as: 699 P.2d 340)
Court of Alaska.
of Alaska, Appellee.
May 10, 1985.
of how many expert witnesses are required to testify in
child custody-foster care placement proceedings under the Indian Child Welfare
Act was not properly before the court on appeal of
order committing child to Department of Health and Social Services,
where mother did not raise the issue at superior court
level, and where mother did not include the issue in
her statement of points on appeal. Indian Child Welfare Act
of 1978, § 102(e),
25 U.S.C.A. § 1912(e);
Rules App.Proc., Rule 210(e).
of plural form "expert witnesses" in the Indian Child Welfare
Act does not mean that testimony of more than one
qualified expert witness is required in child custody-foster care placement
proceedings under the Act, since federal rules of construction provide
that plural and singular are interchangeable. Indian Child Welfare Act
of 1978, § 102(e),
25 U.S.C.A. § 1912(e);
1 U.S.C.A. § 1.
court's recommendations to natural mother that it would consider changing
disposition order of child found to be in need of
aid and placed with the Department of Health and Social
Services if mother completed a residential alcohol abuse program and
maintained sobriety were entirely appropriate and within its discretion. AS
is within court's discretion in child custody proceedings to give
clear guidance to a parent as to how custody of
a child may be regained. AS 47.10.080.
John T. Maltas, Asst. Public Defender, Kenai, Dana Fabe, Public
Defender, Anchorage, for appellant.
Dianne Olsen, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty.
Gen., Juneau, for appellee.
Philip N. Nash, Kenai, Guardian Ad Litem.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
V.M.W., the thirteen-year old daughter of D.A.W., was adjudicated a
child in need of aid, pursuant to AS 47.10.010(a)(2)(A), (D)
[FN1] This adjudication was based on D.A.W.'s admitted alcohol abuse
which resulted in neglect of V.M.W., who is retarded and
unable to meet her own needs. The record further shows
that D.A.W.'s failure to supervise V.M.W. created conditions under which
V.M.W. was sexually abused.
Alaska Statute 47.10.010(a)(2)(A), (D) and (F) provides in pertinent part:
(a) Proceedings relating to a minor under 18 years of
age residing or found in the state are governed by
this chapter, except as otherwise provided in this chapter, when
the court finds the minor
* * *
to be a child in need of aid as a
the child being habitually absent from home or refusing to
accept available care, or having no parent, guardian, custodian or
relative caring or willing to provide care...;
* * *
the child having been sexually abused either by the child's
parent, guardian or custodian, or as a result of conditions
created by the child's parent, guardian or custodian, or by
the failure of the parent, guardian or custodian adequately to
supervise the child;
* * *
the child having suffered substantial physical abuse or neglect as
a result of conditions created by the child's parent, guardian
After a five-day disposition hearing, the superior court ordered V.M.W.
committed to the care of the Department of Health and
Social Services (DHSS)
placement in an appropriate setting, which may not be the
parental home, for a period of time not to exceed
two years or in any event past the date the
becomes nineteen years of age.
The superior court's order further provided that:
a condition of placement in the home of her mother,
D.A.W. must complete a residential substance abuse program ... and
maintain sobriety until the time set for review as provided
V.M.W. is an Indian child within the meaning of the
Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963
("the Act"). *342
Therefore, the requirements of the Act applied to the disposition
At the disposition hearing DHSS presented several witnesses in support
of its recommendation that V.M.W. be placed in DHSS's care.
All testified that continued custody of V.M.W. by D.A.W. was
likely to result in serious harm to V.M.W.
There are two issues on appeal. First, D.A.W. argues that
at least two expert witnesses are required to testify pursuant
to the Act, 25 U.S.C. § 1912(e),
and that of the state's witnesses only one qualified as
an expert under the Act. Second, D.A.W. argues that the
court erred in ordering D.A.W. to complete a residential alcohol
abuse program and to maintain sobriety as a pre-condition to
placement of V.M.W. in her home.
The issue of how many expert
witnesses are required to testify in child custody--foster care placement
proceedings under the Act is not properly before this court for two reasons.
First, D.A.W. did not raise this issue at the superior
court level. "A party may not raise for the first time on appeal
an alleged error to which he failed to object to in the trial court."
