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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marcia V. v. State, Office of Children's Services (01/21/2009) sp-6333

Marcia V. v. State, Office of Children's Services (01/21/2009) sp-6333, 201 P3d 496

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 13065
Appellant, )
) Superior Court No.
v. ) 3AN-06-131 CN
Appellee. ) No. 6333 - January 21, 2009
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Jack W. Smith, Judge.

          Appearances: G. Blair McCune, Anchorage,  for
          Appellant.    Laura  C.  Bottger,   Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for
          Appellee. Leslie N. Dickson, Assistant Public
          Advocate, and Rachel Levitt, Public Advocate,
          Anchorage, Guardian Ad Litem.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti,  and Winfree, Justices. [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.

          A  mother appeals the termination of parental rights to
her  daughter, an Indian child for purposes of the  Indian  Child
Welfare  Act  (ICWA).   The  ICWA  standard  for  termination  is
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.1  The  mother
argues  that the trial court erred (1) in considering the experts
qualifications  as sufficient to meet the requirements  of  ICWA;
and  (2)  in  finding that the evidence presented  at  trial  was
sufficient  to prove beyond a reasonable doubt the likelihood  of
serious  emotional or physical damage to the child.  Because  the
trial  courts  reliance on the expert witness,  which  was  first
raised on appeal, did not constitute plain error, and because the
court did not err in concluding that the state met its burden  of
proof, we affirm.
          This  case concerns termination of the parental  rights
of  Marcia  to  her  daughter Alice.2  Alice was  born  in  1997.
Marcia  and Alice are Alaska  Natives from the Native Village  of
Barrow. Alice is an Indian child within the meaning of ICWA.
          Marcia  and  Alice  have  a  history  with  the  Alaska
Department  of  Health and Social Services, Office  of  Childrens
Services (OCS),  and with tribal child protective services dating
back  to a substantiated report of neglect in 1999.  In 2003  the
Native  Village of Barrow took care of Alice while Marcia was  in
jail  in  Nome  for an assault charge.  In 2004  Marcia  violated
probation  by  testing positive for cocaine and being  under  the
influence of alcohol.
          Marcia  and  Alice later moved to Anchorage where  they
lived  with relatives.  In March 2006 OCS investigated  a  report
that Alice was no longer attending elementary school.  The school
had  contacted the family with whom Marcia and Alice were  living
and  learned that Marcia had been told to leave the home  due  to
her  use  of  alcohol  and drugs and her  failure  to  contribute
          An  OCS  social  worker found Marcia and Alice  staying
with  Marcias aunt, and learned that two other occupants of  that
home,  Marcias  cousin and uncle, were convicted  sex  offenders.
Marcia sometimes left Alice in their care to visit her boyfriend.
OCS  claims that Marcia did not seem to recognize the danger this
posed to her daughter,  and arranged for Marcia and Alice to stay
at  a  shelter.   Alice was interviewed at the shelter  regarding
sexual abuse, but did not report any such abuse having occurred.
          During April 2006 the shelter asked Marcia and Alice to
spend  a  night  away from the shelter while repairs  were  done.
Marcia sought additional time away from the shelter after she was
told she could return, and the shelter denied this request.  As a
result,  she was discharged from the shelter for failure to  obey
          OCS  took  custody of Alice later in April  2006  after
Marcia left Alice with a friend to look after her, did not return
when  expected, and could not be located.  Marcia said  she  left
Alice  with the friend because she needed to find a new place  to
live, and that the friend had a change of heart and took Alice to
OCS  after  she could not get in touch with Marcia.   OCS  has  a
different version of these events, stating that Marcia  told  the
friend  she would be gone a few hours, then disappeared for  days
before  the  friend  brought Alice to OCS.  OCS  considered  this
abandonment  and  sought to take emergency custody  of  Alice  on
          April 18, 2006.
          Alices  school reported to OCS that while  she  was  in
Marcias  care,  Alice  had been frequently  absent  from  school,
sometimes  for  as  long  as a week,  and  that  she  had  fallen
significantly  behind in her school work.  Marcia told  a  social
worker  that these absences from school were because they had  no
fixed  address  and  moved around a lot between  friends.   After
Alice  entered foster care, her foster parent told social workers
that  Alice  would wake up screaming if she was left alone  while
sleeping.  The foster parent also reported to OCS that Alice  was
hyper  and  had  trouble  focusing.  Anchorage  Community  Mental
Health  Services diagnosed Alice with acute post-traumatic stress
disorder and she entered weekly therapy.  The therapy helped  her
make  significant  progress  with  her  school  performance   and
          Marcia  consistently stated that she loved her daughter
and  wanted to have custody of her.  Alice similarly told  social
