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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of Candace A. (8/22/2014) sp-6946

In the Matter of Candace A. (8/22/2014) sp-6946

         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  


In the Matter of                                        )  

                                                        )        Supreme Court No. S-15251  

         CANDACE A., a Minor.                           )  

                                                        )        Superior Court No. 4BE-13-00013 CN  


                                                        )        O P I N I O N  


                                                        )        No. 6946 - August 22, 2014  

                  Petition for Review from the Superior Court of the State of  


                  Alaska, Fourth Judicial District, Bethel, Charles W. Ray, Jr.,  



                  Appearances:    David  T.  Jones,  Senior  Assistant  Attorney  

                   General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                   General, Juneau, for Petitioner State of Alaska.  Rachel Cella,  


                  Assistant Public Defender, Anchorage, and Quinlan Steiner,  


                  Public       Defender,        Anchorage,          for    Respondent          E.A.  

                  William T. Montgomery, Assistant Public Advocate, Bethel,  


                   and    Richard   Allen,   Public           Advocate,        Anchorage,         for  


                  Respondent D.A.  

                  Before:   Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  

----------------------- Page 2-----------------------




                     The superior court adjudicated Candace  a child in need of aid because she 

had  been  sexually  abused  by  her  adoptive  brother.    The  superior  court  nonetheless  

ordered that Candace be returned to her parents' home, holding that the Department of  


Health and Social Services, Office of Children's Services (OCS), had failed to present  


"qualified expert testimony" as required by the Indian Child Welfare Act (ICWA) to  


support a finding that she would likely suffer serious physical or emotional harm in her  


parents'  custody.    We  conclude  that  the  superior  court's  failure  to  accept  OCS's  

proposed expert witnesses as qualified was error, and we therefore vacate the order  

placing Candace with her parents.  


          A.         Candace's History  

                     Candace  is a 17-year-old girl from a small village in southwestern Alaska.2  

She entered the foster care system when she was two years old and was adopted by her  

great-aunt and great-uncle - Emma and Douglas - when she was 11.  

          1          We use pseudonyms to protect the family's privacy.  

          2          Candace turns 18 in August 2014.  Recognizing that this case may be moot,       

we conclude that the  public  interest exception to the mootness doctrine applies.   In  

deciding whether to hear a moot appeal, we weigh various considerations:  "(1) whether  


the  disputed  issues  are  capable  of  repetition,  (2)  whether  the  mootness  doctrine,  if  

applied, may cause review of the issues to be repeatedly circumvented, and (3) whether  


the issues presented are so important to the public interest as to justify overriding the  


mootness doctrine."  Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 146 P.3d 991, 996 (Alaska 2006).  We apply the exception to this case because  


the question of expert qualifications in ICWA cases is important to the public interest and  


is likely to arise repeatedly.  

                                                                -2-                                                          6946

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                    In the fall of 2012, Candace's teacher noticed she was withdrawn, had  


stopped talking to her friends, and seemed depressed.  Candace spent about two weeks  


sleeping on friends' couches, including one night when she stayed with her teacher.  One  


day Douglas came to school and told Candace to come home or he would call the village  


public safety officer to bring her home.  Candace locked herself in the girls' bathroom,  

where she slammed her head against the floor and walls.  She texted her teacher and said  

that she couldn't go back home because "bad things [were] happening."  The teacher  


reported this to the school principal and OCS. A state trooper and an OCS worker spoke  


with Candace, who reported that she had been sexually abused by her adoptive brother.  


A few days later Douglas and Emma agreed to send Candace to a boarding school in  



                    Candace repeated her reports of abuse while at boarding school, telling the  


school principal that her home "was a bad place" and she did not want to live there.  She  


said that Douglas and Emma hid the "bad things" she reported. The "dorm parent" at the  


boarding school gave Candace a journal, in which Candace wrote other details about  

abuse  at  home.    When  the  school  principal  contacted  OCS  about  what  Candace  

described, Candace again locked herself in the bathroom, destroyed the journal, and  


threatened to commit suicide; the principal had to call the police to remove her from the  


bathroom.  Candace refused to talk about what she had written in her journal or to give  

additional details about the abuse.  


