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The superior court terminated a mother's parental rights to two of her Indian children. She now appeals, contesting the qualification of the ICWA-required expert witness and the finding that OCS made active efforts to prevent the breakup of the Indian family. Because the superior court's decision to qualify the expert witness was not an abuse of discretion, and because the superior court's active efforts finding was not erroneous, we affirm the termination of the mother's parental rights.
II. FACTS AND PROCEEDINGS
Caitlyn E., a Yupik woman, lives in Bethel and is the mother of Maggie and Bridget, ages nine and six at trial, who are Indian children within the meaning of the Indian Child Welfare Act (ICWA) based on their affiliation with the Orutsararmiut Native Council (the Tribe).
OCS took emergency custody of Maggie and Bridget in January 2013 after receiving reports that Caitlyn exposed Maggie to marijuana and, while intoxicated, took Maggie from the safety of Caitlyn's mother's home and allowed her to be driven by a drunk driver. The children were placed with Caitlyn's mother, Sarah, who qualified as a preferred placement under ICWA.
Caitlyn initially participated in the case, but disengaged before long. She apparently dropped out of contact with both OCS and her attorney until August 2013, when she renewed her interest in parenting after initially consenting to allow Sarah to adopt the children but later withdrawing that consent. During the spring of 2013, Caitlyn was also diagnosed with active tuberculosis for which she refused treatment.
Although Caitlyn reengaged in services in August and later obtained a substance abuse assessment, she was unable to start treatment due to her tuberculosis; no treatment center would accept her while she had active tuberculosis. In June 2014, a few days after finishing her tuberculosis medication, Caitlyn entered treatment at Phillips Ayagnirvik Treatment Center (PATC) in Bethel, but she was discharged after less than two weeks for possession of marijuana and unprescribed pills. PATC then recommended a higher level of care, but instead Caitlyn proceeded to, in her own words, "drink for three months straight."
In November 2014 Caitlyn began treatment at Women and Children's Center for Inner Healing in Fairbanks. OCS completed her application, provided transportation for her, and sent Bridget to join her within 30 days as required by the program. OCS also made arrangements for Maggie to visit. Because Caitlyn initially did well at Women and Children's Center, OCS decided to hold a termination petition in abeyance in January 2015. But Caitlyn was discharged in March for throwing a frozen water bottle at a staff member. Sarah later testified that the sudden removal of Caitlyn and Bridget from the facility when Bridget had been sleeping made Bridget become withdrawn and scared.
Following Caitlyn's discharge from Women and Children's Center, OCS worked with her to try to get her back into treatment, completing applications to three different facilities on her behalf. Caitlyn agreed to submit to urinalysis tests (UAs) and was given cab vouchers for transportation to her appointments, but she completed no UAs. In September 2015 Caitlyn completed an integrated intake assessment for substance abuse treatment, at which she stated she used drugs on a daily basis and craved heroin. Multiple therapies and inpatient residential treatment were recommended.
But the following month, Caitlyn again dropped out of contact with OCS. Her caseworker continued to leave messages for her, but she did not respond until February 2016. During that time Caitlyn had been working on her own — without the knowledge or support of OCS — to get re-accepted to Women and Children's Center and had secured a bed date. Caitlyn filed a motion for a review hearing under Alaska Child in Need of Aid (CINA) Rule 19.1(d),
A joint permanency hearing and termination of parental rights trial was held over four days in February 2016.
Caitlyn testified that she had been sober for 15 months, and she felt her children were safe around her even when she was drinking as long as a sober person was present. She stated that she smokes marijuana "whenever [she] feel[s] like it" and had done so as recently as the day before trial. Her testimony revealed that she chose not to attend UAs. She blamed OCS for interfering with her recovery by switching caseworkers so frequently and for Bridget's traumatizing removal from Women and Children's Center.
Sarah testified that Caitlyn only intermittently visited her daughters, stating that when she visited in a bad mood, she yelled at Sarah in front of the girls and frightened them. Sarah also testified that Bridget was "a changed little girl" who acted "withdrawn" and "scared" following Caitlyn's and Bridget's discharge from Women and Children's Center. Sarah further testified that at least two OCS caseworkers had made themselves available to her by phone to help her through verbal confrontations with Caitlyn.
The OCS caseworkers testified regarding efforts they made to get services for Caitlyn and her family, and their difficulty reaching her or securing her cooperation. Symmes testified that he helped get the family into better housing and obtain fuel oil and additional funding for food. OCS lost part of Caitlyn's file while Symmes was assigned to her case, but he testified that Caitlyn could not have been in treatment during that period because she had active tuberculosis. Johnson testified that, after working with Caitlyn to apply to treatment programs, Caitlyn fell out of contact with OCS in the months leading up to the termination trial.
The superior court qualified Charlie as an expert in Yupik child-rearing practices and child protection over Caitlyn's objection that Charlie lacked social work education and substance abuse expertise. Charlie testified that it was her expert opinion that the children would be at risk of harm if returned to Caitlyn's custody because of her substance abuse and verbal abuse. Charlie explained that substance use in front of children and verbal abuse of family are not normal parts of Yupik culture. On cross-examination Charlie conceded that Women and Children's Center would benefit Caitlyn. She also acknowledged that a delay in permanency would not change the children's situation, as they would be placed with Sarah whether or not Caitlyn's parental rights were terminated and they were old enough to know they were living with their grandmother.