workers  that  she  loved  her mother,  and  the  social  workers
observed a noticeable bond between them.  Marcia understood  that
she  needed  treatment  for her substance  abuse  problems.   OCS
developed  a  case plan that required her to attend AA  meetings,
comply  with  a  substance abuse assessment,  and  obtain  stable
employment and housing.
          OCS  viewed  treating Marcias alcoholism as  the  first
priority  of her OCS case plan.  Marcia was drinking heavily  and
sometimes  became violent and had memory lapses when intoxicated.
She  reported that she drank on weekends, but that weekends began
on Thursday, and she would consume at least a twelve-pack of beer
on  each  occasion  she  drank.  Her June  2006  substance  abuse
assessment recommended intensive outpatient treatment.  Her  case
plan  called  for her to complete twenty-four weeks of  intensive
outpatient  treatment.   Marcia was  referred  to  an  outpatient
treatment program but missed several intake appointments and  did
not  follow  through  on  it.   She  acknowledged  her  need  for
treatment  but  said  she was not strong  enough  for  outpatient
treatment and wanted to enter an inpatient program.  She declined
to  enter two suggested inpatient programs because they would not
allow  her daughter to join her.  Eventually Marcia did  enter  a
thirty-six-day treatment program for alcohol abuse in Sitka.  She
attended  thirty-five days of the program, and made some progress
there, attending classes and meetings for alcohol abuse and anger
management,  and completing homework assignments.   However,  she
was discharged in October 2007 without completing the program due
to  non-compliance  with  rules and threatening  behavior  toward
staff and peers.
          After  Alice entered foster care in April 2006, Marcias
visitation with her daughter was very sporadic, according to  her
OCS  social worker.  There were gaps of up to four weeks or  more
when  she did not visit.  She was often difficult to contact  due
to  her lack of a permanent address.  In September 2006 OCS asked
her to sign a visitation contract due to her record of being late
or not showing up for scheduled visitation appointments.  In late
2006  she  told her social worker she had just spent a  month  in
jail  on  assault charges.  OCS informed her that she  needed  to
work on completing tasks in her case plan and become engaged; OCS
also  informed her that if Alice remained in foster  care  as  of
April  2007,  OCS  would  be required to  petition  to  terminate
Marcias parental rights.
          Additional    factors   besides    alcoholism    likely
contributed  to  Marcias lack of success in  following  her  case
plan.   She has been diagnosed with severe post-traumatic  stress
disorder.  She reported that she had been sexually abused by  her
father,  as  a  result of which she herself as a child  had  been
declared a child in need of aid.  She had also witnessed her  own
mother  commit  suicide.  As an adult, Marcia  was  a  victim  of
domestic  violence.  She told OCS that she had  recently  escaped
from  a  very  abusive relationship with a man who beat  her  and
would not let her leave or use the telephone.  She once showed up
in the OCS office visibly bruised from a beating.  The OCS social
worker  offered to call the police or help her get into a shelter
because of this abuse, but she declined.  A further challenge was
her lack of a stable residence.  Because she moved from place  to
place  so much, it was difficult for OCS to stay in contact  with
          Around  the end of 2006, Marcia told OCS she wanted  to
move  back  to Barrow, and to have Alice moved to a  foster  home
there.   OCS  eventually placed Alice in a  new  foster  home  in
Barrow.   Marcia  moved back to Barrow where she lived  with  her
father   and  began  visiting  her  daughter.   However,  Marcias
substance  abuse and erratic behavior also continued  in  Barrow.
She  was arrested for assaulting and injuring her father in March
2007,  and  in  another incident in April 2007 she was  medivaced
from  Barrow to Anchorage for medical treatment, where she tested
positive for alcohol and methamphetamines.  She reported that she
was  using methamphetamines and drinking a bottle of hard  liquor
every  other day.  In May 2007 she spent twenty days in jail  for
probation violations.
          In  Barrow Marcia also alarmed Alices foster family and
the  social  worker by taking Alice without permission  to  visit
with  Marcias  father.  Because Marcia had reported  past  sexual
abuse by her father, her social worker strongly warned her not to
do this again.
          On  November 14, 2006, Alice was adjudicated a child in
need  of aid, and on April 11, 2007, the superior court committed
her  to  OCS  custody  for up to two years.   In  July  2007  OCS
petitioned for termination of Marcias parental rights.
          At the termination trial in January 2008, Alices father
voluntarily  relinquished his parental rights.3  Marcia  received
notice  of  the trial, but she did not attend it.  Before  trial,
Alice  had told a social worker that she wanted to return to  her
mother, but also accepted the possibility she might be adopted by
the foster family with whom she was living.
          The  trial court heard testimony from two witnesses who
worked  as  social workers on Marcias case.  Kimberly Goines  was
