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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Eva H. v. State, Dept. of Health & Social Services, Office of Children's Services (3/8/2019) sp-7341

Eva H. v. State, Dept. of Health & Social Services, Office of Children's Services (3/8/2019) sp-7341

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                      

          corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                    



EVA  H.,                                                       )  

                                                               )    Supreme Court Nos. S-16796/16816  

                                                                                                      

                               Appellant,                      )    (Consolidated)  

                                                               )  

          v.                                                   )    Superior Court Nos. 4BE-14-00001/  

                                                                                                     

                                                               )    4BE-16-00021CN  

STATE OF ALASKA,  

                                                               )  

DEPARTMENT OF HEALTH &  

                                                   

                                                                                        

                                                               )    O P I N I O N  

SOCIAL SERVICES, OFFICE OF  

                                                               )  

CHILDREN'S SERVICES,                                                                                  

                                                               )    No. 7341 - March 8, 2019  

                                                               )  

                               Appellee.                       )  

                                                               )  

                                                               )  

KEITH J.,  

                                                               )  

                                                               )  

                               Appellant,                      )  

                                                               )  

          v.                                                   )  

                                                               )  

STATE OF ALASKA,  

                                                               )  

DEPARTMENT OF HEALTH &  

                                                               )  

SOCIAL SERVICES, OFFICE OF  

                                                               )  

CHILDREN'S SERVICES,  

                                                               )  

                                                               )  

                               Appellee.                       )  

_______________________________  )  



                                  

                                                                                                      

                     Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                

                     Fourth  Judicial  District,  Bethel,  Dwayne  W.  McConnell,  

                     Judge.  


----------------------- Page 2-----------------------

                                                                                                      

                    Appearances:  Jason A. Weiner, Gazewood & Weiner, P.C.,  

                                                                                                

                    Fairbanks,   for   Appellant   Eva   H.                     J.   Adam   Bartlett,  

                                                                               

                    Anchorage,  for  Appellant  Keith  J.                       Shelley  J.  White,  

                                                                                                    

                    Assistant           Attorney           General,           Anchorage,              and  

                                                                                             

                    Jahna Lindemuth, Attorney General, Juneau, for Appellee.  



                                                                                                  

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                        

                    and Carney, Justices.  



                                        

                    MAASSEN, Justice.  



I.        INTRODUCTION  



                    TheOfficeofChildren's Services (OCS) tookcustodyofathree-month-old  

                                                                                                         



child after he was found outside alone on a cold winter day.  The child's mother had an  

                                                                                                                             



alcohol abuse problem and had failed repeated attempts at treatment. The father also had  

                                                                                                                            



problems with alcohol abuse, never completing treatment and spending much of the  

                                                                                                                            



relevant time period in jail or on probation.  The mother and father had a second child  

                                                                                                     



while OCS's case was pending, and the agency took custody of that child as well.  OCS  

                                                                                                                          



then petitioned to terminate parental rights to both children.  The superior court granted  

                                                                                                                      



OCS's petition following trial.  

                                                



                    The parents appeal.  The father argues that the superior court erred when  

                                                                                                                



it found OCS's proposed expert witness, an experienced attorney and guardian ad litem,  

                                                                                                                         



qualified to testify about whether the children would likely suffer emotional or physical  

                                                                                                                     



harm if returned to their parents' care.   We agree that the record does not support a  

                                                                                                                               



conclusion that the witness met the heightened standard for expert testimony under the  

                                                                                                                            



Indian Child Welfare Act (ICWA); for that reason we reverse the termination order and  

                                                                                                                            



remand the case for further proceedings.  

                                          



II.       FACTS AND PROCEEDINGS  

                                 



                    In December 2013 OCS case workers in Bethel found a three-month-old  

                                                                                                         



                                                              -2-                                                        7341
  


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                                                                                   1  

 child, Kevin,                                                                           alone outside in 14-degree weather.                                                                                                                                                                                                            Kevin's mother, Eva, was in her                                                                                                                                                            



 sister's home nearby, intoxicated, and Kevin's father, Keith, was in prison because of a                                                                                                                                                                                                                                                                                                                                                                                                                                                         



probation violation.                                                                                                           OCS placed Kevin in emergency foster care and petitioned for                                                                                                                                                                                                                                                                                                                                          



 emergency custody, which the superior court granted. The parties agreed that Kevin was                                                                                                                                                                                                                                                                                                                                                                                                                                          



 an Indian child subject to ICWA.                                                                                                                               



                                                                                   About two years later another child, Matt, was born to Keith and Eva. OCS                                                                                                                                                                                                                                                                                                                                                              



took custody of Matt shortly after his birth, and his case proceeded along with Kevin's.                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



                                                                                   Eva's primary difficulty was her long-term abuse of alcohol. Recognizing                                                                                                                                                                                                                                                                                                              



this, Eva obtained her own substance abuse assessment before OCS even required it and                                                                                                                                                                                                                                                                                                                                                                                                                                     



began attending alcohol treatment. She attended three different treatment programs over                                                                                                                                                                                                                                                                                                                                                                                                                                       



the course of the case; at trial she testified she was in the middle of a fourth. But Eva had                                                                                                                                                                                                                                                                                                                                                                                                                                      



yet to successfully complete a program; she either left the program early or failed to                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 complete aftercare, and she was unable to maintain sobriety.                                                                                                                                                                                                                                                                                                                             



