qualified expert witness

ICWA Qualified Expert Witness Case out of Kansas Court of Appeals

Kate Fort1 Comment

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

Kate Fort

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

Kate Fort

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

Kate Fort

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)

ICWA Case out of Texas Court of Appeals Declines to Extend Baby Girl

Kate Fort1 Comment

Here is the opinion.

The Court reversed a termination of parental rights because there was no qualified expert witness testimony. The State argued that because of Adoptive Couple v. Baby Girl, the section of ICWA governing burden of proof and QEW (25 U.S.C. 1912(f)) did not apply. The Court rejected this argument.

In addition, the Court used the 2015 Guidelines to determine if a proper QEW testified:

The Bureau of Indian Affairs has created guidelines for state courts to use in Indian child custody proceedings. Bureau of Indian Affairs Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10147 (February 25, 2015). These guidelines do not have binding legislative effect, but Texas appellate courts have utilized the Guidelines when interpreting ICWA. See In re K.S., 448 S.W.3d 521, 529 (Tex.App.–Tyler 2014, pet. denied) (utilizing the earlier version of the Guidelines); In re J.J.C., 302 S.W.3d 896, 900 (Tex.App.–Waco 2009, no pet.)(same); In re R.R., 294 S.W.3d at 217 (same); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163-64 (Tex.App.–Houston [14th Dist.] 1995, orig. proceeding). The updated BIA Guidelines address the applicable standards of evidence.

The updated BIA Guidelines address the applicable standards of evidence. Section D.3(b) states:

The court may not order a termination of parental rights unless the court’s order is supported by evidence beyond a reasonable doubt, supported by the testimony of one or more qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious harm to the child. [Emphasis added].

80 Fed.Reg. 10156. Thus, the challenged finding cannot stand unless it is supported by the testimony of a qualified expert witness.

Section D.4 pertains to the qualifications an expert witness must possess.

***

After reviewing the entire record, we conclude that the challenged finding is not supported by the testimony of a qualified expert witness. The caseworker, Lizette Frias, was not shown to possess the required knowledge or expertise. There is no evidence that Frias is a member of the Oglala Sioux tribe or another tribe, or that she is recognized by any tribe as having substantial experience in the delivery of child and family services to Indians. Further, there is no evidence that she has knowledge of the prevailing social and cultural standards and childrearing practices within the Oglala Sioux tribe.

Appellant Brief
State Brief

ICWA Qualified Expert Witness (primarily) Case Out of Alaska

Kate Fort

Here.

Footnote 7 discusses the old and new Guidelines with regards to QEWs, though the court relied primarily on the old Guidelines (the professional person who is an expert professional). The specific qualifications of the QEW in this case is discussed at pages 17-20.

Court held no due process violations and that termination was affirmed.

Unpublished ICWA Burden of Proof Case out of Michigan

Kate Fort1 Comment

Here.

The record demonstrates that although the trial court found that DP and AP were Indian children under the ICWA, the trial court did not apply the heightened “beyond a reasonable doubt” evidentiary standard of proof at the termination hearing as required under ICWA. Id.; 25 USC 1912(f). The record further demonstrates that although a representative of DP and AP’s Indian tribe testified at the termination hearing, the witness was never qualified as an expert and, importantly, the witness did not testify that respondents’ “continued custody of” DP and AP was “likely to result in serious emotional or physical damage to the” Indian children. 25 USC 1912(f); In re Morris, 491 Mich at 100 n 9. In both Docket No. 318105 and 318163, petitioner concedes that the trial court “committed reversible error” by applying the incorrect evidentiary standard of proof, and petitioner requests that we reverse the trial court’s termination of respondents’ respective parental rights to the Indian children and remand for further proceedings consistent with applicable ICWA provision. On the record before us, we agree that the trial court committed plain error affecting respondents’ substantial rights. In re Utrera, 281 Mich App at 8- 9; see In re Morris, 491 Mich at 100 n 9. In both Docket No. 318105 and 318163, we reverse the termination of respondents’ respective parental rights to the two Indian children, DP and AP, and remand for proceedings in compliance with ICWA, 25 USC 1912(f).

In re LNP, Guardianship and ICWA

Kate Fort

Wyoming Supreme Court decision.

Multiple ICWA issues, including applying ICWA to permanent guardianships, the shift from a temporary guardianship to a full or “plenary” guardianship, the requirements of a qualified expert witness, the ability of guardians to provide active efforts, and even a little existing Indian family doctrine in the qualifying of the expert witness.