                    Candace returned to her village during the 2012 winter break.  OCS worked  


with Douglas and Emma to find a safe place for Candace to stay while she was home,  


away from her adoptive brother. Candace was supposed to stay with Douglas's sister but  

actually spent some of her time at her parents' house.   When she returned to Bethel after  

winter break, she told the school principal that one of her uncles came into her bedroom  

                                                                -3-                                                         6946

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while intoxicated and tried to "touch her in her private areas down low and also tried to  


take off her pants and was kissing her."  Candace told the principal that her parents did  


not believe this occurred and refused to report anything to OCS because they did not  

want Candace's uncle to go to jail.  The school principal reported Candace's allegations  


of abuse to OCS and the Bethel Police Department.  


                    In February 2013, Candace was expelled from the boarding school dorms  


because of a drinking incident.  She and her girlfriend went to the airport in Bethel but  


were picked up by the police and brought to the OCS office, where Candace told an OCS  

worker she was afraid to go back to her village because her adoptive brother sexually  


abused her.  OCS contacted Emma, who suggested that Candace spend the night at an  

aunt's house in Bethel.  


                    OCS  took  emergency  custody  of  Candace  the  next  day.    In  a  forensic  

interview, Candace said that her adoptive brother had had sexual intercourse with her a  


year or two earlier and that he had attempted to do so several times since, including  

during the winter break she spent in the village.  


                    The OCS social worker, Barbara Cosolito, then spoke with Douglas and  


Emma.    Douglas  was  skeptical  of  Candace's  allegations.                                He  agreed  that  his  son  

(Candace's adoptive brother) could stay someplace else in the village when Candace was  


home, but he wanted his son to be able to come over for family meals.  Cosolito did not  


believe this would be safe for Candace, who could be assaulted again, feel re-victimized  


or traumatized, and engage in more self-harming behaviors.  Cosolito therefore drafted  


an emergency petition to adjudicate Candace a child in need of aid.  Douglas and Emma  

stipulated that probable cause existed for temporary OCS custody pending adjudication.  

The superior court committed Candace to OCS's temporary custody and authorized  

                                                               -4-                                                         6946

----------------------- Page 5-----------------------

placement in a foster home in Bethel.  Candace continued to attend boarding school  

while in foster care.   


                    OCS referred Candace to a therapist. Candace told the therapist that she cut  


herself, and that she engaged in other activities she knew were dangerous such as riding  


four-wheelers  with  strangers  after  drinking  alcohol  and  smoking  marijuana.    The  


therapist diagnosed her with minor chronic depression, PTSD, sexual abuse, alcohol  

abuse, and cannabis abuse.  


                   In March 2013, Candace's OCS caseworker took her to the emergency  


room, fearing she had overdosed on antidepressants.  Following an evaluation, Candace  


was admitted to North Star Behavioral Health in Anchorage.  The doctors at North Star  


agreed with the diagnoses of Candace's therapist and also diagnosed her with reactive  

attachment disorder, oppositional defiant disorder, and probable ADHD.  

                    Candace's  behavior  worsened  while  she  was  at  North  Star.    She  acted  

aggressively toward the staff and threatened to harm herself as well.  The superior court  

held a placement review hearing in April 2013 and denied OCS's request to continue  

Candace's  placement  there.    OCS  then  moved  Candace  to  a  group  home  run  by  

Presbyterian Hospitality House in Palmer.  

          B.       Expert Testimony At The Adjudication Hearing  


                    The superior court held an adjudication hearing over the course of several  

days, from May to early July 2013, to determine whether Candace was a child in need  


of aid and whether removal from her family home continued to be justified.  OCS called  

Barbara  Cosolito  to  provide  the  expert  testimony  ICWA  requires  to  show  "that  the  


continued custody of the child by the parent . . . is likely to result in serious emotional  

                                                             -5-                                                       6946

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or physical damage to the child."   As we will explain further, the Bureau of Indian  


Affairs (BIA) has defined the ICWA phrase "qualified expert witnesses" to include lay  

persons with "substantial experience and knowledge regarding relevant Indian social and  


cultural standards" and "professional persons" who have "substantial education in the  


area of [their] specialty."   It was against these BIA standards that the superior court  

judged the qualifications of OCS's proposed experts.  

