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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sylvia L. v. State, Dept. of Health & Social Services, Office of Children's Services (2/20/2015) sp-6984
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SYLVIA L., )
) Supreme Court No. S-15586
Appellant, )
) Superior Court Nos. 3AN-12-00307/
v. ) 3AN-13-00100/00229 CN
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, OFFICE OF ) No. 6984 - February 20, 2015
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Gregory M. Heritage, Heritage Law Firm,
LLC, Anchorage, for Appellant. Jennifer A. Currie, Senior
Assistant Attorney General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A mother appeals the termination of her parental rights to three of her
children. She contends that the trial court erred in (1) finding that the children were
----------------------- Page 2-----------------------
children in need of aid because of the mother's mental illness, a statutory basis for
termination not alleged in the petition; (2) finding that the Office of Children's Services
(OCS) made the necessary efforts towards reunification; and (3) allowing two witnesses
to testify as experts. We affirm the trial court's order. We hold that (1) the trial court's
finding that the children were children in need of aid was supported by alternative
grounds that are not challenged on appeal; (2) its finding that OCS made the required
efforts to reunify the family was supported by the evidence; and (3) its acceptance of the
challenged expert testimony was not an abuse of discretion.
II. FACTS AND PROCEEDINGS
A. The Family And OCS Involvement
1 has had five children, three of whom, Daniel, Laura, and Julie, are
Sylvia
involved in this appeal. Julie, the youngest, is an "Indian child" as defined by the Indian
2
Child Welfare Act of 1978 (ICWA). Sylvia has a history of mental illness and drug
abuse. OCS's first contact with her, in 2002, concerned a child not involved in this
appeal; Sylvia was diagnosed at that time with dysthymia, major depressive disorder, and
attention deficit hyperactivity disorder (ADHD).
Daniel, the oldest of the three children, was born positive for cannabis in
2008. For his first few years he lived with Sylvia in the home of her grandmother, where
he was raised by various family members, including Sylvia herself. OCS's involvement
1 We use pseudonyms to protect the family's privacy.
2 See 25 U.S.C. § 1903(4) (2012). Julie's tribe is the Seldovia Village Tribe,
which intervened and supported OCS's position as to Julie.
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with Daniel was prompted by concerns that he was malnourished and that Sylvia could
not properly care for him because of her mental health and substance abuse issues.3
In March 2009 Good Samaritan Counseling Center's medical director, Dr.
Jan E. Kiele, assessed Sylvia and diagnosed her with depressive disorder not otherwise
specified and ADHD. Dr. Kiele found that Sylvia's prognosis at the time was good if
she followed through with medical treatment and individual psychotherapy.
When Laura was born a few months later, she tested positive for opiates. From
birth Laura was raised by another family and knows Sylvia as her "auntie," not her
biological mother.
In June 2010 Sylvia was assessed at Counseling Solutions of Alaska and
diagnosed with anxiety, depression, and ADHD. She followed through with a part of the
recommendations - medication management meetings - but not with the individual
counseling. In 2011 and 2012 she had several drug-related arrests and probation
violations.
Julie was born cocaine-positive in September 2012. OCS took custody of
her shortly after her birth and placed her in foster care as soon as she was discharged
from the hospital.
The primary case worker at OCS for Sylvia's family was Jessica Mulhern.
She testified that when she and Sylvia met after Julie's birth, Sylvia had difficulty
tracking a conversation, and Mulhern suspected she was under the influence of drugs,
although Sylvia denied it. Mulhern testified that she was unable to develop an in-home
safety plan for Sylvia because there were no identified participants for such a plan, but
she did develop a family contact plan for supervised visitation at the home of Julie's
foster family. She also offered Sylvia a bus pass, but Sylvia declined it and only visited
3 OCS eventually took custody of Daniel in March 2013.
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Julie "maybe once or twice." Mulhern testified that she had "only very minimal contact"
with Sylvia throughout the case.
Mulhern also made a number of referrals. One was to Dr. Cherry, a
psychiatrist who does neuropsychological evaluations, but Sylvia never returned to OCS
to sign the required referral form. Mulhern also referred Sylvia to parenting classes,
which Sylvia did not complete, and to ongoing urinalysis (UA) tests; she explained to
Sylvia that missed UA tests would be considered positive.
