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Caitlyn E. v. State

Supreme Court of Alaska

June 16, 2017

CAITLYN E., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

         Appeal from the Superior Court of the State of Alaska Court Nos. 4BE-13-00001/ 00002 CN, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge.

          Appearances: William T. Montgomery, Assistant Public Advocate, Bethel, and Richard Allen, Public Advocate, Anchorage, for Appellant.

          Joanne M. Grace, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          BOLGER, JUSTICE.

         I. INTRODUCTION

         The superior court terminated a mother's parental rights to two of her Indian children. She now appeals, contesting the qualification of the ICWA-required expert witness and the finding that OCS made active efforts to prevent the breakup of the Indian family. Because the superior court's decision to qualify the expert witness was not an abuse of discretion, and because the superior court's active efforts finding was not erroneous, we affirm the termination of the mother's parental rights.

         II. FACTS AND PROCEEDINGS

         Caitlyn E., a Yupik woman, lives in Bethel and is the mother of Maggie and Bridget, ages nine and six at trial, who are Indian children within the meaning of the Indian Child Welfare Act (ICWA) based on their affiliation with the Orutsararmiut Native Council (the Tribe).[1] Caitlyn has struggled with abuse of both legal and illegal drugs since a young age. She regularly sought narcotics for back pain, and Maggie tested positive for cocaine and marijuana when she was born. The Office of Children's Services (OCS) received other reports of harm; at a doctor's visit when the girls were toddlers, they reportedly had multiple impetigo sores on their bodies and had to be cleaned by the doctor, and Caitlyn smelled like marijuana. Caitlyn was also reported to have been violent toward both her daughters, kicking Maggie and giving her a bloody nose, and, while drunk, swinging Bridget around "like a rag doll."

         OCS took emergency custody of Maggie and Bridget in January 2013 after receiving reports that Caitlyn exposed Maggie to marijuana and, while intoxicated, took Maggie from the safety of Caitlyn's mother's home and allowed her to be driven by a drunk driver. The children were placed with Caitlyn's mother, Sarah, who qualified as a preferred placement under ICWA.[2] In the ensuing months, OCS worked extensively with Sarah, helping get the family into better housing and obtain fuel oil and funding for additional food.

         Caitlyn initially participated in the case, but disengaged before long. She apparently dropped out of contact with both OCS and her attorney until August 2013, when she renewed her interest in parenting after initially consenting to allow Sarah to adopt the children but later withdrawing that consent. During the spring of 2013, Caitlyn was also diagnosed with active tuberculosis for which she refused treatment.

         Although Caitlyn reengaged in services in August and later obtained a substance abuse assessment, she was unable to start treatment due to her tuberculosis; no treatment center would accept her while she had active tuberculosis. In June 2014, a few days after finishing her tuberculosis medication, Caitlyn entered treatment at Phillips Ayagnirvik Treatment Center (PATC) in Bethel, but she was discharged after less than two weeks for possession of marijuana and unprescribed pills. PATC then recommended a higher level of care, but instead Caitlyn proceeded to, in her own words, "drink[] for three months straight."

         In November 2014 Caitlyn began treatment at Women and Children's Center for Inner Healing in Fairbanks. OCS completed her application, provided transportation for her, and sent Bridget to join her within 30 days as required by the program. OCS also made arrangements for Maggie to visit. Because Caitlyn initially did well at Women and Children's Center, OCS decided to hold a termination petition in abeyance in January 2015. But Caitlyn was discharged in March for throwing a frozen water bottle at a staff member. Sarah later testified that the sudden removal of Caitlyn and Bridget from the facility when Bridget had been sleeping made Bridget become withdrawn and scared.

         Following Caitlyn's discharge from Women and Children's Center, OCS worked with her to try to get her back into treatment, completing applications to three different facilities on her behalf. Caitlyn agreed to submit to urinalysis tests (UAs) and was given cab vouchers for transportation to her appointments, but she completed no UAs. In September 2015 Caitlyn completed an integrated intake assessment for substance abuse treatment, at which she stated she used drugs on a daily basis and craved heroin. Multiple therapies and inpatient residential treatment were recommended.

         But the following month, Caitlyn again dropped out of contact with OCS. Her caseworker continued to leave messages for her, but she did not respond until February 2016. During that time Caitlyn had been working on her own - without the knowledge or support of OCS - to get re-accepted to Women and Children's Center and had secured a bed date. Caitlyn filed a motion for a review hearing under Alaska Child in Need of Aid (CINA) Rule 19.1(d), [3] asking the court to order OCS to place Bridget with her at Women and Children's Center within 30 days, as required by the program. The court held a hearing on her motion two weeks before the termination trial. OCS opposed Caitlyn's request, explaining that when Caitlyn had been discharged for misconduct, Bridget was traumatized by being suddenly removed along with her mother. OCS stated it was unwilling to risk the same result a second time. The superior court declined to order OCS to place Bridget at Women and Children's Center.

