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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, DHSS, OCS v. Cissy A. and Butch R., State of Alaska, DHSS, OCS v. Linette S. and Marquis D. (7/22/2022) sp-7604
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, )
Supreme Court Nos. S-18088/18092
OFFICE OF CHILDREN'S SERVICES, ) (Consolidated)
)
Appellant, )
Superior Court No. 4FA-18-00167 CN
)
v. )
O P I N I O N
)
CISSY A. and BUTCH R.,
) No. 7604 - July 22, 2022
)
Appellees. )
)
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, )
OFFICE OF CHILDREN'S SERVICES, )
)
)
Appellant, Superior Court Nos. 4FA-19-00027/
)
00028 CN
v. )
)
LINETTE S. and MARQUIS D., )
)
Appellees, )
)
NENANA NATIVE VILLAGE, )
)
Intervenor- )
Appellee. )
)
Appeals from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Earl A. Peterson, Judge.
----------------------- Page 2-----------------------
Appearances: Mary Ann Lundquist, Senior Assistant
Attorney General, Fairbanks, and Treg R. Taylor, Attorney
General, Juneau, for Appellant. JuliaBedell, AssistantPublic
Defender, and Samantha Cherot, Public Defender,
Anchorage, for Appellees Cissy A. and Marquis D. Kristin J.
Farleigh, Jason Weiner & Associates, P.C., Fairbanks, for
Appellee Butch R. Christopher J. Bodle, Jason Weiner &
Associates, P.C., Fairbanks, for Appellee Linette S.
Savannah Fletcher, Alaska Legal Services Corporation,
Fairbanks, and Pearl E. Pickett, Alaska Legal Services
Corporation, Anchorage, for Intervenor-Appellee Nenana
Native Village. Margaret McWilliams, Assistant Public
Advocate, Juneau, and James Stinson, Public Advocate,
Anchorage, for Guardian Ad Litem.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
PER CURIAM.
I. INTRODUCTION
The Indian Child Welfare Act (ICWA) prohibits a state court from
terminating parental rights to an Indian child unless there is proof beyond a reasonable
doubt that continued custody by the parent is likely to cause serious damage to the child.
This proof must include testimony by a qualified expert witness. An expert witness
should, according to regulations by the federal Bureau of Indian Affairs (BIA), be
qualified to testify about the prevailing social and cultural standards of the Indian child's
tribe. But the BIA has also stated that this cultural expert testimony is not always
required. These consolidated appeals concern how the superior court determines when
cultural expert testimony is needed and when this testimony is adequate in a particular
case.
-2- 7604
----------------------- Page 3-----------------------
In two separate cases the superior court decided that it could not terminate
parental rights without cultural expert testimony and that the cultural expert testimony
presented was too vague and generalized to be helpful. Although it was error to construe
our precedent to require cultural expert testimony in every ICWA case, we affirm the
court's decision to require expert testimony based on its explanation that it could not
competently weigh the evidence of harm in these cases without cultural context. And
because the cultural expert testimony presented did not provide a meaningful assessment
of tribal social and cultural standards and was not grounded in the facts of these
particular cases, we hold the court did not clearly err by giving the testimony no weight.
We therefore affirm its decision to deny termination of parental rights in each case.
II. FACTS AND PROCEEDINGS
This opinion addresses two cases in which the superior court made similar
determinations. We first summarize the facts and proceedings of each case separately;
we then summarize the superior court's conclusions jointly.
A. Cissy A. And Butch R.
Cissy A. and Butch R. are the parents of Howie R., born in 2018. 1 Cissy
is a member of the Native Village of Barrow and Howie is an Indian child for purposes
2
of ICWA.
Cissy and Butch struggled with substance abuse and domestic violence
within their relationship both before and after Howie's birth. Butch has an extensive
1 We use pseudonyms for all family members in both cases to protect their
privacy.
2 ICWA defines "Indian child" as "any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of an Indian tribe."
25 U.S.C. § 1903(4).
-3- 7604
----------------------- Page 4-----------------------
history of domestic violence. Cissy's substance use prenatally exposed Howie to
amphetamine, alcohol, and methamphetamine.
Howie was born prematurely and spent about three weeks in the neonatal
intensive care unit to address his medical issues. OCS received a report that Howie had
tested positive for various substances at birth. After speaking with Cissy and Butch
about their substance abuse, OCS assumed emergency custody. Howie now faces
developmental and social delays and struggles with transitions, impulse control, and
aggression.
OCS made efforts to help the parents remedy their conduct and to support
reunification. OCS referred Butch to an alternatives to violence program, but he failed
to attend any sessions until over a year and a half later. Similarly, Butch did not provide
OCS-recommended urinalysis samples for approximately a year and a half during the
pendency of the case. OCS referred Cissy to inpatient substance abuse treatment and
facilitated a trial home visit with Howie while she was there. However, Cissy had
contact with Butch while Howie was in her care, and relapsed shortly after leaving
treatment. After about a year and a half of case planning and attempts at reunification,
OCS filed a petition to terminate both parents' rights.
OCS presented two expert witnesses at the termination trial: Dr. Martha
Cranor, a licensed psychologist, and Edith Kaleak, an expert in the cultural values and
practices of the Native Village of Barrow.
Dr. Cranor submitted an expert report and testified at trial regarding the
likelihood of serious physical or emotional damage to Howie if he were to return to Cissy
3 OCS emphasized that it was not offering Dr. Cranor as an expert in
or Butch's care.
3 See 25 U.S.C. § 1912(f) ("No termination of parental rights may be
ordered . . . in the absence of a determination, supported by evidence beyond a
(continued...)
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----------------------- Page 5-----------------------
tribal culture or practices, and no party objected to Dr. Cranor's classification as an
expert in child welfare and parental risk assessment. To form her opinions, Dr. Cranor
reviewed 605 pages of records, including OCS records, hospital records, visitation
records, urinalyses, and police records.
Dr. Cranor indicated in her expert report that it was her "professional
opinion that placement of [Howie] with either of his parents would place him at elevated
risk for both physical and psychological harm." This opinion was based principally on
the parents' substance use, Butch's domestic violence, and the parents' inconsistent
visitation with Howie. Dr. Cranor asserted that Cissy's alcohol and drug use during
pregnancy led to Howie's medical difficulties as an infant and his later developmental
challenges. She also indicated that Cissy's substance use had "negatively impacted her
ability to care for herself and provide for her own basic needs" and anticipated that
Cissy's continued use would prevent her from effectively parenting Howie. Dr. Cranor
used an actuarial risk assessment tool to assess future risk of harm to Howie from
domestic violence, concluding it would be high were he returned to Butch's care, or to
Cissy's care if she were in contact with Butch.
Referencing attachment theory in both her report and testimony,Dr. Cranor
emphasized that the sporadic visitation between the parents and Howie made it
challenging for Howie to develop relationships with either parent. She asserted that
"[a]ttachment requires constant, day-in and day-out, mutually reinforcing and reciprocal
interactions between the parental figure and the child, a process that is seriously
disrupted by extended separations." Dr. Cranor explained that infrequent and
3 (...continued)
reasonable doubt, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent . . . is likely to result in serious emotional or physical
damage to the child.").
