Indian Child Welfare

Defining the role of the qualified expert witness

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One day last spring, I sat in the gallery of a California District Court that was considering whether to place a Native American child in a foster home. When I was called to the stand, I answered questions about whether continuing the parents’ custody of the child would be likely to result in serious emotional or physical damage to the child and whether the county made an active effort to prevent removing the child from the home. I was asked about my experiences and knowledge regarding the child’s tribe and whether I felt the allegations were contrary to the tribe’s traditional child-rearing practices. I was there to testify as a qualified expert witness (QEW)—someone who can serve as an expert on the American Indian community, child-rearing practices, and culture in accordance with the Indian Child Welfare Act (ICWA).

Within a month I was in another county courtroom in the same role. But the attorney in that court had completely different expectations of my role and very different questions than the attorney in the case weeks prior. In this county, the understanding of ICWA and the QEW’s role seemed to be confused with a traditional “expert witness” one hires to testify in court. As I worked with the county, reviewed the case, and prepared my testimony, it became clear to me that these misunderstandings and sharp differences between two neighboring counties could cause a dramatic difference in the outcomes for the children involved. While there have been publications which address the ICWA itself, little has been written or discussed in regards to the QEW’s role. I had very little documentation to help guide the county district attorneys’ understanding of Indian child welfare, the nuances of ICWA, and what my role as a QEW should be.

As an expert in the area of Indian child welfare policy, I have worked with a variety of government agencies, tribal governments, and community-based agencies. In my most recent role as a consultant and facilitator, I am developing collaborative processes between agencies to create common understanding in regards to ICWA and its requirements. Through this work, I’ve seen that while many organizations have some common understandings of ICWA, the processes and requirements under the law are subject to interpretation. In more cases than not, provisions within the law are interpreted differently depending on where the case is being heard.

Tribes, who often have children living all over the country, experience a variety of interpretations of these regulations and often have to explain the tribe’s role to each court system and child welfare system. In response, the National Indian Child Welfare Association (NICWA) came together to become the leading resource for tribes in acquiring knowledge and resources regarding ICWA. Over the years, state Indian child welfare managers also began to seek ICWA resources and knowledge.

What is ICWA?

Throughout history non-Indian judges and social workers, failing to value traditional Indian child-rearing practices different from the mainstream community, interpreted day-to-day life in the homes of Indian children to be contrary to the children’s best interest based on traditional American values. These views were supported by commonly accepted child welfare practice.

In 1978, after years of debate and advocacy by American Indian community groups and tribes, the Indian Child Welfare Act (ICWA) established new standards for Indian children as members of sovereign tribal nations. ICWA set minimum federal standards that must be applied in state child custody proceedings involving American Indian/Alaska Native children and acknowledged tribes’ right to participate in child custody proceedings. The three core purposes of the act are to stop the removal of Indian children from their homes due to cultural bias, to acknowledge tribal sovereignty, and to preserve the bond between Indian children and their tribes and cultures.

The law sets protocols for determining whether a child is considered part of an Indian tribe and notifying tribes and parents of proceedings. ICWA also requires that “active efforts” be taken to prevent a child’s removal, specifies a series of placement preferences, and requires a qualified expert witness to provide testimony in cases involving Indian children to prevent bias.

The Need for Tools

In 1999, a group of state Indian child welfare managers came together with a goal of helping managers throughout the country support each other. Early this year, this group formalized their relationship and became the National Asso-ciation of State Indian Child Welfare Managers (NASICWM). For more than a decade, the group has engaged in a national dialogue on the subject of Indian child welfare from the perspective of state and local government workers and managers. The group addresses issues related to child welfare data and makes recommendations—such as including Indian child welfare data elements in the AFCARS and SACWIS systems, and developing policy by discussing current issues and analyzing available data. The association has generated a body of work in the form of guidelines, recommendations, and tools with support from CWLA and Casey Family Programs.

In 2010, NASICWM developed several tools around ICWA in collaboration with tribes, states, and Indian child welfare professionals. Tools developed have covered areas of state/tribal agreements, the recruitment and retention of foster parents, and most recently qualified expert witness guidelines. “The tools developed are important in compliance, consistency, and raising the issues with solution-based documents to assist those who do the work, through training and on a macro level, to bring attention to improvements within the state,” Mary McNevins, a co-founder of NASICWM who also serves as the Oregon ICWA manager, explains.

A collaborative workgroup of state Indian child welfare managers developed a toolkit on tribal/state intergovernmental relationships that addresses state responsibility for relationships with each of the tribes with governmental operations within that state. The toolkit helps states and tribes work together on matters of mutual benefit in a child welfare context. Increasing the quality of state/tribal relationships has potential to have a significant impact in achieving positive outcomes for Indian children and families receiving state child welfare services. By honoring tribal direction and decisionmaking in these cases (as provided in ICWA) and supporting tribes in their provision of needed services and interventions, we may be able to reduce the number of placements of native children into state-sponsored out-of-home care and facilitate the reunification of many families.

