author: KONENKAMP, Justice.

text:
    2005 SD 3
    The PEOPLE of the State of South Dakota in the Interest of J.S.B., JR., Minor Child and Concerning J.S.B., Sr. and O.L.J., Respondents.
    No. 22907.
    Supreme Court of South Dakota.
    Considered on Briefs on June 1, 2004.
    Decided Jan. 05, 2005.

      Jennifer Coleman, Dakota Plains Legal Services, Rapid City, South Dakota, Attorney for appellant Father, J.S.B., Sr.

      Lawrence E. Long, Attorney General, Ann Holzhauser, Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for appel-lee State of South Dakota.
    B.J. Jones, Attorney for Oglala Sioux Tribe, Grand Forks, North Dakota, Attorney for Intervenor Oglala Sioux Tribe.
    Thomas J. Van Norman, Senior Tribal Attorney, Cheyenne River Sioux Tribe, Eagle Butte, South Dakota, Attorney for Intervenor appellee Cheyenne River Sioux Tribe.
   KONENKAMP, Justice.

[¶ 1.] Under the Adoption and Safe Families Act (ASFA), enacted in 1997, “reasonable efforts” to reunify a family are not required before termination of parental rights when a parent has a pattern of abusive or neglectful behavior constituting an aggravated circumstance. On the other hand, the Indian Child Welfare Act (ICWA), enacted in 1978, provides special rules for the needs of Indian children and families. ICWA requires “active efforts” to reunite families before a parent’s rights may be terminated. In this abuse and neglect case, the father, a member of a federally recognized Indian tribe, appeals the termination of his parental rights. During the proceedings, the trial court ruled that ASFA “preempts” the requirements of ICWA, such that “active efforts” were not required in the circumstances. We conclude that ASFA does not override the requirements of ICWA. We affirm the termination of parental rights, however, because despite the court’s erroneous ruling, the record reflects that the Department of Social Services (DSS) continued to provide “active efforts” to reunify the family, but such efforts were unsuccessful. '

Background

[¶ 2.] J.S.B. was born on December 16, 1999. With both his parents being Native American, he is eligible for enrollment in the_ Oglala Sioux Tribe (OST), or the Cheyenne River Sioux .Tribe (CRST). -In July 2000, J.S.B.’s mother and father had an altercation. A deputy was dispatched to the home with a protection order that the mother had obtained against the father. The father told the deputy and a social worker that the mother was smoking marijuana daily, including during her pregnancies, and that the mother had marijuana in the home. J.S.B. was taken into custody and placed in foster care with DSS.

[¶ 3.] A subsequent investigation confirmed that the mother had been using both marijuana and alcohol and that the father had left J.S.B. in the mother’s care. The investigation also revealed past occurrences of domestic violence and chemical dependency. An adjudicatory hearing was held on August 31, 2000. J.S.B. was found abused and neglected through the acts and omissions of both the mother and the father.

[¶ 4.] J.S.B. remained in foster care until December 4, 2000. On that date, he was returned to the physical custody of his father. DSS provided various services to the father, including anger management classes and parenting lessons. Full legal custody,of the child was given to the father in June 2001.

[¶ 5.] In the next year, the father cared for his child, purchased a home, gave the mother visitation rights, and was gainfully employed. He took J.S.B. to sweats and sun dances, ensuring that his child became acquainted with tribal ways and ceremonies. In November 2001, the father was arrested for a domestic assault. The incident appeared to involve alcohol. In April 2002, the father was again arrested, this time for DUI. Finally, in June 2002, DSS took J.S.B. -into custody when the father was found highly intoxicated and walking down the street with the child lagging 60 or 70 feet behind him. He was yelling at J.S.B., age' two, to keep up with him.

[¶ 6.] Following the father’s arrest, the records show the following contacts:

• On June 3, 2002, a social worker informed the father of the importance of getting a chemical dependency evaluation and also discussed ASFA with him. The worker encouraged the father to remain in touch with her.
• On June 5, 2002, the father left a phone message for the social worker asking that she contact him. The next day, the worker attempted to contact the father, but was unable to reach him. Instead, the worker left a message with the father’s employer asking that he return her call.
• On June 7, 2002, the father’s attorney told the worker that the father had received permission for supervised visits with J.S.B. The worker agreed to set up the visits and requested that the father come to her office and work out a schedule.
• On June 21, 2002, the father contacted the worker. He told the worker that he was unhappy with the worker’s attempts to find a suitable placement for J.S.B. The worker asked the father why he had not attempted to contact her. He responded by questioning why the worker had not attempted to contact him. The worker stated that she had made several attempts to contact him at his place of employment and a companion’s home, but was unsuccessful. He then told the worker that he wanted the case transferred to tribal authorities. The worker responded that the issue was not within her authority to decide.
• On July 15, 2002, the worker stopped by the father’s home address. He was not home.
• On July 17, 2002, the worker visited the father’s place of employment. However, the worker was informed that the father was no longer an employee. ’ That same day the worker also asked the mother if she was aware of the father’s whereabouts.
• On July 18, 2002, a hearing was held. The father did not attend.
• On July 22, 2002, the father’s attorney notified the social worker that the father had agreed to complete a chemical dependency evaluation. The worker requested that the father contact her.

[¶ 7.] An abuse and neglect petition was .filed in August 2002. The petition alleged that ASFA applied because of a documented history of abuse and neglect associated with chronic alcohol and drug abuse and a prior neglect adjudication of J.S.B. The petition asked that DSS be relieved from providing further “reasonable” or “active” efforts to reunite the father and J.S.B. An advisory hearing was held on August 26, 2002. The father did not attend the hearing. Notice was then served on him by publication, and a second advisory hearing took place on September 16, 2002. Because the father again failed to appear, his default was deemed an admission to the petition. The trial court found that DSS had made “reasonable” and “active” efforts to reunite J.S.B. with the father by providing remedial services and rehabilitative programs. By order entered on September 16, 2002, J.S.B. was found to be abused and neglected by the father.

[¶8.] In early November 2002,'the social worker spoke with the mother who informed her that the father was likely incarcerated. As a result, on November 14, 2002, the worker contacted the jail and learned that the father was indeed an inmate. That same day, the worker contacted the father’s attorney who gave her a brief synopsis of the father’s situation. The father attempted to contact the social worker on November 21, 2002. On November 22, 2002, the father contacted the worker.

[¶ 9.] In a hearing on December 2, 2002, the trial court ruled that DSS “has made reasonable efforts to reunite the minor child with his parents and will continue to do so[J” The court also found that DSS “has made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family[.]” Lastly, the court concluded that ASFA “applies and [DSS] is under no obligation to provide services to try and reunite the minor child with his parents.”

[¶ 10.] Final disposition hearings were held on April 15 and May 12, 2003. During these hearings, witnesses were presented by all parties. On the second day of the hearings, an attorney from the CRST appeared and moved to intervene. The trial court granted the motion. Then the CRST moved to transfer the proceedings to tribal court. The circuit court denied the motion as untimely. Finally, the tribe’s attorney asked whether she would be allowed to cross-examine witnesses. The trial court resppnded, “Probably not.” With that, the attorney said, “There’s probably no point in me remaining then,” and left. At the conclusion of the hearing, the trial court ruled that ASFA applied to the case and found that DSS made “reasonable” and “active” efforts to reunite the family before the December 2, 2002 ASFA ruling. The court terminated the parental rights of both parents.

[¶ 11.] In this appeal, the father asserts that the circuit court erred (1) in holding that ASFA overrules the provisions of ICWA; (2) in concluding that DSS had made active efforts; and (3) in finding that the least restrictive alternative available was termination of the father’s parental rights. In addition,, the intervenors, OST and CRST, join the father on Issue I, and contend, in addition, that the trial court erred when it permitted the CRST to intervene in the proceeding below, but prevented it from participating in the final dispositional hearing.

Analysis and Decision

[¶ 12.] Because statutory interpretation is a legal question, our review is de novo. City of Rapid City v. Pennington County, 2003 SD 106, ¶ 5, 669 N.W.2d 120, 121. Under de novo review, we give no deference to a circuit court’s conclusions of law. Bozied v. City of Brookings, 2001 SD 150, ¶ 8, 638 N.W.2d 264, 268. However, when we review findings of fact, we give considerable deference to the trial court. SDCL 15-6-52(a). Only when a finding of fact is clearly erroneous will we conclude that the trial court erred. A finding is clearly erroneous when we are left with a définite and firm conviction that a mistake has been made. In re T.H., 396 N.W.2d 145, 148 (S.D.1986).

ICWA and ASFA

[¶ 13.] In 1978, Congress enacted the Indian Child Welfare Act (ICWA) after concluding that (1) it “has plenary power over Indian affairs;” (2) it “has assumed the responsibility for the protection and preservation of Indian tribes and their resources;” and (3) “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.” 25 U.S.C. § 1901 (1978). Congress had a particular concern with the disproportionately higher rates of parental terminations with Indian families caused by an insensitivity to “Indian cultural values and social norms[,]” leading to misevaluations of parenting skills and to unequal considerations of such matters as parental alcohol abuse. American Indian Law Deskbook, p. 463 (3rd ed. 2004) (quoting H.R. Rep. No. 95-1386, at 10 (1978), reprinted in 1978 USCCAN 7530, 7532); see also 25 U.S.C. § 1901(4) (1978).

[¶ 14.] The declared policy of ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902 (1978) (emphasis added). This policy acknowledges that Indian children should retain familial, tribal, and cultural ties. As noted in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), in enacting ICWA, Congress recognized that placement of Indian children in non-Indian homes was not in their best interests. The Court cited Dr. Joseph Wester-meyer’s testimony:

“[Indian children] were raised with a white cultural and social identity. They are raised in a white home. They attended, [sic] predominantly white schools, and in almost all cases, attended a church that was predominantly white, and really came to understand very little about Indian culture, Indian behavior, and had virtually no viable Indian, identity. They- can recall such things as seeing cowboys and Indians on TV and feeling that Indians were a . historical figure but were not a viable contemporary social group.”
“Then during adolescence, they found that society was not to grant them the white identity that they had. They began to find this out in a number of ways. For example, a universal experience was that when they began to date white children, the parents of the white youngsters were against this, and there were pressures among white children from the parents not to date these Indian children....”
“The other experience was derogatory name calling in relation- to their racial identity-”
“[T]hey were finding that society was putting on them an identity which they didn’t possess and taking from them an identity that they did possess.”