                                                                                   Keith was incarcerated for most of 2014 and 2015.                                                                                                                                                                                                                                                                                             During one of his                                                                                   



periods of release, in October 2015, he and Eva attended a residential substance abuse                                                                                                                                                                                                                                                                              



treatment program, but both left the program without completing it.                                                                                                                                                                                                                                                                                                                                                    



                                                                                   In November 2016 OCS petitioned for the termination of both parents'                                                                                                                                                                                                                                                                                                                                              



parental rights.                                                                               The court held a termination trial over the course of four days in March                                                                                                                                                                                                                                                                                                                                         



 and July 2017.                                                                              On the last trial day in March the superior court rejected as unqualified                                                                                                                                                                                                                                                                                                           



 OCS's proposed expert witness, an ordained minister and part-time OCS social worker,                                                                                                                                                                                                                                                                                                                                                                                                                    



 and continued the trial until July to give OCS the opportunity to find another expert                                                                                                                                                                                                                                                                                                                                                                                                                          



witness.   



                                                                                   When trial resumed OCS offered a local attorney, Deborah Reichard, as its                                                                                                                                                                                                                                                                                                                                                                               



 expert witness.                                                                                    Reichard had served as a guardian                                                                                                                                                                                                          ad  litem (GAL) in the Yukon-                                                                                                                           



                                          1  

                                                                                                                                                                                                                                                                                                                                                                                  

                                                                                   Pseudonyms are used for all family members.  



                                                                                                                                                                                                                                                                     -3-                                                                                                                                                                                                                                                    7341  


----------------------- Page 4-----------------------

Kuskokwim Delta for over 18 years - up to about two years before trial.                                                                                                                                                         Over Keith's   



objection, the court qualified Reichard as an expert "as to delivery of child protective                                                                                                                                                  



services to families in the Yukon Delta" and "issues that relate to the substance abuse                                                                                                                                                                



and how it affects families."                                                             



                                         At the close of trial, the superior court issued an order terminating the                                                                                                                                             



parental rights of Eva and Keith.                                                                    Both parents appeal.                                              Eva challenges the findings that                                                       



she failed to remedy her conduct and that termination was in the child's best interests.                                                                                                                                                                                     



Keith challenges the superior court's findings that OCS used active efforts and that                                                                                                                                                                         



Reichard was a qualified expert witness for ICWA purposes.                                                                                                                                    



III.	                STANDARD OF REVIEW                                       



                                         "We review de novo the court's conclusions of law, such as whether the                                                                                                                                                 



superior   court's   findings   and   the   expert   testimony   presented   at   trial   satisfy   the  



                                                                            2  

requirements of ICWA."                                                           



                                         Whether parents have remedied their conduct and whether termination is  

                                                                                                                                                                                                                                                                    

in  the  children's  best  interests  are  both  factual  findings  reviewed  for  clear  error.3  

                                                                                                                                                                                                                                                                             



Whether OCS made active efforts is a mixed question of law and fact, and we review the  

                                                                                                                                                                                                                                                                

legal aspects of this issue de novo.4  

                                                                                                               



IV.	                 DISCUSSION  



                                                                                                                                                                                                                                                                             

                     A.	                 It Was Error To Find That Reichard Was A Qualified Expert Witness  

                                                                                                 

                                         For Purposes Of ICWA.  



                                                                                                                                                                                                                                                               

                                         ICWA requires that the termination of parental rights to an Indian child rest  



                     2                   Bob S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                                                                                    ,  



400 P.3d 99, 105 (Alaska 2017).                                                 



                     3                   Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                                                                        

Servs., 254 P.3d 1095, 1103-04 (Alaska 2011).  

                                                                                                                                                   



                     4                   Id. at 1104.  

                                                                               



                                                                                                                                 -4-	                                                                                                                     7341
  


----------------------- Page 5-----------------------

in part on "a determination, supported by evidence beyond a reasonable doubt, including                                                                        



testimony of qualified expert witnesses, that the continued custody of the child by the                                                                                    



parent or Indian custodian is likely to result in serious emotional or physical damage to                                                                                     

                       5      "Under  ICWA,  the  requirements  for  an  expert's  qualifications  are  

the   child."                                                                                                                                                             

heightened beyond those normally required."6                                                        Keith challenges the superior court's  

                                                                                                                                                                   

decision that Deborah Reichard was a qualified expert witness for purposes of ICWA.7  

                                                                                                                                                                                   



                            1.           Reichard's expert qualifications and testimony  

                                                                                                                          



                           Reichard, OCS's proposed expert witness, was an attorney and former  

                                                                                                                                                                   



GAL.  She testified that she had a bachelor's degree in political science as well as her  

                                                                                                                                                                           



law degree; had worked for Alaska Legal Services in the Bethel area; and had served as  

                                                                                                                                                                              



a GAL for 18 and a half years in the Yukon-Kuskokwim Delta.  She testified that nearly  

                                                                                                                                                                     



 100 percent of the population she served as a GAL was Alaska Native.  She described  

                                                                                                          



the GAL's "role and responsibilities" as "looking after the best interests of children,  

                                                                                                                                                               



which involved working with families, with OCS and with social workers to try to help  

                                                                                                                                                                         



families, whatever their problems may be."  She testified that these problems included  

                                                                                                     



"issues of substance abuse impacting parenting or domestic violence" in "[p]robably  

                                                                                                                                                    



upwards of 90 percent" of the cases she worked on.  She summarized her role as a GAL  

                                                                                                                                                                       



              5            25  U.S.C.     1912(f)  (2012);  see  also  CINA  Rule   18(c)(4).    



