Viva G. v. Department of Family and Community Services, Office of Children's Services

• Court: Alaska Supreme Court
• Decided: July 2, 2026
• Docket: S-19589
• Status: Published

Opinion

2026 WL 1901882

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NOTICE: THIS DECISION DOES NOT SERVE AS PRECEDENT. THE CASE WAS ENTERED IN THE WESTLAW DATABASE BEFORE THE TIME FOR REHEARING HAD EXPIRED. IT IS POSSIBLE THAT REHEARING HAS BEEN SOUGHT, GRANTED OR DENIED.

Supreme Court of Alaska.

VIVA G., Appellant,

v.

State of Alaska, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

Supreme Court No. S-19589

July 2, 2026

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Josie Garton, Judge. Superior Court No. 3AN-23-00105 CN

Attorneys and Law Firms

George W.P. Madeira Jr., Assistant Public Defender, and Terrence Haas, Public Defender, Anchorage, for Appellant. David A. Wilkinson, Senior Assistant Attorney General, Anchorage, and Stephen J. Cox, Attorney General, Juneau, for Appellee.

Paul F. McDermott, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for Guardian ad Litem.

Before: Borghesan, Henderson, Pate, and Oravec, Justices. [Carney, Chief Justice, not participating.]

OPINION

ORAVEC, Justice.

I. INTRODUCTION

*1 To support the termination of parental rights, the Indian Child Welfare Act (ICWA) requires the “testimony of qualified expert witnesses” demonstrating that continued custody by the parent is likely to result in serious emotional or physical harm to the child.¹ In order to satisfy this mandate, an expert's testimony must be factually grounded in the parental conduct presented in the case, contextualizing conduct within the prevailing social and cultural standards of the child's tribe.

We conclude that the expert testimony in this case failed to satisfy this standard. Because the testimony did not illuminate cultural standards related to the mother's conduct, the testimony was legally insufficient under ICWA. For this reason, we reverse the order terminating the mother's parental rights and remand for further proceedings.

II. FACTS AND PROCEEDINGS

A. Facts

Raleigh² was born in March 2023 and tested positive for addictive substances, requiring neonatal intensive care unit treatment for withdrawal. The Office of Children's Services (OCS) filed an emergency petition, leading the superior court to adjudicate Raleigh as a child in need of aid and commit him to OCS custody. While Raleigh's father remained incarcerated or out of state and consistently refused to engage with OCS, Viva, Raleigh's mother, initially sought treatment for her opioid and stimulant use disorders. However, she was involuntarily discharged from inpatient treatment in June 2023 for rule violations and aggression. Following her discharge, Viva missed 71 scheduled urinalysis tests, failed to attend new treatment assessments, and disengaged from OCS for approximately one year. Raleigh was eventually moved to an ICWA-compliant foster home with a member of Raleigh's Tribe.³ By November 2024, Raleigh had spent nearly his entire life in OCS custody, prompting the agency to petition for the termination of parental rights.

B. Proceedings

In April 2025, the court held a one-day termination trial. Raleigh's foster parent testified that Raleigh was thriving and that the family wished to adopt him. The OCS caseworker detailed the agency's efforts, including its collaboration with the Tribe. The caseworker expressed concerns about returning Raleigh to Viva due to Viva's admitted ongoing use of marijuana, heroin, and fentanyl, as well as Viva's failure to complete treatment. In response, Viva later testified that she was receiving methadone and planned to complete a new assessment the following day.

OCS offered several witnesses in support of its termination petition,⁴ including two witnesses whose testimony was specifically meant to address the risk to Raleigh if returned to Viva. One witness testified as an expert in substance abuse. The other witness was offered to provide cultural context for Viva's conduct and the proposed termination, as required by ICWA.⁵ This expert was a member of Viva's Tribe, possessed an extensive background in regional tribal leadership, and had worked in law enforcement for several years in a village setting. Based on these qualifications and his prior experience testifying in ICWA cases, the superior court qualified him as a cultural expert without objection.

*2 The cultural expert witness testified by phone. He confirmed he had spoken with the Attorney General's office and received a packet of documents, but he did not have the documents with him. With regard to the purpose of removal of Raleigh from Viva, the expert testified that he “believe[d] there was some ... substance abuse going on,” but did not provide further detail. When the State inquired whether the parents’ behaviors aligned with the cultural norms of the Tribe, the expert indicated that the parents’ behavior was inconsistent with tribal norms primarily because they lived in or near Anchorage rather than in the village. When asked, “What is your cultural perspective on the safety risks for this toddler given the substance use?” the cultural expert testified broadly that Raleigh would “have a very difficult time coming out of the substance abuse,” noting the child would require “some major care.” The expert confirmed he did not observe either parent meeting the Tribe's expectations, but the expectations were not described. Ultimately, the witness testified that “[W]e as the Tribal Council feel that the parents are not cooperating with the rehabilitation ... [and] we have concerns to the child's safety.”

