likelihood of
serious emotional or physical damage to the child. Because the
trial courts reliance on the expert witness, which was first
raised on appeal, did not constitute plain error, and because the
court did not err in concluding that the state met its burden of
proof, we affirm.
II. FACTS AND PROCEEDINGS
This case concerns termination of the parental rights
of Marcia to her daughter Alice.2 Alice was born in 1997.
Marcia and Alice are Alaska Natives from the Native Village of
Barrow. Alice is an Indian child within the meaning of ICWA.
Marcia and Alice have a history with the Alaska
Department of Health and Social Services, Office of Childrens
Services (OCS), and with tribal child protective services dating
back to a substantiated report of neglect in 1999. In 2003 the
Native Village of Barrow took care of Alice while Marcia was in
jail in Nome for an assault charge. In 2004 Marcia violated
probation by testing positive for cocaine and being under the
influence of alcohol.
Marcia and Alice later moved to Anchorage where they
lived with relatives. In March 2006 OCS investigated a report
that Alice was no longer attending elementary school. The school
had contacted the family with whom Marcia and Alice were living
and learned that Marcia had been told to leave the home due to
her use of alcohol and drugs and her failure to contribute
financially.
An OCS social worker found Marcia and Alice staying
with Marcias aunt, and learned that two other occupants of that
home, Marcias cousin and uncle, were convicted sex offenders.
Marcia sometimes left Alice in their care to visit her boyfriend.
OCS claims that Marcia did not seem to recognize the danger this
posed to her daughter, and arranged for Marcia and Alice to stay
at a shelter. Alice was interviewed at the shelter regarding
sexual abuse, but did not report any such abuse having occurred.
During April 2006 the shelter asked Marcia and Alice to
spend a night away from the shelter while repairs were done.
Marcia sought additional time away from the shelter after she was
told she could return, and the shelter denied this request. As a
result, she was discharged from the shelter for failure to obey
curfew.
OCS took custody of Alice later in April 2006 after
Marcia left Alice with a friend to look after her, did not return
when expected, and could not be located. Marcia said she left
Alice with the friend because she needed to find a new place to
live, and that the friend had a change of heart and took Alice to
OCS after she could not get in touch with Marcia. OCS has a
different version of these events, stating that Marcia told the
friend she would be gone a few hours, then disappeared for days
before the friend brought Alice to OCS. OCS considered this
abandonment and sought to take emergency custody of Alice on
April 18, 2006.
Alices school reported to OCS that while she was in
Marcias care, Alice had been frequently absent from school,
sometimes for as long as a week, and that she had fallen
significantly behind in her school work. Marcia told a social
worker that these absences from school were because they had no
fixed address and moved around a lot between friends. After
Alice entered foster care, her foster parent told social workers
that Alice would wake up screaming if she was left alone while
sleeping. The foster parent also reported to OCS that Alice was
hyper and had trouble focusing. Anchorage Community Mental
Health Services diagnosed Alice with acute post-traumatic stress
disorder and she entered weekly therapy. The therapy helped her
make significant progress with her school performance and
anxiety.
Marcia consistently stated that she loved her daughter
and wanted to have custody of her. Alice similarly told social
workers that she loved her mother, and the social workers
observed a noticeable bond between them. Marcia understood that
she needed treatment for her substance abuse problems. OCS
developed a case plan that required her to attend AA meetings,
comply with a substance abuse assessment, and obtain stable
employment and housing.
OCS viewed treating Marcias alcoholism as the first
priority of her OCS case plan. Marcia was drinking heavily and
sometimes became violent and had memory lapses when intoxicated.