Sylvia did receive a psychiatric assessment at Good Samaritan Counseling
Center in November 2012, after having missed several appointments. She was diagnosed
with post-traumatic stress disorder, generalized anxiety disorder, and major depressive
disorder. OCS also referred her to Akeela Assessment Center for an integrated substance
abuse and mental health assessment, which was conducted by Dorothy Pickles in
December 2012. Sylvia sporadically attended medication management meetings at Good
Samaritan but was eventually discharged for non-attendance. OCS lost contact with her
entirely sometime in March 2013. Mulhern testified at trial that she tried to reach Sylvia
through her probation officer but Sylvia was listed as "abscond." In other attempts to
find her, Mulhern made unannounced visits to Sylvia's family home, called her attorney,
sent letters to her grandmother's address, left messages on her cell phone, checked with
a previous counseling service, and made regular checks of a prison database. In the
meantime, Mulhern arranged family contact for Daniel with his father and aunt,
approving supervised visits at the foster home. She developed a written case plan and
reviewed it with Daniel's father (though he refused to sign it). She made various
referrals for Daniel's father, but with little success.
Around the same time, OCS representative Deb LeFebvre responded to
calls about Laura's living situation, involving allegations of domestic abuse in the family
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with which Laura was living. Unable to locate Sylvia, LeFebvre filed a child in need of
aid petition for Laura, and OCS took custody of the child in June 2013.
In August 2013, OCS petitioned to terminate the parental rights of Sylvia
to the three children - Daniel, Laura, and Julie - and the rights of the children's
4
fathers. The petition alleged that Sylvia was not in a position to parent her children
because she had never engaged in her case plan in any real sense; had been out of contact
with OCS since March 2013; struggled with ongoing substance abuse and mental health
issues but was not addressing the issues through treatment; and lacked stable housing and
employment. The petition sought an order based upon clear and convincing evidence
that the children were children in need of aid because they had been subjected to
conditions or conduct described in a number of subsections of AS 47.10.011:
(1) (abandonment), (2) (incarceration), (3) (child left with a custodian unable to provide
adequate care), (8) (parental conduct resulting in mental injury or risk of mental injury
to the child), (9) (neglect), and (10) (substance abuse).
In February 2014 Sylvia was arrested and imprisoned for driving with a
revoked license, and Mulhern visited her twice at the jail. At trial Mulhern testified that
other than a single visit with Daniel a few weeks before, Sylvia had had no contact with
any of her children since "well before" OCS lost contact with her in early 2013.
B. The Termination Trial And The Trial Court's Decision
The termination trial was held in March 2014. Sylvia was still incarcerated
at the time; Daniel had just moved into the potential adoptive home of his paternal aunt;
Laura lived in a licensed foster home; and Julie remained with the foster family she had
been a part of since shortly after her birth.
4 At the time of trial, Daniel's father was on probation and living in
Anchorage, Laura's father's whereabouts were unknown, and Julie's father was
incarcerated in Anchorage. Only Daniel's father testified at the termination trial.
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----------------------- Page 6-----------------------
Julie's foster mother testified at trial. She testified that she was open to
contact from Sylvia but had not heard from her in over six months. She testified that the
other children in her home had bonded with Julie and that she hoped to adopt her.
OCS supervisor Jaime Muhr testified as an expert in child development,
safety threats, and mental health. She testified that, based on her review of the exhibits
and the testimony, she believed Sylvia had a serious substance abuse problem secondary
to her significant, untreated mental health issues, and that if left untreated Sylvia would
continue to lead a life that was chaotic and unsafe for her children. Muhr testified that
Sylvia's mental illness would not resolve itself and that she needed professional
assistance and a healthy support system to help with daily living. According to Muhr,
Sylvia's substance abuse affected her parenting because she was preoccupied with her
own need for drugs to the detriment of the needs of her children. Muhr concluded that
the risk of harm Sylvia posed to Julie - both physical and emotional - was extremely
high.
The trial court found Dorothy Pickles, the counselor who evaluated Sylvia
at Akeela, to be qualified as an expert in substance abuse and mental health. Sylvia's
attorney objected to Pickles's qualifications and also objected on grounds that OCS had
not given notice that Pickles would testify as an expert. OCS conceded that its decision
to present Pickles as an expert witness had been made at the last minute. The court
recognized the potential for prejudice but stated that "[t]he remedy for this, of course, is
not to exclude the testimony I've already heard, but . . . if you decide that . . . you wish
to have an expert testify [in response], let me know and we'll resolve that." Sylvia's
attorney proceeded to question Pickles about her assessment of Sylvia; he did not request
a continuance or the opportunity to present expert testimony that would respond to
Pickles's opinions.
