Indian Child Welfare Summit Ken Levinson October 9, 2012

Where does the term ICW Qualified Indian Expert come from? What is the purpose of a Qualified Indian Expert? Who is a Qualified Indian Expert? Where do we look to define Qualified Indian Expert? How do you qualify someone as an ICW Qualified expert in court? Are ICW Qualified Experts different than any other kind of legal experts?

The Indian Child Welfare Act, 25 U.S.C. §§ The Washington State Indian Child Welfare Act, RCW § Guidelines for State Courts; Indian Child Custody Proceedings, Bureau of Indian Affairs, November 26, 1979

The Indian Child Welfare Act

§ 1912(e) tells us: No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, 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.

§ 1912(f) tells us: No 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.

So from the ICWA, we know that we need the testimony of qualified expert witnesses prior to the court issuing an order for: Foster care placements; and Termination of parental rights. But who is the qualified expert?

The Washington State Indian Child Welfare Act

(2) states: No involuntary foster care placement may be ordered in a child custody proceeding in the absence of a determination, supported by clear and convincing evidence, 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....

(3) states: No involuntary termination of parental rights may be ordered in a child custody 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....

Like ICWA, the WSICWA tells us we need the testimony of qualified expert witnesses prior to the court issuing an order for: Involuntary Foster care placements; and Involuntary Termination of parental rights.

"qualified expert witness" means a person who provides testimony in a proceeding under this chapter to assist a court in the determination of whether the continued custody of the child by, or return of the child to, the parent, parents, or Indian custodian, is likely to result in serious emotional or physical damage to the child (4)(a) But then we also get:

The WSICWA goes on to provide two different scenarios for how the qualified exert witness is identified: 1.When the child’s tribe has intervened or when the child’s tribe has entered into a local agreement with the department regardless of intervention 2.When the child’s tribe has not intervened or entered into a local agreement or the child’s tribe hasn’t responded to the request for an expert (4)(a)-(b)

Identify a tribal member or other person of the tribe's choice who is recognized by the tribe as knowledgeable regarding tribal customs as they pertain to family organization or child rearing practices.....this shall be done at least 20 days prior to the testimony Scenario 1: If a tribe has intervened or entered into a local then the department shall contact the tribe and ask the tribe to:

Scenario 2: The department shall provide a “qualified expert witness” who meets one or more of the following requirements:

(i) A member of the child's Indian tribe or other person of the tribe's choice who is recognized by the tribe as knowledgeable regarding tribal customs as they pertain to family organization or child rearing practices

(ii) Any person 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

(iii) Any person having substantial experience in the delivery of child and family services to Indians, and knowledge of prevailing social and cultural standards and child rearing practices in Indian tribes with cultural similarities to the Indian child's tribe

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

Can the assigned caseworker be the qualified expert witness in court?

How about the assigned caseworker’s supervisor?

(c) When the petitioner is the department or a supervising agency, the currently assigned department or agency caseworker or the caseworker's supervisor may not testify as a "qualified expert witness" for purposes of this section (c) provides:

The DSHS ICWA Manual

“QUALIFIED EXPERT OR QUALIFIED EXPERT WITNESS” means: A professional person recognized and approved by the child's Tribe and DSHS as having substantial education and experience in the area of his or her specialty, and extensive knowledge of the prevailing social and cultural standards, family organization and child rearing practices within the Indian community relevant to the Indian child who is the subject of the child custody proceeding or other action; A person recognized and approved by the child's Tribe and DSHS as having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of the prevailing social and cultural standards, family organization and child-rearing practices within the Indian community relevant to the Indian child who is the subject of the child custody proceeding or other action; or A member of the child's Indian community who is recognized within the community as an expert in tribal customs and practices pertaining to family organization and child-rearing.

BIA Guidelines for State Courts; Indian Child Custody Proceedings

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. D.4(a)

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 childrearing practices. i.Any 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 childrearing practices within the Indian child’s tribe. i. A professional person having substantial education and experience in the area of his or her specialty.

An expert is required on the following issue: Whether or not serious damage to the child is likely to occur if the child is not removed? Which basically involves two questions: 1.Is it likely that the conduct of the parents will result in serious or emotional harm to the child? 2.If such conduct will likely cause such harm, can the parents be persuaded to modify their conduct?

“... knowledge of tribal culture and childrearing practices will frequently be very valuable to the court. Determining the likelihood of future harm frequently involves predicting future behavior – which is influenced to a large degree by culture. Specific behavior patterns will often need to be placed in the context of the total culture to determine whether they are likely to cause serious emotional harm.” Commentary D.4

The party presenting an expert witness must demonstrate that the witness is qualified by reason of background and prior experience to make judgments on those questions that are substantially more reliable than judgments that would be made by non-experts. Foundation

Why no tribal law? ICWA doesn’t apply to cases in tribal court.

A person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. (dictionary.law.com) Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952). (commentary from FRE 702)

What is your occupation/profession? What is your educational background? What degrees, certificates, or licenses do you have? Have you attended or conducted continuing education seminars, conferences and related training? Are you a member in any professional organizations/societies? Have you received any awards or other professional recognition? Have you published articles in your field? How many cases involving [subject matter] have you handled? How many years have you worked in this field? These are typical questions an attorney would ask an expert in a typical case before asking the judge to certify the person as an expert:

Are you a member of the child’s tribe? How are you involved with the child’s tribe? How long have you been involved with the child’s tribe? How are your familiar with the childrearing practices of the child’s tribe? How are you familiar with the child’s tribe’s culture? Are you familiar with the delivery of child welfare services in the child’s tribe? How? In addition to standard questions about an expert’s professional background, what questions should you be asking an ICW Qualified Expert Witness?

Tribal Council identifies qualified experts by resolution. Only tribal members with blend of professional and cultural experience/knowledge are identified. Experts are made available to department caseworker and AAG prior to hearing.

There is lack of clarity on preparation prior to court Experts identified by the tribe are strong on tribal culture and tradition but not well-versed on legal framework in state court It is often impractical for Tribes to be at hearings/trials in foreign jurisdictions Distance often too great/cost too high County dockets are hard to predict (i.e. 2 nd set, no judge, etc.) Department will propose caseworker from “ICW unit” as expert and court will certify as expert

The ICW Qualified Expert must be selected by the child’s tribe Preference is for a tribal member The ICW Qualified Expert must know the culture and traditions of the Tribe

The ICW Qualified Expert must be prepped for giving testimony Why is Expert testifying? What information will be covered? Expert should be given the opportunity to explain his/her knowledge and experience (even if not challenged)

Questions?

Ken Levinson Director of Family Services, Nooksack Indian Tribe (360)