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

Here.

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.

Qualified Expert Witness Case out of Alaska Supreme Court [ICWA]

Here

I have been trying to figure out how to comment on this particular opinion, though I may just default to Alaska’s QEW holdings have always been outliers . . .

So as a reminder for us all, this is how the Minnesota Supreme Court described the purpose of the QEW:

The third clause—“including testimony of qualified expert witnesses”—further identifies what must be included as part of the court’s “beyond a reasonable doubt” determination. Id.; see also Larson v. State, 790 N.W.2d 700, 705 (Minn. 2010) (“[A] limiting phrase . . . ordinarily modifies only the noun or phrase that it immediately follows.”). The clause provides that testimony from a QEW must support the court’s serious-damage determination. But this testimony need not stand alone. The statute provides that the court’s serious-damage determination must be supported by evidence “including testimony of qualified expert witnesses.” 25 U.S.C. § 1912(f) (emphasis added). “Include” means “[t]o contain as a part of something.” Include, Black’s Law Dictionary (10th ed. 2014) (emphasis added). So long as the QEW testimony supports the district court’s serious-damage determination, section 1912(f) has been satisfied. In other words, the court may pair the required QEW testimony with other supporting evidence to make its serious-damage determination.

The Alaska Supreme Court is now interpreting the regulations to mean

. . . the primary consideration in determining whether an expert is qualified under ICWA is the expert’s ability to speak to the likelihood of harm to the child if returned to the parent’s custody; knowledge of tribal customs and standards is preferred, but such knowledge alone is insufficient. The experts in Oliver’s and Lisa’s cases, despite their extensive knowledge of tribal cultural standards, do not meet this requirement.

Therefore,

As a tribal elder and leader of his community, Encelewski is clearly qualified to testify to tribal cultural standards and childrearing norms. But nothing in the record shows he has sufficient knowledge, either through his experience on the ICWA committee or from formal training, to discuss specifically how Oliver’s conduct or the conditions in his home were likely to result in serious physical or emotional harm to the child if returned to his care. There is no evidence that the source of Encelewski’s conclusion that Oliver’s behavior would likely harm the child is based on anything other than Encelewski’s extensive life experience as a community leader and grandfather. This is insufficient to qualify him to testify about the likelihood of harm if the child is returned to Oliver. To meet the ICWA standards, Encelewski — as the sole expert testifying in support of terminating Oliver’s parental rights — must have been qualified to testify about that causal relationship; nothing in his testimony supports such a qualification.

Among other things, I believe this means that most QEW trainings for Alaska are going to need to fundamentally change to address this holding, especially for tribes using leaders or child welfare committee members as their QEWs.

Arizona Court of Appeals Requires Qualified Expert Witness in Guardianships [ICWA]

Here

Although ICWA does not explicitly recognize “permanent guardianships,” a comparison of Arizona’s statute for permanent guardianship and ICWA’s definition for a “foster care placement” shows that ICWA applies in permanent guardianships.

***

Section 1912(e)’s plain language states that no foster care placement, which includes permanent guardianships, may be ordered without expert-witness testimony on whether a parent’s or an Indian-relative custodian’s continued custody of a child will likely result in serious emotional or physical damage to the child. Therefore, a court must hear expert-witness testimony before ordering a permanent guardianship. The record shows that R.Y. was subject to ICWA and a guardianship proceeding took place. Thus, ICWA required the juvenile court to hear expert-witness testimony on whether Mother’s or the Indian-relative custodian’s continued custody of R.Y. would likely result in serious emotional or physical damage to R.Y.