the  social worker who handled Marcias case from around June 2006
through  April  2007.  She testified that Marcia did  not  comply
with her case plan for treatment of her substance abuse problems.
She also testified that Marcias care placed Alice at risk because
          of the lack of a stable home, exposure to sex offenders, and
domestic  violence  from  Marcias boyfriends.   A  second  social
worker,  Michelle  Virden,  who succeeded  Goines  on  the  case,
provided  similar  evidence.  Virden  also  noted  that,  to  her
knowledge,  Marcia  had not completed any elements  of  her  case
plan.   The court admitted into evidence Marcias OCS case  plans,
records,  and  correspondence  from  the  familys  treatment  and
service providers, and some of her past court records.
          The  court also took expert testimony from Tricia Tank,
an OCS supervisor.  The court qualified Tank as an expert witness
on  the question of the impact of substance abuse on the care and
abandonment  of  a child  without objection.  Her  testimony  was
based  on  a  review  of Marcias case file, the  trial  exhibits,
police  reports,  and other records, as well as speaking  to  OCS
social worker Virden and Virdens supervisor.  Tank concluded that
Marcia  had  not  remedied the problems that brought  Alice  into
state  custody, and that she could not maintain a sober lifestyle
or  provide  a  safe  home  and adequate  care  for  Alice.   She
testified  that Marcias substance abuse had caused her  bond  and
attachment  with Alice to deteriorate: [A] child of [Alices]  age
needs  a  stable, healthy parent to care for her.  She  needs  to
have her basic needs met by her mother, her basic clothing, food,
shelter,  educational, medical care . . . and it does not  appear
as  though  [Marcia]  has been able to do that  for  her.   As  a
result,  she said, Alice was at risk of developing an  attachment
disorder.  She pointed in particular to Marcias inability to stay
sober,  her  exposure of Alice to unhealthy people, her  sporadic
visitation  of  Alice in foster care, and her inability  to  make
arrangements  for  Alices  care  while  incarcerated.   She  said
normally  a parent would need to demonstrate at least six  months
sobriety before reunification would be allowed, but the  need  to
provide Alice with a stable home precluded waiting any longer  to
see if Marcia could eventually achieve this.
          Tank  concluded  that  Alice was  in  substantial  risk
of  .  . . emotional and physical neglect if she were in the care
of  [Marcia].  She later characterized this as a serious risk  of
emotional and physical neglect.
          On February 6, 2008, the court found there was evidence
beyond  a  reasonable  doubt that Marcias custody  of  Alice  was
likely to result in serious emotional and physical damage to  the
child, and terminated Marcias parental rights.
          In  a  child  in need of aid case, we will sustain  the
trial courts factual findings unless they are clearly erroneous.4
Factual findings are clearly erroneous if a review of the  entire
record in the light most favorable to the prevailing party leaves
us  with  a definite and firm conviction that a mistake has  been
made.5   Thus, we will ordinarily not overturn a superior  courts
findings  based  on  conflicting evidence.6  We  review  a  trial
courts application of law to factual findings de novo.7
          The  question of whether an experts testimony presented
at  trial  is  sufficient pursuant to ICWA is a  legal  question,
which we review de novo.8
          We  review  issues not raised at trial only  for  plain
          error.9  Plain error exists where an obvious mistake has been
made which creates a high likelihood that injustice has resulted.10
          The  decision to terminate parental rights in this case
is  governed  by  both  state and federal  statutes.  Alaska  law
requires  that  the superior court find by clear  and  convincing
evidence  that (1) the child is in need of aid as defined  in  AS
47.10.011;11  (2)  the parent has not remedied the  circumstances
that put the child in need of aid, or made sufficient progress in
doing  so;12 and (3) the state made reasonable efforts to support
reunification  of  the family.13  In making these  findings,  the
court  can  also  consider any factor that relates  to  the  best
interests of the child.14
          In  addition  to  the state requirements,  federal  law
requires  additional showings for termination of parental  rights
with  respect to children determined to be Indian children within
the  meaning of ICWA.15  The party seeking to terminate  parental
rights  must  show by clear and convincing evidence  that  active
efforts have been made to keep the family together and that those
efforts have proved unsuccessful.16  ICWA   1912(f) requires that
a  court  find beyond a reasonable doubt, based on evidence  that
includes  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.17  Such a finding requires proof both that the parents
conduct  is  likely  to  harm the child, and  proof  that  it  is
unlikely the parent will change her conduct.18
          It  is  on  the  basis  of ICWA   1912(f)  that  Marcia
appeals.  She  makes two arguments. First, she  argues  that  the
trial  court  erred by relying on an expert whose  qualifications
were insufficient under ICWA  1912(f).  Second, she asserts for a