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----------------------- Page 6-----------------------
inconsistent visitation could result in Howie having "difficulty self-soothing and
managing stress" and increased anxiety. She felt that Howie would be at risk of
psychological harm if placed with his parents in part because of the attachment
challenges.
Dr. Cranor also expressed some concern about the parents' physical living
space and their economic situations in her report and testimony. For instance, during the
trial she stated that the parents "didn't have an adequate living situation to care for a
child who at that point was medically fragile and needed, you know, at least a home with
reliable heat and preferably running water." Dr. Cranor's report also stressed that Cissy
had an inconsistent employment history and "appears to have relied on family members,
acquaintances, friends, romantic partners, community agencies, and/or tribal dividends
for her financial support."
Kaleak, a 20-year family advocate for the Native Village of Barrow and a
tribal member, testified without objection as an expert on the Tribe's "cultural practices
. . . and traditions." However, neither the parties nor Kaleak had much time to prepare
for her testimony. OCS provided notice of its intent to call Kaleak as an expert the day
before trial. Kaleak received the petition to terminate parental rights at six o'clock the
evening prior to her appearance, and was only able to review the material for ten minutes
before testifying. She noted that she was "not . . . able to fully absorb" the petition.
OCS asked Kaleak just two substantive questions on direct examination.
OCS first asked Kaleak to describe "the important cultural practices and traditions" of
the Native Village of Barrow. Kaleak stated that the Tribe's traditional practices include
hunting, gathering, and a focus on communal welfare. OCS next asked Kaleak whether
the Tribe's "cultural norms, traditions, or values" included substance use, domestic
violence, or neglect. Kaleak responded "No," and said that such conduct would trigger
the intervention of the Tribe's own child protective services.
-6- 7604
----------------------- Page 7-----------------------
On cross-examination, Cissy drew out a bit more information concerning
tribal practices in situations involving child welfare concerns. Kaleak indicated that
when the Tribe gets involved in a child welfare case, it works to prevent removal of a
parent from the community to provide the child with continued access to the parent; the
Tribe also works to include extended family and tribal leaders in the process. She
testified that to her knowledge that had not happened in this case. When asked about the
purposes of ICWA, she explained that ICWA was enacted to protect "Alaska Native
Indian children from being taken from their families" and "to protect the cultural ties
with the children and their families" in light of the trauma caused by widespread forcible
removal of Indian children from their families and placement in government-run
4 Kaleak testified about the trauma that a child could experience if
boarding schools.
removed from the family as an infant, noting that the child is "being removed from their
identity" and that it would negatively impact that child's sense of self.
At the conclusion of the termination trial, the superior court found by clear
and convincing evidence that Howie was a child in need of aid under several of the
categories set forth in AS 47.10.011: substantial physical harm or risk thereof,
substantial risk of mental injury, and substance abuse.5 The court further found that
4 See Maria Yellow Horse Brave Heart & Lemrya M. DeBruyn, The
American Indian Holocaust: Healing Historical Unresolved Grief , 8 A M. I NDIAN &
LASKA NATIVE MENTAL HEALTH RES. 60, 63-66 (1998) (detailing the trauma caused
A
byforcibleremoval of Native American andAlaskaNativechildren); ZachariahHughes,
Inside a Modern Alaskan Boarding School, MOTHER JONES (Sept. 13, 2019),
https://www.motherjones.com/politics/2019/09/inside-the-alaskan-boarding-school-
trying-to-overcome-its-history-by-embracing-indigenous-students/ (describing forcible
removal of Alaska Native children and current efforts in Alaska Native education).
5 AS 47.10.011(6) (physical harm), (8) (mental injury), (10) (parental
substance abuse). The superior court also found Howie to be a child in need of aid due
(continued...)
-7- 7604
----------------------- Page 8-----------------------
Cissy and Butch failed to remedy the conduct that placed Howie in need of aid and that
OCS made active efforts to help themremedy this conduct. It also found that termination
of parental rights was in Howie's best interests.
B. Linette S.
Linette S. and Marquis D. are the parents of Morris, born in 2011, and
Irwin, born in 2013. Linette is a member of the Native Village of Selawik. Marquis is
a member of the Nenana Native Village. Both children are Indian children for purposes
of ICWA.
Linette has struggled with alcohol and methamphetamine abuse for many
years. OCS initially removed Morris and Irwin in 2015 due to Linette's
methamphetamine use, but the children were returned to Linette in the fall of 2016.
Linette also has a history of violent outbursts in front of her children and has been
arrested several times for domestic violence.
Both children have special needs. Among other developmental issues,
Morris has a growth deficiency due to a history of malnutrition and as a result requires
frequent medical care and a special diet. Both children were diagnosed with Fetal
Alcohol Spectrum Disorder, and Irwin was also diagnosed with Autism Spectrum
Disorder.
In 2019 OCS received reports that Linette was acting erratically and
violently and that she was neglecting the children. An OCS specialist spoke with
Linette, and based on her incoherent speech, OCS believed Linette was again using
methamphetamine. OCS assumed emergency custody of Morris and Irwin.
5 (...continued)
to neglect under AS 47.10.011(9). However, the court did not analyze this conduct as
it did for substantial physical harm, risk of mental injury, or substance abuse.
-8- 7604
----------------------- Page 9-----------------------
OCS made efforts to support reunification. But Linette did not address her
substance abuse or mental health issues. Linette did not regularly attend scheduled
visitation with her children and missed appointments for services that OCS had arranged
for her. Linette was also arrested for assaulting her father with an axe and for assaulting
Marquis with her car. OCS continued to try to engage Linette while she was
incarcerated. After over a year of case planning with both parents and seeing insufficient
progress, OCS filed a petition to terminate Linette's and Marquis's parental rights.
OCS's petition was based on parental substance abuse, neglect, abandonment, parental
mental illness, and domestic violence. 6
At Linette's termination trial,7 OCS initially presented just one expert
witness, Dr. Martha Cranor - the same expert witness that OCS presented in Cissy and
Butch's trial. Dr. Cranor was qualified without objection as an expert in child welfare
and parental risk assessment. She submitted an expert report and testified regarding the
likelihood of serious physical or emotional damage to the children if they were to return
to Linette's care. After reviewing 422 pages of records, she concluded that there was a
high likelihood of serious physical or emotional harm to the children if returned to
Linette. Her opinions were based on Linette's history of substance abuse and
abandonment of the children; she also considered the children's special needs and
malnourishment. As in Cissy and Butch's trial, Dr. Cranor referenced attachment theory
in her testimony and opined that both children were no longer connected to Linette. In
her report, Dr. Cranor also expressed concern about Linette's economic situation,
6 AS 47.10.011(1), (8)-(11).
7
Linette's trial did not address Marquis's parental rights. The record does
not reveal the status of his termination trial, but he is an appellee in this case pursuant to
Alaska Appellate Rule 204(g).
-9- 7604
----------------------- Page 10-----------------------
highlighting Linette's reliance on "her father, acquaintances, friends, romantic partners,
or community agencies for her support."