-6- 6984
----------------------- Page 7-----------------------
Pickles testified that she conducted an integrated assessment of Sylvia's
mental health and substance abuse issues in December 2012. It was Pickles's opinion
that Sylvia was unlikely to curtail her substance abuse without professional intervention.
She recommended that Sylvia participate in an outpatient treatment program until she
could enter a residential program and that she engage in behavior therapy, develop a
sober support system with sober leisure time activities, participate in random UA testing,
and comply with all Department of Corrections and OCS requirements.
The trial court also heard testimony from police officers who had
encountered Sylvia or the children's fathers, from Sylvia's probation officers, her
grandmother, Daniel's father, and Sylvia herself. At the end of trial OCS asked the court
to find by clear and convincing evidence that all three children had been subjected to
conduct as described in AS 47.10.011 and were children in need of aid under subsections
(1), (2), (3), (6), (8), (9), (10), and (11). Sylvia's counsel pointed out that the petition did
not list subsection (6) (parent's conduct causes physical harm or risk of physical harm
to the child) or subsection (11) (parent's mental illness) as grounds for termination;
OCS's counsel responded that Sylvia had raised the issue of mental health throughout
trial and that the court could read the petition liberally to allege mental illness as a
separate ground for a Child In Need of Aid (CINA) finding.
The trial court found that all three children were children in need of aid
under the statutory subsections (1) (abandonment), (10) (substance abuse), and
(11) (parent's mental illness) and terminated Sylvia's parental rights. The court found
that OCS had made reasonable efforts to reunify Sylvia with Daniel and Laura and active
efforts to reunify Sylvia with Julie. Relying in part on expert testimony from Dr. Kiele,
Muhr, and Pickles, the court found beyond a reasonable doubt that Sylvia's mental
illness would likely not resolve without professional intervention, and that returning Julie
to Sylvia's custody would likely cause Julie serious emotional or physical harm. The
-7- 6984
----------------------- Page 8-----------------------
court found that terminating Sylvia's parental rights to all the children was in their best
interests because they were doing well in foster care and could achieve permanency once
they were freed for adoption. Sylvia appeals.
III. STANDARDS OF REVIEW
In a CINA case, "we review the trial court's factual findings for clear error
and its legal determinations de novo."5 We review for abuse of discretion the trial court's
6
determination that a witness may testify as an expert. The trial court has abused its
discretion when "the reasons for the exercise of discretion are clearly untenable and
unreasonable."7
IV. DISCUSSION
Before terminating parental rights under ICWA and the CINA statutes and
rules, a trial court must find by clear and convincing evidence that the child is in need
of aid because the child has been subjected to conduct or conditions described in
AS 47.10.011;8 that the parent has not timely remedied the conduct or conditions that
place the child at substantial risk of harm;9 and that OCS has made reasonable efforts
towards reunification or, in the case of an Indian child, active efforts to provide remedial
services and rehabilitative programs designed to prevent the breakup of the Indian
5 Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 322 P.3d 842, 849 (Alaska 2014) (quoting Chloe O. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 309 P.3d 850, 855 (Alaska 2013)) (internal
quotation marks omitted).
6 L.G. v. State, Dep't of Health & Soc. Servs. , 14 P.3d 946, 950 (Alaska
2000) (citing Jordan v. Jordan , 983 P.2d 1258, 1261 n.5 (Alaska 1999)).
7 Id. (citing Bailey v. Lenord , 625 P.2d 849, 854 (Alaska 1981)).
8 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
9 AS 47.10.088(a)(2)(A); CINA Rule 18(c)(1)(A)(i).
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----------------------- Page 9-----------------------
10
family. ICWA also requires that the court find, "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
11 Finally, in both ICWA and non-ICWA cases, the trial court must determine
the child."
by a preponderance of the evidence that "termination of parental rights is in the best
interests of the child."12
A. Any Error In Allowing OCS's Tardy Amendment Of Its Petition Is
Harmless In The Absence Of A Challenge To The Court's Alternative
Grounds For A CINA Finding.
The trial court found that Daniel, Laura, and Julie were children in need of
aid under AS 47.10.011(1) (abandonment), (10) (substance abuse), and (11) (parent's
mental illness). Sylvia argues that she was prejudiced when OCS added two grounds for
termination to the petition following the close of evidence, one of which - mental
illness - the court relied on. Sylvia contends that she had no opportunity to seek
discovery related to these allegations, to cross-examine witnesses about them, or to
13
prepare an appropriate argument. But Sylvia does not challenge the trial court's
findings that the children were in need of aid under subsections (1) and (10), which the
10 25 U.S.C. § 1912(d) (2012); AS 47.10.086(a); CINA Rule 18(c)(2).