              6            Bob  S.,  400  P.3d  at   108.  



              7            We  note  that  Keith  argues  this  issue  on  appeal  although  he  expressly  took  



no  position  on  it  in  the  superior  court,  whereas  Eva  objected  to  Reichard's  qualifications  

at trial but  does  not  address  the  issue  on  appeal.   OCS  does  not  argue  that  the  issue  is  

improperly  raised  or  that  we  should  apply  plain  error  review;  we  therefore  proceed  as  if  

the  issue  were  properly  preserved  for  appellate  review.  



                                                                                      -5-                                                                              7341
  


----------------------- Page 6-----------------------

                                                                                                                             

as "trying to formulate case plans to try to help families sort of work through their  



                                                  

problems and to reunite them."  



                                                                                                                                   

                    Reichard testified that she had served as an expert  witness for OCS a  



                                                                                                                                 

number of times in the past several years, that she was usually asked for her opinion on  



                                                                                                                                 

"[w]hether or not return of the child or children to their parents is likely to result in  



                                                                                                                                  

serious emotional and physical damage," and  that she was routinely  accepted  as a  



                                                                                                                               

testifying expert on "[t]he delivery of child protective services to families on the YK  



                                                                                                                       

Delta."   She testified that during her years as a GAL she attended training sessions,  



                                                                                                                        

"sometimes twice a year" but some years not at all; the subject areas of these sessions  



                                                                                                                          

included  substance  abuse,  domestic  violence,  trauma,  sexual  assault,  and  "OCS  



                    

practices."  



                                                                                                                               

                    Reichard was asked more about this training on voir dire. She testified that  



                                                                                                                         

it mostly occurred during her last six or seven years as a GAL "because there weren't  



                                                                                                                           

many trainings in the beginning," and that the trainings ranged in length from "a couple  



                                                                                                                        

of hours" to "a couple of days." She testified that other than acting as an expert witness,  



                                                                                                                             

she had not done any work in the area of her suggested expertise since her last GAL  



                                                                                                                         

assignment in February 2015. She acknowledged that she had not attended any college- 



                                                                                                                                

level classes, authored any publications, or acquired any certifications or licenses in the  



                                                                                                                                 

area  of  her  suggested  expertise.                  She  agreed  that  she  had  no  formal  education  in  



                                                                                                                                 

psychology,  mental  health,  chemical  dependency,  substance  abuse,  social  work,  or  



                                                                                                       

therapy, and she did not recall having read any scholarly literature in these areas.  She  



                                                                                                                               

acknowledged  that  she  was  unable  to  "diagnose  mental  health  issues,"  though  she  



                                                                                                                                      

testified she could recognize them based on her experience as an attorney and a GAL.  



                                                                                                                  

But she further admitted that she did not use "any documents or models, like professional  



                                                                                                     

references, in order to make those conclusions"; she relied solely on her experience as  



                                       

an attorney and a GAL.  



                                                                -6-                                                         7341
  


----------------------- Page 7-----------------------

                                                                          Over the objection of Eva's attorney (joined in by the children's GAL), the                                                                                                                                                                                                                                                                                                                          



 superior court accepted Reichard as qualified to testify as an expert "as to delivery of                                                                                                                                                                                                                                                                                                                                                                                          



child protective services to families in the Yukon Delta and to talk about the issues that                                                                                                                                                                                                                                                                                                                                                                                 



relate to the substance abuse and how it affects families." Reichard then testified that she                                                                                                                                                                                                                                                                                                                                                                                  



had reviewed OCS's file, listened to most of the recordings of previous hearings in the                                                                                                                                                                                                                                                                                                                                                                                       



case, and reviewed the parents' criminal histories on CourtView; on that basis she                                                                                                                                                                                                                                                                                                                                                                                         



concluded that returning the children "to the care of either of their parents would likely                                                                                                                                                                                                                                                                                                                                                                      



result in severe emotional or physical damage to these children." She testified that Eva's                                                                                                                                                                                                                                                                                                                                                                      



 substance abuse history was of the kind "that leads to neglect" and that Keith's history                                                                                                                                                                                                                                                                                                                                                               



of "similar substance use issues and his being in and out of custody" made it unlikely                                                                                                                                                                                                                                                                                                                                                           



that he could "create or maintain an appropriate or stable home for kids."                                                                                                                                                                                                                                                                                                                                                        The court   



relied on this testimony at the close of trial to conclude "beyond a reasonable doubt" that                                                                                                                                                                                                                                                                                                                                                                                



returning the children to Eva and Keith "would result in serious emotional or physical                                                                                                                                                                                    



damage to the child[ren]."                                                                                                                          



