Appeal
from the Superior Court Supreme Nos. S-16796/16816,
4BE-14-00001/ 4BE-16-00021CN of the State of Alaska, Fourth
Judicial District, Bethel, Dwayne W. McConnell, Judge.
Jason
A. Weiner, Gazewood & Weiner, P.C., Fairbanks, for
Appellant
Eva H.
J. Adam Bartlett, Anchorage, for Appellant
Keith
J. Shelley J. White, Assistant Attorney General, Anchorage,
and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
MAASSEN, JUSTICE.
I.
INTRODUCTION
The
Office of Children's Services (OCS) took custody of a
three-month-old child after he was found outside alone on a
cold winter day. The child's mother had an alcohol abuse
problem and had failed repeated attempts at treatment. The
father also had problems with alcohol abuse, never completing
treatment and spending much of the relevant time period in
jail or on probation. The mother and father had a second
child while OCS's case was pending, and the agency took
custody of that child as well. OCS then petitioned to
terminate parental rights to both children. The superior
court granted OCS's petition following trial.
The
parents appeal. The father argues that the superior court
erred when it found OCS's proposed expert witness, an
experienced attorney and guardian ad litem, qualified to
testify about whether the children would likely suffer
emotional or physical harm if returned to their parents'
care. We agree that the record does not support a conclusion
that the witness met the heightened standard for expert
testimony under the Indian Child Welfare Act (ICWA); for that
reason we reverse the termination order and remand the case
for further proceedings.
II.
FACTS AND PROCEEDINGS
In
December 2013 OCS case workers in Bethel found a
three-month-old child, Kevin, [1] alone outside in 14-degree
weather. Kevin's mother, Eva, was in her sister's
home nearby, intoxicated, and Kevin's father, Keith, was
in prison because of a probation violation. OCS placed Kevin
in emergency foster care and petitioned for emergency
custody, which the superior court granted. The parties agreed
that Kevin was an Indian child subject to ICWA.
About
two years later another child, Matt, was born to Keith and
Eva. OCS took custody of Matt shortly after his birth, and
his case proceeded along with Kevin's.
Eva's
primary difficulty was her long-term abuse of alcohol.
Recognizing this, Eva obtained her own substance abuse
assessment before OCS even required it and began attending
alcohol treatment. She attended three different treatment
programs over the course of the case; at trial she testified
she was in the middle of a fourth. But Eva had yet to
successfully complete a program; she either left the program
early or failed to complete aftercare, and she was unable to
maintain sobriety.
Keith
was incarcerated for most of 2014 and 2015. During one of his
periods of release, in October 2015, he and Eva attended a
residential substance abuse treatment program, but both left
the program without completing it.
In
November 2016 OCS petitioned for the termination of both
parents' parental rights. The court held a termination
trial over the course of four days in March and July 2017. On
the last trial day in March the superior court rejected as
unqualified OCS's proposed expert witness, an ordained
minister and part-time OCS social worker, and continued the
trial until July to give OCS the opportunity to find another
expert witness.
When
trial resumed OCS offered a local attorney, Deborah Reichard,
as its expert witness. Reichard had served as a guardian ad
litem (GAL) in the Yukon Kuskokwim Delta for over 18 years-up
to about two years before trial. Over Keith's objection,
the court qualified Reichard as an expert "as to
delivery of child protective services to families in the
Yukon Delta" and "issues that relate to the
substance abuse and how it affects families."
At the
close of trial, the superior court issued an order
terminating the parental rights of Eva and Keith. Both
parents appeal. Eva challenges the findings that she failed
to remedy her conduct and that termination was in the
child's best interests. Keith challenges the superior
court's findings that OCS used active efforts and that
Reichard was a qualified expert witness for ICWA purposes.
III.
STANDARD OF REVIEW
"We
review de novo the court's conclusions of law, such as
whether the superior court's findings and the expert
testimony presented at trial satisfy the requirements of
ICWA."[2]
Whether
parents have remedied their conduct and whether termination
is in the children's best interests are both factual
findings reviewed for clear error.[3]Whether OCS made active
efforts is a mixed question of law and fact, and we review
the legal aspects of this issue de novo.[4]
IV.
DISCUSSION
A.
