What is a Qualified Expert Witness?

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May 052010
 

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Qualified Expert Witness:

According to Chief Judge-Sisseton-Wahpeton Sioux Tribal Court, Director-Northern Plains Tribal Judicial Institute-University of North Dakota Law School*, three stages of ICWA contain a requirement of qualified expert testimony to support state court action – foster care placement, termination of parental rights and deviating from the foster care and adoptive placement preference due to the extraordinary needs of the child. 25 U.S.C. SS1912(e); 1912(f), BIA Guidelines, F. 3 at 67594. The failure to produced qualified expert witness testimony may vitiate any proceedings held in state court. See In re. K.H., 981 P.2d. 1190 (Mont. 1999); Doty-Jabbar v. Dallas County, 19 S.W.3d 870 (Tex. App. 5th Dist. 2000). The ICWA does not define, “Qualified Expert Witness.”

However, IN THE MATTER OF THE ADOPTION OF H.M.O. , No. 97-262, MT 175, (1998), it is stated “the Guidelines for State Courts; Indian Child Custody Proceedings (the Guidelines)”, defines expert witnesses for ICWA purposes. Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318.

The Guidelines: D.4. Qualified Expert Witnesses

(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodian is likely to result in serious physical or emotional damage to the child.

(b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childbearing practices.

(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childbearing practices within the Indian child’s tribe.

(iii) A professional person having substantial education and experience in the area of his or her specialty.

44 Fed.Reg. 67584, 67593 (1979).

Despite the third category, H.M.O goes on to say:

33…” courts have held that social workers must have qualifications beyond those of the normal social worker to be qualified as experts for the purposes of the ICWA. See, e.g., In re Elliott (Mich. Ct. App. 1996), 554 N.W.2d 32, 37 (citation omitted); Matter of N.L. (Okla. 1988), 754 P.2d 863, 868 (citations omitted). Those courts based their conclusions on the legislative history of the ICWA which requires “expertise beyond the normal social worker qualifications.” See In re Elliott, 554 N.W.2d at 37 (citation omitted); Matter of N.L., 754 P.2d at 868 (citations omitted); see also House Report for the Indian Child Welfare Act, H.R. 1386, 95 Cong., 2d Sess. 22, reprinted in 1978 U.S.C.C.A.N. 7530, 7545. Based on these cases and legislative history, we hold that a social worker must possess expertise beyond that of the normal social worker to satisfy the qualified expert witness requirement of 25 U.S.C. § 1912(f).

34 As discussed above, Jackman’s report contains no substantive information regarding her qualifications and experience other than that she was a social worker employed by the Department. On the basis of the record before us, we hold that the District Court abused its discretion in concluding that Jackman was a qualified expert witness for ICWA purposes.

QUESTIONS:

If a child is 1/2 Hispanic and has been raised in a Hispanic community, speaking Spanish, does the prevailing social and cultural standards of the tribal community still take precedence in the placement of that child?

What if the child is 9/10 tribal, but his parents simply chose to raise him in an alternate community with alternate standards and customs?

What is the “tribal community?” If the child lives in an inner city tribal Community, would that then be the child’s tribal community? Does an inner city tribal community have the same customs, cultural standards and child rearing practices as a closed reservation does?

Wouldn’t a witness be more qualified and expert in the well being of the child if the witness understood the community in which the child has been raised and the community within which the family exists, rather than the community in which the tribe exists?

Who is the Expert Witness testifying for?
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ICWA Case Law & other Authority