variety  of reasons that the evidence as a whole does not support
beyond a reasonable doubt the likelihood of serious emotional  or
physical damage to Alice.
     A.   The  Trial Court Did Not Commit Plain Error by Treating
          the Expert Witness as Sufficiently Qualified Under ICWA
          Marcia  argues  that there are glaring deficiencies  in
the qualifications of the expert witness Tricia Tank with respect
to  the expert witness requirement of ICWA  1912(f) because:  (1)
Tank  lacked  expertise in Native culture; and  (2)  Tank  lacked
sufficient education, training, and experience.  We conclude that
the  first of these claims lacks any merit, because expertise  in
Native  culture  is not required in a termination  case  of  this
kind.  The  second claim has some support in ICWA guidelines  and
legislative history, but Marcia made no objection to the  experts
qualifications at trial, and the argument for error is not strong
enough  to  reverse  or remand under a plain  error  standard  of
          1.   The  trial  court did not err in  relying  on  the
               testimony of an expert who lacked familiarity with
               Native culture.
          In L.G. v. State,19 we noted that ICWA does not require
testimony from an expert in Native culture to terminate  parental
          rights when there is clear evidence of physical neglect . . . .20
Marcia  acknowledges  this, but argues  that  the  lack  of  such
expertise  is  nevertheless a deficiency  that  the  expert  must
overcome  with particularly clear and compelling testimony:  Tank
was  not  qualified to give opinions concerning [N]ative children
and  certainly  did  not testify to such a  clear  likelihood  of
serious  emotional or physical damage that expertise in  [N]ative
culture could be dispensed with.  (Emphasis added.)
          When  the basis for termination is unrelated to  Native
culture  and  society  and  when any  lack  of  familiarity  with
cultural  mores  will not influence the termination  decision  or
implicate  cultural  bias  in  the  termination  proceeding,  the
qualifications  of an expert testifying under  1912(f)  need  not
include familiarity with Native culture.21  The termination order
by  the  trial  court  relied on evidence of Marcias  addictions,
violent  behavior, incarceration, inability to provide  a  stable
home,  neglect,  exposure  of Alice to  sex  offenders,  domestic
violence in the home, and  abandonment of Alice.  Nothing in  the
trial  record  or in Marcias appeal suggests that  cultural  bias
might  have  been  at issue, or that considering the  appropriate
tribal  standards of child care would affect the  disposition  of
the  case.   Thus, Tanks lack of familiarity with Native  culture
cannot  be  considered  a  deficiency in  her  qualifications  to
testify under  ICWA   1912(f).
          2.                                                     T
          Marcia  attacks Tanks education and experience, arguing
that  the trial court erred as a matter of law in relying on  her
testimony  to satisfy the requirements of ICWA  1912(f).   Marcia
concedes that she did not raise this issue at trial, meaning that
it  must be reviewed under a plain error standard of review.  The
legislative  history of and federal guidelines for  ICWA  provide
some  support  for the argument that a clearer foundation  should
have  been  laid  at  trial  for this experts  qualifications  in
relation  to the purposes of ICWA. However, we conclude  that  if
there  was  any  error  here, it cannot be considered  reversible
error under the plain error standard of review.
          ICWA  1912(f) heightens the requirements for an experts
qualifications  beyond  those normally  required  to  qualify  an
expert. In L.G. v. State, we noted that Congress intended ICWA to
prevent  Native children from being separated from their families
solely  on  the basis of testimony from social workers  who  were
unable  to  distinguish  between cultural  variations  in  child-
rearing  practices and actual abuse or neglect.22   Federal  ICWA
guidelines  describe  the three types of experts  that  are  most
likely  to  meet ICWAs requirements: (1) a member of  the  childs
tribe  recognized  by  the tribal community as  knowledgeable  in
tribal customs pertaining to family organization and childrearing
practices,  (2)  a  lay  expert with substantial  experience  and
knowledge regarding relevant Indian social and cultural standards
and  childrearing practices and the delivery of child and  family
services  to  Indians,  or  (3) [a]  professional  person  having
substantial  education  in the area of his  or  her  specialty.23
There  is no indication Tank could have been qualified under  the
first two subparts, so under these guidelines she would have  had
to  qualify by virtue of substantial education in the area of her
specialty.   The  legislative history of  ICWA  provides  further
guidance,  stating that the education and training of the  expert
should  constitute  expertise beyond  the  normal  social  worker
          The  legislative  history and ICWA guidelines  are  not
regulations  and are not binding. But in the past we have  turned
to  the  ICWA guidelines and legislative history for guidance  in
interpreting  the expert witness requirement of  ICWA,  and  made
clear  that more is required of an ICWA expert than simply  being
