|
(Cite
as: 14 P.3d 946)
Supreme
Court of Alaska.
L.G.,
Appellant,
v.
STATE
of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee.
No.
S-9140.
Dec.
15, 2000.
In
a case involving the termination of parental rights, the trial
court's factual findings will be reviewed under a clearly erroneous
standard, and will be overturned only if the Supreme Court
is left with a definite and firm conviction that a
mistake has been made.
Trial
court's decision that a witness is qualified to testify as
an expert is reviewed for abuse of discretion; test for
determining abuse of discretion is whether the reasons for the
exercise of discretion are clearly untenable and unreasonable.
Determination
of whether the trial court's findings comport with the requirements
of the Indian Child Welfare Act (ICWA) involves a question
of law and will be reviewed de novo. Indian Child
Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Supreme
Court will reverse a lower court's adoptive placement preference determination
only if convinced that the record as a whole reveals
an abuse of discretion or if controlling factual findings are
clearly erroneous; the trial court abuses its discretion if it
considers improper factors or improperly weighs certain factors in making
its determination.
Termination
of mother's parental rights to her native children did not
require proof that her children had suffered serious emotional harm
in the past; rather, it only required proof that they
were likely to suffer such harm in the future. Indian
Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Substantial
evidence supported trial court's finding that native children would suffer
serious emotional harm if returned to mother's custody, such as
was necessary to terminate mother's parental rights; mother's repeated alcohol
and drug abuse, which led to repeated separations of children
from their mother, was likely to cause the children serious
emotional harm, children had behavioral problems due to their multiple
placements, and thus to remove them from their current placements
would impair their ability to attach to any caregiver in
the future. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Proof
that a parent's continued custody of his native children is
likely to cause them serious harm requires both proof that
the parent's conduct is likely to harm the children, and
proof that it is unlikely that the parent will change
his conduct; these two elements can be proved through the
testimony of a single expert witness, by aggregating the testimony
of expert witnesses, or by aggregating the testimony of expert
and lay witnesses. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Trial
court did not abuse its discretion in qualifying social worker
as an expert witness in Yupik culture in termination of
parental rights proceeding; social worker and children were all Yupik,
social worker learned about Yupik child-rearing practices through knowledge passed
on by village elders and was able to describe important
role played in child-rearing by Yupik extended family,
and social worker regularly sought input from appropriate village when
her work involved native children.
A
witness may gain the familiarity that will qualify her as
an expert under the Indian Child Welfare Act (ICWA) either
through personal contact, or through work experience, with native cultures.
Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
The
trial judge's reasons for qualifying an expert witness must be
clearly untenable and unreasonable to constitute an abuse of discretion.
Even
if trial court had refused to hear testimony from expert
in native culture, such refusal would not justify reversal of
order terminating mother's parental rights, where there was clear and
convincing evidence that mother's history of serious alcohol and drug
abuse placed native children at risk of future physical harm
if returned to mother's custody. Indian Child Welfare Act of
1978, § 102(f),
25 U.S.C.A. § 1912(f).
When
there is clear evidence that a native 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. Indian Child
Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Trial
court had good cause to deviate from placement preferences of
Indian Child Welfare Act (ICWA) to promote native child's best
interests in termination of parental rights proceeding; expert witnesses agreed
that removing child from her placement with foster mother was
certain to cause her serious emotional or psychological damage, child
had been through 11 placements already and was at the
end of her capacity to withstand stress of another placement,
and child could retain her connection to her tribal heritage
even if placed with foster mother. Indian Child Welfare Act
of 1978, § 105(b),
25 U.S.C.A. § 1915(b).
*947
Michelle McComb, Assistant Public Defender, Fairbanks, Barbara Brink, Public Defender,
Anchorage, for Appellant.
Nora King, Assistant Attorney General, Fairbanks, Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
MATTHEWS, Justice.
I. INTRODUCTION
The parental rights of L.G. (Linda) [FN1]
to her daughters, J.G. and S.G., were terminated on April
1, 1999. Superior Court Judge Richard D. Savell found that
there was evidence beyond a reasonable doubt, including the testimony
of qualified expert witnesses, that the daughters were likely to
suffer serious emotional and physical harm if returned to Linda's
custody. Judge Savell also found that there was good cause
to deviate from the placement preferences of the Indian Child
Welfare Act (ICWA) to place J.G. with Foster Mother P.S.