Id. at 33 n. 1, 109 S.Ct. at 1600 n. 1 (internal citations omitted).

[¶ 15.] To ensure that the best interests of Indian children are protected, ICWA (1) establishes either exclusive or presumptive jurisdiction in tribal courts; (2) grants special intervention rights to Indian tribes; (3) mandates that before an Indian parent’s or custodian’s rights to a child can be terminated, a finding must be made that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful”; and (4) guarantees that no parental rights will be terminated without a finding beyond a reasonable doubt that “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1911(a) (1978); 25 USC § 1911(c) (1978); 25 U.S.C. § 1912(d) (1978); 25 U.S.C. § 1912(f) (1978); see generally 25 U.S.C. §§ 1901-1963 (1978).

[¶ 16.] The Adoption and Safe Families Act (ASFA) was enacted in 1997 as a response to congressional concerns that prior legislation “acted as a barrier to the adoption of abused and neglected children.” In re D.B., 2003 SD 113, ¶ 10, 670 N.W.2d 67, 70. Under ASFA, in considering reunification of parents with children, “ ‘the balancing formula should tip on the side of protecting children, and not on the side of protecting the rights of parents.’ ” Id.. (following New Jersey Div. of Youth and Family Serv. v. A.R.G., 361 N.J.Super. 46, 824 A.2d 213, 233 (N.J.Super.Ct.App.Div.2003)).

[¶ 17.] ICWA differs from ASFA in its means of promoting Indian children’s best interests. ICWA ensures the best interests of Indian children by maintaining their familial, tribal, and cultural ties. It seeks to prevent capricious severance of those ties, whereas ASFA identifies permanency as a major consideration in promoting the best interests of children. A further distinction between the two acts, and at issue here, is the requirement in ICWA that state agencies make “active” efforts to provide services aimed at the prevention of a family breakup. ICWA provides no exception to this mandate. On the other hand, in an attempt to assist states in increasing the speed with which children might achieve the desired goal of permanency, ASFA recognizes certain circumstances under which no “reasonable efforts” may be necessary. ASFA relieves states from making merely perfunctory remedial efforts in cases where a court has found that the parent has subjected the child to aggravated circumstances of abuse or neglect.

Does ASFA override ICWA?

[¶ 18.] The primary question hére is whether ICWA’s requirement to provide active efforts to prevent the breakup of Indian families is overridden or excused by the provisions of ASFA. The State argues that ASFA relieves DSS of any duty it held under ICWA to provide active efforts- to reunite J.S.B. with his father. This is so, the State argues, because ASFA provides that “reasonable efforts ... shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that ... the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need-not be limited to abandonment, torture, chronic abuse, and sexual abuse)[.]” 42 U.S.C. § 671(a)(15)(D). The State asserts that either the father “[h]as a documented history of abuse and neglect associated with chronic alcohol or drug abuse” or he “[h]as exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, and the child or another child has been removed from the parent’s custody because the removed child was adjudicated abused and neglected by a court on at least one previous occasion.” See SDCL 26-8A-21.1. Thus, the State argues, DSS was under no duty to make active efforts to provide remedial services to the father.

[¶ 19.] SDCL 26-8A-21.1 provides:
Nothing in § 26-8A-21. requires reunification of a child with a parent who:
(6) Has a documented history of abuse and neglect associated with chronic alcohol or drug abuse;
(7) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, and the child or another child has been removed from the parent’s custody because the removed child was adjudicated abused and neglected by a court on at least one previous occasion ....

[¶ 20.] SDCL 26-8A-21.1 states that nothing in SDCL 26-8A-21 requires reunification of a child with a parent where the delineated “aggravated circumstances” are present. However, the language of SDCL 26-8A-21.1 specifically limits application of the state-defined “aggravated circumstances” to SDCL 26-8A-21. In no way does the language of. SDCL 26-8A-21.1 relieve DSS of its burden to provide “active efforts” as prescribed by ICWA. In sum, while the presence of “aggravated circumstances” may eliminate the need to provide “reasonable efforts” under SDCL 26-8A-21, it does not remove DSS’s requirement to provide “active efforts” for reunification under ICWA.

[¶ 21.] If it is perhaps open to question whether our Legislature understood the terms “reasonable efforts” and “active efforts” to be interchangeable, we do not think Congress intended that ASFA’s “aggravated circumstances” should undo the State’s burden of providing “active efforts” under ICWA. Three rules of statutory construction dictate otherwise. See, e.g., Hartford, Underwriters Ins. Co. v. Union Planters Bank, N.A, 530 U.S. 1, 6, 120 S.Ct. 1942, 1947, 147 L.Ed.2d 1 (2000). First, ICWA clearly offers no exception to its requirement of “active efforts.” And ASFA does not mention ICWA, much less state that its exceptions to “reasonable efforts” should apply to ICWA’s “active efforts.” In fact, no provision in ASFA specifically purports to modify ICWA. It would seem illogical that ASFA would implicitly leave unchanged certain ICWA provisions, like notice to tribes, intervention, and transfer to tribal courts,, while modifying others. Second, the rules of statutory construction require that the more specific statute controls. In re T.H.M., 2002 SD 13, ¶7, 640 N.W.2d 68, 71. As between the two acts, ICWA is the more specific. ICWA deals with a discrete segment of our population, Native American families, who Congress found were best served by maintaining their relationships with their tribes and extended families. ICWA specifically imposes higher evidentiary standards and different protections for parents whose rights are subject to termination than do termination proceedings under state law. 25 U.S.C. § 1912(d) (“active efforts”) and § 1912(f) (proof “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.”). Third, when interpreting a statute pertaining to Indians, the United States Supreme Court has stated, “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit....” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 2403, 85 L.Ed.2d 753 (1985); See, e.g., Ramah Navajo Sch. Bd. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 838, 102 S.Ct. 3394, 3399, 73 L.Ed.2d 1174 (1982). As Congress found when it enacted ICWA, it is to the benefit of Indian children to remain within their families and only after “active efforts” to reunite those families have proven unsuccessful should the children be removed. 25 U.S.C. §§ 1901-1963 (1978).

[¶22.] The State argues that the Supreme Court of Alaska’s decision in J.S. v. State, 50 P.3d 388, 392 (Alaska 2002), lends support to the conclusion that ASFA modifies ICWA. In that case, however, the court wrote, “[although this case is not governed by ASFA, that act is useful in providing guidance to congressional policy on child welfare issues.” Id. As the court itself acknowledged, its remarks on this point were dicta. Moreover, we can find no case directly holding that ASFA modifies ICWA, and the parties have cited none. Nonetheless, to the extent that the decision in J.S. can be read to state that ASFA supersedes ICWA, we respectfully disagree with the Alaska Supreme Court.

[¶ 23.] Finally, our decision in the case of In re D.B. is distinguishable. 2003 SD 113,-670 N.W.2d 67. There, we explained that the Indian mother “did not object, present contradictory evidence, or in any way attempt to contest” the application of ASFA by the trial court. Id. ¶ 16. That was not the situation here. Because ASFA does not override ICWA, we conclude that the trial court erred in ruling that DSS was relieved of making “active efforts” to reunite J.S.B. with his father.

Were “Active Efforts” Provided?

[¶ 24.] On December 2, 2002, the circuit court ruled that DSS' “is under no obligation to provide services to try and reunite the minor child with his parents.” Six months later, the court ruled beyond a reasonable doubt in its final dispositional findings that, up until its ruling of December 2, DSS “made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.” We see no error in that ruling, as far as it goes. Furthermore, the court also ruled that the social worker “continued to provide services to respondent father after [its] ASFA ruling.” In fact, social worker Wendy Cummings testified that she made such efforts throughout the entire case, both before and after the court’s ruling of December 2. The father argues that these efforts were far short of the “active efforts” required by ICWA. Indeed, the trial court did not specifically find that these post December 2 efforts constituted “active efforts.” The State contends that these efforts were nonetheless “reasonable” and “active” and points to the father’s failure to cooperate with DSS as the primary reason that efforts were unsuccessful. Whether DSS complied with the “active efforts” requirement of ICWA is a mixed question of fact and law. E.A. v. State Div. of Family and Youth Services, 46 P.3d 986, 989 (Alaska 2002). Because we examine mixed questions of fact and law de novo, there is no need to remand this to the circuit court for additional findings. The circuit court found that the post December 2 services were provided. The question is whether they constituted “active efforts.”

[¶ 25.] Without question, between July 2002 and November 2002, the father’s whereabouts were unknown. DSS could not be required to provide remedial services and rehabilitative programs to an individual who had voluntarily absented himself and could not be located. The father later admitted that he had been on the reservation and had not contacted DSS. At the end of October, he was arrested in the Rapid City area. Through the mother, DSS learned that the father was in jail. A social worker confirmed with the jail that he was incarcerated there on November 14. He was to remain in jail in Rapid City until February 1, 2003. The father called the social worker twice while he was in jail.

[¶ 26.] On January 17, 2003, social worker Cummings met with the father in jail. Despite the circuit court’s earlier ruling that “active efforts” were no longer required because ASFA overrode ICWA, Cummings offered a Family Service Agreement to the father. At first, he refused to sign it. He insisted he did not have “any” problem with alcohol. As it had in the past, this latest Family Service Agreement provided that the father would undergo a chemical dependency evaluation and follow its recommendation and that Cummings would assist him with setting up services if he needed assistance. Before Cummings left the jail, both she and he signed it.

