244 P.3d 574
Ariz. Ct. App.2010Background
- Brenda O. is an enrolled Navajo Nation member; ADES removed her five‑month‑old child B. in 2007 due to Brenda’s intoxication and failure to care for her.
- Her second child M. was born in October 2008 and was removed two months later after CPS observed Brenda intoxicated and unable to stand or look others in the eye.
- Brenda repeatedly failed to engage in TERROS substance‑abuse treatment and missed intake sessions and psychological evaluations.
- ADES offered services (parent‑aide, bus passes, counseling) but Brenda remained intoxicated and largely refused further inpatient or counseling programs.
- The trial court terminated Brenda’s parental rights based in part on expert testimony that Brenda’s alcohol use would likely cause serious emotional or physical damage to the children if custody were restored.
- Dr. John DiBacco, a licensed psychologist, testified that Brenda’s drinking problem appeared pathological and that she would need sober for at least a year with ongoing treatment before the children could be safely returned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA's expert-witness requirement was satisfied | Brenda argues no supported expert testimony on likely serious damage. | DiBacco’s testimony, within his specialty, supports the finding; cultural specifics not required to prove likelihood of damage. | Yes; DiBacco qualified as an expert; ICWA satisfied. |
Key Cases Cited
- Rachelle S. v. Ariz. Dep't of Econ. Sec., 191 Ariz. 518 (Ariz. Ct. App. 1998) (guidelines allow diverse experts; cultural knowledge not always required)
- Steven H. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 566 (Ariz. 2008) (ICWA interpretation liberal in favor of Indian interest)
- In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992) (supports termination based on abuse even when expert lacks tribal life experience)
- D.A.W. v. Alaska, 699 P.2d 340 (Alaska 1985) (no more than one qualified expert required)
- In re Baby Boy Doe, 902 P.2d 477 (Idaho 1995) (non‑Indian experts may suffice when cultural bias not implicated)
- E.A. v. State Div. of Family & Youth Serv., 46 P.3d 986 (Alaska 2002) (ICWA does not require exclusive expert basis if others support conclusion)