                     Cosolito testified that she was the initial assessment supervisor at OCS's  


Bethel  office,  a  position  she  had  held  for  over  two  years.                             She  testified  that  she  

supervised eight people; that the Bethel office processed "anywhere from 60 to 104  

 [cases] in a month"; that a "[h]undred percent" of those cases involved Alaska Native  

families; and that it was her responsibility to provide "supervisory support over those  


people  .  .  .  [f]or  all  of  those  cases."    Her  responsibilities  included  not  only  daily  

supervision  of  the  other  OCS  employees  but  also  "staff[ing]  cases  with  them  when  


they're out in the village to help them either identify safety threats or if there are no  

safety threats to identify the safety threshold and whether or not we need a . . . safety  


plan."  As supervisor she made the final decisions about whether OCS should assume  


custody of a child.  Another part of her duties was to provide expert testimony - she  

testified that she had been qualified as an expert witness in the area of child welfare  

          3         25 U.S.C.  1912(e) (2012) ("No foster care placement may be ordered in       

such proceeding in the absence of a determination, supported by clear and convincing  

evidence, 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.").  



                    Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 504 (Alaska  

2009) (citing Guidelines for State Courts; Indian Custody Proceedings, 44 Fed. Reg.  

67,584, 67,593 (Nov. 26, 1979)).  

                                                                -6-                                                        6946

----------------------- Page 7-----------------------

"numerous times" and had never been offered and found not  qualified.   Finally, she  


testified that as supervisor she participated in "collaboration efforts between the tribes  

and OCS."  


                   As for her prior experience, Cosolito testified that before becoming an OCS  

supervisor she spent a year as "an initial assessment line worker" in the same office,  


where she "received the reports of harm . . . and . . . went out and assessed the situations"  


for safety.  Before that she served for four years as an "administrator/social worker for  


a charter school in [the] rural community of Camp Verde, Arizona."  She "[o]versaw the  


charter  school";  "worked  with  the  Yavapai-Apache  Tribe  in  correlating  grants  and  

services  for  their  children  in  our  school";  worked  with  students  "in  developing  


[individual education plans and] behavioral plans[;] work[ed] with families that were  

either  homeless  or  needing  assistance";  and  collaborated  with  "the  local  behavioral  

health clinic" on assisting children with behavioral issues.  

                   As  for  her  education,  Cosolito  testified  that  she  had  both  a  bachelor's  

degree and a master's degree in social work.  Each level of education required a 500- 


hour internship:  for one she worked for Arizona Child Protective Services, "both in the  


initial assessment unit and also in the family services unit"; for the other she worked for  

the same agency in "kinship care," which she defined as "family members raising other  

family members' children."  She testified that she received "original skills" training when  

she was first hired by OCS, including training in racism and ICWA, and received further  


supervisory training when she advanced in the agency.  She testified that to maintain her  


license she receives 45 hours of continuing education every two years in subjects that in  

the  past  have  included  substance  abuse,  child  abuse,  and  the  "impact  of  adverse  

childhood experiences."  In response to questions from the judge, Cosolito disclaimed  

a special expertise in Alaska Native cultural standards but said she considered herself  

                                                             -7-                                                      6946

----------------------- Page 8-----------------------


a "lay expert" in the area of "delivery of child and family services . . . to Indians" based  


on both her work in Arizona and her three years with OCS in Bethel. She acknowledged  

that  whether  her  experience  was  "substantial"  for  purposes  of  the  BIA  standards  


depended on one's point of view, but she also testified that there were only a few OCS  


workers who had been in the region longer than she had, as the OCS "turnover rate is  

pretty high" statewide and "most workers are one to two years in this region."  

