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Eva H. v. State

Supreme Court of Alaska

March 8, 2019

EVA H., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. KEITH J., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

          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 ...

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