In re L.L.

2019 UT App 134

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF L.L.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

GUARDIAN AD LITEM,
Appellant,
v.
STATE OF UTAH, B.W., S.L., AND
UTE MOUNTAIN UTE TRIBE,
Appellees.

Opinion
No. 20170659-CA
Filed August 1, 2019

Eighth District Juvenile Court, Vernal Department
The Honorable Ryan B. Evershed
No. 1128314

Martha Pierce, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee State of Utah
Emily Adams and April Erin Bradley, Attorneys
for Appellee B.W.
Jeffry K. Ross, Attorney for Appellee S.L.
Mark A. Flores, Attorney for Appellee
Ute Mountain Ute Tribe

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Federal law requires that before a court can remove an
Indian child from a parent’s custody, a “qualified expert
 In re L.L.

witness” must provide evidence 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) (2012). The
questions presented for our determination are what constitutes a
“qualified expert witness” and whether a Utah court must apply
the definition of that term provided by a federal agency.
Specifically, the attorney guardian ad litem (the GAL) for an
Indian child (Child) appeals the juvenile court’s order denying
the GAL’s motion to transfer custody of Child and the court’s
order terminating jurisdiction over Child’s status. The GAL
contends that the juvenile court erred when it refused to
consider certain of the GAL’s witnesses as “qualified expert
witnesses” pursuant to the Indian Child Welfare Act (ICWA). See
id. The GAL faults the juvenile court for deferring to the United
States Department of the Interior, Bureau of Indian Affairs’ (the
BIA) regulation interpreting the statutory term rather than
employing its own interpretation. The GAL also argues that the
juvenile court erred when it excluded certain expert witness
testimony as privileged.

¶2 We conclude that while the juvenile court correctly
looked to the BIA regulation to determine whether the GAL’s
witnesses were qualified expert witnesses pursuant to ICWA,
the juvenile court misapplied the regulation and exceeded its
discretion in excluding the GAL’s witnesses and terminating
jurisdiction over Child and her mother (Mother). We also
conclude that the juvenile court erred in determining that the
testimony of two of the GAL’s witnesses was subject to
therapist–patient privilege. We therefore reverse and remand for
further proceedings.

BACKGROUND

¶3 Child is a three-year-old girl born in April 2016. She is an
Indian child as defined by ICWA because she is eligible for

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membership in the Ute Mountain Ute Tribe (the Tribe) and her
biological parents are members of the Tribe. 1 See 25 U.S.C.
§ 1903(4) (2012). Child came into the custody of the Utah
Division of Child and Family Services (DCFS) as a newborn
because of Mother’s issues with alcohol and domestic violence.
Mother has three older children whom the court also
adjudicated as abused and neglected and who were removed
from Mother’s care before Child was born. In November 2016,
the juvenile court returned Child to Mother’s custody, with
DCFS providing in-home protective services to Mother and
Child.

¶4 Shortly thereafter, the juvenile court received letters
from three therapists who had been involved with Mother
and her children. The letters expressed the therapists’ concerns
about Mother’s ability to safely parent Child. Consequently,
in March 2017, the GAL moved to remove Child from Mother
and return her to DCFS custody. In the motion, the GAL asserted
that Mother continued to struggle with domestic violence
issues and explained that all three therapists who had
submitted letters to the court had concerns about Mother’s
ability to parent Child safely because of Mother’s continued
relationship with Child’s father, who had been convicted of
abusing Mother’s older children. The GAL noted that DCFS was
in the process of terminating reunification services for Mother
and her three older children and considering changing their
permanency goal to adoption, and asked the juvenile court to
remove or transfer custody of Child because she was a sibling-at-
risk.

¶5 The juvenile court set an evidentiary hearing on the
GAL’s motion for June 27, 2017. In preparation for that hearing,
the GAL designated as expert witnesses the three therapists who

1. The Tribe intervened in the case in February 2017.

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had previously submitted letters to the court. Prior to the
hearing, Mother and the Tribe moved to strike the GAL’s motion
to transfer custody, arguing that the GAL had failed to designate
an expert witness who was qualified as required by ICWA and
the BIA regulations; specifically, the GAL had failed to designate
an expert who could testify about the prevailing social and
cultural standards of the Tribe as required by the BIA
regulations. 25 C.F.R. § 23.122(a) (2016). Mother and the Tribe
also objected to the testimony of two of the therapists on the
ground that Mother’s therapist–patient privilege rendered their
testimony inadmissible.