                    Douglas and Emma objected to Cosolito's qualification as an expert on  


grounds that she lacked substantial experience and knowledge regarding the relevant  


tribal customs and social standards (thus failing to meet one part of the BIA guidelines)  

and  that  she  was  not  a  "professional"  (thus  failing  to  meet  another  part  of  the  BIA  


guidelines).  The superior court agreed with these objections.  It found that Cosolito was  


not qualified because she lacked "credentials which support the expression of opinions  


specific to the Native cultural issues in dispute," and that, as a social worker, she was not  

a "professional" for purposes of ICWA.   

                    OCS then gave notice of another proposed expert, Nancy Kirchoff, who  

was Candace's clinical social worker at Presbyterian Hospitality House and who, like  

Cosolito,  was  expected  to  testify  in  support  of  a  decision  "that  it  is  contrary  to  the  

welfare of the child to return her to the home at this time."  Kirchoff became a Licensed  


Clinical Social Worker in Alaska in 1999 and testified that she had been working in that  


capacity at Presbyterian for about two years.  She worked with children who had been  

diagnosed as seriously emotionally disturbed, which meant conducting client interviews,  

collecting collateral information, and completing behavioral health assessments, then  


developing  treatment  plans  based  on  those  assessments.                            She  testified  that  she  also  

conducts  individual  and  group  psychotherapy  sessions;  her  treatment  of  Candace  


involved both these types of therapy.  Kirchoff testified that she also maintains a private  

                                                              -8-                                                        6946

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practice performing child custody investigations and adoption home-studies.  Her work  


history also included, as most relevant here, four years as a mental health clinician with  


the Alaska Department of Corrections, seven years as a social worker with OCS, a year  

with a juvenile assessment center in Wasilla as a "[c]linician providing psycho-social  


assessments for school-aged children," a year as a clinician at Southcentral Counseling  

in Anchorage providing school-based services to emotionally disturbed children, and  


four years as a public school social worker in Minnesota.   Like Cosolito, Kirchoff had  

both bachelor's and master's degrees in social work;  her master's studies involved  


working with children with "social-emotional disorders." Kirchoff testified that she took  


continuing education courses in a variety of topics, including substance abuse and drug- 


endangered children.  She testified that she had been qualified as an expert in prior court  


proceedings 10 or 15 times while employed by OCS, in categories that included "ICWA,  

child protection, and children's mental health," and particularly whether under the ICWA  

standards it was "contrary to the welfare of the child to return home."  


                     Douglas and Emma again objected that Kirchoff was not qualified to give  


the expert testimony required by ICWA, and the court again agreed with their objections,  


finding that Kirchoff lacked "the necessary expertise or knowledge of the Indian culture  


that's  at  issue  here."            The  court  did  qualify  Kirchoff  as  an  expert  with  regard  to  


Candace's treatment plan and did allow her to testify about the specifics of that plan, but  


it refused to consider her testimony as supporting a finding of likely harm under ICWA.  

          C.         The Adjudication Hearing  


                    Ultimately, the superior court found that Candace was a child in need of aid  


due to sexual abuse by her adoptive brother, including a sexual assault in the home  

during  the  most  recent  winter  break.    However,  in  the  absence  of  qualified  expert  

testimony, the superior court held that OCS failed to meet its burden of showing that  

                                                                -9-                                                          6946

----------------------- Page 10-----------------------


Candace was likely to suffer serious emotional or physical harm if she were returned to  

her parents' custody.  The court concluded, therefore, that Candace should be returned  


home, albeit under OCS supervision "in order that appropriate safeguards are developed  

and implemented to ensure [Candace's] safety from [her adoptive brother]."   


                             OCS filed a motion to stay and a petition for review, both of which we  


granted.  The petition asks that we review the superior court's conclusion that OCS's two  


proposed witnesses, Cosolito and Kirchoff, were not "qualified experts" for purposes of  

ICWA, 25 U.S.C.  1912(e).5  


                             When reviewing a superior court's decision to exclude proposed expert  


testimony under ICWA, we apply two different standards of review.  First, "whether the  

expert  testimony  requirement  of  ICWA  is  satisfied  is  a  pure  question  of  law  to  be  

              5              The petition also asks us to review whether the superior court erred when                                                             

it apparently relied on arguments of counsel rather than evidence to find that Douglas   

and Emma had undergone "a sea change in their views" about whether their son actually                                                                             

posed a danger to Candace, something they had earlier denied. We need not address this                                                                    

issue, however, because our disposition of the expert witness issue would require a  

remand in any event.  

