ICWA Qualified Expert Witness Case out of Kansas Court of Appeals

Here. This case has a lot of problems, but the biggest one is the lack of a qualified expert witness at the adjudication phase. The court describes child welfare proceedings as falling into two phases:

Proceedings that end in termination of parental rights in Kansas have two major phases. First, there’s an adjudication, after stipulations or an evidentiary hearing, that the child is in need of care. Second, if termination of parental rights is ultimately sought, there’s a termination order, also after stipulations or an evidentiary hearing. Because no expert testimony was presented in this case at the adjudication hearing, Mother and Father claim that the district court should have dismissed the action at that time.

While all the parties agreed that the adjudication hearing was a 1912 hearing that required QEW testimony, the court still found the lack of QEW testimony at the foster care placement hearing (1912) to be harmless error (that sound you just heard is ICWA attorneys across the country screaming in frustration).

This is pretty troubling, as under federal law, the QEW testimony has to happen at two stages in an ICWA proceeding–a foster care proceeding, and a termination of parental rights. Forcing the State to get QEW testimony is one of the parent’s main rights under the Act, and the legislative history makes pretty clear the QEW testimony is one of the primary ways Congress sought to counter bias in state court proceedings. In addition, as the Kansas court of appeals points out:

So the M.F. [Kansas Supreme] court stated in passing that “it is difficult to conclude a procedural violation of [the Indian Child Welfare Act] can be harmless.” M.F., 290 Kan. at 157 (citing 25 U.S.C. § 1914).

Right. In that case, In re M.F., the Kansas Supreme Court specifically held that a lack of QEW testimony is not harmless error. The Kansas court of appeals cites to a number of pre-In re M.F. decisions, plus the fact there was QEW testimony as the termination of parental rights hearing, to find that it can apply a harmless error standard here.