¶6 The GAL argued that since ICWA does not explicitly
define what qualifies a witness as an expert, the juvenile
court had “discretion to determine whether a witness has
adequate qualifications to provide the proffered testimony.”
Although the three therapists were not qualified to testify
regarding tribal cultural standards, the GAL asserted that the
court was not bound by the BIA regulations and urged the court
to qualify the therapists as expert witnesses anyway based on
their qualification “to testify regarding whether the child’s
continued custody by the parent . . . is likely to result in serious
emotional or physical damage to the child,” 25 U.S.C. § 1912(e)
(2012).

¶7 Following a hearing on the matter, the juvenile court
agreed with Mother and the Tribe that because “qualified expert
witness” is not defined by ICWA, the court should defer to and
adopt the BIA’s interpretation of that term pursuant to the
Chevron deference rule articulated by the United States Supreme
Court, which requires courts to defer to federal agencies’
interpretations of federal statutes under certain circumstances.
See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 843–45 (1984). Accordingly, the juvenile court determined
that the standard set forth in the BIA regulation precluded the
court from qualifying any of the therapists as experts because

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none of them were qualified to testify about the prevailing social
and cultural standards of the Tribe. Based on this determination,
the juvenile court dismissed the GAL’s motion to remove Child
from Mother’s custody. The court closed Child’s case and
terminated jurisdiction on August 3, 2017, and the GAL timely
appealed.

ISSUES AND STANDARDS OF REVIEW

¶8 The GAL asserts that the juvenile court erred in
determining that the three therapists the GAL intended to call
to support the motion to remove were not qualified expert
witnesses because they could not testify regarding the Tribe’s
social and cultural standards. The qualification of witnesses
as experts is generally a discretionary decision for a trial court.
See State v. Holm, 2006 UT 31, ¶ 89, 137 P.3d 726. But to
properly exercise that discretion in an ICWA proceeding, the
court must apply the correct legal standard. See Ross v. Epic
Eng’g, PC, 2013 UT App 136, ¶ 11, 307 P.3d 576; see also In re
M.F., 225 P.3d 1177, 1183 (Kan. 2010) (explaining that in a child
welfare case involving an Indian child, the legal standard for
qualified expert witnesses is defined by ICWA). The juvenile
court’s interpretation of ICWA’s requirements regarding
qualified expert testimony presents a pure question of law to be
reviewed de novo. See In re adoption of B.B., 2017 UT 59, ¶ 16, 417
P.3d 1.

¶9 The GAL further asserts that the juvenile court erred in
determining that the therapists’ testimonies were subject to the
therapist–patient privilege. “The existence of a privilege is a
question of law for the court, which we review for correctness,
giving no deference to the trial court’s determination.” Price v.
Armour, 949 P.2d 1251, 1254 (Utah 1997).

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ANALYSIS

I. The Juvenile Court Correctly Deferred to the BIA’s
Construction of the Phrase “Qualified Expert Witness” as Used
in ICWA.

A. ICWA and the BIA

¶10 In a custody proceeding involving an Indian child, a state
court must comply with ICWA. 2 That statute, passed in 1978,

2. In general, the promulgation of child welfare procedures is a
matter reserved to the states. See Elk Grove Unified School Dist. v.
Newdow, 542 U.S. 1, 12 (2004) (“The whole subject of the
domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the
United States.” (quotation simplified)), abrogated on other grounds
by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118 (2014). While the mandates of ICWA are based on the federal
government’s “plenary power over Indian affairs,” 25 U.S.C.
§ 1901(1) (2012), ICWA clearly contemplates that state courts will
adjudicate child custody cases involving Indian children, see id.
§ 1911. So long as the core intent of ICWA is preserved—
providing procedural and substantive protections such as the
right to counsel, notice to the tribes, rehabilitative services, a
procedure to invalidate illegal proceedings, and imposing high
standards of proof—the underlying procedural framework for
child custody cases has been left to the states, even in cases
involving Indian children. See In re adoption of A.B., 2010 UT 55,
¶ 32, 245 P.3d 711; In re C.D., 2008 UT App 477, ¶ 14, 200 P.3d
194. The Utah Supreme Court has determined that in passing
ICWA, Congress did not intend to preempt state child welfare
law, In re adoption of A.B., 2010 UT 55, ¶ 30, but ICWA does
provide that “[i]n any case where State or Federal law applicable
to a child custody proceeding . . . provides a higher standard of
(continued…)

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reflects a national purpose “to protect the best interests of Indian
children and to promote the stability and security of Indian
tribes and families.” 25 U.S.C. § 1902 (2012); see also In re adoption
of A.B., 2010 UT 55, ¶¶ 32, 36, 245 P.3d 711. The act seeks to
accomplish this purpose by imposing “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; see also In re adoption of A.B., 2010 UT 55, ¶ 36. In passing
ICWA, Congress wanted to ensure that Indian child-welfare
determinations were not based on “a white, middle-class
standard which, in many cases, forecloses placement with an
Indian family.” Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 37 (1989) (quotation simplified) (citing H.R. Rep. No.
95-1386, at 24 (1978)). Congress recognized “that state law was
inappropriately addressing the removal and placement of Indian
children,” In re C.D., 2008 UT App 477, ¶ 14, 200 P.3d 194, by
“fail[ing] to recognize the essential tribal relations of Indian
people and the cultural and social standards prevailing in Indian
communities and families,” 25 U.S.C. § 1901(5) (2012). 3

