|
(Cite
as: 290 Kan. 142, 225 P.3d 1177) |
Supreme
Court of Kansas.
In
the Interest of M.F., a Child Under the Age of 18 Years.
No.
100,845.
Feb.
5, 2010.
**1178
*142
Syllabus
by the Court
1.
Congress intended to impose heightened expert witness qualification requirements
in proceedings subject to the Indian Child Welfare Act (ICWA), 25 U.S.C. ? 1901
et
seq.
(2006).
2.
The legislative history of the ICWA and the United States Department of the
Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed.Reg. 67,584 (1979) should be considered in
determining if a witness is a qualified expert under the ICWA.
John
W. Leighty, of Olathe, argued the cause and was on the briefs for appellant
natural mother.
Steven
J. Obermeier, assistant district attorney, argued the cause, and Stephen M.
Howe, district attorney, was with him on the brief for appellee State of
Kansas.
Dennis
J. Stanchik, of Olathe, argued the cause and was on the briefs for appellee
guardian ad litem.
**1179
The opinion of the court was delivered by LUCKERT, J.:
The
biological mother of M.F. appeals a decision to terminate her parental rights,
arguing the district court failed to comply with the Indian Child Welfare Act
(ICWA), 25 U.S.C. ? 1901 et
seq.
(2006). The ICWA standard for termination of parental rights is ?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.? 25 U.S.C. ?
1912(f) (2006). The mother argues the State failed to present an ICWA qualified
expert witness in either the child in need of care (CINC) proceeding or in the
subsequent hearing to terminate parental rights. The Court of Appeals agreed
with her argument and reversed*143
the district court. In
re M.F.,
41 Kan.App.2d 927, 206 P.3d 57 (2009).
[1]
On review of that decision, we affirm the Court of Appeals, concluding that the
ICWA heightens the requirements for an expert's qualifications beyond those
normally required in a proceeding governed solely by state statutes. We further
hold that Kansas district courts should consider the legislative history of the
ICWA and the Department of the Interior, Bureau of Indian Affairs Guidelines for
State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584 (1979), in
determining if a witness meets the heightened standard. In this case, there was
no evidence that the two social workers who testified were members of the
child's tribe, had substantial experience in the delivery of child and family
services to Indians, had extensive knowledge of prevailing social and cultural
standards and childrearing practices within the child's tribe, or had
substantial education and experience in the area of social work. Thus, the
witnesses were not qualified expert witnesses under the ICWA, and there was no
expert testimony to support the district court's decision as required by the
ICWA. Because this error is not harmless, we reverse and remand for new
proceedings.
FACTUAL
AND PROCEDURAL BACKGROUND
M.F.
was born on October 24, 2006, with special medical needs that required an
extended hospitalization. His mother, S.F., was discharged after his birth; she
then had no further contact with the hospital. Two weeks after M.F.'s birth, the
State filed a CINC proceeding. The district court appointed a guardian ad litem
(GAL) for M.F. and held a custody hearing the next day. M.F.'s alleged father,
D.J., appeared at the hearing; his mother, S.F., did not. At the hearing, the
State requested temporary custody of M.F. because of the mother's homelessness,
her possible drug use, and her abandonment of M.F. at the hospital. Regarding
D.J.'s ability to provide care, the State argued that paternity was unknown and
that D.J. was physically unable to care for M.F. because of his own
disabilities. The district court ordered genetic testing, ordered that service
be completed on the mother, and determined an emergency existed to place M.F. in
the custody of the Kansas Department*144
of Social and Rehabilitation Services with the authority to find suitable
placement.
Subsequent
genetic testing confirmed D.J. was M.F.'s father. D.J., however, informed the
court in writing that he was unable to care for M.F. and he did not contest the
claim that M.F. was a child in need of care.
After
the initial hearing, the State learned that M.F. might be eligible to enroll as
a member of the Northern Arapaho Tribe (Tribe). Consequently, the State notified
the Tribe of the proceeding. In response, the Tribe sent the State a notice of
the Tribe's intent to intervene in the case and requested notification of all
hearings and other actions. The State filed the Tribe's notice with the district
court. Included with the Tribe's notice was a document stating a Tribe
enrollment technician had determined M.F. was not enrolled with the Tribe but
would be eligible for enrollment.