Linda appeals. We conclude that Judge Savell's findings are supported
by the evidence and affirm the termination of *948
parental rights and the finding of good cause to deviate
from ICWA's placement preferences.
FN1.
A pseudonym has been used for L.G.
II. FACTS
AND PROCEEDINGS
J.G. was born on September 16, 1991. In the first
year after J.G.'s birth, Linda lived intermittently with her daughter
at the Polaris Hotel in Fairbanks, a site known for
drug trafficking and prostitution. Linda's long history of substance abuse
continued after J.G.'s birth, leading to Linda's hospitalization and her
arrest for assaulting her brother with a knife while drunk.
While Linda was drinking or hospitalized because of drinking, she
left J.G.
with J.G.'s father, A.D. (Father). Doctors saw burn marks on
the child when Father brought J.G. to the hospital to
visit Linda.
In the fall of 1992 Deborah Hayes, an intern with
the Division of Family and Youth Services (DFYS), was admitted
to Linda's room at the Polaris Hotel. J.G. had been
awake and mobile while Linda slept. After Hayes noticed track
marks on Linda's arms, Linda said that Father "made her
take drugs" and admitted that she had taken drugs the
night before.
Linda was sentenced to seven months in jail for assaulting
her brother. During her imprisonment, Linda left J.G. in Father's
care. After being released from jail, Linda continued to drink
to excess, violated her probation by using cocaine, and was
returned to jail. Linda again left J.G. with Father, despite
her reservations about his ability to care for the child;
Linda had at least once left J.G. in Father's care
and returned to find him intoxicated.
J.G. came into state custody for the first time when
Father reported that he could not continue to care for
the child. J.G. was placed with Linda's mother, C.L. (Grandmother).
On May 9, 1994, however, Grandmother asked that the child
be placed elsewhere. That same day, Linda's brother dropped the
child off at the social work division with Lorita Clough,
a social worker whom the child had never met. J.G.
was unable to understand what was happening, and repeatedly asked
where her uncle was.
J.G. was placed in the Village Center, but was removed
from there after one month and eleven days. J.G. was
then placed with Shirley Moses, but was removed after ten
days when a caseworker realized that Moses had gone north
to work and left J.G. in the care of her
daughter. On July 6, 1994, J.G. was placed with Foster
Mother P.S.
When Foster Mother P.S. became J.G.'s foster parent, J.G. appeared
to be developmentally delayed. J.G. did not speak in complete
sentences, screamed for what she wanted, and tended to be
violent. Foster Mother P.S. established a routine for J.G., and
J.G. was able to overcome her developmental delays and behavioral
problems. While in Foster Mother P.S.'s care, J.G. was taken
to see her grandparents almost every Sunday.
When released from jail for the birth of S.G., Linda
was directed to enter a treatment program. S.G. was born
on October 1, 1994, but Linda did not enter a
treatment program until March 1995. While out of jail, Linda
never saw J.G. Linda was sent back to jail for
using cocaine in April 1995, and S.G. was eventually placed
with Foster Mother R.K. Foster Mother P.S. brought J.G. to
visit her mother while Linda was in jail, but J.G.
exhibited little reaction to these visits.
Linda went from jail into the Regional Center for Alcohol
and Other Addictions in May 1995. In June she entered
the Women and Children's Residential Treatment Program. Her participation in
treatment was court-ordered. While in
the Women and Children's structured residential program, Linda was, in
many respects, a model client.
Linda was reunited with her children in October 1995. After
being returned to Linda's care, J.G. would attach to adults
and then become fearful if separated from them. J.G. was
also violent towards other children. Because J.G. appeared anxious, she
was prescribed Defakote. Although J.G. had been returned to her
mother's custody, Foster Mother P.S. continued to care for J.G.
almost every Saturday.
Linda left the Women and Children's program in early 1996.
Within two weeks of leaving, she relapsed. Foster Mother R.K.
had repeatedly attempted to call Linda on *949
one evening during this period. Foster Mother R.K. was told
by J.G. that she could not get Linda up, although
Foster Mother R.K. could hear the child trying to awaken
her mother. On the day of her relapse, Linda passed
out. When Women and Children's personnel came to the apartment
to help her get the children ready for day care
and Head Start, Linda was still passed out and still
intoxicated. Lynn Marie Eldridge, the clinical supervisor for the Women
and Children's program, testified that this relapse was cocaine based.
