ICWA Case out of Texas Court of Appeals Declines to Extend Baby Girl

Here is the opinion.

The Court reversed a termination of parental rights because there was no qualified expert witness testimony. The State argued that because of Adoptive Couple v. Baby Girl, the section of ICWA governing burden of proof and QEW (25 U.S.C. 1912(f)) did not apply. The Court rejected this argument.

In addition, the Court used the 2015 Guidelines to determine if a proper QEW testified:

The Bureau of Indian Affairs has created guidelines for state courts to use in Indian child custody proceedings. Bureau of Indian Affairs Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10147 (February 25, 2015). These guidelines do not have binding legislative effect, but Texas appellate courts have utilized the Guidelines when interpreting ICWA. See In re K.S., 448 S.W.3d 521, 529 (Tex.App.–Tyler 2014, pet. denied) (utilizing the earlier version of the Guidelines); In re J.J.C., 302 S.W.3d 896, 900 (Tex.App.–Waco 2009, no pet.)(same); In re R.R., 294 S.W.3d at 217 (same); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163-64 (Tex.App.–Houston [14th Dist.] 1995, orig. proceeding). The updated BIA Guidelines address the applicable standards of evidence.

The updated BIA Guidelines address the applicable standards of evidence. Section D.3(b) states:

The court may not order a termination of parental rights unless the court’s order is supported by evidence beyond a reasonable doubt, supported by the testimony of one or more qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious harm to the child. [Emphasis added].

80 Fed.Reg. 10156. Thus, the challenged finding cannot stand unless it is supported by the testimony of a qualified expert witness.

Section D.4 pertains to the qualifications an expert witness must possess.

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After reviewing the entire record, we conclude that the challenged finding is not supported by the testimony of a qualified expert witness. The caseworker, Lizette Frias, was not shown to possess the required knowledge or expertise. There is no evidence that Frias is a member of the Oglala Sioux tribe or another tribe, or that she is recognized by any tribe as having substantial experience in the delivery of child and family services to Indians. Further, there is no evidence that she has knowledge of the prevailing social and cultural standards and childrearing practices within the Oglala Sioux tribe.

Appellant Brief
State Brief