After
several continuances, the district court conducted a CINC hearing in July 2007.
At the beginning of the hearing, the mother's attorney reminded the district
court that the ICWA applied. The State agreed, but reported it was unaware of
whether the **1180
Tribe had been notified of the hearing. The GAL argued the Tribe had nonetheless
received proper notice but failed to timely intervene. The district court
determined the hearing should proceed and that the ICWA would
apply.
The
only witness to testify at the CINC hearing was Lindsay Courtney, a licensed
social worker who was M.F.'s case manager. Courtney testified she received her
bachelor's degree in May 2006 and obtained her social work license in July 2006,
approximately 3 months before M.F.'s birth in October. No other expert
qualifications were offered. Courtney testified that M.F. had required surgery
and had been hospitalized since May 10, 2007. M.F. continued to require
specialized care because of a ?trache? and feeding tubes. According to Courtney,
once the mother had been discharged from the hospital, she had not called to
check on M.F. and did not know M.F. had required surgery and lengthy
hospitalization. Courtney indicated there was an element of danger and risk to
M.F. by the mother's not responding to the hospital because *145
a potential caregiver would need to learn how to care for M.F. after M.F. was
released from the hospital.
The
State argued the evidence complied with the ICWA's standard of proof and
established that M.F. was in danger and needed immediate placement. The GAL
agreed with the State and additionally argued there was good cause for departing
from the ICWA's placement preferences because neither parent was capable of
handling M.F. or providing for M.F.'s special needs, no extended family members
had come forward, and there was nothing more than an indication the Tribe would
intervene. The mother's attorney argued the district court should apply the ICWA
standard requiring testimony by an ICWA qualified expert, and the social worker
who testified was not a qualified expert. The mother's attorney pointed out that
Courtney did not testify she had ever ?dealt with any Indian issues? or issues
involving ?Indian children.? In addition, the mother's attorney suggested that
the Tribe should be contacted because it might have resources available to meet
M.F.'s needs.
The
district court found the State had met its burden and the social worker had
?testified appropriately as an expert in this matter.? Additionally, the
district court found the evidence was clear and convincing beyond a reasonable
doubt that M.F. was in danger and out-of-home placement was immediately
necessary. Further, the court found that ?returning the child to [the parents]
is not in the child's best interest at this time based on the child's special
medical circumstances.? Finally, the court held there was ?good cause? to depart
from any Indian placement because neither parent could care for the child; no
family had come forward; the Tribe, despite its indication that it desired to
intervene, had not done so; and there were no other viable placement options
presented. In conclusion, the district court found M.F. was a child in need of
care pursuant to K.S.A. 38-1502(a)(2) (repealed January 1, 2007; now K.S.A.2008
Supp. 38-2202[d][2], with nearly identical language) and set the matter over for
disposition.
In
November 2007, the district court conducted a permanency hearing to review the
permanency plan and concluded the plan should be modified. In the journal entry,
the court found reintegration*146
of the family was not a viable alternative because M.F. had been in State
custody since birth, M.F. had a serious medical condition that had required him
to be hospitalized for 6 months and would require further hospitalization, and
there was a lack of effort by the parents.
Also
in November 2007, the State filed a motion to terminate parental rights. At a
pretrial hearing related to the motion, counsel for the mother expressed concern
there was no journal entry recording the CINC determination and the district
court had heard no qualified expert testimony, which was required for a CINC
determination under the ICWA. In response, the district court reiterated that it
had found in July 2007, from the bench, that M.F. was a child in need of care
pursuant to Kansas statutes based on evidence that ?was clear and convincing and
beyond a reasonable doubt.? The court nevertheless agreed that the CINC finding
needed to be journalized and directed the State to do so. Apparently, the State
did not **1181
comply with the order; no such journal entry is contained in the record on
appeal.