Cross-examination of the witness developed more specific information. The expert emphasized that the Tribe's primary concern is the child's safety. When asked if it is common in the village for someone to raise another's child, the witness stated the Tribe prefers parents to raise their own children. However, he noted that when parents do not follow their case plans, the Tribal Council prioritizes the child's safety. Finally, the expert testified that it is culturally important for a child to know their parents as they grow older, stating he “would definitely hope that there is maybe not physical contact but some form of staying in ... touch with the child so that the child knows who the parents are.” When asked why Raleigh had been removed from Viva's care, the expert also noted his view of the parents’ lack of engagement, testifying, “I do not believe that the parents were complying with ... the court orders let alone the OCS caseworker.”

After the hearing, the superior court terminated Viva's parental rights. The court found clear and convincing evidence that Raleigh was a child in need of aid due to parental substance use and substantial risk of physical harm.⁶ Relying on the expert testimony, the court found beyond a reasonable doubt that returning Raleigh to Viva would likely result in serious harm and further found, by a preponderance of the evidence, that termination served the child's best interests. The court did not order post-termination contact. The court later denied Viva's request that future contact be included in any adoption decree.

Viva appeals.

III. STANDARD OF REVIEW

Whether cultural expert testimony satisfies ICWA is a question of law that we review de novo.⁷ In doing so, we will determine whether the expert testimony is legally sufficient to demonstrate that returning the child to the parent's custody will likely result in serious emotional or physical harm.⁸

IV. DISCUSSION

*3 On appeal, Viva argues that the trial court's order terminating her parental rights must be reversed because OCS failed to present legally sufficient cultural expert testimony under ICWA. She contends that the expert lacked familiarity with the facts of the case and failed to provide relevant tribal cultural context.

Under ICWA, no termination of parental rights may be ordered in the absence of a determination, supported by evidence beyond a reasonable doubt, that the continued custody of the child by the parent is likely to result in serious emotional or physical harm to the child.⁹ The statute mandates that this evidentiary burden must be satisfied using the “testimony of qualified expert witnesses.”¹⁰ The evidence must establish a causal relationship between the particular conditions in the home and the likelihood of serious harm to the child.¹¹

The purpose of requiring a cultural expert under ICWA is to ensure that a state court's child welfare determinations are informed by the prevailing social and cultural standards of the Indian child's tribe, rather than by unfounded assumptions or dominant-culture biases.¹² To fulfill this mandate, the expert's testimony must be factually grounded in the issues and parental conduct presented in the case.¹³ Whether testimony meets the requirements of ICWA depends upon factors such as the qualifications and background of the witness, the familiarity of or preparation by the witness, and the information elicited during testimony. This case does not implicate the qualifications of the witness, who was an elder in his Tribe, engaged in Tribal matters, had a background in law enforcement, lived in the village, and had testified as a witness previously. Rather this case requires us to examine the interplay between a witness's familiarity with the case and the information actually entered into the record.¹⁴

We have previously considered cases where the cultural expert testimony was obviously robust. In the unpublished Clark J. v. State of Alaska, Department of Family & Community Services, Office of Children's Services, the witness had systematically reviewed two years of comprehensive case records, demonstrated acute familiarity with the father's history of care, and articulated precisely how that behavior constituted parental abandonment within that distinct tribal setting.¹⁵

*4 A tribal cultural expert need not possess firsthand experience with the families involved. In an unpublished opinion, Orin W. v. Department of Family & Community Services, Office of Children's Services, we considered a cultural expert witness who testified on behalf of a tribe that customarily preferred guardianship over termination.¹⁶ Although the expert did not know the parent and was not very familiar with the case, the use of hypotheticals involving parental conduct in the case elicited helpful tribal perspectives.¹⁷ Indeed, the father in Orin W. explicitly argued that the cultural expert “lacked personal knowledge of his family and of the children's tribe,”¹⁸ but we held that the expert's testimony “more than met the requisite legal standards” because the evidentiary gap was bridged by grounding her expertise in the facts of the case.¹⁹

In Orin W., the expert was presented with the specific facts of the father's “threatening behavior” and a recent incident “necessitating a DVPO.”²⁰ The cultural expert in that case testified that under normal tribal custom, a parent's drug and alcohol use was not necessarily a reason for termination, as the tribe customarily preferred guardianship without the termination of parental rights.²¹ However, because the expert was presented with the specific facts of the father's threatening behavior and a recent protective order, she was able to testify that the father's specific pattern of violence disrupted this custom, rendering the traditional compliance approach unworkable.²² Because the attorneys tethered the expert's cultural knowledge to the facts of the case, she provided the “important and relevant cultural context” required by ICWA, despite her lack of personal familiarity with the family.²³ Based on the facts, the testimony properly focused on proving the tribe would not excuse the behavior for cultural reasons, rather than just asking if they supported termination.