After Dr. Cranor concluded her testimony, OCS stated its intent to rest its
case. But the superior court cautioned OCS that "this is an ICWA case" and that OCS
had "offered no evidence on the elements of cultural practice." OCS responded that
"[n]one of th[e issues in Linette's case] would suggest that . . . cultural practices . . .
have been indicated." The GAL requested that the case stay open so that OCS could
present cultural expert testimony, which the court allowed.
The following day of the trial, OCS presented two more witnesses. Tanya
Ballot, the tribal administrator for Linette's Tribe, was accepted as an expert in the social
and cultural standards of the Native Village of Selawik. Virginia Charlie, formerly a
tribal judge for Marquis's Tribe, testified about the social and cultural standards of the
8 OCS had not
Nenana Native Village. Neither witness was given much time to prepare.
timely sent any case documents to either witness to prepare their testimony. Ballot thus
had little knowledge about the facts of Linette's case. Charlie had some knowledge
about Linette's prior OCS case because she was a tribal judge at that time, but Charlie
acknowledged that that case had occurred "years and years ago" and that she had not
been provided any documentation to review about the family before testifying.
As in Cissy and Butch's trial, OCS asked each cultural expert witness just
a handful of substantive questions. OCS asked Ballot if she could describe the
"prevailing cultural values with regard[] to child-raising that might be unique to" her
Tribe. Ballot explained some general values of her Tribe, including "respect [for]
8 Although OCS had indicated its intent to call other expert witnesses
qualified to testify about the cultural standards of the Nenana Native Village and the
Native Village of Selawik several months ahead of trial, Ballot and Charlie received
extremely short notice to appear at trial.
-10- 7604
----------------------- Page 11-----------------------
elders," "learn[ing] subsistence lifestyles," and "[s]taying sober as best as possible."
Next, OCS asked whether "drug abuse, neglect, abandonment, mental illness, and
domestic violence" were "outside of the cultural values for [her] community." Ballot
responded, "Yes." OCS then asked whether Ballot had "any concerns that these children
ha[d] been removed . . . because of any kind of violation of those cultural values in [her]
community." She responded, "I do have some - I do have maybe a question or two,"
including whether Linette had "been able to do any effort in regards to trying to work on
getting [her] kids back." OCS stated that it could not answer those questions during the
trial and concluded the examination.
When OCS examined Charlie, it asked if her Tribe had a "prevailing
cultural value . . . to keep children safe," and Charlie agreed that this was a prevailing
cultural value. OCS then asked whether issues like substance abuse and domestic
violence were "not in line with the cultural values" of her Tribe. Charlie confirmed that
such conduct was not consistent with tribal values.
After the termination trial the superior court found by clear and convincing
evidence that the children were in need of aid based on substance abuse, abandonment,
substantial risk of physical harm due to Linette's violence and substance abuse, and
substantial risk of mental injury due to Linette's failure to provide for the children's
9 The court also found that Linette had failed to remedy the conditions
heightened needs.
that placed the children in need of aid and that OCS had made active efforts toward
reunification. The court further found that terminating parental rights would be in the
children's best interests.
9 AS 47.10.011(1) (abandonment), (6) (physical harm), (8) (mental injury),
(10) (parental substance abuse).
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----------------------- Page 12-----------------------
C. The Superior Court's Rulings On Cultural Experts
Although the superior court made many of the requisite findings for
termination, it found that it could not terminate parental rights in either case because
OCS had failed to properly contextualize the cases within the culture and values of the
children's Tribes. Citing our decision in Oliver N. v. State, Department of Health &
10
Social Services, Office of Children's Services,
the court stated that there is a
"requirement that a tribal expert testify before parental rights are terminated" and that
tribal experts must "be qualified to testify about the likelihood of harm to the child if
returned to the parent's custody." The court emphasized that relevant cultural expert
testimony would have assisted the court in determining, beyond a reasonable doubt,
whether the children were likely to suffer serious damage if returned to their parents.
Thecourt explained thatthoughtheexpertspresentedby OCShad expertise
regarding their respective Tribes, their testimony was insufficient "without knowledge
and application to" the particular families. The court wanted to hear in-depth testimony
"about the specifics of [the experts'] tribal values," and noted that the testimony
presented was not based on the particular facts of each case. The court emphasized that
expert testimony "should not be taken as a mere formality, but as a concrete showing,
requiring the highest standard of testimony, of the tribal values as applied to the family
in the case."
Finding this standard had not been met, the court indicated it "c[ould not]
in good faith terminate with the testimony that was presented." The court invited OCS
to "supplement the testimony already provided with the appropriate expert testimony."
OCS filed a motion for reconsideration in each case, both of which the
superior court denied. The court explained that the cultural expert testimony "did not
10
444 P.3d 171 (Alaska 2019).
-12- 7604
----------------------- Page 13-----------------------
help this court, the trier of fact, further understand this case and the tribal values that are
to be understood and factored into the decision herein." The court indicated that it would
have liked to hear testimony describing how the Tribes address substance abuse or assist
families. It stressed that without this kind of testimony, "[t]he court was left with so
many unanswered questions regarding the interaction of the Tribe and its norms with the
pertinent allegations herein that frankly the court was surprised at the brief and cursory
treatment this presentation made on this case."
OCS appealed both cases. The Nenana Native Village, Marquis's Tribe,
intervened on appeal in Linette's case.
III. STANDARD OF REVIEW
"Whether substantial evidence supports the court's conclusion
that . . . children would likely be seriously harmed if they were returned . . . is a mixed
11 12
question of fact and law."
We review de novo the superior court's conclusions of law,
including the interpretation of ICWA and BIA regulations.13 We review the superior
court's factual findings for clear error, giving the underlying allocations of weight to
testimony special deference.14
11 J.A. v. State, Div. of Fam. & Youth Servs., 50 P.3d 395, 399 (Alaska 2002).
12 In re April S., 467 P.3d 1091, 1096 (Alaska 2020).
13 Kyle S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 309
P.3d 1262, 1267 (Alaska 2013); Oliver N., 444 P.3d at 177 & n.19 (reviewing
interpretation of BIA regulations de novo).
14 Danielle A. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
215 P.3d 349, 353 (Alaska 2009); Pravat P. v. State, Dep't of Health & Soc. Servs., Off.
of Child.'s Servs., 249 P.3d 264, 274 (Alaska 2011); Jon S. v. State, Dep't of Health &
Soc. Servs., Off. of Child.'s Servs., 212 P.3d 756, 762 n.16 (Alaska 2009).
-13- 7604
----------------------- Page 14-----------------------
IV. DISCUSSION
We begin by explaining ICWA's requirements for expert testimony and
15
outlining the rare cases in which cultural expert testimony is not required.
We then
clarify that the superior court erred by holding that Oliver N. mandates cultural expert
16
testimony in every case. However, given the superior court's stated inability to make
an informed decision without this cultural expert testimony, we uphold the superior
court's rulings requiring cultural expert testimony in these cases.
Turning to the sufficiency of the cultural expert testimony provided, we
clarify that a cultural expert need not testify to the causal relationship between the
parent's conduct and the risk of serious damage to the child. And we conclude that the
court did not clearly err by affording no weight to the vague and generalized testimony
presented in these cases. We therefore uphold the superior court's rulings in both cases.
