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TPR – Indian Child Welfare Act – “Qualified Expert Witnesses” Requirement, Burden of Proof

 “Qualified Expert Witnesses” Requirement

Issue: Whether the social worker expertise “beyond the normal” is required to qualify as an expert within the meaning of the ICWA, 25 U.S.C. § 1912(f).


¶37 Because in D.S.P. the court affirmed an exercise of the circuit court’s discretion, we do not read D.S.P. to hold that 25 U.S.C. § 1912(f) requires that social workers must have qualifications comparable to those of the two testifying there. However we do read D.S.P. to construe subsec. (f) to mean, consistent with the House Report, that a social worker must have expertise beyond the normal social worker qualifications.

¶38 Turning to Mahan’s qualifications, we first observe that, while she no doubt has specialized knowledge as a result of her bachelor’s and master’s degrees in criminal justice, that knowledge does not relate to the showing required by 25 U.S.C. § 1912(f)—assessing the likelihood of serious emotional or physical damage to Vaughn if he is returned to his father. Second, while she is an experienced social worker, her experience in monitoring the conditions imposed on parents for the return of their children does not suggest something beyond normal social work qualifications or functions.

¶39 We next consider paragraph D.4(b) of the BIA guidelines recognizing that they are not binding. Mahan’s qualifications do not fall within D.4(b)(i) or (ii). As for D.4(b)(iii), “a professional person having substantial education and experience in the area of his or her specialty,” this is a general description and the intended scope is not clear. However, to read it to include social workers with normal qualifications would be inconsistent with the clear statement of Congressional intent. [16] See H.R. Rep. No. 95-1386 at 22.

Burden of Proof


¶51      We conclude that Congress plainly did not intend to mandate a particular burden of proof for the showing required in 25 U.S.C. § 1912(d). The trial court here instructed the jury that it must be convinced by clear and convincing evidence that the requirements of subsec. (d) were met. That is the burden of proof applied for finding grounds for termination of parental rights under Wisconsin law. See Wis. Stat. §§ 48.31, 48.424(2). Luis does not develop an argument that, if the ICWA does not mandate the beyond a reasonable doubt standard for the § 1912(d) showing in TPR cases, we should nonetheless apply that heightened standard. Accordingly, we conclude the circuit court properly instructed the jury on the burden of proof for special verdict questions 5 and 6, which incorporated the requirements of subsec. (d).

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