                                                                                         -10-                                                                                  6946

----------------------- Page 11-----------------------


reviewed de novo."   Second, "[a] trial court's decision to admit expert testimony is  

reviewed for an abuse of discretion."7  



                   We conclude that the superior court's refusal to qualify OCS's proposed  

expert witnesses was based on two legal errors:  first, overlooking controlling law that  

expertise in Alaska Native culture is not required when the issues  presented do not  

implicate  cultural  biases;  and  second,  failing  to  recognize  that  well-educated  and  


experienced social workers are "professional persons."   

          6        Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's  

Servs., 254 P.3d 1095, 1104 (Alaska 2011); see also Thea G. v. State, Dep't of Health  

& Soc. Servs., Office of Children's Servs., 291 P.3d 957, 962 (Alaska 2013) ("Whether  


expert testimony presented at trial satisfies the requirements of ICWA is a legal question  

that we review de novo."); Lucy J. v. State, Dep't of Health & Soc. Servs., Office of  


Children's Servs., 244 P.3d 1099, 1111 (Alaska 2010); L.G. v. State, Dep't of Health &  

Soc.  Servs.,  Office  of  Children's  Servs.,  14  P.3d  946,  950  (Alaska  2000)  ("[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.").  

          7        Thea G., 291 P.3d at 962.  

          8        We  reject  the  respondents'  arguments  that  the  petition  for  review  was  

untimely because it was not filed within ten days of the challenged evidentiary rulings  


but rather within ten days of the adjudication order.  The adjudication order expressly  

relied on OCS's failure to present the testimony of witnesses who satisfied the BIA  


guidelines for qualified experts.  An adjudication order based on erroneous evidentiary  


rulings is a proper subject of discretionary review. We also reject Emma's argument that  


OCS  waived  its  challenge  with  regard  to  Kirchoff  because  it  proceeded  with  her  

testimony, as limited by the court, rather than attempting to elicit a better foundation for  


her opinions or requesting a stay and continuance.  The transcript clearly shows OCS's  


position and the superior court's rejection of it; there is no evidence that OCS intended  


to abandon the issue by proceeding with Kirchoff's testimony.   

                                                            -11-                                                      6946

----------------------- Page 12-----------------------


            A.	        ICWA And Alaska's CINA Rules Require That A Decision To Remove  


                       An Indian Child From Her Home Be Supported By Qualified Expert  


                       ICWA reflects a national purpose "to protect the best interests of Indian  


children and to promote the stability and security of Indian tribes and families"; the act  


seeks  to  accomplish  this  purpose  by  imposing  "minimum  Federal  standards  for  the  


removal of Indian children from their families and the placement of such children in  

                                              9   Accordingly, ICWA provides that any decision to place an  


foster or adoptive homes."  

Indian child with someone other than the child's parent or Indian custodian must be  


"supported by clear and convincing evidence, 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."10  

                       These requirements of federal law are reflected in Alaska's child-in-need- 


of-aid rules. Under CINA Rule 10(c)(3), the court may approve the removal of an Indian  


child from her home only if either "(A) . . . removal . . . is necessary to prevent imminent  


physical damage or harm to the child; or (B) . . . there is clear and convincing evidence,  


including testimony of qualified expert witnesses, that the child is likely to suffer serious  


emotional or physical damage if left in the custody of the parent or Indian custodian."  

                       The critical phrase "qualified expert witnesses" is defined neither in ICWA  


nor  in  Alaska's  CINA  rules.    But  as  noted  above,  the  federal  BIA  has  provided  


guidelines  describing  the  witnesses  who  are  "most  likely"  to  meet  ICWA's  expert  


            9          Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs., Office of                                       

Children's Servs., 303 P.3d 431, 441 (Alaska 2013) (quoting 25 U.S.C.  1902 (2006)).       

