Here is the opinion — In re Vaughn R
An excerpt:
We conclude that 25 U.S.C. § 1912(f) applies even though the child has been placed outside the parental home before the TPR proceeding is filed. Thus, in this case it applies even though Vaughn has been living with foster parents for several years. Because § 1912(f) applies, the County was required to prove beyond a reasonable doubt, by evidence that includes testimony of “qualified expert witnesses,” that returning Vaughn to Luis “is likely to result in serious emotional or physical damage” to Vaughn. We conclude the record does not provide a reasonable basis for deciding that the county social worker is a “qualified expert witness” within the meaning of § 1912(f). Accordingly, we reverse and remand for a new trial.
Because the correct burden of proof for the showing required by 25 U.S.C. § 1912(d) will arise on remand, we address the issue. We conclude that, unlike § 1912(f), § 1912(d) does not impose a burden of proof on the states, and, in particular, does not require proof beyond a reasonable doubt for the § 1912(d) showing relating to efforts by the County to provide the prescribed services. Therefore, the instruction to the jury that this showing has to be proved by clear and convincing evidence is a proper statement of the law.
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