[¶ 27.] On February 10, 2003, only ten days after he had been released from jail, the father appeared at a review hearing on this case. He was intoxicated. A later test showed Ms alcohol level to have been .206. He began an outpatient treatment program in March, but failed to complete it because he said he wanted to work full time. The record reflects that he continued to drink, despite having an AA sponsor and having attended AA meetings. In fact, he admitted to having “two little sips” the Friday before the final dispositional hearing. Under the circumstances, we believe that the mutual Family Service Agreement signed by the father and by the social worker on behalf of DSS constituted “active efforts.” When such efforts prove to be “unsuccessful,” they are no longer required. 25 U.S.C. § 1912(d).

[¶ 28.] Aside from not making the requisite finding of “active efforts” after December 2, the circuit court’s actions complied with ICWA in every other respect. The court received a qualified expert opinion that continued custody of J.S.B. by his father or mother was “likely to result in serious emotional or physical damage to the child.” The court found beyond a reasonable doubt that the “active efforts” DSS provided before December 2 were unsuccessful. It also concluded that termination of the parents’ rights was the least restrictive alternative available, and that continued custody of the child by either parent was likely to result in serious emotional or physical damage to the child.

[¶ 29.] In conclusion, although the circuit court erroneously ruled that ASFA’s aggravated circumstances eliminated the need to provide active efforts to reunite the father with his son after December 2, 2002, the fact is that DSS continued to make those efforts. Under ICWA, DSS was bound by law to make “active efforts” to reunite J.S.B with his father, but it was not required to persist with futile efforts. In re S.D., 236 Mich.App. 240, 599 N.W.2d 772, 775 n. 3 (Mich.Ct.App.1999). Considering that DSS worked with the parents for several years, that J.S.B had been removed from their custody three times because of substance abuse related neglect, that the child has been in foster care for much of his life, and that both parents continued their debilitating substance abuse, termination of parental rights was the least restrictive alternative available and in the best interests of J.S.B.

[¶ 30.] Affirmed.

[¶ 31.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . DSS contacted the mother and gave her physical custody of the child. She was arrested and sentenced to jail for DUI in September 2002. DSS then placed the child in foster care.

      . CRST has not appealed this ruling.

      . The mother has not appealed this decision.

      .Although we conclude that it was error for the circuit court not to permit an intervenor to participate in examining witnesses, we conclude that no prejudice has been shown. SDCL 15-6-61.

      . SDCL 26-8A-21 provides:
      The Department of Social Services shall make reasonable efforts prior to the removal of an alleged or adjudicated abused or neglected child from the home of the child's parents, guardian, or custodian to prevent or eliminate the need for removal of the child. If the child has been removed from the home and has been placed in temporary custody of the department, the department shall make reasonable efforts to make it possible for the child to return to the home of the child's parents, guardian, or custodian. If the child is to be or has been removed from the home, the court shall first make a judicial determination that removal of the child from the home is or was necessary because continued presence of the child in the home would be contrary to the welfare of the child and that reasonable efforts by the department to avoid removal of the child from the home have been made. If the child has been removed from the home and has hot been returned to the home, the court shall first make a judicial determination that reasonable efforts have been made by the department to return the child to the home and that the child cannot be returned to the home because it would be • contrary to the welfare of the child.
      Reasonable efforts to prevent the necessity for removal of a child from the home of the child’s parents, guardian, or custodian and reasonable efforts to return the child to the home mean provision by the department of any assistance or services that:
      (1) Are appropriate for the child’s parents, guardian, custodian, or any other caretaker family of the child existing at the time of
      ' removal or possible return of the child, including instruction on parenting;
      (2) Are available pursuant to the comprehensive plan of preventive services of the department;
      (3) Could be made available without undue financial burden on the department; or
      (4) Would have a significant likelihood of protecting the child from substantial danger to the child's physical health or from severe emotional damage while enabling the child to remain in the home or to be returned to the home.
      In determining the adequacy of reasonable efforts, the court shall consider the assistance, services, and efforts of the department. The court shall also consider the good faith efforts or the lack of good faith efforts made by the child's parents, guardian, custodian, or other caretaker family to cooperate with the department and to effectively utilize the assistance or services for the benefit and welfare of the child.

        Id.

        . ASFA does not prohibit States from making active or reasonable efforts to reunify families. ASFA states that "reasonable efforts ... shall not he required to be made” where, among other things, State defined "aggravated circumstances” exist. 42 U.S.C. § 671(a)(15)(D) (emphasis added). Such language does not preclude laws requiring active or reasonable efforts at the State’s discretion.

      . Though not binding authority on this Court, the federal agency charged with implementing ASFA explains that "[a]lthough we can affirm that States must comply with ICWA and that nothing in this regulation supersedes ICWA requirements, we cannot expound on ICWA requirements since they fall outside of our statutory authority.” Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020, 4029 (Jan. 25, 2000) (codified at 45 CFR §§ 1355-1357 (2000)). See Sheri L. Hazeltine, Speedy Termination of Alaska Native Parental Rights: The 1998 Changes to Alaska’s Child in Need of Aid Statutes and Their Inherent Conflict with the Mandates of the Federal Indian Child Welfare Act, 19 ALASKA L. REV. 57, 68 n. 67 (2002).

      . The State concedes that “a finding that DSS is relieved from making 'active efforts' as to the offending parent would not necessarily relieve DSS from its obligation to make 'active efforts' as to the Indian family nor would the finding relieve DSS from efforts to place the child with members of the child’s extended family, members of the 'child's tribe, or other Indian families as required by the placement preferences under ICWA, thereby maintaining the child's contacts with his tribe and culture.” Indeed, in accord with ICWA, J.S.B. was placed with the mother's Native American sister on March 31, 2003.

      . He had last successfully completed alcohol treatment in 1986.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. SABERS, Justice ZINTER, Justice

license: Public Domain

text:
    2005 SD 4
    The PEOPLE of the State of South Dakota in the Interest of M.H., L.U.H., W.H., Jr., L.S.H., and T.H., Minor Children, Concerning T.R.T., W.H., Sr., and M.M., Respondents.
    Nos. 23092, 23093.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 23, 2004.
    Decided Jan. 5, 2005.

      Jason Adams of Office of the Minnehaha Co., Public Defender, Sioux Falls, South Dakota, Attorney for appellant, Mother, T.R.T.
    Julie Hofer of Hofer Law Office, Sioux Falls, South Dakota, Attorneys for appellant, Father, W.H., Sr.
    Tara L. Glasford of Abourezk Law Offices, Sioux Falls, South Dakota, Attorneys for appellee, minor children.
    Lawrence E. Long, Attorney General, David W. Siebrasse, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee, State of South Dakota.
    Thomas J. Van Norman, Senior Tribal Attorney, Eagle Butte, SD, Attorney for appellee, Cheyenne River Sioux Tribe.
   GILBERTSON, Chief Justice.

[¶ 1.] In this consolidated appeal, mother, father and the Cheyenne River Sioux Tribe (CRST) appeal a judgment terminating parental rights arguing the provisions of the Indian Child Welfare Act (ICWA) were not followed in the proceeding below. We reverse and remand.

FACTS-

[¶ 2.] On July 10, 2002, a petition was filed by the State of South Dakota alleging M.H. (born July 16, 1993), W.H. Jr. (born June 15, 1994), L.H. (born July 31, 1995), L.H. (born March 8, 1999) and T.H. (born July 14, 2001) were abused and neglected children. T.R.T. (mother) is the maternal parent of these children. W.H., Sr. (father) is the paternal parent of L.H., L.H., M.H. and W.H. Jr. T.H.’s paternal parent did not appear in this matter and is not a party to this appeal. These children are Native American children and ICWA is applicable in this case. After receiving notification of this matter, as required by the ICWA, CRST intervened and participated in the hearings below.

[¶ 3.] The impetus for this action occurred on June 14, 2002, when law enforcement was dispatched to the parents’ home for a domestic dispute. Law enforcement discovered father extremely intoxicated and disoriented. Mother and two other adult males were also present and intoxicated. The children were extremely dirty and one child had a soiled diaper with fecal matter over his body. The youngest child was on a table amidst open and empty beer cans, cigarette butts and raw meat. W.H., Jr. was eating a raw bratwurst. The entire home was filthy. There were beer cans strewn about the apartment, a broken mirror on the kitchen counter and soiled diapers on the floor.

[¶4.] This was not the first allegation of inappropriate parenting of these children. M.H. had previously been placed in protective custody when he received skull fractures and the parents gave conflicting stories as to the cause of the injuries. W.H., Jr. suffered a broken leg in August of 1996 and the Department of Social Services (DSS) became involved in monitoring the family. There were also missed medical appointments relating to W.H. Jr. that resulted in referrals to DSS. In December 1997, the children were placed in the custody of DSS when mother was in jail and father was intoxicated while caring for the children. In May 1999, the children were found unsupervised while the parents were intoxicated. In December 2000, mother was arrested for assaulting father.

[¶ 5.] Mother and father stipulated that the children were abused and neglected. Mother signed a case service plan with DSS to address her parenting deficiencies. Mother agreed to complete a chemical dependency evaluation, however, it took her six months to eventually complete the evaluation and she did not follow through with the recommendations made by the "evaluator. In fact, mother continued to have problems with alcohol abuse during these proceedings and did not complete an alcohol treatment program as recommended. Though mother eventually completed parenting classes it took her six months to do so. Moreover, mother did not find adequate housing, did not complete anger management classes, failed to attend domestic violence support groups and continued to be a victim of domestic violence. There were also concerns regarding mother’s mental condition as she reported being depressed and suicidal.

[¶ 6.] Father also entered into a case service plan with DSS to improve his parenting skills. He completed outpatient alcohol treatment; however, he did not complete his aftercare or faithfully attend AA. Father failed to remain sober during the course of this proceeding. Despite having completed anger management classes, father continued to become involved in domestic abuse situations including an arrest for intentional damage to property and various other encounters with mother.

