STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN‘S SERVICES v. CISSY A. and BUTCH R.; STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN‘S SERVICES v. LINETTE S. and MARQUIS D.
Supreme Court Nos. S-18088/18092 (Consolidated)
THE SUPREME COURT OF THE STATE OF ALASKA
July 22, 2022
7604
Earl A. Peterson, Judge
Superior Court Nos. 4FA-18-00167 CN; 4FA-19-00027/00028 CN
OPINION
Appeals from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Earl A. Peterson, Judge.
Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.
PER CURIAM.
I. INTRODUCTION
The Indian Child Welfare Act (ICWA) prohibits a state court from terminating parental rights to an Indian child unless there is proof beyond a reasonable doubt that continued custody by the parent is likely to cause serious damage to the child. This proof must include testimony by a qualified expert witness. An expert witness should, according to regulations by the federal Bureau of Indian Affairs (BIA), be qualified to testify about the prevailing social and cultural standards of the Indian child‘s tribe. But the BIA has also stated that this cultural expert testimony is not always required. These consolidated appeals concern how the superior court determines when cultural expert testimony is needed and when this testimony is adequate in a particular case.
II. FACTS AND PROCEEDINGS
This opinion addresses two cases in which the superior court made similar determinations. We first summarize the facts and proceedings of each case separately; we then summarize the superior court‘s conclusions jointly.
A. Cissy A. And Butch R.
Cissy A. and Butch R. are the parents of Howie R., born in 2018.1 Cissy is a member of the Native Village of Barrow and Howie is an Indian child for purposes of ICWA.2
Cissy and Butch struggled with substance abuse and domestic violence within their relationship both before and after Howie‘s birth. Butch has an extensive
Howie was born prematurely and spent about three weeks in the neonatal intensive care unit to address his medical issues. OCS received a report that Howie had tested positive for various substances at birth. After speaking with Cissy and Butch about their substance abuse, OCS assumed emergency custody. Howie now faces developmental and social delays and struggles with transitions, impulse control, and aggression.
OCS made efforts to help the parents remedy their conduct and to support reunification. OCS referred Butch to an alternatives to violence program, but he failed to attend any sessions until over a year and a half later. Similarly, Butch did not provide OCS-recommended urinalysis samples for approximately a year and a half during the pendency of the case. OCS referred Cissy to inpatient substance abuse treatment and facilitated a trial home visit with Howie while she was there. However, Cissy had contact with Butch while Howie was in her care, and relapsed shortly after leaving treatment. After about a year and a half of case planning and attempts at reunification, OCS filed a petition to terminate both parents’ rights.
OCS presented two expert witnesses at the termination trial: Dr. Martha Cranor, a licensed psychologist, and Edith Kaleak, an expert in the cultural values and practices of the Native Village of Barrow.
Dr. Cranor submitted an expert report and testified at trial regarding the likelihood of serious physical or emotional damage to Howie if he were to return to Cissy or Butch‘s care.3 OCS emphasized that it was not offering Dr. Cranor as an expert in
tribal culture or practices, and no party objected to Dr. Cranor‘s classification as an expert in child welfare and parental risk assessment. To form her opinions, Dr. Cranor reviewed 605 pages of records, including OCS records, hospital records, visitation records, urinalyses, and police records.
Dr. Cranor indicated in her expert report that it was her “professional opinion that placement of [Howie] with either of his parents would place him at elevated risk for both physical and psychological harm.” This opinion was based principally on the parents’ substance use, Butch‘s domestic violence, and the parents’ inconsistent visitation with Howie. Dr. Cranor asserted that Cissy‘s alcohol and drug use during pregnancy led to Howie‘s medical difficulties as an infant and his later developmental challenges. She also indicated that Cissy‘s substance use had “negatively impacted her ability to care for herself and provide for her own basic needs” and anticipated that Cissy‘s continued use would prevent her from effectively parenting Howie. Dr. Cranor used an actuarial risk assessment tool to assess future risk of harm to Howie from domestic violence, concluding it would be high were he returned to Butch‘s care, or to Cissy‘s care if she were in contact with Butch.
