In re Candace
2014 Alas. LEXIS 173
Alaska2014Background
- Candace, an Alaska Native youth adopted by relatives, alleged repeated sexual abuse by her adoptive brother; OCS took emergency custody after reports and a forensic interview.
- OCS placed Candace in foster/group care, obtained mental-health diagnoses (PTSD, depression, substance use, reactive attachment disorder), and sought adjudication that she was a child in need of aid and that return home would likely cause serious harm under ICWA (25 U.S.C. § 1912(e)).
- At adjudication OCS proffered two expert witnesses: Barbara Cosolito (OCS supervisor with MSW and extensive child-welfare supervisory experience) and Naney Kirchoff (licensed clinical social worker and Candace’s treating clinician with lengthy clinical experience).
- The superior court excluded both witnesses as not “qualified experts” under ICWA/BIA guidelines, ruling they lacked either (a) substantial knowledge of tribal social and cultural standards or (b) status as "professional persons" with substantial education in their specialty.
- The superior court nonetheless adjudicated Candace a child in need of aid but ordered her returned to her parents’ home because OCS had not provided qualified expert testimony showing likely serious emotional or physical harm if returned.
- The Alaska Supreme Court granted review, held the superior court erred in excluding the witnesses, reversed the qualification rulings, vacated the placement-to-parents portion of the adjudication, and remanded for proceedings consistent with its opinion.
Issues
| Issue | OCS (Plaintiff) Argument | Douglas & Emma (Defendants) Argument | Held |
|---|---|---|---|
| Whether ICWA requires expert familiarity with Alaska Native culture when cultural bias is not implicated | ICWA experts need not have tribal/cultural expertise where the risk (sexual abuse and emotional harm) is not culturally dependent | Expert must meet BIA lay-expert cultural standard; absence of cultural expertise disqualifies them | Court: Cultural expertise not required where cultural bias is not at issue; exclusion for lack of cultural knowledge was erroneous |
| Whether experienced/licensed social workers qualify as “professional persons” under BIA guideline | Social workers with substantial education, licensure, and advanced experience are "professional persons" meeting the guideline | Social work is not a traditional "learned profession" and thus social workers are not necessarily within the third BIA category | Court: Social work is a regulated profession; MSW/licensure/experience satisfied the "professional person" category; exclusion was erroneous |
| Whether trial court’s exclusion of testimony was proper exercise of discretion | OCS: witnesses were qualified and exclusion was legal error; testimony was highly relevant to §1912(e) finding | Parents: court correctly excluded witnesses for lack of required ICWA qualifications | Court: Exclusion rested on legal errors and would have been an abuse of discretion under correct law; reversed |
| Remedy: effect of ruling on placement order | OCS: erroneous exclusion affected adjudication and placement; merits remand | Parents: placement order should stand | Court: Vacated portion placing child with parents and remanded for further proceedings |
Key Cases Cited
- Marcia V. v. State, Office of Children's Servs., 201 P.3d 496 (Alaska 2009) (BIA guidelines interpret §1912(e); cultural-expertise requirement unnecessary where culture not implicated)
- L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946 (Alaska 2000) (evidence of parental substance abuse and neglect can show risk of future harm without tribal-culture expert)
- Thea G. v. State, Dep't of Health & Soc. Servs., 291 P.3d 957 (Alaska 2013) (ICWA expert-qualification is legal question reviewed de novo)
- Christina J. v. State, Dep't of Health & Soc. Servs., 254 P.3d 1095 (Alaska 2011) (aggregation of expert and lay testimony can satisfy ICWA requirements)
- Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs., 303 P.3d 431 (Alaska 2013) (statement of ICWA’s national purpose to protect Indian families)
- Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 146 P.3d 991 (Alaska 2006) (public-interest exception to mootness doctrine)