She reported that she drank on weekends, but that weekends began
on Thursday, and she would consume at least a twelve-pack of beer
on each occasion she drank. Her June 2006 substance abuse
assessment recommended intensive outpatient treatment. Her case
plan called for her to complete twenty-four weeks of intensive
outpatient treatment. Marcia was referred to an outpatient
treatment program but missed several intake appointments and did
not follow through on it. She acknowledged her need for
treatment but said she was not strong enough for outpatient
treatment and wanted to enter an inpatient program. She declined
to enter two suggested inpatient programs because they would not
allow her daughter to join her. Eventually Marcia did enter a
thirty-six-day treatment program for alcohol abuse in Sitka. She
attended thirty-five days of the program, and made some progress
there, attending classes and meetings for alcohol abuse and anger
management, and completing homework assignments. However, she
was discharged in October 2007 without completing the program due
to non-compliance with rules and threatening behavior toward
staff and peers.
After Alice entered foster care in April 2006, Marcias
visitation with her daughter was very sporadic, according to her
OCS social worker. There were gaps of up to four weeks or more
when she did not visit. She was often difficult to contact due
to her lack of a permanent address. In September 2006 OCS asked
her to sign a visitation contract due to her record of being late
or not showing up for scheduled visitation appointments. In late
2006 she told her social worker she had just spent a month in
jail on assault charges. OCS informed her that she needed to
work on completing tasks in her case plan and become engaged; OCS
also informed her that if Alice remained in foster care as of
April 2007, OCS would be required to petition to terminate
Marcias parental rights.
Additional factors besides alcoholism likely
contributed to Marcias lack of success in following her case
plan. She has been diagnosed with severe post-traumatic stress
disorder. She reported that she had been sexually abused by her
father, as a result of which she herself as a child had been
declared a child in need of aid. She had also witnessed her own
mother commit suicide. As an adult, Marcia was a victim of
domestic violence. She told OCS that she had recently escaped
from a very abusive relationship with a man who beat her and
would not let her leave or use the telephone. She once showed up
in the OCS office visibly bruised from a beating. The OCS social
worker offered to call the police or help her get into a shelter
because of this abuse, but she declined. A further challenge was
her lack of a stable residence. Because she moved from place to
place so much, it was difficult for OCS to stay in contact with
her.
Around the end of 2006, Marcia told OCS she wanted to
move back to Barrow, and to have Alice moved to a foster home
there. OCS eventually placed Alice in a new foster home in
Barrow. Marcia moved back to Barrow where she lived with her
father and began visiting her daughter. However, Marcias
substance abuse and erratic behavior also continued in Barrow.
She was arrested for assaulting and injuring her father in March
2007, and in another incident in April 2007 she was medivaced
from Barrow to Anchorage for medical treatment, where she tested
positive for alcohol and methamphetamines. She reported that she
was using methamphetamines and drinking a bottle of hard liquor
every other day. In May 2007 she spent twenty days in jail for
probation violations.
In Barrow Marcia also alarmed Alices foster family and
the social worker by taking Alice without permission to visit
with Marcias father. Because Marcia had reported past sexual
abuse by her father, her social worker strongly warned her not to
do this again.
On November 14, 2006, Alice was adjudicated a child in
need of aid, and on April 11, 2007, the superior court committed
her to OCS custody for up to two years. In July 2007 OCS
petitioned for termination of Marcias parental rights.
At the termination trial in January 2008, Alices father
voluntarily relinquished his parental rights.3 Marcia received
notice of the trial, but she did not attend it. Before trial,
Alice had told a social worker that she wanted to return to her
mother, but also accepted the possibility she might be adopted by
the foster family with whom she was living.
The trial court heard testimony from two witnesses who
worked as social workers on Marcias case. Kimberly Goines was
the social worker who handled Marcias case from around June 2006
through April 2007. She testified that Marcia did not comply
with her case plan for treatment of her substance abuse problems.
She also testified that Marcias care placed Alice at risk because
of the lack of a stable home, exposure to sex offenders, and
domestic violence from Marcias boyfriends. A second social
worker, Michelle Virden, who succeeded Goines on the case,
provided similar evidence. Virden also noted that, to her
knowledge, Marcia had not completed any elements of her case
plan. The court admitted into evidence Marcias OCS case plans,
records, and correspondence from the familys treatment and
service providers, and some of her past court records.
