| (Cite
as: 176 Or.App. 237, 30 P.3d 1223)
Court
of Appeals of Oregon.
In
the Matter of Ashley Nicole Amador, a Minor Child.
STATE
ex rel. STATE OFFICE for SERVICES to CHILDREN and FAMILIES
and Ashley
Nicole
Amador, Respondents,
v.
Hope
Lynn AMADOR, aka Hope Lynn Davis, Appellant.
9900561;
A113025
Argued and Submitted June
14, 2001.
Decided
Aug. 22, 2001.
**1224 *238
James A. Palmer, Eugene, argued the cause and filed the brief
for appellant.
Judy C. Lucas, Assistant
Attorney General, argued the cause for respondents. With her on the brief
were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor
General.
Before LANDAU, Presiding
Judge, and DEITS, Chief Judge, and BREWER, Judge.
*239
BREWER, J.
Mother appeals from a
judgment terminating her parental rights to child. We write only to address
mother's argument that the trial court erred in allowing one of the state's
witnesses to testify as a "qualified expert witness" under the
Indian Child Welfare Act (ICWA), 25 U.S.C. § 1912(f).
[FN1] See also
ORS 419B.521(4) (implementing ICWA). We review rulings regarding the admissibility
of expert testimony for errors of law. See
State v. Rogers,
330 Or. 282, 315, 4 P.3d 1261 (2000) (reviewing for errors of law trial
court's ruling under OEC 702 that a witness was not an expert qualified
to testify regarding a particular topic). We affirm.
FN1.
25 U.S.C. § 1912(f) provides: "No
termination of parental rights may be ordered in such proceeding in the
absence of 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 the child."
Mother is an enrolled
member of the Choctaw Nation of Oklahoma Indian tribe (tribe). She has
five children. Her four oldest children live with their respective fathers.
Child in this case is mother's youngest. Child was born on July 1, 1999.
Child also is an enrolled member of the tribe. On July 12, 1999, the juvenile
court awarded temporary custody of child to the State Office for Services
to Children and Families (SCF). Child has since remained in SCF custody.
On July 28, 1999, an
SCF caseworker informed mother that SCF had decided to seek termination
of her parental rights to child. On February 1, 2000, SCF filed a petition
to terminate mother's parental rights. The petition alleged, in part,
that
"mother
is unfit by reason of conduct or condition seriously detrimental to the
child and integration of the child into the mother's home is improbable
within a reasonable time due to conduct or conditions not likely to change,
including, but not limited to the following:
*240
"(a) Addictive and habitual use of intoxicating liquors or controlled
substances to the extent that parental ability has been substantially
impaired.
"(b)
Lack of effort or failure to obtain and maintain a suitable or stable
living situation for the child so that return of the child to the mother
is possible.
"(c)
Failure to present a viable plan for the return of the child to the mother's
care and custody.
"(d)
An emotional illness, mental illness, or mental deficiency of such nature
and duration as to render the mother incapable of providing care for extended
periods of time.
"(e)
Lack of effort to adjust the mother's circumstances, conduct or conditions
to make return of the child to the mother possible.
"(f)
Failure to effect a lasting adjustment after reasonable efforts by available
social agencies for such extended duration of time that it appears reasonable
that no lasting adjustment can be effected."
The petition further alleged that SCF had satisfied the requirements of
ICWA and that child's best interest would be served by the termination
of mother's parental rights so that child could be placed for adoption.
**1225
At trial, several witnesses testified regarding mother's anger management
problems, mental illnesses, personality disorders, and poor parenting
skills. With the exception discussed below, it would serve no useful
purpose to review the evidence in greater detail here. Suffice it to say
that the evidence established beyond a reasonable doubt the allegations
of the state's petition for termination of parental rights.
Stacy Bacon testified
in favor of termination. Bacon is an enrolled member of the tribe who,
at the time of trial, had been an Indian Child Welfare worker for the
tribe for two years. She has a bachelor's degree in criminal justice and
history, and she had testified as an expert in three previous termination
proceedings. Prior to testifying, Bacon had reviewed the SCF case file
and also had spoken with mother via telephone for 30 to 60 minutes. Bacon
testified that active *241
efforts had been made "to provide remedial services and rehabilitative
programs designed to prevent the breakup of this family." When Bacon
was asked whether she believed that "continued custody of [child]
by the mother * * * is likely to result in serious emotional and physical
damage to the child," mother's attorney objected, arguing that "there
is an inadequate basis that this witness is an expert in future harm to
children." The attorney for child responded to mother's objection:
"[Bacon]
is appearing as a representative of the Choctaw Nation of Oklahoma. She
is their representative and the Choctaw Nation is a party to this proceeding
as a matter of law. They have a right to express their opinion through
her. * * *
"
* * * * *
"
* * * It is not our position to tell this party they can't express their
opinion on a matter that federal law says they have to."
The trial court overruled
mother's objection:
"Having
heard the various arguments of counsel and based upon the fact that this
is an issue within the case and that this person has been denominated
by the nation or the tribal nation and the fact that this person has reviewed
the record herein[,] I'm going to overrule the objection."
