The ICWA Expert Witness New Mexico

May 2012

Presenting Quality Evidence

To Protect the Best Interests of Indian Children

By Margaret A. Burt, Esq.

Copyright 2012

When are ICWA experts used?25 U.S.C. §1912 (e) ICWA child -- Removal from Home ICWA child – TPRs

Also used to assist: placement priority decisions May be the liaison to advise agency and

Tribe and court

When in the procedure for the removal does the expert testify? Some states do it at the

emergency/removal/shelter care hearing New Mexico decision:

Esther V., State of New Mexico CYFD v Marlene C.

Findings of §1912(d) and (e) to be at the adjudicatory hearing

Who would be a “qualified expert witness”?

Statute does not define Legislative history says witness has

more than typical social worker qualifications (HR Rep. 95-1386 at 22, 1978)

Federal Guidelines describe 3 possibilities in “D4” (44 Fed Reg. Nov 26, 1979)

The “gold standard”

Member of Indian child’s tribe who is recognized by tribal community as knowledgeable in tribal customs as they pertain to family organizations and childrearing practices

OR:“silver standard”

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 child rearing practices within the Indian child’s tribe

Or:“Use at your own risk” A professional person having

substantial education and experience in the area of his or her specialty

Some states have removed this category or modified it in state statute

Any interesting caselaw? In Re Custody of S.E.G., 507 N.W.2d

872 (Minn, Ct. App. 1993) and State ex rel. Juvenile Dept. v Charles 688 P.2d 1354 (Or. Ct. of App. 1984)– ed. qualifications not as important as knowledge of tribal customs and traditions

In Interest of M.H. 691 N.W. 2d 622 (S.D. 2005) - atty who worked with 2 other tribes but did not know child’s tribe

Caselaw has allowed: Psychologists Child’s Counselor (Masters degree) Social workers with experience working

with Indian families and/or familiar with the tribal culture

Tribe’s ICWA director

Failure to offer a QEW could be reversible errorIn Re K.H.., 961 P.2d 1190(Mont.1999)In Re M.P.M. 976 P2d 988 (Mont. 1999)In re Adoption of H.M.O., 262 P2 1191 (Mont. 1999)Doty-Jabbar v Dallas County 19 S.W.3d 870 (Tex. App .5th Dist. 2000)Steven H. v Ariz Dept of Economic Security, 173 P.3d 479 (Ariz. App 2008)

If case is being settled, does QEW still have to testify? Different with removal or TPR?

Could the agency caseworker ever be the QEW, say if they have worked with Indian families or is this a built in bias?

What if there is no real “cultural bias” in the removal/grounds for TPR – can the court excuse this testimony, or use an expert who is not particularly knowledgeable of tribal culture and child rearing?

Maybe a dozen or so reported cases from Arizona, Alaska, Oklahoma, Colorado, Nebraska, Oregon, North Dakota, Kentucky - many were TPRs on mental illness type grounds

Is the QEW more than a witness?

Add a “nonagency” prespective re active services and safety

Provide all parties with the tribe’s position on the matter

Caselaw says it should be a person who really does provide court with better understanding of tribe’s family and childrearing traditions

Could there be more than one expert in a case?

Judge should rule who is the expert and the burden is on the agency – assume they could offer more than one

Seems like anyone else could offer an expert from their POV

What does the expert actually testify about? 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 custodians is likely to result in serious physical or emotional damage to the child

Why do you need an “expert” on Indian issues to prove likely damage to a child? The party who is seeking to have the child

removed or parental rights terminated must prove to the court that active efforts, in the context of the prevailing social and cultural conditions and way of life of the Indian tribe, have been made and that available family and tribal services and been used and that the risk is still present

So what kind of things would an expert need to know about? the tribe’s history how children are

viewed by the tribe child rearing in the

tribe use of discipline cultural expectations tribe’s services

family’s history protective issues in

family particular incidents this child’s needs agency responses tribe and family view

of situation

Experts need to : Demonstrate expertise and credentials Give examples of how they know about

the child’s tribe What does Judge need to know about

the tribe and about the case? Give clear examples of what specifically

is “likely” if child remains in home Take the time needed to review the case

Also: Expert should talk to attorney in advance

and of course be honest re that Expert should talk to the “other side” Should not read from notes but bring them Report might be helpful, worth considering

but, do not assume the report has been read but don’t assume it hasn’t

Expert should not be “expert of all things” – know limits

Good expert should prepare by: Reviewing all the records Talk to all the relevant people Consider how the cultural knowledge

that expert has may be relevant to the issues in the case

WHAT serious physical or emotional damage does CYFD think is likely – does expert agree or disagree and why?

CYFD attorney: NEED to work with expert before

calling them to the stand Attorney should make clear what they

think they need but allow expert to form own opinion

Use expert to EDUCATE you Know experts relevant credentials Other cases involved in Understand what expert can/cannot say

CYFD attorney Any literature or props that expert could

use that would be helpful? Who has expert talked to - not talked

to? Does expert have notes or a file?

Should there be a written report?

Types of Questions:

Putting a report in evidence Review of expert’s knowledge base Explaining theories Use of hypothetical questions

THE opinion question:

Do you have an opinion within a reasonable degree of certainty as to whether continued custody by the child’s parents would likely result in serious physical or emotional damage?

In Court: How are experts “qualified”? Stipulation vs Foundational Questions

Use of a CV “Voir Dire” of expert’s qualifications “Certification” as an expert Court should make clear detailed rulings

as to who is the QEW, why they are qualified and what their opinion is, and that court considered it as part of decision

Defense attys and child advocates Do discovery to learn about agency’s QEW

– what if it looks like they do not have one? Meet with/ give input to agency QEW Use your own expert Attack qualifications – is this the “real

expert” Attack knowledge base – was it just a

paper review of case? Look for prior relationship –allege bias

Some other details to think about: Confidentiality issues Money? Create expert banks Conflicts in opinion The “larger” role of

the expert in helping with permanency issues

Training for experts and for attorneys

Should/can tribes designate experts?