Opinion here. The Colorado Court disagrees with holdings in Montana and Michigan on the same issue–what does a qualified expert witness have to say for it to count under 25 U.S.C. 1912(f).
Congress’s primary reason for requiring qualified expert testimony was to prevent courts from basing decisions “solely upon the testimony of social workers who possessed neither the specialized professional education nor the familiarity with Native [American] culture necessary to distinguish between cultural variations in child-rearing practices and actual abuse or neglect.” Steven H., 190 P.3d at 185 (quoting L.G. v. State, 14 P.3d 946, 952- 53 (Alaska 2000)). This purpose would not necessarily be furthered by a requirement that an expert witness recite the precise language of 25 U.S.C. § 1912(f).
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Although [the Regulations and Guidelines] emphasize the need for a qualified expert witness to offer testimony supporting a finding regarding likely damage to the child, they stop short of demanding a verbatim recitation of the statutory standard by the expert.
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Additionally, the Department presented testimony from a
qualified expert witness under ICWA — a social worker with Navajo Children and Family Services. The social worker did not directly opine that the child would suffer damage in mother’s care. Rather, when asked to give her opinion regarding whether the child would suffer serious emotional or physical harm if returned to a parent, the social worker indicated that mother had not fulfilled the treatment requirements to address the reasons for the child being placed in the Department’s custody. The social worker also testified that the recent domestic violence issues between the parents were concerning.
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