Opinion
Supreme Court No. S-13486.
January 6, 2010.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Superior Court No. 3AN-07-306 CN.
Renee McFarland, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for Appellant. Michael G. Hotchkin, Assistant Attorney General, Anchorage, Daniel S. Sullivan, Attorney General, Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen, Justices. [Eastaugh, Justice, not participating.]
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A father appeals from a trial court's decision terminating his parental rights to his son. Because the evidence supports the court's findings and the court correctly applied relevant law, we affirm the trial court's decision.
II. BACKGROUND
Milo and Skylar had one child, Max, born in 2007. Max is an "Indian child" under the Indian Child Welfare Act of 1978 (ICWA). The State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS) became involved with the family just two days after Max's birth. We need not detail OCS's history of involvement with the family, but after unsuccessful reunification efforts OCS petitioned to terminate both Milo's and Skylar's parental rights. After termination hearings in February 2009 regarding Milo and March 2009 regarding Skylar, the trial court terminated their parental rights.
Pseudonyms are used for all family members.
See 25 U.S.C. § 1903(4).
Id. §§ 1901-1963. ICWA establishes "minimum Federal standards for the removal of Indian children from their families and [for] the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." Id. § 1902.
Under ICWA and relevant Alaska child in need of aid (CINA) statutes and rules, parental rights to an Indian child may be terminated only if OCS shows:
(1) by clear and convincing evidence that:
(a) the child has been subjected to conduct or conditions enumerated in AS 47.10.011 (CINA Rule 18(c)(1)(A));
(b) the parent has not remedied the conduct or conditions that place the child at substantial risk of harm or has failed within a reasonable time to remedy the conduct or conditions so that the child would be at substantial risk of physical or mental injury if returned to the parent (CINA Rule 18(c)(1)(A)(i) — (ii)); and
(c) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family (CINA Rule 18(c)(2)(B)); and
(2) beyond a reasonable doubt, including qualified expert testimony, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child (CINA Rule 18(c)(4)); and
(3) by a preponderance of the evidence that the child's best interests would be served by termination of parental rights (CINA Rule 18(c)(3)).
Milo's appeal focuses on two of the findings underlying the termination of his parental rights: that Max was (1) a child in need of aid under AS 47.10.011(1) and AS 47.10.013(a)(8) and (2) likely to suffer serious emotional and physical harm if returned to Milo. In connection with the latter finding, Milo contends that the trial court abused its discretion in qualifying an OCS witness as an expert and that the witness's testimony was insufficiently tailored to the facts of this case to support the finding.
III. STANDARD OF REVIEW
In a case involving the termination of parental rights we review the trial court's factual findings for clear error. Findings are clearly erroneous if, after reviewing the record in the light most favorable to the prevailing party, we are left "with a definite and firm conviction that a mistake has been made." When reviewing factual findings "we ordinarily will not overturn a trial court's finding based on conflicting evidence," and "[w]e will not reweigh the evidence when the record provides clear support for the trial court's ruling." "[I]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003).
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (quoting A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
Martin N., 79 P.3d at 53 (citing In re Friedman, 23 P.3d 620, 625 (Alaska 2001)).
DM. v. State, Div. of Family Youth Servs., 995 P.2d 205, 214 (Alaska 2000) (citing AM v. State, 891 P.2d 815, 825 (Alaska 1995) and In re H.C., 956 P.2d 477, 484 (Alaska 1998)).
In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) ( quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)).
We review the trial court's determination that a witness qualifies as an expert for abuse of discretion. We will find abuse of discretion when "the reasons for the exercise of discretion are clearly untenable and unreasonable." Whether expert testimony satisfies ICWA requirements presents a pure legal question, requiring de novoreview.
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 950 (Alaska 2000) (citing Jordan v. Jordan, 983 P.2d 1258, 1261 n. 5 (Alaska 1999)).
Id. (citing Bailey v. Lenord, 625 P.2d 849, 854 (Alaska 1981)).
See id.; Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 502, 507 (Alaska 2009) (citing E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 989 (Alaska 2002)).
IV. DISCUSSION
A. We Do Not Address the AS 47.10.013(a)(8) Abandonment Finding Because Any Possible Error Is Harmless.
The trial court found that as a result of Milo's conduct, Max was a child in need of aid under AS 47.10.011(1) (regarding abandonment) and (8)(B)(ii) (regarding exposure to domestic violence). In connection with AS 47.10.011 (1), the court found Milo's conduct constituted abandonment of Max under AS 47.10.013(a)(2), (3), (4), and (8). Milo contests the finding of abandonment only under AS 47.10.013 (a)(8).
