Qualified Expert Witness Case out of Utah Court of Appeals [ICWA]


In this case, the GAL petitioned to remove the child from the mother’s care. This GAL has considerable issues with the application of ICWA:

The GAL argued that since ICWA does not explicitly
define what qualifies a witness as an expert, the juvenile
court had “discretion to determine whether a witness has
adequate qualifications to provide the proffered testimony.” Although the three therapists were not qualified to testify regarding tribal cultural standards, the GAL asserted that the court was not bound by the BIA regulations and urged the court to qualify the therapists as expert witnesses anyway . . .

The Court of Appeals instead agreed with mother and Tribe, stating:

Therefore, because the BIA is a federal administrative agency and ICWA is a federal statute, we must employ the principles articulated in Chevron to determine whether the BIA’s 2016 regulation defining “qualified expert witness” is entitled to deference.

Determining that a “qualified expert witness” “should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe” is consistent with Congressional intent and is reasonable.

Unfortunately, the appellate court ultimately held that:

Although the juvenile court correctly applied Chevron
deference to the BIA’s interpretation of ICWA, it did not
correctly apply the regulation, because it rejected the GAL’s experts solely on the ground that they were not qualified to testify regarding the Tribe’s cultural standards without considering whether those standards had any actual bearing on the proposed grounds for removal. Further, the juvenile court erred in determining that Mother could claim therapist–patient privilege with respect to testimony from her therapist and the family therapist. We therefore reverse the juvenile court’s decision and remand for further proceedings consistent with this opinion.

Published Notice Case out of the Colorado Court of Appeals

In re LL

The Court uses the federal regulations and guidelines to determine each participant’s role in inquiry and notice, and remands for proper notice.

Unfortunately, the Court then goes on to hold that the higher standard of proof for a foster care placement under ICWA does not need to be made at adjudication (interestingly, Colorado is one of the few states that still has jury trials for child welfare proceedings). While the Court is correct that ICWA is “silent” on adjudicatory hearings, it does not make clear when the lower court should make the higher burden of proof finding. This is one of the issues in applying the federal law to individual state proceedings–adjudication with a jury makes the most sense for applying all of the protections of ICWA. Adjudication is where the judge (or jury) decides whether the state has the evidence that “warrants intrusive protective or corrective state intervention into the familial relationship” Id. at 22. While it might not be the point where the child is put into foster care, it is often AFTER the child has been placed in foster care. So if the higher standard for foster care placement isn’t applied at the emergency/24/48/shelter care hearing, and it’s not applied at the adjudicatory hearing, when, exactly, is it applied?