The court also took expert testimony from Tricia Tank,
an OCS supervisor. The court qualified Tank as an expert witness
on the question of the impact of substance abuse on the care and
abandonment of a child without objection. Her testimony was
based on a review of Marcias case file, the trial exhibits,
police reports, and other records, as well as speaking to OCS
social worker Virden and Virdens supervisor. Tank concluded that
Marcia had not remedied the problems that brought Alice into
state custody, and that she could not maintain a sober lifestyle
or provide a safe home and adequate care for Alice. She
testified that Marcias substance abuse had caused her bond and
attachment with Alice to deteriorate: [A] child of [Alices] age
needs a stable, healthy parent to care for her. She needs to
have her basic needs met by her mother, her basic clothing, food,
shelter, educational, medical care . . . and it does not appear
as though [Marcia] has been able to do that for her. As a
result, she said, Alice was at risk of developing an attachment
disorder. She pointed in particular to Marcias inability to stay
sober, her exposure of Alice to unhealthy people, her sporadic
visitation of Alice in foster care, and her inability to make
arrangements for Alices care while incarcerated. She said
normally a parent would need to demonstrate at least six months
sobriety before reunification would be allowed, but the need to
provide Alice with a stable home precluded waiting any longer to
see if Marcia could eventually achieve this.
Tank concluded that Alice was in substantial risk
of . . . emotional and physical neglect if she were in the care
of [Marcia]. She later characterized this as a serious risk of
emotional and physical neglect.
On February 6, 2008, the court found there was evidence
beyond a reasonable doubt that Marcias custody of Alice was
likely to result in serious emotional and physical damage to the
child, and terminated Marcias parental rights.
III. STANDARD OF REVIEW
In a child in need of aid case, we will sustain the
trial courts factual findings unless they are clearly erroneous.4
Factual findings are clearly erroneous if a review of the entire
record in the light most favorable to the prevailing party leaves
us with a definite and firm conviction that a mistake has been
made.5 Thus, we will ordinarily not overturn a superior courts
findings based on conflicting evidence.6 We review a trial
courts application of law to factual findings de novo.7
The question of whether an experts testimony presented
at trial is sufficient pursuant to ICWA is a legal question,
which we review de novo.8
We review issues not raised at trial only for plain
error.9 Plain error exists where an obvious mistake has been
made which creates a high likelihood that injustice has resulted.10
IV. DISCUSSION
The decision to terminate parental rights in this case
is governed by both state and federal statutes. Alaska law
requires that the superior court find by clear and convincing
evidence that (1) the child is in need of aid as defined in AS
47.10.011;11 (2) the parent has not remedied the circumstances
that put the child in need of aid, or made sufficient progress in
doing so;12 and (3) the state made reasonable efforts to support
reunification of the family.13 In making these findings, the
court can also consider any factor that relates to the best
interests of the child.14
In addition to the state requirements, federal law
requires additional showings for termination of parental rights
with respect to children determined to be Indian children within
the meaning of ICWA.15 The party seeking to terminate parental
rights must show by clear and convincing evidence that active
efforts have been made to keep the family together and that those
efforts have proved unsuccessful.16 ICWA 1912(f) requires that
a court find beyond a reasonable doubt, based on evidence that
includes testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to
the child.17 Such a finding requires proof both that the parents
conduct is likely to harm the child, and proof that it is
unlikely the parent will change her conduct.18
It is on the basis of ICWA 1912(f) that Marcia
appeals. She makes two arguments. First, she argues that the
trial court erred by relying on an expert whose qualifications
were insufficient under ICWA 1912(f). Second, she asserts for a
variety of reasons that the evidence as a whole does not support
beyond a reasonable doubt the likelihood of serious emotional or
physical damage to Alice.