Linda refused to submit to urinalysis, but did agree to
enter detox. J.G. and S.G. were placed in Foster Mother
R.K.'s home.
After detox, Linda re-entered the Women and Children's program and
the children were returned to her care. Within a week,
however, Linda relapsed again.
Eldridge testified that this relapse, too, involved cocaine use. Linda
again refused to submit to urinalysis, and her children were
placed with Foster Mother R.K. Foster Mother P .S. continued
to maintain contact with J.G. after the girl was placed
with Foster Mother R.K., and took care of her almost
every weekend.
Linda returned to serious alcohol abuse, which resulted in her
hospitalization, caused her to fear for her own life, and
led her to drink for three days in a row
without sleep. Ultimately, Linda asked the Women and Children's program
to readmit her, knowing that her parental rights could be
terminated if she did not change her life. Linda was
required to spend three months at the Regional Center for
Alcohol and Other Addictions before re-entering the Women and Children's
program. After Linda re-entered the Women and Children's program, J.G.
and S.G. were again placed with her. While in the
Women and Children's program, Linda successfully completed her GED and
worked for a short time at a part-time job.
After being discharged from the Women and Children's program, however,
Linda's urinalysis tested positive for cocaine. J.G. and S .G.
were again removed from Linda's custody. The girls were first
placed with Emily Crook, but Crook asked that the children
be removed from her care because of S.G.'s behavior. J.G.
and S.G. were then placed in the Bermudez foster home,
a non-ICWA compliant placement, because their younger sister had been
placed there.
Linda refused to enter extended residential treatment in Anchorage, and
was unsuccessful in gaining admission to the Regional Center for
Alcohol and Other Addictions as an out-patient. Linda visited her
children at DFYS only twice. Linda was charged with DWI
in October 1997. During the next twelve months, Linda never
saw her children.
After months went by without contact between Linda and her
children, DFYS's ICWA committee unanimously recommended that Linda's parental rights
be terminated and that the children be immediately placed in
permanent homes. Despite the fact that such a placement would
be non-ICWA compliant, the committee believed that J.G. clearly needed
to be placed with Foster Mother P.S. J.G. was placed
with Foster Mother P.S., and S.G. was placed with Foster
Mother R.K.
While in Foster Mother R.K.'s custody, S.G. encountered Linda at
Grandmother's house. S.G. exhibited out-of-control behavior after that encounter. S.G.
has also had nightmares. According to Foster Mother R.K., S.G.
has said that she misses her sisters, but has never
mentioned Linda and shows no desire to return to her
mother.
The State of Alaska, Department of Health and Social Services,
petitioned to terminate Linda's parental rights to J.G. and S.G.
and to commit the girls to the department's custody for
adoptive purposes. After seven days of hearings, Judge Savell issued
an oral ruling and a written order terminating Linda's parental
rights and finding good cause to deviate from ICWA's placement
preferences so as to place J.G. with Foster Mother P.S.
Linda appeals.
III. DISCUSSION
A. Standard
of Review
In
a case involving the termination of parental rights, the trial court's
factual findings will be reviewed under a clearly erroneous standard,
and will be overturned only if this court is left with a definite and
*950
firm conviction that a mistake has been made.
[FN2] The trial court's decision that a witness is qualified to
testify as an expert is reviewed for abuse of discretion; [FN3]
the test for determining abuse of discretion is whether the reasons
for the exercise of discretion are clearly untenable and unreasonable.
[FN4] However, a determination of whether the trial court's findings
comport with the requirements of ICWA involves a question of law and will
be reviewed de novo.
[FN5]
FN2.
See
E.M. v. State, Dep't of Health and Social Servs.,
959 P.2d 766, 768 (Alaska 1998).
FN3.
See
Jordan v. Jordan,
983 P.2d 1258, 1261 n. 5 (Alaska 1999).
FN4.
See
Bailey v. Lenord,
625 P.2d 849, 854 (Alaska 1981).
FN5.
See
E.M.,
959 P.2d at 768.
We
will reverse a lower court's adoptive placement preference determination
only if convinced that the record as a whole reveals an abuse of discretion
or if controlling factual findings are clearly erroneous.
[FN6] The trial court abuses its discretion if it considers improper factors
or improperly weighs certain factors in making its determination.