This is a very important point–I get so many questions about the issue of guardianships used to avoid ICWA requirements and about the follow-up about whether a state-initiated proceeding can turn into a fully voluntary one:

Natasha S. also argues that Mother had converted the involuntary dependency into a voluntary matter when Mother petitioned to appoint Natasha S. as guardian, thereby eliminating the need for expert-witness testimony. But all of the proceedings, including the guardianship, arose out of a state dependency action that the Department had initiated. Thus, despite Mother’s motion, this was still an involuntary dependency action and required expert-witness testimony. Moreover, expert-witness testimony is required in voluntary child custody proceedings governed by ICWA. 25 U.S.C. §§ 1903(1)(i), 1912(e); 25 C.F.R. § 23.103(a)(1)

Qualified Expert Witness Case from Alaska [ICWA]

Eva H. v. State of Alaska

This is a case worth reading in its entirety for the discussion of the qualifications of the QEW but also the discussion of the testimony supporting the casual connection between the parents’ behavior and the removal of the children.

This QEW had been a Guardian ad Litem in the Yukon Kuskokwim Delta region for a number of years, however:

She agreed that she had no formal education in psychology, mental health, chemical dependency, substance abuse, social work, or therapy, and she did not recall having read any scholarly literature in these areas. She acknowledged that she was unable to “diagnose mental health issues,” though she testified she could recognize them based on her experience as an attorney and a GAL. But she further admitted that she did not use “any documents or models, like professional references, in order to make those conclusions”; she relied solely on her experience as an attorney and a GAL.

Then, she

did not address causation, as framed in the regulation, by testifying about how Keith and Eva’s conduct was likely to cause “serious emotional or physical damage to” the two boys. She drew no connections between specific conduct
and the likelihood of specific harm. We have held in the past that expert testimony need not directly address every aspect of this element of a termination decision; trial courts are allowed to consider “reasonable inferences from the expert testimony, coupled with lay witness testimony and documentary evidence from the record.” But when expert testimony is required in order to support termination in ICWA cases, trial courts may rely on reasonable inferences only from the testimony of witnesses who are qualified to testify on the subject.

North Dakota ICWA Case on Qualified Expert Witness

Here: Interest of K.S.D. and J.S.D., 2017 ND 289

The lack of qualified expert testimony on whether the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child leaves this record without evidence necessary for the district court to find the State established the ICWA requirement by proof beyond a reasonable doubt. 25 U.S.C. There is a line of authority that upholds termination of parental rights absent an ICWA qualified expert witness. We choose to follow the other branch of authority because the United States Code and the United States Code of Federal Regulations require—and do not merely suggest—that a qualified expert witness testify on the ICWA requirements in all ICWA terminations.

 

(Unrelated, one has to love a Court that only allows opinions to be downloaded as WordPerfect documents. That’s commitment.)

Termination of Parental Rights ICWA Case Out of Missouri

Here.

This case is illustrative of a lot of the things we talk about regarding practicing in an unfamiliar forum, and getting objections on the record.

The Tribe (Nenana Native Village) brought an appeal regarding the termination of parental rights, though the Tribe also has motions pending at the trial level to transfer jurisdiction and/or get the children in a preferred placement.

The state filed its petition against the Mom on June 11, 2015. The state sent notice on February 23, 2016. No reason for the eight month delay on notice is given in the opinion. In November of 2016 the state filed a petition to terminate parental rights. At that time, Mom agreed to voluntarily relinquish her parental rights. This is a regular issue under ICWA, because while Mom is voluntarily relinquishing, it is under state threat of termination. The Tribe argued that the state needed to at least follow 25 U.S.C. 1913’s requirements for voluntary relinquishment (it didn’t).

The court agreed the tribe had standing to bring the appeal (after much writing, but 25 U.S.C. 1914 ensures the tribe’s standing to appeal violations of 1911, 1912, or 1913), but disagreed that either the qualified expert witness was a problem, or that the state not following 1913 was a “manifest injustice”.

As a side note, the court also fundamentally misunderstands the difference between federal guidelines and federal regulations:

The Tribe’s argument on this point relies upon 25 C.F.R. Sec. 23.122(a), which provides guidance in interpreting Section 1912(f). Promulgated by the Bureau of Indian Affairs and published as regulations for interpreting the I.C.W.A., Section 23.122 notes that: [a] qualified expert must be qualified to testify regarding whether the child’s continued custody by the parent . . . is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe. 25 C.F.R. Sec. 23.122(a).