A. ICWA Requires Testimony From A "Qualified Expert Witness," And
Federal Regulations State That An Expert "Should" Be Qualified To
Testify About Tribal Social And Cultural Standards.
A court may not terminate parental rights to an Indian child unless it finds
"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
17
serious emotional or physical damage to the child." ICWA itself does not define
15 We use "cultural expert testimony" as a shorthand for what ICWA and the
BIA regulations generally require: the "testimony of [a] qualified expert witness[]" who
is "qualified to testify as to the prevailing social and cultural standards of the Indian
child's Tribe." 25 U.S.C. § 1912(f); 25 C.F.R. § 23.122(a) (2022).
16 Oliver N., 444 P.3d at 174-78.
17 25 U.S.C. § 1912(f) (emphasis added); CINA Rule 18(c)(4). This
evidentiary burden requires OCS to show that the parent's conduct is likely to harm the
(continued...)
-14- 7604
----------------------- Page 15-----------------------
18
"qualified expert witness" or explain what testimony such a witness must provide. But
the BIA has adopted regulations that add specificity to the expert witness requirement
19 commentary on the new regulations (BIA Commentary) that
(BIA Regulations),
20 and non-binding but persuasive guidelines (BIA 2016
provides further insight,
Guidelines) on applying ICWA.21
The BIA Regulations explain what is needed to meet ICWA's "qualified
expert witness" requirement:
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
17 (...continued)
child and that the parent's conduct is unlikely to change. Diana P. v. State, Dep't of
Health & Soc. Servs., Off. of Child.'s Servs., 355 P.3d 541, 546 (Alaska 2015). Other
requirements are detailed in CINA Rule 18(c).
18 See 25 U.S.C. § 1912(f).
19 The BIA published non-binding guidelines in 1979 and again in 2015.
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584,
67,593 (Nov. 26, 1979); Guidelines for State Courts and Agencies in Indian Child
Custody Proceedings, 80 Fed. Reg. 10,146, 10,157 (Feb. 25, 2015). In response to
public calls for formal and binding regulations, the BIA issued formal, binding
regulations in 2016 to ensure the uniform application of ICWA across states. 25 C.F.R.
§§ 23.1-.144 (2022); CINA Rule 1(f); Indian Child Welfare Act Proceedings, 81 Fed.
Reg. 38,778, 38,829, 38,851 (June 14, 2016) [hereinafter BIA Commentary].
20 BIA Commentary, supra note 19, at 38,829.
21 U.S. DEP 'T OF THE INTERIOR, G UIDELINES FOR IMPLEMENTING THE INDIAN
CHILD WELFARE ACT (2016), https://www.bia.gov/sites/bia.gov/files/assets/
bia/ois/pdf/idc2-056831.pdf [hereinafter BIA 2016 Guidelines]; see In re Adoption of
F.H., 851 P.2d 1361, 1364 (Alaska 1993) (interpreting an earlier version and explaining
that "[a]lthough the Guidelines do not have binding effect, this court has looked to them
for guidance").
-15- 7604
----------------------- Page 16-----------------------
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. [22]
In its supporting guidelines and commentary, the BIA explained the
importance of both the "must" and "should" prongs of its expert witness requirement.
First, the BIA explained that the likelihood-of-damage qualification ensures that the
expert can establish the causal relationship between the particular conditions of the home
and the risk of damage to the child that is statutorily required for terminations.23 The
need to prove this link between the parent's conduct and harm to the child recognizes the
fact that "children can thrive when they are kept with their parents, even in homes that
may not be ideal . . . or when a parent is single, impoverished, or a substance abuser."24
Second, the BIA explained the importance of cultural context in informing
a court's findings about the likelihood of serious damage to the child.25 The BIA
emphasized that Congress's purpose in passing ICWA was to "make sure that Indian
26
child-welfare determinations are not based on 'a white, middle-class standard' " -
especially because"States havefailedto recognize the essential Tribal relations of Indian
people and the cultural and social standards prevailing in Indian communities and
22 25 C.F.R. § 23.122(a) (emphasis added).
23 BIA Commentary, supra note 19, at 38,829; see also 25 C.F.R. §
23.121(b)-(d).
24 BIA 2016 Guidelines, supra note 21, at 53.
25 BIA Commentary, supra note 19, at 38,829.
26 Id. (quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36
(1989)).
-16- 7604
----------------------- Page 17-----------------------
27
families." Requiring cultural expertise "ensures that relevant cultural information is
provided to the court and that the expert [causal relationship] testimony is contextualized
within the Tribe's social and cultural standards." 28
Yet the BIA also stated that cultural expert testimony is not "strictly"
29 The BIA explained that while cultural expert testimony "should
required in all cases.
normally be required," it "may not be necessary if such knowledge is plainly irrelevant
to the particular circumstances at issue in the proceeding."30 The BIA Commentary
provides only one example where cultural expert testimony would be plainly irrelevant:
when a parent "has a history of sexually abusing the child," "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 . . . regarding whether return of a child to [that]
31 Consistent with this guidance from the
parent . . . is likely to result in serious [harm]."
BIA, we have held that the exception to the requirement of cultural testimony is "very
limited."32
27 Id.
28 Id.
29 Id. at 38,829-30.
30
Id. at 38,830 (emphasis added).
31 Id.
32
In re April S., 467 P.3d 1091, 1099 (Alaska 2020).
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B. We Affirm The Superior Court's Ruling That Cultural Expert
Testimony Was Needed To Help The Court Assess The Evidence
Presented In These Cases.
The superior court ruled it could not terminate parental rights in these cases
without hearing expert testimony about tribal cultural and social standards. These
rulings appear to rest on two grounds.
The court reasoned that our decision in Oliver N. mandates cultural expert
testimony in all ICWA cases. This interpretation of Oliver N. was mistaken, as we
explain below.
Yet it is clear from the superior court's initial orders and orders on
reconsiderationthatthecourt alsoviewed cultural contextas necessary to properly weigh
the evidence presented by OCS in these particular cases. In other words, the court
viewed cultural expert testimony as evidence necessary in each case to determine,
beyond a reasonable doubt, that the children would truly be harmed if returned to their
parents' custody.
OCS suggests that the superior court denied termination solely based on
Oliver N., pointing to the court's statement that OCS had "met [its] burden of proof for
termination in all aspects except the tribal value expert testimony requirement." But the
superior court indicated it could not draw any ultimate conclusions about the risk of
serious damage to the children without cultural context. The court reasoned that cultural
expert testimony was "necessary for the trier of fact to understand and consider the
dynamic interplay of the tribal norms and standards with the parties, their actions, the
allegations, and the rehabilitation efforts applicable to the situation." The scant cultural
testimony presented by OCS left the court "with so many unanswered questions
regarding the interaction of the [T]ribe and its norms with the pertinent allegations."
Accordingly, we do not view the superior court's rulings to mean that OCS failed only
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to check a box that was required for an otherwise-warranted termination. We instead
view the superior court's rulings as concluding that without cultural expert testimony,
the court could not confidently weigh the evidence presented in these cases and make the
serious damage finding required under ICWA. And we hold that the court did not err in
requiring expert testimony on this basis.