qualified as some kind of expert under the rules of evidence.25
          To  discuss  Tanks level of education and expertise  in
her  area of specialty requires clarifying what kind of expertise
the  trial  court determined her to possess.  The  OCSs  attorney
moved  to qualify her as a witness on child welfare.  After  voir
dire, the judge told the witness that he understood her testimony
would concern whether continued custody of the child in this case
by  the  parent  was  likely to result in  serious  emotional  or
physical  damage  to  the child (i.e., the  finding  required  by
1912(f)).   After further discussion, the attorneys agreed  that,
while Tank would not be qualified as an expert on alcoholism, she
would  testify  as  to how the substance abuse is  impacting  the
abandonment  and  care  of the child  .  .  .  .   After  further
discussion, the judge stated, All right.  Ill qualify her  as  an
expert  for  the reasons stated.  The judges remarks  make  clear
that  he  viewed Tank as an expert with respect to  the  required
findings  of ICWA  1912(f).  It is also clear that the  attorneys
for  the  parties agreed Tank was an expert with respect  to  the
effects of parental substance abuse on the welfare of a child.
          Tank   holds   a   bachelor  of   science   degree   in
Administration of Justice.  At the time of trial  she  had  about
seven  years  of OCS experience.  She had been an OCS  permanency
supervisor for three years, during which time she had supervisory
responsibility over six line staff working on ninety-six cases at
a  time.   Prior  to  that she had been a  team  decision  making
facilitator  for just under a year, and a permanency line  worker
for  three  and  a  half years.  As a line worker  she  had  been
responsible  for about twenty-one cases at any given  time.   She
had testified as an expert witness in four previous child welfare
cases  involving issues of substance abuse, abandonment, and  the
likelihood  of serious emotional or physical damage to  a  child.
Her  resume  lists thirteen trainings in various areas  of  child
protection  she  received  between 2001  and  2006,  in  subjects
including effects of abuse and neglect on children, placement and
reunification, sexual abuse interviewing, and risk assessment.
          Based  on  these qualifications, we conclude  that  the
court  did  not  abuse its discretion in qualifying  Tank  as  an
expert  on  child welfare. As a line worker and supervisor,  Tank
has  been  involved in many dozens, probably hundreds,  of  child
welfare  cases.  She has received numerous specialized  trainings
in  addition  to  her undergraduate degree in  administration  of
          However,  it  requires further inferences  to  conclude
that Tank has expertise beyond that of a normal social worker, or
that  she  has  substantial education regarding  the  effects  of
parental  substance  abuse on children. Such  inferences  may  be
reasonable,  in  that it is quite possible that Tanks  experience
and  training  as a social worker and supervisor give  her  these
heightened  qualifications.  But it is not obvious  that  counsel
for OCS laid a sufficient foundation.  Ideally counsel would have
inquired more deeply into the specialized areas in which Tank was
claimed  to  be  expert,  particularly the  effects  of  parental
substance  abuse  on children. The record does not  unambiguously
reflect  a  foundation for Tank having the expertise  beyond  the
normal social worker qualifications that ICWA legislative history
indicates  was intended by the law, nor the substantial education
in  the  area  of his or her specialty recommended  by  the  ICWA
          The  state argues that this court has relied on  expert
testimony  presented  by  OCS social workers  in  other  reported
cases.   However,  in  the  two cases cited  by  the  state,  the
sufficiency of the social workers qualifications under ICWA  does
not  appear to have been at issue.26  Furthermore, in both  cases
the  testimony  of the social worker was supported by  additional
testimony from a psychologist.27  In any case, the question is not
whether  a social worker could be a qualified expert under  ICWA,
but  what  level  of education and expertise is necessary  for  a
social worker to satisfy ICWAs legal requirements.
          We  conclude,  however, that we need not plumb  further
the  question whether Tank had expertise beyond that of a  normal
social  worker,  because Marcia abandoned  the  issue  at  trial.
After  voir  dire  of the witness, Marcias counsel  indicated  no
objection  to her testifying as an ICWA expert:  Your honor,  for
purposes of Ms. Tank, Im not going to object to her qualification
as  an expert as to this case . . . .  If its in terms of talking
about  how  the substance abuse is impacting the abandonment  and
care  of the child, I have no objection.  Because it was possible
to  infer from Tanks known qualifications that she possessed  the
qualifications necessary under ICWA, it was not plain  error  for
the  trial  court  to  accept  Marcias  acquiescence.   The  high
likelihood of injustice required to reverse under the plain error
standard of review is not present here.
     B.   Substantial Evidence Supports the Trial Courts  Finding
          that  the  State Met Its Burden of Proof Regarding  the
          Likelihood of Serious Emotional or Physical  Damage  to
