I have been trying to figure out how to comment on this particular opinion, though I may just default to Alaska’s QEW holdings have always been outliers . . .
So as a reminder for us all, this is how the Minnesota Supreme Court described the purpose of the QEW:
The third clause—“including testimony of qualified expert witnesses”—further identifies what must be included as part of the court’s “beyond a reasonable doubt” determination. Id.; see also Larson v. State, 790 N.W.2d 700, 705 (Minn. 2010) (“[A] limiting phrase . . . ordinarily modifies only the noun or phrase that it immediately follows.”). The clause provides that testimony from a QEW must support the court’s serious-damage determination. But this testimony need not stand alone. The statute provides that the court’s serious-damage determination must be supported by evidence “including testimony of qualified expert witnesses.” 25 U.S.C. § 1912(f) (emphasis added). “Include” means “[t]o contain as a part of something.” Include, Black’s Law Dictionary (10th ed. 2014) (emphasis added). So long as the QEW testimony supports the district court’s serious-damage determination, section 1912(f) has been satisfied. In other words, the court may pair the required QEW testimony with other supporting evidence to make its serious-damage determination.
The Alaska Supreme Court is now interpreting the regulations to mean
. . . the primary consideration in determining whether an expert is qualified under ICWA is the expert’s ability to speak to the likelihood of harm to the child if returned to the parent’s custody; knowledge of tribal customs and standards is preferred, but such knowledge alone is insufficient. The experts in Oliver’s and Lisa’s cases, despite their extensive knowledge of tribal cultural standards, do not meet this requirement.
As a tribal elder and leader of his community, Encelewski is clearly qualified to testify to tribal cultural standards and childrearing norms. But nothing in the record shows he has sufficient knowledge, either through his experience on the ICWA committee or from formal training, to discuss specifically how Oliver’s conduct or the conditions in his home were likely to result in serious physical or emotional harm to the child if returned to his care. There is no evidence that the source of Encelewski’s conclusion that Oliver’s behavior would likely harm the child is based on anything other than Encelewski’s extensive life experience as a community leader and grandfather. This is insufficient to qualify him to testify about the likelihood of harm if the child is returned to Oliver. To meet the ICWA standards, Encelewski — as the sole expert testifying in support of terminating Oliver’s parental rights — must have been qualified to testify about that causal relationship; nothing in his testimony supports such a qualification.
Among other things, I believe this means that most QEW trainings for Alaska are going to need to fundamentally change to address this holding, especially for tribes using leaders or child welfare committee members as their QEWs.
Eva H. v. State of Alaska
This is a case worth reading in its entirety for the discussion of the qualifications of the QEW but also the discussion of the testimony supporting the casual connection between the parents’ behavior and the removal of the children.
This QEW had been a Guardian ad Litem in the Yukon Kuskokwim Delta region for a number of years, however:
She agreed that she had no formal education in psychology, mental health, chemical dependency, substance abuse, social work, or therapy, and she did not recall having read any scholarly literature in these areas. She acknowledged that she was unable to “diagnose mental health issues,” though she testified she could recognize them based on her experience as an attorney and a GAL. But she further admitted that she did not use “any documents or models, like professional references, in order to make those conclusions”; she relied solely on her experience as an attorney and a GAL.
did not address causation, as framed in the regulation, by testifying about how Keith and Eva’s conduct was likely to cause “serious emotional or physical damage to” the two boys. She drew no connections between specific conduct
and the likelihood of specific harm. We have held in the past that expert testimony need not directly address every aspect of this element of a termination decision; trial courts are allowed to consider “reasonable inferences from the expert testimony, coupled with lay witness testimony and documentary evidence from the record.” But when expert testimony is required in order to support termination in ICWA cases, trial courts may rely on reasonable inferences only from the testimony of witnesses who are qualified to testify on the subject.
I very nearly made an inadvertent broken record pun here, but seriously, I do talk about making a clean record a lot. OCS didn’t even manage to document state law requirements in this case. And in the continuing theme of this afternoon’s ICWA cases–the requirements of ICWA stand regardless of whether the agency finds the parents cooperative or not.
Like the superior court, we are underwhelmed by the quality of OCS’s testimony. We agree with the court’s observation that OCS “made a rather lackadaisical effort” and “put on a skeletal case about [its] required active efforts.” The superior court was rightly concerned to doubt OCS’s demonstration of active efforts. We acknowledge that the superior court concluded that OCS met its burden due in large part to “the consideration the Court is to give to the parents’ demonstration of an unwillingness to change or participate in rehabilitative efforts.” While this principle remains valid, the parents’ lack of effort does not excuse OCS’s failure to make and demonstrate its efforts. Even considering the parents’ lack of participation, there is simply insufficient evidence in the record to show that OCS made active efforts. It was legal error for the superior court to conclude by clear and convincing evidence that OCS made active efforts to reunify the family.