1. It was error to rule that expert testimony about tribal social and
cultural standards is required in every ICWA case.
Our decision in Oliver N. did not require cultural expert testimony in every
33
ICWA case. In Oliver N. OCS presented a single expert witness
who was qualified
only as an expert on tribal cultural standards; the expert lacked the qualifications to opine
34
We
on the causal relationship between the parent's conduct and damage to the child.
held that under the BIA Regulations, OCS must always present testimony of an expert
35
qualified to opine on causation. We did not, however, hold that cultural expert
36
testimony is also required in every case.
In fact we have expressly acknowledged that the BIA Regulations do not
require cultural expert testimony in every case. In In re April S. we noted the distinction
between "must" and "should" in the BIA Regulations, explaining that while cultural
expert testimony should be presented in most cases, it need not be presented in every
33 Oliver N. involved two separate cases consolidated for decision. Oliver N.
v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 444 P.3d 171, 172 (Alaska
2019). OCS presented one expert witness in each case. Id. at 175-76.
34 Id. at 178-79.
35 Id.
36 See id. (holding that "in proceedings involving only one expert," the sole
expert must be qualified to discuss causation and damage, but clarifying that when two
experts are presented - a causation expert and a cultural expert - the cultural expert
"does not need to be qualified to speak to the likelihood of harm" (emphases added)).
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37
case. This ruling is consistent with the BIA Commentary, which states that an "expert
witness need not have specific knowledge of the prevailing social and cultural standards
of the Indian child's Tribe . . . if such knowledge is plainly irrelevant to the particular
38 The superior court erred in reading into Oliver N. a cultural expert
circumstances."
testimony requirement without exception.
2. The superior court did not err by determining that cultural
expert testimony was necessary in these cases to find beyond a
reasonable doubt that continued parental custody was likely to
cause serious damage to the children.
Next we address the other basis for the superior court's ruling: that it
needed expert cultural testimony in order to properly weigh the evidence of harm to the
children in these cases. Because witnesses and judges who may be unfamiliar with
Alaska Native cultures are generally not well-equipped to know when evidence of harm
rests on cultural assumptions that may not apply to Indian children, and because a judge
cannot terminate parental rights unless convinced beyond a reasonable doubt, we hold
that a superior court does not err if it determines that it needs cultural expert testimony
to competently weigh the evidence in the particular case before it.
Thescope of cases in which cultural expert testimonyneednot bepresented
is "very limited."39 The BIA's choice of the word "should" indicates that, as a default
rule, the need for cultural expert testimony is to be presumed.40
The BIA in its
37 467 P.3d at 1098-99, 1098 n.29.
38 BIA Commentary, supra note 19, at 38,829-30.
39 In re April S., 467 P.3d at 1099.
40 See Should, NEW OXFORD AMERICAN DICTIONARY (Angus Stevenson &
Christine A. Lindberg eds., 3d ed. 2010) (describing that "should" is "used to indicate
obligation, duty, or correctness").
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41
commentary affirmed that cultural expert testimony "should normally be required."
And the BIA's express purpose for including a cultural expert testimony provision in the
binding BIA Regulations - to ensure that ICWA decisions are not based on a "white,
middle-class standard" -further supports viewing cultural expert testimony as a default
42
requirement rather than a mere suggestion.
The BIA Commentary elaborated on when a case might fall outside of the
default requirement: cultural expert testimony "may not be necessary if such knowledge
is plainly irrelevant to the particular circumstances at issue in the proceeding."43
Although the BIA Commentary provides little guidance for determining when cultural
expert testimony is "plainly irrelevant," it does emphasize that state child welfare
agencies and courts are generally not "well-positioned to assess when cultural biases or
44 A default rule requiring cultural expert
lack of knowledge is, or is not, implicated."
testimony reduces the chance that cultural bias will affect ICWA decisions.
45 There the
Our recent decision in In re April S. acknowledges this point.
46
child had extreme mental health needs, evidenced in part by repeated suicide attempts.
A mental health expert testified that the child needed intensive treatment that could only
beobtained at asecureresidential treatment center; thesuperior court authorized removal
41 BIA Commentary, supra note 19, at 38,830.
42
Id. at 38,829 (quoting Miss. Band ofChoctawIndians v. Holyfield, 490 U.S.
30, 36 (1989)).
43 Id. at 38,830.
44 Id.
45 467 P.3d 1091, 1099 (Alaska 2020).
46 Id.
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47
of the child for that treatment. We held that "[t]he superior court carefully,
thoughtfully, and correctly determined that [cultural] knowledge . . . was unnecessary"
because the child's removal was based on her need for intensive inpatient medical
treatment, not "because of any specific living conditions at her mother's home that might
48
implicate cultural biases."
We thus emphasized that the exception to the default rule requiring cultural
expert testimony is "very limited," but held that the particular facts of the case "f[ell]
within that very limited exception."49 The concurring opinion in In re April S. also
emphasized the limited scope of the exception, cautioning that deeming knowledge of
tribal culture to be "plainly irrelevant" based on testimony of an expert without
knowledge of tribal culture "may rest on hopelessly circular logic."50
Two examples help to illustrate the importance of limiting the exception to
the cultural expert testimony requirement. The first example is substance abuse. The
BIA emphasized "that children can thrive . . . even . . . when a parent is . . . a substance
51 Alcohol abuse has historically been a concerning justification for breaking up
abuser."
Indian families. Indeed, when ICWA was passed, Congress was concerned that alcohol
abuse was frequently cited to remove Indian children but was rarely cited to remove non-
Indian children - even when comparing areas with "[similar] rates of problem
47 Id. at 1094-96, 1099.
48 Id. at 1099.
49 Id.
50 Id. at 1100 (Winfree, J., concurring).
51 BIA 2016 Guidelines, supra note 21, at 53.
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52
drinking." Congress attributed this disproportionate rate of removal of Indian children,
as summarized by the BIA, to "[n]on-Indian socioeconomic values that State agencies
and judges applied [that did] not account for the difference in family structure and child-
53
rearing practices in Indian communities . . . [l]ayered together with cultural bias."
Therefore, when a judge must consider whether continued custody by a parent with a
substance abuse problem is likely to cause damage to the child, expert testimony about
the prevailing social and cultural standards of the tribe helps to ensure the judge's
decision rests on evidence relevant to the child's reality, rather than on unfounded
assumptions or inapplicable cultural norms.
The second example relates to child-parent bonding and attachment.
Attachment theory is grounded, according to the American Psychological Association,
on the "need for the young to maintain close proximity to and form bonds with their
caregivers."54 In these cases Dr. Cranor's expert reports discussed how "[a]ttachment
requires constant day-in, day-out mutually reinforcing and reciprocal interactions
between the parental figure and the child." But that view of healthy attachment - that
the child must have constant daily interactions with the parent - may not be shared by
the child's tribe. Indeed, Congress noted it was an accepted practice within some tribes
for Indian parents to leave their children in the care of extended family for periods of
time, and terminating parental rights for that practice would be "ignorant of Indian
52 H.R. REP. NO. 95-1386, at 10 (1978), as reprinted in 1978 U.S.C.C.A.N.
7530, 7532; BIA Commentary, supra note 19, at 38,781.