The
mother then filed a motion to transfer jurisdiction to the Tribal Court of the
Northern Arapaho Tribe (tribal court) pursuant to 25 U.S.C. ? 1911(b) (2006). In
the GAL's written reply to the mother's motion, the GAL argued good cause
existed under the ICWA not to transfer jurisdiction of the case because the
motion was untimely and it would be inconvenient to transfer the case to
Wyoming, the location of the tribal court. The district court held a hearing on
the mother's motion to transfer and ultimately denied the motion.
The
motion to terminate parental rights was heard in April 2008, when M.F. was
approximately 18 months of age. The mother appeared in person. Before evidence
was presented, the district court noted a representative from the Tribe had
contacted the district court and requested to participate in the hearing by
telephone. Counsel for each parent confirmed that they had talked to the Tribe
representative who wanted to participate and they had advised her to contact the
district court for arrangements. The district court denied the request,
indicating that the Tribe's participation by telephone would be ?unwieldy and
would not work.?
*147
During counsels' arguments pertaining to the termination of parental rights, the
mother's attorney again argued the district court had not complied with the ICWA
in that, during the numerous proceedings, it had failed to make specific
findings required under the federal act. The district court disagreed, focusing
on whether notice was given to the Tribe and finding the State made ?an adequate
record [showing] there has been compliance with all notice provisions.? Then,
testimony was taken from social worker Lindsay Howes, who had been involved in
M.F.'s case since M.F. was placed in State custody. Like Courtney, the social
worker who testified at the CINC hearing, Howes testified that she had received
a bachelor's degree in social welfare in May 2006 and was licensed in July 2006,
just months before M.F.'s birth. Howes recited the case history and the limited
contacts she had with the parents. In Howes' opinion, M.F. needed permanency
through an adoptive home that could provide for M.F.'s medical care and needs.
She did not believe the mother could meet M.F.'s needs, which required more than
normal parenting due to M.F.'s extreme medical needs. From the time of M.F.'s
birth to the termination hearing, his condition had required numerous
hospitalizations and medical procedures, and he continued to require the trache
and feeding tubes.
The
mother testified at the termination hearing that she knew of two family members
who were interested in caring for M.F. if the district court determined she
could not regain custody of the child. No family members came forward, however.
The mother acknowledged that she had only seen M.F. twice since her postpartum
discharge from the hospital 18 months earlier. The district court ultimately
entered an order terminating the parental rights of both parents.
Only
the mother appealed.
COURT
OF APPEALS' DECISION
The
Court of Appeals first rejected the State's contention that the mother failed to
preserve for appeal the issues concerning the district court's failure to comply
with the ICWA. In addition, the Court of Appeals rejected the mother's claim of
error relating to *148
the decision to deny her request to transfer jurisdiction to the Tribal Court.
In
re M.F.,
41 Kan.App.2d at 933, 206 P.3d 57. These issues were not raised in the petitions
for review and, therefore, are not before this court. The State and GAL do raise
several arguments in their petitions for review related to the Court of Appeals'
determination that the district court failed to properly comply with substantive
requirements of the ICWA. See In
re M.F.,
41 Kan.App.2d at 935, 206 P.3d 57.
With
regard to the CINC proceedings, the Court of Appeals found it problematic that
the district court failed to journalize its CINC findings. Because of this lack
of journalized findings, the panel determined ?there is no evidence of
compliance with the ICWA standards in [the CINC] determination.? In
re M.F.,
41 Kan.App.2d at 934, 206 P.3d 57. Additionally, the Court of Appeals concluded
**1182
that although the record contained a memorandum decision of the termination of
parental rights, the district court's determination was not supported by proper
evidence because there was not a qualified expert witness. The Court of Appeals
incorrectly identified the social worker testifying at both the CINC and
termination hearings as the same individual. Regarding that individual, the
Court of Appeals noted the social worker ?did not testify she was a qualified
expert in determining whether an Indian child will suffer damage by continuing
to remain in the custody of his parents.? In
re M.F.,
41 Kan.App.2d at 934, 206 P.3d 57. Further, the Court of Appeals stated: ?[O]ur
court has determined the ICWA requires a witness to be qualified as an expert
and the witness testify that evidence existed to support the State's burden
under the ICWA. [Citations omitted.] There was no such testimony in this case.?
