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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 April S., a Minor (7/24/2020) sp-7469
Notice: This opinion is subject to correction before publication in the P ACIFIC 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
In the Matter of )
) Supreme Court No. S-17544
APRIL S., a Minor. )
) Superior Court No. 3AN-18-00394 CN
)
) O P I N I O N
)
) No. 7469 - July 24, 2020
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Yvonne Lamoureux, Judge.
Appearances: J. Adam Bartlett, Anchorage, for April S.
Laura Fox, Senior Assistant Attorney General, Anchorage,
and Kevin G. Clarkson, Attorney General, Juneau, for State
of Alaska.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
STOWERS, Justice.
WINFREE, Justice, with whom CARNEY, Justice, joins, concurring.
I. INTRODUCTION
An Alaska Native teenage minor affiliated with the Native Village of
Kotzebue (Tribe) was taken into custody by the Office of Children's Services (OCS) and
placed at a residential treatment facility in Utah. She requested a placement review
hearing after being injured by a facility staff member. At the time of the hearing, the
minor's mother wanted to regain custody. At the hearing the superior court had to make
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1
removal findings under the Indian Child Welfare Act (ICWA) as well as findings
2
authorizing continued placement in a residential treatment facility under Alaska law.
ICWA requires testimony from a qualified expert witness for the removal of an Indian
child. At the hearing, the minor's Utah therapist testified as a mental health professional.
The minor, as well as her parents and the Tribe, objected to the witness being qualified
as an ICWA expert, but the superior court allowed it. The minor argues that the superior
court erred in determining that the witness was qualified as an expert for the purposes
of ICWA. Because the superior court correctly determined that knowledge of the Indian
child's tribe was unnecessary in this situation when it relied on the expert's testimony
for its ICWA findings, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
April S. is Alaska Native and was 17 years old at the time of this appeal.3
She arrived at Covenant House, an emergency youth shelter, on August 8, 2018.
Covenant House sent April to OCS the following day; she was not allowed to stay at
Covenant House for more than one night "because of her recent out of control behavior
at [the] facility." When April arrived at OCS, a caseworker contacted April's mother,
Jessica S., who reportedly stated "she 'can't handle [April] anymore' and she wants
[OCS] to 'take her' " because of April's "outbursts, general attitude and hostility, and
unwillingness to follow rules in the home or get medication and counseling." She
explained that April was "engaging in substance use and acting out with household
members in violent ways." April allegedly had engaged in such behaviors as "running
1 See 25 U.S.C. § 1912(e) (2018).
2
See AS 47.10.087(b).
3
We use pseudonyms to protect the family's privacy.
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away";"using methamphetamine,alcohol,[and]marijuana";"being sexually trafficked";
and "assaulting others." April was reported to have had a number of serious mental
health disorders, including past diagnoses for bipolar disorder and post-traumatic stress
disorder. At the time she was taken into OCS custody, April was reportedly
"experiencing mental and physical health problems, including psychotic paranoia
episodes . . . [and] urinating on herself daily."
OCS believed that April was a child in need of aid because she "[did] not
have a parent ensuring her medical and mental health needs are met, nor [was] anyone
4 OCS placed April
willing or able to provide her shelter or meet her other basic needs."
in an Alaska Native foster home and obtained temporary custody. April ran away from
the foster home, and when she returned the next day OCS brought her for a drug test.
April tested positive for methamphetamine and was held at the Alaska Native Medical
Center.
April was admitted to Alaska Psychiatric Institute (API) in late August.
She stayed at API through late October, at which point she was transferred to a secure
residential treatment facility in Utah called Provo Canyon. The court then held hearings
for continued placement in a secure residential treatment facility every 90 days pursuant
to AS 47.10.087 (.087 hearing).5
In the spring of 2019 April's arm was injured at Provo Canyon. April's
arm had previously been broken in a restraint by a staff member at McLaughlin Youth
Center. As a result of that injury, she had plates and screws placed in her arm. After a
4 OCS also contacted April's father, who similarly indicated he did not want
to care for April.