[¶ 7.] When the children were placed in foster care they had major dental problems, recurring problems with lice and M.H. and L.H. were academically behind. The testimony at trial indicated that the children thrived in foster care, had become more outgoing and were being exposed to their Native American culture. W.H. Jr. and L.H. were in Children’s Care Hospital due to their individualized needs. W.H., Jr. is diaper dependent and wears a helmet because of an unsteady gait. L.H. had recent heart surgery.

[¶ 8.] The trial court found that although reasonable and active efforts had been made to reunite the family termination was in the best interests of the children and supported by evidence beyond a reasonable doubt, including expert testimony, that continued custody would likely result in serious emotional or physical damage to the children.

ANALYSIS

ISSUE

[¶ 9.] Whether the trial court abused its discretion in determining qualified expert testimony as mandated by ICWA was presented prior to ordering termination of parental rights.

[¶ 10.] ICWA provides:

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.

25 U.S.C. § 1912(f) (emphasis added). However, ICWA does not define “qualified expert witness.” See id. Rather, we have recognized that the BIA has issued guidelines to aid in the determination of a “qualified expert witness” within the meaning of the act; though those guidelines do not have binding legislative effect and have never been formally adopted by this Court. In the Matter of S.D., K.C.H., and L.W., 402 N.W.2d 346, 349 (S.D.1987) (citing Guidelines. for State Courts 44 Fed. Reg. 67,584 at 67,593 (November 26,-1979)). Those guidelines indicate:

(a) Removal of an Indian child from his or her family must be based on competent testimony from one or moré experts qualified to speak specifically to the issue of whether continued custody b’y the parents or Indian custodian is likely to. result in serious physical or emotional damage to the child.
(b) Persons with the following, characteristics are most likely to meet • the requirements for a qualified expert witness for purposes of Indian child custody proceedings:
(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) A lay 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.

44 Fed.Reg. 67,584 at 67,593. Comparatively,

We do have firm guidance as to whom shall be expert witnesses in South Dakota: A witness is an expert witness and is qualified to give expert testimony if the judge finds that to perceive, know or understand the matter concerning which the witness is to testify, requires special knowledge, skill, experience or training and that the witness has the requisite special knowledge, skill, experience or training. The qualifications and competency of a witness to give opinion evidence is primarily in the discretion of the trial' court and his ruling in determining qualifications will not be disturbed unless there is no evidence that the witness had the qualifications of an expert or the trial court has proceeded upon erroneous legal standards.

Matter of K.A.B.E and K.B.E., 325 N.W.2d 840, 843-44 (S.D.1982). Consequently, the BIA guidelines help inform the court as to when the witness offered as an ICWA expert has “the requisite special knowledge, skill, experience or training” to assist the trial court. See id.

[¶ 11.] • “This testimony is to provide the court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias.” In re L.N.W., 457 N.W.2d 17, 18 (Iowa App. 1990). “The references to tribal customs, cultural standards, and tribal childrearing practices found in the first two subparts of the Guidelines help to define who can be considered a qualified ICWA expert under the third subpart.” Matter of K.H. and K.L.E., 294 Mont. 466, 981 P.2d 1190, 1196 (1999). “One of the problems the ICWA sought to correct was the failure of welfare workers to understand Indian culture and practices concerning the raising of children.” In re D.S., 577 N.E.2d 572, 576 (Ind.1991) (reversing for failure of trial court to inquire into expert witnesses’ qualifications relating to placement of Native American Indian children). “[E]x-perts should possess more than simply substantial education and experience in the area of their specialty. Rather, they should have expertise in, and substantial knowledge of, Native American families and their childrearing practices.” Matter of K.H. and K.L.E., 981 P.2d at 1193. Such testimony is a “prerequisite” to the termination of parental rights under ICWA. Id.

[¶ 12.] To fulfill this requirement the State offered the testimony of James Eirinberg as its sole ICWA expert. Eirin-berg was an attorney-at-law licensed in the State of South Dakota. Eirinberg worked for the Yankton Sioux Tribe from 1989 until 1997 as a tribal prosecutor or tribal defender. He dealt mostly with criminal cases though he also encountered some abuse and neglect cases in his work. Ei-rinberg also worked for the Ponca Tribe in Nebraska for three years as a tribal prosecutor for abuse and neglect cases. He doubled as the ICWA director for the tribe during that time. He worked for the Flandreau Santee Sioux Tribe as a special prosecutor for less than a year.

[¶ 13.] Both parents and the CRST objected to Eirinberg’s qualifications to render an opinion on whether returning these children to their parents would likely result in serious emotional or physical damage to the children as required by ICWA. The State maintains that Eirinberg is “a professional person having substantial education and experience in the area of his or her specialty” within the meaning of the BIA guidelines. However, the record in this matter indicates that while Eirinberg had substantial experience dealing with other Native American Tribes, particularly the Yankton Sioux, his contacts and knowledge of the CRST-were extremely limited. In this regal'd, the record reveals the following:

■ He had visited the CRST reservation on one occasion.
■ He was only aware of parental services offered by the Yankton Sioux or Ponca Tribes (neither involved in this proceeding).
■ He was unable to articulate the cultural or religious differences between the tribes he worked with and the CRST.
■ He was not able to identify the Lakota kinship structure or who was primarily responsible for raising the children in that structure.
■ He was unable to identify any services offered by the CRST

It is clear that Eirinberg’s testimony was wholly lacking any specifics concerning the CRST’s unique culture or the available tribal services to address the needs of these parents and children.

[¶ 14.] The focus of ICWA is not a generic reference to all Indian tribe’s in general. Congress established ICWA to not only protect the interests of Indian children but also to avoid a considerable weakening of “the tribe’s ability to assert its interest in its children.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (citing In re Adoption of Halloway, 732 P.2d 962, 969-970 (Utah 1986)) (emphasis added). “The ICWA thus, in the words of the House Report accompanying it, ‘seeks to protect the rights of the Indian child as an Indian and the' rights of the Indian community and tribe in retaining its children in its society.’ ” Id. at 37, 109 S.Ct. 1597. (emphasis added). This is because:

The protection of this tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents. This relationship between Indian tribes and' Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States.

Id. at 52, 109 S.Ct. 1597 (quoting In re Adoption of Halloway, 732 P.2d at 969-70).

[¶ 15.] An expert’s testimony is no more reliable than its foundation. See Interest of T.A., 2003 SD 56, ¶26, 663 N.W.2d 225, 234. It proves nothing without a supportive factual basis. It may prove little if only partially supported by a factual basis. Lien v. Class, 1998 SD 7, ¶ 23 n. 12, 574 N.W.2d 601, 610 n. 12 (citing Bridge v. Karl’s Inc., 538 N.W.2d 521, 525 (S.D.1995)). Given the lack of this necessary foundation, the trial court abused its discretion in determining Eirin-berg was a qualified expert witness under the ICWA.

[¶ 16.] The necessity of requiring compliance with the terms of ICWA is reflected in its purpose, to protect the tribal interest in its children, therefore, we must “remain vigilant because, in large part, the members of the tribe are its culture.” Matter of K.H. and K.L.E., 981 P.2d at 1195. This is in accord with the general legal doctrine that each tribe needs “to control their own internal relations, and ... preserve them own unique customs and social order.” Duro v. Reina, 495 U.S. 676, 685-86, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990)(overruled by legislative enactment). As the Montana Supreme Court aptly observed, this is “consistent with our responsibility to promote and protect the unique Indian cultures of our state for future generations.” Matter of K.H. and K.L.E., 981 P.2d at 1195. In the absence of qualified expert testimony supporting termination in the proceeding below the judgment of the trial court must be reversed and this matter remanded to the trial court.

[¶ 17.] Reversed and remanded.

[¶ 18.] GORS, Circuit Judge, for MEIERHENRY, Justice, disqualified.

[¶ 19.] KONENKAMP, Justice, and GORS, Circuit Judge, concur.

[¶ 20.] SABERS, Justice, concurs in result.

[¶ 21.] ZINTER, Justice, dissents.

SABERS, Justice

(concurring in result).

[¶ 22.] I concur in result only because the proposed expert admitted that he was not an expert as to the social and cultural standards and child rearing practices within the “Sioux culture.”

[¶ 23.] I submit his substantial expertise on Indian social, cultural and child rearing-practices of Native Americans generally is more than adequate to qualify as an expert in this case under these facts.

[¶ 24.] A review of the facts set forth in the majority opinion makes it clear that continued custody of these children by these parents would be likely to result in both serious emotional and physical damage:

Law enforcement discovered father extremely intoxicated and disoriented. Mother and two other adult males were also present and intoxicated. The children were extremely dirty and one child had a soiled diaper with fecal matter over this body. The youngest child was on a table amidst open and empty beer cans, cigarette butts and raw meat. W.H., Jr. was eating a raw bratwurst. The entire home was filthy. There were beer cans strewn about the apartment, a broken mirror on the kitchen counter and soiled diapers on the floor.
This was not the first allegation of inappropriate parenting of these children. M.H. had previously been placed in protective custody when he received skull fractures and the parents gave conflicting stories as to the cause of the injuries. W.H., Jr. suffered a broken leg in August of 1996 and the Department of Social Services (DSS) became involved in monitoring the family. There were also missed medical appointments relating to W.H., Jr. that resulted in referrals to DSS. In December 1997, the children were placed in the custody of DSS when mother was in jail and father was intoxicated while caring for the children. In May 1999, the children were found unsupervised while the parents were intoxicated. In December 2000, mother was arrested for assaulting father.
Mother and father stipulated that the children were abused and neglected.

Majority Opinion, ¶¶ 3-5.

[¶ 25.] This is child abuse and neglect and has more to do with intoxication than with any specific Native American or Sioux culture. Therefore, except for the admission of not being an expert within the Sioux culture, this case could have been affirmed.

ZINTER, Justice

(dissenting).