Referencing attachment theory in both her report and testimony, Dr. Cranor emphasized that the sporadic visitation between the parents and Howie made it challenging for Howie to develop relationships with either parent. She asserted that “[a]ttachment requires constant, day-in and day-out, mutually reinforcing and reciprocal interactions between the parental figure and the child, a process that is seriously disrupted by extended separations.” Dr. Cranor explained that infrequent and
Dr. Cranor also expressed some concern about the parents’ physical living space and their economic situations in her report and testimony. For instance, during the trial she stated that the parents “didn‘t have an adequate living situation to care for a child who at that point was medically fragile and needed, you know, at least a home with reliable heat and preferably running water.” Dr. Cranor‘s report also stressed that Cissy had an inconsistent employment history and “appears to have relied on family members, acquaintances, friends, romantic partners, community agencies, and/or tribal dividends for her financial support.”
Kaleak, a 20-year family advocate for the Native Village of Barrow and a tribal member, testified without objection as an expert on the Tribe‘s “cultural practices and traditions.” However, neither the parties nor Kaleak had much time to prepare for her testimony. OCS provided notice of its intent to call Kaleak as an expert the day before trial. Kaleak received the petition to terminate parental rights at six o‘clock the evening prior to her appearance, and was only able to review the material for ten minutes before testifying. She noted that she was “not . . . able to fully absorb” the petition.
OCS asked Kaleak just two substantive questions on direct examination. OCS first asked Kaleak to describe “the important cultural practices and traditions” of the Native Village of Barrow. Kaleak stated that the Tribe‘s traditional practices include hunting, gathering, and a focus on communal welfare. OCS next asked Kaleak whether the Tribe‘s “cultural norms, traditions, or values” included substance use, domestic violence, or neglect. Kaleak responded “No,” and said that such conduct would trigger the intervention of the Tribe‘s own child protective services.
At the conclusion of the termination trial, the superior court found by clear and convincing evidence that Howie was a child in need of aid under several of the categories set forth in
Cissy and Butch failed to remedy the conduct that placed Howie in need of aid and that OCS made active efforts to help them remedy this conduct. It also found that termination of parental rights was in Howie‘s best interests.
B. Linette S.
Linette S. and Marquis D. are the parents of Morris, born in 2011, and Irwin, born in 2013. Linette is a member of the Native Village of Selawik. Marquis is a member of the Nenana Native Village. Both children are Indian children for purposes of ICWA.
Linette has struggled with alcohol and methamphetamine abuse for many years. OCS initially removed Morris and Irwin in 2015 due to Linette‘s methamphetamine use, but the children were returned to Linette in the fall of 2016. Linette also has a history of violent outbursts in front of her children and has been arrested several times for domestic violence.
Both children have special needs. Among other developmental issues, Morris has a growth deficiency due to a history of malnutrition and as a result requires frequent medical care and a special diet. Both children were diagnosed with Fetal Alcohol Spectrum Disorder, and Irwin was also diagnosed with Autism Spectrum Disorder.
In 2019 OCS received reports that Linette was acting erratically and violently and that she was neglecting the children. An OCS specialist spoke with Linette, and based on her incoherent speech, OCS believed Linette was again using methamphetamine. OCS assumed emergency custody of Morris and Irwin.
At Linette‘s termination trial,7 OCS initially presented just one expert witness, Dr. Martha Cranor — the same expert witness that OCS presented in Cissy and Butch‘s trial. Dr. Cranor was qualified without objection as an expert in child welfare and parental risk assessment. She submitted an expert report and testified regarding the likelihood of serious physical or emotional damage to the children if they were to return to Linette‘s care. After reviewing 422 pages of records, she concluded that there was a high likelihood of serious physical or emotional harm to the children if returned to Linette. Her opinions were based on Linette‘s history of substance abuse and abandonment of the children; she also considered the children‘s special needs and malnourishment. As in Cissy and Butch‘s trial, Dr. Cranor referenced attachment theory in her testimony and opined that both children were no longer connected to Linette. In her report, Dr. Cranor also expressed concern about Linette‘s economic situation,
After Dr. Cranor concluded her testimony, OCS stated its intent to rest its case. But the superior court cautioned OCS that “this is an ICWA case” and that OCS had “offered no evidence on the elements of cultural practice.” OCS responded that “[n]one of th[e issues in Linette‘s case] would suggest that . . . cultural practices . . . have been indicated.” The GAL requested that the case stay open so that OCS could present cultural expert testimony, which the court allowed.