AS 47.10.013(a) provides in relevant part:
For purposes of this chapter, the court may find abandonment of a child if a parent or guardian has shown a conscious disregard of parental responsibilities toward the child by failing to provide reasonable support, maintain regular contact, or provide normal supervision, considering the child's age and need for care by an adult. Abandonment of a child also includes instances when the parent or guardian, without justifiable cause,
. . . .
(2) has made only minimal efforts to support and communicate with the child;
(3) failed for a period of at least six months to maintain regular visitation with the child;
(4) failed to participate in a suitable plan or program designed to reunite the parent or guardian with the child;
. . . .
(8) was unwilling to provide care, support, or supervision for the child.
Even if the trial court's finding of abandonment under AS 47.10.013(a)(8) is erroneous, the error is harmless. Milo concedes the trial court had "sufficient alternative grounds" to find Max was a child in need of aid. In light of this concession, Milo's challenge to only one of the four findings of abandonment "has no impact on the outcome of the case." We therefore affirm the trial court's finding that Max was a child in need of aid without addressing Milo's specific argument regarding the abandonment finding under AS 47.10.013(a)(8).
Alyssa B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 165 P.3d 605, 618 (Alaska 2007) (holding mother's challenge to finding that daughter was a child in need of aid because of mother's mental illness had "no impact on the outcome of the case" because the child was deemed a child in need of aid under unchallenged alternative statutory ground).
B. The Trial Court Did Not Abuse Its Discretion by Qualifying OCS's Witness as an Expert Under ICWA.
ICWA's express purpose is "to promote the stability and security of Indian tribes and families." Consistent with this purpose, ICWA establishes federal standards that must be met before Indian children may be permanently removed from their families. One ICWA requirement specifies that proceedings to terminate parental rights must include testimony of a qualified expert witness.
25 U.S.C. § 1902.
See id.
Id. § 1912(f).
Although ICWA fails to define "qualified expert," the Bureau of Indian Affairs (BIA) Guidelines provide insight into the term. The BIA Guidelines describe three types of persons likely to qualify as an expert under ICWA. Two of the categories include persons with Native culture expertise, including knowledge of tribal customs, social and cultural standards, and child-rearing practices of the child's tribe. The third category includes persons with substantial education and experience, but not necessarily Native culture expertise. Under this third category, which is relevant to this case, "[a] professional person having substantial education and experience in the area of his or her specialty" likely qualifies as an expert under ICWA.
See id. § 1903; Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593 (Nov. 26, 1979) (noting "[n]othing in the legislative history indicates that Congress intended this Department . . . to legislate for [states] with respect to Indian child custody matters").
See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,593.
See id.
See id.; see also L.G., 14 P.3d at 953 (citing, among other cases, Rachelle S. v. Dep't of Econ. Sec., 958 P.2d 459, 461-62 (Ariz. App. 1998) ("[S]o 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.").
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,593.
Milo argues that OCS's expert, Rose Sandhofer, failed to meet the educational and experiential requirements outlined in the BIA Guidelines to qualify as a domestic violence expert. Milo argues "Sandhofer's qualifications were simply those of a `normal social worker'" and "[n]othing about her education or experience demonstrated heightened understanding or experience in the area of domestic violence." Milo also cursorily argues that the trial court qualified Sandhofer as an expert under evidence rules, not ICWA standards.
Neither party claims Sandhofer qualifies as an expert under the first two categories in the BIA Guidelines. Because Sandhofer testified about the effects of domestic violence on a child, expertise in Native culture is unnecessary. See Marcia V., 201 P.3d at 503 (noting "qualifications of an expert testifying under § 1912(f) need not include familiarity with Native culture" when a termination order is based on activity that is unrelated to Native culture, including "violent behavior, incarceration, inability to provide a stable home, . . . domestic violence in the home, and abandonment").