[FN7]
FN6.
See
In re Adoption of F.H.,
851 P.2d 1361, 1363 (Alaska 1993).
FN7.
See
id.
B. The
Superior Court Did Not Err in Terminating Linda's Parental Rights.
1. Substantial
evidence supported the superior court's finding that J.G. and S.G.
would suffer serious emotional harm if returned to Linda's custody.
In
his oral findings and written order terminating Linda's parental rights
to J.G. and S.G., Judge Savell stated that there was "evidence beyond
a reasonable doubt, including the testimony of expert witnesses[,] that
[J.G.] and [S.G.] would suffer serious emotional ... harm if returned
to the care
and custody of [Linda]." Linda argues that because there
was no evidence that J.G. and S.G. had suffered from significant behavioral
difficulties in the past, Judge Savell erred in finding that Linda's continued
custody of her children was likely to cause them serious emotional harm.
However, our review convinces us that Judge Savell's finding
of likely future emotional harm is amply supported by the evidence.
Termination of parental rights to an Indian child requires "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 ... is likely to result in
serious emotional or physical damage to the child." [FN8]
Because § 1912(f)
"looks to likely future harm to the child," [FN9]
a trial court's findings "properly focus[ ] on the risk
of future harm ... rather than on the infliction of
past injury." [FN10]
Contrary to Linda's argument, then, termination of her parental rights
did not require proof that her daughters had suffered serious
emotional harm in the past; rather, it only required proof
that they were likely to suffer such harm in the
future.
FN8.
25 U.S.C. § 1912(f).
FN9.
In
re J.R.B. & T.W.G.,
715 P.2d 1170, 1172 (Alaska 1986).
FN10.
E.M.,
959 P.2d at 771.
Proof
that a parent's continued custody of her children is likely to cause them
serious harm requires both proof that the parent's conduct is likely to
harm the children, and proof that it is unlikely that the parent will
change her conduct.
[FN11] These two elements can be proved through the testimony of
a single expert witness,
[FN12] by aggregating the testimony of expert witnesses,
[FN13] or by aggregating the testimony of expert and lay witnesses.
[FN14]
FN11.
See
In re Parental Rights of T.O.,
759 P.2d 1308, 1310 (Alaska 1988).
FN12.
See
D.A.W. v. State,
699 P.2d 340, 342 (Alaska 1985).
FN13.
See
In re Parental Rights of T.O.,
759 P.2d at 1310-11.
FN14.
See
In re Kreft,
148 Mich.App. 682, 384 N.W.2d 843, 847-48 (1986).
Substantial lay testimony established the effects of Linda's repeated substance
abuse on her children. J.G. and S.G. were both *951
first placed in state custody after Linda violated her probation
by using cocaine. Both girls were again taken from their
mother's custody after her first, second, and third relapses, each
of which also involved the use of cocaine.
Qualified expert witnesses testified that repeated separations like those endured
by J.G. and S.G. were likely to cause the girls
serious emotional harm. Deborah Hayes, who qualified as an expert
witness in social work with a speciality in permanency planning,
testified that multiple placements make it harder for children to
attach to their caregivers. Hayes also testified that children who
do not have a healthy attachment to a permanent caregiver
are more likely to exhibit emotionally disturbed behaviors, including tantrums
and aggression.
Dr. Marti Cranor, who qualified as an expert in clinical
psychology with a specialty in child protection, testified that children
removed from substance abusing parents will have greater attachment issues
and a greater need for consistent, routine, and predictable interactions
with their caregivers. Dr. Cranor also testified that it was
essentially too late for J.G. and S.G. to be returned
to their mother's custody--because the girls had already endured so
many placements, to remove them from their current placements would
impair their ability to attach to any caregiver in the
future.
The expert testimony of Hayes and Dr. Cranor was backed
up by the evidence of J.G. and S.G.'s past behavioral
problems. After Linda's probation violation for cocaine use sent J.G.
on an odyssey from Father's care to Grandmother's, from Grandmother's
to Clough's, from Clough's to the Village Center's, from the
Village Center's to Moses's, from Moses's to Moses's daughter's, and
finally from Moses's daughter's to Foster Mother P.S.'s, she arrived
in Foster Mother P.S.'s care a violent and developmentally delayed
child. Although J.G. overcame her behavioral problems in Foster Mother
P.S.'s care, she again became violent, disruptive, and anxious when
she was returned to Linda.
