Eva H. v. State, Dept. of Health & Social Services, Office of Children's Services
436 P.3d 1050
Alaska2019Background
- In December 2013 OCS removed three-month-old Kevin after he was found alone outside while his mother, Eva, was intoxicated and his father, Keith, was jailed; both parents are Alaska Native/Indian child issues were invoked under ICWA.
- A second child, Matt, was removed after his 2015 birth; OCS later petitioned to terminate both parents’ rights to both children in November 2016.
- Eva has a long history of alcohol abuse and multiple failed treatment attempts; Keith likewise has alcohol problems and was incarcerated much of the relevant time.
- After a multi-day trial the superior court terminated the parents’ rights; OCS’s proffered expert at the resumed trial was Deborah Reichard, a local attorney and long‑time former guardian ad litem (GAL).
- The superior court qualified Reichard over objection as an ICWA expert on child-protective services and substance-abuse effects and relied on her testimony to find beyond a reasonable doubt that return to the parents would likely cause serious emotional or physical damage.
- The Alaska Supreme Court reversed, holding the record did not show Reichard met ICWA’s heightened expert-qualification standard to establish the required causal nexus.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCS’s witness Reichard was a qualified ICWA expert to testify that return would likely cause serious emotional or physical damage | Keith: Reichard lacked the heightened qualifications required by ICWA (no formal clinical training, no certifications, limited recent relevant work) | OCS: Reichard’s long GAL experience on the YK Delta, prior expert testimony, and trainings qualified her to testify about risk of harm | Court: Reichard was qualified to discuss delivery of child‑protective services but not shown to satisfy ICWA’s heightened requirement to opine on causation that return would likely cause serious harm; reversal and remand |
| Whether evidence supported finding parents failed to remedy conduct | Eva: She had engaged in multiple treatment attempts and was working on sobriety; court erred in finding failure to remedy | OCS: Parents’ repeated failed treatments and ongoing substance abuse supported the finding | Court: No reversible error on this issue given record, but remand may change evidence with time |
| Whether termination was in the children’s best interests | Eva: Termination not shown to be necessary or in children’s best interests | OCS: Children would face risk and instability if returned; termination was justified | Court: No error found on record, but decision vacated because of expert‑qualification error; facts may differ on remand |
| Whether OCS made active efforts (ICWA requirement) | Keith: OCS failed to make required active efforts to prevent breakup | OCS: Agency made active efforts documented in the case | Court: No clear error in superior court’s finding, but remand may affect record |
Key Cases Cited
- Bob S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 400 P.3d 99 (Alaska 2017) (discusses ICWA expert‑witness requirements)
- Christina J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 254 P.3d 1095 (Alaska 2011) (standards for reviewing termination findings)
- In re Candace A., 332 P.3d 578 (Alaska 2014) (examples of witnesses with expertise beyond normal social‑worker qualifications)
- Payton S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 349 P.3d 162 (Alaska 2015) (qualification of professional witnesses with substantial education and supervision experience)
- Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496 (Alaska 2009) (discusses inference of expertise from experience and the need for a clear foundation)
- Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 244 P.3d 1099 (Alaska 2010) (similar discussion on expert qualifications and licensure)
- Sandy B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 216 P.3d 1180 (Alaska 2009) (expert qualifications involving clinical degrees)
- Diana P. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 355 P.3d 541 (Alaska 2015) (use of experts in diagnosing and treating substance abuse)