A. The Trial Court Did Not Commit Plain Error by Treating
the Expert Witness as Sufficiently Qualified Under ICWA
Standards.
Marcia argues that there are glaring deficiencies in
the qualifications of the expert witness Tricia Tank with respect
to the expert witness requirement of ICWA 1912(f) because: (1)
Tank lacked expertise in Native culture; and (2) Tank lacked
sufficient education, training, and experience. We conclude that
the first of these claims lacks any merit, because expertise in
Native culture is not required in a termination case of this
kind. The second claim has some support in ICWA guidelines and
legislative history, but Marcia made no objection to the experts
qualifications at trial, and the argument for error is not strong
enough to reverse or remand under a plain error standard of
review.
1. The trial court did not err in relying on the
testimony of an expert who lacked familiarity with
Native culture.
In L.G. v. State,19 we noted that ICWA does not require
testimony from an expert in Native culture to terminate parental
rights when there is clear evidence of physical neglect . . . .20
Marcia acknowledges this, but argues that the lack of such
expertise is nevertheless a deficiency that the expert must
overcome with particularly clear and compelling testimony: Tank
was not qualified to give opinions concerning [N]ative children
and certainly did not testify to such a clear likelihood of
serious emotional or physical damage that expertise in [N]ative
culture could be dispensed with. (Emphasis added.)
When the basis for termination is unrelated to Native
culture and society and when any lack of familiarity with
cultural mores will not influence the termination decision or
implicate cultural bias in the termination proceeding, the
qualifications of an expert testifying under 1912(f) need not
include familiarity with Native culture.21 The termination order
by the trial court relied on evidence of Marcias addictions,
violent behavior, incarceration, inability to provide a stable
home, neglect, exposure of Alice to sex offenders, domestic
violence in the home, and abandonment of Alice. Nothing in the
trial record or in Marcias appeal suggests that cultural bias
might have been at issue, or that considering the appropriate
tribal standards of child care would affect the disposition of
the case. Thus, Tanks lack of familiarity with Native culture
cannot be considered a deficiency in her qualifications to
testify under ICWA 1912(f).
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Marcia attacks Tanks education and experience, arguing
that the trial court erred as a matter of law in relying on her
testimony to satisfy the requirements of ICWA 1912(f). Marcia
concedes that she did not raise this issue at trial, meaning that
it must be reviewed under a plain error standard of review. The
legislative history of and federal guidelines for ICWA provide
some support for the argument that a clearer foundation should
have been laid at trial for this experts qualifications in
relation to the purposes of ICWA. However, we conclude that if
there was any error here, it cannot be considered reversible
error under the plain error standard of review.
ICWA 1912(f) heightens the requirements for an experts
qualifications beyond those normally required to qualify an
expert. In L.G. v. State, we noted that Congress intended ICWA to
prevent Native children from being separated from their families
solely on the basis of testimony from social workers who were
unable to distinguish between cultural variations in child-
rearing practices and actual abuse or neglect.22 Federal ICWA
guidelines describe the three types of experts that are most
likely to meet ICWAs requirements: (1) a member of the childs
tribe recognized by the tribal community as knowledgeable in
tribal customs pertaining to family organization and childrearing
practices, (2) a lay expert with substantial experience and
knowledge regarding relevant Indian social and cultural standards
and childrearing practices and the delivery of child and family
services to Indians, or (3) [a] professional person having
substantial education in the area of his or her specialty.23
There is no indication Tank could have been qualified under the
first two subparts, so under these guidelines she would have had
to qualify by virtue of substantial education in the area of her
specialty. The legislative history of ICWA provides further
guidance, stating that the education and training of the expert
should constitute expertise beyond the normal social worker
qualifications.24
The legislative history and ICWA guidelines are not
regulations and are not binding. But in the past we have turned
to the ICWA guidelines and legislative history for guidance in
interpreting the expert witness requirement of ICWA, and made
clear that more is required of an ICWA expert than simply being
qualified as some kind of expert under the rules of evidence.25
To discuss Tanks level of education and expertise in
her area of specialty requires clarifying what kind of expertise
the trial court determined her to possess. The OCSs attorney
moved to qualify her as a witness on child welfare. After voir
dire, the judge told the witness that he understood her testimony
would concern whether continued custody of the child in this case
by the parent was likely to result in serious emotional or
physical damage to the child (i.e., the finding required by
1912(f)). After further discussion, the attorneys agreed that,
while Tank would not be qualified as an expert on alcoholism, she
would testify as to how the substance abuse is impacting the
abandonment and care of the child . . . . After further
discussion, the judge stated, All right. Ill qualify her as an
expert for the reasons stated. The judges remarks make clear
that he viewed Tank as an expert with respect to the required
findings of ICWA 1912(f). It is also clear that the attorneys
for the parties agreed Tank was an expert with respect to the
effects of parental substance abuse on the welfare of a child.