Bacon testified that continued custody of child by mother would likely
result in "serious emotional and physical damage to * * * child."
She also testified that the tribe supported termination of mother's parental
rights to make child available for adoption into a permanent home and
that the tribe believed that termination was in the best interest of child.
Bacon testified that the opinions she expressed were hers and the tribe's.
Bacon testified that she was raised in the Choctaw culture and has been
familiar with it all her life. She also stated that the termination proceeding
did not violate the culture, traditions, or laws of the tribe. In elaborating
on her conclusions, Bacon testified that the nurturing of children is
an important tribal value. She stated that there had been "lots of
history" leading to the tribe's decision to support termination.
Part of that history included the tribe's consent to the adoption of two
of mother's other children and the *242
belief that mother was not "able or willing to provide the * * *
nurturing environment that this baby
needs." The tribe's Indian Child Welfare staff had worked with mother
for at least a year before the decision to support termination was reached.
After the hearing, the
court entered a judgment terminating mother's parental rights to child.
On appeal, mother argues that, although Bacon may have been a representative
of the tribe and familiar with its cultural heritage, her degrees in criminal
justice and history, along with her limited experience, did not qualify
her under section 1912(f) to render an opinion regarding the potential
for serious emotional or physical damage to child should mother's rights
not be terminated. As a result, mother argues that the state failed to
put on evidence essential to its case and termination was improper. The
state responds that Bacon was qualified as an expert witness under the
statute and applicable Bureau of Indian Affairs (BIA) guidelines.
Under ICWA, evidence
that the continued custody of a child by an Indian parent or custodian
likely would result in serious emotional or physical damage to the child
must include the testimony of "qualified expert witnesses."
Section 1912(f).
**1226
The text of section
1912 does not identify the qualifications required for such a witness.
However, the BIA has issued guidelines on that subject. The Guidelines
for State Courts, 44 Fed. Reg. 67584 (1979), describe the individual "most
likely" to be a qualified expert witness as
"(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 [child rearing] 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 [child rearing] practices within the
Indian child's tribe[; or]
"(iii)
A professional person having substantial education and experience in the
area of his or her specialty." Id.
at 67593.
*243
Although this court has declined to adopt the BIA guidelines, they nevertheless
are instructive to our interpretation of the statute. See
State ex rel. Juv. Dept. v. Charles,
70 Or.App. 10, 17 n. 3, 688 P.2d 1354 (1984), rev.
dismissed 299
Or. 341, 701 P.2d 1052 (1985) ("We decline to adopt the specific
recommendations of the 'guidelines,' but we agree with the general proposition
that an expert witness within the meaning of that term * * * must possess
special knowledge of social and cultural aspects of Indian life.").
ICWA's requirements supplement
and, where in conflict, displace state law governing the termination of
parental rights to Indian children. See
State ex rel. Juv. Dept. v. Tucker,
76 Or.App. 673, 684-85, 710 P.2d 793 (1985), rev.
den. 300 Or.
605, 717 P.2d 1182 (1986). Thus, the
relevant inquiry is not what type of evidentiary foundation would suffice
to qualify Bacon as an expert on risks of harm to children under Oregon
law but, rather, what is required under federal law. We look to the statutory
text and context and, if necessary, its legislative history to aid that
inquiry. State
ex rel. Juv. Dept. v. England,
292 Or. 545, 550, 640 P.2d 608 (1982); Carson
v. Carson,
170 Or.App. 263, 268-69, 13 P.3d 523 (2000).
As noted, the text of
section 1912(f) does not provide an answer. The statute's context, however,
makes clear that an essential purpose of ICWA is to promote the stability
and security of Indian tribes. 25 U.S.C. § 1902; England,
292 Or. at 551, 640 P.2d 608. Beyond text and context, the legislative
history of section 1912(f) shows that its specific purpose is to provide
greater insight into Indian culture for judges who make termination decisions
involving Indian children. Charles,
70 Or.App. at 16 n. 3, 688 P.2d 1354. Consistent with those purposes,
two of the three alternative categories of expert qualifications under
the BIA guidelines do not require any particular professional
education or training at all but, rather, focus on expertise in tribal
culture. Specifically, subpart (i) permits testimony by 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 child rearing practices." Guidelines for State Courts, 44 Fed.
Reg. at 67593. The focus of the guidelines is consistent with the legislative
intent that
section 1912(f) is to provide a medium for the explication of *244
tribal values with respect to the likelihood that a child would suffer
harm in parental custody.
Bacon's testimony established
that she was a member of the tribe; that she had been an Indian Child
Welfare worker for the Choctaw nation for two years and was a designated
representative of the tribe for testifying in termination proceedings;
that she had been raised in the tribe's culture and was familiar with
its child rearing values; and that she was familiar with the facts and
circumstances of mother's case, because the tribe's child-welfare staff
had monitored it for more than a year. That evidence established that
Bacon was qualified to render an opinion as an expert witness under section
1912(f). Accordingly, the record included the "expert witness testimony"
required by ICWA and was sufficient to support the termination of mother's
parental rights to child under ICWA.
Affirmed.
176 Or.App. 237, 30 P.3d
1223
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