as: 191 Ariz. 518, 958 P.2d 459)
of Appeals of Arizona,
1, Department B.
S. and Mark B., Appellants,
DEPARTMENT OF ECONOMIC SECURITY, Marcus B., Appellees.
1 CA-JV 97-0208.
by juvenile court in dependency proceeding regarding weight and effect
of evidence will not be disturbed on appeal unless it
is clearly erroneous.
testimony from attending physician of Native American child was sufficient
under Indian Child Welfare Act to support adjudication of child
as dependent, although physician did not have expertise regarding Native
American children, where issues as to whether child had been
victim of shaken-baby syndrome and whether serious emotional or physical
damage to child would result if he were returned to
custody of parents did not implicate cultural bias, and physician,
who had extensive experience with shaken-baby syndrome, testified that child
had very high risk of mortality. Indian Child Welfare Act
of 1978, § 2
et seq., as amended, 25 U.S.C.A. § 1901
guidelines issued by Department of Interior Bureau of Indian Affairs
to assist courts in interpreting Indian Child Welfare Act (ICWA),
nor ICWA itself, limit a qualified expert exclusively to someone
with expertise with Indian children or culture. Indian Child Welfare
Act of 1978, § 2
et seq., as amended, 25 U.S.C.A. § 1901
Grant Woods, Attorney General By Julia R. Rutherford, Assistant Attorney
General, Kingman, for Appellees.
Law Offices of Kirk S. Cookson By Kirk S. Cookson,
Lake Havasu City, for Appellants.
Rachelle S. and Mark B., the biological parents of Marcus
S., appeal from the juvenile court's order adjudicating Marcus to
be dependent. The issue on appeal is whether the court's
finding of likely, serious emotional or physical harm to the
child is supported by expert testimony as required by the
Indian Child Welfare Act, 25 United States Code ("U.S.C.") 1901
(1994) ("the Act"). Finding no error, we affirm.
AND PROCEDURAL HISTORY
Marcus was born on September 21, 1996. During the first
few months of his life, various family members provided care
for him. On February 1, 1997, Rachelle became concerned about
Marcus' health because he was running a high fever and
was unable to retain any food. She took the baby
to Mohave Valley Medical Center to "have a checkup."
Marcus was lethargic upon arrival at the hospital, and he
was experiencing seizures. He also presented with a bulging fontanel
and was unable to support his head. The baby was
transported by helicopter to Sunrise Hospital and Medical Center in
Las Vegas because of medical concern over his seizures, the
condition of his fontanel and his "decreased mental status."
The receiving physician at Sunrise's pediatric intensive care unit, Jeremy
Garrett, described Marcus as an "acutely severely ill infant" who
presented with bleeding characterized as a "massive, severe subdural hematoma."
Unable to otherwise explain the extensive bilateral retinal hemorrhages present
in the baby upon arrival at Sunrise, Dr. Garrett suspected
that Marcus was the victim of non-accidental trauma, probably shaken-baby
"Shaken baby syndrome" was defined as "a constellation of abnormalities
that occur in infants after they have been vigorously shaken,"
including retinal hemorrhages, brain injury, brain swelling and subdural
Two days after Marcus was admitted to Sunrise, the Arizona
Department of Economic Security ("DES") Child Protective Services was notified
that Marcus was possibly the victim of "acute and chronic
abuse." Detectives from the Mohave County Sheriff's Office interviewed family
members who had cared for Marcus, but they were unable
to determine the identity of the perpetrator(s). In fact, no
family member was willing to acknowledge that the baby had
been abused. Due to the severity of Marcus' injuries and
the inability to determine their source, DES filed a dependency
petition, alleging that continuation of the child in the home
would be contrary to his welfare. DES added that Marcus
is an Indian child as defined by the Act.
A contested dependency hearing was held on August 27 and
29, 1997. The juvenile court heard from James Grant, Marcus'
case manager and a child-protective specialist, regarding the reasons why
DES was seeking a dependency order. The agency also presented
testimony from three physicians, each of whom opined that Marcus
was the victim of shaken-baby syndrome.
Rachelle and Mark offered testimony from a radiologist and a
child neurologist. However, each recognized that Marcus' symptoms could lead
to an opinion of shaken-baby syndrome.
The juvenile court decided that continued custody with Rachelle and
would likely result in continued serious physical or emotional harm
to Marcus. It found by clear and convincing evidence that
Marcus should be declared dependent.
¶ 9 A decision
by the juvenile court in a dependency proceeding regarding the weight
and effect of evidence will not be disturbed on appeal unless it is clearly
Maricopa County Juvenile Action No. J-75482,
111 Ariz. 588, 591, 536 P.2d 197, 200 (1975). Accepting this
standard of review, Rachelle and Mark argue that the court's determination
is not supported by testimony from a qualified expert as required by the
Act because none of DES' witnesses has any expertise regarding Indian
The Act was passed in response to "an alarmingly high
percentage of Indian **461
families ... broken up by the removal ... of their
children" and placed in non-Indian homes. 25 U.S.C. § 1901(4).
[FN2] Congress mandated that there be federal standards for state-court
child-custody proceedings, defined to include foster-care placement, 25 U.S.C. § 1903(1)(i),
including the following requirement for placement proceedings:
Congress declared its policy to be:
protect the best interests of Indian children and to promote
the stability and security of Indian tribes and families by
the establishment of
minimum Federal standards for the removal of Indian children from
their families and the placement of such children in foster
or adoptive homes which will reflect the unique values of
U.S.C. § 1902.