[¶ 26.] The trial court, in exercising its gatekeeping function under SDCL 19-15-2 (Rule 702), heard substantial (and conflicting) evidence of Eirinberg’s training and experience in Indian culture, community, and childrearing practices. Much of that evidence is not set forth in the majority and concurring opinions of the Court. See, e.g., infra, ¶¶ 28-32, 35-36. Because the Court does not acknowledge this other evidence of Eirinberg’s qualifications, because it does not consider all relevant cases, and because it fails to apply the abuse of discretion standard of review, I respectfully dissent.

Standard of Review

[¶ 27.] In determining the qualifications of a proposed ICWA expert, this Court is limited to the abuse of discretion standard of review. In re D.M., 2003 SD 49, ¶ 19, 661 N.W.2d 768, 773. See also, In re K.H., 294 Mont. 466, 981 P.2d 1190, 1193 (1999). Under that standard, “[t]he qualifications and competency of a witness to give opinion evidence [on ICWA issues] is primarily in the discretion of the trial court and [the trial court’s] ruling in determining qualifications will not be disturbed unless there is no evidence that the witness had the qualifications of an expert. ...” In re K.A.B.E., 325 N.W.2d 840, 844 (S.D.1982) (emphasis added) (citation omitted).

Evidence of Qualifications

[¶ 28.] There is substantial evidence, not mentioned in the Court’s opinion that establishes Eirinberg’s experience and knowledge of Indian culture, Indian family structure, and Indian childrearing practices. The record reflects that Eirinberg’s knowledge was developed over approximately fourteen years of work with Indian people in the area of child abuse and the ICWA. He began that work, almost exclusively with Indian tribes, in 1989. From 1989 to 1997, he was employed by the Yankton Sioux Tribe as a prosecutor and defense attorney in abuse and neglect, family, and juvenile cases. In that employment alone, he worked with between one thousand and two thousand Indians on the Reservation.

[¶ 29.] Eirinberg then spent the next three years working for the Ponca Tribe as that Tribe’s lawyer, representing abused and neglected children. He handled those cases in tribal and state court, intervening on behalf of the Tribe all over the country (sometimes making motions to transfer cases to tribal court). The trial court heard specific evidence that this employment required him to “review cases that came into the Tribe and work with various social workers for the Tribe to determine what was in the best interests of the Tribe and their children and represent their children in state courts when necessary.” During this same period of time, he was also the Ponca Tribe’s ICWA Specialist/Director, and he assisted in the preparation of that Tribe’s abuse and neglect code.

[¶ 30.] Eirinberg’s latest work experience included employment as a special prosecutor for the Flandreau Santee Sioux Tribe and as a lawyer for the Yankton Sioux Tribe on ICWA matters. He continues to represent Indian clients on the Yankton Sioux Reservation, and he was working for the Winnebago Tribe at the time of trial.

[¶ 31.] Eirinberg’s work experience on Reservations allowed him to study Indian culture, and he testified that he was actually in over one hundred homes interacting with tribal members. As a result, he testified that he knew about “Sioux culture” from his work with the Ponca Tribe and the Yankton Sioux Tribe. Most critical to this case, he provided unrefuted testimony that there were no substantial differences in childrearing practices among the relevant tribes, including the Cheyenne River Sioux Tribe.

[¶ 32.] The record also reflects that Eirinberg had specialized training on the ICWA. He testified that he had read well over one hundred law review articles in this area, had attended numerous ICWA training courses, was a member of the National Indian Child Welfare Association, and had recently completed that Association’s course on the ICWA. Eirinberg further indicated that he had previously qualified as an expert in Minnehaha and Lincoln Counties, and he had been recognized as both an expert on ICWA “and as a qualified expert witness at the disposi-tional phase” of ICWA proceedings.

[¶ 33.] Considering this evidence, the trial court found that Eirinberg had “substantial education and experience in this specialty and that’s regarding [the] Indian Child Welfare Act and also the culture and termination of Indian children and their parental rights.... ” I agree. In fact, in my view, the state’s showing is a textbook example of the qualification of an expert witness, and it certainly satisfies the some evidence abuse of discretion standard of review required by K.A.B.E. Id.

Relevant Caselaw

[¶ 34.] This Court reverses the trial court, concluding that an ICWA expert must have “specifics concerning the CRST’s unique culture or the available tribal services.... ” See supra ¶ 13. There are two problems with this conclusion. First, this type of objection regarding specifics goes to the weight of the expert’s opinion rather than its admissibility. More importantly, a “specifics” standard is not required by the authorities cited by the Cheyenne River Sioux Tribe, Mother, and Father. In fact, the Cheyenne River Sioux Tribe’s primary authority specifically rejects such a requirement:

Although we do not hold that an expert ICWA witness qualified under subpart three of the Guidelines must be fluent in the cultural standards of a particular Indian tribe, we conclude that it is highly preferable that any expert' witness qualified for purposes of ICWA — particularly a non-Indian expert witness— possess significant knowledge of and experience with Indian culture, family structure, and childrearing practices in general.

K.H., 981 P.2d at 1197.

[¶ 35.] It is also significant that even if we were to adopt the particular tribe requirement rejected in K.H., Eirinberg satisfied that requirement through his knowledge of the similarity of childrear-ing practices among all regional tribes. His particularized knowledge was established through his experience with the Yankton Sioux Tribe and by talking with other experts. From that experience, he was aware of the differences in culture, but the similarity of childrearing practices. More specifically, with respect to culture, Eirinberg indicated that he had “some insight, but ... not the particular cultural practices of the Cheyenne River Sioux Tribe.” However, he then explained, without contradiction, that the Yankton Sioux Tribe “is culturally, fairly culturally similar to the other eight Sioux tribes in South Dakota and North Dakota and I’m fairly familiar with their cultures.” Thus, even under a “particular culture” requirement, there was some record evidence of similarity sufficient to satisfy the abuse of discretion standard of review.

[¶ 36.] More importantly, even if Eirin-berg possessed no knowledge of cultural differences, an allegation not supported by the record, he unequivocally testified that he did have “specific knowledge of the childrearing practices.” Eirinberg explained, again without contradiction, that there were not “significant differences in childrearing practices among the nine Sioux Tribes. They have different cultural practices, but the childrearing practices are essentially the same.” Consequently, even though Eirinberg admitted the four deficiencies noted by this Court, he still possessed specific knowledge of the chil-drearing practices necessary to assist the court in making a dispositional decision under the ICWA.

[¶ 37.] In its brief, the Cheyenne Sioux River Tribe notes “that the type of witness being referred to [in the federal law and regulations is] one who could assist the Court in determining whether the child-rearing practices exhibited by the parents were eulturally-appropriate.” I agree, but believe that Eirinberg’s fourteen years of experience with thousands of clients was sufficient evidence to satisfy an abuse of discretion standard of review. After all, the ICWA expert is needed to answer two questions:

[f]irst, is it likely that the conduct of the parents will result in serious physical or emotional harm to the child? Second, if such conduct will likely cause such harm, can the parents be persuaded to. modify this conduct?

BIA Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67584 at 67593 (November 26, 1979). Furthermore, according to the BIA commentary, the test for experts proposing to answer these questions is simply whether the proposed expert “is qualified by reason of educational background and prior experience to make judgments on those questions that are substantially more reliable than judgments that would be made by nonexperts.” Id. Certainly, someone with Eirinberg’s extensive experience would provide more reliable judgments on these two questions than a nonexpert.

[¶ 38.] Finally, it must be emphasized that today’s opinion is at odds with our two previous cases reviewing a trial court’s decision to qualify an ICWA expert. In both cases, this Court found no abuse of discretion on records concerning experts with qualifications that were less than or equal to those possessed by Eirinberg.

[¶ 39.] For example, in K.A.B.E., 325 N.W.2d at 844, this Court found no abuse of discretion in a trial court’s qualification of two witnesses with no experience unique to a particular tribe. Moreover, the foundation for their expertise was substantially inferior to that possessed by Eirinberg. The record in K.A.B.E. only reflected that one witness had “contact with Indians on a regular basis” and that the other witness was employed by a child care agency that served approximately thirty percent Indian children. Id. at 843. The entire extent of the qualifications approved by this Court in K.A.B.E. consisted only of the following:

The witnesses who testified were a social worker with the South Dakota Department of Social Services and the Director of the Children’s Inn in Sioux Falls. The social worker has worked as such for over four years. She has a bachelor of arts degree in social work and has had contact with Indians on a regular basis. The Children’s Inn is a shelter and resource center for children and parents involved with child abuse. The Director had a bachelor of science degree in social work and a year towards her master’s degree. Approximately 30% of the children utilizing the Children’s Inn are Indians.

Id. Notwithstanding this clearly less substantive and substantially more generalized foundation, this Court held “that sufficient evidence exists as to the qualifications of both witnesses under the ICWA.” Id. at 844.

[¶ 40.] On the other hand, in DM. this Court found no abuse of discretion in qualifying a state child protection manager with qualifications similar to those possessed by Eirinberg. The entire extent of the foundation approved in DM. included the following:

[The proposed expert’s] testimony revealed that she possessed the following qualifications: she managed the child protection program for five counties in South Dakota, including an area encompassing the Pine Ridge Indian Reservation; she had been employed by DSS for approximately fifteen years; she had prior experience in handling delinquent youth; she worked with tribal court and tribal agencies; she worked with Native American clients of the child protection program; she had attended several trainings relating to issues of family violence and child services for Native American families; she had attended trainings on ICWA and had previously been qualified as an ICWA expert.

2003 SD 49, ¶ 20, 661 N.W.2d at 773. Despite this similar foundation, this Court held that “[b]ased on these qualifications, the trial court did not abuse its discretion in determining the witness was a qualified expert under ICWA.” Id.

[¶ 41.] Under the doctrine of stare de-cisis, we should decide similar cases in a similar manner. When I compare the sufficiency of the foundation approved in K.A.B.E. and DM. to that presented here, I find it impossible to conclude that this trial court abused its discretion. Eirin-berg’s experience and training were more substantial than the others we have previously approved. Moreover, while neither of our prior decisions required any evidence of the specifics of the culture of the tribe at issue, Eirinberg provided record evidence of specifics through his consultation with other experts and his experience with similar tribes. And finally, even though there are differences in culture, this record contains uncontested evidence that the childrearing practices with which Eirinberg was familiar were not different from those of the Cheyenne River Sioux Tribe. Thus, this inconsistency in our decisions leaves future trial courts with an impossible dilemma: should they qualify a witness based upon the foundations approved in K.A.B.E. and D.M., or should they disqualify a witness with the more extensive foundation that the Court rejects today?

