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 ...