Brenda O. v. ADES et al.

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE BRENDA O., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, B.L. and M.L., Appellees. DIVISION ONE FILED: 12/07/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL ) No. 1 CA-JV 10-0073 ) ) ) DEPARTMENT B ) ) ) O P I N I O N ) ) ) ) Appeal from the Superior Court in Maricopa County Cause No. JD 16009 The Honorable Dawn M. Bergin, Judge AFFIRMED Gates Law Firm, L.L.C. By S. Marie Gates Attorneys for Appellant Phoenix Terry Goddard, Arizona Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security J O H N S E N, Judge ¶1 Brenda O. argues the superior court erred in terminating her parental rights because it incorrectly applied the expert-witness requirement in 25 U.S.C. § 1912(f) (2006), part of the federal Indian Child Welfare Act ( ICWA ). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Brenda is an enrolled member of the Navajo Nation. August 2007, the ( ADES ) removed Arizona Brenda s Department of five-month-old Economic daughter, In Security B, because Brenda was too intoxicated to care for her, and the superior court entered a dependency order. In September and October 2007, ADES twice referred Brenda to TERROS, a substance-abuse treatment center, but she missed both intake sessions. In April 2008, Brenda was incarcerated on a probation violation resulting from an earlier conviction for driving under the influence; she was released in October 2008. ¶3 Brenda s second child, M, was born in October 2008. Two months later, ADES removed M from Brenda s care after Child Protective Services ( CPS ) visited Brenda s home and found her so intoxicated straight, referred or that look Brenda she anyone to was unable straight TERROS in in May to the 2009. stand eye. still, CPS Brenda intoxicated for the first two scheduled intake sessions. walk again arrived After she finally completed an intake appointment on June 22, 2009, she began attending an intensive outpatient group, but she was intoxicated at several group sessions. 2 ¶4 Brenda also was intoxicated during about 60 percent of her visits with her children. The visit supervisor testified Brenda would go to the bathroom during visits and return with alcohol on her breath. She testified Brenda was aggressive during visits and used vulgar language to the point that she was no longer allowed to have her visits at the visitation center. ¶5 ADES offered Brenda parent-aide services, bus passes, additional substance evaluation. participated substance counseling and a psychological She was required to undergo 56 urinalysis tests but in abuse Alcoholics abuse only five. services Anonymous She through or any declined Native to participate American inpatient in Connections, program. ADES discontinued parent-aide services because Brenda so often showed up intoxicated. appointment in Brenda September appointment in 2008. missed 2007 a psychological and another evaluation psychological She finally appeared for a psychological evaluation in June 2009. ¶6 On May 11, 2009, ADES filed a motion to terminate Brenda s parental rights on the ground that she was unable to discharge [her] parental responsibilities because of a history of chronic abuse of . . . alcohol. With respect to B, the State also alleged the child had been in out-of-home care for 15 months and that Brenda was unable to remedy the circumstances that had brought the child into care. 3 ¶7 The court took evidence on September 17 and 24, 2009, and January 25, 2010. A TERROS counselor testified that even after the first two days of trial, Brenda continued to arrive intoxicated for therapy sessions. TERROS closed her case in October 2009 after she did not show up for a session but was found asleep at a nearby bus stop. ¶8 The superior court terminated Brenda s rights on both alleged grounds. Inter alia, the court found ADES proved beyond a reasonable doubt that custody of the children by mother is likely to result in serious emotional or physical damage to the children and that this finding is supported by the testimony of a qualified expert witness. The court based its decision in large part on the testimony of Dr. John DiBacco, the licensed psychologist who performed Brenda s psychological evaluation. According to DiBacco, Brenda denied she had a drinking problem and essentially minimized, if not denied, that alcohol s been a major problem for her. Brenda s inability to refrain from drinking prior to visits with her children and prior to alcoholcounseling sessions demonstrated that she could not control her drinking, DiBacco said. very strongly that this He concluded the evidence suggests is uncontrolled pathological level. 4 consumption at a ¶9 Brenda timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) section 8-235 (2007). DISCUSSION ¶10 On appeal, Brenda does not contest the superior court s findings and conclusions with respect to the state-law grounds on which the court ordered severance; nor does she argue the court incorrectly concluded interests of her children. 