[¶ 42.] The result in this case is inconsistent with our prior decisions and the primary authority relied upon by the Cheyenne River Sioux Tribe. The Court’s decision also fails to acknowledge all of the foundational evidence presented to the trial court. “[T]he trial court and [its] ruling in determining qualifications will not be disturbed unless there is no evidence that the witness had the qualifications of an expert....” K.A.B.E., 325 N.W.2d at 844 (emphasis added). Because there is record evidence to support the trial court’s decision to qualify Eirinberg as an expert, the trial court did not abuse its discretion.

      . CRST briefed this matter as an "appellee” but it is clear that they are in fact properly designated as an "appellant” as they assert error in the trial court’s ruling.

      . The use of the plural "expert witnesses” does not require more than one qualified expert to testify in support of termination. In Interest of D.G., 2004 SD 54, ¶ 11 n. 2, 679 N.W.2d 497, 501.

      . “It should be noted that the BIA did not promulgate their guidelines for state courts in Indian child custody proceedings as regulations because they were not intended to have binding legislative effect. However, the guidelines do represent the Department of Interior's interpretation of certain provisions of the ICWA in order to assure that the rights guaranteed by the ICWA are protected when state courts decide Indian child custody matters. See Guidelines for State Courts, supra at 67,584.” Matter of Defender, 435 N.W.2d 717, 722 n. 5 (S.D.1989). Nevertheless, in interpreting the ICWA these "administrative interpretations of statutory terms are given important but not controlling significance.” Matter of A.L., 442 N.W.2d 233, 236 (S.D.1989)(citing Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977)).

      . In light of the criticisms made by the dissent, it is important to note that these first two subparts of the Guidelines specifically reference the “Indian child’s tribe” and "tribal community."

      Furthermore, under ICWA, jurisdiction may also vest in the Indian child's tribal court; not any tribal court. 25 U.S.C. 1911(f). The legislative history and terms of ICWA are permeated with specific considerations for the Indian child’s tribe.

      . Appellants also point to the fact that Eirin-berg conceded numerous times during his testimony that he was not an expert on Native American culture. However, reviewing his testimony in context this statement is not dis-positive as he was saying that he is a "student” of Native American culture. This is in the same vein as an attorney or judge stating he or she is a "student” of the law. Each day brings professional opportunities for furthering one's education and experience in their field of expertise.

      . Given this well-established tribal interest it is not too much to require an ICWA expert to be familiar with the child's tribe. Certainly, we would not approve an expert who had as little familiarity with the parents as this witness had with the tribe. If this witness had only read books about parenting would we consider him an expert on these parents?

      .To demonstrate error in the State's expert testimony the CRST contrasts the testimony of Eirinberg with their own expert, Steven Emery, who was also qualified as an ICWA expert by the trial court. Emery is a member of the CRST, lives on the reservation and testified that he has substantial experience in Native American culture and child rearing practices. He was qualified by the trial court as an expert witness in Lakota culture without objection b.y the State. Emery testified that in this situation continued custody with the parents would not cause serious emotional or physical damage to the children though he did not recommend the children be returned to the home at this time. Though expert testimony is not required under ICWA for anyone other than the parly advocating termination and this Court is not called upon to review the trial court's admission of this testimony for an abuse of discretion, this Court can recognize, as the trial court did in admitting this testimony, that the ICWA requires cultural identity to be a looking glass through which it is determined if continued custody by the Indian parent would likely result in serious emotional or physical harm to the children.

      . I acknowledge that there is conflicting evidence concerning the precise level of Eirin-berg’s knowledge of Cheyenne River Sioux culture. However, Eirinberg unequivocally indicated that he was familiar with the relevant childrearing practices. See infra, ¶ 36.

      . See supra, ¶ 13.


text:
    In the Matter of the Inquiry Concerning James A. WEAVER, District Associate Judge.
    No. 04-1457.
    Supreme Court of Iowa.
    Dec. 10, 2004.
   ORDER

This matter comes before the court, Wiggins, J., taking no part, upon the unanimous recommendation of the Commission on Judicial Qualifications that Judge James A. Weaver, District Associate Judge for the Seventh Judicial District, receive a public reprimand. See Iowa Code §§ 602.2101-07 (2001) (outlining procedure for judicial discipline). For the reasons set forth below, we accept the commission’s recommendation and reprimand Judge Weaver.

The facts are not disputed. On November 11, 2002, Judge Weaver was arrested for drunk driving. Four days later, he pled guilty to operating while intoxicated, first offense, in violation of Iowa Code section 321J.2. Judge Weaver was fined $1000, sentenced to 120 days in jail, all but two days suspended, and ordered to undergo treatment.

Iowa Code section 602.2106(3)(&) provides that we may, upon application by the commission,

[discipline or remove [a] judicial officer for persistent failure to perform duties, habitual intemperance, willful misconduct in office, conduct which brings judicial office into disrepute, or substantial violation of the canons of judicial ethics .

See also Iowa Const, art. V, § 19 (supreme court, upon application of commission, may discipline judges “for good cause”). Here the commission, after a hearing, found Judge Weaver’s actions constituted willful misconduct in office, brought the judicial office into disrepute, and violated two canons of the Iowa Code of Judicial Conduct. In particular, the commission found Judge Weaver violated Canons 1 and 2A of the Iowa Code of Judicial Conduct, which state, respectively that

A judge ... should observe ... high standards of conduct so that the integrity and independence of the judiciary may be preserved.

and

A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Having reviewed the evidence, the commission’s application, and the parties’ briefs, we find Judge Weaver’s actions run afoul of these provisions and thus merit discipline. Judge Weaver’s actions cast a long shadow upon the judicial system; he must be held accountable, lest public confidence in the judiciary is eroded. See In re Inquiry Concerning Eads, 362 N.W.2d 541, 551 (Iowa 1985).

For the foregoing reasons, we hereby reprimand Judge James A. Weaver.

/s/ Louis A. Lavorato Louis A. Lavorato, Chief Justice.


author: CARTER, justice.

text:
    In re DETENTION OF Damon Montez WILLIS. Damon Montez Willis, Appellant.
    No. 03-1877.
    Supreme Court of Iowa.
    Jan. 21, 2005.

      Mark C. Smith, First Assistant State Public Defender, and Michael H. Adams, Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Linda J. Hines and Denise A. Timmins, Assistant Attorneys General, for appellee State.
   CARTER, justice.

Damon Montez Willis, a convicted sex offender, appeals from orders in a subsequent civil proceeding finding him to be a sexually violent predator and committing him as such. He asserts on appeal that (1) the district court lacked jurisdiction to impose a civil commitment because the State failed to follow necessary statutory procedures, (2) the civil commitment proceeding could not be brought against him at the time it was commenced because he had not yet been convicted of a sexually violent offense, (3) he could not be found to be a sexual predator in'the absence of a recent overt act, and (4) he was denied effective assistance of counsel with respect to the commitment proceedings. After reviewing the record and considering the arguments presented, we find that none of these claims have merit and affirm the orders of the district court.

In 1987 Willis was convicted of second-degree sexual abuse. He was sentenced to an indeterminate term of imprisonment not to exceed twenty-five years. On January 26, 1997, while still incarcerated for the 1987 conviction, Willis sexually assaulted another inmate in the prison. He was convicted of third-degree sexual abuse with regard to that offense. That conviction was reversed by the court of appeals, and a new trial was ordered. On retrial of the third-degree sexual-abuse charge, the jury found Willis guilty of the lesser included offense of assault with intent to commit sexual abuse. That verdict was returned on December 6, 2000. Sentencing was scheduled for December 26, 2000.

The Henry County Sheriff in whose custody Willis resided determined that Willis’s sentence for his 1987 conviction had been discharged and that credit for time served on the 1997 charge of sexual abuse would exhaust any sentence that might be imposed for the lesser included offense of which he was ultimately convicted. Based on these circumstances, the sheriff concluded that Willis would likely be released from confinement on the date of his sentencing and notified the attorney general suggesting review of the situation for a potential commitment as a sexually violent predator.

On December 21, 2000, the State filed a petition alleging Willis was a sexually violent predator and recommending that he be committed as such. The district court held a probable-cause hearing on December 27, 2000, and determined that probable cause existed. On June 26, 2001, a jury returned a verdict finding Willis to be a sexually violent predator. That determination was reversed by the court of appeals, but on retrial another jury found that Willis was a sexually violent predator. That resulted in the order of commitment that is the subject of this appeal.

I. Standard of Review.

Issues of statutory interpretation are reviewed for correction of errors of law. Iowa Dep’t of Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002). The facts implicating alleged constitutional violations are reviewed de novo. State v. Loye, 670 N.W.2d 141, 150-51 (Iowa 2003); State v. Thomas, 659 N.W.2d 217, 220 (Iowa 2003).

II. Alleged Lack of Jurisdiction.

A. Untimely notice. Willis asserts that the district court lacked both jurisdiction and authority to consider the petition filed by the attorney general for his commitment as a sexually violent predator because the notice given to the attorney general by the Henry County Sheriff pursuant to Iowa Code section 229A.3(1) (1999) was given less than ninety days prior to Willis’s anticipated discharge. This same contention was considered by this court in the recent case of In re Detention of Huss, 688 N.W.2d 58, 62 (Iowa 2004). In that case, we held that the giving of notice to the attorney general under section 229A.3(1) was not required as a condition for the attorney general to file a petition for commitment of a confined person suspected of being a sexually violent predator. Huss, 688 N.W.2d at 63. We determined that the notice the statute envisions “is only intended to be a heads-up to an approaching discharge date in case a determination to file a section 229A.4(1) petition appears to be a possibility.” Id. Consequently, a failure to give the statutory notice at least ninety days prior to anticipated discharge does not invalidate the proceedings later taken on the attorney general’s petition filed pursuant to section 229A.4(1). Id.