          A joint permanency hearing and termination of parental rights trial was held over four days in February 2016.[4] Five witnesses testified: Caitlyn; Sarah; two OCS caseworkers, Collyn Symmes and Karen Johnson; and ICWA expert Robin Charlie, a Yupik woman with six years of experience doing social services work for the Tribe. The children's guardian ad litem (GAL) and the Tribe also participated.

         Caitlyn testified that she had been sober for 15 months, and she felt her children were safe around her even when she was drinking as long as a sober person was present. She stated that she smokes marijuana "whenever [she] feel[s] like it" and had done so as recently as the day before trial. Her testimony revealed that she chose not to attend UAs. She blamed OCS for interfering with her recovery by switching caseworkers so frequently and for Bridget's traumatizing removal from Women and Children's Center.

         Sarah testified that Caitlyn only intermittently visited her daughters, stating that when she visited in a bad mood, she yelled at Sarah in front of the girls and frightened them. Sarah also testified that Bridget was "a changed little girl" who acted "withdrawn" and "scared" following Caitlyn's and Bridget's discharge from Women and Children's Center. Sarah further testified that at least two OCS caseworkers had made themselves available to her by phone to help her through verbal confrontations with Caitlyn.

         The OCS caseworkers testified regarding efforts they made to get services for Caitlyn and her family, and their difficulty reaching her or securing her cooperation. Symmes testified that he helped get the family into better housing and obtain fuel oil and additional funding for food. OCS lost part of Caitlyn's file while Symmes was assigned to her case, but he testified that Caitlyn could not have been in treatment during that period because she had active tuberculosis. Johnson testified that, after working with Caitlyn to apply to treatment programs, Caitlyn fell out of contact with OCS in the months leading up to the termination trial.

         The superior court qualified Charlie as an expert in Yupik child-rearing practices and child protection over Caitlyn's objection that Charlie lacked social work education and substance abuse expertise. Charlie testified that it was her expert opinion that the children would be at risk of harm if returned to Caitlyn's custody because of her substance abuse and verbal abuse. Charlie explained that substance use in front of children and verbal abuse of family are not normal parts of Yupik culture. On cross-examination Charlie conceded that Women and Children's Center would benefit Caitlyn. She also acknowledged that a delay in permanency would not change the children's situation, as they would be placed with Sarah whether or not Caitlyn's parental rights were terminated and they were old enough to know they were living with their grandmother.

         In order to terminate parental rights to an Indian child, the superior court must make five factual findings.[5] Here, the parties stipulated to the first two findings: that Maggie and Bridget were children in need of aid under AS 47.10.011(6) (physical harm), (9) (neglect), and (10) (substance abuse) and that Caitlyn had failed to remedy the conduct placing them in need of aid. In addition the court made three oral and written findings: (1) by clear and convincing evidence that OCS made active efforts to prevent the breakup of the Indian family;[6] (2) by a preponderance of the evidence that termination is in the best interests of the children; and (3) beyond a reasonable doubt that continued custody of the children by Caitlyn is likely to result in serious emotional or physical damage to them. Accordingly, the superior court terminated Caitlyn's parental rights to Maggie and Bridget.

         Caitlyn now appeals, arguing that Charlie should not have been qualified as an expert witness and that OCS did not make active efforts to prevent the breakup of the Indian family.

         III. DISCUSSION

         A. The Superior Court Properly Qualified Robin Charlie As An Expert Witness Under ICWA.

         ICWA requires that the likelihood of harm finding be supported by the testimony of a qualified expert witness.[7] Caitlyn argues that Charlie, OCS's sole expert witness, did not possess "expertise beyond the normal social worker qualifications"[8] - specifically any expertise in the area of substance abuse - and as such should not have been allowed to give an opinion regarding substance abuse. We review the superior court's decision to admit expert testimony for abuse of discretion, [9] and we review de novo whether that expert testimony satisfies the requirements of ICWA.[10] We conclude that the superior court properly qualified Charlie as an expert witness and properly relied on her testimony to support ICWA's likelihood of harm finding.

         The superior court qualified Charlie under the 2015 Bureau of Indian Affairs (BIA) Guidelines.[11] Those guidelines explain that "[a] qualified expert witness should have specific knowledge of the Indian tribe's culture and customs" and list "in descending order" four categories of persons "presumed to meet the requirements."[12]Unlike the earlier 1979 BIA Guidelines, all four of the presumptively qualified expert categories in the 2015 BIA Guidelines include knowledge ...


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