(…continued)
protection to the rights of the parent . . . of an Indian child than
the rights provided under this subchapter, the State . . . shall
apply the [higher] standard,” 25 U.S.C. § 1921 (2012). This is to
ensure “that parents of Indian children enjoy the highest level of
protection of their parental rights available.” In re adoption of
B.B., 2017 UT 59, ¶ 67, 417 P.3d 1; see also 25 U.S.C. § 1921.

3. ICWA is clearly concerned with the best interests of the
“Indian child,” but the phrase “best interests of Indian children”
in the context of ICWA is necessarily more involved than the
general “best interests of the child” standard applicable in child
welfare cases involving non-Indian children. Under any analysis,
(continued…)

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¶11 As part of its efforts to advance these interests, ICWA
requires that any foster care placement of an Indian child be
“supported by clear and convincing evidence, including testimony
of qualified expert witnesses, that the continued custody of the
child by the parent . . . is likely to result in serious emotional or
physical damage to the child.” Id. § 1912(e) (emphasis added).
But the phrase “qualified expert witness” is not defined by
ICWA, and when the juvenile court was asked to examine the
provision, it found it to be ambiguous. The juvenile court
therefore looked to the BIA—the executive agency tasked with
promulgating rules and regulations to carry out ICWA’s
provisions, id. § 1952; see infra note 4—for guidance. The BIA’s
2016 Regulations define “qualified expert witness” as follows: “a
qualified expert witness must be qualified to testify regarding
whether the child’s continued custody by the parent . . . is likely
to result in serious emotional or physical damage to the child
and should be qualified to testify as to the prevailing social and
cultural standards of the Indian child’s Tribe.” 25 C.F.R.
§ 23.122(a) (2016); see also Indian Child Welfare Act Proceedings
Final Rule (Final Rule), 81 Fed. Reg. 38,777, 38,829 (June 14, 2016)
(“The qualified expert witness should have specific knowledge
of the prevailing social and cultural standards of the Indian
child’s Tribe . . . . The question of whether the continued custody
of the child by the parent or Indian custodian is likely to result in

(…continued)
a child’s physical and emotional health must be paramount. But
under ICWA, there is an additional presumption that it is in the
best interests of the “Indian child” to maintain ties with the
Indian tribe, Indian culture, and Indian family. See Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 50 n.24 (1989)
(“[ICWA] is based on the fundamental assumption that it is in
the Indian child’s best interest that its relationship to the tribe be
protected.” (quotation simplified)).

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serious emotional or physical damage to the child is one that
should be examined in the context of the prevailing cultural and
social standards of the Indian child’s Tribe.”); 1979 Guidelines,
44 Fed. Reg. 67,584, 67,593 (Nov. 26, 1979) (explaining that
“knowledge of tribal culture and childrearing practices will
frequently be very valuable to the court” in determining the
likely impact of parental custody under the standards of ICWA
because “[s]pecific behavior patterns will often need to be placed
in the context of the total culture to determine whether they are
likely to cause serious emotional harm”). We now turn to the
question of whether the juvenile court correctly deferred to the
BIA regulation to determine whether the GAL’s witnesses
qualified as experts pursuant to ICWA.

B. In Interpreting Ambiguous Provisions of a Federal
Statute, We Are Bound by the Chevron Deference
Doctrine.

¶12 When interpreting a statute, a court’s “primary goal is to
evince the true intent and purpose” of the legislative body.
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (quotation simplified). The best evidence of legislative intent
is “the plain and ordinary meaning of the statute’s terms.” Rent-
A-Center West, Inc. v. Utah State Tax Comm’n, 2016 UT 1, ¶ 13, 367
P.3d 989. A statute draws its meaning from its text, but when a
genuine ambiguity appears, it is usually up to the courts to
resolve the ambiguity by “resort[ing] to other modes of statutory
construction,” such as “seek[ing] guidance from legislative
history and other accepted sources” or employing “unique
rules” to “guide our construction of ambiguous terms” in
“specific contexts.” Marion, 2011 UT 50, ¶ 15 (quotation
simplified).