The facts of the present case illustrate the wisdom of the holding in Huss. Because of the protracted trial proceedings on Willis’s third-degree sexual-abuse prosecution and the ultimate verdict convicting him of only a lesser included offense, there was no opportunity to give ninety-days notice to the attorney general prior to the anticipated date of discharge. It is apparent, however, that notice was given as soon as reasonably possible.

B. Lack of conviction. Willis’s next contention is that he was not confined as a sexually violent predatop at the time the attorney general filed the petition for his commitment. He bases this contention on the fact that the attorney general’s petition was filed on December 19, 2000, and sentence on Willis’s conviction for assault with intent to commit sexual abuse was not imposed until December 26, 2000. The gist of Willis’s, argument is that he must have been convicted of the sexually violent offense for which he was being held prior to the filing of a petition by the attorney general. He argues that the jury verdict was not a conviction and that his conviction did not occur until his sentencing on December 26.

We are convinced that the gap between the verdict and sentencing does not provide any basis for granting Willis relief from his commitment as a sexually violent predator. Neither the language of section 229A.4(1), nor our interpretation of that statute in In re Detention of Gonzales, 658 N.W.2d 102, 103-04 (Iowa 2003), requires that the subject of a petition for a sexually violent predator adjudication be convicted of a sexually violent offense before' the petition is filed under section 229A.4(1). It is only necessary that the subject be “presently confined” for a sexually violent offense. Gonzales, 658 N.W.2d at 104. The basis for the sheriffs custody of Willis at the time the petition was filed was the fact that he had committed a sexually violent offense. This satisfies the statutory requirement for the filing of the petition by the attorney general.

III. Absence of a Recent Overt Act.

Willis argues that, in order to restrict his liberty based on a prediction of his future behavior, due process requires proof of a recent overt act. He contends that such showing is absent, with respect to his commitment. In Gonzales, 658 N.W.2d at 105, we determined that the act for which a. person is presently confined, if a sexually violent act, may. be deemed to be the recent overt act that due process requires. We continue to view the matter in this light.

Determining whether a past act of sexual violence has become too stale to serve as a predictor of future acts of a similar nature is not a precise task. The signifi-cánce of a recent overt act in predicting future conduct is not the act but the inference against a particular propensity that arises from the absence of an overt act. The absence of sexually .predatory acts in a setting of secure confinement, does not paint the same picture as the absence of such acts in a normal life situation. We have generally upheld the statutory scheme presented by Iowa Code chapter 229A against substantive due process challenges. See In re Detention of Garren, 620 N.W.2d 275, 282-83 (Iowa 2000). We reach a similar conclusion when focusing specifically on Willis’s contention that a failure to require a showing of a recent overt act other than the act for which he was imprisoned violates substantive due process.

Under principles of substantive due process, the State is prohibited from engaging in arbitrary or wrongful actions regardless of the fairness of the procedures used to implement them. Id. at 284. A person’s liberty interest is constitutionally protected against arbitrary governmental action, but is not absolute. Id. The government may detain a mentally unstable individual who presents a danger to the public. Id. In not expressly requiring a recent overt act for petitions for commitment filed under section 229A.4(1), the legislature could reasonably'conclude that the filing of a civil commitment petition must necessarily be delayed during the period of confinement under a criminal judgment and therefore allow a petition to be filed at the conclusion of that confinement notwithstanding the absence of an additional overt act.

IV. Alleged Ineffective Assistance of Counsel.

Willis , contends that he re: ceived ineffective, assistance of counsel in resisting the State’s efforts to commit him. His right to counsel in the present proceeding is conferred by an Iowa statute, Iowa Code § 229A.6(1). It does not flow from the Sixth Amendment' to the federal constitution, which, by its éxpress terms, refers only to “criminal prosecutions.” Even if we assume that he may posit an ineffective-assistance-of-counsel claim on some source of entitlement other than the Sixth Amendment, that effort fails in the present case. -

His attempt to obtain relief on ineffective-assistance-of-counsel grounds is premised on the success of his jurisdictional claims or alleged violations of due process. Because we have considered those claims on the merits and rejected them, the premise for his ineffective-assistance claim does not exist. We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.


author: STREIT, Justice.

text:
    GREATAMERICA LEASING CORPORATION, Appellant, v. COOL COMFORT AIR CONDITIONING AND REFRIGERATION, INC. a/k/a Cool Comfort Air Conditioning, Inc., Appellee.
    No. 03-1581.
    Supreme Court of Iowa.
    Jan. 28, 2005.

      Randall D. Armentrout of Nyemaster, Goode, Voigts, West, Hansell <& O’Brien, Des Moines, for appellant.
    Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for amicus curiae Iowa Association of Legal Assistants.
   STREIT, Justice.

Troubled that the State of Iowa pays attorneys only $50 per hour to defend the indigent in criminal cases, the district court limited a paralegal’s fee award in a civil case. The plaintiff seeking the fees now appeals. To the extent the district court adopted a policy capping litigation expenses for paralegals in civil cases, it abused its discretion. We reverse and remand for further proceedings.

I. Facts and Prior Proceedings

GreatAmeriea Leasing Corporation sued Cool Comfort Air Conditioning and Refrigeration, Inc., after Cool Comfort breached a lease for a telephone system. GreatAm-erica was partially successful in the suit and obtained a judgment against Cool Comfort for a little less than $17,000.

Pursuant to a fee-shifting clause in the parties’ written contract, GreatAmeriea asked the district court to require Cool Comfort to reimburse it approximately $35,000 for attorney fees it had expended in the suit. This request included about $5000 in litigation expenses for paralegal work. In support of its motion, GreatAm-erica attached a copy of a bill it had received from its law firm. The bill indicated the firm had charged GreatAmerica $80 per hour for paralegal work. Cool Comfort resisted GreatAmerica’s motion for attorney fees. Cool Comfort argued Great-America should not recover expenses that were unsuccessful.

The district court granted GreatAmerica almost $19,000 in attorney fees. The district court awarded GreatAmerica less than it had requested for two reasons. First, the court noted GreatAmerica was only partially successful in the suit. For this reason, the court nearly halved the award. Compare Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40, 54-55 (1983) (holding reduction warranted for fees expended in prosecution of unsuccessful claims “distinct in all respects” from successful ones) (quoted in Vaughan v. Must, Inc., 542 N.W.2d 533, 541 (Iowa 1996)), with Lynch v. City of Des Moines, 464 N.W.2d 236, 239 (Iowa 1990) (permitting recovery because there was a “common body of facts related to [the] successful claims”). Second, the court subtracted an additional $1880 from the amount GreatAmerica had claimed in litigation expenses for paralegal work. The court stated it was

troubled that regular, licensed attorneys defending felony defendants in criminal cases in Iowa are paid only $50 an hour for what can be more complex litigation [that requires] a license to practice law with substantial trial ability and experience. In this court’s view, a paralegal fee assessed against another party should not exceed what the State of Iowa pays for indigent defense.... Because no evidence rebuts the necessity of the hours devoted to the case, this court will not reduce the number of hours compensated. However, the award will be at the rate of $50 per hour.

Great America appealed the district court’s award of attorney fees. It challenges only ■the reduction in litigation expenses due to the capping of the paralegal’s hourly rate. Cool Comfort did not cross-appeal and has not filed a brief in this matter.

II. Principles of Review

We review the district court’s award of attorney fees for an abuse of discretion. City of Des Moines v. Hous-by-Mack, Inc., 687 N.W.2d 551, 554 (Iowa 2004); McNally & Nimergood v. Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 570 (Iowa 2002). “Reversal is warranted only when the court rests its discretionary ruling on grounds that are clearly unreasonable or untenable.” Gabelmann v. NFO, Inc., 606 N.W.2d 339, 342 (Iowa 2000).

III. The Merits

The sole issue is whether the district court abused its discretion in reducing the amount of attorney fees for Great-America’s litigation expenses. We begin with the Iowa Code, which provides:

When judgment is recovered upon a written contract containing an agreement to pay an attorney’s fee, the court shall allow and tax as a part of the costs a reasonable attorney’s fee to be determined by the court.

Iowa Code section 625.22 (2003). A reasonable attorney fee is not limited to the hourly fee charged by lawyers. The concept includes certain litigation expenses, including the cost of paralegals. , See, e.g., Schaffer v. Frank Moyer Constr., Inc., 628 N.W.2d 11, 23 (Iowa 2001) (allowing litigation expenses, including the cost of hiring a paralegal, as part of a reasonable attorney fee); Landals v. George A. Rolfes Co., 454 N.W.2d 891, 898 (Iowa 1990) (same); Edson v. Chambers, 519 N.W.2d 832, 834 (Iowa Ct.App.1994) (same); cf. Missouri v. Jenkins, 491 U.S. 274, 284-89, 109 S.Ct. 2463, 2469-72, 105 L.Ed.2d 229, 241-44 (1989) (construing 42 U.S.C. § 1988 to permit reimbursement for paralegal expenses). The district court is considered an expert in what constitutes a reasonable attorney fee, and we afford it wide discretion in making its decision. See Lynch, 464 N.W.2d at 240; Nelson v. Iowa State Highway Comm’n, 253 Iowa 1248, 1256, 115 N.W.2d 695, 699 (1962).

“An applicant for attorney fees has the burden to prove that the services were reasonably necessary and-that the charges were reasonable in amount.” Schaffer, 628 N.W.2d at 23. The district court should consider a number of factors, including:

the time necessarily spent, the nature and extent of the service, the amount involved, the difficulty of handling and importance of the issues, the responsibility assumed and results obtained, the standing and experience of the attorney in the profession, and the customary charges for similar service.