We have also considered cases where the lack of case preparation and questioning did not meet the ICWA requirements for cultural testimony. In Cissy A., a consolidated appeal evaluating the testimony of multiple tribal cultural experts, we observed a pattern where cultural experts were unfamiliar with the case files and the State's questioning consisted of broad, generic inquiries into “substance abuse, ... domestic violence, and high risk of neglect.”²⁴ We concluded that such testimony was legally inadequate because it failed to provide a meaningful assessment of tribal standards applied to the family and instead noted universal truths, such as the importance of keeping children safe, or that substance abuse is damaging.²⁵ This did not satisfy the requirement to provide helpful tribal context.²⁶

This case is more like the concerns we raised in Cissy A. Although the cultural expert here had some familiarity with the case, the witness's substantive analysis of parental conduct was limited to general observations that “there was some ... substance abuse going on,” that the parents were “not cooperating,” and a conclusion that a toddler suffering from prenatal substance exposure would require “some major care.” While relevant, these statements do not establish the particularized cultural context required by ICWA. Instead of grounding the expert in the facts or issues important to the case, the State asked broad questions that predictably elicited universal concerns about child safety. The gap between these general statements and cultural perspectives was not bridged by the use of hypotheticals or questioning that would elicit potential alternate ways of addressing the behavior. For instance, the expert was never asked to evaluate a scenario mirroring Viva's clinical diagnosis of severe opioid use disorder, her missed urinalyses, or her history of hostility within the context of Tribal cultural norms regarding healing or community support.²⁷ Merely establishing substance abuse or nonconforming social behavior, without testimony explaining why this conduct is believed by the Tribe's members to be harmful to the child, cannot prove the likelihood of harm beyond a reasonable doubt.²⁸

*5 The guardian ad litem asserts that when the designated head of the tribal government unequivocally states that the parents are not meeting the Tribe's expectations, the court requires no further granular cultural details to reach a legal conclusion favoring termination. This argument misapprehends what ICWA requires. The statute requires the cultural expert to proactively contextualize the parent's behavior within the culture to prevent ethnocentric bias by the state court.²⁹ If a cultural witness is merely expected to cast an up-or-down vote on whether the Tribe supports termination, without providing the underlying cultural knowledge and social standards that inform that conclusion, the state court is deprived of the context ICWA was enacted to guarantee.

When an expert possesses detailed, firsthand information about the family's engagement with the tribe, linking parental conduct to cultural standards may be straightforward. However, when an expert lacks such detailed personal knowledge, establishing the proper foundation for the expert cultural opinion becomes critical. Ultimately, the testimony must give the judge enough information about tribal cultural standards and social practices so that the judge can accurately assess whether the parent's behavior is likely to seriously harm the child. It is not enough to merely relay the tribe's view that the parent's behavior is harmful.

For the foregoing reasons, we conclude that notwithstanding the qualifications of the cultural expert witness in this case, the testimony in the record was legally insufficient under ICWA.³⁰

V. CONCLUSION

We REVERSE and REMAND for proceedings consistent with this opinion.

PATE, Justice, dissenting.

PATE, Justice, dissenting.

I respectfully dissent because I am satisfied that the cultural expert's testimony, although sparse, provided the superior court with sufficient information both to accurately assess whether Viva's conduct was likely to result in serious emotional or physical damage to Raleigh and to ensure that its decision to terminate was not based on a “white, middle-class standard.”¹ While I agree with the court's observation that the circumstances here fall somewhere between Clark J.² and Cissy A.³ in terms of the sufficiency of cultural expert testimony, I disagree with the conclusion that this case lands closer on the spectrum to Cissy A. than it does to Clark J.

