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(Cite
as: 759 P.2d 1308)
Supreme
Court of Alaska.
In
the Matter of the TERMINATION OF the PARENTAL RIGHTS OF
T.O.
No.
S-2320.
Aug.
26, 1988.
State initiated termination of parental rights hearing against mother of
two native children. The Superior Court, Third Judicial District, Anchorage,
Peter Michalski, J., terminated mother's parental rights, and mother appealed.
The Supreme Court held that: (1) acceptance of witnesses as
qualified experts did not constitute an abuse of discretion, and
(2) individual qualified expert witnesses need not possess knowledge which
enables them to address both question of serious damage to
child as well as ability of parent to modify his
or her conduct in support of termination of parental rights.
Affirmed.
Acceptance
of witnesses as qualified experts in hearing to determine whether
mother of two native children should have parental rights terminated
did not constitute an abuse of discretion, where four witnesses
were qualified in social work, two were counselors and one
was a neurologist; one of the social workers was a
member of the relative native community and had native children,
and another counselor had 20 years experience in teaching and
counseling native Alaskans. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Individual
qualified expert witness need not possess knowledge which enables witness
to address both the question of serious damage to child
as well as the ability of parent to modify his
or her conduct to support termination of parental rights.
*1308
Jacqueline Bressers, Asst. Public Defender, and Dana Fabe, Public Defender,
Anchorage, for T.O.
Elizabeth Page Kennedy, Asst. Atty. Gen., Anchorage, and Grace Berg
Schaible, Atty. Gen., Juneau, for State of Alaska.
Philip J. McCarthy, Jr., Asst. Public Advocate, Office of Public
Advocacy, guardian ad litem for the minor children.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
*1309
OPINION
PER CURIAM.
I.
INTRODUCTION
This appeal is from a judgment of the superior court
terminating the parental rights of T.O., the mother of two
Native children. The State of Alaska (state) initiated the termination
proceeding in accordance with the provisions of the Indian Child
Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963
(1982) and AS 47.10.0101 .080. T.O. raises three issues in
this appeal: (1) that the state did not show by
clear and convincing evidence that it engaged in active remedial
efforts to preserve T.O.'s family, (2) that witnesses should not
have been accepted as qualified experts because they did not
demonstrate the high level of expertise suggested in guidelines to
the federal statute, and (3) that the state was required,
but failed, to produce any
qualified expert witness who individually could testify to each element
necessary to satisfy the federal statutory inquiry. We affirm, addressing
in detail only the second and third issues.
[FN1]
FN1.
The superior court found that the state had made adequate
efforts to provide remedial services to prevent a breakup of
the family. As T.O. notes, this finding will be overturned
if it is clearly erroneous, i.e.,
if we are left with a "definite and firm conviction
on the entire record that a mistake has been made,
although there may be evidence to support the finding." In
re S.D., Jr.,
549 P.2d 1190, 1195 n. 10 (Alaska 1976); Civil Rule
52. Upon our review of the entire record, we conclude
that the superior court's finding on this issue is not
clearly erroneous.
II. THE REQUIREMENTS OF QUALIFIED EXPERT WITNESS TESTIMONY
We first address T.O.'s
argument that the superior court accepted testimony from witnesses who
should not have been considered qualified experts for the purpose of 25
U.S.C. § 1912(f).
[FN2] She claims that for a witness to be a qualified expert for
that purpose, the witness must have knowledge of Native culture in addition
to the qualifications of an expert in the witness's field. The
state replies that it has satisfied the statute regarding
qualified expert witnesses by meeting advisory guidelines set forth in
the Federal Register.
[FN3] The state notes that the Guidelines contain the disclaimer
that "they are not published as regulations because they are not
intended to have binding legislative effect." 44 Fed.Reg. 67584.
FN2.
25 U.S.C. § 1912(f)
(1982) states:
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.
FN3.
The Department of Interior issued Guidelines for State Courts, 44
Fed.Reg. 67583-95 (1979) (hereinafter Guidelines). Those applicable to 25 U.S.C.
§ 1912(f)
state:
Persons
with the following characteristics are most likely to meet the
requirements for a qualified expert witness for purposes of Indian
child custody proceedings:
(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. (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.
(iii)
A professional person having substantial education in the area of
his or her specialty.
44
Fed.Reg. 67593.
In this case, seven witnesses were qualified as experts. Of
these seven witnesses, four were qualified in social work, two
were counselors, and one a neurologist. One of the social
workers is a member of the relevant Native community and
has Native children. One of the counselors, Helen Hickox, had
approximately twenty years experience in teaching and counseling Native Alaskans.
