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Oliver N. v. State, Department of Health & Social Services

Supreme Court of Alaska

July 5, 2019

OLIVER N., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. LISA B., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

          Appeal in File No. S-17067 from the Superior Court No. 3PA-16-00122 CN of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge.

          Appeal in File No. S-17158 from the Superior Court No. 3AN-14-00379 CN of the State of Alaska, Third Judicial District, Anchorage, Andrew Peterson, Judge.

          J. Adam Bartlett, Anchorage, for Appellant Oliver N. Chris Peloso, Juneau, for Appellant.

          Lisa B. Anna Jay and Mary Lynn Macsalka, Assistant Attorneys General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.

          Marika R. Athens, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for Guardian Ad Litem in No. S-17158.

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

          OPINION

          PER CURIAM.

         I. INTRODUCTION

         In these separate appeals, consolidated for decision, the question we must decide is whether new federal regulations have materially changed the qualifications required of an expert testifying in a child in need of aid (CINA) case involving children subject to the Indian Child Welfare Act (ICWA). We conclude that they have.

         To support the termination of parental rights, ICWA requires the "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."[1]Under the new federal regulations, experts who formerly could be presumptively qualified-based on their ability to testify about prevailing cultural and social standards in the child's tribe, for example-must now also be qualified to testify about the "causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding."[2] We conclude that in these two cases the challenged expert witnesses failed to satisfy this higher standard imposed by controlling federal law. For this reason we reverse the orders terminating the parents' parental rights and remand for further proceedings.

         II. UNDERLYING LEGAL FRAMEWORK

         Congress enacted ICWA in 1978 in recognition of the need to protect Indian children as a "resource . . . vital" to their families' and tribes' survival and to reduce the "alarmingly high percentage" of children removed from Indian families.[3]Alaska's CINA Rules incorporate ICWA's mandates in cases involving Indian children.[4]

         CINA Rule 18(c) sets out the statutory predicates for terminating parental rights to an Indian child:

Before the court may terminate parental rights, the Department must prove:
(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or conditions described in AS 47.10.011 and
(i) the parent has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(ii) the parent has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury; or
(B) a parent is incarcerated and the requirements of AS 47.10.080(o) are met; and
(2)by clear and convincing evidence... in the case of an Indian child, that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful; and
(3) by a preponderance of the evidence that termination of parental rights is in the best interests of the child; and
(4) in the case of an Indian child, by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that 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] (Emphasis added.)

         The final finding set out in that rule reflects the requirement of ICWA section 1912(f):

No termination of parental rights may be ordered in such proceeding in the absence of 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.[6] (Emphasis added.)

         ICWA does not specify the expertise required to support a finding of serious emotional or physical damage to a child, [7] and, as we have noted previously, "ICWA does not define the term 'qualified expert witness.' "[8] Because there is no statutory definition, we previously looked to persuasive authority in legislative history[9] and non-binding Bureau of Indian Affairs (BIA) Guidelines.[10] For many years this meant we looked to the BIA's 1979 Guidelines.[11] More recently we looked to guidelines issued in 2015.[12]

         But in December 2016 the BIA issued formal regulations accompanied by new guidelines discussing their implementation.[13] The introduction to the new regulations notes they were enacted because the Department of the Interior found that "implementation and interpretation of [ICWA] has been inconsistent across States" and that "[t]his disparate application of ICWA ... is contrary to the uniform minimum [f]ederal standards intended by Congress."[14] Although the Department "initially hoped that binding regulations would not be 'necessary to carry out [ICWA],' a third of a century of experience has confirmed the need for more uniformity in the interpretation and application of this important [f]ederal law."[15]

         The regulations set out relevant expert witness requirements and the standard for the "likelihood of harm" finding:[16] "Who may serve as a qualified expert witness?" is explained at 25 C.F.R. § 23.122(a):

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 social and cultural standards of the Indian child's Tribe. (Emphasis added.)
Regarding the likelihood of harm finding, 25 C.F.R. § 23.121 states:
(c) For . . . termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.
(d) Without a causal relationship identified in paragraph (c) of this section, evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child.

         In these two parental rights termination appeals, we consider the superior courts' reliance on experts whose expertise is primarily rooted in their knowledge of tribal customs rather than professional training; the question before us is whether, based on their tribal expertise alone, they have what they "must have" to be qualified to testify under the new regulations. Before reaching that question, we set out each appeal's relevant background.

         III. FACTS ...


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