5 AS 47.10.087(a) allows the court to authorize OCS "to place a child who
is in the custody of [OCS] . . . in a secure residential psychiatric treatment center."
AS 47.10.087(b) provides that "[the] court shall review a placement made under this
section at least once every 90 days."
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restraint by a Provo Canyon staff member on April 30, April complained of left armpain.
She had a CT scan, which indicated that some of the hardware in her arm from the
previous injury was "loosening or fail[ing]."
After this incident April filed a motion for a placement reviewhearing. She
explained the injury, stating "that a male staff member at Provo Canyon bent her arm
while putting her in manual restraints and something in her shoulder tore." She said that
the "staff member still has access to her at the program" and reported that "she does not
feel safe." She requested that the court review her placement at the next .087 hearing,
scheduled for May 20.
B. Proceedings
The superior court initially held a combined .087 hearing and placement
review hearing on May 20. The court started to hear testimony from Jennifer Oxford,
a counselor at Provo Canyon who was qualified as a mental health professional by the
court. But the hearing was continued until a later date because April had not received
certain documents in discovery. The judge assigned to April's case indicated that she
would be out of town the following week but would find another judge to do the hearing.
The hearing was continued on May 30 with a new judge. At this point,
Jessica wanted April returned to her. Jessica had told her attorney the previous day that
"she just wants her daughter home." Jessica stated that April was "ready to come and
move forward with her life and not stay in the system any longer" and that the placement
was "not really helping her at all." She further explained that fishing season was starting,
making it "the perfect time right now to . . . rehabilitate [April] back into the community,
her home." Because Jessica wanted April back, there was a need for removal findings
under ICWA. The parties and court agreed to continue the hearing so that both issues
could be heard before the original judge.
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In advance of the continued hearing April filed a brief addressing the two
issues before the court. First, she contended that the superior court had to determine
whether April's removal from her parent was proper under ICWA. This would require
the court to find "by clear and convincing evidence, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent . . . is likely to
6 Second, April contended
result in serious emotional or physical damage to the child."
that if the answer to the first question was "yes," the court would then have to determine
whether placement "in a secure residential psychiatric treatment center" was proper
under AS 47.10.087. April argued that "under AS 47.10.087(b), the court may only
authorize placement of the child in a secure residential treatment center if 'the child's
mental condition could be improved by the course of treatment or would deteriorate if
untreated.' " April also argued that Oxford was not a qualified expert witness for
purposes of ICWA because she did not have any "cultural competency regarding the
Native Village of Kotzebue" and did not have "adequate knowledge of parental
conduct."
The hearing resumed in mid-June. OCS's first witness was April's OCS
caseworker. He explained that at the time of April's removal, OCS was concerned about
"abandonment and failure to provide medical and mental health care for the child." He
indicated that OCS had not made much progress in case planning with Jessica because
she would not accept any responsibility for her conduct and therefore would not address
any of OCS's concerns with her behavior and its effect upon April. He wanted to see
Jessica engage with OCS and potentially complete a mental health assessment and
parenting classes. He also identified and discussed some of the alternative placement
options that OCS had considered for April.
6
25 U.S.C. § 1912(e).
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----------------------- Page 6-----------------------
The court then heard testimony from Oxford. OCS moved to qualify her
as "an expert in mental health counseling." April objected to Oxford's "testimony as
meeting the qualified expert witness requirement of [ICWA]." April asked Oxford about
her knowledge of Alaska Native culture. Oxford indicated that she had never worked
in Alaska, did not know the name of April's tribe, and did not have "professional
knowledge" of Inupiat culture. She testified that she did not have any knowledge of "the
social and cultural values of the Native Village of Kotzebue" and had never been to
Kotzebue. Jessica's parents and the Tribe also objected to Oxford's testimony being
used for the purposes of ICWA. The court determined that Oxford was an expert in
mental health counseling but did not make a ruling on the ICWA issue.
