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)
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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
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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
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Who would be a “qualified
expert witness”?
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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”
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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”
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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”
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A professional person having
substantial education and experience in
the area of his or her specialty
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Some states have removed this
category or modified it in state statute
Any interesting caselaw?
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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:
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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 error
In 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?
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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?
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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?
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the tribe’s history
how children are
viewed by the tribe
child rearing in the
tribe
use of discipline
cultural expectations
tribe’s services
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family’s history
protective issues in
family
particular incidents
this child’s needs
agency responses
tribe and family view
of situation
Experts need to :
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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:
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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:
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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:
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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
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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:
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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”?
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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
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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:
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Confidentiality issues
Money?
Create expert banks
Conflicts in opinion
The “larger” role of
the expert in helping
with permanency
issues
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Training for experts
and for attorneys
Should/can tribes
designate experts?