            10         25 U.S.C.  1912(e) (2012) (emphasis added).  

                                                                        -12-                                                                       6946  

----------------------- Page 13-----------------------

                    (1)  a  member  of  the  child's  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.  


We have held that the required expert testimony may be aggregated with other expert  

testimony or with the testimony of lay witnesses to support the conclusion that a parent's  

continued custody of the child is likely to cause the child serious harm.12  


          B.	       The Superior Court Erred In Its Interpretation Of ICWA's Expert  

                    Witness Requirements.  

                    The superior court found that Cosolito and Kirchoff failed to satisfy either  


of two arguably relevant BIA guidelines.  First, the superior court found that they failed  


to satisfy the second BIA guideline - as lay experts "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."    But  we  have  


repeatedly held that expertise in Alaska Native culture is not necessarily required under  

ICWA.  "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  

          11       Marcia V. v. State, Office of Children's Servs.                     , 201 P.3d 496, 504 (Alaska  

2009) (alteration in original, emphasis removed) (citing Guidelines for State Courts;  

Indian  Child  Custody  Proceedings,  44  Fed.  Reg.  67,584,  67,593  (1979))  (internal  

quotation marks omitted).  

          12        Thea G., 291 P.3d at 964; L.G. v. State, Dep't of Health & Soc. Servs. , 14  

P.3d 946, 950 (Alaska 2000).  

                                                             -13-	                                                      6946

----------------------- Page 14-----------------------



neglect.' "         Thus, "[w]hen 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  [ICWA]    1912(f)  need  not  include  


familiarity with Native culture."                    

                    Even assuming that Cosolito and Kirchoff lacked expertise in Alaska Native  

culture, that would not disqualify them as experts under the circumstances of this case,  

because whether a child is likely to be harmed by exposure to sexual abuse in the home  


does not depend on particular cultural mores.  In L.G. we held that evidence of the  


mother's  "addictive  and  habitual  use  of  alcohol  and  cocaine,"  causing  the  physical  


neglect of her children, showed that the children were "at a clear risk of future harm if  


returned to [the mother's] custody," a finding that "did not require testimony from an  


expert  in  Native  culture."                  In  Marcia  V. ,  where  the  termination  order  "relied  on  

evidence of Marcia's addictions, violent behavior, incarceration, inability to provide a  


stable home, neglect, exposure of [the child] to sex offenders, domestic violence in the  


home, and abandonment," we observed that "[n]othing in the trial record or in Marcia's  


appeal  suggests  that  cultural  bias  might  have  been  at  issue,  or  that  considering  the  

          13        Marcia V. , 201 P.3d at 504 (quoting L.G. , 14 P.3d at 952-53).  

          14         Thea G., 291 P.3d at 964 (quoting Marcia V. , 201 P.3d at 503) (internal  

quotation marks omitted).  See also Christina J. v. State, Dep't of Health & Soc. Servs.,  


Office of Children's Servs., 254 P.3d 1095, 1111 (Alaska 2011); Lucy J. v. State, Dep't  


of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1118 (Alaska 2010);  


L.G. , 14 P.3d at 952-953. Although these cases involve termination proceedings, we see  


no reason why a different standard would apply to a case like this one involving an  


adjudication that a child is a child in need of aid.  

          15        L.G. , 14 P.3d at 953-54.  

                                                               -14-                                                         6946

----------------------- Page 15-----------------------

appropriate tribal standards of child care would affect the disposition of the case[; t]hus,  


the [expert witness's] lack of familiarity with Native culture cannot be considered a  


                                                                                                       The superior court  

deficiency in her qualifications to testify under ICWA  1912(f)."  


overlooked the significance of these decisions when it disqualified Cosolito and Kirchoff  

because of their purported lack of expertise in Alaska Native culture.  