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May 012010
 

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Cases:
Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 280 Cal.Rptr. 194
Doe v. Hughes, Thorness, Gantz, et al. (Alaska 1992) 838 P.2d 804
In re Alexandria Y. (1996) 45 Cal.App.4th 1483, 53 Cal.Rptr.2d 679
In re Alicia S. (1998) 65 Cal.App.4th 79, 76 Cal.Rprt.2d 121
In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 282 Cal.Rptr. 105
In re Brandon M. (1997) 54 Cal.App.4th 1387, 63 Cal.Rptr.2d 671
In re Bridget R. (1996) 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507
In re Charloe (Ore. 1982) 640 P.2d 608
In re Crystal K. (1990) 226 Cal.App.3d 655, 276 Cal.Rptr. 619
In re Crystal R. (1997) 59 Cal.App.4th 703, 69 Cal.Rptr.2d 414.
In re Derek W. (1999) 73 Cal.App4th 828, 86 Cal. Rptr.2d 742.
In re Desiree F. (2000) 83 Cal.App.4th 460, 99 Cal.Rptr.2d 688
In re John V. (1992) 5 Cal.App.4th 1201, 7 Cal.Rptr. 629
In re Jonathan D. (2001) 92 Cal.App.4th 105, 111 Cal.Rptr.2d 628.
In re Julian B. (2000) 82 Cal.App.4th 1337, modified by 83 Cal.App.4th 935A, 99 Cal.Rptr.2d 241
In re Junious M. (1983) 144 Cal.App.3d 786, 193 Cal.Rptr. 40
In re Kahlen W. (1991) 233 Cal.App.3d 1414, 285 Cal.Rptr. 507
In re Krystle D. (1994) 30 Cal.App.4th 1778, 37 Cal.Rptr.2d 132
In re Larissa G. (1996) 43 Cal.App.4th 505, 51 Cal.Rptr.2d 16
In re Laura F. (2000) 83 Cal.App.4th 583, 99 Cal.Rptr.2d 859
In re Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 97 Cal.Rptr.2d 303
In re Levi U. (2000) 78 Cal.App.4th 191, 92 Cal.Rptr.2d 648
In re Marinna J. (2001) 90 Cal.App.4th 731, 109 Cal.Rptr 2d 267
In re Matthew Z. (2000) 80 Cal.App.4th 545, 95 Cal.Rptr.2d 343
In re Michael G. (1998) 63 Cal.App.4th 700, 74 Cal.Rprt.3d 642
In re Pedro N. (1995) 35 Cal.App.4th 183, 41 Cal.Rptr.2d 507
In re Pima County Juvenile Action (Ariz. 1981) 635 P.2d 187
In re Richard S. 54 Cal.3d 857, 2 Cal.Rptr.2d 2
In re Riva M. (1991) 235 Cal.App.3d 403, 286 Cal.Rptr. 592
In re Robert T. (1988) 200 Cal.App.3d 657, 246 Cal.Rptr. 168
In re Santos Y. (2001) 92 Cal.App.4th 1274, 112 Cal.Rptr.2d 692, review denied (Feb. 13, 2002)
In re Wanomi P. (1989) 216 Cal.App.3d 156, 264 Cal.Rptr. 623
In re William G., Jr. (2001) 89 Cal.App.4th 423, 107 Cal.Rptr.2d 436
Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, L.Ed.2d 29
Morton v. Mancari (1974) 417 U.S. 535
Native Village of Venetie I.R.A. Council v. State of Alaska (9th Cir. 1991) 944 F.2d 548
Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49
Slone v. Inyo County (1991) 230 Cal.App.3d 263, 282 Cal.Rptr. 126
State Ex Rel. Juvenile Dept. of Lane County v. Shuey (Ore.1993) 850 P.2d 378

Cases (de-published or partially unpublished on ICWA issue):
In re Adam N. (2000) 101 Cal.Rptr.2d 181
In re Bettye K.(1991) 285 Cal.Rptr. 633
In re Carlos G. (1999) 88 Cal.Rptr.2d 623
In re Jacqueline L. (1995) 39 Cal.Rptr.2d 178
In re Santos Y. (2001) 110 Cal.Rptr.2d 1
In re Se.T. (2002) 115 Cal.Rptr.2d 335

Statutes and Other Authority (Specific to Indians):
Indian Child Welfare Act of 1978, 25 U.S.C. §§1901 et seq.
Indian Child Welfare Act Regulation, 25 C.F.R. Part 23.
Indian Child Welfare Act, Legislative History, H.R. Rep. 95-1386, 95th Cong.2d Sess. 22, 1978 U.S. Code Cong. & Admin. News 7530.

Bureau of Indian Affairs Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67584 (Nov. 26, 1979)
California Family Code
Section 7810 [Calif. declaration of policy, existing Indian family doctrine abrogated.]
California Welfare and Institutions Code
Section 305.5 [Transfer to Tribe after reassumption of exclusive jurisdiction.]
Section 360.6 [Calif. declaration of policy, existing Indian family doctrine abrogated.]
Section 11401(e) [AFDC-FC for Indian placements.]
Section 10553.1 [Director’s delegation agreement with Indian Tribe.]

Cal. Rules of Court
Rule 1410 – Persons present.
Rule 1412 (I) – Tribal representatives.
Rule 1439 – Indian Child Welfare Act.
Manual of Policies and Procedures, California Department of Social Services, §31-515 et seq – Indian Child Welfare Act.
Manual of Policies and Procedures, California Department of Social Services, §45-101; §45-202, §45-203. [Implementing section 11401(e).]
SDSS All County Letter No. 89-26, Procedures for Certifying Indian Blood for Children in Adoption Planning.
SDSS All County Letter No. 95-07, AFDC-FC Program Eligible Facility Requirements.
Appeal of William Stanek, 8 Indian L.Rep.5021 (April 1981)(decision of the Commissioner of Indian Affairs.) [p. 3.]
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