In re M.F.

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,845

IN THE INTEREST OF
M.F.,
A CHILD UNDER THE AGE OF 18 YEARS.


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.

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 927, 206 P.3d 57 (2009). Appeal from
Johnson district court; KATHLEEN SLOAN, judge. Judgment of the Court of Appeals reversing the district court is
affirmed. Judgment of the district court is reversed. Opinion filed February 5, 2010.

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.

The opinion of the court was delivered by

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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 the district court. In re M.F., 41 Kan. App. 2d 927, 206 P.3d 578 (2009).

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
3

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 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 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
4

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 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.
5

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 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 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."
6

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 the decision to
deny her request to transfer jurisdiction to the Tribal Court. In re M.F., 41 Kan. App. 2d at 933.
These issues were not raised in the petitions for review and, therefore, are not before this court.
7

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.

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. Additionally, the Court of Appeals
concluded 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. 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.

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 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
8

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).

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 must be a "determination, supported by clear and convincing evidence, including testimony
9

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 "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

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
("'"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).

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 conclusive.'" Negonsott v. Samuels, 507 U.S. 99, 104, 122 L. Ed. 2d 457, 113 S. Ct.
1119 (1993) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 73 L. Ed. 2d 973,
10

102 S. Ct. 3245 [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.

Ambiguity

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.

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 (Ariz. 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 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.

As related to the "qualified expert witnesses" requirement, the BIA Guidelines state:
11

"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 controlled by the ICWA to have specialized
12

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. 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. There was
no such testimony in this case." In re M.F., 41 Kan. App. 2d at 935. 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.

The Court of Appeals' reliance on the BIA Guidelines in In re S.M.H. limited the district
court's discretion in this proceeding, 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. 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 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
13

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 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").
14

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 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 (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.

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. The GAL interprets this statement to mean that a 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,
15

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 (2002).

Harmless Error Analysis

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 ("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 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:

16

"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 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 Indian
family and that these efforts have proved unsuccessful" as required by 25 U.S.C. § 1912(d).

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. ___, ___, ___ P.3d ___ (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
17

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.