53 BIA Commentary, supra note 19, at 38,781.
54 AM. PSYCH. ASS'N, Attachment Theory, AMERICAN DICTIONARY OF
PSYCHOLOGY 86 (Gary R. VandenBos ed., 2d ed. 2015).
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cultural values and social norms." 55 The BIA has also reiterated that "certain bonding
and attachment theories[] presented by experts . . . are based on Western or Euro-
56 Without
American culturalnorms and may have little application outside that context."
any cultural expert testimony, a superior court might rely on evidence based on a
particular attachment theory to remove the child, even though the theory may not be
applicable within the child's tribe. A rule requiring OCS to present cultural expert
testimony in all but a very limited number of cases helps to effectuate the goals of ICWA
by ensuring that ICWA determinations are informed by cultural context.
We recognize that our prior cases may be interpreted as allowing a broader
exception. In Eva H., one of our first cases to apply the BIA Regulations, we noted that
cultural expert testimony was not strictly required in every case; the BIA Regulations
57 Weexplained that our
allowed exceptions to the cultural expert testimony requirement.
earlier decisions were therefore consistent with the BIA Regulations to the extent that
58 This does not mean, however, that our
they recognized the existence of an exception.
59 In
prior case law is entirely consistent with the BIA Regulations on expert testimony.
those pre-regulation cases, we attempted to determine whether specific sets of facts
55 H.R. R EP. N O. 95-1386, at 10, as reprinted in 1978 U.S.C.C.A.N. 7530,
7532; BIA Commentary, supra note 19, at 38,830.
56 BIA Commentary, supra note 19, at 38,830 (quoted in In re April S., 467
P.3d 1091, 1098 (Alaska 2020)).
57 Eva H. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 436
P.3d 1050, 1053-54 (Alaska 2019).
58 Id. at 1054.
59 Our case law predating the BIA Regulations did seek to abide by the earlier
Guidelines. See, e.g., L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 952
(Alaska 2000) (discussing the BIA 1979 Guidelines).
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60
implicated cultural bias. Nevertheless, our decisions could be read as carving out entire
61
categories of conduct in which cultural bias is supposedly not implicated. These
categories - including abandonment, physical neglect, and substance abuse -
encompass a significant portion of the conduct that brings families into the child welfare
system. Such a broad exception is not consistent with the language of the BIA
Regulations or the BIA's observation that state agencies and courts, largely staffed by
individuals who are not tribal members, are generally in a poor position to determine
whether cultural bias is at work. To the extent our prior cases can be interpreted as
declaring entire grounds for termination immune to cultural bias, we disavow that
60 E.g., Victor B. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., No. S-16237, 2016 WL 6915519, at *6 (Alaska Nov. 23, 2016) ("We have
declined to approach this question categorically, instead reviewing the facts of each case
to determine whether cultural mores were implicated.").
61 See, e.g., L.G., 14 P.3d at 952-54 ("When thereis clear evidence of physical
neglect, a trial judge may terminate parental rights without hearing testimony from an
expert in Native culture."); Thea G. v. State, Dep't of Health & Soc. Servs., Off. of
Child.'s Servs., 291 P.3d 957, 964 (Alaska 2013) ("[I]n general, cases involving issues
of parental substance abuse do not implicate cultural mores.").
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62
interpretation. Instead it is appropriate for judges to be hesitant to declare that cultural
knowledge is "plainly irrelevant" in a given case. 63
We also recognize that our prior cases may be interpreted to place the
burden on parents to show that OCS's case for terminating their parental rights
implicates cultural bias.64 We disavow this interpretation as well.65 OCS bears the
62 We also reject OCS's suggestion at oral argument that cultural expert
testimony is only (or principally) required in cases involving conduct or conditions that
historically led to unwarranted removal of Indian children from their families, listed in
25 CFR § 23.121(d): "community or family poverty, isolation, single parenthood,
custodian age,crowded or inadequatehousing, substanceabuse, ornonconformingsocial
behavior." Although removal based on these conditions may be especially susceptible
to cultural bias, this list is certainly not exclusive. The BIA specifically emphasized that
it 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. ICWA was
enacted in recognition of the fact that the opposite is generally true." BIA Commentary,
supra note 19, at 38,830. To the extent that there is any ambiguity about whether the list
is exclusive, we reiterate that Supreme Court precedent directs that we "must resolve
ambiguities in statutes affecting the rights of Native Americans in favor of Native
Americans." John v. Baker , 982 P.2d 738, 752-53 (Alaska 1999) (citing Bryan v. Itasca
County, 426 U.S. 373, 392 (1976)).
63 BIA Commentary, supra note 19, at 38,830.
64 See In re April S., 467 P.3d 1091, 1100, 1100 n.3 (Winfree, J., concurring)
(first quoting Thea G., 291 P.3d at 964) ("The mother . . . 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."); and then quoting
Payton S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 349 P.3d 162,
172 (Alaska 2015) ("But the mother's assertion that 'cultural 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." ) (internal alterations omitted throughout)).
65 See id. at 1100 (cautioning against "plac[ing] the onus on Native families
to prove cultural implication").
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66
evidentiary burden to meet ICWA's requirements. Therefore the burden is on OCS to
show that culture is "plainly irrelevant" to the case such that it falls within the very
67
limited exception to the need for cultural expert testimony.
OCS argues that ICWA resolves the problem of cultural bias by requiring
expert testimony on the causal relationship between the parent's conduct and serious
damage to the child. But this argument fails to address the BIA Regulations themselves.
The BIA Regulations resulted from the BIA's concern that expert testimony uninformed
by cultural context may still result in unwarranted removal and termination. The BIA
cautioned that because "States have failed to recognize the essential Tribal relations of
Indian people and the cultural and social standards prevailing in Indian communities and
families[,] . . . expert testimony presented to State courts should reflect and be informed
68 The BIA thus emphasized that "the question
by those cultural and social standards."
of whether the continued custody of the child by the parent . . . is likely to result in
serious emotional or physical damage to the child is one that should be examined in the
69
context of the prevailing cultural and social standards of the Indian child's Tribe."
Therefore the need for expert testimony about the prevailing social and
cultural standards of the child's tribe is the rule, not the exception. The exception to this
rule is "very limited."70 And it is not the parents' burden to show that knowledge of
tribal cultural context is relevant to deciding whether the children are likely to suffer
66 Diana P. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs. , 355
P.3d 541, 546 (Alaska 2015).
67 BIA Commentary, supra note 19, at 38,830.
68 Id. at 38,829; see also 25 U.S.C. § 1901(5).
69 Id.
70 In Re April S., 467 P.3d at 1099 (majority opinion).
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71
serious damage. Instead it is OCS's burden to prove to the court, beyond a reasonable
doubt, that "continued custody of the child . . . is likely to result in serious emotional or
72 We cannot fault a judge who, facing this high bar, is
physical damage to the child."
unwilling to confidently declare that knowledge of tribal standards is "plainly irrelevant"
to assessing the particular facts of the case.73 For these reasons, a superior court does not
err if it rules that cultural expert testimony is needed to competently weigh the evidence
in a given case.74
The evidence presented in these cases illustrates why this rule is justified.