Tank holds a bachelor of science degree in
Administration of Justice. At the time of trial she had about
seven years of OCS experience. She had been an OCS permanency
supervisor for three years, during which time she had supervisory
responsibility over six line staff working on ninety-six cases at
a time. Prior to that she had been a team decision making
facilitator for just under a year, and a permanency line worker
for three and a half years. As a line worker she had been
responsible for about twenty-one cases at any given time. She
had testified as an expert witness in four previous child welfare
cases involving issues of substance abuse, abandonment, and the
likelihood of serious emotional or physical damage to a child.
Her resume lists thirteen trainings in various areas of child
protection she received between 2001 and 2006, in subjects
including effects of abuse and neglect on children, placement and
reunification, sexual abuse interviewing, and risk assessment.
Based on these qualifications, we conclude that the
court did not abuse its discretion in qualifying Tank as an
expert on child welfare. As a line worker and supervisor, Tank
has been involved in many dozens, probably hundreds, of child
welfare cases. She has received numerous specialized trainings
in addition to her undergraduate degree in administration of
justice.
However, it requires further inferences to conclude
that Tank has expertise beyond that of a normal social worker, or
that she has substantial education regarding the effects of
parental substance abuse on children. Such inferences may be
reasonable, in that it is quite possible that Tanks experience
and training as a social worker and supervisor give her these
heightened qualifications. But it is not obvious that counsel
for OCS laid a sufficient foundation. Ideally counsel would have
inquired more deeply into the specialized areas in which Tank was
claimed to be expert, particularly the effects of parental
substance abuse on children. The record does not unambiguously
reflect a foundation for Tank having the expertise beyond the
normal social worker qualifications that ICWA legislative history
indicates was intended by the law, nor the substantial education
in the area of his or her specialty recommended by the ICWA
guidelines.
The state argues that this court has relied on expert
testimony presented by OCS social workers in other reported
cases. However, in the two cases cited by the state, the
sufficiency of the social workers qualifications under ICWA does
not appear to have been at issue.26 Furthermore, in both cases
the testimony of the social worker was supported by additional
testimony from a psychologist.27 In any case, the question is not
whether a social worker could be a qualified expert under ICWA,
but what level of education and expertise is necessary for a
social worker to satisfy ICWAs legal requirements.
We conclude, however, that we need not plumb further
the question whether Tank had expertise beyond that of a normal
social worker, because Marcia abandoned the issue at trial.
After voir dire of the witness, Marcias counsel indicated no
objection to her testifying as an ICWA expert: Your honor, for
purposes of Ms. Tank, Im not going to object to her qualification
as an expert as to this case . . . . If its in terms of talking
about how the substance abuse is impacting the abandonment and
care of the child, I have no objection. Because it was possible
to infer from Tanks known qualifications that she possessed the
qualifications necessary under ICWA, it was not plain error for
the trial court to accept Marcias acquiescence. The high
likelihood of injustice required to reverse under the plain error
standard of review is not present here.
