(dissenting) — I respectfully dissent. I sympathize with my colleagues’ desire to keep the Mahaney children with their paternal grandmother who has nurtured and protected them and provided them with a stable environment since 1993. It is, however, incumbent on this Court to enforce the laws of the United States. While the majority would apply the Washington standard of best interests of the children and would transfer the case to juvenile court, I would remand to superior court with an order for a new trial for the court to apply the standards of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963.
The welfare of a child must necessarily be considered in the context of the relevant family structure and cultural background. See DeCoteau v. Dist. County Court, 420 U.S. 425, 465, 95 S. Ct. 1082, 43 L. Ed. 2d 300 (1975) (Douglas, J., dissenting). Native American culture is not well understood by our administrative agencies and courts and there is an inherent bias in favor of non-Native American values and therefore non-Native American placement. The consistent failure of state agencies to recognize the unique characteristics of Native American culture and shocking statistics indicating wholesale and often unwarranted removals of Native American children from their families and tribal communities,6 led Congress to adopt the ICWAin 1978. The ICWA was an effort by Congress to reverse the tradition of taking Native American children away from their parents and tribes for the “best interest” of the children based upon *900non-Native American values. Those children, Congress concluded, were deprived of the religious, linguistic, ancestral, educational, and traditional influences of the native tribes. This trend threatens the existence of Native American culture. As the numbers of the tribal community dwindle, the Native American culture also dwindles. The purpose of the ICWA is to preserve Native American tribes by establishing standards to protect Native American children and keep them within their families, communities, and tribes whenever possible.7 With this legislative background in mind, let us examine the facts before us.
Rebecca Johnston, a registered member of the Tlingit and Haida tribes, and Mark Mahaney had two children, born in 1988 and 1990. The children were eligible for membership in the Tlingit, Haida, and Sitka tribes. In 1992, both parents signed a consent form to give temporary legal custody of the children to the paternal grandmother, Erika Mahaney (Mahaney). At the time temporary custody was granted, all three lived in Alaska, but shortly thereafter Mahaney relocated with the children to Tacoma, Washington. The arrangement continued amicably until May 1994, when Johnston called to say she wanted to have the children return to live with her. As a result of that telephone call, Mahaney filed for third party custody in Pierce County, Washington. The petition did not state that the children were of Native American origin. Johnston, unable to afford a lawyer, failed to respond, so a default order was entered granting custody to Mahaney. Johnston subsequently revoked her consent to temporary custody.
In May 1998, the Sitka tribe filed a notice of intervention in Pierce County Superior Court. A report by the court-appointed guardian ad litem noted that the mother was now clean and sober but nevertheless suggested that the children remain with their grandmother. In November, the *901Haida and Tlingit tribes filed a joint notice of intervention. Johnston then moved for transfer to tribal court, but the superior court denied the motion and held that the best interests of the children would be to stay with the grandmother, citing concern for the safety of the children, the special needs of the children, and disruption to the children’s lives by a return to their mother. In March 1999, the case proceeded to trial. Mahaney called experts who testified about the children’s bad experiences with their mother in the past and their anxiety about returning to their mother’s custody. The experts did not visit Johnston and offered no testimony about her home life or parenting ability. The court awarded temporary custody to Mahaney and ordered a reunification plan. Johnston met all the requirements ordered by the court as part of the reunification plan, including parenting classes, counseling, classes to assist in reunification, and providing the children with information about their Native American heritage. She also abided by the court’s direction to allow the children’s counselor to control her telephone contact with the children and to consult with the children’s counselor before any unsupervised contact with the children.
A home study conducted by the tribe in 1999 found that the Mahaney children are likely to thrive if returned to the mother, who has since remarried and has developed a strong support network. The study described the mother as “consistently friendly, as well as responsible and motivated to accomplish any task necessary to improve the life of her and her family.” Clerk’s Papers at 100. Johnston and her husband have sufficient financial resources to care for the children, have access to free medical services, and are committed to allowing the children access to the Jewish culture in which their grandmother had raised them as well as to Native American culture.
After the home study report was issued, Johnston again formally revoked her consent to temporary custody, and she moved for immediate return of her children pursuant to the ICWA. The children have stated that they do not want to *902live with, their mother because they do not know her and they have bad memories of life with her when they were little. On the other hand, the home study report indicates that Johnston is committed to obtaining family therapy with the Alaska Native Medical Center to address these issues.