Id. at 23-24 (citing Landals, 454 N.W.2d at 897). In the case at bar, the district court recited these Schaffer factors. The court also correctly recognized it was required to “look at the whole picture and, using independent judgment with the benefit of hindsight, decide on a total fee appropriate for handling the complete case.” Landals, 454 N.W.2d at 897.

In its analysis, however, the district court did not consider the Schaffer factors nor look at the whole picture. Instead the court focused.upon the fact that the State only pays some criminal.defense attorneys $50 per hour. See Iowa Code § 815.7 (attorneys appointed to represent persons not charged with class “A” or “B” felonies entitled to $50 per hour reimbursement from the State). Although there is a blush of fairness in the district court’s logic that paralegals should not earn more than attorneys, this analysis ignores the fact that the markets for criminal defense attorneys and paralegals in civil litigation are different. To the extent the district court adopted a per se rule capping all pay for paralegals at $50 per hour, the court abused its discretion. Iowa Code section 625.22 contains no such requirement, and to the extent the district court invented one its ruling was based on untenable grounds. Such a fixed policy is the antithesis of discretionary decision-making. Cf. State v. Hager, 630 N.W.2d 828, 836 (Iowa 2001). “A court abuses its discretion when it fails to exercise any discretion.” Id.

The appropriate remedy is to reverse and remand for “a fresh consideration” of a reasonable attorney fee. Gabelmann, 606 N.W.2d at 344; see also Edson 519 N.W.2d at 836 (remanding). On remand, the court shall look at the whole picture and determine a reasonable amount for GreatAmerica’s litigation expenses. The Schaffer factors, although explicitly designed for attorneys, apply by analogy. See Cont’l Townhouses E. Unit One Ass’n v. Brockbank, 152 Ariz. 537, 733 P.2d 1120, 1128 (Ct.App.1986) (“The trial judge ... may ... consider the value of services rendered in a case by ... paralegals, applying the same standards as are used in evaluating lawyers’ time.”); see also In re Reconversion Techs., 216 B.R. 46, 55-57 (Bankr.N.D.Okla.1997) (applying same standards). The fundamental question, however, is simply whether the claimed litigation expenses áre reasonable and' thus part of a reasonable attorney fee. See James J. Watson, Annotation, Attorneys’ Fees: Cost of Services Provided By Paralegals or the Like as Compensable Element of Award in State Court, 73 A.L.R.4th 938, 946-47 (1989) (setting forth “a number of common criteria” courts have used to determine whether a claim for paralegal services is justified and, if so, to what extent).

GreatAmerica bears the burden to prove its request was reasonable. Nelson, 253 Iowa at 1256, 115 N.W.2d at 700; cf. Sherman v. Kasotakis, 314 F.Supp.2d 843, 881 (N.D.Iowa 2004). As framed in this case, the crux of the dispute revolves around the paralegal’s hourly rate. On remand, the district court will have to determine whether $80 per hour is consistent with market rates and practices for similar work in the community. Cf. Jenkins, 491 U.S. at 286, 109 S.Ct. at 2470, 105 L.Ed.2d at 241-42; Sherman, 314 F.Supp.2d at 881; West v. Aetna Life Ins. Co., 188 F.Supp.2d 1096, 1101-02 (N.D.Iowa 2002). The market rate for the paralegal’s services is not necessarily the rate of pay plaintiffs counsel billed its client. Billing sheets provided by the firm, although little evidence of the prevailing rate of pay for similarly situated paralegals, may be considered by the court. Cf. Sherman, 314 F.Supp.2d at 882 (considering bills). In this case GreatAmeriea did not offer the district court any additional evidence. While such evidence is not necessary to prevail, see Nelson, 253 Iowa at 1256, 115 N.W.2d' at 699, it would have helped the court reach a decision. Cf. Sherman, 314 F.Supp.2d at 882 (similarly lamenting dearth of evidence). In its absence, the district court, as an expert in calculating the local going rate, may settle matters itself. See Nelson, 253 Iowa at 1256, 115 N.W.2d at 699. It should do so on remand.

Nothing in this opinion should be construed as an endorsement or rejection of any particular rate for reimbursement of paralegal expenses.

IV. Conclusion

The district court abused its discretion insofar as it adopted a policy capping the rate of pay for all paralegals. We remand for a fresh consideration of the award. We also remand for a hearing on appellate attorney fees.

REVERSED AND REMANDED.

      . Indeed, the State of Iowa sets the market in the former but not the latter.

      . In principle the matter is no different than if GreatAmeriea were seeking reimbursement for travel expenses. A lawyer can fly first class to a deposition and the client may pay for it, but the district court remains the final arbiter of what expenses are reasonable.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Todd Edward GRIFFIN, Appellant.
    No. 03-1321.
    Supreme Court of Iowa.
    Jan. 28, 2005.

      Linda Del Gallo, State Appellate Defender, and Patricia A. Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell-Douglass, Assistant Attorney General, Rosalise Olson, County Attorney, and Jon M. Martin, Assistant County Attorney, for appellee;
   CARTER, Justice.

Defendant, Todd Edward Griffin, appeals from his conviction of possession of methamphetamine and possession of marijuana in violation of Iowa Code section 124.401(5) (2003). He asserts that evidence obtained from the search of a box contained in his motor vehicle should have been suppressed because it was the fruit of a pretextual arrest.- Recognizing that such a claim has no merit under federal Fourth Amendment jurisprudence, he asks this court to conclude that a search incident to a pretextual arrest violates article I, section 8 of the Iowa Constitution. Defendant’s challenge to the evidencé at the district court level was based entirely on the Fourth Amendment to the federal constitution. No state constitutional grounds were urged in his motion to suppress. We decline his invitation to hold that his counsel’s failure to assert a violation of the state constitution as grounds for suppressing the evidence may serve as a basis for reversing his conviction. We affirm the judgment of the district court.

At approximately 2:30 a.m. on January 21, 2003, defendant was stopped by a police officer in Spirit Lake, Iowa. The reason for the stop was that the rear license plate on the vehicle defendant was driving was not illuminated and the automobile’s muffler produced excessive noise. Defendant was unable to produce a driver’s license upon request. Defendant.did provide his name, and a computer check indicated a recent prior conviction for failing to have proof of liability insurance for the vehicle he was driving and prior drug-related arrests. Defendant admitted that he still did not have liability insurance that would cover his operation of the automobile he was driving.

At this point, the officer placed defendant under arrest on three charges. These pertained to (1) failure to light the rear license plate, (2) having an excessively loud muffler, and (3) failure to have proof of liability insurance. The officer searched defendant’s person, and another officer who had arrived to assist the arresting officer searched a box in defendant’s automobile and found substances that later tested positive for methamphetamine and marijuana. Defendant moved to suppress the evidence obtained from the search of his automobile on the ground that his arrest was pretextual and only carried out to effect a search of his vehicle without probable cause. At the suppression hearing, the arresting officer testified that, when defendant’s name had been run through the computer, it revealed prior drug convictions. He stated that circumstance, together with defendant’s evasiveness, led him to suspect that controlled substances might be found in the vehicle. He testified that, if it wére not for that suspicion, he would not have arrested defendant for the two traffic violations and failure to have proof of insurance. The arrest was made, the officer testified, in order to permit a search incident to arrest.

In support of his motion to suppress, defendant relied entirely on the Fourth Amendment to the federal constitution. Based on the decisions of the Supreme Court in Arkansas v. Sullivan, 532 U.S. 769, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001), and Whren v. United, States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the district court concluded that, if probable cause exists for an arrest, a full search incident to that arrest may occur even if the arresting officer had an ulterior motive for the arrest and had no independent probable cause to conduct the search. Conceding that this is the federal law, defendant asks us to hold that a pretextual arrest may not be used to sustain a search incident to that arrest under the Iowa Constitution. He notes that, after the United States Supreme Court upheld the search incident to a pretextual arrest in Arkansas v. Sullivan, the Arkansas Supreme Court held that such searches were invalid under the Arkansas Constitution. State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215, 220-22 (2002).

Because defendant did not rely on the Iowa Constitution in the district court, the state constitutional claim has been waived. To the extent that defendant requests that we grant relief on his state constitutional claim on the basis that a failure to assert it was ineffective assistance of counsel, we are unable to agree with that contention. To prevail on an ineffective-assistance-of-counsel claim, defendant is required to prove that trial counsel breached an essential duty and that prejudice resulted. Fullenwider v. State, 674 N.W.2d 73, 75 (Iowa 2004). In making this determination, we start with the proposition that trial counsel has no duty to raise an issue that has no merit. State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003); State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996).

At the time that defendant’s motion to suppress was filed, this court had not spoken to the specific issue of the validity of a search incident to a pretextual arrest under article I, section 8 of the Iowa Constitution. We still have not answered that question. However, in considering the issue generally and without -regard to a specific constitutional basis, we stated as follows in State v. Meyer, 543 N.W.2d 876 (Iowa 1996):

A search incident to lawful arrest is legal even if the arresting officer had an ulterior motive for the arrest or had no independent probable cause to conduct the search. -

Meyer, 543 N.W.2d at 879: Because the federal and state search-and-seizure clauses are nearly identical, the construction of the federal constitution is persuasive in our interpretation of the state provision. See State v. Olsen, 293 N.W.2d 216, 219 (Iowa 1980). (citing Bierkamp v. Rogers, 293 N.W.2d 577, 579 (Iowa 1980)). Decisions of the United States Supreme Court interpreting the Fourth Amendment are not, however, binding on this court with respect to the Iowa Constitution. Id. Because we have found no basis to distinguish the protections afforded by the Iowa Constitution from those afforded by the federal constitution under the facts of this case, our discussion of the merits of the defendant’s suppression motion applies equally to the state and federal grounds. See State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004).

We -now hold that .our pronouncement in Meyer was not only a correct application - of federal law but also accurately described the validity of a pretextual arrest under article I, section- 8 of the Iowa Constitution for purposes of sustaining a search incident to that arrest. If probable cause exists.for an arrest to be made, the motive for making the arrest does not limit the right to conduct a search incident thereto.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.