State v. Cissy A., Supreme Court Nos. S-18088/18092 (Consolidated)

CourtSupreme Court of Alaska (US)
Writing for the CourtPER CURIAM.
Citation513 P.3d 999
Parties STATE of Alaska, Department of Health & Social Services, Office of Children's Services, Appellant, v. CISSY A. and Butch R., Appellees. State of Alaska, Department of Health & Social Services, Office of Children's Services, Appellant, v. Linette S. and Marquis D., Appellees, Nenana Native Village, Intervenor-Appellee.
Docket NumberSupreme Court Nos. S-18088/18092 (Consolidated)
Decision Date22 July 2022

513 P.3d 999

STATE of Alaska, Department of Health & Social Services, Office of Children's Services, Appellant,
v.
CISSY A. and Butch R., Appellees.


State of Alaska, Department of Health & Social Services, Office of Children's Services, Appellant,
v.
Linette S. and Marquis D., Appellees,

Nenana Native Village, Intervenor-Appellee.

Supreme Court Nos. S-18088/18092 (Consolidated)

Supreme Court of Alaska.

July 22, 2022


Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, and Treg R. Taylor, Attorney General, Juneau, for Appellant.

Julia Bedell, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Appellees Cissy A. and Marquis D. Kristin J. Farleigh, Jason Weiner & Associates, P.C., Fairbanks, for Appellee Butch R. Christopher J. Bodle, Jason Weiner & Associates, P.C., Fairbanks, for Appellee.

Linette S. Savannah Fletcher, Alaska Legal Services Corporation, Fairbanks, and Pearl E. Pickett, Alaska Legal Services Corporation, Anchorage, for Intervenor-Appellee Nenana Native Village.

Margaret McWilliams, Assistant Public Advocate, Juneau, and James Stinson, Public Advocate, Anchorage, for Guardian Ad Litem.

Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.

OPINION

PER CURIAM.

I. INTRODUCTION

The Indian Child Welfare Act (ICWA) prohibits a state court from terminating parental rights to an Indian child unless there is proof beyond a reasonable doubt that continued custody by the parent is likely to cause serious damage to the child. This proof must include testimony by a qualified expert witness. An expert witness

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should , according to regulations by the federal Bureau of Indian Affairs (BIA), be qualified to testify about the prevailing social and cultural standards of the Indian child's tribe. But the BIA has also stated that this cultural expert testimony is not always required. These consolidated appeals concern how the superior court determines when cultural expert testimony is needed and when this testimony is adequate in a particular case.

In two separate cases the superior court decided that it could not terminate parental rights without cultural expert testimony and that the cultural expert testimony presented was too vague and generalized to be helpful. Although it was error to construe our precedent to require cultural expert testimony in every ICWA case, we affirm the court's decision to require expert testimony based on its explanation that it could not competently weigh the evidence of harm in these cases without cultural context. And because the cultural expert testimony presented did not provide a meaningful assessment of tribal social and cultural standards and was not grounded in the facts of these particular cases, we hold the court did not clearly err by giving the testimony no weight. We therefore affirm its decision to deny termination of parental rights in each case.

II. FACTS AND PROCEEDINGS

This opinion addresses two cases in which the superior court made similar determinations. We first summarize the facts and proceedings of each case separately; we then summarize the superior court's conclusions jointly.

A. Cissy A. And Butch R.

Cissy A. and Butch R. are the parents of Howie R., born in 2018.1 Cissy is a member of the Native Village of Barrow and Howie is an Indian child for purposes of ICWA.2

Cissy and Butch struggled with substance abuse and domestic violence within their relationship both before and after Howie's birth. Butch has an extensive history of domestic violence. Cissy's substance use prenatally exposed Howie to amphetamine, alcohol, and methamphetamine.

Howie was born prematurely and spent about three weeks in the neonatal intensive care unit to address his medical issues. OCS received a report that Howie had tested positive for various substances at birth. After speaking with Cissy and Butch about their substance abuse, OCS assumed emergency custody. Howie now faces developmental and social delays and struggles with transitions, impulse control, and aggression.

