ICWA qualified expert witness

Illinois COA Vacates Foster Care Placement under ICWA for Failure of Trial Court to Seek Testimony of Qualified Expert Witness

September 26, 2025Matthew L.M. Fletcher

Here is the opinion in In re A.M.:

ICWA QEW Opinion in the Minnesota Supreme Court

May 21, 2018May 19, 2018Kate Fort

The question of what Qualified Expert Testimony (QEW) actually is under ICWA comes up all the time. The Minnesota Supreme Court did a pretty deep dive into what it means in terms of termination of parental rights, and concludes,

Read straightforwardly, the statute provides that to terminate parental rights, a district court must determine that “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. 1912(f). This determination must be supported by evidence “beyond a reasonable doubt,” and part of the supporting evidence must be QEW testimony. Id. The statute is unambiguous.

. . .

The parents . . suggest that the statute requires that the QEW testify specifically that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f). . . . If Congress wanted to impose a requirement that the expert utter a “magic phrase,” it could have done so. But as written, neither ICWA nor MIFPA require a specific QEW opinion that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f); Minn. Stat. § 260.771, subd. 6(a). S

…

Accordingly, we conclude that in a termination proceeding governed by ICWA and MIFPA, a court cannot terminate parental rights unless it determines that evidence shows, beyond a reasonable doubt, that continued parental custody of the child is likely to result in serious emotional or physical damage to the child. That determination must be supported by QEW testimony.

Because the QEW admitted on the stand that she focused most of her testimony and affidavits on the mother (who was a tribal member) and not the father (who not an enrolled tribal member in any tribe), the court held her testimony did not support the termination as to father.

I get questions pretty frequently about QEW, QEW training, and whether a person should be a QEW. My answer is almost always the same–a QEW must be comfortable stating that the parental rights should be terminated, or that these children should be put in foster care. That information is what is required by statute, and why the state (or party seeking removal/termination) must put a QEW on the stand. The QEW is ultimately there to testify against the parents, regardless of any other testimony they may proffer.

Idaho Court Decides ICWA Active Efforts/Qualified Expert Witness Case

March 19, 2012Matthew L.M. Fletcher

Here is the opinion in Idaho Dept. of Health and Welfare v. Do e.

Nebraska Appellate Court Issues Opinion on ICWA Qualified Expert Witnesses

July 16, 2011July 14, 2011Matthew L.M. Fletcher

Here is the unpublished opinion in In re Erika J.

An excerpt:

In the case at hand, the only witness to provide any testimony that returning Erika and Tyler to Edward’s care was likely to result in serious emotional or physical damage to the children was Whipple-Benitez. Edward contends that Whipple-Benitez is not a psychologist or therapist and did not present any evidence that she was recognized by the tribal community. Whipple-Benitez is, however, a member in good standing of the tribe and has a bachelor of arts degree in accounting and a teaching certificate for Spanish. Whipple-Benitez is a Spanish teacher at a local high school and has previously worked with the Chadron Native American Center as a Native American community liaison providing family support and programs about cultural practices, celebrations, youth involvement, and future planning. Whipple-Benitez is also a liaison for the Circle of Pride youth group for Native American students and families, and she has worked with family support workers with Speak Out, providing family classes for Native American families who are in need of extra support with child-rearing or cultural practices. Additionally, the record indicates that Whipple-Benitez previously worked with the DHHS integrated care coordination unit conducting workshops, which required knowledge of the ICWA.

Given her extensive background and continued involvement with the tribe and Native American families, we find that the record establishes that Whipple-Benitez was sufficiently qualified to testify as an expert witness under the requirements of the ICWA.