In
re M.F.,
41 Kan.App.2d at 935, 206 P.3d 57.
The
Court of Appeals concluded that the district court's failure to comply with the
requirements of the ICWA required a reversal of the district court's termination
of parental rights and a remand for proceedings meeting the ICWA's
requirements.
We
granted the petitions for review filed by the GAL for M.F. and the
State.
THE
ICWA
In
Kansas, proceedings concerning any child who may be a child in need of care are
governed by the Revised Kansas Code for Care *149
of Children, K.S.A. 2008 Supp. 38-2201 et
seq.,
?except in those instances when the court knows or has reason to know that an
Indian child is involved in the proceeding, in which case, the Indian child
welfare act of 1978 [25 U.S.C. ? 1901 et
seq.]
applies.? K.S.A.2008 Supp. 38-2203(a).
[2]
There is no dispute that the ICWA applies to this case. M.F. is an Indian child
within the meaning of the ICWA, see 25 U.S.C. ? 1903(4) (2006) (? ?Indian child?
means any unmarried person who is under age eighteen and is either (a) a member
of an Indian tribe or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.?). Generally, tribal courts
have exclusive jurisdiction over proceedings involving children residing on or
domiciled within a reservation and concurrent jurisdiction with state courts
over foster care or termination of parental rights proceedings involving
children not domiciled on a reservation. See 25 U.S.C. ? 1911(a); Kelly
v. Kelly,
759 N.W.2d 721, 724 (N.D.2009); In
re A.P.,
25 Kan.App.2d 268, 274, 961 P.2d 706 (1998). In this appeal, it is not disputed
that the district court had concurrent jurisdiction. And, as previously noted,
the issue of whether the case should have been transferred to the tribal court
is not before us.
The
ICWA is designed to:
?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 Indian culture....? (Emphasis added.) 25 U.S.C. ? 1902
(2006).
Because
the ICWA provisions are minimal standards, if a different federal law or a
State's law ?provides a higher standard of protection to the rights of the
parent or Indian custodian of an Indian child than the rights provided under?
the ICWA, the higher standard must be applied. 25 U.S.C. ? 1921
(2006).
QUALIFIED
EXPERT
The
minimum federal standard with regard to CINC-type proceedings-i.e.,
where an Indian child may be placed in foster care-is stated in 25 U.S.C. ?
1912(e), which mandates that there *150
must be 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.?
(Emphasis added.) Similarly, a decision to terminate parental rights must be
supported by the ?testimony of qualified expert witnesses,? but the State has a
higher burden of proof; it must prove **1183
?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.? 25
U.S.C. ? 1912(f).
At
issue here is whether Courtney and Howes, social workers for M.F., were
qualified experts under the ICWA and whether their testimony satisfied the
standards for the ICWA in the CINC and termination proceedings. The GAL and
State argue that the Court of Appeals erred by essentially holding that to be a
qualified expert witness under the ICWA, the witness must be knowledgeable in
tribal customs or child welfare specifically related to Indian children and must
present testimony supporting the State's burden under the ICWA.
Standard
of Review
[3][4]
The qualification of witnesses as experts is generally a discretionary decision
for the district court. See State
v. Moore,
287 Kan. 121, 135, 194 P.3d 18 (2008). But to properly exercise discretion, a
district court must apply the correct legal standard, and the determination of
that standard is a question of law subject to de novo review. See Moore,
287 Kan. at 135, 194 P.3d 18 (? ? ?A district court by definition abuses its
discretion when it makes an error of law.... The abuse-of-discretion standard
includes review to determine that the discretion was not guided by erroneous
legal conclusions.? ? [Citations omitted.]?). In the context of this case, the
legal standard is defined by the ICWA, which requires testimony from ?qualified
expert witnesses.? 25 U.S.C. ? 1912(e), (f).