1 severance was in the best She argues only that the court erred by terminating her rights in the absence of evidence from an expert witness as required by ICWA that serious emotional or physical damage was likely to occur to the children if they are returned to her. ¶11 25 U.S.C. § 1912(f). ICWA limits a state s power to terminate the parental rights of a member of an Indian tribe. §§ 1901 1963 (2006). See generally 25 U.S.C. In enacting ICWA, Congress found that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions. 1 25 U.S.C. § 1901(4). We will affirm an order terminating a parent-child relationship unless it is clearly erroneous. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). 5 Congress also found that child custody proceedings under state law have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. 25 U.S.C. § 1901(5). ¶12 At issue here is the ICWA requirement that a tribe member s parental rights not be terminated in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. ¶13 25 U.S.C. § 1912(f). We interpret statutes de novo. State ex rel. Ariz. Dep't of Revenue v. Capitol Castings, Inc., 207 Ariz. 445, 447, ¶ 9, 88 P.3d 159, 161 (2004). In interpreting a federal statute, our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive. Steven H. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 566, 570, ¶ 14, 190 P.3d 180, 184 (2008) (internal quotation omitted). is to be interpreted liberally interest in preserving family units. ¶14 in favor of the ICWA Indians Id. The United States Department of the Interior Bureau of Indian Affairs has issued guidelines ( Guidelines ) to assist 6 state courts in interpreting ICWA. not mandatory, many Arizona Though the Guidelines are courts have relied upon them. Rachelle S. v. Ariz. Dep t of Econ. Sec., 191 Ariz. 518, 520, ¶ 12, 958 P.2d 459, 461 (App. 1998) (collecting cases). The Guidelines identify the following categories of witnesses likely to satisfy ICWA s expert witness requirement: [i.] A member of the Indian child s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices. [ii.] Any expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child s tribe. [iii.] A professional person having substantial education and experience in the area of his or her specialty. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67, 584, D.4 (Nov. 26, 1979). ¶15 Notwithstanding that a non-Indian may qualify as an expert by virtue of experience and knowledge of a tribe s social and cultural standards and childrearing practices, neither ICWA nor the someone Guidelines with limit expertise a qualified expert Indian children with exclusively or to culture. Rachelle S., 191 Ariz. at 520, ¶ 14, 958 P.2d at 461; see Steven H., 218 Ariz. at 571, ¶ 18, 190 P.3d at 185. 7 To the contrary, distinctive knowledge of Indian culture is necessary only when cultural mores are involved in the termination determination. Rachelle S., 191 Ariz. at 521, ¶ 14, 958 P.2d at 462. When matters not implicating cultural bias are at issue, a witness with substantial education and experience special knowledge of Indian life. need not have Id.; see In re Baby Boy Doe, 902 P.2d 477, 485 (Idaho 1995); State ex rel. Juvenile Dep t of Lane County v. Tucker, 710 P.2d 793, 799 (Or. App. 1985) ( when cultural bias is clearly not implicated, the necessary proof may be provided by expert witnesses who do not possess special knowledge of Indian life ). ¶16 In Rachelle S., for example, a child had been removed from his parents after suffering a severe head injury. 191 Ariz. the at 519, ¶ 8, 958 P.2d at 460. At issue during dependency trial were the cause of the trauma the child suffered and whether the child would suffer additional abuse if he were returned to his parents. Id. at 521, ¶ 15, 958 P.2d at 462. The child s attending physician testified the child likely was a victim of shaken-baby syndrome. 460. This court held the Id. at 519, ¶ 6, 958 P.2d at physician qualified as an expert witness pursuant to 25 U.S.C. § 1912(f) because he had knowledge and experience regarding shaken-baby syndrome and because the likelihood of future abuse dictate or explanation. did not implicate any cultural Id. at 521, ¶ 15, 958 P.2d at 462. 8 ¶17 DiBacco, the psychologist drinking problem likely was who opined pathological, that Brenda s received his doctorate in psychology in 1975 and has practiced in Arizona since then. He testified he has worked with Native Americans [for] most of [his] career, including 10 years of work with the Tohono O odham Nation. He also has consulted for the Indian Head Start program and has worked with Navajo, Hopi and Apache clients. ¶18 Navajo, As to whether alcohol abuse is prevalent among the DiBacco testified, Generally alcohol abuse and drug abuse is a problem for most of the nations, Navajo included. He explained: And again, some of these comments are pertinent to many of the other nations as well, but there s some speculation in terms of genetic propensity and, you know, particular genetic proclivity toward alcohol abuse and that s a genetic explanation. But often times it s tied up with the social, cultural aspects of the reservation. For instance, being isolated and essentially there being a higher prevalence of depression among some nations, including Navajo, and alcohol is seen as a palliative response to those sociological culture aspects. DiBacco later was asked whether Brenda would be unable to remain sober because she is Navajo. To that, he responded: No. No, I mean the majority of Navajo people do not have a drinking problem. Do they have a higher incidence than the general populations? Yes, probably. And 9 that percentage varies from