expert witness – Turtle Talk

The court conditionally reversed the trial court because of a lack of proper expert witness testimony (citing ICWA, MIFPA and the Guidelines). It also finds that the agency made active efforts–even if there was no testimony for each element in the MIFPA definition of active efforts.

Interestingly, this case also addresses what child protective orders may be appealed (or not) in Michigan, and advises the Michigan Supreme Court to revise the Michigan Court Rules to allow for an appeal of right of a removal of a child:

We also suggest that the Supreme Court consider modifying MCR 3.993 in order to permit a parental appeal of right, at least under some circumstances, from removal order when a child is removed from his or her parents at a stage prior to adjudication. Where a parent’s action or neglect threatens a child’s safety sufficient to justify removal at the outset of a child protective proceeding, it is neither surprising nor objectionable that such removal would correlate with a higher likelihood of termination. However, as several recent cases have shown, the decision to remove a child can substantially affect the balance of the child protective proceedings even where the initial concerns are eventually determined to have been overstated.

In such cases, the parent may find his or her parental rights terminated not because of neglect or abuse, but because of (1) a failure to adequately comply with the Department’s directives and programs and (2) a loss of bonding due to a lack of parental visitation.

Unpublished Expert Witness Case out of Nebraska

October 23, 2014Kate Fort

Here.

In this case, the State called Patterson to testify that returning Eyllan to Nathaniel’s care was likely to result in serious emotional or physical damage to him. Patterson is currently employed as a school psychologist. Her educational background includes an education specialist degree and a bachelor’s degree in social work. Previous to her current employment position, she has worked as a social worker who specialized in and worked exclusively with Native American families. As a part of this employment, she provided expert testimony in NICWA cases, developed activities for children living outside of their tribe to maintain “cultural connectiveness,” and worked with tribes to facilitate enrollment of Indian children. In addition,Patterson has experience providing parental supervision, parenting education, and in-home counseling for Native American families. Patterson testified that she continues to have knowledge of “the prevailing social and cultural standard for rearing children within the Native American community.” She also indicated that she has experience with the Sioux Tribe, which is the tribe in which Eyllan is eligible for enrollment.

One side note–the Nebraska Court of Appeals only cites to the Nebraska ICWA rather than the federal ICWA (they do also cite to the BIA Guidelines via an NE Supreme Court case). Without reading through the whole statute, the state version does appear to essentially mirror the federal one. However, this week I had a conversation about how important it turned out to be for Michigan, specifically regarding investment in state education and state training on ICWA issues, to have a state ICWA law passed. Cases like this reinforce that belief.

Expert Witness ICWA Case Out of Alaska

August 25, 2014August 25, 2014Kate Fort1 Comment

Here.

Applying the correct meaning of the phrase “professional person having substantial education in the area of his or her specialty,” we hold that Cosolito and Kirchoff should have been qualified as experts under the third BIA guideline. As social workers, both were “professional persons.” Both had “substantial education in the area of [her] specialty”: master’s degrees in social work, internships in relevant subject areas as required for their degrees, agency training, and continuing professional education. The experience of both witnesses further demonstrated the required “expertise beyond the normal social worker qualifications.” Cosolito described her work as an OCS supervisor overseeing hundreds of cases, identifying safety threats, and having ultimate responsibility for custody decisions; as an OCS line worker assessing reports of harm; and as a school administrator and social worker in Arizona working with the diverse behavioral and education needs of students and their families. Her testimony demonstrated regular and in-depth exposure to the very types of family and behavioral issues that were central to Candace’s case, including the possibility that Candace would be assaulted again, be re-traumatized, and engage in more self-destructive behavior.

Kirchoff appeared even more amply qualified to testify about the risks of serious emotional or physical harm if Candace were returned to her home. Kirchoff had a lengthy work history as a mental health clinician, working with children with emotional and behavioral problems in a variety of institutional and agency settings, as well as a private practice of custody investigations and adoption home-studies. As Candace’s own clinician, treating her in both individual and group therapy, Kirchoff was uniquely qualified to testify with authority about Candace’s susceptibility to emotional harm.