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Qualified Expert Witness Re: ICWA

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?

HMO

21 Did the District Court err under the ICWA by granting the petition for adoption absent supporting testimony from a qualified expert witness?

22 At the beginning of the hearing, the District Court determined that H.M.O. would be treated as an Indian child and, therefore, that the ICWA applied to the proceedings; neither party appealed from that determination. The District Court subsequently concluded that Jackman's report, McCracken's deposition, and Richard's opinion testimony constituted the qualified expert evidence required by the ICWA to support its finding, beyond a reasonable doubt, that Barbara's continued custody of H.M.O. would likely result in serious emotional or physical damage to H.M.O. On that basis, the District Court ordered Barbara's parental rights terminated and granted Shannen's petition for adoption.

23 Barbara argues that, under the ICWA, her parental rights cannot be terminated absent testimony from at least one qualified expert witness that serious emotional or physical damage to H.M.O. likely will occur if Barbara's joint custody is continued. She contends that the District Court's "serious emotional or physical damage" determination is not supported by qualified expert testimony.

24 As a threshold matter, Shannen contends that this issue is not properly before us because Barbara raises it for the first time on appeal. Barbara responds that the first notice she had that Jackman and McCracken were to be treated as experts for ICWA purposes was when the District Court entered its findings of fact, conclusions of law, and order.

25 We generally will not address an issue raised for the first time on appeal when the appellant had an opportunity to object at the trial level. Cenex v. Board of Com'rs of Yellowstone (1997), 283 Mont. 330, 337-38, 941 P.2d 964, 968 (citation omitted); State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491 (citation omitted). In cases where the party has not had an adequate opportunity to object, however, we will address the issue. See Cenex, 283 Mont. at 338, 941 P.2d at 968. For the reasons set forth below, we conclude that Barbara did not have an adequate opportunity to object to the District Court's reliance on Jackman and McCracken as expert witnesses. Therefore, this issue is properly before us.

26 The ICWA provides that: [n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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.

27 With regard to the foundation necessary to qualify an expert pursuant to Rule 702, M.R.Evid., and Cottrell, it is clear that no such foundation was laid for either Jackman or McCracken. Jackman did not testify at the hearing and, as a result, no effort was made to qualify her as an expert for ICWA purposes. Consequently, the only information of record regarding her qualifications is contained in her routine report regarding the suitability of Shannen and Randy's home as a permanent home for H.M.O., which was submitted for the District Court's consideration by stipulation of the parties. That information disclosed only that Jackman was a social worker for the Department. No party having laid the necessary foundation, the District Court had insufficient information before it to determine that Jackman qualified as an expert under Rule 702, M.R.Evid.

28 Similarly, Shannen did not offer--or qualify--McCracken, who is Shannen's mother, as an expert witness. Like Jackman, McCracken did not testify in person during the hearing. Her testimony was admitted via her perpetuation deposition and there is no suggestion therein that she was being offered as an expert witness. While McCracken's deposition reflects that she is a school teacher with an elementary education degree and an endorsement in special education, we conclude that such information set forth in a vacuum--that is, without any disclosure that the witness is being offered and qualified as an expert--cannot constitute an adequate foundation. Therefore, we conclude that the District Court abused its discretion by implicitly determining that an adequate foundation had been laid for receipt of McCracken's deposition testimony as expert evidence.

29 Shannen contends, however, that Jackman, McCracken and Richard were, in fact, qualified expert witnesses for ICWA purposes and that their testimony supported the District Court's finding, beyond a reasonable doubt, that Barbara's continued joint custody of H.M.O. would likely result in serious emotional or physical damage to the child. We address these matters in turn.

30 Where the ICWA applies, the Guidelines for State Courts; Indian Child Custody Proceedings (the Guidelines), regarding expert witnesses for ICWA purposes, also apply. Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318. The Guidelines provide:

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).

 

Montana -

¶22 Clausell relies on In re K.H., 1999 MT 128, 294 Mont. 466, 981 P.2d 1190, in urging us to distinguish between Clinical and Forensic Pathology for purposes of whether an expert is qualified to testify at a homicide trial. Clausell's reliance is misplaced, if not disingenuous. In K.H., we held that a social worker with no training regarding Native American culture was not a "qualified expert witness" as that term is used in 25 U.S.C. § 1912(f) of the Indian Child Welfare Act (ICWA). K.H., ¶¶ 28-31. We noted, however, that the federal ICWA and its subsequently promulgated regulations and guidelines "add a dimension to expert testimony not normally required under Montana law." K.H.,

¶ 23 (internal citations and quotations omitted). Clearly, a "qualified expert witness" pursuant to the ICWA is not equivalent to an "expert by knowledge, skill, experience, training, or education" pursuant to Rule 702, M.R.Evid. Thus, K.H. is not applicable here.

¶30 Where the ICWA applies, the Guidelines for State Courts; Indian Child Custody Proceedings (the Guidelines), regarding expert witnesses for ICWA purposes, also apply. Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318. The Guidelines provide:

D.4. Qualified Expert Witnesses

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.

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

1. 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.
2. 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.
3. A professional person having substantial education and experience in the area of his or her specialty. 44 Fed.Reg. 67584, 67593 (1979).

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