OCS also questioned Oxford about her knowledge of different cultures.
Oxford stated that her degree and licensure in mental health was not "specific to any one
culture" and that cultural background does not matter when considering whether
someone presents an "imminent danger" to self or others. She stated that "there's
nothing in diagnosing somebody that questions their culture, that's not any criteria in
diagnosing anyone with a mental illness."
7 April was
Oxford then explained April's diagnoses based on the DSM-5.
diagnosed with schizoaffective disorder; post-traumatic stress disorder; and cannabis,
alcohol, and tobacco use disorder. Oxford also indicated that part of April's diagnoses
included child sexual abuse, child physicalabuse, child neglect,psychologicalabuse, and
parent-child relational problems. She acknowledged "that evaluating a symptom could
in some cases when it's more subjective take in a cultural basis," but maintained that the
fact that April is an Alaska Native does not put her more or less at risk because "trying
to kill yourself is risky no matter what culture you come from."
7 M. P SYCHIATRIC ASS'N, D IAGNOSTIC AND STATISTICAL
See generally A
MANUAL OF MENTAL DISORDERS (5th ed. 2013).
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----------------------- Page 7-----------------------
Oxford then testified regarding April's progress at Provo Canyon, stating
that April had refused medication and that April's condition had deteriorated when she
went off medication a few months earlier. She explained that April had more recently
shown some progress, including reduced symptoms and fewer restraints; this seemed to
be related to a new medication that April had started taking. Oxford recommended a
lateral transfer to a different secure residential treatment facility instead of to a less
securefacility because"there [had not] been enoughconsistent safety or engagement that
proves that [April] could be successful and/or safe in a lower level of care." She
believed that if April were discharged to a non-therapeutic setting, it would cause serious
emotional or physical damage. Oxford identified "specific areas of concern," stating:
[April] has made it very clear that she intends to return to
using substances[,] both drugs and alcohol. She continues to
self-harm which shows that she's a danger to herself
including suicidal gestures at times. And then if she does not
take her medication, her current prognosis . . . is that she will
continue to possibly be violent but could be a danger to
herself and others. And she does not want to take her
med[ication]s is what she's told me. . . . [T]hat's my
understanding of why I say that . . . it's a dangerous situation.
Oxford elaborated on her specific concerns during cross-examination. Oxford indicated
that April had engaged in self-harming behavior in the past 48 hours and expressed
concern that if April was alone, she could be successful in her suicide attempts. Further,
Oxford explained that April had told her that she has "command hallucinations to attack
people" when she is not medicated and that during those episodes of psychosis, "[April]
doesn't want to attack people[,] but she doesn't feel like she can stop herself."
The court also heard testimony from April, who indicated that she "would
prefer to live with [her] mom but any other facility works, too." April testified that she
-7- 7469
----------------------- Page 8-----------------------
felt the staff members "purposely hurt" her. She also indicated that she was willing to
take her medication.
The court then moved to closing arguments. OCS first argued that April
met the statutory requirements for continued residential treatment under AS 47.10.087.
It indicated that it would try to transfer April to a different facility. OCS then addressed
removal under ICWA, arguing it had shown that April would suffer serious harmoutside
a therapeutic setting. It stated that Oxford was a qualified expert witness under ICWA.
It argued that an expert need not "have specific knowledge of the child's culture, [or] the
child's tribe . . . [if] the issue that causes the child to be at risk of harm . . . doesn't
implicate cultural issues." It argued that this case did not involve the Tribe's culture
because "a mental illness in which the child's behavior places her at substantial risk of
harm . . . [is] going to be true regardless of what her culture is." OCS asked the court to
find that Oxford qualified as an expert in a relevant field - mental health - for the
purposes of ICWA.