The root of the problem in Cissy A. was that the cultural experts were effectively given second-class treatment in comparison to the other experts in the consolidated cases. For example, in Cissy A., a child welfare expert was given ample opportunity to review hundreds of pages of records, whereas the cultural expert in the same case “was only able to review the material for ten minutes before testifying,” in part because she did not receive the materials until the evening prior.⁴ The cultural expert was then asked only two substantive questions on direct examination such as “whether the Tribe's ‘cultural norms, traditions, or values’ included substance use, domestic violence, or neglect.”⁵ Two other cultural experts in a separate trial were similarly not given adequate time to prepare, with one expert stating that she “had not been provided any documentation to review about the family before testifying.”⁶ These cultural experts were then asked only “a handful of substantive questions” such as whether they had any concerns about the children being removed;⁷ one expert indicated that she needed more information before she could answer that question.⁸ Because the cultural experts in Cissy A. were given insufficient time to review the information, they were forced to “discuss tribal practices in very general terms that were not helpful to the superior court,” such as “predictably indicat[ing]” that substance abuse and domestic violence are not within the cultural values of the tribe.⁹

*6 In contrast to Cissy A. — and closer in line with Clark J. — the cultural expert in this case was provided sufficient opportunity to review relevant records prior to his testimony.¹⁰ Similar to the circumstances in Clark J.,¹¹ OCS took steps to make sure that the cultural expert here had access to the records, specifically by mailing them after the expert informed the agency that he was unable to open the attachments in the first attempted delivery.

And although the questions OCS posed to the cultural expert here could have been more probing and certainly would have benefited from the use of hypotheticals, they were unlike the “superficial” questions with predictable answers in Cissy A.¹² For example, here OCS asked whether the parents’ behaviors were “consistent with the cultural norms” of the Tribe, sought the expert's “cultural perspective on the safety risks for this toddler given the substance use,” and queried whether the expert “observe[d] the parents ... meeting the expectations that would ... come from the Tribe.” Furthermore, on cross-examination, the cultural expert provided additional context by explaining that the Tribe prefers “the parent ... to raise their children,” but that in a situation such as this, “the child's safety is more preferable to us as Tribal Council members.”

The court appears to imply that the cultural expert failed to provide helpful cultural context in his response to the question of “whether the parents’ behaviors were consistent with the cultural norms” of the Tribe. The expert answered, “I don't believe they are consistent since they do not live in the Native Village [ ] area .... I believe they're in Anchorage or somewhere near Anchorage.” In my view, it is reasonable to interpret this response as an explanation that the parents’ absence from the village meant that they did not have the benefit of the network of tribal support that might otherwise minimize the likelihood of serious emotional or physical damage to their child. When considered in the context of the case as a whole — including the expert's testimony that Viva suffered from substance abuse, was “not cooperating with the rehabilitation,” and was not meeting expectations that would come from the Tribe — I believe the expert's response helped inform the superior court as to the prevailing social and cultural standards of the Tribe.

Admittedly, unlike Clark J., the cultural expert here did not have the records in his physical possession during his testimony. But this distinction does not convince me that the testimony here was insufficient to meet our standard for cultural expert testimony under ICWA.

Finally, while I agree with the court that whether cultural expert testimony satisfies ICWA is a question of law that we review de novo, it is important to bear in mind that we review underlying factual determinations for clear error.¹³ And I am concerned that the court's opinion might unintentionally disregard the deference we owe to the trial court in this regard. I question whether the court is making determinations of a factual nature that were implicitly decided by the superior court. Specifically, is the court deciding here that the cultural expert was not provided with adequate time to review the record, that he was not familiar with the case, and that his testimony was vague and generalized? It is not surprising to me that the superior court did not enter express findings on these questions because Viva failed to argue to the superior court that the cultural expert's testimony was deficient. Accordingly, I also question whether plain error is the appropriate standard of review.¹⁴

*7 I respectfully dissent and would affirm the superior court's termination of parental rights.

Footnotes

1

25 U.S.C. § 1912(f); CINA Rule 18(c)(4).

2

We use pseudonyms for all family members.

3

The case is governed by ICWA because Raleigh is an Indian child and a member of a Tribe. 25 U.S.C. § 1903(4). We do not identify the Tribe to protect the privacy of the parties.

4

25 U.S.C. § 1912(f); CINA Rule 18(c)(4).

5

See 25 U.S.C. § 1912(f).

6

The superior court also terminated the father's rights for the additional reason of abandonment. AS 47.10.011(6), (10). The father does not participate in this appeal.

