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ICW Qualified Indian Expert Witness - DSHS

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					ICW QUALIFIED INDIAN EXPERT WITNESS

                       Indian Child Welfare Summit
                                      Ken Levinson
                                   October 9, 2012
SOME PRELIMINARY QUESTIONS

• 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?
SOURCES OF LAW/GUIDANCE

  • The Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963
  • The Washington State Indian Child Welfare Act, RCW § 13.38
  • Guidelines for State Courts; Indian Child Custody Proceedings, Bureau
    of Indian Affairs, November 26, 1979
The Indian Child Welfare Act
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.
THE INDIAN CHILD WELFARE ACT


§ 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.
THE INDIAN CHILD WELFARE ACT


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
THE WASHINGTON STATE INDIAN CHILD WELFARE


 13.38.130 (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. . . .
THE WASHINGTON STATE INDIAN CHILD WELFARE


 13.38.130 (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. . . .
THE WASHINGTON STATE INDIAN CHILD WELFARE


 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.
THE WASHINGTON STATE INDIAN CHILD WELFARE


 But then we also get:


 "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.

                                                                     13.38.130 (4)(a)
THE WASHINGTON STATE INDIAN CHILD WELFARE


 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




                                                               13.38.130 (4)(a)-(b)
THE WASHINGTON STATE INDIAN CHILD WELFARE


 Scenario 1: If a tribe has intervened or entered into a local then the department
 shall contact the tribe and ask the tribe to:

                      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
THE WASHINGTON STATE INDIAN CHILD WELFARE




 Scenario 2: The department shall provide a “qualified expert
 witness” who meets one or more of the following
 requirements:
THE WASHINGTON STATE INDIAN CHILD WELFARE



         (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
THE WASHINGTON STATE INDIAN CHILD WELFARE



                      (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
THE WASHINGTON STATE INDIAN CHILD WELFARE




                        (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
THE WASHINGTON STATE INDIAN CHILD WELFARE



              (iv) A professional person
            having substantial education
                    and experience
         in the area of his or her specialty .
THE WASHINGTON STATE INDIAN CHILD WELFARE



   Can the assigned caseworker be the
    qualified expert witness in court?
THE WASHINGTON STATE INDIAN CHILD WELFARE



  How about the assigned caseworker’s
              supervisor?
THE WASHINGTON STATE INDIAN CHILD WELFARE


 13.38.130(c) provides:


 (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. . . .
The DSHS ICWA Manual
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
BIA GUIDELINES


 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)
BIA GUIDELINES
 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.
BIA GUIDELINES - COMMENTARY
 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?
BIA GUIDELINES - COMMENTARY
 “. . . 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
BIA GUIDELINES - COMMENTARY

 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.
EXPERTS IN GENERAL

  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)
EXPERTS IN GENERAL

   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:

  •   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?
QUALIFIED EXPERT WITNESS

   In addition to standard questions about an expert’s professional
   background, what questions should you be asking an ICW Qualified
   Expert Witness?

  • 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?
WHAT DO WE DO AT NOOKSACK?

 • 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.
WHAT I OFTEN SEE

 • 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. 2nd set, no judge,
        etc.)
 • Department will propose caseworker from “ICW unit” as
   expert and court will certify as expert
SUMMARY

• 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
SUMMARY

• 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
KLevinson@nooksack-nsn.gov
(360) 306-5093

				
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