April argued that the court had to address the removal question under
ICWA first. She asserted that Oxford was not a qualified expert witness under ICWA
because Oxford "ha[d] no familiarity with any of the cultural norms for [April] and the
Native Village of Kotzebue." She "disagree[d] with [OCS] that mental health does not
implicate cultural bias," noting that Oxford admitted that "symptoms of mental illness
can be affected by culture." She also discussed the OCS caseworker's testimony that
Alaska Native children are "disproportiona[tely] . . . removed to out-of-state facilities,"
creating a concern with "cultural loss." She argued that OCS had not met its burden
under ICWA for removal. She also asserted that OCS had not proven "that [April]'s
mental condition could be improved by the course of treatment or deteriorate if
-8- 7469
----------------------- Page 9-----------------------
8
untreated." The parents "completely agree[d]," additionally noting that April "ha[d] no
contact with her culture at this time," that "[n]obody [was] familiar with her cultural
connections,"and that "Oxford kn[ew]nothing about Kotzebue,"as wellas asserting that
"there are cultural factors that are relevant to diagnosis and treatment of mental health"
and that "symptoms can manifest differently or be characterized differently by a provider
based on cultural factors."
In response, OCS acknowledged that cultural loss was occurring, but
emphasized that "whether there is cultural loss is a very different question than whether
risk to the child is tied to cultural issues or cultural norms." It reiterated that there was
"no testimony . . . to suggest that cultural issues somehow impact the risk that [April]
poses to herself or others or the risks that would be posed by placing her in a non-
therapeutic setting like her mother's home."
Thecourt delivered its ruling orally. After discussing theICWAstatuteand
regulations, the court quoted verbatim the relevant portion of the Bureau of Indian
Affairs' (BIA) Guidelines, which state that "while a qualified expert witness should
normally be required to have knowledge of Tribal social, andcultural standards, that may
not be necessary if such knowledge is plainly irrelevant to the particular circumstances
9 The court discussed April's diagnoses and determined that
at issue in the proceeding."
"there are a number of very heightened needs that [April] has at this time that require a
level of treatment and care that render the knowledge of her tribe's culture irrelevant to
the question of removal at this time." It ultimately found "there is clear and convincing
evidence based on Ms. Oxford's testimony that [April] is likely to suffer serious
8 See AS 47.10.087(b).
9 BUREAUOF INDIAN AFFAIRS,U.S.D EP 'T OF THE INTERIOR,G UIDELINES FOR
IMPLEMENTING THE INDIAN CHILD WELFARE ACT 54 (2016) (hereinafter 2016
GUIDELINES).
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----------------------- Page 10-----------------------
emotional and physical damage if she were returned to her mother's custody at this
10
time."
It also found that April met the requirements for continued residential placement
under AS 47.10.087.
The court issued a written order authorizing placement in a secure
residential psychiatric treatment center and requiring OCS to "identify and transfer
[April] to a different treatment center as soon as possible."
April appeals, arguing only that the superior court erred in determining that
Oxford qualified as an expert witness under ICWA.
III. STANDARD OF REVIEW
"We review de novo the court's conclusions of law, such as whether . . . the
11
expert testimony presented at trial satisf[ies] the requirements of ICWA."
IV. DISCUSSION
A. TheSuperiorCourt DidNot ErrIn Determining That JenniferOxford
Was An Expert For Purposes Of ICWA.
ICWA establishes requirements for child custody proceedings involving
Indian children. It states that "[n]o foster care placement may be ordered . . . 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
12
A
parent . . . is likely to result in serious emotional or physical damage to the child."
"foster care placement" under ICWA is defined as "any action removing an Indian child
10 See 25 U.S.C. § 1912(e). The court described the harm as "not specific to
[Jessica]'s home" and relied on the fact that Jessica "ha[d] not participated in these
hearings at all" in finding serious harm.
11 Eva H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
436 P.3d 1050, 1052 (Alaska 2019) (quoting Bob S. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 400 P.3d 99, 105 (Alaska 2017)).
12 25 U.S.C. § 1912(e).