¶13 One of these unique rules requires courts to grant
deference to a federal administrative agency’s interpretation of a
federal statute when it appears that Congress has left “gaps” in

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the legislation for the agency to fill. See Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). “The court
does not simply impose its own construction on the statute, as
would be necessary in the absence of an administrative
interpretation.” Federal Nat’l Mortgage Ass’n v. Sundquist
(Sundquist I), 2013 UT 45, ¶ 19, 311 P.3d 1004 (quotation
simplified); see also Bank of Am., NA v. Sundquist (Sundquist II),
2018 UT 58, ¶¶ 23–24, 430 P.3d 623. “Rather, if the statute is
silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is based on
a permissible construction of the statute.” Chevron, 467 U.S. at
843; see also Sundquist II, 2018 UT 58, ¶ 45. That is, although the
judiciary is the final authority on issues of statutory
construction, if a federal statute is not clear, our courts “have
long recognized that considerable weight should be accorded to
an executive department’s construction of a statutory scheme it
is entrusted to administer, and the principle of deference to
administrative interpretations.” Chevron, 467 U.S. at 844;
Sundquist II, 2018 UT 58, ¶ 24. This principle is commonly
known as the Chevron deference doctrine.

¶14 To the juvenile court below and on appeal in this court,
the GAL argued that our supreme court had repudiated any of
its prior precedent that supports deference to a federal
administrative agency’s interpretation of a federal statute
pursuant to the Chevron deference doctrine. See Outfront Media,
LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12 n.13, 416 P.3d 389;
Ellis-Hall Consultants v. Public Service Comm’n, 2016 UT 34, ¶ 33,
379 P.3d 1270; Hughes Gen. Contractors, Inc. v. Utah Labor Comm’n,
2014 UT 3, ¶ 25, 322 P.3d 712; Sundquist I, 2013 UT 45, ¶ 40;
Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 29, 308 P.3d 461.
However, while this case was pending on appeal, the Utah
Supreme Court issued a decision in Sundquist II, 2018 UT 58,
wherein the court overruled its 2013 decision in Sundquist I and
held that while the court has declined to employ Chevron-like

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deference when reviewing a state agency’s interpretation of a
state statute or regulation, or a state agency’s interpretation of a
federal statute, see Hughes Gen. Contractors, 2014 UT 3, ¶ 25, our
courts must still defer to a federal administrative agency’s
interpretation of an ambiguous federal statute. See Sundquist II,
2018 UT 58, ¶¶ 21–24. Therefore, because the BIA is a federal
administrative agency and ICWA is a federal statute, we must
employ the principles articulated in Chevron to determine
whether the BIA’s 2016 regulation defining “qualified expert
witness” is entitled to deference.

C. The BIA’s Definition of the Term “Qualified Expert
Witness” Is Entitled to Chevron Deference.

¶15 When a federal agency’s interpretation of a federal statute
“places us in the shadow of Chevron,” we must “pass through a
series of analytical gates.” Id. ¶¶ 21–22. First, we must determine
whether the provision is ambiguous. “If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent
of Congress.” Chevron, 467 U.S. at 842–43. If we determine that
“the statute is silent or ambiguous with respect to the specific
issue,” Sundquist II, 2018 UT 58, ¶ 45 (quotation simplified), then
we must consider “whether Congress intended to delegate
authority to the [agency] to weigh in on the issue,” id. ¶ 22, and,
if so, whether the agency’s interpretation “is based on a
permissible construction of the statute,” Chevron, 467 U.S. at 843.
If we determine that the agency has authority and that its
construction is reasonable, then the agency’s interpretation is
entitled to deference. See id. at 843–45.

1. The Term “Qualified Expert Witness” as Used in ICWA Is
Ambiguous.

¶16 ICWA does not define the term “qualified expert
witness.” While “expert witness” is a standard term that is

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defined by reference to state and federal law, the word
“qualified” is not so easily defined. The use of the extra word
“qualified” in the statute indicates that Congress intended to
give that word separate meaning and to require that an “expert”
be possessed of an extra set of qualifications beyond traditional
expertise. But ICWA is silent as to what those qualifications are.
Because the statute does not unambiguously address the
question, we must “rely on other tools of statutory
interpretation,” see Sundquist II, 2018 UT 58, ¶ 37, beginning with
an examination of the BIA’s interpretation.

