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Univ. of South Carolina School of Law

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Tuesday, September 29, 2009

Baked Alaska: Supreme Court Of Alaska Opinion Shows Oddness In Expert Witness Contention

Like its federal counterpartAlaska Rule of Evidence 702(a) provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 

Meanwhile, Section Section 1912(f) of the Indian Child Welfare Act provides that 

No termination of parental rights may be ordered in such proceeding 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.  

The Supreme Court of Alaska recently found that "ICWA § 1912(f) heightens the requirements for an expert's qualifications beyond those normally required to qualify an expert." You wouldn't know it, however, based upon that court's recent opinion in Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services, 2009 WL 3049721 (Alaska 2009).

In Sandy B., "[t]he Office of Children's Services (OCS) removed three girls, who are Indian children under the Indian Child Welfare Act, from the care of their parents in three separate alcohol-related incidents between September 2005 and December 2007."  Thereafter, "[f]ollowing a three-day termination trial, the trial court issued two written orders terminating their parental rights to all three children." 

This ruling was based in large part upon the testimony of Dr. Raymond Droby, who testified as OCS's ICWA- required expert. Dr. Droby had master's and doctorate degrees in clinical psychology and was qualified as an expert in psychology. At trial, Dr. Droby addressed the psychological harm that the children had suffered and would likely continue to suffer if they were returned to their parents' care and their parents continued to drink."  

The parents thereafter appealed, and their appeal eventually reached the Alaska Supremes. And that court noted that the parents were correct that it had recently found in Marcia V. v. State, Office of Children's Services, 201 P.3d 496, 504 (Alaska 2009), that "ICWA § 1912(f) heightens the requirements for an expert's qualifications beyond those normally required to qualify an expert." Except that it didn't. Instead, in Marcia V., the court noted that

Federal ICWA guidelines describe the three types of experts that are “most likely” to meet ICWA's requirements: (1) a member of the child's tribe recognized by the tribal community as knowledgeable in tribal customs pertaining to family organization and childrearing practices, (2) a lay expert with substantial experience and knowledge regarding relevant Indian social and cultural standards and childrearing practices and the delivery of child and family services to Indians, or (3) “ [a] professional person having substantial education in the area of his or her specialty.” 

In Marcia V., the court found an expert witness qualified based upon his substantial education. And in Sandy B.,, the court found the same with regard to Dr. Droby. And you know what? It would have found the same thing under Alaska Rule of Evidence 702(a). If Dr. Droby did not have substantial education in the field of clinical psychology, he could not have been qualified as an expert under either Alaska Rule of Evidence 702(a) or Section 1912(f) of the Indian Child Welfare Act. Based upon his education, he could have been qualified as an expert under either Alaska Rule of Evidence 702(a) or Section 1912(f) of the Indian Child Welfare Act. I thus don't see how "ICWA § 1912(f) heighten[ed] the requirements for an expert's qualifications beyond those normally required to qualify an expert." 

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/09/na-rules-of-evidencesandy-b-v-state-dept-of-health-social-services-office-of-----p3d------2009-wl-3049721alaska200.html

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