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from its parent . . . for temporary placement in a[n] . . . institution . . . where the
parent . . . cannot have the child returned upon demand, but where parental rights have
13 In this case, April was not being removed from her mother; she
not been terminated."
was already in OCS custody. But because April was an Indian child at the time of the
removal hearing, the superior court had placed April in a secure residential institution,
and Jessica could not have April returned upon demand, the parties agree that the
requirements of the removal provision apply; we proceed under that assumption without
deciding the issue.
The sole issue before us is whether there was testimony from a qualified
expert witness for purposes of ICWA. The parties discussed this question extensively
in the superior court proceeding. April and her parents argued that Oxford was not
qualified under ICWA because she had no knowledge of Alaska Native culture. OCS
acknowledged that Oxford did not have any such knowledge, but argued that it was not
necessary in this case. The superior court agreed with OCS and concluded that Oxford
was a qualified expert witness for purposes of ICWA.
On appeal, April argues that the superior court erred in making this
determination, relying on the statute, its implementing regulations and guidelines, and
Alaska case law. She asserts that "cases where cultural knowledge is not required are
the exception rather than the rule." April identifies gaps in Oxford's knowledge of the
Tribe, including the "kind of support structure Native culture provides for young women
like [April]"; "how the Native Village of Kotzebue addresses mental illness"; "how, or
if, the Native culture of Kotzebue provides resources for tribal members who struggle
with mental health concerns"; and "how April would respond to traditional Native
cultural remedies and activities." She argues that Oxford could not have determined that
13
Id. § 1903(1)(i).
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Native culture was irrelevant in this case because she did not know anything about
Native culture.
OCS maintains that Oxford was a qualified expert witness as required by
ICWA. It argues that "[n]o cultural knowledge was needed to establish that placing a
child with [April]'s serious mental health treatment needs in the care of an untrained and
unprepared mother - a mother who had previously kicked her out of the house and
abandoned her - would likely harm her." OCS notes that we have "observ[ed] that
14 OCS argues the superior court could
cultural expertise is 'not essential in every case.' "
decide cultural expertise was not necessary here given April's "very serious mental
health issues" and need for "psychiatric treatment," as well as the fact that "her parents
abandoned [her]."
We look to the ICWA statute, regulations, guidelines, and case law in
determining whether Oxford was a qualified expert witness for purposes of ICWA.
Congress passed ICWA to address its concern "that an alarmingly high percentage of
Indian families are broken up by the removal, often unwarranted, of their children from
them by nontribal public . . . agencies and that an alarmingly high percentage of such
children are placed in non-Indian . . . institutions."15
The BIA issued new ICWA regulations in June 2016;16 these regulations
are binding on this court.17 We thus look to the federal regulation defining the
requirements for a "qualified expert witness":
14 See Eva H., 436 P.3d at 1054.
15 25 U.S.C. § 1901(4).
16 Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016)
(to be codified at 25 C.F.R. pt. 23).
17 See Eva H., 436 P.3d at 1053 & n.9 (noting that federal ICWA regulations
are binding).
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A qualified expert witness must be qualified to testify
regardingwhether thechild'scontinued custody by theparent
or Indian custodian is likely to result in serious emotional or
physical damage to the child and should be qualified to testify
as to the prevailing social and cultural standards of the Indian
child's Tribe. [18]
The BIA has also published guidelines for interpreting the ICWA regulations.19 While
the guidelines are not binding, we have recognized that they are useful to consider.20
The BIA Guidelines explain that "Congress recognized that States have
failed to recognize the essential Tribal relations of Indian people and the cultural and
social standards prevailing in Indian communities and families" and thus passed ICWA
"to make sure that Indian child-welfare determinations are not based on 'a white, middle-
class standard which, in many cases, forecloses placement with [an] Indian family.' "21
Therefore, "expert testimony presented to State courts should reflect and be informed by
those cultural and social standards" so that "relevant cultural information is provided to
the court and . . . expert testimony is contextualized within the Tribe's social and cultural
standards."22
Notwithstanding, the BIA Guidelines note that the regulation "does
not . . . strictly limit who may serve as a qualified expert witness to only those
individuals who have particular Tribal social and cultural knowledge," recognizing that
"knowledge of Tribal social and cultural standards . . . may not be necessary if such
18 25 C.F.R. § 23.122(a) (2019).