A related but distinct problem is OCS’s failure to document its active efforts in detail in the record. While documentation is related to OCS’s duty to make active efforts, documenting those efforts is a separate responsibility. The act of documentation is not itself an “active effort”; rather, it is a mechanism for OCS and the court to ensure that active efforts have been made. Documentation is required by ICWA and is critical to compliance with ICWA’s purpose and key protections. The CINA statute also requires OCS to document its provision of family reunification support services. But such documentation is woefully missing here.
Here is the opinion in Pedersen v. Arctic Slope Regional Corp.:
Here is the opinion in Merdes & Merdes, P.C. v. Leisnoi, Inc.
An attorney represented a Native corporation in litigation nearly three decades ago. The corporation disputed the attorney’s claim for fees, and in 1995, after the attorney’s death, the superior court entered judgment on an arbitration award of nearly $800,000 to the attorney’s law firm, then represented by the attorney’s son. The corporation paid eight installments on the judgment but eventually stopped paying, citing financial difficulties. The law firm sought a writ of execution for the unpaid balance, and the writ was granted. The corporation appealed but under threat of the writ paid $643,760 while the appeal was pending. In a 2013 opinion we held the writ invalid and required the firm to repay the $643,760.
The corporation was never repaid. The original law firm moved its assets to a new firm and sought a stay of execution, averring that the original firm now lacked the funds necessary for repayment. The corporation sued the original firm, the successor firm, and the son for breach of contract, fraudulent conveyance, conspiracy to fraudulently convey assets, violations of the Unfair Trade Practices Act (UTPA), unjust enrichment, and punitive damages. The firm counterclaimed, seeking recovery in quantum meruit for attorney’s fees it claimed were still owing for its original representation of the corporation.
The superior court granted summary judgment for the corporation on the law firm’s quantum meruit claim and, following trial, found that the son and both law firms fraudulently conveyed assets and were liable for treble damages under the UTPA. The son and the law firms appeal. They argue that the superior court erred in these ways: (1) holding that the quantum meruit claim was barred by res judicata; (2) holding the defendants liable for fraudulent conveyance;(3) awarding damages under the UTPA; and (4) making mistakes in the form of judgment and award of costs. But seeing no error or abuse of discretion in the superior court’s decision of most of these issues, we affirm its judgment, with one exception. We remand for reconsideration of whether all three defendants are liable for prejudgment interest from the same date.
This case delves deeply into the qualifications of a qualified expert witness under the 2015 BIA Guidelines. Those requirements were pretty specific, and as the court points out, prioritized cultural knowledge of the child’s tribe.
The 2015 Guidelines don’t govern cases initiated AFTER December 12, 2016, and instead the federal regulation (81 Fed. Reg. 38873; 25 CFR pt. 23.122) provides the definition and context of qualified expert witnesses. That definition (“a qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or 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”) provides far less guidance to the court as to who can be a QEW. The regulation further states a QEW may be designated by the child’s tribe, and may not be the “social worker regularly assigned to” the child. The 2016 Guidelines now argue that specific professional knowledge might be more important than cultural knowledge. That may have been more helpful to the parent’s argument in this case.
Ultimately the question turned on whether a long term guardianship is a foster care placement or a termination of parental rights (which have differing standards of proof). The court found it was a foster care placement, and required the testimony of a qualified expert witness.
Even before the holding, the Court brushes aside some pretty disturbing facts, including:
OCS noted that Casey might be affiliated with the Asa’carsamiut Tribe and that the children were believed to be Indian children affiliated with the Tribe. . . . In September the Tribe attempted to intervene. Because the Tribe’s documents were ambiguous about Casey’s tribal membership and the Tribe did not respond to the trial court’s request for clarification, in November the trial court denied the intervention motion without prejudice. At about the same time the trial court granted OCS’s motion to remove the children from Kent’s home.
In August 2013 OCS petitioned to terminate Kent’s and Casey’s parental rights, stating that the children were “not believed to be Indian children” and setting out the grounds for termination. In its order terminating Kent’s parental rights, the trial court first stated that it had made findings at various stages of the case that the children were not Indian children under ICWA, that no party had presented contrary information at trial or asked the court to reconsider its earlier rulings, and that the children were not Indian children under ICWA.
On the Expert Witness issue:
When determining whether a witness satisfies ICWA’s “qualified expert witness” requirement, we have considered the Bureau of Indian Affairs(BIA) Guidelines for State Courts; Indian Child Custody Proceedings (1979 BIA Guidelines). . . . In February 2015 — after the termination trial in this case but before the remand — the BIA adopted Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (2015 BIA Guidelines) to “supersede and replace the guidelines published in 1979.” Less than a month later the BIA published proposed new ICWA regulations to “complement [the] recently published Guidelines for State Courts and Agencies in Indian Child Custody Proceedings.” The proposed regulations have not yet been adopted.
OCS argues that “because the BIA is in the process of adopting ICWA regulations whose final content is unknown, it would be premature for this court to consider overturning Alaska law on ICWA experts before knowing what the BIA’s final word on qualified experts is.” We agree. Final regulations have not yet been adopted and we thus cannot determine whether they will include such a requirement in the future. We decline to overrule our longstanding precedent based on the possibility that BIA regulations will require a different result in the future.