The following day of the trial, OCS presented two more witnesses. Tanya Ballot, the tribal administrator for Linette‘s Tribe, was accepted as an expert in the social and cultural standards of the Native Village of Selawik. Virginia Charlie, formerly a tribal judge for Marquis‘s Tribe, testified about the social and cultural standards of the Nenana Native Village. Neither witness was given much time to prepare.8 OCS had not timely sent any case documents to either witness to prepare their testimony. Ballot thus had little knowledge about the facts of Linette‘s case. Charlie had some knowledge about Linette‘s prior OCS case because she was a tribal judge at that time, but Charlie acknowledged that that case had occurred “years and years ago” and that she had not been provided any documentation to review about the family before testifying.
As in Cissy and Butch‘s trial, OCS asked each cultural expert witness just a handful of substantive questions. OCS asked Ballot if she could describe the “prevailing cultural values with regard[] to child-raising that might be unique to” her Tribe. Ballot explained some general values of her Tribe, including “respect [for]
When OCS examined Charlie, it asked if her Tribe had a “prevailing cultural value . . . to keep children safe,” and Charlie agreed that this was a prevailing cultural value. OCS then asked whether issues like substance abuse and domestic violence were “not in line with the cultural values” of her Tribe. Charlie confirmed that such conduct was not consistent with tribal values.
After the termination trial the superior court found by clear and convincing evidence that the children were in need of aid based on substance abuse, abandonment, substantial risk of physical harm due to Linette‘s violence and substance abuse, and substantial risk of mental injury due to Linette‘s failure to provide for the children‘s heightened needs.9 The court also found that Linette had failed to remedy the conditions that placed the children in need of aid and that OCS had made active efforts toward reunification. The court further found that terminating parental rights would be in the children‘s best interests.
Although the superior court made many of the requisite findings for termination, it found that it could not terminate parental rights in either case because OCS had failed to properly contextualize the cases within the culture and values of the children‘s Tribes. Citing our decision in Oliver N. v. State, Department of Health & Social Services, Office of Children‘s Services,10 the court stated that there is a “requirement that a tribal expert testify before parental rights are terminated” and that tribal experts must “be qualified to testify about the likelihood of harm to the child if returned to the parent‘s custody.” The court emphasized that relevant cultural expert testimony would have assisted the court in determining, beyond a reasonable doubt, whether the children were likely to suffer serious damage if returned to their parents.
The court explained that though the experts presented by OCS had expertise regarding their respective Tribes, their testimony was insufficient “without knowledge and application to” the particular families. The court wanted to hear in-depth testimony “about the specifics of [the experts‘] tribal values,” and noted that the testimony presented was not based on the particular facts of each case. The court emphasized that expert testimony “should not be taken as a mere formality, but as a concrete showing, requiring the highest standard of testimony, of the tribal values as applied to the family in the case.”
Finding this standard had not been met, the court indicated it “c[ould not] in good faith terminate with the testimony that was presented.” The court invited OCS to “supplement the testimony already provided with the appropriate expert testimony.”
OCS filed a motion for reconsideration in each case, both of which the superior court denied. The court explained that the cultural expert testimony “did not
OCS appealed both cases. The Nenana Native Village, Marquis‘s Tribe, intervened on appeal in Linette‘s case.
III. STANDARD OF REVIEW
“Whether substantial evidence supports the court‘s conclusion that . . . children would likely be seriously harmed if they were returned . . . is a mixed question of fact and law.”11 We review de novo the superior court‘s conclusions of law,12 including the interpretation of ICWA and BIA regulations.13 We review the superior court‘s factual findings for clear error, giving the underlying allocations of weight to testimony special deference.14
We begin by explaining ICWA‘s requirements for expert testimony and outlining the rare cases in which cultural expert testimony is not required.15 We then clarify that the superior court erred by holding that Oliver N. mandates cultural expert testimony in every case.16 However, given the superior court‘s stated inability to make an informed decision without this cultural expert testimony, we uphold the superior court‘s rulings requiring cultural expert testimony in these cases.
