Expert Witness Testimony on Mental Injury to a Child

Facts of the Case

The Office of Children's Services (OCS) in Alaska received a report in 2016 alleging that a child had been physically and sexually abused by his mother, Cora G., and neglected by his father, Justin D. (both pseudonyms). The OCS initially removed the child from the mother's care and placed him with his father. A superior court denied visitation with Ms. G.; upon discovering that the father had taken the child to see her, the OCS later removed the child from the father's care, which was upheld in court. The father subsequently moved out of Alaska for work and allegedly maintained little to no contact with the child for a period of time. The child was seen by at least two therapists, who identified behavioral concerns potentially related to trauma and expressed concern about child visitation with Ms. G.

In 2018, the OCS filed a petition to terminate parental rights to the child. During a termination trial, the child's second therapist, who was unlicensed but held a master's degree in marriage and family therapy, testified that the child had demonstrated adverse reactions regarding visitation with Ms. G. Based in part on results of a neuropsychologist's evaluation of the child, the therapist also testified that she had diagnosed the child with mental disorders including acute stress disorder and reactive attachment disorder. The OCS did not expressly offer this therapist as an expert witness or request to qualify her as an expert witness on these matters. According to Alaska Stat. § 47.10.011(8) (1998), a court may find a child in need of aid (CINA) if the conduct or conditions created by parents have resulted in mental injury to a child. The superior court ordered termination of parental rights, finding that the child was in need of aid under this mental injury provision. The parents appealed the decision, including a challenge that the court did not qualify an expert witness to support the mental injury finding.

Ruling and Reasoning

The Alaska Supreme Court vacated the superior court's termination order of parental rights and remanded the case for further proceedings. The court pointed out that trial courts often have discretion about whether qualified expert witness testimony is indicated in criminal or civil cases but statutes may delineate expert witness requirements for specific cases. An Alaska CINA statute required that the existence of a mental injury to a child must be “supported by the opinion of a qualified expert witness” (Alaska Stat. § 47.17.290(10) (2019)).

As noted by the court, the statute did not define whether “qualified” referred to a witness's professional background and experience, as opposed to formal qualification of an expert witness by the trial court. After reviewing materials, including legislator statements and committee reports, to determine legislative intent, the court inferred that the language of a “qualified expert witness” in the Alaska CINA statute was derived from the federal Indian Child Welfare Act (ICWA; 25 U.S.C. §§ 1901–1963 (1978)).

The court examined conflicting case law from Montana (In re K.H., 981 P.2d 1190 (Mont. 1999)) and Arkansas (Howell v. Arkansas Department of Human Services, 517 S.W.3d 431 (Ark. Ct. App. 2017)). In the Montana case, the Montana Supreme Court reversed termination of a mother's parental rights, concluding that the burden under the ICWA fell upon the state to produce expert witness testimony in these cases. By comparison, in the Arkansas case, an intermediate appellate court concluded that a mother had not objected to an ICWA's expert witness qualifications in trial court and therefore could not raise this challenge on appeal. The Alaska Supreme Court supported the analysis in the Montana decision and held that, “in this limited context of a judge-tried CINA matter, it is legal error for a trial court not to expressly qualify an expert witness to testify about a child's mental injury under Alaska Stat. § 47.10.011(8)(A) and Alaska Stat. § 47.17.290(10)” (Cora G., p 1285).

Applying such reasoning to this case, the court noted that the child's second therapist who testified at the termination trial had not been qualified as an expert witness. Although the superior court relied on other evidence, such as a neuropsychologist's written report, the Alaska Supreme Court noted that the CINA statute required qualified expert witness opinion for a mental injury finding and that nontestimonial statements did not fulfill this requirement. The court added that, while the therapist held a master's degree in marriage and family therapy, she was unlicensed and there was “no ready indication she could have been qualified as an expert for diagnosing complex mental injury to a child or opining on the cause of such an injury” (Cora G., p 1287). Absent qualified expert witness opinion on the matter, the court could not “conclude that the superior court's finding that [the child] had a mental injury caused by parental conduct or conditions, rather than congenital conditions, is sound” (Cora G., p 1288).

Dissent

Chief Justice Bolger wrote a dissenting opinion, stating that the court had misinterpreted the meaning of a “qualified” expert witness. Referring to Alaska Evidence Rule 702, he wrote that a witness becomes “qualified” as a result of factors including knowledge, training, and experience, as opposed to a requirement for affirmative qualification in open court. Citing prior cases in Alaska, he wrote, “If the opposing party believes that a witness is not properly qualified, then that party must raise an objection to the witness's expert testimony when it is offered” (Cora G., p 1289).