          the Child.
          Marcia   argues  that  the  evidence   at   trial   was
insufficient to support the courts finding, as required  by  ICWA
1912(f),   of  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.28
The trial court concluded that it had heard evidence meeting this
          Marcia   claims  the  court  erred  in  reaching   this
conclusion  for  a  variety  of  reasons.  Among  them  are   the
qualifications of the expert, discussed above.  In addition,  she
argues the judge erred with respect to (1) findings of fact about
the  risk  to Alice of sexual abuse, (2) findings of  fact  about
emotional problems already experienced by Alice, (3) reliance  on
testimony  of  an expert who did not speak to key witnesses,  and
(4)  reliance  on  an expert whose conclusions  were  couched  in
language  that  differed  from  the  findings  required  by  ICWA
1912(f). We conclude that none of these arguments has merit,  and
that the trial court did not err in concluding that the state met
the burden of proof required by ICWA  1912(f).
          1.    The  trial court did not err in its  findings  of
fact about the risk of             sexual abuse.
          Marcia is especially concerned about the courts finding
          that she left Alice with sexual perpetrators.   Marcia does not
dispute  that Marcia and Alice lived with a cousin and uncle  who
were  convicted  sex offenders and was sometimes  left  in  their
care.  Nor does she dispute that she brought Alice along to visit
Marcias father in Barrow, despite the fact that her father had in
the past sexually abused her.
          It  was  not  error for the trial court  to  view  this
evidence  as  supporting its ultimate finding of a likelihood  of
serious  emotional or physical damage. The fact that  Marcia  and
Alice  were  living with convicted sex offenders (the  uncle  and
cousin)  and  that Marcia sometimes left Alice  alone  with  them
worried  OCS  social workers sufficiently  that  OCS  immediately
sought  to  place Marcia and Alice in a shelter  and  have  Alice
screened for possible sexual abuse.  OCS also found troubling the
fact   that  Marcia  did  not  express  to  social  workers   any
recognition  that  convicted sex offenders  posed  a  significant
safety  risk to her young daughter.  Given that OCS viewed  these
contacts  as  a significant safety risk, a claim not rebutted  by
Marcia, it was not error for the court to interpret that evidence
in a similar fashion.
          In the same vein, Marcias taking Alice to visit Marcias
father, who had sexually abused Marcia as a child, could properly
be  considered  by  the superior court in weighing  the  risk  of
sexual abuse of Alice if left in her mothers custody.
          Thus,  the  trial court did not clearly err in  finding
that  Marcia  placed  Alice  at  risk  by  exposing  her  to  sex
offenders.   Marcia does not dispute that she left Alice  in  the
care of sex offenders in Anchorage.  Regarding Marcias father  in
Barrow, the superior court could properly consider even a  single
visit  to  him  to be evidence that the mother exposed  Alice  to
risky  contact with sex offenders.  OCS supervisor  Tricia  Tank,
the  expert witness, testified that Marcias taking Alice to visit
Marcias father was very dangerous.
          In  conclusion,  the  superior court  did  not  err  in
considering  the facts concerning exposure to sexual perpetrators
as evidence of a risk of emotional or physical damage, nor in the
weight it placed upon this evidence.
          2.    The  trial court did not err in its  findings  of
fact about emotional               harm to the child.
          Marica  expresses her concern about testimony regarding
Alices  difficulties  such as nightmares and adjustment  problems
when   initially  placed  in  foster  care.   Marcia  notes  that
subsequent  therapy  helped alleviate these  emotional  problems.
This  falls  far  short of establishing any error  by  the  trial
court.   The  record is replete with descriptions of  actual  and
potential emotional harm caused by Alices unstable home life, and
by  her  mothers  substance abuse and  neglect.   As  the  expert
witness testified and as the judge concluded, these facts  tended
to show the harmful effects of Marcias conduct on the child.  The
question  of  whether returning the child to Marcias  care  would
likely harm the child turns on the nature of Marcias conduct  and
whether  she has made enough progress in changing her problematic
behavior,  not  the  extent to which the  emotional  damage  such
behavior causes can be mitigated by therapy.
          3.   The  trial  court did not err in  relying  on  the
               testimony  of an expert who did not interview  the
               mother, daughter, or non-OCS service providers.
          Marcia  argues  that Tanks testimony is  undermined  by
weaknesses such as basing her testimony principally on  a  review
of the OCS file and not speaking to Marcia, Alice, or any non-OCS
treatment   providers.   The  question  of  whether  an   experts
testimony presented at trial is sufficient pursuant to ICWA is  a
legal question that we review de novo.29
          We  have  held that pretrial interviews by  the  expert
with  the parties in a termination case are not required in every
case.30  A review of state records and summaries of relevant facts