19 2016 GUIDELINES, supra note 9.
20 Eva H., 436 P.3d at 1053.
21 2016 GUIDELINES, supra note 9, at 54 (alteration in original) (quoting Miss.
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (1989)).
22 Id.
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----------------------- Page 14-----------------------
knowledge is plainly irrelevant to the particular circumstances at issue in the
23
proceeding."
As an example, the Guidelines state that
a leading expert on issues regarding sexual abuse of children
may not need to know about specific Tribal social and
cultural standards in order to testify as a qualified expert
witness regarding whether return of a child to a parent who
has a history of sexually abusing the child is likely to result
[24]
in serious emotional or physical damage to the child.
But the BIA has made clear that there are only "limited circumstances where [knowledge
of tribal customs and culture] is plainly irrelevant."25 In passing the ICWA regulations,
the BIA disagreed with the suggestion that "State courts or agencies are well-positioned
to assess when cultural biases or lack of knowledge is, or is not, implicated," and that
"ICWA was enacted in recognition of the fact that the opposite is generally true."26 The
BIA also indicated that a number of "theories . . . presented by experts in foster-
care . . . proceedings are based on Western or Euro-American cultural norms and may
have little application outside that context."27 The regulations and guidelines thus
suggest that state courts should exercise extreme caution in determining that cultural
knowledge is plainly irrelevant.
23 Id.
24 Id.
25 Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,830
(June 14, 2016) (to be codified at 25 C.F.R. pt. 23) (emphasis added).
26 Id.
27 Id.
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28
We discussed the ICWA regulations and guidelines last year in Eva H.
We recognized that under the 2016 ICWA regulations, "the ability to testify about the
risk of harm is required of every qualified expert witness, but the ability to testify about
29 We also
the 'prevailing social and cultural standards' is not essential in every case."
noted that "[t]his distinction is one we have recognized, and the guidelines show that it
remains valid,"30 referring to our line of cases recognizing that "termination proceedings
under ICWA do not require testimony by an expert in Native culture if the grounds for
termination do not implicate cultural biases."31 Specifically, we have held that "[w]hen
the basis for [removal] is unrelated to Native culture and society and when lack of
familiarity with cultural mores will not influence the [removal] decision or implicate
cultural bias in the [removal] proceeding, the qualifications of an expert testifying under
32
[ICWA] . . . need not include familiarity with Native culture."
28 Eva H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
436 P.3d 1050, 1053-55 (Alaska 2019).
29 Id. at 1054 (quoting 25 C.F.R. § 23.122(a)); see also Oliver N. v. State,
Dep't of Health & Soc. Servs., Office of Children's Servs., 444 P.3d 171, 177, 180
(Alaska 2019) (emphasizing the difference between "must" and "should" in the ICWA
regulation).
30 Eva H., 436 P.3d at 1054.
31 Payton S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 349 P.3d 162, 172 (Alaska 2015); see, e.g., In re Candace A., 332 P.3d 578, 584
(Alaska 2014); Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 291 P.3d 957, 964 (Alaska 2013); Marcia V. v. State, Office of Children's Servs.,
201 P.3d 496, 503 (Alaska 2009); L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d
946, 953 (Alaska 2000).
32 In re Candace A., 332 P.3d at 584 (alterations in original) (quoting Thea
G., 291 P.3d at 964).
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The factual circumstances in this case fall within the class of concerns that
ICWA was designed to address - a Native child being placed in a non-Indian, out-of-
33
state institution and becoming completely disconnected from her Native culture.