11 25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
12 CINA Rule 18(c)(3); see also AS 47.10.088(c) (requiring consideration of
child's best interests).
13 Sylvia asserts that she would have pursued a different trial strategy had she
known that OCS intended to assert mental illness as a basis for termination, but she gives
no specifics. In fact, Sylvia's mental illness was a significant issue at trial, and her need
for well-directed treatment of it is the focus of her "active efforts" argument on this
appeal, as addressed later in this opinion.
-9- 6984
----------------------- Page 10-----------------------
14
petition did allege. Although the tardy amendment certainly had the potential to
prejudice Sylvia's case, under these circumstances any error in allowing it was
15
harmless.
B. The Trial Court Did Not Err When It Found That OCS Made
Reasonable Efforts To Reunify Sylvia With Daniel And Laura And
Active Efforts To Prevent The Breakup Of Julie's Indian Family.
Sylvia argues that OCS failed to make reasonable efforts to reunify her with
Daniel and Laura or - for ICWA purposes - active efforts to prevent the breakup of
Julie's Indian family. Sylvia claims that OCS failed to develop a case plan or provide
resources to effectively address her diagnosed mental illness and that beyond the initial
assessment there was neither a plan nor resources to assist her with getting treatment.
She maintains that it was only through her own efforts that she received any mental
health care at all but that her illness limited her ability to determine precisely what help
she needed or how to obtain it.
Before terminating parental rights to a non-Indian child, the trial court must
find by clear and convincing evidence that OCS made timely, reasonable efforts to
provide family support services designed to prevent out-of-home placement or enable
14 See, e.g., Sherman B. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 290 P.3d 421, 431 (Alaska 2012) ("Because we affirm the superior
court's finding of abandonment, we do not reach the State's alternative argument for
termination based on neglect.").
15 See Alderman v. Iditarod Props., Inc., 32 P.3d 373, 395-96 (Alaska 2001)
(holding that the superior court abused its discretion in allowing an amendment alleging
a new claim at the close of evidence, where the prejudice to the opposing parties due to
their inability to present evidence on the claim outweighed the hardship to the amending
party).
-10- 6984
----------------------- Page 11-----------------------
16
the child's safe return to the family home. Whether OCS made these reasonable efforts
17
is a mixed question of fact and law. By statute, OCS's duties include the duty to:
(1) identify family support services that will assist the parent in remedying her conduct;
(2) actively offer those services to the parent and refer the parent to them; and
18
(3) document the department's actions. The requirement that OCS offer reunification
services "is fulfilled by setting out the types of services that a parent should avail . . .
19
herself of in a manner that allows the parent to utilize the services." Reunification
efforts need not be perfect; they need only be reasonable under the circumstances,
depending on the parent's substance abuse history, willingness to participate in
20 21
treatment, the history of services provided by OCS, and the parent's level of
22
cooperation. The reasonableness of OCS's efforts may also depend on the parent's
16 AS 47.10.086(a); AS 47.10.088(a)(3).
17 Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 322 P.3d 842, 849 (Alaska 2014).
18 AS 47.10.086(a).
19
Audrey H. v. State, Office of Children's Servs. , 188 P.3d 668, 679 (Alaska
2008) (quoting Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 77 P.3d 715, 720 (Alaska 2003)) (internal quotation marks omitted).
20
Amy M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
320 P.3d 253, 259 (Alaska 2013).
21 Audrey H. , 188 P.3d at 679 n.35 ("[T]he determination of whether OCS
made reasonable efforts may involve consideration of all interactions between the parent
and OCS."); Erica A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 66 P.3d 1, 7 (Alaska 2003) ("[T]he reasonableness of the division's efforts . . .
must be viewed in light of the entire history of services.").
22 Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's
(continued...)
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----------------------- Page 12-----------------------
expressed interest in parenting, with OCS's responsibility lessening as the parent's
interest wanes.23
Before terminating parental rights to an Indian child, the trial court must
find by clear and convincing evidence that OCS made active, but unsuccessful, efforts
to provide remedial services and rehabilitative programs designed to prevent the breakup
24
of the Indian family. "OCS makes active efforts to reunite a family when it helps the
parents develop the resources necessary to satisfy their case plans, but its efforts are
passive when it requires the parents to perform these tasks on their own."25 In
determining whether OCS made active efforts, the trial court may consider all services
provided during the family's involvement with OCS; it need not focus on a distinct
26
Also, the trial court may properly consider all of OCS's efforts from
period of time.