We note that while “[t]hese guidelines are helpful[, they] are not binding upon state proceedings.” C.E.H., 837 S.W.2d at 953 (citing Matter of Adoption of T.R.M., 525 N.E.2d 298, 307 (Ind. 1988)). This is because the “primary responsibility for interpreting language used in the [I.C.W.A.] rests with the courts that decide . . . cases [involving Native American children].” Id.

Finally, case also illustrates a point Victoria Sweet and I have presented on a number of times–preserving the record for appeal. Part of the issue with the case is the lack of objection from the Tribe below about the QEW, her testimony, or the termination itself. There are a lot of reasons why this might happen, but I’m using this case to reiterate: if a tribe disagrees with something that is happening in trial court, SAY SO OUT LOUD IN COURT (on the record).  It might be terrifying to do so. The judge might get angry, but ultimately the proceeding will continue. Later, though, if the tribe decides to appeal, the issue is preserved. Absent that preservation, the court of appeals will use a lower standard to review the trial court (if it reviews it at all), and as in this case, use a “plain error” standard and find there is none.

This is an opinion full of incredibly annoying legal details the court wanted the Tribe do to, while the state failed to follow any of the legal details in ICWA.

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.

Alaska ICWA Qualified Expert Witness and Active Efforts Case

Here.

This case delves deeply into the qualifications of a qualified expert witness under the 2015 BIA Guidelines. Those requirements were pretty specific, and as the court points out, prioritized cultural knowledge of the child’s tribe.

The 2015 Guidelines don’t govern cases initiated AFTER December 12, 2016, and instead the federal regulation (81 Fed. Reg. 38873; 25 CFR pt. 23.122) provides the definition and context of qualified expert witnesses. That definition (“a qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe”) provides far less guidance to the court as to who can be a QEW.  The regulation further states a QEW may be designated by the child’s tribe, and may not be the “social worker regularly assigned to” the child. The 2016 Guidelines now argue that specific professional knowledge might be more important than cultural knowledge. That may have been more helpful to the parent’s argument in this case.

Alaska ICWA Case on QEW and Guardianship

Here.

Ultimately the question turned on whether a long term guardianship is a foster care placement or a termination of parental rights (which have differing standards of proof). The court found it was a foster care placement, and required the testimony of a qualified expert witness.

Unpublished ICWA Case from Kansas Court of Appeals

There’s a lot of discussion about what the standards for removal are in an ICWA case at the first (emergency/24/48/72 hour/prelim/shelter care) hearing after a child is removed. This is the question of the Oglala Sioux v. Van Hunnik federal case. The federal regulations state that the standard is the one found in 25 U.S.C. 1922–whether the emergency placement is no longer necessary to prevent imminent physical damage or harm to the child. 81 Fed. Reg. at 38872.

The Kansas Court of Appeals agrees (In re D.E.J.):

The ICWA is clear that there are two ways to remove Indian children from their homes. The first method allows removal if two factors are satisfied: (1) the State proves that it engaged in active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and the efforts were unsuccessful; and (2) the court makes a determination supported by clear and convincing evidence, including the testimony of a qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912. Here, the State did not prove active efforts. And the magistrate judge did not use the expert witness’ testimony to support her determination that the children were in need of care. Thus, removal was inappropriate under 25 U.S.C. § 1912.

The second method of removal under the ICWA is emergency removal. Removal is appropriate under this method if the State proves that it is necessary to prevent imminent physical damage or harm to the child. 25 U.S.C. § 1922. While the district court made a finding that the children faced imminent harm at the initial removal, the district court did not find that the children faced imminent harm months later at the adjudication hearing. And the State did not present evidence that the children faced imminent danger at the time of the adjudication hearing. So, removal could not be legally effectuated under 25 U.S.C. § 1922.

***
The ICWA is very clear in requiring a finding of imminent physical harm or danger before allowing emergency removal. The ICWA is also clear that the traditional method of removal requires the State to engage in active efforts. The magistrate judge did not find that the State engaged in active efforts or that the children faced imminent physical harm, so she did not make sufficient findings under the ICWA to support continued removal.

(Emphasis in original)