| (Cite
as: 912 P.2d 1002)
Court
of Appeals of Utah.
State
of Utah, in the interest of S.A.E. and K.L.E., persons
under eighteen
years
of age.
K.E.,
Appellant,
v.
STATE
of Utah, Appellee.
No.
950297-CA.
Feb. 29, 1996.
*1002 Appeal
from the First District Juvenile, Box Elder County; David W. Sorenson,
Judge.
Kent E. Snider, Ogden,
UT, for Appellant.
Annina M. Mitchell, Deputy
Solicitor General, Karl Perry, Civil Appeals Division, Salt Lake City,
UT, for appellee.
Elizabeth M. Knight,
Diane Balmain, Guardian Ad Litem, Salt Lake City, Utah.
*1003
Division of Family Services, Brigham City, UT, Guardian Ad Litem.
Before ORME, JACKSON,
and WILKINS, JJ.
JACKSON, Judge:
K.E. challenges the trial
court's order terminating her parental rights to S.A.E. and K.L.E.. K.E.
contends the Federal Indian Child Welfare Act, 25 U.S.C. §§
1901-1963 (1994) (ICWA), applies to the State's petition for termination
of her parental rights. The State concedes the ICWA applies and the trial
court's order must be vacated. We reverse and remand.
FACTS
Following several years of involvement with K.E. and her children, the
State filed a petition to terminate K.E.'s parental rights to her two
youngest children, S.A.E. and K.L.E., based on neglect, abuse, unfitness,
and incompetence. K.E. was not married to the biological fathers of the
two children and paternity has not been judicially established. K.E. and
the two children are enrolled members of the Northwest Band of the Shoshoni
Nation (Tribe). After receiving actual notice of the state proceeding,
the Tribe declined to assert jurisdiction.
At trial on the State's
petition, neither K.E. nor the State mentioned the ICWA or its requirements
regarding qualified expert witnesses, burden of proof, and special findings.
The trial court therefore took no evidence relevant to those issues and
entered no special findings. However, the trial court, as required by
state law, found by clear and convincing evidence predicate facts establishing
the alleged grounds for termination of K.E.'s parental rights. The
trial court's order also terminated the parental rights of the two putative
fathers. Neither father appealed the judgment.
ISSUE ON APPEAL
K.E. does not challenge any of the trial court's factual findings regarding
her unfitness, her neglect of the children, or the State's unsuccessful
rehabilitative efforts. K.E.'s arguments relate only to the application
and proper interpretation of the ICWA. K.E. contends the ICWA requires
the State to prove all allegations in termination proceedings with qualified
expert witness testimony and beyond a reasonable doubt. The State responds
the ICWA imposes a single additional requirement beyond state law and
only that specific requirement must be proven with qualified expert witness
testimony and beyond a reasonable doubt.
The State concedes the
ICWA applies in this case and urges us to remand for entry of a new order
in accordance with the ICWA. We could dispose of this appeal without discussion.
However, the parties have briefed and argued a question of law that is
one of first impression in Utah. Accordingly, we address the proper interpretation
of the ICWA to offer guidance to the parties and the trial court on remand.
See State v.
Emmett, 839
P.2d 781, 786 (Utah 1992).
THE INDIAN CHILD WELFARE
ACT
Congress enacted the ICWA in 1978 and expressly declared the policy supporting
the
legislation. The ICWA was adopted
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.
25 U.S.C. § 1902 (1994); see
also Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 32-37, 109 S.Ct. 1597, 1599-602, 104 L.Ed.2d 29 (1989) (discussing
ICWA's legislative history); In
re Halloway,
732 P.2d 962, 965-66 (Utah 1986) (discussing ICWA's relationship to state
law). The ICWA creates federal standards for child custody proceedings
concerning Indian children, specifically foster care placement, preadoptive
placement, adoptive placement, and termination of parental rights proceedings.
See
25 U.S.C. § 1903(1) (1994). The ICWA defines Indian children as unmarried
persons under the age of eighteen who either are enrolled members of an
Indian tribe or are eligible for membership *1004
and biological children of a member of an Indian tribe. See
id. §
1903(4).
The ICWA articulates
the following requirement for termination of parental rights proceedings:
No
termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by 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.
Id.
§ 1912(f). The ICWA thus imposes an additional requirement beyond
state law for termination of parental rights proceedings involving Indian
children. A trial court must make a determination that "continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child." Id.
That determination must be supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses.
The ICWA does not require
that Utah's statutory grounds for termination of parental rights be proven
beyond a reasonable doubt. The ICWA does not preempt any state law grounds
for termination of parental rights or impose a single burden of proof
on all supporting findings in termination proceedings in which it applies.
On the contrary, the ICWA expressly provides for continued viability of
state laws that impose differing standards of protection to the rights
of the parent or Indian custodian. See
id. §
1921. Accordingly, state requirements for termination must be supported
by clear and convincing evidence, see
Utah Code Ann. § 78-3a-310 (Supp.1995), while the federal requirement
that continued custody by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child must be supported
by evidence beyond a reasonable doubt, see
25 U.S.C. § 1912(f) (1994).
Our sibling states have
recognized, that in child custody proceedings where the ICWA applies,
"a dual burden of proof is created in which the state provisions
and federal provision[ ] must be satisfied separately." In
re Bluebird,
105 N.C.App. 42, 411 S.E.2d 820, 823 (1992); see
also In re J.R.B.,
715 P.2d 1170, 1171-72 (Alaska 1986) (discussing relationship between
state and federal law requirements for termination proceedings in context
of ICWA); In
re N.S., 474
N.W.2d 96, 99 (S.D.1991) (same); In
re D.S.P.,
166 Wis.2d 464, 480 N.W.2d 234, 238-39 (1992) (same). The ICWA requires
a specific finding for termination proceedings in addition to those required
by state law and imposes a separate burden of proof for that finding.