                    The superior court also erred when it credited Douglas's argument that  


social workers are not "professionals" under the third BIA guideline ("[a] professional  

person  having  substantial  education  in  the  area  of  his  or  her  specialty"),  noting  its  

"agree[ment] with the characterization of [the 'professional'] class of experts put forward  


by Father." Douglas's argument relies on the definition of "professional" in Black's Law  


Dictionary :    "A  person  who  belongs  to  a  learned  profession  or  whose  occupation  


                                                                               Douglas also notes, again quoting  

requires a high level of training and proficiency." 

Black's ,  that  the  three  traditional  "learned  professions  were  theology,  law  and  

                 18  But social work, like the traditional "learned professions," "requires a high  


level  of  training  and  proficiency,"  and  it  is  well  recognized  as  a  profession  today.  


                    Social  work  in  Alaska  has  all  the  earmarks  of  a  profession.    The  law  



requires a state licence for the practice of social work.                         A licensed clinical social worker  


must have a master's or doctoral degree in social work, must have completed at least two  

years of continuous full-time employment in post-graduate clinical social work, must  

          16        Marcia V. , 201 P.3d at 503.

       BLACK 'S LAW DICTIONARY  1329  (9th ed. 2009).  

          18        Id.

       See City of Kenai v. Friends of Recreation Ctr., Inc.                           , 129 P.3d 452, 459  

(Alaska 2006) (noting that professional occupations often have licensing requirements).  

                                                              -15-                                                         6946

----------------------- Page 16-----------------------


have good moral character and be "in good professional standing," must provide "three  


professional references" acceptable to the licensing board, and must pass the licensing  

                    20                                                                      21 


examination.            Social workers are subject to a code of ethics,                         including confidentiality  

                     22  and to maintain their licenses must take continuing education courses,  



including "professional ethics."                      Social workers who do not conform to "minimum  


professional  standards"  are  subject  to  discipline.                            Alaska  statutes  and  rules  reflect  

                                                                                                                 25  And in our  


throughout a common understanding that social workers are professionals. 

          20        AS 08.95.110(a).  

          21         12 Alaska Administrative Code (AAC) 18.150 (2014) ("A social worker  

licensed in this state shall adhere to the code of ethics adopted by the Board of Social  

Work Examiners under this section.").  

          22        AS 08.95.900(a) ("A licensed social worker . . . may not reveal to another     

person a communication made to the licensee by a client about a matter concerning     

which the client has employed the licensee in a professional capacity.").  

          23        AS 08.95.040(a) ("Continuing education requirements that must be satisfied  

before the first biennial renewal of a person's license must include a minimum of 45  

hours of education or training with a minimum of three hours in professional ethics, six  


hours in substance abuse, and six hours in cross-cultural education that includes issues  

relating  to  Alaska Natives.  After the first biennial renewal of a license, continuing  


education requirements for that person's license renewal must include three hours in  


professional  ethics,  six  hours  in  substance  abuse,  and  six  hours  in  cross-cultural  

education, three hours of which must include issues relating to Alaska Natives.").  

          24        AS 08.95.050(8).  

          25        See,  e.g.,  AS  47.30.915(11)  (defining  "mental  health  professional"  as  

including  "a  clinical  social  worker"  licensed  in  Alaska);  AS  08.95.120(a)(2)-(13)  

(describing requirements for licensing by credentials, including "professional references"  

and      clearance         by      any      governing           "professional           social      work        association");  

AS 08.95.900(a) (describing a licensed social worker's confidentiality obligations where  

a  client  "has  employed  the  licensee  in  a  professional  capacity");  Alaska  R.  Prof.  


                                                               -16-                                                          6946

----------------------- Page 17-----------------------


caselaw we have strongly implied that social workers may be qualified experts under the  

third BIA guideline as long as they have "expertise beyond the normal social worker  




                    Applying the correct meaning of the phrase "professional person having  


substantial education in the area of his or her specialty," we hold  that Cosolito and  


Kirchoff should have been qualified as experts under the third BIA guideline.  As social  


workers, both were "professional persons."  Both had "substantial education in the area  


of [her] specialty":  master's degrees in social work, internships in relevant subject areas  

as required for their degrees, agency training, and continuing professional education.  