[5][6][7]
In interpreting federal statutes, ? ?[o]ur task is to give effect to the will of
Congress, and where its will has been expressed in reasonably plain terms, that
language must ordinarily be regarded as *151
conclusive.? ? Negonsott
v. Samuels,
507 U.S. 99, 104, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) (quoting Griffin
v. Oceanic Contractors, Inc.,
458 U.S. 564, 570, 102 S.Ct. 3245, 73 L.Ed.2d 973 [1982] ); see State
v. Phillips,
289 Kan. 28, 32, 210 P.3d 93 (2009). Where the language is ambiguous, however,
rules of statutory construction are employed to determine legislative intent,
and courts ?look to the historical background of the enactment, the
circumstances attending its passage, the purposes to be accomplished, and the
effects the statute may have under the various constructions suggested.?
Phillips,
289 Kan. at 32, 210 P.3d 93.
Ambiguity
[8]
The ICWA does not define ?qualified expert witnesses,? leaving Congress' intent
unclear. A United States House of Representatives Report prepared in conjunction
with the ICWA states that the phrase ? ?qualified expert witnesses' is meant to
apply to expertise beyond the normal social worker qualifications.? H.R.Rep. No.
95-1386, 95th Cong., 2d Sess. 1978, at 12, reprinted in 1978 U.S.C.C.A.N. 7530,
7545. This statement indirectly instructs that the standard typically applied in
Kansas CINC and termination proceedings-qualifying a social worker as an expert
if he or she has a degree, is licensed, and has some contact with the CINC
case-is contrary to Congress' intent.
[9]
Yet, the legislative history does not explain the qualifications that are
necessary to meet the heightened standard. Guidance has been provided, however,
by the Department of the Interior, Bureau of Indian Affairs, through guidelines
published to assist state courts in applying the ICWA. Department of the
Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed.Reg. 67,584 (1979) (BIA Guidelines). Courts have
routinely consulted these guidelines to discern the intent behind the ?qualified
expert witnesses? requirement in 25 U.S.C. ? 1912. See, e.g.,
Marcia
V. v. State,
201 P.3d 496, 504 (Alaska 2009); Rachelle
S. v. Dept. of Economic Sec.,
191 Ariz. 518, 520, 958 P.2d 459 (App.1998); In
re S.M.H.,
33 Kan.App.2d 424, 433-34, 103 P.3d 976, rev.
denied
279 Kan. 1006 (2005); see also In
re H.D.,
11 Kan.App.2d 531, 535, 729 P.2d 1234 (1986) (referring *152
to other portions of BIA Guidelines). This court has never considered this
issue, but we join these other courts and consider the legislative history of
the ICWA and the BIA Guidelines, 44 Fed.Reg. 67,584.
**1184
As related to the ?qualified expert witnesses? requirement, the BIA Guidelines
state:
?D.4.
Qualified Expert Witnesses
?(a)
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.
?(b)
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.
(ii)
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.
(iii)
A professional person having substantial education and experience in the area of
his or her specialty.? 44 Fed.Reg. 67,593.
The
first two types of individuals characterized in the BIA Guidelines, subparts D.4
(b)(i) and (b)(ii), are individuals who possess knowledge of Indian customs and
Indian childrearing practices. The Court of Appeals noted these provisions and
concluded neither criterion was satisfied. Although the Court of Appeals did not
recognize that the social workers testifying at the two hearings were different
individuals, the ultimate conclusion that the criteria of subparts D.4 (b)(i)
and (b)(ii) were not satisfied is correct; there was no evidence in this case
that the two social workers, Courtney and Howes, could have been qualified under
the first two subparts. Neither indicated that she was a member of M.F.'s tribe,
had substantial experience with tribal family services, or had extensive
knowledge of cultural standards and childrearing practices within M.F.'s
tribe.
