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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
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, e-mail firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA
|) Supreme Court No. S- 13065|
|) Superior Court No.|
|v.||) 3AN-06-131 CN|
|STATE OF ALASKA, OFFICE OF||)|
|CHILDRENS SERVICES,||) O P I N I O N|
|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. I. INTRODUCTION 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. II. FACTS AND PROCEEDINGS 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 financially. 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 curfew. 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 anxiety. 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 her. 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. III. STANDARD OF REVIEW 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 IV. DISCUSSION 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 Standards. 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 review. 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 h e t r i a l c o u r t d i d n o t c o m m i t p l a i n e r r o r w i t h r e g a r d t o t h e q u a l i f i c a t i o n s o f a n e x p e r t w i t n e s s u n d e r I C W A 1 9 1 2 ( f ) . 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 qualifications.24 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 justice. 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 guidelines. 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 standard. 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 testimony.32 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 ruling. 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 2003). 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 2008). 16 25 U.S.C. 1912(d); see AS 47.10.088(a)(3); AS 47.10.086. 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 2002). 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.
Statutes, Regs & Rules