can  be  enough  if they keep the experts testimony  sufficiently
grounded in the facts and issues of the case.31  However, we have
also  acknowledged that an experts exclusive reliance on the case
file  without  speaking to the parent or  child  may  weaken  the
          This  case  differs significantly from other  cases  in
which  over-reliance  on documents fatally weakened  the  experts
testimony.  For example, in C.J. v. State,33 the experts testimony
was  weakened  because the expert never spoke with the  father.34
However,  that  omission  was part of a broader  failure  of  the
expert  to  ground himself in the particulars of the case.  As  a
result,  his  testimony provided little more than generalizations
about  the  harms resulting from a parent's absence  and  .  .  .
little  discussion of the particular facts of this  case.35   The
expert also failed to address key facts about how the father  had
taken  major  steps to redress problems in his suitability  as  a
parent  such as finding new employment.36  In J.J. v.  State,  an
experts  testimony  was  similarly held to  be  weakened  by  the
experts reliance on the case file without interviewing the parent
or  children.37   Like the expert in C.J., that experts  lack  of
preparation  resulted  in testimony that  was  little  more  than
generalizations  and  that missed key  facts  about  the  parents
progress in meeting case plan requirements.38
          In  the present case, there is no indication that  Tank
missed  any  important facts regarding Marcias suitability  as  a
parent.   Tank read the case file, including all of the exhibits,
as  well  as case notes, assessments, police reports,  and  other
records that were not submitted as exhibits.  She also spoke with
Marcias social worker and that social workers supervisor.  In her
testimony,  Tank  touched on many specifics of the  case.   These
included  Marcias drinking problem and inability to remain sober,
her  failure  to  make  significant  progress  on  treating  that
problem,  her sporadic visitation of her daughter,  her inability
to provide a stable home and maintain a healthy relationship with
Alice,  Alices resulting emotional difficulties, Marcias exposing
Alice  to  sex  offenders,  Marcias repeated incarcerations,  and
Alices problems in school while in Marcias care.
          In   conclusion,   Tanks  testimony  was   sufficiently
grounded in the facts and specifics of this case, and there is no
indication that the failure to interview the mother, daughter, or
other   service   providers  undermined  the  validity   of   her
conclusions.  There was no error in the courts reliance  on  such
          testimony to meet the proof requirements of ICWA  1912(f).
          4.   The  trial court did not err in relying on  expert
               testimony   that   couched  its   conclusions   in
               different language than that required for the ICWA
               1912(f) findings.
           Marcia argues Tanks testimony is deficient because she
did  not specifically state her conclusions regarding risk to the
child in the same language used in ICWA  1912(f).  We review this
issue  de  novo  since it goes to whether the  experts  testimony
presented at trial is sufficient pursuant to ICWA.39
          The   statute   requires  that  the  court  terminating
parental  rights must make 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.40  Tank testified that
placing  Alice in Marcias care would put her at substantial  risk
of  emotional and physical neglect.  She later characterized this
as  a  serious risk.  She also noted that Alice was  at  risk  of
developing an attachment disorder.
          Marcia argues that Tanks failure to actually state that
return  of  Alice  to  Marcia was likely  to  result  in  serious
emotional  or  physical damage presents a critical deficiency  in
the States case and the termination order which resulted from it.
This  is  a misinterpretation of what the statute requires.   The
findings of a likelihood of serious emotional or physical  damage
are findings that must be made by the trial judge, not the expert
witness.   The expert testimony constitutes some of the  evidence
upon which the judge bases this finding.  But it does not need to
be  the sole basis for that finding; it simply must support it.41
Nothing about the way Tanks conclusions were stated suggests that
the judge erred in relying on this testimony to make the findings
mandated by  1912(f).
          5.    Substantial  evidence supports the  trial  courts
          Substantial evidence in the record supports the  courts
conclusion  that  the state had proven beyond a reasonable  doubt
that  returning Alice to Marcias care was likely to cause serious
emotional or physical damage to her.  Most of the facts that  the
court  based  this  conclusion on  including Marcias  alcoholism,
neglect of Alice, repeated incarcerations, and failure to  comply
with her case plan  were not disputed. V.    CONCLUSION
          Because  the superior court did not commit plain  error
in  treating  the  expert witness as qualified  under  ICWA,  and
because substantial evidence supports the superior courts finding
that  returning Alice to Marcia was likely to result  in  serious
emotional or physical damage to the child, we AFFIRM the decision
of the superior court terminating Marcias parental rights.