OCS made efforts to help the parents remedy their conduct and to support reunification. OCS referred Butch to an alternatives to violence program, but he failed to attend any sessions until over a year and a half later. Similarly, Butch did not provide OCS-recommended urinalysis samples for approximately a year and a half during the pendency of the case. OCS referred Cissy to inpatient substance abuse treatment and facilitated a trial home visit with Howie while she was there. However, Cissy had contact with Butch while Howie was in her care, and relapsed shortly after leaving treatment. After about a year and a half of case planning and attempts at reunification, OCS filed a petition to terminate both parents’ rights.

OCS presented two expert witnesses at the termination trial: Dr. Martha Cranor, a licensed psychologist, and Edith Kaleak, an expert in the cultural values and practices of the Native Village of Barrow.

Dr. Cranor submitted an expert report and testified at trial regarding the likelihood of serious physical or emotional damage to Howie if he were to return to Cissy or Butch's care.3 OCS emphasized that it was

513 P.3d 1005

not offering Dr. Cranor as an expert in tribal culture or practices, and no party objected to Dr. Cranor's classification as an expert in child welfare and parental risk assessment. To form her opinions, Dr. Cranor reviewed 605 pages of records, including OCS records, hospital records, visitation records, urinalyses, and police records.

Dr. Cranor indicated in her expert report that it was her "professional opinion that placement of [Howie] with either of his parents would place him at elevated risk for both physical and psychological harm." This opinion was based principally on the parents’ substance use, Butch's domestic violence, and the parents’ inconsistent visitation with Howie. Dr. Cranor asserted that Cissy's alcohol and drug use during pregnancy led to Howie's medical difficulties as an infant and his later developmental challenges. She also indicated that Cissy's substance use had "negatively impacted her ability to care for herself and provide for her own basic needs" and anticipated that Cissy's continued use would prevent her from effectively parenting Howie. Dr. Cranor used an actuarial risk assessment tool to assess future risk of harm to Howie from domestic violence, concluding it would be high were he returned to Butch's care, or to Cissy's care if she were in contact with Butch.

Referencing attachment theory in both her report and testimony, Dr. Cranor emphasized that the sporadic visitation between the parents and Howie made it challenging for Howie to develop relationships with either parent. She asserted that "[a]ttachment requires constant, day-in and day-out, mutually reinforcing and reciprocal interactions between the parental figure and the child, a process that is seriously disrupted by extended separations." Dr. Cranor explained that infrequent and inconsistent visitation could result in Howie having "difficulty self-soothing and managing stress" and increased anxiety. She felt that Howie would be at risk of psychological harm if placed with his parents in part because of the attachment challenges.

Dr. Cranor also expressed some concern about the parents’ physical living space and their economic situations in her report and testimony. For instance, during the trial she stated that the parents "didn't have an adequate living situation to care for a child who at that point was medically fragile and needed, you know, at least a home with reliable heat and preferably running water." Dr. Cranor's report also stressed that Cissy had an inconsistent employment history and "appears to have relied on family members, acquaintances, friends, romantic partners, community agencies, and/or tribal dividends for her financial support."

Kaleak, a 20-year family advocate for the Native Village of Barrow and a tribal member, testified without objection as an expert on the Tribe's "cultural practices ... and traditions." However, neither the parties nor Kaleak had much time to prepare for her testimony. OCS provided notice of its intent to call Kaleak as an expert the day before trial. Kaleak received the petition to terminate parental rights at six o'clock the evening prior to her appearance, and was only able to review the material for ten minutes before testifying. She noted that she was "not ... able to fully absorb" the petition.

OCS asked Kaleak just two substantive questions on direct examination. OCS first asked Kaleak to describe "the important cultural practices and traditions" of the Native Village of Barrow. Kaleak stated that the Tribe's traditional practices include hunting, gathering, and a focus on communal welfare. OCS next asked Kaleak whether the Tribe's "cultural norms, traditions, or values" included substance use, domestic violence, or neglect. Kaleak responded "No," and said that such conduct would trigger the intervention of the Tribe's own child protective services.

On cross-examination, Cissy drew out a bit more information concerning tribal practices in situations...

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