2. Congress Has Granted the BIA the Authority to Interpret
ICWA.

¶17 When ICWA was enacted, the statute instructed the
Department of the Interior as follows: “Within one hundred and
eighty days after November 8, 1978, the Secretary shall
promulgate such rules and regulations as may be necessary to
carry out the provisions of this chapter.” 25 U.S.C. § 1952 (2012).
This express grant of rulemaking authority gives the BIA broad
discretion to interpret and implement ICWA. 4 The BIA’s

4. Immediately following the passage of ICWA, in 1979, the BIA
issued guidelines representing the BIA’s interpretation of ICWA
and providing procedures designed to “help assure that rights
guaranteed by [ICWA] are protected when state courts decide
Indian child custody matters,” Guidelines for State Courts in
Indian Child Custody Proceedings (1979 Guidelines), 44 Fed.
Reg. 67,584 (Nov. 26, 1979). In the course of the notice-and-
comment period for the 1979 Guidelines, “[s]everal commenters
remarked . . . that the Department [of the Interior] had the
authority to issue regulations and should do so.” Final Rule, 81
Fed. Reg. 38,777, 38,784 (June 14, 2016). Nevertheless, “[t]he
Department declined to issue regulations” at that time, id., and
made it clear in its introduction to the 1979 Guidelines that they
(continued…)

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(…continued)
were not intended to have binding legislative effect and were
issued primarily to assist state courts in their implementation of
ICWA, see 1979 Guidelines, 44 Fed. Reg. at 67,584. The BIA
explained that while “[p]ortions of [ICWA] do expressly
delegate to the Secretary of the Interior responsibility for
interpreting statutory language[,] . . . [p]rimary responsibility for
interpreting other language used in the Act . . . rests with the
courts that decide Indian child custody cases.” Id.
In 2015, because of inconsistent implementation
and interpretation of ICWA among the states and the fact
that Indian children were still found in child-welfare
proceedings at twice the rate of the general population, the
BIA determined that it would be appropriate and necessary to
promulgate additional and updated guidelines interpreting
ICWA and provide uniform standards for state courts.
See generally Jason R. Williams et al., Casey Family Programs,
Indian Child Welfare Act: Measuring Compliance
(2015), http://www.casey.org/media/measuring-compliance-
icwa.pdf [https://perma.cc/93J8-DADU]. Accordingly, the BIA
updated its guidelines and explained that the new 2015
Guidelines were intended to “promote compliance with ICWA’s
stated goals and provisions by providing a framework for State
courts and child welfare agencies to follow.” Guidelines for State
Courts and Agencies in Indian Child Custody Proceedings, 80
Fed. Reg. 10146–47 (Feb. 25, 2015).
Again, in the course of the notice-and-comment period,
“[m]any commenters on the 2015 Guidelines requested not only
that the Department update its ICWA guidelines but that the
Department also issue binding regulations addressing the
requirements and standards that ICWA provides for State-court
child-custody proceedings.” Final Rule, 81 Fed. Reg. at 38,784. In
response to this commentary, the BIA “began a notice-and-
(continued…)

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(…continued)
comment process to promulgate formal ICWA regulations.” Id.;
see also Regulations for State Courts and Agencies in Indian
Child Custody Proceedings (Proposed Regulations), 80 Fed. Reg.
14,880 (March 30, 2015).
A final rule promulgating binding regulations was issued
by the BIA in 2016, along with a new set of nonbinding
guidelines to replace both the 1979 and 2015 Guidelines. See
Final Rule, 81 Fed. Reg. 38,777; U.S. Dep’t of Interior, Office of
the Assistant Secretary-Indian Affairs, Bureau of Indian Affairs,
Guidelines for Implementing the Indian Child Welfare Act, 4–6 (2016),
https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-05
6831.pdf [https://perma.cc/9KUE-23QU]. In its introduction to
the 2016 Regulations, the BIA repudiated the opinion expressed
in its 1979 Guidelines suggesting that it lacked the authority to
promulgate binding regulations. See Final Rule, 81 Fed. Reg. at
38,786. The BIA observed that the jurisprudence that has
developed in the intervening years since the 1979 Guidelines
were issued, both with respect to ICWA specifically and to the
authority of federal agencies generally, indicates that Congress
intended to grant the BIA authority to issue binding regulations
interpreting ICWA. For example, in Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30 (1989), the Supreme Court
considered whether Congress intended the definition of
“domicile” to be left to the interpretation of individual states or
whether it should be interpreted uniformly. See id. at 43. The
Court concluded that Congress intended ICWA to have
“nationwide uniformity” with respect to the definition of
“critical term[s].” Id. at 44–45. Relying on this jurisprudence, the
BIA concluded that Congress intended to grant it the authority
to promulgate binding regulations to ensure uniform
interpretation and application of important ICWA provisions.
See Final Rule, 81 Fed. Reg. at 38,787–88. The BIA also observed
(continued…)