B. Substantial Evidence Supports the Trial Courts Finding
that the State Met Its Burden of Proof Regarding the
Likelihood of Serious Emotional or Physical Damage to
the Child.
Marcia argues that the evidence at trial was
insufficient to support the courts finding, as required by ICWA
1912(f), of evidence beyond a reasonable doubt, including
testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely
to result in serious emotional or physical damage to the child.28
The trial court concluded that it had heard evidence meeting this
standard.
Marcia claims the court erred in reaching this
conclusion for a variety of reasons. Among them are the
qualifications of the expert, discussed above. In addition, she
argues the judge erred with respect to (1) findings of fact about
the risk to Alice of sexual abuse, (2) findings of fact about
emotional problems already experienced by Alice, (3) reliance on
testimony of an expert who did not speak to key witnesses, and
(4) reliance on an expert whose conclusions were couched in
language that differed from the findings required by ICWA
1912(f). We conclude that none of these arguments has merit, and
that the trial court did not err in concluding that the state met
the burden of proof required by ICWA 1912(f).
1. The trial court did not err in its findings of
fact about the risk of sexual abuse.
Marcia is especially concerned about the courts finding
that she left Alice with sexual perpetrators. Marcia does not
dispute that Marcia and Alice lived with a cousin and uncle who
were convicted sex offenders and was sometimes left in their
care. Nor does she dispute that she brought Alice along to visit
Marcias father in Barrow, despite the fact that her father had in
the past sexually abused her.
It was not error for the trial court to view this
evidence as supporting its ultimate finding of a likelihood of
serious emotional or physical damage. The fact that Marcia and
Alice were living with convicted sex offenders (the uncle and
cousin) and that Marcia sometimes left Alice alone with them
worried OCS social workers sufficiently that OCS immediately
sought to place Marcia and Alice in a shelter and have Alice
screened for possible sexual abuse. OCS also found troubling the
fact that Marcia did not express to social workers any
recognition that convicted sex offenders posed a significant
safety risk to her young daughter. Given that OCS viewed these
contacts as a significant safety risk, a claim not rebutted by
Marcia, it was not error for the court to interpret that evidence
in a similar fashion.
In the same vein, Marcias taking Alice to visit Marcias
father, who had sexually abused Marcia as a child, could properly
be considered by the superior court in weighing the risk of
sexual abuse of Alice if left in her mothers custody.
Thus, the trial court did not clearly err in finding
that Marcia placed Alice at risk by exposing her to sex
offenders. Marcia does not dispute that she left Alice in the
care of sex offenders in Anchorage. Regarding Marcias father in
Barrow, the superior court could properly consider even a single
visit to him to be evidence that the mother exposed Alice to
risky contact with sex offenders. OCS supervisor Tricia Tank,
the expert witness, testified that Marcias taking Alice to visit
Marcias father was very dangerous.
In conclusion, the superior court did not err in
considering the facts concerning exposure to sexual perpetrators
as evidence of a risk of emotional or physical damage, nor in the
weight it placed upon this evidence.
2. The trial court did not err in its findings of
fact about emotional harm to the child.
Marica expresses her concern about testimony regarding
Alices difficulties such as nightmares and adjustment problems
when initially placed in foster care. Marcia notes that
subsequent therapy helped alleviate these emotional problems.
This falls far short of establishing any error by the trial
court. The record is replete with descriptions of actual and
potential emotional harm caused by Alices unstable home life, and
by her mothers substance abuse and neglect. As the expert
witness testified and as the judge concluded, these facts tended
to show the harmful effects of Marcias conduct on the child. The
question of whether returning the child to Marcias care would
likely harm the child turns on the nature of Marcias conduct and
whether she has made enough progress in changing her problematic
behavior, not the extent to which the emotional damage such
behavior causes can be mitigated by therapy.