Turning to the sufficiency of the cultural expert testimony provided, we clarify that a cultural expert need not testify to the causal relationship between the parent‘s conduct and the risk of serious damage to the child. And we conclude that the court did not clearly err by affording no weight to the vague and generalized testimony presented in these cases. We therefore uphold the superior court‘s rulings in both cases.
A. ICWA Requires Testimony From A “Qualified Expert Witness,” And Federal Regulations State That An Expert “Should” Be Qualified To Testify About Tribal Social And Cultural Standards.
A court may not terminate parental rights to an Indian child unless it finds “by 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.”17 ICWA itself does not define
“qualified expert witness” or explain what testimony such a witness must provide.18 But the BIA has adopted regulations that add specificity to the expert witness requirement (BIA Regulations),19 commentary on the new regulations (BIA Commentary) that provides further insight,20 and non-binding but persuasive guidelines (BIA 2016 Guidelines) on applying ICWA.21
The BIA Regulations explain what is needed to meet ICWA‘s “qualified expert witness” requirement:
A qualified expert witness must be qualified to testify regarding whether the child‘s continued custody by the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child‘s Tribe.22
In its supporting guidelines and commentary, the BIA explained the importance of both the “must” and “should” prongs of its expert witness requirement. First, the BIA explained that the likelihood-of-damage qualification ensures that the expert can establish the causal relationship between the particular conditions of the home and the risk of damage to the child that is statutorily required for terminations.23 The need to prove this link between the parent‘s conduct and harm to the child recognizes the fact that “children can thrive when they are kept with their parents, even in homes that may not be ideal . . . or when a parent is single, impoverished, or a substance abuser.”24
Second, the BIA explained the importance of cultural context in informing a court‘s findings about the likelihood of serious damage to the child.25 The BIA emphasized that Congress‘s purpose in passing ICWA was to “make sure that Indian child-welfare determinations are not based on ‘a white, middle-class standard’ ”26 — especially because “States have failed to recognize the essential Tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and
Yet the BIA also stated that cultural expert testimony is not “strictly” required in all cases.29 The BIA explained that while cultural expert testimony “should normally be required,” it “may not be necessary if such knowledge is plainly irrelevant to the particular circumstances at issue in the proceeding.”30 The BIA Commentary provides only one example where cultural expert testimony would be plainly irrelevant: when a parent “has a history of sexually abusing the child,” “a leading expert on issues regarding sexual abuse of children may not need to know about specific Tribal social and cultural standards in order to testify . . . regarding whether return of a child to [that] parent . . . is likely to result in serious [harm].”31 Consistent with this guidance from the BIA, we have held that the exception to the requirement of cultural testimony is “very limited.”32
The superior court ruled it could not terminate parental rights in these cases without hearing expert testimony about tribal cultural and social standards. These rulings appear to rest on two grounds.
The court reasoned that our decision in Oliver N. mandates cultural expert testimony in all ICWA cases. This interpretation of Oliver N. was mistaken, as we explain below.
Yet it is clear from the superior court‘s initial orders and orders on reconsideration that the court also viewed cultural context as necessary to properly weigh the evidence presented by OCS in these particular cases. In other words, the court viewed cultural expert testimony as evidence necessary in each case to determine, beyond a reasonable doubt, that the children would truly be harmed if returned to their parents’ custody.
OCS suggests that the superior court denied termination solely based on Oliver N., pointing to the court‘s statement that OCS had “met [its] burden of proof for termination in all aspects except the tribal value expert testimony requirement.” But the superior court indicated it could not draw any ultimate conclusions about the risk of serious damage to the children without cultural context. The court reasoned that cultural expert testimony was “necessary for the trier of fact to understand and consider the dynamic interplay of the tribal norms and standards with the parties, their actions, the allegations, and the rehabilitation efforts applicable to the situation.” The scant cultural testimony presented by OCS left the court “with so many unanswered questions regarding the interaction of the [T]ribe and its norms with the pertinent allegations.” Accordingly, we do not view the superior court‘s rulings to mean that OCS failed only