7

Walker E. v. State, Dep't of Health & Soc. Servs., Off. of Child.’s Servs., 480 P.3d 598, 606 (Alaska 2021) (“[W]hether the superior court's findings and the expert testimony presented at trial satisfy the requirements of ICWA is a legal question.” (citing Eva H. v. State, Dep't of Health & Soc. Servs., Off. of Child.’s Servs., 436 P.3d 1050 (Alaska 2019) (abrogated on other grounds in State v. Cissy A., 513 P.3d 999 (Alaska 2022))); see also Marcia V. v. State, 201 P.3d 496, 502 (Alaska 2009) (“The question of whether an expert's testimony presented at trial is sufficient pursuant to ICWA is a legal question, which we review de novo.”) (citing E.A. v. State Div. of Fam. and Youth Servs., 46 P.3d 986, 989 (Alaska 2002) (“Whether expert testimony satisfies ICWA requirements is a pure legal question.”)). See 25 U.S.C. § 1912(f).

8

Marcia V., 201 P.3d 496 at 508 (assessing whether the record establishes beyond a reasonable doubt that returning the child to the parent will likely cause serious harm).

9

25 U.S.C. § 1912(f); CINA Rule 18(c)(4).

10

25 U.S.C. § 1912(f).

11

Walker E. v. Dep't of Health & Soc. Servs., Off. of Child.’s Servs., 480 P.3d 598, 610 (Alaska 2021) (citing Eva H. v. Dep't of Health & Soc. Servs., Off. of Child.’s Servs., 436 P.3d 1050, 1054 (Alaska 2019)); see also 25 C.F.R. § 23.121(c).

12

25 C.F.R. § 23.122(a); Cissy A., 513 P.3d at 1012 (noting that “the BIA's express purpose for including a cultural expert testimony provision in the binding BIA Regulations — to ensure that ICWA decisions are not based on a “white, middle-class standard” — further supports viewing cultural expert testimony as a default requirement rather than a mere suggestion.”).

13

Cissy A., 513 P.3d at 1018.

14

In evaluating the bookends of cultural expert testimony – both what is and what is not sufficient under ICWA – our analysis relies on two unpublished cases. As these are unpublished decisions, they are not binding precedent. See Alaska App. R. 214(d). We do not suggest that the evidence must in all cases meet the facts of these unpublished cases.

15

No. S-18879, 2024 WL 3520072, at *7 (Alaska July 24, 2024).

16

No. S-18394, 2023 WL 8618749, at *9-10 (Alaska Dec. 13, 2023).

17

Id. at *10.

18

Id.

19

Id.

20

Id.

21

Id

22

Id

23

See id.

24

See State v. Cissy A., 513 P.3d 999, 1017-18 (Alaska 2022).

25

Id. at 1018-19.

26

See id. at 1010, 1018.

27

See Orin W., 2023 WL 8618749, *10-11.

28

See Cissy A. 513 P.3d at 1016-18; CINA Rule 18(c)(4); 25 U.S.C. § 1912(f).

29

See CINA Rule 18(c)(4); 25 U.S.C. § 1912(f); Cissy A., 513 P.3d at 1010, 1016-18.

30

Because we reverse the termination of parental rights, we need not address Viva's argument that the court erred in denying her request for post-termination contact with Raleigh.

1

State, Dep't of Health & Soc. Servs., Off. of Child.’s Servs. v. Cissy A., 513 P.3d 999, 1012 (Alaska 2022) (quoting Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38778, 38829 (June 14, 2016)).

2

Clark J. v. State, Dep't of Fam. & Cmty. Servs., Off. of Child.’s Servs., No. S-18879, 2024 WL 3520072 (Alaska July 24, 2024).

3

513 P.3d 999.

4

Id. at 1004-05.

5

Id. at 1005.

6

Id. at 1007.

7

Id.

8

See id.

9

Id. at 1018.

10

See id. at 1005, 1007; Clark J. v. State, Dep't of Fam. & Cmty. Servs., Off. of Child.’s Servs., No. S-18879, 2024 WL 3520072, at *6 (Alaska July 24, 2024).

11

Clark J., 2024 WL 3520072, at *2.

12

See Cissy A., 513 P.3d at 1018.

13

See id. at 1016 (reviewing superior court's findings that cultural expert testimony was too vague and generalized for clear error); Pravat P. v. State, Dep't of Health & Soc. Servs., Off. of Child.’s Servs., 249 P.3d 264, 269, 273-74 (Alaska 2011) (explaining that we review factual determinations for clear error and defer to trial court on credibility determinations, particularly when determinations are made based on oral testimony).

14

See Lucy J. v. State, Dep't of Health & Soc. Servs., Off. of Child.’s Servs., 244 P.3d 1099, 1111, 1118 (Alaska 2010) (reviewing issues not raised in CINA trial only for plain error on appeal).

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