tribe to tribe and based on their cultural experiences. And again, there may be some genetic propensity as well, but just because she s Navajo or Hopi or Pima doesn t mean she s doomed to become an alcoholic or she would not be able to stop because of that genetic makeup. DiBacco added that although Brenda had lived on a reservation in the past, she more recently had lived in Phoenix for a good period of time. ¶19 DiBacco s psychological evaluation of Brenda plainly was within his expertise as a professional psychologist. See Steven For H., purposes 218 of Ariz. this at 571, decision, ¶ 18, however, 190 we P.3d will at 185. assume without deciding that the record contained insufficient evidence that DiBacco possessed substantial experience in the delivery of child and family services among the Navajo tribe or extensive knowledge of childrearing prevailing practices social among and the cultural Navajo. standards See and Guidelines, subparts ii and iii. ¶20 Nevertheless, on this record, we conclude DiBacco qualified as an expert witness within the meaning of 25 U.S.C. § 1912(f). testimony Brenda that offered although no there evidence may be to a dispute higher DiBacco s incidence of alcohol abuse among members of some tribes, neither genetics nor tribal culture prevents her from controlling her consumption of 10 alcohol. address DiBacco testified Brenda would not be able to begin to her existence. drinking problem until she acknowledged its Unfortunately, however, Brenda refused to admit she abused alcohol and continued to drink heavily even when she knew she was under scrutiny as part of the severance proceedings. Moreover, there was no evidence at trial that Navajo culture or mores are relevant to the effect Brenda s demonstrated alcohol problem has on her children. Nor on appeal are we offered any authority for the proposition that a parent s alcoholism affects an Indian child differently than any other child. ¶21 Accordingly, because DiBacco testified about a matter within his professional specialty, we conclude he was an expert witness qualified to testify that Brenda s continued custody of her children would be likely to result in serious emotional or physical damage to the children, pursuant to 25 U.S.C. § 1912(f). See In re Interest of C.W., 479 N.W.2d 105, 112 (Neb. 1992) (affirming termination of parental rights of tribe member based on abuse of intoxicating liquor and drugs even though licensed psychologist and certified clinical psychologist who testified lacked experience with the Indian way of life ). 2 2 Although 25 U.S.C. § 1912(f) refers to qualified expert witnesses, no more than one qualified expert witness is required. D.A.W. v. Alaska, 699 P.2d 340, 342 (Alaska 1985); see People ex rel. M.H., 691 N.W.2d 622, 625 n.2 (S.D. 2005). 11 ¶22 DiBacco s testimony also provided the future-looking evidence required by ICWA. He testified that alcohol impairs judgment or and makes the -- causes the parent to be available, if not unavailable emotionally and physically. less He further testified that Brenda would need to remain sober for a minimum of one year before the children safely could be returned to her, and even then she would require follow-up treatment. In the meantime, DiBacco s opinion was that until [Brenda] comes to grips with her alcohol abuse/dependency issue, she is placing her children at significant risk. ¶23 ICWA does not require that the experts testimony provide the sole basis for the court s conclusion; ICWA simply requires that the testimony support that conclusion. E.A. v. State Div. of Family & Youth Serv., 46 P.3d 986, 992 (Alaska 2002). DiBacco s testimony in this case was supported fully by other witnesses who testified that Brenda was belligerent and aggressive when drinking and that her drinking prevented her from bonding with B. ¶24 The superior court s thorough order terminating Brenda s rights reflected a careful consideration of all the evidence. The order noted that Brenda persistently had been intoxicated, hostile and verbally abusive at visits with her children and at counseling sessions but had refused services to 12 address her problem and continues conclude that to deny that she has a problem. ¶25 We evidence recounted above DiBacco s amply testimony satisfied and ICWA s the other requirements. In sum, the evidence before the court constituted a sufficient basis for its finding that returning the children to Brenda s custody is likely to result in serious emotional or physical damage to the child[ren]. 25 U.S.C. § 1912(f). CONCLUSION ¶26 For the foregoing reasons, we affirm the superior court s order terminating Brenda s parental rights. 3 /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MICHAEL J. BROWN, Judge /s/ JOHN C. GEMMILL, Judge 3 After the court issued this decision as a memorandum decision, the State moved for an order designating the decision as an opinion. The court invited Brenda to respond to the motion, but she did not. In the absence of a response from Brenda and because publication is warranted pursuant to Arizona Rule of Civil Appellate Procedure 28(b)(1) and (4), we withdraw the memorandum decision and grant the motion to publish. We reaffirm our order in the prior decision amending the caption to refer to the children by their initials. 13

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