1. It was error to rule that expert testimony about tribal social and cultural standards is required in every ICWA case.
Our decision in Oliver N. did not require cultural expert testimony in every ICWA case. In Oliver N. OCS presented a single expert witness33 who was qualified only as an expert on tribal cultural standards; the expert lacked the qualifications to opine on the causal relationship between the parent‘s conduct and damage to the child.34 We held that under the BIA Regulations, OCS must always present testimony of an expert qualified to opine on causation.35 We did not, however, hold that cultural expert testimony is also required in every case.36
In fact we have expressly acknowledged that the BIA Regulations do not require cultural expert testimony in every case. In In re April S. we noted the distinction between “must” and “should” in the BIA Regulations, explaining that while cultural expert testimony should be presented in most cases, it need not be presented in every
2. The superior court did not err by determining that cultural expert testimony was necessary in these cases to find beyond a reasonable doubt that continued parental custody was likely to cause serious damage to the children.
Next we address the other basis for the superior court‘s ruling: that it needed expert cultural testimony in order to properly weigh the evidence of harm to the children in these cases. Because witnesses and judges who may be unfamiliar with Alaska Native cultures are generally not well-equipped to know when evidence of harm rests on cultural assumptions that may not apply to Indian children, and because a judge cannot terminate parental rights unless convinced beyond a reasonable doubt, we hold that a superior court does not err if it determines that it needs cultural expert testimony to competently weigh the evidence in the particular case before it.
The scope of cases in which cultural expert testimony need not be presented is “very limited.”39 The BIA‘s choice of the word “should” indicates that, as a default rule, the need for cultural expert testimony is to be presumed.40 The BIA in its
The BIA Commentary elaborated on when a case might fall outside of the default requirement: cultural expert testimony “may not be necessary if such knowledge is plainly irrelevant to the particular circumstances at issue in the proceeding.”43 Although the BIA Commentary provides little guidance for determining when cultural expert testimony is “plainly irrelevant,” it does emphasize that state child welfare agencies and courts are generally not “well-positioned to assess when cultural biases or lack of knowledge is, or is not, implicated.”44 A default rule requiring cultural expert testimony reduces the chance that cultural bias will affect ICWA decisions.
Our recent decision in In re April S. acknowledges this point.45 There the child had extreme mental health needs, evidenced in part by repeated suicide attempts.46 A mental health expert testified that the child needed intensive treatment that could only be obtained at a secure residential treatment center; the superior court authorized removal
We thus emphasized that the exception to the default rule requiring cultural expert testimony is “very limited,” but held that the particular facts of the case “f[ell] within that very limited exception.”49 The concurring opinion in In re April S. also emphasized the limited scope of the exception, cautioning that deeming knowledge of tribal culture to be “plainly irrelevant” based on testimony of an expert without knowledge of tribal culture “may rest on hopelessly circular logic.”50
Two examples help to illustrate the importance of limiting the exception to the cultural expert testimony requirement. The first example is substance abuse. The BIA emphasized “that children can thrive . . . even . . . when a parent is . . . a substance abuser.”51 Alcohol abuse has historically been a concerning justification for breaking up Indian families. Indeed, when ICWA was passed, Congress was concerned that alcohol abuse was frequently cited to remove Indian children but was rarely cited to remove non-Indian children — even when comparing areas with “[similar] rates of problem
The second example relates to child-parent bonding and attachment. Attachment theory is grounded, according to the American Psychological Association, on the “need for the young to maintain close proximity to and form bonds with their caregivers.”54 In these cases Dr. Cranor‘s expert reports discussed how “[a]ttachment requires constant day-in, day-out mutually reinforcing and reciprocal interactions between the parental figure and the child.” But that view of healthy attachment — that the child must have constant daily interactions with the parent — may not be shared by the child‘s tribe. Indeed, Congress noted it was an accepted practice within some tribes for Indian parents to leave their children in the care of extended family for periods of time, and terminating parental rights for that practice would be “ignorant of Indian
We recognize that our prior cases may be interpreted as allowing a broader exception. In Eva H., one of our first cases to apply the BIA Regulations, we noted that cultural expert testimony was not strictly required in every case; the BIA Regulations allowed exceptions to the cultural expert testimony requirement.57 We explained that our earlier decisions were therefore consistent with the BIA Regulations to the extent that they recognized the existence of an exception.58 This does not mean, however, that our prior case law is entirely consistent with the BIA Regulations on expert testimony.59 In those pre-regulation cases, we attempted to determine whether specific sets of facts