The experience of both witnesses further demonstrated the required "expertise beyond  

the  normal  social  worker  qualifications."    Cosolito  described  her  work  as  an  OCS  


supervisor overseeing hundreds of cases, identifying safety threats, and having ultimate  


responsibility for custody decisions; as an OCS line worker assessing reports of harm;  


Conduct 2.1 cmt. 4 ("Matters that go beyond strictly legal questions may also be in the  


domain  of  another  profession,"  such  as  "psychiatry,  clinical  psychology  or  social  


          26        Marcia  V.  v.  State,  Office  of  Children's  Servs. ,  201  P.3d  496,  504-05  

(Alaska  2009)  (quoting  H.R.  Rep.  No.  95-1386,  at  22  (1978),  reprinted  in  1978  


U.S.C.C.A.N.  7530, 7545) (internal quotation marks omitted) (holding that an OCS  

supervisor who was not qualified under the first two subparts of the BIA guidelines  


"would have had to qualify by virtue of substantial education in the area of her specialty"  


under the "professional" subpart); see David S. v. State, Dep't of Health & Soc. Servs.,  

Office of Children's Servs., 270 P.3d 767, 782 n.48 (Alaska 2012) (noting in dictum that  


"it seems most unlikely that [an OCS supervisor] would not qualify" as an expert "given  


[her] high degree of experience and previous qualification as an expert"); see also In re  


M.J.J., J.P.L.& J.P.G. v. State , 69 P.3d 1226, 1228 (Okla. Civ. App. 2003) ("In the  


absence of implication of cultural bias, the expert witness may be a social worker who  


possesses expertise beyond the normal social worker qualifications.").  

                                                               -17-                                                        6946

----------------------- Page 18-----------------------

and as a school administrator and social worker in Arizona working with the diverse  


behavioral  and  education  needs  of  students  and  their  families.    Her  testimony  


demonstrated regular and in-depth exposure to the very types of family and behavioral  


issues that were central to Candace's case, including the possibility that Candace would  

be assaulted again, be re-traumatized, and engage in more self-destructive behavior.  

                    Kirchoff appeared even more amply qualified to testify about the risks of  


serious emotional or physical harm if Candace were returned to her home.  Kirchoff had  


a lengthy work history as a mental health clinician, working with children with emotional  

and behavioral problems in a variety of institutional and agency settings, as well as a  

private practice of custody investigations and adoption home-studies.  As Candace's own  

clinician,  treating  her  in  both  individual  and  group  therapy,  Kirchoff  was  uniquely  


qualified to testify  with authority about Candace's susceptibility to emotional harm.  

Though  the  superior  court  did  not  consider  Kirchoff's  testimony  in  support  of  the  

required findings under ICWA, the testimony she was allowed to give proved directly  

relevant to the issue:  she testified that Candace was at risk of reverting to dangerous  


substance-abuse behaviors if she were returned to her village, and that if she reverted to  


those behaviors she would make herself more vulnerable to harm by others.  Kirchoff  


was  also  concerned  that  despite  some  progress  in  developing  healthy  coping  skills,  


Candace was not yet "able to practice them without a lot of prompts" and was therefore  

still at risk of harming herself.   


                    The testimony  of both  these well-qualified  witnesses would  have  been  

highly relevant to the finding under ICWA  1912(e) that the superior court was obliged  


to make.  Although we reverse the court's exclusion of the testimony because of its  

misinterpretation of the governing standards, we observe that, under a correct application  

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of  the  law,  it  would  have  been  an  abuse  of  discretion  to  exclude  the  witnesses'  




                   We REVERSE the superior court's rulings on whether OCS's two proffered  


witnesses were qualified experts for purposes of 25 U.S.C.  1912(e).  We VACATE the  

portion of the July 26, 2013 adjudication order placing Candace with her parents and  

REMAND for further proceedings consistent with this opinion.  



                   Because of our disposition of this issue, we need not reach the parties' other  

arguments about the superior court's findings under 25 U.S.C.  1912(e).  

                                                         -19-                                                       6946  

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