Linda's relapses into cocaine use sent S.G., too, through multiple
placements. Like J.G., S.G. experienced behavioral problems as a consequence.
When J.G. and S.G. were placed with Crook after Linda's
third and final relapse, S.G.'s behavioral problems caused Crook to
request the girls' removal. When moved from Crook's to Foster
Mother R.K.'s care, S.G. cried during the day and had
nightmares at night. After S.G. encountered Linda while on an
overnight visit to her grandmother's house, S.G. threw a violent
fit and hit both Foster Mother R.K. and her husband.
Given this evidence, there was no clear error in the
trial court's factual findings that Linda's repeated separations from her
daughters had caused them serious mental injury, and that both
girls were at a substantial risk of suffering
further mental injury if returned to her care.
2. The
trial court did not abuse its discretion by qualifying Lorita
Clough as an expert in Yupik culture.
Linda
also argues that Judge Savell erred in qualifying Lorita Clough as an
expert witness. Our review of the record convinces us that
Judge Savell did not abuse his discretion by qualifying Clough as an expert
witness in Yupik culture.
By
setting such a strong standard of proof in § 1912(f), Congress
intended to keep Native children from being separated from their families
solely on the basis of testimony from social workers who lacked the familiarity
with Native culture necessary to distinguish between "the cultural
and social standards prevailing in Indian communities and families"
and actual abuse or neglect.
[FN15] A witness may gain the familiarity that will qualify her
as an expert under ICWA either through personal contact, or through work
experience, with Native cultures. In In
re Parental Rights of T.O.,
for example, we held that a trial judge did not abuse his discretion in
qualifying two witnesses as experts, where one witness, a social worker,
was a member *952
of the relevant Native community and had Native children, and the other
had twenty years of experience teaching and counseling Native Alaskans.
[FN16]
Similarly, the guidelines to ICWA state that:
FN15.
25 U.S.C. § 1901(5);
see
also
H.R.Rep. No. 1386 (1978), reprinted
in
1978 U.S.C.C.A.N. 7532-33.
FN16.
See
759 P.2d 1308, 1309-10 (Alaska 1988).
[M]ost
likely to meet the requirements for a qualified expert witness
for purposes of Indian child custody proceedings [are] ...
(i)
A
member of the Indian child's tribe
who is recognized by the tribal community as knowledgeable in
tribal customs as they pertain to family organization and childrearing
practices; [or]
(ii)
A lay expert witness having substantial
experience in the delivery of child and family services to
Indians,
and extensive knowledge of prevailing social and cultural standards and
childrearing practices within the Indian child's tribe.
[FN17]
FN17.
44 Fed.Reg. 67,593 (1979).
Clough was raised in Chevak, while J.G. and S.G.'s tribal
affiliation is with the village of Emmonak. Clough, J.G., and
S.G. are all Yupik, however. Clough offered undisputed testimony that
Yupik child-rearing practices in Chevak and Emmonak are the same.
Clough learned about Yupik child-rearing practices
through knowledge passed on by village elders, and was able
to describe the important role played in child rearing by
the Yupik extended family. Clough regularly sought input from the
appropriate village when her work involved Native children, and had
asked the village of Emmonak to send a member to
Fairbanks to meet with J.G. and S.G.
At the time of the hearing, Clough had worked for
DFYS as a social worker for almost ten years. Ninety
percent of the mothers and children with whom Clough had
worked were Alaska Natives, and some of them were Yupik.
Before joining DFYS, moreover, Clough had worked at the Fairbanks
Native Association's Youth Drug & Alcohol Prevention and Women in
Crisis Counseling and Assistance Programs.
The
trial judge's reasons for qualifying an expert witness must be clearly
untenable and unreasonable to constitute an abuse of discretion. [FN18]
Judge Savell specifically requested that the state provide further
foundation evidence establishing a "nexus with family and child-rearing
practices" after Linda's counsel first objected to Clough's qualifications
as an expert in Yupik culture. After hearing further testimony
about Clough's knowledge of Yupik child-rearing practices and family structure,
the trial judge acted within his discretion in deciding that Clough was
qualified to testify as an expert by virtue of her personal familiarity
with Yupik culture and her ten or more years of experience working with
Native children and mothers.