We also recognize that our prior cases may be interpreted to place the burden on parents to show that OCS‘s case for terminating their parental rights implicates cultural bias.64 We disavow this interpretation as well.65 OCS bears the
OCS argues that ICWA resolves the problem of cultural bias by requiring expert testimony on the causal relationship between the parent‘s conduct and serious damage to the child. But this argument fails to address the BIA Regulations themselves. The BIA Regulations resulted from the BIA‘s concern that expert testimony uninformed by cultural context may still result in unwarranted removal and termination. The BIA cautioned that because “States have failed to recognize the essential Tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families[,] . . . expert testimony presented to State courts should reflect and be informed by those cultural and social standards.”68 The BIA thus emphasized that “the question of whether the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child is one that should be examined in the context of the prevailing cultural and social standards of the Indian child‘s Tribe.”69
Therefore the need for expert testimony about the prevailing social and cultural standards of the child‘s tribe is the rule, not the exception. The exception to this rule is “very limited.”70 And it is not the parents’ burden to show that knowledge of tribal cultural context is relevant to deciding whether the children are likely to suffer
The evidence presented in these cases illustrates why this rule is justified. Both cases involved evidence of substance abuse, attachment theory, and financial reliance on others — all areas that the BIA has highlighted as prone to cultural bias.75
C. We Affirm The Superior Court‘s Ruling That The Cultural Expert Testimony Presented In These Cases Was Inadequate.
Some expert testimony regarding tribal cultural standards was presented in each of these cases, but the superior court concluded this expert testimony was insufficient to support termination of parental rights. The superior court faulted the testimony for two main reasons. First, the court ruled that Oliver N. requires the cultural expert to be familiar with the facts and circumstances related to the particular family in the case and to testify specifically about the likelihood of serious damage to the child if returned to the parent. Second, the superior court ruled that the cultural expert testimony was not sufficiently “in depth about the specifics of the[] tribal values” and that although each of the proffered experts appeared to have ample knowledge of tribal customs, the vague and generalized testimony elicited by OCS did not “assist the trier of fact to understand the evidence.”76
As explained further below, the superior court‘s interpretation of Oliver N. was mistaken. An expert on tribal cultural practices need not testify about the causal connection between the parent‘s conduct and serious damage to the child so long as there
1. A cultural expert need not opine on the causal connection between the parent‘s conduct and the serious damage to the child.
To support removal of a child from the family or termination of parental rights in an ICWA case, OCS must always present an expert witness qualified to testify about the causal relationship between parental conduct and serious damage to the child.78 In Oliver N. we concluded that the sole expert witness presented did not have the qualifications to testify about that causal relationship.79
But if one witness is qualified to testify and does testify about the causal relationship, then a separate expert qualified to testify about tribal culture need not also directly opine on causation.80 It is permissible to satisfy ICWA‘s expert witness requirement by aggregating the testimony of expert witnesses.81 In Oliver N. we specifically explained that “[a] tribal expert does not need to be qualified to speak to the
In each termination trial OCS presented testimony from Dr. Cranor, who was qualified to testify about the relationship between the parents’ conduct and serious damage to the children, and did testify on this topic.84 It was therefore not necessary for the experts in tribal social and cultural standards to testify regarding the causal relationship as well. Rather, those cultural experts’ testimony could focus on contextualizing the parents’ conduct and answering some of the questions the court raised in its decisions. For instance, the superior court sought more information on “what constitutes substance abuse within the [T]ribe,” how the Tribe defines child abuse, “what violations specifically are deviations from [tribal] norms, values, or standards, such that intervention was required,” and what interventions were available within the Tribe. These are questions cultural experts are exceedingly well suited to answer.85
The superior court found the cultural expert testimony elicited in these cases too vague, generalized, and unhelpful to assist the trier of fact. We largely agree with this assessment and see no clear error in the superior court‘s decision to place no weight on the sparse testimony provided.