                                                                          2.                                   ICWA's qualified expert witness requirement                                                                                                                                                         



                                                                          To explain why we agree with Keith's argument that Reichard was not                                                                                                                                                                                                                                                                                                                               



 shown to be a qualified expert witness, we first identify the governing principles. In past                                                                                                                                                                                                                                                                                                                                                                              



cases discussing expert qualifications, we have looked to guidelines published by the                                                                                                                                                                                                                                                                                                                                                                                        



Bureau of Indian Affairs (BIA), while acknowledging that they "are not regulations and                                                                                                                                                                                                                                                                                                                                                                                      

                                                                                                   8              But in 2016 much of the guidelines' content was formalized in  

are not binding."                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

regulation.9   In response to the question "Who may serve as a qualified expert witness?,"  

                                                                                                                                                                                                                                                                                                                                                                                                                                      



                                     8                                   Marcia  V.  v.  State,  Office  of  Children's  Servs.,  201  P.3d  496,  504  (Alaska  



2009).     



                                     9                                    25  C.F.R.     23.122  (2018);  see  Fidelity  Fed.  Sav.  &  Loan  Ass'n  v.  de  la  



 Cuesta,  458  U.S.  141,  142  (1982)  ("Federal  regulations  have  no  less  pre-emptive  effect  

                                                                                                                                                                                                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                                                                                                                         -7-                                                                                                                                                                                                                          7341
  


----------------------- Page 8-----------------------

the regulation first explains:                                 



                             A   qualified   expert   witness   must   be   qualified   to   testify  

                             regardingwhether thechild's                                     continued custodybytheparent                          

                             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.                [10]  



                             This languageis not inconsistentwith thecases wedecidedundertheearlier  

                                                                                                                                                                                



guidelines.  Explaining the new regulation, the new guidelines recognize the difference  

                                                                                                                                                                       



between the mandatory word "must" and the admonitory word "should":  the ability to  

                                                                                                                                                                                         



testify about the risk of harm is required of every qualified expert witness, but the ability  

                                                                                                                                                                                



to testify about "the prevailing social and cultural standards" is not essential in every  

                                                                                                                                                                                 



case.  "[T]here may be certain circumstances where a qualified expert witness need not  

                                                                                                                                                                                      



have specific knowledge of the prevailing social and cultural standards of the Indian  

                                                                                                                                                                               

child's Tribe in order to meet the statutory standard."11  For example, if termination is  

                                                                                                                                                          



sought becauseofchild sexual abuse, "aleadingexpert on issues regarding sexual abuse"  

                                                                                                                                                                               

does not also need to have expertise in the culture of the child's tribe.12   This distinction  

                                                                                                                                                                      

is one we have recognized, and the guidelines show that it remains valid.13  

                                                                                                                                                                      



               9             (...continued)  



than federal  statutes."); In  re  S.B., 30 Cal.  Rptr.  3d  726,  731  (Cal. App.  2005)  (noting  

that  ICWA  regulations  are  binding  on  state  courts).   



               10            25  C.F.R.    23.122(a)  (emphasis  added).  



               11            U.S.  DEP 'T  OF  THE  INTERIOR,  GUIDELINES  FOR  IMPLEMENTING  THE  INDIAN  



CHILD  WELFARE  ACT  54  (2016),  https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/  

pdf/idc2-056831.pdf  [hereinafter  2016  GUIDELINES  ]   



               12            Id.  



               13            See  L.G.   v.   State,  Dep't   of  Health   &   Soc.   Servs.,   14   P.3d   946,   952-53  



                                                                                                                                                                (continued...)  



                                                                                           -8-                                                                                    7341
  


----------------------- Page 9-----------------------

                        The   expert   who   is   called   to   testify   about   issues   that   do   not   implicate  



different cultural norms need not have cultural expertise but still must be "qualified to  



testify regarding whether the continued custody of the child by the parent or Indian                                                          



                                                                                                                                                       14  

custodian is likely to result in serious emotional or physical damage to the child."                                                                       



Another new regulation expands on the evidentiary standard the expert is addressing:  

                                                                                                                                    



                        (c)      .  .  .  [T]he  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 . . .  

                                                                                                                                 

                        family  .  .  .  substance  abuse[]  or  nonconforming  social  

                                                                                                                       

                        behavior does not by itself constitute . . . evidence beyond a  

                                                                                                                                 

                        reasonable doubt that continued custody is likely to result in  

                                                                                                                               

                        serious emotional or physical damage to the child.[15]  

                                                                                                        



The guidelines explain, "These provisions recognize that children can thrive when they  

                                                                                                                                                   



are kept with their parents, even in homes that may not be ideal in terms of cleanliness,  

                                                                                                                                      



access to nutritional food, or personal space, or when a parent is single, impoverished,  

                                                                                                                                 

or a substance abuser."16                       The guidelines emphasize, therefore, that "there must be a  

                                                                                                                                                        



            13          (...continued)  



(Alaska  2000)  (concluding  that  "where  there  is  clear  evidence  that  a  child  faces  a  serious  

risk  of physical neglect if she remains in her parent's  care, a trial judge  may terminate  

parental  rights  without  hearing  testimony  from  an  expert  in  Native  cultures").    