In Marcia V. v. State, Office of Children's Services we held the trial court did not commit plain error in qualifying a social worker as an expert for ICWA purposes. We explained that given ICWA requirements, OCS must provide "a sufficient foundation," which may be achieved by inquiring "more deeply into the specialized areas in which [the social worker] was claimed to be expert." The witness's qualifications in that case included a bachelor of science degree in administration of justice, seven years of OCS experience, employment as an OCS permanency supervisor responsible for six line staff, employment as a permanency line worker, experience testifying in child welfare cases, and participation in thirteen child protection trainings in five years. Reviewing only for plain error, we noted "it is quite possible that [the witness's] experience and training as a social worker and supervisor" fulfill ICWArequirements.
Marcia V., 201 P.3d at 505. We applied the plain error standard because Marcia V. "abandoned the issue at trial." Id.
Id.
Id.
Id.
Here OCS laid a foundation demonstrating Sandhofer's qualifications as an expert in domestic violence, particularly the effects of domestic violence on children. Sandhofer testified that her domestic violence education consisted of a master's degree in social work focused on family and children, including a domestic violence course; a nine-month domestic violence practicum; domestic violence conferences and caucuses; and core and continuing training at OCS. As to her experience with domestic violence, Sandhofer testified that she participated in a domestic violence council and that she was responsible for over one thousand cases involving maltreatment of children during her seven years as an OCS investigative social worker. She also testified that as a permanency planning unit supervisor at OCS she oversaw six permanency workers for two-and-a-half years, and that at least ten to twenty percent of the caseload involved domestic violence.
When OCS moved to qualify Sandhofer as an expert in domestic violence, Milo objected. After the trial court questioned "what kind of [domestic violence] issues these courses [were] really about," OCS inquired deeper into Sandhofer's qualifications, in particular her background in the effects of domestic violence on children. Sandhofer testified that her course work and on-going training "specifically talks on the effects that children have witnessing and being a part of [domestic violence]." After this explanation, the trial court concluded "I think that Ms. Sandhofer has training and expertise in these areas and specifically in the effects of [domestic violence] on kids."
The trial court expressly cited Sandhofer's domestic violence training, including the nine-month practicum and "many on-the-job trainings" to support its decision qualifying her as an expert. The court also credited Sandhofer's experience in the domestic violence field, noting that: (1) since 2002 Sandhofer has taught a portion of the twenty-four and thirty-six week domestic violence education classes at the Center for Men and Women; (2) as an OCS investigator she has been responsible for more than one thousand cases, many involving domestic violence; and (3) she has supervised six social workers with full caseloads often involving domestic violence. Although Sandhofer acknowledged it is "not unusual for social workers to have master's in social work," the trial court based its decision to qualify Sandhofer as an expert on her combination of training and experience, not her education alone.
Sandhofer testified that during her time as an investigative social worker her cases involved "[a]nything as far as a report of maltreatment on a child." The court apparently interpreted this statement to mean "that many of these cases involved domestic violence." Sandhofer did not explain what she meant by "maltreatment on a child," but certainly domestic violence would be included in such a category. We therefore find the court's interpretation of Sandhofer's testimony plausible.
Because the trial court demonstrated a reasonable and tenable basis for qualifying Sandhofer as an expert in accordance with our past decisions and the BIA Guidelines, we conclude there was no abuse of discretion by qualifying Sandhofer as an expert in domestic violence under ICWA standards.
C. Substantial Evidence, Including Testimony of a Qualified Expert Witness, Supports the Finding that Max Would Likely Suffer Serious Emotional and Physical Harm if Returned to Milo.
Before a court may terminate parental rights to an Indian child, ICWA requires the court to find "evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child." Meeting that standard requires proof both that the parent's conduct is likely to harm the child and that the parent is unlikely to change the harmful conduct. To prove these elements, OCS may use expert testimony alone or aggregate expert and laytestimony. When evaluating whether a parent should regain custody of a child "the court must focus on risk of future harm rather than past injury," but we have also observed that "past failures may predict future conduct."
See L.G., 14 P.3d at 950; Ben M. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1020 (Alaska 2009).
See L.G., 14 P.3d at 950; Ben M., 204 P.3d at 1020.
Jon S v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 212 P.3d 756, 767 (Alaska 2009).
The trial court found beyond a reasonable doubt that returning Max to Milo would likely cause Max serious harm, basing its conclusion on both Sandhofer's expert testimony and Milo's past behavior. Milo argues the expert testimony failed to comport with ICWA requirements because it lacked reference to case specifics. He also argues the trial court failed to properly weigh his recent attitude change in its findings.
See C.J. v. State, Dep't of Health Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001) ("[T]he expert opinion should be based on the particular facts and issues of the case . . .").