In ICWA cases expert testimony about a tribe‘s beliefs, practices, and traditions allows the court to analyze evidence about parental conduct and serious damage to children within the cultural context of the tribe. This testimony will ideally address prevailing practices or norms that other witnesses and the court may be unaware of.86 For example, if a parent‘s substance abuse causes the parent to leave the child with a series of caregivers in the tribe for long periods of time, and OCS‘s expert psychologist testifies that the child is in danger of psychological damage due to ruptured attachments, the cultural expert might testify about the important role of extended family and the tribal community in raising children, and whether or not the tribe views “constant, day-in and day-out, mutually reinforcing and reciprocal interactions between the parental figure and the child” to be a prerequisite for healthy development. The testimony may also highlight cultural practices that mitigate harm to children where a safety risk might otherwise be perceived. For instance, a cultural expert might testify about whether tribal
To provide meaningful assistance to the court, a cultural expert‘s testimony — as with other experts’ testimony — must somehow be grounded in the issues or questions presented in the case.87 Such grounding can be facilitated in a variety of ways, including allowing the expert to review relevant records,88 providing the expert with information, and asking detailed questions that provide the expert with important context.89 Without context, one could not expect the cultural expert to understand what values or practices may be relevant to the situation. Relatedly we observe that cultural experts possess and provide to courts information and perspective vital to upholding the purposes underlying ICWA.90 A party calling a cultural expert witness should further the expert‘s ability to impart this important information and context by providing the expert with the same reasonable opportunity to prepare for trial afforded to other experts.
In Cissy and Butch‘s case, cultural expert Kaleak admitted that she was not “very familiar with the facts” of the case and had only ten minutes to review the petition.91 In direct examination, OCS only provided the background that “the general concern[s] . . . [we]re substance abuse, rampant domestic violence, and high risk for neglect.” OCS‘s argument that Kaleak had the opportunity to review the termination petition, and that the petition provided sufficient information about the case, is both unpersuasive and troubling in its presumption that any additional information would not implicate or inform Kaleak‘s cultural expertise and insights.92
Without information regarding the facts of the case or detailed questioning, the experts were forced to discuss tribal practices in very general terms that were not helpful to the superior court. The questions OCS asked the experts in each case were
During Linette‘s trial, OCS asked Ballot to explain the Native Village of Selawik‘s “prevailing cultural values with regard to child-raising,” and Ballot testified that the Tribe‘s values include respecting elders, taking care of family, and subsistence lifestyles. OCS then asked Ballot whether she had “any concerns that the[] children have been removed from their parents’ care because of any . . . violation of those cultural values.” In response Ballot told OCS she would like some more information about the parents’ efforts to regain custody, to which OCS said it could not “give [her] those answers.” When questioning Charlie, OCS asked: “[I]s it a cultural value in the Native Village of Nenana to keep children safe?” Charlie indicated that it is, and that “[i]t also should be like that everywhere, really.”
The testimony elicited during Cissy and Butch‘s trial was also quite superficial. OCS asked just two substantive questions: what the expert would identify as the cultural values of the Native Village of Barrow and whether substance abuse, domestic violence, and neglect were within the Tribe‘s cultural values. Only on cross-examination did the expert even reference possible interventions within the Tribe — again only superficially.
This kind of questioning and the responses it elicited do not help the trier of fact contextualize the parents’ conduct and potential damage to the children within the
In both cases there is reason to believe cultural assumptions informed the evidence presented to some degree. Had the cultural experts had a chance to review the record — particularly the other expert testimony — they may have been able to respond to and contextualize it. For instance, Dr. Cranor emphasized attachment theory and the economic situation of the families in both cases — areas that may implicate cultural mores or biases.95 If the cultural experts were aware of this testimony, they could have
Based on the extremely general nature of the cultural expert testimony, it was not clearly erroneous for the superior court to afford the testimony no weight.
V. CONCLUSION
We AFFIRM the superior court‘s denial of OCS‘s termination petitions and remand for further proceedings consistent with this opinion.