            14          2016 GUIDELINES,  supra  note   11,  at  53.   

                                   



            15          25  C.F.R.    23.121  (2018).    



            16          2016  GUIDELINES,  supra  note   11,  at  53.  



                                                                          -9-                                                                    7341
  


----------------------- Page 10-----------------------

demonstrated correlation between the conditions of the home and a threat to the specific                                                                                                                           

child's emotional or physical well-being."                                                                       17  



                                    The expert witness who is qualified to draw this causal connection must  

                                                                                                                                                                                                                          

                                                                                                                                                                           18   And the expert must  

have an "expertise beyond normal social worker qualifications."                                                                                                                                                            

                                                                                                                                  

not be "[t]he social worker regularly assigned to the Indian child,"19 because "Congress  

                                                                                                                                                                                                            



wanted to ensure that State courts heard from experts other than State social workers  

                                                                                                                                                                                                                 

seeking the action."20   A social worker other than the one assigned to the case may serve  

                                                                                                                                                                                                                         



as "the qualified expert witness," but again, as with any ICWA qualified expert, "that  

                                                                                                                                                                                                                          

person must have expertise beyond the normal social worker qualifications."21                                                                                                                                                 We  

                                                                                                                                                                                                                            

recognized this standard repeatedly in cases decided under the earlier guidelines,22  and  

                                                                                                                                                                                                                              



it remains unchanged.  

                             



                                    We have not specifically defined "normal social worker qualifications,"  

                                                                                                                                                                                              



though we have decided when they were surpassed and suggested when they might not  

                                                                                                                                                                                                                               



                  17               Id.   Weassumethat                                  theguidelines' useoftheword "correlation" here rather                                                                            



than "causation" is inartful. "It is axiomatic in logic and in science that correlation is not                                                                                                                                 

causation. This adage counsels that it is error to infer that A causes B from the mere fact                                                                                                                                   

that A and B occur together."                                                   Craig ex rel. Craig v. Oakwood Hosp.                                                                  , 684 N.W.2d 296,                     

312 (Mich. 2004) (footnote omitted);                                                                see also Norfolk & W. Ry. Co. v. Ayers                                                                  , 538 U.S.     

 135, 173 (2003) ("Correlation is not causation.").                                                



                  18                2016 Guidelines, supra note 11, at 54 (quoting H.R. REP. NO. 95-1386, at  

                                                                                                                                                                                                                                   

22 (1978)).  

                                



                  19                25 C.F.R.  23.122(c) (2018).  

                                                                                                



                  20                2016 GUIDELINES,  supra  note 11, at 54.                                                                   

                                                   



                  21               Id.  at 55.   



                  22                See, e.g.             ,  Bob S. v. State, Dep't of Health &Soc. Servs., Office of Children's                                                                           



Servs., 400 P.3d 99, 108 (Alaska 2017); Marcia V. v. State, Office of Children's Servs.,  

                                                                                                                                                                                                                                          

201 P.3d 496, 504-05 (Alaska 2009).                                                



                                                                                                              -10-                                                                                                        7341
  


----------------------- Page 11-----------------------

have been. In            In re Candace A.              we determined that two witnesses were clearly qualified                          



                                 23  

under the standard.                                                                                                                                      

                                      "Both had 'substantial education in the area of [their] specialty':  



                                                                                                                                                

master's degrees in social work, internships in relevant subject areas as required for their  

                                                                                                                    24   One witness had  

                                                                                                                                                 

                                                                                                 

degrees, agency training, and continuing professional education." 



worked as an OCS supervisor "overseeing hundreds of cases, identifying safety threats,  

                                                                                                                                           



and  having  ultimate  responsibility  for  custody  decisions;  as  an  OCS  line  worker  

                                                                                                                                          



assessing reports of harm; and as a school administrator and social worker in Arizona  

                                                                                                                                         



working  with  the  diverse  behavioral  and  education  needs  of  students  and  their  

                                                                                                                                              

families."25          The other witness "had a lengthy work history as a mental health clinician,  

                                                                                                                                       



working  with  children  with  emotional  and  behavioral  problems  in  a  variety  of  

                                                                                                                                                  



institutional and agency settings, as well as a private practice of custody investigations  

                                                                                                                               



and adoption home-studies," and had worked specifically with the child at issue as the  

                                                                                                                                                  

child's  "own  clinician,  treating  her  in  both  individual  and  group  therapy."26                                                         We  

                                                                                                                                                



concluded that both witnesses were highly qualified to testify about the potential harm  

                                                                                                                                              



to the child if returned to her parents' custody and that the trial court erred by excluding  

                                                                                                                                      

their testimony.27  

                                  



                       In Payton S. v. State, Department of Health & Social Services, Office of  

                                                                                                                                                    



Children's Services, a mother challenged the expert qualifications of an OCS regional  

                                                                                                                     



            23         332 P.3d 578, 586 (Alaska 2014).
                