Notwithstanding, as previously discussed the BIA has recognized and we have held that
a qualified expert witness under ICWA need not always have knowledge of Native
culture. We recognize that the exception is very limited. But this case is one that falls
within that very limited exception. The superior court carefully, thoughtfully, and
correctly determined that knowledge of the Tribe's culture was unnecessary in this case
because of April's "very heightened mental health needs," as evidenced by her repeated
suicideattempts, engagementin self-harming behaviors just prior to theremovalhearing,
and attacks on staff members at the facility. The Tribe's cultural practices are not
directly relevant to the removal decision; April is being removed because she needs
intensive mental health treatment that cannot be achieved outside of a residential
treatment center, not because of any specific living conditions at her mother's home that
might implicate cultural biases. Oxford did not need to have expertise in Native culture
to determine that April had severe mental health disorders that would present a danger
to herself and others outside of a secure residential treatment facility. And the superior
court ameliorated April's cultural loss by approving her request for a lateral transfer and
ordering OCSto provide in-person contact with her parents. Thesuperiorcourt therefore
did not err in determining that Oxford was qualified for the purposes of ICWA despite
her lack of knowledge of Alaska Native culture.
V. CONCLUSION
We AFFIRM the superior court's order.
33
See 25 U.S.C. § 1901(4)-(5).
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WINFREE, Justice, with whom CARNEY, Justice, joins, concurring.
Given April S.'s extraordinary self-harming issues and her refusal to
consistently take prescribed medication, I cannot disagree with the court's decision. But
I also must acknowledge that our view is necessarily limited by the lack of evidence
Office of Children's Services (OCS) could have provided concerning relevant Native
culture, particularly how Native Village of Kotzebue addresses mental health challenges
facing its tribal children in the Kotzebue area. There is growing recognition of "the
importance of delivering culturally responsive, evidence-based services to address"
1 Without access to
behavioral and mental health challenges facing Alaska Natives.
evidencedirectly informed by NativeVillage of Kotzebue's cultural and socialpractices,
I cannot foreclose the possibility that some of April's heightened needs may be caused,
2
or at least exacerbated, by being in a facility entirely disconnected from her culture.
1 SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION
(SAMHSA), B EHAVIORAL HEALTH SERVICES FOR AMERICAN INDIANS AND ALASKA
NATIVES : TREATMENT IMPROVEMENT PROTOCOL 61 (2019), https://store.samhsa.gov/
sites/default/files/d7/priv/tip_61_aian_full_document_020419_0.pdf (hereinafter
SAMHSA TIP). This guide "helps behavioral health service providers identify how and
to what extent an individual's cultural background can affect his or her needs and
concerns." Id. at 6. This competency is important because"NativeAmericanindividuals
have historical cause to wonder whether behavioral health service providers will
recognize them for who they are, respect them, and offer assistance in walking their life
path." Id. at 7.
2 Referring to April's recent behaviors and indications as testified to by
Jennifer Oxford, the qualified Indian Child Welfare Act (ICWA) expert, the superior
court found that "some of those expressions may be more recently stated in order to
assist with [April's] own motivations to leave Provo Canyon." And April explained that
she would prefer to live with her mother because her mother would "help [her] the most
emotionally": "She's nicer, she has more patience, she takes me out fishing or something
that's real nice." April's mother also explained how the start of fishing season would be
a "perfect time" to "rehabilitate" April. Looking at these potential cultural cues, I
(continued...)
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Though the court correctly notes that the superior court appears to have carefully
considered the connection between April's mental health issues and her Native culture
and social environment, I believe superior courts should be inclined to demand more of
OCS in this context. And I have a particular concern about OCS potentially taking unfair
advantage of today's holding - presenting cases without helpful testimony concerning
Native cultural and social practices - because egregious facts, in a cultural vacuum,
seem to meet the "limited exception" to cultural relevance.