     1    25 U.S.C.  1912(f) (West 2008).

     2     We  use  pseudonyms to protect the identities  of  the
family members.

     3     The  role  of Alices father in her upbringing  is  not
entirely  clear  from the record, but it was quite  limited.   In
June 2006 he met with a social worker and discussed his obstacles
to  successful  parenting: substance abuse, lack of  housing  and
domestic  violence issues.  There is no indication that  he  ever
visited Alice while she was in foster care.

     4     Brynna B. v. State, Dept of Health & Soc. Servs.,   88
P.3d 527, 529 (Alaska 2004).

     5    Id.

     6    Id.

     7    Id.

     8    E.A. v. State, 46 P.3d 986, 989 (Alaska 2002).

     9     In re Adoption of L.E.K.M., 70 P.3d 1097, 1100 (Alaska

     10    Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981).

     11    AS 47.10.088(a)(1)(A).

     12    AS 47.10.088(a)(1)(B).

     13    AS 47.10.088(a)(3), 47.10.086.

     14    AS 47.10.088(b).

     15     Indian  child is defined at 25 U.S.C.  1903(4)  (West

     16      25  U.S.C.   1912(d);  see  AS  47.10.088(a)(3);  AS

     17     25  U.S.C.  1912(f); see also Child in  Need  of  Aid
(CINA) Rule 18(c)(2)(4).

     18     L.G. v. State, Dept of Health & Soc. Servs., 14  P.3d
946, 950 (Alaska 2000).

     19    Id.

     20    Id. at 952.

     21    Id. at 952-53.

     22    Id.

     23     Guidelines  for  State Courts; Indian  Child  Custody
Proceedings, 44 Fed. Reg. 67,584, 67,593 (1979), quoted in In  re
Termination of the Parental Rights of T.O., 759 P.2d  1308,  1309
n.3 (Alaska 1988) (emphasis added).

     24     H.R. Rep. No. 95-1386, at 22 (1978), as reprinted  in
1978  U.S.C.C.A.N. 7530, 7545; see, e.g., Matter of  Adoption  of
H.M.O.,  962 P.2d 1191, 1197 (Mont. 1998); In re M.J.J., 69  P.3d
1226  (Okla.  Civ. App. 2003); In re Dependency of  Roberts,  732
P.2d 528 (Wash. App. 1978).

     25     See, e.g., L.G., 14 P.3d at 952-53; In re Termination
of Parental Rights of T.O., 759 P.2d at 1309.

     26     See L.G., 14 P.3d at 951, 953; E.M. v. State, Dept of
Health  &  Soc. Servs., Div. of Family & Youth Servs.,  959  P.2d
766, 769-70 (Alaska 1998).

     27    See L.G., 14 P.3d at 951; E.M., 959 P.2d at 769-70.

     28    25 U.S.C.  1912(f) (West 2008).

     29     E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 989 (Alaska 2002).

     30     See  J.A.  v. State, DFYS, 50 P.3d 395,  400  (Alaska

     31    Id.

     32     See J.J. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 38 P.3d 7, 10 (Alaska 2001).

     33     C.J. v. State, Dept of Health & Soc. Servs., 18  P.3d
1214 (Alaska 2001).

     34    Id. at 1218.

     35    Id.

     36    Id. at 1219.

     37    38 P.3d at 10.

     38    Id. at 10-11.

     39     E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 989 (Alaska 2002).

     40    25 U.S.C.  1912(f); see also CINA Rule 18(c)(2)(4).

     41    See E.A., 46 P.3d at 992.

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