Both cases involved evidence of substance abuse, attachment theory, and financial
reliance on others - all areas that the BIA has highlighted as prone to cultural bias.75
71 BIA Commentary, supra note 19, at 38,830.
72 25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
73 Indeed, the concurring opinion in In re April S. urged judges to "demand
more" of OCS when cultural considerations may be in play so that judges can rule out
the possibility of findings based on inappropriate assumptions or inadequate knowledge.
In re April S., 467 P.3d at 1100 (Winfree, J., concurring).
74 To avoid the risk that trial takes place without the cultural expert testimony
that the judge ultimately deems necessary, OCS may move in advance of trial for a ruling
that knowledge of cultural standards is "plainly irrelevant" to the issue of serious
damage. BIA Commentary, supra note 19, at 38,830; see Alaska R. Civ. P. 16(c)(16)
("At any [pretrial] conference under this rule consideration may be given, and the court
may take appropriate action, with respect to . . . matters as may facilitate the just, speedy,
and inexpensive disposition of the action."); Alaska R. Civ. P. 16(e) (discussing pretrial
orders).
75 BIA Commentary, supra note 19, at 38,781 (discussing alcohol abuse as
frequent justification for removal); id. at 38,830 (explaining that certain attachment
theories "may have little application" outside a Western or Euro-American cultural
context); id. at 38,829 (emphasizing that ICWA's purpose was to "make sure that Indian
(continued...)
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Substanceabusewas a justification that OCSrelied uponin both itstermination petitions.
Attachment theory was prominent in Dr. Cranor's expert testimony in both cases. Dr.
Cranor also highlighted the parents' economic situations, emphasizing that Linette and
Cissy relied on family members and community agencies for financial support. The
superior court did not err by requiring cultural expert testimony to provide context for
evaluating this evidence about likelihood of serious damage to the children.
C. We Affirm The Superior Court's Ruling That The Cultural Expert
Testimony Presented In These Cases Was Inadequate .
Some expert testimony regarding tribal cultural standards was presented in
each of these cases, but the superior court concluded this expert testimony was
insufficient to support termination of parental rights. The superior court faulted the
testimony for two main reasons. First, the court ruled that Oliver N. requires the cultural
expert to be familiar with the facts and circumstances related to the particular family in
the case and to testify specifically about the likelihood of serious damage to the child if
returned to the parent. Second, the superior court ruled that the cultural expert testimony
was not sufficiently "in depth about the specifics of the[] tribal values" and that although
each of the proffered experts appeared to have ample knowledge of tribal customs, the
vague and generalized testimony elicited by OCS did not "assist the trier of fact to
76
understand the evidence."
As explained further below, the superior court's interpretation of Oliver N.
was mistaken. An expert on tribal cultural practices need not testify about the causal
connection between the parent's conduct and serious damage to the child so long as there
75 (...continued)
child-welfaredeterminations arenotbased on 'awhite, middle-class standard' "(quoting
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989))).
76 Alaska R. Evid. 702(a).
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77
is testimony by an additional expert qualified to testify about the causal connection.
But we conclude that the superior court did not clearly err by finding the testimony so
vague, generalized, and unhelpful that it deserved no weight, and we affirm the superior
court's rulings on that basis.
1. A cultural expert need not opine on the causal connection
between the parent's conduct and the serious damage to the
child.
To support removal of a child from the family or termination of parental
rights in an ICWA case, OCS must always present an expert witness qualified to testify
78
about the causal relationship between parental conduct and serious damage to the child.
In Oliver N. we concluded that the sole expert witness presented did not have the
79
qualifications to testify about that causal relationship.
But if one witness is qualified to testify and does testify about the causal
relationship, then a separate expert qualified to testify about tribal culture need not also
80
directly opine on causation. It is permissible to satisfy ICWA's expert witness
81
requirement by aggregating the testimony of expert witnesses. In Oliver N. we
specifically explained that "[a] tribal expert does not need to be qualified to speak to the
77 Oliver N. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 444
P.3d 171, 178-79 (Alaska 2019).
78 25 C.F.R. § 23.122(a) (2022); see also Eva H. v. State, Dep't of Health &
Soc. Servs., Off. of Child.'s Servs., 436 P.3d 1050, 1054 (Alaska 2019).
79 Oliver N., 444 P.3d at 179-80.
80 BIA 2016 Guidelines, supra note 21, at 54.
81 In re Candace A. , 332 P.3d 578, 584 (Alaska 2014).
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82
likelihood of harm to the child if there is a second qualified expert who can." The BIA
2016 Guidelines concur, noting that "[s]eparate expert witnesses may be used to testify
regarding potential emotional or physical damage to the child and the prevailing social
and cultural standards of the Tribe." 83
In each termination trial OCS presented testimony from Dr. Cranor, who
was qualified to testify about the relationship between the parents' conduct and serious
damage to the children, and did testify on this topic.84 It was therefore not necessary for
the experts in tribal social and cultural standards to testify regarding the causal
relationship as well. Rather, those cultural experts' testimony could focus on
contextualizing the parents' conduct and answering some of the questions the court
raised in its decisions. For instance, the superior court sought more information on
"what constitutes substance abuse within the [T]ribe," how the Tribe defines child abuse,
"what violations specifically are deviations from [tribal] norms, values, or standards,
such that intervention was required," and what interventions were available within the
85
Tribe. These are questions cultural experts are exceedingly well suited to answer.
82 Oliver N., 444 P.3d at 178-79.
83 BIA 2016 Guidelines, supra note 21, at 54.
84 25 C.F.R. § 23.122(a) (2022); Oliver N., 444 P.3d at 179 (explaining that
experts who are clearly qualified often have "substantial education" in psychology and
"direct experience"with conductingpsychologicalassessments (quoting EvaH.v.State,
Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 436 P.3d 1050, 1057 (Alaska
2019))).
85 BIA 2016 Guidelines, supra note 21, at 54-55 (outlining the expectations
for testimony on tribal social and cultural standards).
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2. It was not clear error to conclude that the cultural expert
testimony elicited by OCS was too vague and generalized to
support the termination of parental rights in these cases.
The superior court found the cultural expert testimony elicited in these
cases too vague, generalized, and unhelpful to assist the trier of fact. We largely agree
with this assessment and see no clear error in the superior court's decision to place no
weight on the sparse testimony provided.
In ICWA cases expert testimony about a tribe's beliefs, practices, and
traditions allows the court to analyze evidence about parental conduct and serious
damage to children within the cultural context of the tribe. This testimony will ideally
address prevailing practices or norms that other witnesses and the court may be unaware
86
of.
For example, if a parent's substance abuse causes the parent to leave the child with
a series of caregivers in the tribe for long periods of time, and OCS's expert psychologist
testifies that the child is in danger of psychological damage due to ruptured attachments,
the cultural expert might testify about the important role of extended family and the tribal
community in raising children, and whether or not the tribe views "constant, day-in and
day-out, mutually reinforcing and reciprocal interactions between the parental figure and
the child" to be a prerequisite for healthy development. The testimony may also
highlight cultural practices that mitigate harm to children where a safety risk might
otherwise be perceived. For instance, a cultural expert might testify about whether tribal
86 Id. at 54 ("Congress wanted to make sure that Indian child-welfare
determinations are not based on 'a white, middle-class standard . . . .' 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." (quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36
(1989))).