3. The trial court did not err in relying on the
testimony of an expert who did not interview the
mother, daughter, or non-OCS service providers.
Marcia argues that Tanks testimony is undermined by
weaknesses such as basing her testimony principally on a review
of the OCS file and not speaking to Marcia, Alice, or any non-OCS
treatment providers. The question of whether an experts
testimony presented at trial is sufficient pursuant to ICWA is a
legal question that we review de novo.29
We have held that pretrial interviews by the expert
with the parties in a termination case are not required in every
case.30 A review of state records and summaries of relevant facts
can be enough if they keep the experts testimony sufficiently
grounded in the facts and issues of the case.31 However, we have
also acknowledged that an experts exclusive reliance on the case
file without speaking to the parent or child may weaken the
testimony.32
This case differs significantly from other cases in
which over-reliance on documents fatally weakened the experts
testimony. For example, in C.J. v. State,33 the experts testimony
was weakened because the expert never spoke with the father.34
However, that omission was part of a broader failure of the
expert to ground himself in the particulars of the case. As a
result, his testimony provided little more than generalizations
about the harms resulting from a parent's absence and . . .
little discussion of the particular facts of this case.35 The
expert also failed to address key facts about how the father had
taken major steps to redress problems in his suitability as a
parent such as finding new employment.36 In J.J. v. State, an
experts testimony was similarly held to be weakened by the
experts reliance on the case file without interviewing the parent
or children.37 Like the expert in C.J., that experts lack of
preparation resulted in testimony that was little more than
generalizations and that missed key facts about the parents
progress in meeting case plan requirements.38
In the present case, there is no indication that Tank
missed any important facts regarding Marcias suitability as a
parent. Tank read the case file, including all of the exhibits,
as well as case notes, assessments, police reports, and other
records that were not submitted as exhibits. She also spoke with
Marcias social worker and that social workers supervisor. In her
testimony, Tank touched on many specifics of the case. These
included Marcias drinking problem and inability to remain sober,
her failure to make significant progress on treating that
problem, her sporadic visitation of her daughter, her inability
to provide a stable home and maintain a healthy relationship with
Alice, Alices resulting emotional difficulties, Marcias exposing
Alice to sex offenders, Marcias repeated incarcerations, and
Alices problems in school while in Marcias care.
In conclusion, Tanks testimony was sufficiently
grounded in the facts and specifics of this case, and there is no
indication that the failure to interview the mother, daughter, or
other service providers undermined the validity of her
conclusions. There was no error in the courts reliance on such
testimony to meet the proof requirements of ICWA 1912(f).
4. The trial court did not err in relying on expert
testimony that couched its conclusions in
different language than that required for the ICWA
1912(f) findings.
Marcia argues Tanks testimony is deficient because she
did not specifically state her conclusions regarding risk to the
child in the same language used in ICWA 1912(f). We review this
issue de novo since it goes to whether the experts testimony
presented at trial is sufficient pursuant to ICWA.39
The statute requires that the court terminating
parental rights must make 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 or Indian custodian is likely to result in serious
emotional or physical damage to the child.40 Tank testified that
placing Alice in Marcias care would put her at substantial risk
of emotional and physical neglect. She later characterized this
as a serious risk. She also noted that Alice was at risk of
developing an attachment disorder.
Marcia argues that Tanks failure to actually state that
return of Alice to Marcia was likely to result in serious
emotional or physical damage presents a critical deficiency in
the States case and the termination order which resulted from it.
This is a misinterpretation of what the statute requires. The
findings of a likelihood of serious emotional or physical damage
are findings that must be made by the trial judge, not the expert
witness. The expert testimony constitutes some of the evidence
upon which the judge bases this finding. But it does not need to
be the sole basis for that finding; it simply must support it.41
Nothing about the way Tanks conclusions were stated suggests that
the judge erred in relying on this testimony to make the findings
mandated by 1912(f).
5. Substantial evidence supports the trial courts
ruling.