The
GAL focuses on this conclusion by the Court of Appeals to argue that the Court
of Appeals required all experts in proceedings *153
controlled by the ICWA to have specialized knowledge of Indian culture and
society. This argument ignores the fact that the Court of Appeals acknowledged
the BIA Guidelines, subpart D.4 (b)(iii), which makes no mention of knowledge of
Indian culture. In
re M.F.,
41 Kan.App.2d at 935, 206 P.3d 57. Granted, the Court of Appeals' discussion
blends the two hearings and the two witnesses, but we do not read the decision
as reaching the question of whether an expert must always have expertise in
Indian social and cultural matters, and conclude this issue is not before us for
decision. See Supreme Court Rule 8.03(g)(1) and (h)(3) (2009 Kan. Ct. R. Annot.
66).
The
Court of Appeals' holding was merely that: ?ICWA requires a witness be qualified
as an expert and the witness testify that evidence existed to support the
State's burden under the ICWA. 44 Fed.Reg. 67,593 (1979). See In
re S.M.H.,
33 Kan.App.2d at 434-35, 103 P.3d 976. There was no such testimony in this
case.? In
re M.F.,
41 Kan.App.2d at 935, 206 P.3d 57. The Court of Appeals' reliance on
In
re S.M.H.
reveals that the court was focused on the witnesses' lack of special expertise
or experience.
In
In
re S.M.H.,
a different Court of Appeals panel reversed an adjudication order for failure to
apply the standards of proof set forth in the ICWA. As to testimony of
?qualified expert witnesses? required by the ICWA, the In
re S.M.H.
court looked to the BIA Guidelines for guidance as to what constitutes expert
testimony in a foster care placement proceeding. At issue was the testimony of a
social worker who worked at the Wamego SRS office. No qualifications other than
being a social worker employed by SRS were presented, and the Court of Appeals'
panel concluded those qualifications did not meet the ICWA's qualified expert
requirement. In
re S.M.H.,
33 Kan.App.2d at 434, 103 P.3d 976.
The
Court of Appeals' reliance on the BIA Guidelines in In
re S.M.H.
limited the district court's discretion in this proceeding, **1185
meaning that to properly exercise discretion the district court should have
considered the BIA Guidelines, including subpart D.4 (b)(iii). See Moore,
287 Kan. at 135, 194 P.3d 18. Moreover, the In
re S.M.H.
holding, which was adopted by the Court of Appeals in this case, is consistent
with the conclusion of numerous courts in other jurisdictions*154
that have applied the rule that a person is not a qualified expert witness under
the ICWA if they do not have expertise beyond the ?normal? social worker
qualifications. Generally these courts glean guidance from the legislative
history of the ICWA, which specifically states that the education and training
should be beyond the normal social worker qualifications, and the BIA
Guidelines' language, which suggests there must be substantial education and
experience. See, e.g.,
In
re Desiree F.,
83 Cal.App.4th 460, 466, 99 Cal.Rptr.2d 688 (2000) (ICWA requires more than
showing that social worker was assigned to the case); C.E.H.
v. L.M.W.,
837 S.W.2d 947, 955 (Mo.App.1992) (stating that phrase ?qualified expert
witness? is not defined by ICWA, but legislative history of ICWA reveals that
phrase is meant to apply to expertise beyond normal social worker's
qualifications); Matter
of Adoption of H.M.O.,
289 Mont. 509, 519, 962 P.2d 1191 (1998) (abuse of discretion found where record
was silent as to qualifications beyond being a social worker); In
re Interest of Shayla H.,
17 Neb.App. 436, 449-50, 764 N.W.2d 119 (2009) (abuse of discretion found where
social worker had bachelor's degree in human development, had been in position
for approximately 11 years, had received regular training, and had worked with
families with Native American heritage); In
re Roberts,
46 Wash.App. 748, 756, 732 P.2d 528 (1987) (no abuse of discretion where witness
had attended numerous workshops on Indian child welfare and was a committee
member for two organizations involved in drafting ICWA); In
re Vaughn R.,
770 N.W.2d 795, 807 (Wis.App.2009) (social worker's specialized knowledge as
result of bachelor's and master's degrees in criminal justice did not relate to
required showing of likely serious damage to child from continued custody by
parent, and experience in monitoring conditions imposed on parents for the
return of their children did not suggest something beyond normal social work
qualifications); cf.
