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.
Here. This is an unpublished termination of parental rights out of the Minnesota Court of Appeals. Here is the concurrence in its entirety::
With a backdrop of historical trauma and a high number of Indian children being removed from their families and tribes by nontribal agencies, Congress passed the Indian Child Welfare Act (ICWA). See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32-37, 109 S. Ct. 1597, 1599-1602 (1989) (detailing the background for ICWA). Government must meet a high bar to terminate a parent’s parental rights in any case. ICWA and the Minnesota Indian Family Preservation Act require an even higher standard to terminate parental rights to an Indian child: proof beyond a reasonable doubt that returning the children to the parent will likely result in serious emotional or physical harm to the child. 25 U.S.C. § 1912(f) (2016) (ICWA); Minn. Stat. § 260.771, subd. 6(a) (2016)
Scant attention was given to this high standard during trial. This is troubling. Only one witness was asked to opine on the ultimate question of proof beyond a reasonable doubt. And, as the majority points out, that witness equivocated. And even after this court remanded the case to the district court, asking the court to directly address this question, the district court did not elaborate on the critical issue. It simply amended the findings to state that “[c]ontinued custody of [the children] by [mother and father] is likely to result in serious emotional or physical damage to the Children.”
I expect more when it comes to termination of parental rights for Indian children. We all should.
Yet I concur with the majority’s decision despite my view that, based on the nature of the expert testimony, this is a close case. I concur because the majority is correct that when we dive deep into the record we see children who suffered serious emotional damage with no realistic path to a different future with their parents. I concur because the tribe was unwilling to accept a transfer of jurisdiction to tribal court. I concur because the tribe supports termination of parental rights. And, most fundamentally, I concur because these children, like all children, deserve a permanent home, without additional delay.
But I remain concerned. In a state in which out-of-home placement for Indian children far exceeds the percentage for any other group of children, we need greater diligence in adhering to the high standards dictated by ICWA and the Minnesota Indian Family Preservation Act.