The ICWA imposes minimum requirements, and the parties do not dispute its applicability. Under the ICWA, a state court may not order foster8 placement of Native American children in an involuntary proceeding unless it determines “that the continued custody of the child by the parent... is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(e). This standard focuses its attention on the parent and is thus very different from the “best interests of the child” standard used by the trial court.
The majority, however, would adhere to the best interests of the child standard, modified only slightly to take into account the strictures of the ICWA by a requirement that the “foster care finding be made by clear and convincing evidence.” Majority at 893.9
The majority’s emphasis on the best interest of the children is laudable, but results in the court’s doing precisely what the ICWA was designed to prevent: it applies non-Native American values with little appreciation for the value of Native American tribes, their culture, and their influence. Here, the issue is not whether parental rights should be terminated, but whether the children should *903remain with their grandmother while appropriate steps were taken toward reunification with their mother. Any determination that the children would be seriously harmed by a return to Johnston’s custody must be supported by clear and convincing evidence. 25 U.S.C. § 1912(e). This evidence must show the existence of particular conditions in the home and the causal relationship between those conditions and the damage that is likely to result. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,583 (Nov. 26, 1979). No such evidence was presented. On the contrary, Johnston’s home study provided a very positive report, concluding that the children would thrive in her home.
The majority is wrong in concluding that the best interests of the child must be found by clear and convincing evidence. Clear and convincing evidence must support a finding of parental unfitness to care for the child. 25 U.S.C. § 1912(e).
Part of the evidence required by the ICWAis testimony of qualified expert witnesses. The guidelines express a preference for a tribal member or a lay expert knowledgeable about tribal customs as they pertain to family organization and child rearing practices. 44 Fed. Reg. at 67,593. The third choice is “[a] professional person having substantial education and experience in the area of his or her specialty.” Id. at D.3 commentary (b)(iii). Mahaney relies on this category to argue that the experts who testified on her behalf regarding the children’s special needs were sufficiently qualified. However, case law suggests that an expert in this third category needs to have “ ‘expertise beyond the normal social worker qualification [s].’ ” State ex rel. Juvenile Dep’t of Multnomah County v. Charles, 70 Or. App. 10, 17, 688 P.2d 1354 (1984) (holding that social workers with more than normal experience but without specialized tribal and cultural knowledge were unqualified under the ICWA).
Only when cultural bias is clearly not implicated and when there is no dispute about the parental inadequacy at the time of the hearing is a social worker without such *904cultural expertise acceptable. See, e.g., State ex rel. Juvenile Dep’t of Lane County v. Tucker, 76 Or. App. 673, 683-84, 710 P.2d 793 (1985) (allowing testimony from a worker without cultural expertise when there was no dispute about risk to the children because of the mother’s mental illness); In re Oscar C., Jr., 147 Misc. 2d 761, 763-64, 559 N.Y.S.2d 431 (1990) (allowing such testimony where the father was clearly unable to care for the children because of a diagnosis of acute paranoia). Here, in contrast, the 1999 home study indicates that the mother is ready and able to receive the children.
No party assigned error to the failure to transfer to tribal court. I would therefore remand to superior court for a new trial with directions to the court to base its decision on whether there is clear and convincing evidence that returning the children to the mother’s custody would result in serious harm, as is required by the ICWA.
I respectfully dissent.
Johnson, J., concurs with Chambers, J.
The statistical data and expert testimony presented in an early Senate oversight hearing held in 1974 include a comment by one witness, William Byler, that current practices were akin to “ ‘[tjhe wholesale removal of Indian children from their homes.’ ” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989) (quoting testimony of Byler).
The sponsor of the legislation, Representative Morris Udall, summarized the four years of congressional hearings, oversight, and investigation “has disclosed a serious problem in Indian child welfare which approaches crisis proportions.” 124 Cong. Rec. 38102 (1978) (statement of Rep. Morris Udall).
The ICWA defines foster care as “any action removing an Indian child from its parent... for temporary placement in a foster home ... where the parent... cannot have the child returned upon demand, but where parental rights have not been terminated.” 25 U.S.C. § 1903(l)(i). Under this definition, Mahaney is providing foster care to the children.
For this proposition, they cite a Wisconsin case that upheld a dual standard of proof for cases decided under the ICWA. In re D.S.P., 166 Wis. 2d 464, 472-75, 480 N.W.2d 234 (1992). In D.S.P., the court found that although the ICWA standard of beyond a reasonable doubt should be applied to the issue of whether parental rights should be terminated, additional protections offered in the Wisconsin children’s code should also be applied. The court thus held that as an additional protection, whether abandonment had actually occurred, should also be shown by the Wisconsin standard of clear and convincing evidence. Id. at 472-75.