            24         Id.
  



            25         Id.
  



            26         Id.
  



            27         Id.
  



                                                                        -11-                                                                  7341
  


----------------------- Page 12-----------------------

                 28  

manager.               We rejected the challenge - which was based on the witness's lack of                                                                   



expertise in the relevant Native culture - in part because the mother did not challenge                                                         



on appeal the trial court's independent ground for qualifying the witness:                                                                that she was     



a     "professional                person"            with        "expertise             beyond           the       normal           social         worker  

                             29   We found the relevant findings "well supported by the testimony at  

qualifications."                                                                                                                                              

trial."30  The witness had "a master's degree in social work, [was] a licensed master's- 

                                                                                                     



level  social  worker,  and  [took]  45  hours  of  continuing  education  every  two  years,  

                                                                                                                                             



including substantial class work related specifically to Alaska Natives and substance  

                                                                                                                       

abuse."31             She  had  served  in  "supervisory  and  management  positions  in  Juneau,  

                                                                                                                                                   

St. Mary's, and Bethel."32                         In testimony she  

                                                                            



                         described  her  practicums  at  Alaska  Psychiatric  Institute  

                                                                                                                         

                         (where she performed psychological assessments) and the  

                                                                                                                                   

                         Salvation  Army's  Clitheroe  Center  for  treating  substance  

                                                                                                                      

                         abuse;  her  continuing  training  in  fetal  alcohol  spectrum  

                                                                                                       

                         disorder,  domestic  violence,  family  services  assessments,  

                                                                                                                

                         case  planning,  brain  development,  and  trauma;  and  her  

                                                                                                                                  

                         participationinatribal-statecollaboration that[met]regularly  

                                                                                                                         

                         to discuss brain development and the impact of trauma.[33]  

                                                                                                                   

                                                                                                                                         



            28           349  P.3d   162,   171-72  (Alaska  2015).  



            29           Id.  at   172.  



            30           Id.  at   171.   



            31           Id.  



            32           Id.  



            33           Id. ;   see   also  Sandy  B.  v.  State, Dep't   of  Health   &  Soc.  Servs.,   Office   of  



Children's   Servs.,   216   P.3d   1180,   1191   (Alaska   2009)   (observing   that  proposed  

witness's "substantial  education"  - master's and doctor's degrees in clinical psychology  

-  constituted  "expertise  beyond  the  normal  social  worker  qualifications").  



                                                                             -12-                                                                       7341
  


----------------------- Page 13-----------------------

                          In  Marcia V. v. State, Office of Children's Services                                              , we reviewed for plain            



error the superior court's decision that an OCS supervisor was an ICWA-qualified                                                         



              34  

                                                                                                                                                                   

expert.           The witness had a bachelor of science degree in Administration of Justice, had  



                                                                                                                                                       

worked for OCS for seven years including three as a supervisor, identified 13 "trainings  



                                                                                                                                                                   

in various areas of child protection she received" over the course of six years, and had  



                                                                                        35  

                                                                                                                                                                   

testified  as  an  expert  in  four  other  cases.                                              "Based  on  these  qualifications,  we  



                                                                                                                

conclude[d] that the court did not abuse its discretion in qualifying [the witness] as an  



                                                 36  

                                                                                                                                                           

expert on child welfare."                             But we recognized that whether she had "expertise beyond  



                                                                                                                                                                  

that of a normal social worker," as required by ICWA, was a distinct question that  



                                                             37 

                                                                                                                       

"require[d] further inferences."                                  We noted that the witness might have that expertise,  



                                                                                                                                                                      

but "[i]deally counsel would have inquired more deeply into the specialized areas in  



                                                                                                                                                         

which  [the  witness]  was  claimed  to  be  expert,  particularly  the  effects  of  parental  



                                                          38  

                                                                                                                                           

substance abuse on children."                                  We concluded that the record did "not unambiguously  



                                                                                                                                              

reflect a foundation for [the witness] having the 'expertise beyond the normal social  



                                                                                                                 

worker qualifications' " required by ICWA; however, in the absence of objection, and  



                                                                                                                                                                   

"[b]ecause it was possible to infer from [the witness's] known qualifications that she  



                                                                                                                                                                  

possessed the qualifications necessary under ICWA, it was not plain error for the trial  



                                                                                                                   39  

                                                                                               

court to accept" the parties' acquiescence in the testimony. 



             34           201 P.3d 496, 504-05 (Alaska 2009).
                         



             35           Id.  at 505.
   



             36           Id.
  



             37           Id.
  



             38           Id.
  



             39           Id.
  



                                                                                 -13-                                                                           7341
  


----------------------- Page 14-----------------------

                          Similarly, in             Lucy J. v. State, Department of Health & Social Services,                                           



Office of Children's Services                            , we considered a mother's challenge to the qualifications                            

                                                                                                                 40    We noted that she had "a  

of an OCS supervisor who testified as an expert witness.                                                                                                             



masters in social work, ha[d] worked at OCS for six years, ha[d] served as a supervisor  

                                                                                                                                                     



for four years, [was] licensed by the State of Alaska as a masters level social worker, and  

                                                                                                                                                                   

ha[d] had many trainings, including some that were ICWA specific."41                                                                         We concluded  

                                                                                                                                                      



that it was "not clear" whether the witness had "expertise beyond the normal social  

                                                                                                                                                              



worker qualifications" but that the mother had not objected at trial; as in Marcia V., "it  

                                                                                                                                                                     



was possible to infer from [the witness's] known qualifications that she possessed the  

                                                                                                                                                                    



qualifications necessary under ICWA," and therefore it was not plain error for the court  

                                                                                                                                                                

to accept the testimony.42  

                                                     



                          3.	          Reichard's testimony did not show that she met the heightened  

                                                                                                                                                   

                                       standard for qualified expert witnesses under ICWA.  