[FN4] T.O. raised an objection *1310
to the qualifications of only one of the witnesses offered
as an expert. Her objection was overruled, and she did
not object to the other six witnesses.
FN4.
Helen Hickox has a BA degree and a MA degree
in counseling and teaching. She was a counselor at Mt.
Edgecumbe High School in Sitka, Alaska from 1965-1970. In 1970
she became a counselor at the Alaska Skill Center at
Seward. From 1974 to 1975 she was a teacher at
Barrow Junior High
School in Barrow, Alaska. She left that position to become
the principle teacher and counselor at Gambell, St. Lawrence Island,
Alaska, a position she held for five years. She then
worked as a counselor for the court in Nome, Alaska,
counseling young Native men with alcohol problems.
Based upon our review of the record, we conclude that
the superior court did not abuse its discretion in accepting
these witnesses as qualified experts under 25 U.S.C. § 1912(f).
Second, T.O. implicitly argues
that the state may not aggregate the testimony of qualified expert witnesses,
or qualified expert and lay witnesses, to satisfy the requirements of
the federal statute. The state counters that there is no authority
for the proposition that a qualified expert must individually possess
knowledge of each element necessary to satisfy the statutory inquiry.
An issue of first impression we thus address is whether one
qualified expert witness must be able to answer the statutory inquiry
necessary before an order authorizing a court to terminate parental rights
may be entered, or whether the testimony of qualified expert witnesses
may be aggregated to satisfy statutory requirements.
The Commentary to the Guidelines suggests that qualified expert testimony
should answer a two-pronged question: (1) Will parental conduct cause
serious physical or emotional harm to the child? and (2)
Can the parent be
persuaded to change such damaging conduct? [FN5]
FN5.
The Commentary to the Guidelines states:
The
first subsection is intended to point out that the issue
on which qualified expert testimony is required is the question
of whether or not serious damage to the child is
likely to occur if the child is not removed. Basically
two questions are involved. First, is it likely that the
conduct of the parents will result in serious physical or
emotional harm to the child? Second, if such conduct will
likely cause such harm, can the parents be persuaded to
modify their conduct?
The
party presenting an expert witness must demonstrate that the witness
is qualified by reason of educational background and prior experience
to make judgments on those questions that are substantially more
reliable than judgments that would be made by nonexperts.
44
Fed.Reg. 67593.
Testimony from one qualified expert may supply the court with
answers to the two-pronged question. A qualified expert witness may
possess knowledge which enables the witness to address both the
question of serious damage to the child as well as
the ability of the parent to modify his or her
conduct. Indeed, we have previously held that only one witness
need be presented to satisfy the qualified
expert witness requirement in an ICWA termination proceeding. D.A.W.
v. State,
699 P.2d 340, 342 (Alaska 1985). However, that holding does
not support the argument that a qualified expert witness individually
must
possess such knowledge. Furthermore, there is no authority cited by
T.O. to show that a qualified expert witness individually must
have "substantially more reliable" judgment about both serious damage to
the child and the ability of the parent to modify
his or her conduct to comply with ICWA.
The Michigan Court of Appeals held that the testimony of
qualified expert witnesses may be aggregated with testimony of lay
witnesses in meeting the requirements of ICWA. In
re Kreft,
148 Mich.App. 682, 384 N.W.2d 843 (1986). In Kreft
only two of six witnesses were qualified expert witnesses under
25 U.S.C. § 1912(f):
a psychologist and a mental health social worker, who was
also a member of the mother's tribe. Id.
384 N.W.2d at 847. The court in Kreft
relied on their testimony as well as the testimony of
other witnesses, who were not qualified experts. Id.
384 N.W.2d at 847- 48. It concluded that the testimony
of qualified expert witnesses and lay witnesses could be aggregated
to support termination of parental rights. Id.
Although T.O. relies on Kreft
to support her argument, we believe her reliance is misplaced.
Neither our decision in D.A.W.
nor the decision of the Michigan Court of Appeals in
Kreft
persuades us that a qualified expert witness
individually must possess knowledge necessary to provide testimony that will
answer both prongs of the *1311
inquiry as interpreted in the Commentary to the Guidelines. Furthermore,
neither the federal statute, the Guidelines nor the Commentary to
the Guidelines provides any basis for imposing such a requirement.
Thus, we conclude that no one individual qualified expert witness
must possess all the knowledge necessary to answer both prongs
of the question posed by the statute.
III.
CONCLUSION
The decision of the Superior Court is AFFIRMED.
759 P.2d 1308
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