Similarly, the Bureau
of Indian Affairs (BIA) has long interpreted the ICWA's specific finding
for termination proceedings as supplemental to state-required findings
and as the only finding that must be proven beyond a reasonable doubt.
In a set of guidelines to state courts, the BIA states:
[Under
the ICWA, a] child may not be removed simply because there is someone
willing to raise the child who is likely to do a better job or that it
would be "in the best interests of the child" for him or her
to live with someone else. Neither can a placement or termination of parental
rights be ordered simply based on a determination that the parents or
custodians are "unfit parents."
It must be shown
that it is dangerous for the child to remain with his or her present custodian.
Evidence of that must be
"clear and convincing" for placements and "beyond
a reasonable doubt" for terminations.
Department of the Interior, Bureau of Indian Affairs, "Guidelines
for State Courts; Indian Child Custody Proceedings," reprinted
in 44 Fed.Reg.
67,584, 67,593 (1979) (emphasis added).
The
BIA guidelines also clarify the ICWA's requirement of qualified expert
witness testimony. "[T]he issue on which qualified expert testimony
is required is
the question of whether or not serious damage to the child is likely to
occur."
Id.
(emphasis added). Therefore, the ICWA only requires the State to present
qualified expert testimony "on the issue of whether serious harm
to the Indian child is likely to occur if the child is not removed from
the home." In
re C.W., 239
Neb. 817, 479 N.W.2d 105, 111 (1992).
*1005
Furthermore, the
BIA guidelines list the following characteristics as those most likely
to qualify a witness as an expert under the ICWA:
(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.
Bureau of Indian Affairs, supra,
44 Fed.Reg. at 67,593. The list is not exhaustive but nonetheless helpful,
and trial courts should consider it when determining whether a witness
is a qualified expert under the ICWA. Accord
In re D.S.P.,
480 N.W.2d at 240. We note that professionals having substantial education
and experience in child welfare might well qualify as expert witnesses
under ICWA, even though their experience with Indians is limited. See
In re Kreft,
148 Mich.App. 682, 384 N.W.2d 843, 846-48 (1986); In
re C.W. 479
N.W.2d at 111-12.
In sum, the ICWA imposes
an additional federal requirement for parental right termination proceedings
involving Indian children. Petitioners in such proceedings must prove
beyond a reasonable doubt and with qualified expert witness testimony
that "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) (1994). Thus, for cases in which the ICWA applies,
petitioners must prove the state law grounds for termination by clear
and convincing evidence, see
Utah Code Ann. § 78-3a-310 (Supp.1995), and must prove the additional
federal requirement beyond a reasonable doubt, see
25
U.S.C. § 1912(f) (1994). The requirements for termination under state
law and the additional requirement under federal law must each be met;
however, those requirements are met under separate burdens of proof.
CONCLUSION
The ICWA applies to the State's petition against K.E.. Accordingly, we
reverse the trial court's order terminating K.E.'s parental rights to
S.A.E. and K.L.E. We remand the matter to the trial court for further
proceedings consistent with this opinion and entry of a new ruling on
the State's petition.
WILKINS, Judge (concurring):
I concur completely in
the main opinion.
The Indian Child Welfare
Act (ICWA) clearly requires additional evidence be taken as provided in
25 U.S.C. § 1912(f). Where, as in this case, the trial court failed
to take additional evidence, 25 U.S.C. § 1914 grants the Indian child,
the Indian child's parent, and the Indian child's tribe, the right to
petition any court of competent jurisdiction to remedy the error. In addition,
Rule 48 of the Utah Rules of Juvenile Procedure adopts the provisions
of Rules 52, 59, and 60 of the Utah Rules of Civil Procedure that allow
a party to seek a new hearing on a case from the trial court.
In this case, neither
the appellant nor the State alerted the trial court to the
applicable requirements of the ICWA. Additionally, neither party asked
the trial court to correct the error once it was discovered. As conceded
at oral argument before this court, appellant was aware of the court's
failure to take the necessary evidence and make the necessary findings
required by the ICWA immediately after the trial concluded, and prior
to the entry of the written order now appealed.
It seems to me a safe
presumption that the trial judge, had he been given an opportunity to
consider the impact of the ICWA on this case, would have taken appropriate
corrective action without the need of direction from this court. Prompt
and formal application to the trial court would have saved considerable
expense, time, and difficulty for all involved. It also would have served
the best interests of the two children, whose future is at issue in this
case, by allowing resolution of this question one year earlier than has
been possible through the mechanism of an appeal. *1006
With our decision today, we remand this action to the trial court to do
exactly that which could have been done in February 1995 at the close
of the trial, had anyone asked.
Hopefully, in future
cases involving Indian children and the termination of parental rights,
the State and counsel for the parents will alert the trial court to the
ICWA and its impact. Failing that, prompt application to the trial court
for correction of such an error will better serve all concerned.
ORME, J., concurs.
912 P.2d 1002
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