FN18.
See
Bailey v. Lenord,
625 P.2d 849, 854 (Alaska 1981).
3. When
there is clear evidence of physical neglect, a trial judge
may terminate parental rights without hearing testimony from an expert
in Native culture.
Lorita
Clough was the only witness whom the trial judge qualified as an expert
in Native culture. In arguing that Clough was not qualified
as an expert in Yupik culture, Linda implicitly argues that her parental
rights should not have been terminated without hearing testimony from
at least one expert in Native culture. In response, the state
contends that ICWA does not require testimony from an expert in Native
culture when cultural concerns are not implicated in a termination proceeding,
and that Linda's physical neglect of J.G. and S.G. was not a cultural
issue. Given the clear evidence that J.G. and S.G. faced a
serious risk of physical neglect if they were returned to their mother's
custody, Judge Savell would not have erred in terminating Linda's parental
rights even if he had not heard any testimony from an expert in Native
culture.
Legislative
history indicates that the primary reason for requiring qualified expert
testimony in ICWA termination proceedings was to prevent
courts from basing their decisions solely upon the testimony of social
workers who possessed neither
the specialized professional education nor
the familiarity with Native culture necessary to distinguish *953
between cultural variations in child-rearing practices and actual abuse
or neglect. [FN19]
Because ICWA does not always require testimony from witnesses with
both
types of expertise,
[FN20] however, virtually all the courts that have considered the question
have concluded that so long as a termination proceeding does not implicate
cultural bias, ICWA's proof requirements can be satisfied by a qualified
expert witness without any special familiarity with Native cultural standards.
[FN21] Accordingly, 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.
[FN22]
FN19.
See
25 U.S.C. § 1901(5);
see
also
H.R.Rep. No. 1386 (1978), reprinted
in
1978 U.S.C.C.A.N. 7532-33.
FN20.
See
Jordan v. Jordan,
983 P.2d 1258, 1261 (Alaska 1999) (noting that, despite their
lack of familiarity with Native culture, two experts "appeared to
meet the third basis to qualify as expert witnesses-- 'substantial
education' in the field of their speciality").
FN21.
See
Rachelle S. v. Department of Economic Sec.,
191 Ariz. 518, 958 P.2d 459, 461-62 (App.1998) ("[D]istinctive knowledge
of Indian culture is necessary only when cultural mores are
involved."); People
in Interest of R.L.,
961 P.2d 606, 609 (Colo.App.1998) ("[I]f termination is based on
parental unfitness unrelated to Indian culture and society, an expert
witness qualified to testify pursuant to 25 U.S.C. § 1912(f)
need not possess special knowledge of Indian life."); In
re Baby Boy Doe,
127 Idaho 452, 902 P.2d 477, 485 (1995) ("Special knowledge
of Indian life is not necessary where a professional person
has substantial education and experience and testifies on matters not
implicating cultural bias."); In
re N.L.,
754 P.2d 863, 868 (Okla.1988) ("The determination [in an ICWA
proceeding] must include consideration of tribal family practices unless cultural
bias is clearly not implicated."); State
ex rel. Juv. Dep't v. Tucker,
76 Or.App. 673, 710 P.2d 793, 799 (1985) ("[W]hen cultural
bias is clearly not implicated, the necessary proof may be
provided by expert witnesses who do not possess special knowledge
of Indian life."). But
see In re Welfare of M.S.S.,
465 N.W.2d 412, 417 (Minn.App.1991) ( "The experts should also
be conversant with Indian culture and child-rearing practices, lest 'the
problems Congress has tried to remedy may remain despite the
adoption of [ICWA].' " (citation and internal quotation omitted)).
FN22.
See
In re D.C.,
715 P.2d 1, 1 n. 1 (Alaska 1986) (noting that
in a case involving the sexual abuse of the child,
there was "no abuse of discretion in the trial court's
determination that the witness was a qualified expert for purposes
of [ICWA], given her education, training, and work experience in
the field of sexual abuse of children.").
Our conclusion that termination proceedings under § 1912(f)
will not always require testimony from an expert in Native
culture is consistent with our holding in E.M.
v. State, Department of Social Services.
