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.
M. Grace, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
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.
FACTS AND PROCEEDINGS
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). 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."
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. 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.
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.
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
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.
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.
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),  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.
joint permanency hearing and termination of parental rights
trial was held over four days in February 2016. 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.
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.
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.
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.
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.
order to terminate parental rights to an Indian child, the
superior court must make five factual findings. 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; (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.
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.
The Superior Court Properly Qualified Robin Charlie As An
Expert Witness Under ICWA.
requires that the likelihood of harm finding be supported by
the testimony of a qualified expert witness. Caitlyn argues
that Charlie, OCS's sole expert witness, did not possess
"expertise beyond the normal social worker
qualifications" - 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,  and we review de novo whether that expert
testimony satisfies the requirements of ICWA. 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.
superior court qualified Charlie under the 2015 Bureau of
Indian Affairs (BIA) Guidelines. 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."Unlike the earlier 1979 BIA Guidelines,
all four of the presumptively qualified expert categories in
the 2015 BIA Guidelines include knowledge ...