“The tools assist in enhancing our state training curriculum and in our liaison work between the state and tribes,” says Linda Johns, Policy and Program Analyst for the Department of Children and Families in Florida. “Networking is one of the most powerful ‘tools’ available to us.” Leslie Powless, the Indian child welfare advocate liaison in Illinois, agrees. “The sharing of information is so critical to being useful to our children, families, and colleagues in Illinois,” she says. “My role can be challenging at times, however, I am aware that I have a network of support.”

Another important tool developed last year aims to improve recruitment and retention of Native American resource families in state foster care systems. This has been a topic of national debate, as currently not all U.S. states are fully compliant with the placement preferences outlined by ICWA. States cite a shortage of licensed and available native families as the reason why they are unable to meet placement recommendations. In an effort to eliminate that problem, NASICWM developed “Native American Foster Care Recruitment and Retention: A Practice Toolbox for Tribal, State, County, and Private Child Welfare Agencies.” The toolbox (authored by Kathy Deserly and edited by Susan Quash-Mah) offers useful ideas and techniques to improve the recruitment and retention of Native American resource families and assists child welfare professionals with the application of other ICWA requirements.

“Tools… have been used to enhance collaborative efforts between the state and local tribes, as training tools with new and seasoned staff, and in discussions with administration and tribal representatives as a basis for improving child welfare,” says Sherri Eveleth, Indian child welfare program specialist for the Department of Health and Human Services in Nebraska. The most recent of these tools is regarding the use of qualified expert witnesses.

Qualified Expert Witnesses

Traditionally, experts are called upon in many types of court cases as witnesses either for the defense or for the plaintiff. While the use of expert witnesses in court processes is commonplace, the QEW as defined in ICWA is a specialized role to prevent cultural bias and unnecessary breakup of an Indian family. QEW testimony is required under ICWA for any actions involving placement or termination of parental rights. The experience and training of the QEW varies greatly and the QEW is not required to have any legal training. Testimony is case- and fact-specific, and is also limited to the QEW’s area of knowledge, experience, and training.

Across the nation, there are hundreds of professionals, tribal members, and tribal leaders who are recognized for their knowledge and comprehension of both ICWA itself and the cultural implications of child welfare and child rearing in tribal communities. There are even more individuals who can, under the right circumstances, serve as a QEW because they have a level of knowledge on the subject of Indian child welfare that is beyond that of the average person. In either case, expertise and knowledge must be sufficient so that others may legally rely upon the opinion of the expert.

The role and testimony of the QEW is separate and apart from the role of tribal child welfare staff who are party to the proceedings and speak on behalf of the tribe. The testimony of each party has its own weight, based on the authority of the tribe in child welfare matters and the expert in regards to the child. The testimony may differ between the two resources, but they both aim to ensure that the deciding court has all the information and perspective it needs in order to make its decision without cultural bias.

Generally courts recognize either a member of the Indian child’s tribe, a lay expert witness with substantial experience in child and family services to Indians, or a professional person as a QEW. While some courts have allowed a person to qualify as a QEW under the professional category without knowledge or experience of Indian culture, this is not congruent with the intent of ICWA itself. There are also potential conflicts of interest for a state or county child welfare agency employee serving as a QEW in the case of an Indian child who is the subject of a dependency proceeding involving the employee’s agency. The rule of thumb, essentially, is that a QEW must have substantial education, training, experience, and/or knowledge of Indian culture, family structure, and child-rearing practices, and preferably have this knowledge about the specific tribe involved in the case.

Since the establishment of ICWA, the understanding of the role of the QEW has varied, resulting in inconsistent levels of effectiveness and lack of continuity across different states. NASICWM recognized the need for a set of guidelines to clarify and set a standard for the role of the QEW in helping the court determine whether the “continuing custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” as specified in ICWA. While some states have enacted their own guidelines or regulations that specifically detail QEW qualifications, until now there have been no national guidelines. The QEW toolkit developed by NASICWM is designed to assist in equalizing the interpretations of this key component of ICWA across the country. The guidelines, titled “Guidelines of Practice Regarding Utilization of Qualified Expert Witnesses as Required by the Indian Child Welfare Act,” recommend that states work in collaboration with the specific tribe of the case to identify a QEW. The guidelines make recommendations on what qualifies a person as a QEW, how to locate an appropriate QEW, and what the QEW should expect.

Already, some agencies are finding the guidelines helpful. “We used [the guidelines] to look at creating a train-ing that would be the most helpful to potential QEWs as they prepare themselves to give court testimony,” says Joseph Ashley, an ICWA program specialist in South Dakota. “It is good to have a reference to go to when trying to tackle an issue, and it saves time knowing what other states are doing.”

I presented NASICWM’s QEW guidelines at the National Indian Child Welfare Conference in Anchorage, Alaska, in April. The guidelines and other tools were well-received both by state and tribal government participants and sparked conversation about differences in practice between states and tribes. NASICWM hopes that bringing these tools to state agencies will level the playing field for all American Indian children who enter the foster care system. Through conversation, collaboration, and outreach, the group hopes to improve outcomes for these children and families.

Rachelle P. Goldenberg MSW is the principal consultant with Seawolf Consulting & Advocacy Services, specializing in social services policy and organizational management. She is the manager of Indian Child Welfare Initiatives for CWLA.

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