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.

Child Welfare Jurisdiction Case out of Utah


The child welfare case did not fall under ICWA because the child was not as a member or eligible for membership in the tribe, so the Court used the UCCJEA to determine jurisdiction.

Utah Court of Appeals ICWA Active Efforts Case


Contrary to Father’s assertions, the testimony of the
ICWA expert witness from the Navajo tribe does not undermine
the juvenile court’s determination that further services directed
to Father would be futile. The ICWA expert witness testified that
she tried to contact Father toward the beginning of the case, but
that his number was out of service. She also testified that Father
was in need of services to address parenting, substance abuse,
and domestic violence issues, and that he was not ready to take
custody without those services. With regard to the active efforts
requirement, the expert testified that she ‚would like to see a
little more effort by‛ DCFS, but that Father ‚needed to stay in
contact with‛ DCFS.

Utah Appeals Court Denies Transfer to Tribal Court

Granted, it’s a strange and short decision about voluntary relinquishment. But we post it as another example of what state courts do when a tribe allows a case to go forward in state court and then moves to transfer at a later date.

After monitoring the case for approximately one year, the Tribe filed a motion to transfer the case to its tribal court. In response to the motion, the juvenile court found that good cause existed not to transfer jurisdiction to the tribal court due primarily to the fact that the case was in an advanced stage of litigation and all relevant witnesses resided in Utah.

Opinion here.

Article on Judge Thorne’s Retirement from the Bench


As a side note, Judge Thorne spent the last few days in Montana, doing an incredible job encouraging the tribes and state to work together to find ways to achieve better outcomes for Indian kids. Given the work he plans on doing in his retirement, we think “retirement” should really be in quotes. Which is lucky for all of us.

Utah Appellate Court Decides ICWA Case

Here is the as-yet unpublished opinion in In re M.J.

An excerpt:

A.J. and J.J. (Mother and Father, respectively) appeal the juvenile court’s order terminating their parental rights in M.J. and S.J. (the Children). On appeal, Mother and Father argue that the juvenile court erred in determining that it did not have “reason to know” that the Children were Indian children under the Indian Child Welfare Act (ICWA), 15 U.S.C. §§ 1901–63 (2006), and that ICWA, therefore, did not apply in this case; that the evidence was insufficient to justify termination of their parental rights; and that the juvenile court committed plain error by failing to follow the proper procedure when ordering the Children to be removed. We affirm.

Utah Court of Appeals Forces Lower Court to Comply with ICWA

Here is the opinion in State of Utah in the Interest of C.D. et al. from the Utah Court of Appeals. An excerpt:

The juvenile court’s December 5, 2007 Findings of Fact, Conclusions of Law, and Adjudication Order is affirmed in part, reversed in part, and the case is remanded for further proceedings. We affirm the juvenile court’s ruling that further efforts with Grandfather would be futile. However, we reverse on the placement issue and remand to the juvenile court so that the State can immediately either place the children in accordance with the ICWA’s preferences or create a record demonstrating its attempts to comply and good cause for deviating from those preferences.