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(…continued)
that “grants of rulemaking authority” similar to that granted to
the Department of the Interior by section 1952 of ICWA “have
been held to presumptively authorize agencies to issue rules and
regulations addressing matters covered by the statute unless
there is clear congressional intent to withhold authority in a
particular area.” Final Rule, 81 Fed. Reg. at 38,785. Relying on
such cases, the BIA concluded that ICWA’s “grant of rulemaking
authority is broad and inclusive,” encompassing the authority to
issue binding regulations. Id.
An agency’s assessment of its own rulemaking authority
is not binding. See United States v. Haggar Apparel Co., 526 U.S.
380, 387–89 (1999) (determining that the Customs Service’s
statement that it considered its regulatory authority to be limited
“does not suffice to displace the usual rule of Chevron deference”
and that the agency’s use of the notice-and-comment process, in
conjunction with a broad grant of authority to the Secretary of
the Treasury to “establish and promulgate” necessary “rules and
regulations,” demanded judicial deference absent express
language limiting the Customs Service’s authority (quotation
simplified)). Nevertheless, the BIA’s careful examination of its
authority under ICWA is persuasive. ICWA’s express instruction
that “the Secretary shall promulgate such rules and regulations
as may be necessary to carry out the provisions of this chapter,”
25 U.S.C. § 1952 (emphasis added), is similar to other grants of
rulemaking authority that have been afforded Chevron deference,
see City of Arlington v. FCC, 569 U.S. 290, 306 (2013) (observing
the absence of “a single case in which a general conferral of
rulemaking or adjudicative authority has been held insufficient
to support Chevron deference for an exercise of that authority
within the agency’s substantive field”); see also National Cable
& Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967, 980–
81 (2005) (explaining that where an agency issues a regulation
(continued…)

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definition of “qualified expert witness” was promulgated in
accordance with the rulemaking power granted to it by ICWA,
see 25 U.S.C. § 1952, and “the agency utilized the notice-and-
comment rulemaking process before issuing the regulations,” see
United States v. Haggar Apparel Co., 526 U.S. 380, 390 (1999); see
also United States v. Mead Corp., 533 U.S. 218, 226–27 (2001)
(stating that notice-and-comment rulemaking is an indicator of
authority entitled to Chevron deference). See generally Proposed
Regulations, 80 Fed. Reg. 14,880 (March 20, 2015). Thus, it is
apparent that the BIA’s regulation defining “qualified expert
witness” fell within the scope of its congressionally granted
authority.

3. The BIA’s Definition of “Qualified Expert Witness” Is a
Permissible Construction of That Term.

¶18 Finally, we must decide whether the juvenile court
correctly determined that the BIA’s definition of “qualified

(…continued)
“in the exercise of [its] authority” to “promulgate binding legal
rules,” there is “no . . . question[]” that the regulation is within
the agency’s jurisdiction and it is therefore entitled to Chevron
deference); United States v. Mead Corp., 533 U.S. 218, 229 (2001)
(explaining that “express congressional authorization[] to
engage in the process of rulemaking or adjudication that
produces regulations or rulings” is “a very good indicator of
delegation meriting Chevron treatment”). Further, the need for
binding regulations is apparent in light of ICWA’s purpose to
resolve the historical problem of states failing “to recognize the
essential tribal relations of Indian people and the cultural and
social standards prevailing in Indian communities and families.”
25 U.S.C. § 1901(5). Thus, we agree with the BIA that, in spite of
its 1979 indication to the contrary, it has the authority to
promulgate binding regulations interpreting ICWA.

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expert witness” is a permissible construction of ICWA. The
regulation states that a “qualified expert witness must be
qualified to testify regarding whether the child’s continued
custody by the parent . . . is likely to result in serious emotional
or physical damage to the child and should be qualified to testify
as to the prevailing social and cultural standards of the Indian
child’s Tribe.” 25 C.F.R. § 23.122(a) (2016). Determining that a
“qualified expert witness” “should be qualified to testify as to
the prevailing social and cultural standards of the Indian child’s
Tribe” is consistent with Congressional intent and is reasonable.
The purpose of promulgating ICWA in the first place is stated in
the statute: “States . . . have often failed to recognize the essential
tribal relations of Indian people and the cultural and social
standards prevailing in Indian communities and families.” 25
U.S.C § 1901(5). Consequently, “an alarmingly high percentage
of Indian families are broken up by the removal, often
unwarranted, of their children from them.” Id. § 1901(4). The
BIA’s determination that a qualified expert should be prepared
to testify regarding the prevailing social and cultural standards
of the relevant Tribe certainly helps ensure that Indian children
will not be removed from their homes based on “a white,
middle-class standard.” Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 37 (1989) (quotation simplified).