[FN23] In E.M.,
lay testimony established that, on numerous occasions, E.M. left his
child alone or "in the care of anyone who happened
to be present in [E.M.'s] apartment;" that E.M.'s residence was
dangerous; and that E.M. had repeatedly refused to submit to
urinalysis and made "little or no progress in attempting to
meet the requirements of his court-ordered case plan." [FN24]
A doctor and a social worker testified, as expert witnesses,
that the father's unstable conduct was likely to continue and
that he would not be able to provide a safe
home for his child.
[FN25] Despite the fact that neither expert witness had any
special knowledge of Native culture or child-rearing practices, we affirmed
the trial court's order terminating the father's parental rights.
[FN26]
FN23.
959 P.2d 766 (Alaska 1998).
FN24.
Id.
at 769-70.
FN25.
See
id.
FN26.
See
id.
at 770-71.
Like E.M.'s child, J.G. and S.G. were put at risk
of serious physical harm by Linda's neglect. Linda raised J.G.
in a hotel known for drug trafficking and prostitution, and
lived there with a man who, by Linda's own account,
forced her to take drugs. Linda left her daughters unsupervised
while she was under the influence of alcohol or drugs,
and left her children in the custody of an inadequate
caretaker while she was out drinking, hospitalized because of drinking,
and imprisoned after assaulting her brother while drinking.
There was also substantial evidence that Linda's physical neglect of
her children was likely to continue. Linda had repeatedly violated
her parole and the requirements of her treatment programs by
drinking, doing *954
drugs, and refusing to submit to urinalysis. Sonia Mazurek, the
children's guardian ad litem, told the court that Linda's behavior
revealed clear patterns of substance
abuse. Mazurek did not believe that Linda could avoid relapse
outside the bounds of a structured program, or that either
J.G. or S.G. could safely be returned to Linda's custody.
Jody Pritchard, who qualified as an expert in the provision
of treatment to mothers with substance abuse issues, testified that
Linda had been using cocaine as well as alcohol and
that cocaine addiction is much harder to treat than alcohol
addiction. Pritchard also testified that while Linda had been successful
in staying sober within structured treatment programs, her fear of
being responsible for her own actions led her to relapse
repeatedly upon leaving those programs.
Based upon this lay and expert testimony, the trial court
found that Linda's "addictive and habitual use of alcohol and
cocaine" had resulted in a "substantial risk to the children;"
that Linda's neglect, "each time [she] chose to return to
substance abuse," kept her from caring for her children adequately;
and that "[Linda's] parental conduct [was] likely to continue." The
trial court's factual findings are well supported by the record.
Far from reflecting mere cultural differences in the care of
Native children, Linda's history of serious substance abuse places J.G.
and S.G. at a clear risk of future harm if
returned to her custody. Given the clear evidence of physical
neglect, termination of Linda's parental rights did not require testimony
from an expert in Native culture.
C. The
Trial Court Had Good Cause to Deviate from ICWA's Placement
Preferences to
Promote J.G.'s Best Interests.
Linda contends that there was
no "good cause" for the state to deviate from ICWA's placement
preferences and place J.G. with Foster Mother P.S. We conclude, however,
that Judge Savell's factual finding that J.G. faced a certainty of serious
emotional harm if she were removed from Foster Mother P.S.'s custody was
not clearly erroneous, and that Judge Savell did not abuse his discretion
by weighing J.G.'s best interests as of paramount importance in the placement
decision.
In any pre-adoptive placement of an Indian child
a
preference shall be given, in
the absence of good cause to the contrary,
to a placement with--
(i)
a member of the Indian child's extended family;
(ii)
a foster home licensed, approved, or specified by the Indian
child's tribe;
(iii)
an Indian foster home licensed or approved by an authorized
non-Indian licensing authority; or
(iv)
an institution for children approved by an Indian tribe or
operated by an Indian organization which has a program suitable
to meet the Indian child's needs.
[FN27]
FN27.
25 U.S.C. § 1915(b)
(emphasis added).
The state concedes that J.G.'s placement with Foster Mother P.S.
is not compliant with ICWA's preferences; Foster Mother P.S. does
not qualify under any of the four provisions of § 1915(b),
while Grandmother and Foster Mother R.K. (a foster mother approved
by J.G.'s tribe) do.
Although ICWA does not define "good cause," this court has
held that
[w]hether
there is good cause to deviate from ICWA's placement preferences
in a particular case depends on many factors including, but
not necessarily limited to, the best interest of the child,
the wishes of the biological parents, the suitability of persons
preferred for placement and the child's ties to the tribe.