2 (...continued)
wonder if the superior court considered whether what OCS referred to as "cultural loss"
actually is tied to assessing April's treatment needs. "For many behavioral health issues
(e.g., substance abuse, suicidality), the underlying cause may be the loss of connection
to traditional native culture, historical trauma, and conflict between native and
mainstream culture." SAMHSA TIP, supra note 1, at 46. As the SAMHSA TIP
explains:
Maintaining ties to one's culture can help to prevent and treat
substance use and mental disorders; thus, healing can come
from reconnecting. Through reconnection to native
communities and traditional healing practices, an individual
may reclaim the strengths inherent in traditional teachings,
practices, and beliefs and begin to walk in balance and
harmony. In translating this belief into practice, initial
interviews and assessments need to be culturally responsive
(e.g., inquiring about the client's involvement in traditional
and healing practices).
Id. at 9. Given information such as this, it would not be surprising that a mental health
expert not taking a culturally competent approach would fail to appreciate traditional
Native remedies and activities, consequently providing the court an incomplete picture
of an Indian child's situation. I believe there probably was room to at least consider how
April's mother and tribe might address April's needs if she returned to Kotzebue to live
with her mother. Because understanding these cultural elements can only benefit courts,
we should be extremely wary of exceptions to the rule that an ICWA expert should be
competent about tribal culture, customs, and practices.
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April raises an excellent point, unaddressed by the court, that determining
culture to be "plainly irrelevant" based on testimony of an expert with absolutely no
cultural knowledge may rest on hopelessly circular logic. And in this context the
"limited exception" rule seems to place the onus on Native families to prove cultural
3 This raises significant concerns about fairness and access to justice.4 The
implication.
burden is on OCS to provide potentially relevant cultural information, allowing the court
to properly examine the question in the context of "the prevailing social and cultural
standards of the Indian child's Tribe."5 For example, in this case OCS could have
presented Oxford's testimony along with testimony from someone competent to testify
about Native Village of Kotzebue's customs and practices regarding tribal members'
mental health issues.6
3 See, e.g., Thea G. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs. , 291 P.3d 957, 964 (Alaska 2013) ("[The mother] does not argue that
her case is different, and she points to nothing to suggest that cultural issues or cultural
bias played a role in OCS's actions, in [the] expert witness['s] testimony, or in the
superior court's decision to terminate her rights."); Payton S. v. State, Dep't of Health
& Soc. Servs., Office of Children's Servs. , 349 P.3d 162, 172 (Alaska 2015) ("But [the
mother's] assertion that '[c]ultural mores and society were implicated in this termination
trial' does not appear to have been raised in the trial court, and she presented no evidence
to support it." (second alteration in original)).
4 See Elizabeth Low, Keeping Cultural Bias Out of the Courtroom: How
ICWA "Qualified Expert Witnesses" Make a Difference, 44 AM. I NDIAN L. R EV. 43,
56-60 (2019) (describing several reasons tribes may face difficulties producing qualified
witnesses, including travel, language, and cost barriers).
5 See 25 C.F.R. § 23.122(a) (2019).
6 See In re Candace A., 332 P.3d 578, 584 (Alaska 2014) ("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.").
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I do not dispute that the ICWA regulation provides that, in limited
circumstances, ICWA experts need not be knowledgeable about Native cultural and
7 But this does not override
social practices to assess risk for a child's return to a family.
ICWA's underlying concerns. The court seems to agree that state courts generally are
not well positioned to determine when Native culture is or is not implicated. Though the
court stresses the need for "extreme caution" in making this determination, I am not
confident that such caution is sufficient, even for a well-meaning superior court,
particularly when counterbalanced by difficult facts like those in this case. The difficulty
of these issues alone does not quash Congress's emphasis on contextualizing an Indian
child's needs. Regardless whether the outcome would be the same with testimony about
Native cultural and social practices, standardizing and reinforcing expectations for
culturally informed testimonywould createand maintain aworthwhilesafeguard. Doing
so would emphasize OCS's responsibility and ultimately allow courts to better, and more
fairly, adjudicate difficult questions in the spirit of ICWA's regulations and guidelines.
7
See 25 C.F.R. § 23.122(a).
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