Sandhofer's testimony was sufficiently grounded in important case facts to comply with ICWA requirements, specifically addressing Milo's history of domestic violence, Max's vulnerability to violence, and Milo's failure to complete a court-approved anger management class. Although Sandhofer did not speak directly with Milo, she reviewed the case files and exhibits; talked with the current social worker assigned to the case; read contact note reports; and listened to testimony from Max's foster mother, the social worker assigned to the case, and a woman who witnessed Milo's conduct that had resulted in a recent assault charge. Sandhofer's testimony was not "fatally weakened" by "over-reliance on documents." After Sandhofer testified generally about the effects of domestic violence on children, she incorporated specific facts and details about Milo and Max into her testimony. Sandhofer's testimony was consistent with other evidence presented at the hearing, and supported the court's ultimate conclusion.
Marcia V., 201 P.3d at 507-08 (concluding that despite relying primarily on document review and discussion with the social worker and that social worker's supervisor, the expert's "testimony was sufficiently grounded in the facts and specifics of [the] case" to meet ICWA requirements); see also Ben M., 204 P.3d at 1020 (noting that in-person meetings are not required).
OCS presented significant evidence supporting the likelihood of harm to Max should Milo be granted custody. Most importantly, OCS's evidence established: (1) Milo's history of domestic violence; (2) the extended time and professional help required to unlearn that behavior; (3) Milo's recent criminal charge for assaulting his mother and his five-year-old putative son; and (4) Milo's failure to comply with his case plan, including domestic violence, anger management, and parenting classes.
The child believes Milo is his father, although Milo is not.
Milo does not refute OCS's evidence, but merely presents testimony about his intent to change and his willingness to parent Max. Milo points to his own testimony, his sister's offered testimony, and his social worker's testimony to demonstrate he "intended to change his life and that he was ready to be a parent to [Max]." Other evidence supports Milo's stated intentions. Although he failed to meet criteria for court-ordered anger management classes, Milo successfully completed an eight-session anger management class. Milo testified that he actively seeks out sobriety and religious support and is attending Alcoholics and Narcotics Anonymous four times a week, chairing three meetings a week. Milo professed to understand OCS's concerns and expressed his willingness to do "anything that I have to do to get [Max] back."
Milo's sister failed to appear for the hearing, but all parties stipulated to her testimony.
Based on Sandhofer's sufficiently tailored expert testimony and Milo's past behavior, the trial court found beyond a reasonable doubt that granting Milo custody of Max would likely result in serious harm to Max. The court found "[m]erely witnessing domestic violence has a devastating impact on children, and [Milo] has demonstrated that he is willing to commit substantial domestic violence in the presence of children and upon his own children." The court indicated that based on Milo's recent assault charge, Milo was unlikely to change his harmful conduct. The court applauded Milo's recent attitude change, but found that OCS proved "beyond a reasonable doubt that presently returning the child to [Milo] would be damaging [to Max]."
Although Milo's intentions are laudable, the record provides clear support for the trial court's finding. Milo's recent assault charge, which occurred after he completed an anger management class, is particularly disturbing and indicative of the risks associated with granting Milo custody of Max. Testimony about the assault established that Milo punched and grabbed his elderly mother and then punched his five-year-old putative son in the chest. Sandhofer's expert testimony detailed the extended time and professional help necessary to unlearn this type of violent behavior. Although Milo professed good intentions at the termination hearing, he stated his readiness to parent Max only two weeks before that hearing. The record contains no evidence that Milo has actually succeeded in changing his harmful conduct. OCS presented substantial evidence that Milo's conduct (specifically his history of domestic violence) is likely to harm Max. It was not error for the trial court to conclude that despite stating good intentions, Milo is unlikely to break his pattern of domestic violence, especially without professional help.
Based on the evidence presented to the trial court, we are not "left with a definite and firm conviction that a mistake has been made" concerning the likelihood of harm to Max if Milo is granted custody. We therefore affirm the trial court's finding that evidence beyond a reasonable doubt, including testimony by a qualified expert witness, established that continued custody of the child by the parent would likely result in serious emotional or physical harm to the child.
L.G., 14 P.3d at 949-50 (citing E.M. v. State, Dep't of Health Soc. Servs., 959 P.2d 766, 768 (Alaska 1998)).
IV. CONCLUSION
We AFFIRM the trial court's termination of Milo's parental rights to Max.