27
the time it first became involved with the family until the termination trial. "[A]
parent's demonstrated lack of willingness to participate in treatment may be considered
22(...continued)
Servs., 310 P.3d 943, 953 (Alaska 2013).
23 Audrey H. , 188 P.3d at 679.
24 25 U.S.C. § 1912(d) (2012); CINA Rule 18(c)(2); see also Christopher C.
v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 303 P.3d 465, 476
(Alaska 2013).
25
Sandy B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
216 P.3d 1180, 1188 (Alaska 2009).
26 Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 175 P.3d 1263, 1268-69 (Alaska 2008).
27 Sandy B., 216 P.3d at 1189.
-12- 6984
----------------------- Page 13-----------------------
28
in determining whether the state has taken active efforts." Failed attempts to contact
the parent or obtain information from her may qualify as active efforts if the parent's
29
evasive or combative conduct "rendered provision of services practically impossible."
And "[i]f a parent has a long history of refusing treatment and continues to refuse
treatment, OCS is not required to keep up its active efforts once it is clear that these
30
efforts would be futile."
In this case, the trial court stated in its oral findings that OCS made active
efforts as to Julie and reasonable efforts as to all the children by referring Sylvia to
substance abuse assessments, mental health counseling, parenting classes, and domestic
violence counseling; and by providing transportation assistance, arranging family visits,
requesting random UA testing, developing case plans, and attempting to locate Sylvia
once OCS lost contact. The trial court added more history in its written findings: (1)
after taking custody of Sylvia's first child in 2002, OCS referred her to parenting classes
at the Alaska Women's Resource Center and to a psychological evaluation; (2) in 2008
OCS referred her to UA testing to demonstrate her sobriety; (3) in 2009 OCS referred
her to a psychological assessment, arranged a substance abuse assessment, offered her
transportation for getting to and from these services, referred her to mental health
28 E.A. v. State, Div. of Family & Youth Servs. , 46 P.3d 986, 991 (Alaska
2002) (quoting N.A. v. State, Div. Of Family & Youth Servs. , 19 P.3d 597, 603 (Alaska
2001)) (internal quotation marks omitted).
29 Id. at 990.
30 Wilson W. v. State, Office of Children's Servs., 185 P.3d 94, 101 (Alaska
2008); see also Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs ., 204 P.3d 1013, 1021 (Alaska 2009) ("Where services have been provided and a
parent has demonstrated a lack of willingness to participate or take any steps to improve,
this court has excused minor failures by the state and rejected arguments that the state
could possibly have done more.").
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----------------------- Page 14-----------------------
counseling, set up case plan meetings, referred her to random UA testing, referred her
to domestic violence counseling services, and arranged for family contact; and (4) when
Sylvia fell out of touch with OCS, her caseworker made numerous and varied attempts
to find her. Having finally located Sylvia, her caseworker discussed the case plan with
her and arranged for visitation with all three children.
We observe that there is little evidence of OCS efforts in late 2012 to help
Sylvia follow through with the specific treatment options that Pickles recommended. But
Sylvia disappeared just a few months after Pickles's assessment and could not be located
until she was arrested in late 2013. And OCS provided ample evidence that its social
workers had attempted for many years to help Sylvia develop the necessary skills to
parent her children and get treatment for her mental health and substance abuse issues,
and that her recovery was stymied by her own evasiveness and apparent lack of interest.
In the context of OCS's history with Sylvia, we must affirm the trial court's finding that
OCS made the required efforts to reunify the children with their mother and to prevent
the breakup of the Indian family.
C. The Trial Court Did Not Abuse Its Discretion When It Allowed OCS's
Witnesses To Testify As Experts.
Before terminating parental rights to an Indian child, the trial court must
find "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
31 Support for this finding may come
serious emotional or physical damage to the child."
from the testimony of one or more expert witnesses or from aggregating the testimony
of lay and expert witnesses.32
31 25 U.S.C. § 1912(f) (2012); CINA Rule 18(c)(4).
32 L.G. v. State, Dep't of Health & Soc. Servs. , 14 P.3d 946, 950 (Alaska
(continued...)
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----------------------- Page 15-----------------------
Sylvia argues first that the trial court erred in allowing OCS to call Dorothy
Pickles as an expert witness when it had failed to identify her as an expert before trial.