                                                                                                                                        



                          Therecord supports thesuperior court'sfindingthatReichard was qualified  

                                                                                                                                                         



to testify about the topic on which OCS offered her testimony:  "the delivery of child  

                                                                                                                                                                



protective services to families on the YK Delta." But we cannot conclude on this record  

                                                                                                                                                              



that her qualifications met the heightened standard ICWA requires for expert testimony  

                                                                                                                                                       



about the relevant issue: "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."43   A  

                                                                                                                                                                     



qualified expert under ICWA "must be qualified to testify" about this important causal  

                                                                                                                                                              



             40           244 P.3d 1099, 1118-19 (Alaska 2010).                             



             41           Id.  



             42  

                                      

                          Id. at 1119.  



             43  

                                                                                       

                          25 C.F.R.  23.122(a) (2018).  



                                                                                 -14-	                                                                          7341
  


----------------------- Page 15-----------------------

                       44  

relationship.               And evidence of causation is significantly different from "evidence that                                                     



shows only the existence of . . . family . . . substance abuse[] or nonconforming social                                

behavior."45  



                                                                                                                                                            

                         Reichard's extensive experience as a GAL undoubtedly exposed her to  



                                                                                                                                                            

many of the types of conduct and conditions that cause children to be in need of aid; as  



                                                                                                                                             

she  explained,  a  large  majority  of  her  cases  involved  "substance  abuse  impacting  



                                                                                                                                            

parenting or domestic violence."   She was well qualified to recognize a correlation  



                                                                                                                                             

between parental conduct and emotionally or physically damaged children, and that is  



                                                                                                                                                        

what  she  testified  about.                       When  asked  how  Keith's  time  in  prison  "create[d]  [an]  



                                                                                                                                                 

inappropriate  or  unstable  environment,"  Reichard  answered  by  describing  Keith's  



                                                                                                                                                    

recurrent problems with drinking, getting arrested, and going to jail.   Asked "what  



                                                                                                                                                    

specifically might happen . . . to the boys' development if they're moved without having  



                                                                                                                                                            

a safe parental home to go to," Reichard  responded that "it's really difficult for kids to  



                                                                                                                                                

go from a stable environment to one of chaos and not have any ill effects."  In these  



                                                                                                                                                            

answers is an assumption that an unsettled and chaotic environment is proof enough of  



                                                                                                                                                 

likely harm to children.  But ICWA rejects this assumption:  it recognizes "that children  



                                                                                                                                                             

can thrive when they are kept with their parents, even in homes that may not be ideal in  



                                                                                                                                                             

terms of cleanliness, access to nutritious food, or personal space, or when a parent is  

                                                                                   46   The expert must therefore be qualified  

                                                                                                                                                

single, impoverished, or a substance abuser." 



            44          Id.  (emphasis added).   



            45           25 C.F.R.  23.121(d) (2018).             



            46           2016 G       UIDELINES,  supra  note 11, at 53.                           



                                                                            -15-                                                                      7341
  


----------------------- Page 16-----------------------

to address how these conditions pose "a threat to the specific                                                         child's emotional or               

physical well-being."                  47  



                        Reichard  did  not  address  causation,  as  framed  in  the  regulation,  by  

                                                                                                                                                        



testifying about how Keith and Eva's conduct was likely to cause "serious emotional or  

                                                                                                                                                          



physical damage to" the two boys.  She drew no connections between specific conduct  

                                                                                                                                                



and the likelihood of specific harm. We have held in the past that expert testimony need  

                                                                                                                                                      



not directly address every aspect of this element of a termination decision; trial courts are  

                                                                                                                                                         



allowed to consider "reasonable inferences from the expert testimony, coupled with lay  

                                                                                                                                                         

witness testimony and documentary evidence from the record."48                                                                But when expert  

                                                                                                                                                  



testimony is required in order to support termination in ICWA cases, trial courts may rely  

                                                                                                                                                        



on reasonable inferences only from the testimony of witnesses who are qualified to  

                                                                                                                                                          

testify on the subject.49  

                          



                        We do not mean to say that a GAL may not be a qualified expert witness  

                                                                                                   



for ICWA purposes. While not listing required qualifications, we do note that witnesses  

                                                                                                                                             



we have considered to be clearly qualified under ICWA had substantial education in  

                                                                                                                                                          



social work or psychology and direct experience with counseling,therapy, or conducting  

                                                                                                                                          

psychological assessments.50  In two other cases we affirmed the trial court's acceptance  

                                                                                                                                           



            47          Id.  



            48          Diana P. v. State, Dep't of Health & Soc. Servs., Office of Children's                                            



Servs., 355 P.3d 541, 548 (Alaska 2015).                        