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customs of sharing food and other necessities may prevent harm to a child whose parents
are unable to obtain these necessities themselves due to addiction.
To provide meaningful assistance to the court, a cultural expert's testimony
- as with other experts' testimony - must somehow be grounded in the issues or
87 Such grounding can be facilitated in a variety of ways,
questions presented in the case.
including allowing the expert to review relevant records,88 providing the expert with
information, and asking detailed questions that provide the expert with important
context.89 Without context, one could not expect the cultural expert to understand what
values or practices may be relevant to the situation. Relatedly we observe that cultural
experts possess and provide to courts information and perspective vital to upholding the
purposes underlying ICWA.90 A party calling a cultural expert witness should further
the expert's ability to impart this important information and context by providing the
expert with the same reasonable opportunity to prepare for trial afforded to other experts.
87 See Alaska R. Evid. 702(a) (allowing expert testimony provided it "will
assist the trier of fact to understand the evidence or to determine a fact in issue"); Alaska
R. Evid. 703 (explaining that an expert may base opinion on "facts or data in the
particular case . . . perceived by or made known to the expert at or before the hearing").
88 E.g., Ben M. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs.,
204 P.3d 1013, 1020-21 (Alaska 2009) (explaining that expert witness had reviewed
records and heard parent's testimony).
89 J.A. v. State, Div. of Fam. & Youth Servs., 50 P.3d 395, 400-01 (Alaska
2002) (explaining that testimony was sufficiently grounded in facts when the expert
responded to "several hypothetical questions" that included detailed information about
family history, substance abuse and treatment attempts, failed aftercare attempts,
exposure of the children to substance abuse and domestic violence, and sexual abuse).
90 See BIA 2016 Guidelines, supra note 21, at 5 (summarizing legislative
history).
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The cultural experts in the present cases were not afforded any meaningful
opportunity to learn or review relevant facts about the families or safety risks at issue.
Nor did OCS provide any specific or detailed information in its questioning of the
experts. In stark contrast, OCS gave Dr. Cranor at least two months and hundreds of
pages of records to prepare for her testimony in each case. In Linette's case, Ballot, the
expert on the Native Village of Selawik, indicated while testifying that she would have
liked more information about the situation. Charlie, who testified regarding the Nenana
Native Village, had not reviewed any documentation prior to testifying, though she had
some background knowledge from a former case involving the family "a long time ago."
She indicated that access to more information "[p]robably would" have been helpful for
her during preparation for trial.
In Cissy and Butch's case, cultural expert Kaleak admitted that she was not
"very familiar with the facts" of the case and had only ten minutes to review the
91 In direct examination, OCS only provided the background that "the general
petition.
concern[s] . . . [we]re substance abuse, rampant domestic violence, and high risk for
neglect." OCS's argument that Kaleak had the opportunity to review the termination
petition, and that the petition provided sufficient information about the case, is both
unpersuasive and troubling in its presumption that any additional information would not
implicate or inform Kaleak's cultural expertise and insights.92
Without information regarding the facts of the case or detailed questioning,
the experts were forced to discuss tribal practices in very general terms that were not
helpful to the superior court. The questions OCS asked the experts in each case were
91 Cf. J.A., 50 P.3d at 400-01.
92 Cf. id. (describing detailed hypothetical questions at trial concerning the
situation).
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extremely cursory and realistically could only be answered in one way. In each of the
cases, OCS asked the cultural experts some variation of: Is "substance abuse, neglect,
abandonment, domestic violence, and mental illness . . . within the cultural values of [the
Tribe]?" In each of these cases, the cultural experts predictably indicated that those
behaviors or difficulties are not within the cultural values of their Tribes.
During Linette's trial, OCS asked Ballot to explain the Native Village of
Selawik's "prevailing cultural values with regard to child-raising," and Ballot testified
that the Tribe's values include respecting elders, taking care of family, and subsistence
lifestyles. OCS then asked Ballot whether she had "any concerns that the[] children have
been removed from their parents' care because of any . . . violation of those cultural
values." In response Ballot told OCS she would like some more information about the
parents' efforts to regain custody, to which OCS said it could not "give [her] those
answers." When questioning Charlie, OCS asked: "[I]s it a cultural value in the Native
Village of Nenana to keep children safe?" Charlie indicated that it is, and that "[i]t also
should be like that everywhere, really."
The testimony elicited during Cissy and Butch's trial was also quite
superficial. OCS asked just two substantive questions: what the expert would identify
as the cultural values of the Native Village of Barrow and whether substance abuse,
domestic violence, and neglect were within the Tribe's cultural values. Only on cross-
examination did the expert even reference possible interventions within the Tribe -
again only superficially.
This kind of questioning and the responses it elicited do not help the trier
of fact contextualize the parents' conduct and potential damage to the children within the
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93
values and practices of the respective Tribes. As the Nenana Native Village suggests
in its brief, keeping children safe is likely an important value in all cultures. A statement
that the Tribe values keeping children safe is not helpful to a trier of fact. Similarly, it
is not enough to simply ask whether a certain type of conduct (e.g., "substance abuse"
or "domestic violence") is a "tribal value." Substance abuse is not a "value" of any
culture we are aware of, and yet even in non-ICWA cases we do not terminate parental
rights just because parents abuse alcohol or use illegal drugs - what we are focused on
94 The superior court, in its orders denying OCS's motions for
is harm to the child.
reconsideration, identified several lines of questioning that would have elicited helpful
testimony, including how substance abuse is defined within the Tribes and what
interventions would have been available to the families within the Tribes.
In both cases there is reason to believe cultural assumptions informed the
evidence presented to some degree. Had the cultural experts had a chance to review the
record - particularly the other expert testimony - they may have been able to respond
to and contextualize it. For instance, Dr. Cranor emphasized attachment theory and the
economic situation of the families in both cases - areas that may implicate cultural
mores or biases.95 If the cultural experts were aware of this testimony, they could have
93 25 C.F.R. § 23.122(a) (2022).
94 CINA Rule 18(c)(1).
95 BIA Commentary, supra note 19, at 38,830 ("[C]ertain bonding and
attachment theories, presented by experts in foster-care, termination-of-parental-rights,
and adoption proceedings are based on Western or Euro-American cultural norms and
may have little application outside that context."), quoted in In re April S., 467 P.3d
1091, 1098 (Alaska 2020); BIA 2016 Guidelines, supra note 21, at 53 ("[C]hildren can
thrive when they are kept with their parents, even in homes that may not be ideal . . . or
when a parent is single, impoverished, or a substance abuser.").
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addressed attachment theory, economic interdependence, and housing practices in the
context of prevailing tribal standards.
Based on the extremely general nature of the cultural expert testimony, it
was not clearly erroneous for the superior court to afford the testimony no weight.
V. CONCLUSION
WeAFFIRMthesuperior court's denial ofOCS'sterminationpetitions and
remand for further proceedings consistent with this opinion.
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