¶19 In addition, defining “qualified expert witness” as a
witness capable of testifying about the relevant Tribe’s social and
cultural standards seems entirely reasonable. A state court’s
traditional custody concerns regarding serious emotional or
physical damage to the child may be different in the context of
an Indian family. “In many ICWA cases, expert testimony may
be necessary to educate a court about tribal customs and
childrearing practices to diminish any risk of cultural bias.”
Steven H. v. Arizona Dep’t of Econ. Sec., 190 P.3d 180, 185 (Ariz.
2008) (en banc); see also Marcia V. v. State, 201 P.3d 496, 504
(Alaska 2009) (“Congress intended ICWA to prevent Native

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children from being separated from their families solely on the
basis of testimony from social workers who were unable to
distinguish between cultural variations in child-rearing practices
and actual abuse or neglect.” (quotation simplified)).
Accordingly, it is not unreasonable to require expert testimony
presented to a court to reflect and be informed by the cultural
and social standards of the relevant Indian tribe. Because the
BIA’s definition is reasonable, it is entitled to deference under
Chevron. See Chevron, 467 U.S. at 843–45. Thus the juvenile court
did not err in determining that the regulation was binding.

II. The Juvenile Court Misapplied the BIA’s Regulation in
Considering the GAL’s Motion to Transfer Custody and
Exceeded Its Discretion When It Excluded the GAL’s Witnesses
Without Considering Their Qualifications.

¶20 While the juvenile court was right to defer to the BIA’s
definition of “qualified expert witness” contained in the federal
regulation, the court erred in summarily denying the GAL’s
motion to transfer custody of Child purely on the basis that the
GAL did not produce a witness who could testify about the
prevailing social and cultural standards of Child’s Tribe.

¶21 The BIA’s definition contained in the 2016 Regulations
states that while a “qualified expert witness must be qualified to
testify regarding whether the child’s continued custody by the
parent . . . is likely to result in serious emotional or physical
damage to the child,” the witness “should be qualified to testify as
to the prevailing social and cultural standards of the Indian
child’s Tribe.” 25 C.F.R. § 23.122(a) (2016) (emphases added). The
second part of the definition, pertaining to the witness’s
qualification to testify regarding tribal social and cultural
standards, uses the phrase “should be” rather than “must be.” It
therefore grants state courts discretion to determine whether this
type of qualification is “necessary in any particular case.” See
Final Rule, 81 Fed. Reg. 38,777, 38,830 (June 14, 2016). In issuing

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the 2016 Regulations, the BIA explained its intent in making this
portion of the regulation discretionary:

The final rule does not . . . strictly limit who may
serve as a qualified expert witness to only those
individuals who have particular Tribal social and
cultural knowledge. The Department recognizes
that there may be certain circumstances where a
qualified expert witness need not have specific
knowledge of the prevailing social and cultural
standards of the Indian child’s Tribe in order to
meet the statutory standard. For example, a
leading expert on issues regarding sexual abuse of
children may not need to know about specific
Tribal social and cultural standards in order to
testify as a qualified expert witness regarding
whether return of a child to a parent who has a
history of sexually abusing the child is likely to
result in serious emotional or physical damage to
the child. Thus, while a qualified expert witness
should normally be required to have knowledge of
Tribal social and cultural standards, that may not
be necessary if such knowledge is plainly
irrelevant to the particular circumstances at issue
in the proceeding.

Id. at 38,829–30 (citation omitted). This approach is consistent
with the body of case law that developed on this issue prior to
the enactment of the 2016 Regulations. See, e.g., Rachelle S. v.
Arizona Dep’t of Econ. Sec., 958 P.2d 459, 461–62 (Ariz. Ct. App.
1998) (collecting cases).

¶22 Thus, while it will generally be important for a qualified
expert witness to have knowledge of tribal social and cultural
standards, such specialized knowledge may not be necessary if
tribal cultural standards are plainly irrelevant to the particular

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circumstances at issue. “In such a situation, a professional
person with substantial education and experience in the area of
his or her specialty may be a qualified expert witness, depending
upon the basis urged for removal.” Steven H. v. Arizona Dep’t of
Econ. Sec., 190 P.3d 180, 185 (Ariz. 2008) (en banc) (quotation
simplified); see also, e.g., In re Candace A., 332 P.3d 578, 584
(Alaska 2014) (“When the basis for termination is unrelated to
[Indian] culture and society and when any lack of familiarity
with cultural mores will not influence the termination decision
or implicate cultural bias in the termination proceeding, the
qualifications of an expert testifying under ICWA § 1912(f) need
not include familiarity with [Indian] culture.” (quotation
simplified)); Rachelle S., 958 P.2d at 461–62 (holding that a
medical expert on “shaken-baby syndrome” who lacked
specialized knowledge of Indian culture satisfied ICWA’s
criteria for expert testimony when the Indian parents were
accused of child abuse).