Sylvia asserts that she suffered prejudice; she contends that had she known Pickles
would be testifying as an expert, she would have requested additional discovery about
her qualifications, been able to mount a more effective cross-examination, and may have
obtained her own expert to assist in her preparation.
OCS did identify Pickles as a trial witness, just not as an expert. CINA
Rule 8(d)(2) provides that for an expert like Pickles who "has had involvement with the
family and" who "has not been retained solely for the purpose of providing an expert
opinion," the party who intends to call her must disclose her identity and "provide any
existing reports or written statements of these experts." OCS asserts that it did provide
Sylvia with Pickles's existing reports and that Sylvia suffered no prejudice from the lack
of a formal expert designation. Regardless of whether OCS's expert notice was
33
deficient, we see no abuse of discretion in the trial court's resolution of the issue.
Sylvia had the opportunity to challenge Pickles's qualifications and did so extensively
on cross-examination; more importantly, Sylvia did not take up the trial court's
suggestion that she request a rebuttal expert if she thought she needed one.
Sylvia also argues that the opinion of another ICWA-qualified expert -
OCS's own employee, Muhr - was necessarily biased because of her employment.
32(...continued)
2000).
33 See D.M. v. State, Div. of Family & Youth Servs. , 995 P.2d 205, 210-12
(Alaska 2000) (noting that although the court did not condone the timing of the State's
actions, there was no due process violation where the parent failed to show prejudice
from the State's failure to give notice that it would request that CINA findings be made
under a clear and convincing standard rather than a preponderance of the evidence
standard).
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----------------------- Page 16-----------------------
Sylvia asserts that in light of the significance of a parent's rights and the nature of OCS's
role, expert testimony by OCS employees should be viewed with skepticism, and OCS
should bear some burden to demonstrate that its employee has formed an expert opinion
independent of the position of the agency. Sylvia emphasizes that Muhr's testimony was
based primarily on her review of the files and other information OCS provided her for
litigation purposes, and that she never personally met or interviewed Sylvia or the
children.
But regardless of where Muhr got her information, her testimony was
34
"sufficiently grounded in the facts and issues of the case" to be admissible. Her
testimony, based on OCS's records, took into account Sylvia's history of trauma as a
child and an adult, her substance abuse, her underlying untreated mental health issues,
the likelihood that her mental health issues would not resolve without professional
intervention, the number of years she had been dealing with substance abuse, and the
length of time Julie had been in OCS custody. Nothing precludes the trial court from
accepting such testimony from an OCS employee, so long as a sufficient foundation has
been laid regarding the expert's education, experience, employment history, and
35
training. As for Sylvia's fundamental claim that an OCS employee cannot testify
34 See Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 507
(Alaska 2009) (quoting J.A. v. State, Div. of Family & Youth Servs. , 50 P.3d 395, 400
(Alaska 2002)) (internal quotation marks omitted) (holding that the trial court may rely
on the testimony of an expert, even if the expert did not interview the mother, daughter,
or non-OCS service providers).
35
See id. at 504-05; In re Candace A ., 332 P.3d 578, 585-86 (Alaska 2014)
(reversing superior court decision that OCS supervisor did not qualify as an ICWA
expert); 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
(continued...)
-16- 6984
----------------------- Page 17-----------------------
without bias, it is well settled that an allegation of bias goes to testimony's weight, not
36
its admissibility. Sylvia's arguments must therefore be rejected.
V. CONCLUSION
For the reasons set forth above, we AFFIRM the decision of the trial court.
35(...continued)
experience and previous qualification as an expert"); Lucy J. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1119 (Alaska 2010) (upholding
termination based in part on OCS supervisor's testimony as ICWA expert).
36
DiCarlo v. Keller Ladders, Inc. , 211 F.3d 465, 468 (8th Cir. 2000) (quoting
4 W
EINSTEIN 'S FEDERAL EVIDENCE § 702.06[8] at 702-59 (Joseph M. McLaughlin ed.,
2d ed. 2000) for the proposition that "[a]n expert witness's bias goes to the weight, not
the admissibility of the testimony, and should be brought out on cross-examination");
see also Mitchell v. State, 813 N.E.2d 422, 431 (Ind. App. 2004) ("Rule 702(a) does not
require that the [expert] witness be unbiased."); Khan v. State Dep't of Health ,
794 N.Y.S.2d 145, 147 (App. Div. 2005) ("The expert's alleged bias goes to the weight
of his testimony, not its admissibility.").
-17- 6984
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