            49          There were no challenges to the qualifications of the expert witnesses in  

                                                                                                                                                          

Diana P. ; both testified without objection "as experts in the diagnosis and treatment of  

                                                                                                                                                          

substance abuse and substance-abuse-related disorders."  355 P.3d at 544.  

                                                                                                                                           



            50          See  e.g., Payton  S.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Office  of  

                                                                                                                                                          

Children's Servs., 349 P.3d 162, 171-72 (Alaska 2015) (expert had master's degree in  

                                                                                                                                                           

social work, master's-level license, and performed psychological assessments during  

                                                                                                                                                  

                                                                                                                                     (continued...)  



                                                                           -16-                                                                     7341
  


----------------------- Page 17-----------------------

of OCS witnesses only because the applicable standard of review - for plain error -                                                                                     



allowed us to assume that "expertise beyond that of a normal social worker" could be                                                                       



inferred from the witnesses' qualifications, which in both cases included extensive OCS                                                                            

                                                                                                                                                                  51    In  

experience and in one case -                                 Lucy J.         - master's-level licensure in social work.                                                 



Marcia V. we noted with concern the absence of testimony showing that the witness,  

                                                                                                                                                            



notwithstanding her extensive experience as an OCS supervisor, was really an expert in  

                                                                                                                                                                         

"the effects of parental substance abuse on children."52  

                                                                                       



                           We  have  the  same  concern  here.                                        Reichard  testified  about  her  long  

                                                                                                                                                                   



experience as a GAL and her involvement in many child in need of aid cases in the  

                                                                                                                                                                      



Yukon-Kuskokwim Delta.  Her testimony shows that, like an experienced OCS social  

                                                                                                    



worker, she recognized the sorts of conduct and conditions that regularly cause children  

                                                                                                                                                             

                                        53  But she testified that she had no formal training in social work,  

to be in need of aid.                                                                            

                            



psychology,  or  counseling,  and  she  had  no  professional  tools  -  other  than  her  

                                                                                                                                                                     



             50            (...continued)  



                                                                                                                                                                 

practicums at psychiatric hospital); In re Candace A., 332 P.3d 578, 586 (Alaska 2014)  

                                                                                                                                                    

(two experts had master's degrees in social work and extensive clinical experience);  

                                                                                                                                                           

Sandy B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 216 P.3d  

                                                                                                                                                             

 1180,  1191  (Alaska  2009)  (expert  had  master's  and  doctoral  degrees  in  clinical  

                            

psychology).  



             51           Lucy J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                

244 P.3d 1099, 1118-19 (Alaska 2010); Marcia V. v. State, Office of Children's Servs.,  

                                                                                                                                                                

201 P.3d 496, 504-05 (Alaska 2009).  

                                                              



             52           Marcia V., 201 P.3d at 505.  

                                                                          



             53            Reichard's generalized description of her responsibilities as a GAL tracks  

                                                                                                                                                                 

the duties of an OCS caseworker:  "It was looking after the best interests of children  

                                                                                                                                                            

which involved working with families, with OCS and with social workers to try to help  

                                                                                                                                                                    

families, whatever their problems may be. . . . [I]t was just trying to formulate case plans  

                                                                                                                                                                   

to try to help families sort of work through their problems and to reunite them."  

                                                                                                                                                                  



                                                                                  -17-                                                                            7341
  


----------------------- Page 18-----------------------

"experience as an attorney and as a guardian ad litem" - for recognizing mental health                                                                                                                                                                                                                                                           



issues.   We are unable to conclude that Reichard's testimony supports a finding that she                                                                                                                                                                                                                                                                    



was qualified under ICWA to testify as an expert about the key issue here:                                                                                                                                                                                                                                                           whether  



returning the children to Keith and Eva's care was "likely to result in serious emotional                                                                                                                                                                                                                                        



or physical damage to the child[ren]."                                                                                                                             



                                                        Because we agree with Keith that Reichard's testimony did not satisfy the                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                                                54  

heightened standard of ICWA, we reverse the termination order.                                                                                                                                                                                                                           



V.                          CONCLUSION  



                                                        We REVERSE the superior court's order terminating the parents' rights to  

                                                                                                                                                                                                                                                                                                                                                                    



their two children and REMAND this case for further proceedings consistent with this  

                                                                                                                                                                                                                                                                                                                                                            



opinion.  

                                     



                            54                          The parents raise other claims on appeal.                                                                                                                                       Eva contends that the superior                                                                  



court clearly erred by finding that she failed to remedy, within a reasonable time, the                                                                                                                                                                                                                                                                       

harmful  conduct   that   caused   the   children   to   be   in   need   of   aid   and   by   finding   that  

terminating her parental rights was in the children's best interests.                                                                                                                                                                                                                  Keith contends that                                                 

the superior court clearly erred by finding that OCS made active efforts to prevent the                                                                                                                                                                                                                                                                       

breakup of the family.                                                                           We see no error in the court's decision of these issues on the                                                                                                                                                                                               

record then before it, but we recognize that the evidence will be different on remand due                                                                                                                                                                                                                                                                   

to the passage of time.                                                                           



                                                                                                                                                                              -18-                                                                                                                                                                     7341
  

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