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.
25 U.S.C. § 1912(e).
¶ 11 Rachelle and Mark
interpret this section of the Act to mean that a person can never qualify
as an expert unless that individual has expertise with Indian children,
regardless of the issue(s) before the court. The statute imposes
no such requirement.
Although regulations have not been promulgated, the United States Department
of the Interior Bureau of Indian Affairs has issued guidelines
for state courts to assist us in interpreting the Act.
for State Courts; Indian Child Custody Proceedings,
44 Fed.Reg. 67,584 (1979) ( "Guidelines"). These Guidelines have been
relied on by Arizona courts in a number of cases.
Maricopa County Juvenile Action No. JS-8287,
104, 108, 111, 828 P.2d 1245, 1249, 1252 (App.1991); Maricopa
County Juvenile Action No. A-25525,
136 Ariz. 528, 532 n. 4, 667 P.2d 228, 232
n. 4 (App.1983); Pima
County Juvenile Action No. S-903,
130 Ariz. 202, 206, 635 P.2d 187, 191 (App.1981), cert.
455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982).
The Guidelines state in relevant part:
Qualified Expert Witnesses
* * *
Persons with the following characteristics are most likely to meet
the requirements for a qualified expert witness for purposes of
Indian child custody proceedings:
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.
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 childrearing practices within
the Indian child's tribe.
A professional person having substantial education and experience in the
area of his or her specialty.
44 Fed.Reg. at 67,593.
The Commentary to this section adds:
second subsection makes clear that 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.
The Guidelines thus only suggest that individuals with a certain
experience are "most likely to meet the requirements for a
qualified expert witness." Neither they nor the Act limit a
qualified expert exclusively to someone with expertise with Indian children
or culture. Drawing on the Guidelines and the Act, this
court has said that an expert must be qualified to
make "substantially more reliable judgments than those of a non-expert,"
but " '[s]pecial knowledge of Indian life is not necessary
where a professional person has substantial education and experience and
testifies on matters not implicating cultural bias.' " Juvenile
Action No. JS-**462
Ariz. at 111, 828 P.2d at 1252, quoting Matter
754 P.2d 863, 867 (Okla.1988). This interpretation--that distinctive knowledge of
Indian culture is necessary only when cultural mores are involved--is
consistent with the Act's overall concern,
[fn3] AS OTHER COURTS have similarly concluded. see
in the maTter of Baby Boy Doe,
127 Idaho 452, 902 P.2d 477, 485 (1995) ( "Special
knowledge of Indian life is not necessary where a professional
person has substantial education
and experience and testifies on matters not implicating cultural bias."
Citations omitted.); In
re Interest of C.W.,
239 Neb. 817, 479 N.W.2d 105, 112 (1992) ("Dr. Melton
possesses substantial education and experience in his area of specialty
[clinical psychology], and his lack of experience with the Indian
way of life in no way compromised or undermined the
value of his testimony."); K.E.
912 P.2d 1002, 1005 (Utah App. 1996) ("We note that
professionals having substantial education and experience in child welfare might
well qualify as expert witnesses under [the Act], even though
their experience with Indians is limited." Citations omitted.); State
ex rel. Children's Services Division v. Campbell,
122 Or.App. 371, 857 P.2d 888, 889 (1993) ("(W)hen cultural
bias is clearly not implicated, the necessary proof may be
provided by expert witnesses who do not possess special knowledge
of Indian life." Citation omitted.); D.W.H.
v. Cabinet for Human Resources,
706 S.W.2d 840, 843 (Ky.App.1986) ("The failure of these experts
to possess special knowledge of Indian life was not fatal
and the court did not abuse its discretion in admitting
testimony of 'professional persons having substantial education and experience in
the area of his or her specialty.' " Citations omitted.).
This construction also is in accord with Ariz. R. Evid.
702 which allows expert testimony if it "will assist the
trier of fact to understand
the evidence or to determine a fact in issue...."
The question before the juvenile court in this case was
whether Marcus had been the victim of shaken-baby syndrome and
whether he would be likely to suffer continued physical abuse
if he were returned to the custody of Rachelle and
Mark. We have been given no cultural dictate or explanation
that could shed any light on the decision the court
had to make. Whether Marcus would likely suffer serious emotional
or physical harm if returned to an environment where he
had been the victim of near-fatal, non-accidental trauma required expert
testimony on the character and severity of the abuse he
experienced and on the risks of continued abuse.
As an attending physician, Dr. Garrett had treated more than
sixty infants for shaken-baby syndrome, and he had participated in
the treatment of a number of others. He testified that
Marcus had a "very poor, or a very high risk
of mortality and very high risk of morbidity continuing in
life, not just related to these previous events, but his
risk to subsequent events." Garrett supported this opinion that a
declaration of dependency was necessary because the family members evinced
a lack of "any motivation to protect [Marcus] in the
future or make any changes that would protect the child
from future abuse." This was sufficient testimony as required by
the Act on the issue whether serious emotional or physical
damage to Marcus would result if he were returned to
the custody of Rachelle and Mark.
The order of the juvenile court adjudicating Marcus dependent is
TOCI, C.J., and GERBER, J., concur.
191 Ariz. 518, 958 P.2d 459, 269 Ariz. Adv. Rep.