In order to terminate parental rights to an Indian child, the superior court must make five factual findings.
Caitlyn now appeals, arguing that Charlie should not have been qualified as an expert witness and that OCS did not make active efforts to prevent the breakup of the Indian family.
A. The Superior Court Properly Qualified Robin Charlie As An Expert Witness Under ICWA.
ICWA requires that the likelihood of harm finding be supported by the testimony of a qualified expert witness.
The superior court qualified Charlie under the 2015 Bureau of Indian Affairs (BIA) Guidelines.
Charlie was qualified under the second category as "[a] member of another tribe who is recognized to be a qualified expert witness by the Indian child's tribe based on their knowledge of the delivery of child and family services to Indians and the Indian child's tribe." At voir dire OCS emphasized Charlie's Yupik upbringing as a member of the Native Village of Tununak and her six years of work in social services for the Tribe in Bethel. Charlie worked with children on cultural and subsistence awareness as a youth coordinator for five years; the Tribe then promoted her to Social Services Director, and she supervised the departments for ICWA, rural child welfare, and youth services for a year and a half. The Tribe also approved Charlie's participation as an expert witness in this case. Caitlyn emphasized that Charlie was not a licensed social worker and had not yet completed all her college-level social work classes. But the 2015 BIA Guidelines do not require that a cultural expert have additional subject matter expertise,
Caitlyn's argument for such a subject matter expertise requirement is based on our statement in Marcia V. that "more is required of an ICWA expert than simply being `qualified' as some kind of expert under the rules of evidence."
We concluded that "[b]ecause ICWA does not always require testimony from witnesses with both types of expertise, . . . 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."
Though the facts are reversed here, the same logic applies: Charlie has expertise in Yupik child-rearing practices and thus was able to testify without needing further "specialized professional education" that Caitlyn's substance abuse and verbal abuse were not a normal part of that culture and, combined with Caitlyn's history of aggression and verbal abuse, created a risk of harm to the children. ICWA's legislative history also indicates that a main concern of the law was that "social workers, ignorant of Indian cultural values and social norms, make decisions that are wholly inappropriate in the context of Indian family life."
We also note that in addition to her claim of error under ICWA, Caitlyn argues that Charlie's testimony was improperly admitted under Alaska Evidence Rule 702. Rule 702(a) provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." "We confirmed long ago that `the standard for admission of expert testimony in Alaska is whether the testimony would appreciably assist the trier of fact.'"
But the superior court did not qualify Charlie to testify broadly about "substance abuse" as a general topic. Instead, the superior court qualified Charlie to testify on the more limited questions of "how substance abuse can affect the tribe" and whether substance abuse "has an effect on the child rearing practices and child protection" in the tribe. In fact, the superior court explicitly restricted the scope of Charlie's substance abuse testimony, noting that she would not be able to "giv[e] diagnoses" as to Caitlyn's substance abuse problems. We conclude that, given Charlie's knowledge and experience, the superior court did not abuse its discretion in qualifying Charlie to testify about substance abuse in the limited context we have just described. And since Caitlyn has not pointed to any specific trial testimony that went beyond this limited context to which she objected at trial, we conclude there is no basis for reversal under Evidence Rule 702.
B. The Superior Court Did Not Err In Finding That OCS Made Active Efforts To Prevent The Breakup Of The Indian Family.
Before terminating parental rights to an Indian child, a court must find that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."
"Whether OCS made active efforts as required by ICWA is a mixed question of law and fact."
We have stated that "[c]onflicting evidence is generally insufficient to overturn the superior court, and we will not reweigh evidence when the record provides clear support for the superior court's ruling."
Second, Caitlyn argues that OCS failed to make active efforts when it placed her at PATC even though she needed a higher level of care. But as the superior court noted, a caseworker testified that Caitlyn wanted to stay close to home for treatment; he also testified that starting with the "level of care that is as minimally invasive as possible" is preferable, and OCS tried to offer "the best therapeutic care we could, as close to home as possible." The superior court properly considered Caitlyn's placement at PATC as part of OCS's active efforts.
Third, Caitlyn argues that OCS failed to make active efforts when it failed to help her get back into Women and Children's Center, which Charlie, the expert witness, had testified would benefit Caitlyn.
Fourth, Caitlyn argues that OCS failed to make active efforts when it assigned her multiple caseworkers over the lifetime of the case. But Caitlyn worked closely with two caseworkers for approximately one year each and was evasive throughout other time periods. It was therefore not error for the court to acknowledge the turnover in this case and nonetheless conclude that OCS made active efforts.
We also have stated that courts may consider "a parent's demonstrated lack of willingness to participate in treatment" in evaluating the sufficiency of OCS's efforts.
Courts may also consider OCS's efforts toward the family as a whole in evaluating active efforts.
Caitlyn's remaining argument, that OCS's failure to monitor her progress while she was at Women and Children's Center constitutes a lack of active efforts, is factually unavailing. Her attorney acknowledged that Women and Children's Center is a "long-term inpatient treatment program" which provides group and family therapy, mental health services, and anger management services in addition to substance abuse treatment. As such, it is not clear what additional services OCS could have provided during this time, other than arranging and paying for Caitlyn's travel to and from the program and arranging for Maggie to visit, which it did.
We therefore affirm the superior court's finding that OCS made active efforts to prevent the breakup of the Indian family.
For the reasons explained above, the superior court's decision to terminate Caitlyn's parental rights is AFFIRMED.