Family life insurance and policyThe mother was a Yupik woman with young children who struggled with addiction. The Office of Child Services (OCS) took emergency custody of the children after receiving more reports of violence, drug abuse, and child endangerment.

The mother obtained a substance abuse assessment but was discharged after less than two weeks for possession of marijuana and unprescribed pills. She began another treatment and since she initially did well there, the OCS held a termination petition in abeyance. However, the mother was discharged prematurely for her unruly behavior, and she frequently dropped out of contact with OCS. A joint permanency hearing and termination of parental rights trial subsequently was held, and one of the witnesses testifying was an ICWA expert—a Yupik woman with six years of experience doing social services work for the Tribe.

The superior court qualified the social services worker as an expert in Yupik child-rearing practices and child protection over the mother’s objection that she lacked social work education and substance abuse expertise. The expert testified that it was her expert opinion that the children would be at risk of harm if returned to the mother because of her substance abuse and verbal abuse…and that substance use in front of children and verbal abuse of family are not normal parts of Yupik culture.

On appeal, Justice Joel Bolger wrote in the opinion for the Alaska Supreme Court that to terminate parental rights to an Indian child, the superior court must make five factual findings. In this instance, the parties stipulated to the first two findings: (i) that the children needed aid pursuant to § 47.10.011 (physical harm, neglect, and substance abuse); and (ii) the mother had failed to remedy the conduct placing them in need of aid. The trial court also made three oral and written findings: (1) by clear and convincing evidence, the OCS made active efforts to prevent the breakup of the Indian family; (2) by a preponderance of the evidence, termination was in the best interests of the children; and (3) beyond a reasonable doubt, continued custody of the children by the mother was likely to result in serious emotional or physical damage to them. Thus, the superior court terminated the mother’s parental rights to the children.

The mother argued on appeal that the social services worker shouldn’t have been qualified as an expert witness. Justice Bolger explained that the ICWA requires that the likelihood of harm finding be supported by the testimony of a qualified expert witness. The mother argued that the social services worker didn’t possess “expertise beyond the normal social worker qualifications”—specifically any expertise in substance abuse—and shouldn’t have been allowed to give an opinion on that issue.

The trial court qualified the social services worker under the 2015 Bureau of Indian Affairs (BIA) Guidelines. The ICWA doesn’t define the term “qualified expert witness,” so without a statutory definition, the Court looked to legislative history and the BIA Guidelines as persuasive authority. The 2015 BIA Guidelines explain that “[a] qualified expert witness should have specific knowledge of the Indian tribe’s culture and customs” and list “in descending order” four categories of persons “presumed to meet the requirements.” The Supreme Court noted that the fourth category is “[a] professional person having substantial education and experience in the area of his or her specialty who can demonstrate knowledge of the prevailing social and cultural standards and childrearing practices within the Indian child’s tribe.”

Justice Bolger found that the social services worker 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.” The OCS emphasized the social services worker’s Yupik upbringing as a member of the Native Village of Tununak and her six years of work in social services for the Tribe. She 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 the social services worker’s participation as an expert witness in this case.

The mother argued that the social services worker wasn’t a licensed social worker and hadn’t yet completed all her college-level social work classes. However, Justice Bolger stated that the BIA Guidelines don’t require that a cultural expert have additional subject matter expertise, and the court qualified the social services worker to testify regarding how substance abuse and domestic violence affect child-rearing practices and child protection in the Tribe; the social services worker was qualified as an expert based on her knowledge of the delivery of child and family services to the Tribe—not as a professional social worker or substance abuse specialist.

In addition, The Supreme Court stated that ICWA’s legislative history indicated that “the primary reason for requiring qualified expert testimony in ICWA termination proceedings was to prevent courts from basing their decisions solely upon the testimony of social workers who possessed neither the specialized professional education nor the familiarity with Native culture necessary to distinguish between cultural variations in child-rearing practices and actual abuse or neglect.”

The Court 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.”

The social services worker possessed expertise in Yupik child-rearing practices and thus could testify without needing further “specialized professional education” that the mother’s substance abuse and verbal abuse were not a normal part of that culture and, combined with the mother’s history of aggression and verbal abuse, created a risk of harm to the children.

The likelihood of harm “can be proved through the testimony of a single expert witness, by aggregating the testimony of expert witnesses, or by aggregating the testimony of expert and lay witnesses.” As such, even if the expert’s testimony regarding substance abuse and verbal abuse must be discounted, her testimony regarding Yupik culture combined with other evidence that the mother’s substance abuse hurt the family and her verbal abuse in front of the children frightened them also supported the likelihood of harm finding.

The superior court properly admitted and used the social services worker’s testimony under ICWA. The decision to terminate the mother’s parental rights was affirmed.