[FN28]
FN28.
In
re Adoption of F.H.,
851 P.2d 1361, 1363-64 (Alaska 1993).
Similarly, the Bureau of Indian Affair's Guidelines offer, as examples
of the kinds of factors that can provide good cause
to deviate:
(i)
The request of the biological parents or the child when
the child is of sufficient age.
(ii)
The extraordinary physical or emotional needs of the child as
established by testimony of a qualified expert witness.
*955
(iii) The unavailability of suitable families for placement after a
diligent search has been completed for families meeting the preference
criteria.
[FN29]
FN29.
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
67,594 (1979).
Courts in other jurisdictions have held that "the certainty of
emotional or psychological damage to the child if removed from
the primary caretaker may also be considered by the court
in determining whether good cause exists to deviate from the
placement preferences of ... ICWA." [FN30]
Most significantly, this court has held that "although ICWA and
the guidelines draw attention to important considerations, the
best interests of the child remain paramount."
[FN31]
FN30.
People
ex rel. A.N.W.,
976 P.2d 365, 369 (Colo.App.1999); see
also In re Baby Doe,
127 Idaho 452, 902 P.2d 477, 487 (1995).
FN31.
Adoption
of N.P.S.,
868 P.2d 934, 936 (Alaska 1994) (emphasis added).
As Judge Savell noted, the experts agreed that removing J.G.
from her placement with Foster Mother P.S. was certain to
cause her serious emotional or psychological damage. Dr. Cranor testified
that--having been through eleven placements already--J.G. was essentially at the
end of her capacity to withstand the stress of another
placement. Similarly, Lorita Clough testified that because of J.G.'s history
of multiple placements, J.G. would not be able to tolerate
another move without risking her ability to ever again attach
to a caregiver. Mazurek, J.G.'s guardian ad litem, also believed
that J.G. could not "make it" unless she stayed in
her current placement with Foster Mother P.S. Judge Savell did
not clearly err in finding that "[J.G.'s] ability to bond
and to trust is at its boundaries; another separation is
certain to cause serious emotional harm and would create a
significant likelihood that her ability to attach would be irrevocably
destroyed."
There was also evidence that J.G. could retain her connection
to her tribal heritage even if placed with Foster Mother
P.S. J.G.'s permanent placement with Foster Mother P.S. was unanimously
approved by DFYS's ICWA review committee, which included an adoption
specialist and a Native liaison, usually included a Native Alaskan,
and invited participation by the Emmonak tribal representative. J.G.'s placement
with Foster Mother P.S. was also supported by Lorita Clough,
who testified about the importance of the girls maintaining ties
to their extended family and tribal heritage. When Foster Mother
P.S. first
cared for J.G., moreover, she regularly took the girl to
visit with her Native grandparents.
The suitability of alternative placements was a closer question. After
J.G. was placed with Grandmother in 1994, Grandmother asked that
the child be placed elsewhere and had J.G. dropped off,
without further warning, at the office of a case worker
whom the two-year-old girl had never met. Over the next
five years, Grandmother not only did not offer herself as
a placement, but told the DFYS case worker that she
considered calls about the girls to be harassment and ordered
the case worker never to call again. Although placement with
Foster Mother R.K. would allow J.G. to be placed with
S.G., Judge Savell specifically found that because of J.G.'s weakened
ability to attach, placement with Foster Mother R.K. "would be
destructive to [J.G.]."
"[L]argely because of the harm another move would cause," Judge
Savell found that there had been, and continued to be,
good cause to place J.G. with Foster Mother P.S. Judge
Savell did not abuse his discretion by weighing J.G.'s best
interests as of paramount importance in finding good cause to
deviate from ICWA's placement preferences.
IV. CONCLUSION
In deciding to terminate Linda's parental rights, Judge Savell found
that Linda's history of abandonment and substance abuse placed her
daughters at a serious risk of emotional and physical harm
if they were returned to her custody.
Judge Savell also found that J.G.'s extraordinary emotional needs necessitated
her placement with Foster Mother P.S. Both of Judge Savell's
decisions are supported by the facts and legally *956
sound. Accordingly, we AFFIRM the trial court's order terminating Linda's
parental rights and finding good cause to deviate from ICWA's
preferences in the placement of J.G.
14 P.3d 946
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