Sandy
B. v. State, Dept. of Health.,
216 P.3d 1180, 1191 (Alaska 2009) (expert had substantial education in his
specialty of psychology and, thus, met the ICWA's heightened standard for
qualification as an expert in a proceeding to terminate parental rights, where
expert had earned master's and doctorate degrees in clinical psychology);
In
re Interest*155
of Phoebe S. & Rebekah S.,
11 Neb.App. 919, 927, 935, 664 N.W.2d 470 (2003) (social work professor
qualified to testify as expert witness under ICWA where professor had
substantial education and experience in area of child welfare, bonding, and
attachment and in sociological aspects of childhood, and was experienced and
knowledgeable about ICWA); but see in
rE N.N.E.,
752 N.W.2d 1, 13 (iowa 2008) (citinG iowa statute which includes within the
definition of ?qualified expert witness? a ?social worker, sociologist,
physician, psychologist, traditional tribal therapist and healer, spiritual
leader, historian, or elder?).
[10]
These authorities support the view that under subpart D.4 (b)(iii) of the BIA
Guidelines, social workers testifying in a proceeding subject to the ICWA must
have substantial education and experience in the area of social work beyond the
typical qualifications for the profession. See 44 Fed.Reg. 67,593.
Applying
subpart D.4 (b)(iii) of the BIA Guidelines (having previously found that the
other subparts were not met), neither Courtney nor Howes, the social workers who
testified in this case, met the standard. Both Courtney, who testified at the
CINC hearing, and Howes, who testified at the termination hearing, graduated
with bachelor's degrees a mere 5 months before M.F.'s birth and had been
licensed by the state of Kansas for only about 3 months when they became M.F.'s
case workers. There was no evidence of any other education, experience, or
specialized expertise. By the time of the termination hearing, Howes had
garnered more experience but still had practiced her profession less than 2
years. These qualifications pale in comparison to those considered in cases from
other jurisdictions where appellate **1186
courts found an abuse of discretion in qualifying a social worker as an expert.
E.g.,
In
re Interest of Shayla H.,
17 Neb.App. at 449-50, 764 N.W.2d 119 (11 years of case work experience
insufficient). We affirm the Court of Appeals' conclusion that neither Courtney
nor Howes qualified as an expert witness as required by the ICWA.
[11]
The GAL also takes issue with the Court of Appeals' statement that the qualified
expert must ?testify that evidence existed to support the State's burden under
the ICWA.? In
re M.F.,
41 Kan.App.2d at 935, 206 P.3d 57. The GAL interprets this statement to mean
that a *156
qualified expert must offer a specific opinion as to whether or not the State's
evidence meets the burden of proof. It seems, rather, that the Court of Appeals'
statement is merely a reiteration of the ICWA standard that a decision to
terminate parental rights must be based on ?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.? 25 U.S.C. ? 1912(f). The expert need
not opine on the ultimate issue of whether the State met its burden of proof.
But the expert's opinion must support the ultimate finding of the district court
that continued custody by the parent will result in serious emotional or
physical damage to the child. See, e.g.,
Marcia
V.,
201 P.3d at 506; Steven
H. v. DES,
218 Ariz. 566, 572, 190 P.3d 180 (2008); State
ex rel. SOSCF v. Lucas,
177 Or.App. 318, 326, 33 P.3d 1001 (2001), rev.
denied
333 Or. 567, 42 P.3d 1245 (2002).
Harmless
Error Analysis
[12]
The importance of this requirement weighs heavily on our consideration of
whether the lack of testimony by an ICWA qualified expert requires us to reverse
the district court's decision that M.F. was a child in need of care and the
decision that his biological mother's rights should be terminated. The State
suggests we do not have to reverse those decisions because the parents clearly
lacked the interest and ability to care for M.F.'s extraordinary medical needs.
This argument is, in essence, a harmless error analysis.