Substantial evidence in the record supports the courts
conclusion that the state had proven beyond a reasonable doubt
that returning Alice to Marcias care was likely to cause serious
emotional or physical damage to her. Most of the facts that the
court based this conclusion on including Marcias alcoholism,
neglect of Alice, repeated incarcerations, and failure to comply
with her case plan were not disputed. V. CONCLUSION
Because the superior court did not commit plain error
in treating the expert witness as qualified under ICWA, and
because substantial evidence supports the superior courts finding
that returning Alice to Marcia was likely to result in serious
emotional or physical damage to the child, we AFFIRM the decision
of the superior court terminating Marcias parental rights.
_______________________________
1 25 U.S.C. 1912(f) (West 2008).
2 We use pseudonyms to protect the identities of the
family members.
3 The role of Alices father in her upbringing is not
entirely clear from the record, but it was quite limited. In
June 2006 he met with a social worker and discussed his obstacles
to successful parenting: substance abuse, lack of housing and
domestic violence issues. There is no indication that he ever
visited Alice while she was in foster care.
4 Brynna B. v. State, Dept of Health & Soc. Servs., 88
P.3d 527, 529 (Alaska 2004).
5 Id.
6 Id.
7 Id.
8 E.A. v. State, 46 P.3d 986, 989 (Alaska 2002).
9 In re Adoption of L.E.K.M., 70 P.3d 1097, 1100 (Alaska
2003).
10 Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981).
11 AS 47.10.088(a)(1)(A).
12 AS 47.10.088(a)(1)(B).
13 AS 47.10.088(a)(3), 47.10.086.
14 AS 47.10.088(b).
15 Indian child is defined at 25 U.S.C. 1903(4) (West
2008).
16 25 U.S.C. 1912(d); see AS 47.10.088(a)(3); AS
47.10.086.
17 25 U.S.C. 1912(f); see also Child in Need of Aid
(CINA) Rule 18(c)(2)(4).
18 L.G. v. State, Dept of Health & Soc. Servs., 14 P.3d
946, 950 (Alaska 2000).
19 Id.
20 Id. at 952.
21 Id. at 952-53.
22 Id.
23 Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,593 (1979), quoted in In re
Termination of the Parental Rights of T.O., 759 P.2d 1308, 1309
n.3 (Alaska 1988) (emphasis added).
24 H.R. Rep. No. 95-1386, at 22 (1978), as reprinted in
1978 U.S.C.C.A.N. 7530, 7545; see, e.g., Matter of Adoption of
H.M.O., 962 P.2d 1191, 1197 (Mont. 1998); In re M.J.J., 69 P.3d
1226 (Okla. Civ. App. 2003); In re Dependency of Roberts, 732
P.2d 528 (Wash. App. 1978).
25 See, e.g., L.G., 14 P.3d at 952-53; In re Termination
of Parental Rights of T.O., 759 P.2d at 1309.
26 See L.G., 14 P.3d at 951, 953; E.M. v. State, Dept of
Health & Soc. Servs., Div. of Family & Youth Servs., 959 P.2d
766, 769-70 (Alaska 1998).
27 See L.G., 14 P.3d at 951; E.M., 959 P.2d at 769-70.
28 25 U.S.C. 1912(f) (West 2008).
29 E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 989 (Alaska 2002).
30 See J.A. v. State, DFYS, 50 P.3d 395, 400 (Alaska
2002).
31 Id.
32 See J.J. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 38 P.3d 7, 10 (Alaska 2001).
33 C.J. v. State, Dept of Health & Soc. Servs., 18 P.3d
1214 (Alaska 2001).
34 Id. at 1218.
35 Id.
36 Id. at 1219.
37 38 P.3d at 10.
38 Id. at 10-11.
39 E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 989 (Alaska 2002).
40 25 U.S.C. 1912(f); see also CINA Rule 18(c)(2)(4).
41 See E.A., 46 P.3d at 992.
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