¶23 The juvenile court determined that the GAL’s witnesses
were not qualified as expert witnesses under ICWA solely
because they lacked expertise in and could not testify about the
Tribe’s culture. However, the GAL’s purported basis for moving
to remove Child from Mother’s care may not have been
influenced by cultural bias. Rather, the GAL sought removal
based on the potential risk to Child arising from Mother’s
continued relationship with the person who had been convicted
of abusing Child’s older siblings. This may well be the type of
situation that prompted the BIA to give discretion to state courts
to determine the necessity of qualified expert testimony
regarding tribal cultural standards in each particular case. Thus,
the juvenile court erred in dismissing the case without
considering whether this was the sort of case in which the
claimed reasons for removal were unrelated to tribal customs
and culture. Accordingly, we reverse the court’s exclusion of the
GAL’s witnesses and remand for further proceedings, in which

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the juvenile court should assess whether the GAL’s expert
witnesses should be allowed to testify.

III. The Juvenile Court Erred in Determining That Two of the
Therapists Could Be Precluded from Testifying by Therapist–
Patient Privilege.

¶24 The GAL also challenges the juvenile court’s
determination that Mother’s communications with her
individual therapist and the family therapist were privileged
pursuant to rule 506 of the Utah Rules of Evidence. 5 The GAL

5. The juvenile court’s ruling on this issue is curious. The June
27, 2017 minute order states, “Court finds Mother would have
privilege with [Mother’s therapist] and [family therapist]
according to Objection 506.” However, the discussion of the
therapist–patient privilege at the hearing appears to have been
overshadowed by the ICWA issue. Regarding privilege with
respect to Mother’s therapist, the court stated, almost
conversationally mid-discussion, “All right, so mom would have
a privilege according to rule 506 for at least [Mother’s
therapist].” The court then heard additional argument regarding
the privilege before concluding, “I think it’s clear that there may
be at least some testimony from some of the counselors . . . if it is
relevant testimony. I guess, the hurdle we would need to get
over before that, is to determine whether they are, or whether we
have a qualified expert witness pursuant to ICWA . . . .” So from
the oral ruling, the court seems to have neglected the issue of
privilege due to its ultimate determination that the therapists
were not qualified experts under ICWA. Yet the court’s written
minute order states that the privilege existed. Given that the
juvenile court appears to have focused less on this issue in its
order than the expert witness issues, it is possible that further
briefing and/or argument relevant to the asserted privilege may
be appropriate on remand.

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asserts that the testimony was not privileged, because the
therapy was court-ordered and intended to address Mother’s
parenting deficits that were directly at issue in the proceedings,
and because Mother waived any claim of privilege by failing to
object to the therapists’ letters at previous hearings. Appellees
do not dispute this assertion on appeal but maintain that any
error was harmless because the therapists were ultimately not
qualified as experts under ICWA. Because we have determined
that the juvenile court erred in rejecting, pursuant to ICWA, the
testimony of the GAL’s proposed expert witnesses, Appellees’
harmlessness assertion is without merit.

¶25 Moreover, we agree with the GAL that the testimony of
the therapists was not subject to therapist–patient privilege.
Under rule 506(d) of the Utah Rules of Evidence,
communications that are “relevant to an issue of the physical,
mental, or emotional condition of the patient . . . in any
proceedings in which any party relies upon the condition as an
element of the claim or defense” are not subject to therapist–
patient privilege. Utah R. Evid. 506(d). The therapy at issue here
was court-ordered for the purpose of addressing the concerns
that brought Child and her siblings under the jurisdiction of the
court. Mother’s ability to safely parent Child was directly at
issue in the hearing on the GAL’s motion for removal and was
the subject of the therapists’ testimonies. Thus, we can see no
basis for concluding that the testimony of the therapists was
subject to therapist–patient privilege, and Appellees have
pointed us to none.

¶26 Further, as the GAL has pointed out, when a patient “is in
the position to claim the privilege and does not, it is waived.”
State v. Anderson, 972 P.2d 86, 90 (Utah Ct. App. 1998) (quotation
simplified). The therapists’ letters were disclosed at two hearings
prior to the hearing on the GAL’s motion to remove Child from
Mother’s custody. Because Mother failed to object to the
disclosures when they were first made, she waived her right to

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do so at the subsequent hearing. Accordingly, we reverse the
court’s determination that Mother could assert therapist–patient
privilege to exclude the testimony of Mother’s therapist and the
family therapist.

CONCLUSION

¶27 Although the juvenile court correctly applied Chevron
deference to the BIA’s interpretation of ICWA, it did not
correctly apply the regulation, because it rejected the GAL’s
experts solely on the ground that they were not qualified to
testify regarding the Tribe’s cultural standards without
considering whether those standards had any actual bearing on
the proposed grounds for removal. Further, the juvenile court
erred in determining that Mother could claim therapist–patient
privilege with respect to testimony from her therapist and the
family therapist. We therefore reverse the juvenile court’s
decision and remand for further proceedings consistent with this
opinion.

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