There
is support for applying a harmless error standard when a district court fails to
comply with the ICWA, including decisions by our Court of Appeals. See
In
re S.M.H.,
33 Kan.App.2d at 441, 103 P.3d 976 (?nor can we conclude that this error is
harmless?); In
re Interest of Enrique P.,
14 Neb.App. 453, 471, 709 N.W.2d 676 (2006) (failure to provide qualified expert
witness was harmless when psychological evaluation and caseworkers' court
reports clearly and convincingly showed that parental custody would result in
serious damage to child); In
re G.F.,
181 Vt. 593, 596-97, 923 A.2d 578 (2007) (failure of trial court to make
specific findings under 25 U.S.C. ? 1912 was harmless error when evidence
overwhelmingly *157
supported findings); Elrod, Child Custody Practice and Procedure ? 3:5 (2010
Supp.) (recognizing that California case, In
re Cheyanne F.,
164 Cal.App.4th 571, 79 Cal.Rptr.3d 189 [2008], found that the errors and
omissions in ICWA notice requirements are reviewed under harmless error
standard); but see In
re B.R.,
176 Cal.App.4th 773, 785, 97 Cal.Rptr.3d 890 (2009) (holding that lack of notice
to tribe under ICWA of notice of termination of parental rights proceeding
required remand and was not harmless error);
Nevertheless,
in applying the harmless error standard, it is difficult to conclude a
procedural violation of the ICWA can be harmless in light of 25 U.S.C. ? 1914
(2006), which provides:
?Any
Indian child who is the subject of any action for foster care placement or
termination of parental rights under State law, any parent or Indian custodian
from whose custody such child was removed, and the Indian child's tribe may
petition any court of competent jurisdiction to invalidate such action upon a
showing that such action violated any provision of sections 1911, 1912, and 1913
of this title.?
The
expert witness provision is found in section 1912, so a lack of qualified expert
witness testimony creates the potential of future invalidation of the foster
care placement and termination of parental rights. Under those circumstances,
the lack of a **1187
qualified expert witness cannot be considered harmless. Consequently, we
conclude the error in this case requires us to reverse and remand for
proceedings consistent with the requirements of the ICWA, beginning with a
rehearing of the decision to determine the child is in need of
care.
OTHER
ISSUES
The
GAL and State's petitions for review also raise arguments and issues regarding
whether the Court of Appeals erred in concluding the social workers' opinions
did not support the district court's decision, the district court erred in
failing to journalize its CINC findings, and the district court erred in failing
to make required findings of ?active efforts ... to provide remedial services
and rehabilitative programs designed to prevent the breakup of the *158
Indian family and that these efforts have proved unsuccessful? as required by 25
U.S.C. ? 1912(d).
[13][14]
The outcome of these issues will not impact the disposition of this appeal
because we have determined the district court's decisions to place M.F. in SRS's
custody as a child in need of care and to terminate parental rights were in
error and the judgment must be reversed. Because we found error in the initial
phase of this case-the CINC proceeding-virtually all of the procedure will be
repeated and the procedural defects alleged in this appeal are moot.
Nevertheless, these issues could be addressed if they are likely to recur on
remand. See, e.g.,
State
v. Wells,
289 Kan. 1219, ----, 221 P.3d 561 (2009). That is not the case, however. The
evidence before the district court and the court's findings regarding that
evidence will necessarily differ from that before us now. Because the remaining
issues are factually driven and a new record will have to be made on remand, we
simply reiterate and emphasize that the ICWA requires the State and the district
court to comply with the heightened standards of the ICWA and any state standard
that provides greater protection to the rights of the parent. On appeal, the
record of the findings must be adequate to allow an appellate court to determine
compliance with all of the ICWA requirements, including those imposed by 25
U.S.C. ? 1912, and any applicable state provisions. In this regard, we emphasize
that the best practice is to include in a journal entry of judgment all findings
necessary to support a CINC or termination of parental rights determination. See
In
re B.E.Y.,
40 Kan.App.2d 842, 844, 196 P.3d 439 (2008); In
re Adoption of Baby Boy M.,
40 Kan.App.2d 551, 561-62, 193 P.3d 520 (2008).
The
Court of Appeals' decision reversing and remanding to the district court for
further proceedings in compliance with the ICWA is affirmed. Judgment of the
district court is reversed, and the case is remanded for further
proceedings.