Chapter 6 : Section 10
Qualified Expert Witnesses in Indian Child Welfare Act Cases
Policy
According to the Indian Child Welfare Act (ICWA), no foster care placement or termination of parental rights may be ordered in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses (QEW) 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.
A designated Department QEW is required to have specific knowledge of the Indian tribe’s culture and customs.
A Department employee shall not testify as a Qualified Expert Witness (QEW) without authorization from the DCS Intergovernmental Tribal Liaison or Assistant Director of the Office of Accountability.
Department employees that manage or supervise an Indian child’s case are prohibited by ICWA from being used as the Qualified Expert Witness in hearings concerning that child.
Procedures
A qualified expert witness must have specific knowledge of the Indian Tribe’s prevailing social and cultural standards and customs, or is a:
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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;
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member of another tribe who is recognized to be a qualified expert witness by the Indian child’s tribe based on their knowledge of the delivery of child and family services to Indians and the Indian child’s tribe;
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layperson who is recognized by the Indian child’s tribe as having substantial experience in the delivery of child and family services to Indians, and knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribes; or
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professional person having substantial education and experience in the area of his or her specialty who can demonstrate knowledge of the prevailing social and cultural standards and childrearing practices within the Indian child’s tribe.
When it is determined that QEW testimony is needed, the Assistant Attorney General (AAG), will contact the child’s tribe, or tribal social worker in writing, and request that the tribe provide the QEW testimony.
If the tribe declines to intervene or provide testimony; or there is an unresolvable conflict regarding permanency, active efforts or placement preferences; the AAG forwards a completed ICWA Expert Testimony Request Form to the department’s QEW via email at Tribal Relations. The DCS Intergovernmental Tribal Liaison shall designate a QEW to provide testimony for the identified case. The assigned QEW will contact the DCS Specialist and AAG and request that they provide to the QEW any additional information that may be needed to complete the testimony.
If a tribe agrees to provide QEW testimony but does not attend a scheduled hearing, the DCS Specialist will contact the Department’s QEW via email at Tribal Relations with the following information:
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the JD number of the case;
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the assessment or case name;
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The child(ren)’s name;
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the tribe/tribal representative scheduled to attend the hearing;
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the date of the next court hearing; and
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the name and contact information for the assigned AAG.
The QEW will contact the AAG to discuss the next steps to ensure QEW testimony is available at the rescheduled hearing.
Forms