It Was Error To Find That Reichard Was A Qualified Expert
Witness For Purposes Of ICWA.
ICWA
requires that the termination of parental rights to an Indian
child rest in part on "a determination, supported by
evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the
child."[5] "Under ICWA, the requirements for an
expert's qualifications are heightened beyond those
normally required."[6] Keith challenges the superior
court's decision that Deborah Reichard was a qualified
expert witness for purposes of ICWA.[7]
1.
Reichard's expert qualifications and testimony
Reichard,
OCS's proposed expert witness, was an attorney and former
GAL. She testified that she had a bachelor's degree in
political science as well as her law degree; had worked for
Alaska Legal Services in the Bethel area; and had served as a
GAL for 18 and a half years in the Yukon-Kuskokwim Delta. She
testified that nearly 100 percent of the population she
served as a GAL was Alaska Native. She described the
GAL's "role and responsibilities" as
"looking after the best interests of children, which
involved working with families, with OCS and with social
workers to try to help families, whatever their problems may
be." She testified that these problems included
"issues of substance abuse impacting parenting or
domestic violence" in "[p]robably upwards of 90
percent" of the cases she worked on. She summarized her
role as a GAL as "trying to formulate case plans to try
to help families sort of work through their problems and to
reunite them."
Reichard
testified that she had served as an expert witness for OCS a
number of times in the past several years, that she was
usually asked for her opinion on "[w]hether or not
return of the child or children to their parents is likely to
result in serious emotional and physical damage," and
that she was routinely accepted as a testifying expert on
"[t]he delivery of child protective services to families
on the YK Delta." She testified that during her years as
a GAL she attended training sessions, "sometimes twice a
year" but some years not at all; the subject areas of
these sessions included substance abuse, domestic violence,
trauma, sexual assault, and "OCS practices."
Reichard
was asked more about this training on voir dire. She
testified that it mostly occurred during her last six or
seven years as a GAL "because there weren't many
trainings in the beginning," and that the trainings
ranged in length from "a couple of hours" to
"a couple of days." She testified that other than
acting as an expert witness, she had not done any work in the
area of her suggested expertise since her last GAL assignment
in February 2015. She acknowledged that she had not attended
any college-level classes, authored any publications, or
acquired any certifications or licenses in the area of her
suggested expertise. She agreed that she had no formal
education in psychology, mental health, chemical dependency,
substance abuse, social work, or therapy, and she did not
recall having read any scholarly literature in these areas.
She acknowledged that she was unable to "diagnose mental
health issues," though she testified she could recognize
them based on her experience as an attorney and a GAL. But
she further admitted that she did not use "any documents
or models, like professional references, in order to make
those conclusions"; she relied solely on her experience
as an attorney and a GAL.
Over
the objection of Eva's attorney (joined in by the
children's GAL), the superior court accepted Reichard as
qualified to testify as an expert "as to delivery of
child protective services to families in the Yukon Delta and
to talk about the issues that relate to the substance abuse
and how it affects families." Reichard then testified
that she had reviewed OCS's file, listened to most of the
recordings of previous hearings in the case, and reviewed the
parents' criminal histories on CourtView; on that basis
she concluded that returning the children "to the care
of either of their parents would likely result in severe
emotional or physical damage to these children." She
testified that Eva's substance abuse history was of the
kind "that leads to neglect" and that Keith's
history of "similar substance use issues and his being
in and out of custody" made it unlikely that he could
"create or maintain an appropriate or stable home for
kids." The court relied on this testimony at the close
of trial to conclude "beyond a reasonable doubt"
that returning the children to Eva and Keith "would
result in serious emotional or physical damage to the
child[ren]."
2.
ICWA's qualified expert witness requirement
To
explain why we agree with Keith's argument that Reichard
was not shown to be a qualified expert witness, we first
identify the governing principles. In past cases discussing
expert qualifications, we have looked to guidelines published
by the Bureau of Indian Affairs (BIA), while acknowledging
that they "are not regulations and are not
binding."[8] But in 2016 much of the guidelines'
content was formalized in regulation.[9] In response to the question
"Who may serve as a qualified expert witness?, "
the regulation first explains:
A qualified expert witness must be qualified to
testify regarding whether the child's continued custody
by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child and
should be qualified to testify as to the prevailing
...