I’ve been watching the qualified expert witness decisions coming in that are finally starting to wrestle with both the Regulations and the Guidelines, and I think they are narrowing in on conflicting requirements that will likely make it increasingly difficult to find a QEW.
First, the purpose of the QEW is for the state to find a witness (hopefully in collaboration with the Indian child’s tribe) that agrees a child needs to go into foster care or agree with a termination of parental rights. This is an attempt to address state bias, obviously, in the removal of Native children. The law only requires the testimony of the QEW support the findings, and doesn’t specifically require magic language from the QEW. The Regulations are fairly thin on the requirements of a QEW but there are two major elements:
“A qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe.” 25 C.F.R. 23.122
This decision from New Mexico finds the QEW was qualified on the social and cultural standards, but was not on the serious emotional or physical damage to the child. There is a similar decision on this from Alaska, and really problematic language in the Guidelines that is leading to the focus on the specialized expertise of the witness regarding the ability to testify about continued custody and a de-emphasis on the social and cultural standards of the Tribe. I personally have mixed feelings about this, but I would advise practitioners to read this opinion especially as to laying the foundation for the testimony of the QEW. And I’d also reiterate my usual advice that Tribes can always introduce their OWN witness to address cultural tribal issues.
This case is also unreported, and not notable for any ICWA holding except for footnote 4, which highlights how ICWA is USUALLY challenged:
4 Again, DCS alleges Parents have waived this issue for failure to raise it below. Parents did argue to the juvenile court during closing argument that the standard of proof should be beyond a reasonable doubt. See Tr., Vol. 2 at 95. They did not, however, offer any basis for that assertion, least of all a state or federal constitutional basis. As DCS points out, in order to properly preserve an issue for appeal, “[a]t a minimum, a party must show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal.” Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004). The juvenile court did not have that opportunity below.
Although we consider Parents’ state due process claim notwithstanding waiver for the same reason we exercised our discretion to decide the jury trial issue, supra n.2, we decline to consider the waived federal equal protection claim. Parents’ equal protection argument is based on the fact that the Indian Child Welfare Act provides that parental rights of Native Americans may be terminated only upon evidence beyond a reasonable doubt. See 25 U.S.C. § 1912(f). The right to a jury in juvenile proceedings and the scope of the state due process clause are matters of settled law in Indiana. But Indiana courts have not had occasion to consider whether the differing state and federal standards violate equal protection, and we will not undertake that analysis when it was not developed at all in the juvenile court and is raised for the first time on appeal.
Waiver notwithstanding, we note that the United States Supreme Court has routinely rejected claims that laws that treat Native Americans as a distinct class violate the equal protection rights of non-Native Americans, see, e.g., United States v. Antelope, 430 U.S. 641, 646 (1977) (concluding “federal regulation of Indian affairs is not based upon impermissible classifications”), and states that have had occasion to consider whether their clear and convincing standard violates the equal protection clause have found no violation, see, e.g., Matter of M.K., 964 P.2d 241, 244 (Okla. Civ. App. 1998) (holding heightened burden of proof required for termination of Native American parental rights is “rationally tied to Congress’ responsibility for policy toward [Native American] families” and lower state standard did not violate non-Native American father’s right to equal protection).
In other words, the Non-Native parents would like to have the same protections ICWA provides Native families.
I get asked a lot–just last week, in fact–to address the claim that Native children are often ripped from loving foster homes where they have been for a long time because the Tribe wants something different. I think the fact pattern in this case is more usual–the child was in the home (an Indian foster home) for five months when the Tribe requested visitation between her and her grandmother. Within a year, the state child welfare department petitioned to move the child to her grandmother. The original placement was always a foster placement and ICWA applied to this child from very early on in the proceedings. Moving a child to a permanent relative home within a year is very fast for a child welfare case. And yet still, the foster family intervened and attempted to stop the transfer to tribal court and regain custody of the child.
The Court of appeals here affirmed the lower court’s decision to transfer.
This is part of a small collection of state court decisions (In re B.B., Utah, Bruce L., AK) interpreting ICWA’s paternity definition, and also applying ICWA to paternity proceedings. It also addresses the issue of biological father (required by ICWA) and presumed father (defined by the Uniform Parentage Act).
Fletcher and Singel have posted “Lawyering the Indian Child Welfare Act,” forthcoming in the Michigan Law Review‘s upcoming symposium on civil rights lawyering. Here is the abstract:
This Essay describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even where Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the Constitutional validity of the law. The primary goal of this Essay is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important ICWA case in history, Brackeen v. Haaland, reaches the Supreme Court.
From the facts in this opinion, it’s clear this is a pretty contested post termination of parental rights/foster care adoption case from the southern district of Missouri (Poplar Bluff, Springfield). What is not in the opinion but is available on the Westlaw decision page are the attorneys involved in the case. I’m sure it’s some local southern Missouri attorneys:
Attorney for Respondent Judge – Scott S. Sifferman Acting Pro Se
Attorneys for Respondents Foster Parents – Toni M. Fields of Cassville, MO; Paul Clement
, Erin Murphy of Washington, D.C.; Kevin Neylan
of New York, NY
Even so! In this case, the Court of Appeals found the Choctaw Nation had standing to to bring the writ of prohibition against the judge and the Court of Appeals entered the writ (Respondent is the trial judge)(also, this is why formal legal intervention is so important for tribes whenever possible)(also why it’s good to find local family law attorneys who can talk about things like “writs of prohibition” with expertise):
In his brief, Respondent argues that the Choctaw Nation does not have standing to seek this writ of prohibition. On two occasions, Respondent granted the Choctaw Nation the right to intervene in this protective custody proceeding under 25 U.S.C. § 1911(c), and also granted the Choctaw Nation the right to intervene in Foster Parents’ adoption proceeding. We see no error in these rulings. The Choctaw Nation has standing to seek
this writ of prohibition.
Respondent did not have the express or implied authority to interfere in the Children’s Division’s administrative review of a nonfinal administrative recommendation for adoption, and then substitute Respondent’s judgment for that of the Children’s Division and compel the Children’s Division to reach or adhere to a particular recommendation.
There’s not much groundbreaking about this ICWA notice case, but this information did catch my eye. A letter from the BIA apparently stated:
The Bureau of Indian Affairs specified in relevant part as follows:
a. The BIA acknowledges that you have notified the family’s identified Tribe(s) Tuscarora, Tonawanda, Mohawk, Seneca, Oneida, EBCI, Cayugo, Onondaga, and Keetoowah based on your inquiry with the family according to 25 U.S.C. § 1912.
b. You have identified that Onondaga and Keetoowah have not responded. At this point, you have done due diligence and completed your ICWA responsibilities.
Do people regularly get letters where the BIA states the agency has “completed [its] ICWA responsibilities?” I haven’t seen this entered as evidence in other cases, so I’m curious. According to the record, this came from the BIA regional office in Tennessee.
Under Fletcher’s byline, here.