Assoc. v. Lewis, 453
P.2d 345, 349 (Alaska 1969). See
also Ryfeul v. Ryfeul,
650 P.2d 369, 374 & n. 16 (Alaska 1982) and cases cited therein. Second,
D.A.W. did not include the issue in her Statement of Points on Appeal.
Appellate Rule 210(e) provides in part that "[t]he appellate
court will consider nothing but the points so stated."
Even if the issue were properly
before this court, D.A.W.'s claim fails on its merits. D.A.W.
argues that § 1912(e) of the Act expressly requires the testimony
of more than one qualified expert witness because it uses the plural form,
i.e., "expert witnesses." Section 1912(e) states in full:
foster care placement may be ordered in such proceeding in
the absence of a determination, supported by clear and convincing
evidence, including testimony of qualified expert
that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional
or physical damage to the child.
25 U.S.C. § 1912(e)
(1978) (Emphasis added).
Both the law and common sense dictate that the plural
form of "expert witnesses" is not to be taken literally.
Federal rules of construction provide that the plural and singular
are interchangeable. According to 1 U.S.C. § 1
determining the meaning of any Act of Congress, unless the
context indicates otherwise ... words importing the plural include the
Similarly, Alaska's rules of statutory construction state: "Words in the
singular number include the plural, and words in the plural
number include the singular." AS 01.10.050(b).
The Department of the Interior Guidelines,
For State Courts; Indian Child Custody Proceedings,
44 Fed.Reg. 67584 (1979), while not legally binding, indicate that
only one expert witness is required in custody proceedings under
D. 4 Qualified Expert Witnesses
Removal of an Indian Child from his or her family
must be based on competent testimony from one
or more experts
qualified to speak specifically to the issue of whether continued
custody by the parents or the Indian custodians is likely
to result in serious physical or emotional damage to the
44 Fed.Reg. 67593 (1979) (Emphasis added).
In the Matter of M.E.M.,
635 P.2d 1313, 1318 (Mont.1981) (trial court should consider guidelines
in deciding whether proper
foundation existed for expert opinion).
Neither the language nor the purpose of the Act requires
that more than one qualified expert testify in child custody--foster
care placement proceedings. This specification of error, if properly before
the court, is lacking in merit.
The superior court found that placement of V.M.W. with D.A.W.
was not in V.M.W.'s best interests, pursuant to AS 47.10.082.
[FN4] It ordered V.M.W. committed to the physical custody of
DHSS pursuant to AS 47.10.080(c)(1),
[FN5] as a child in need of aid, for a
period not to exceed two years. The court's order also
notified the natural mother that in order for it to
change the disposition order prior to the time set for
review D.A.W. would have to complete a residential alcohol abuse
program and maintain sobriety. By virtue of this portion of
its order the superior court in effect advised D.A.W. of
what she would have to do to regain custody of
AS 47.10.082 provides: "[I]n making its disposition order under 47.10.080(c)
the court shall consider the best interests of the child...."
AS 47.10.080(c)(1) provides:
* * *
If the court finds that the minor is a child
in need of aid, it shall
order the minor committed to the department for placement in
an appropriate setting for a period of time not to
exceed two years or in any event past the date
the minor becomes 19 years of age, except that the
department may petition for and the court may grant in
a hearing (A) two-year extensions of commitment which do not
extend beyond the minor's 19th birthday if the extension is
in the best interests of the minor and the public;
and (B) an additional one-year period of supervision past age
19 if the continued supervision is in the best interests
of the person and the person consents to it; the
department may transfer the minor, in the minor's best interests,
from one placement setting to another, and the minor, the
minor's parents or guardian and the minor's attorney are entitled
to reasonable notice of the transfer....
D.A.W. asserts that this portion of the superior court's order
lacked statutory authorization and was therefore erroneous. She argues that
the superior court placed an additional burden on her beyond
the requirements of AS 47.10.080 and claims that while such
recommendations are meant as incentives, they could have the opposite
effect, presumably because if she failed to maintain sobriety even
briefly, she would lose her opportunity to change
The superior court's recommendations
concerning the terms under which it would consider changing its disposition
order were entirely appropriate. It is within the court's
discretion in child custody proceedings to give clear guidance to a parent
as to how custody of a child may be regained.
699 P.2d 340