In Re KH

iN THE SUPREME COURT OF THE STATE OF MONT.4N.A

IN TEE MATTER OF K.H. AXD K.L.E.,
Youths in Need of Care.

APPEAL FROM: District Coiirt of the Thirteenth Jiidieia! District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg?Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jill Dcann LaRance, CdRance Law Finn, Inc., Bi!iings. Montana

For Respondent:

Hon. Joseph P. bfa~urek,Attorney General; Mark LV. Mattioli.
Assistant Attorney General, Helena, Montana

Dennis Paxinos, i'eliowsrone Couilty Attome:;; Melai~ie
Logan,
Deputy Yeliowstone County Atromey, Billings, Montana

G~lardiall Litem for K.H.:
Ad

Da~non Gannett, Gannett Law Finn, Biliings, Montana
L.

Submitted on Briefs: &larch !8, 1999

Decided: June 3, 1999
Justice the
$$7iliian1 i.caphart dciiv~cred Opirrion of the Goual.

4; 1 : .L.E.,Crmi Indian and the n m r a i rnoihcr ofrhe children, appeals from the ordcr
-' a

of the Thirteenth Judicial District Court, Yellowstone County, terminating her parental rights

to her son, K,i-I.,pursuant to the Indian Child Welfare Act of 19778 ( I f W.4) and the klontzna

Code.' We reverse.

'2 The dispositive issue on appeal is whether the District Coutt erred under ICW.4 by

terminating T.L.E.'s parental rights to K.H. without the required testimony of a qualified

expert witness.

Factual and Procedural Background

73 On September 2, 1995, K.II., a boy, was born to T.L.E. In September of 1996, shortly

after K.L.C. was born. tbc Montana Department of Public Health and Human Services (the

Department) petitioned for temporary investigative authority over 7'.1-.E.'s children. The

petition was brought due to concerns regarding T.L.E.'s chronic use of illicit drugs and

alcohol, including the use of such substances while she was pregnant \vith her children.

The State of Montana petitioned for the termination of T.L.E.'s parental rights to
:

both of her children, K.L.E. and K.H. Because ICWA governs Indian child custody
proceedings, thc children's tribe, the Crow-Tribe, received notice of the proposed
termination actions and petitioned to intervene and remove both actions to tribal court
jurisdiction. See 25 U.S.C. 3 1911(b) (authorizing transfer ofjurisdiction over Indian
child custody proceedings to tribal court). R.i.l:. has a different father th11 IL(.!I., a:~!
K.L.E.'s petition was removed to tribal court jurisciictioi? \vithout objection from her
natural father. However, K.13.'~ natural father is non-Indian and objected to the transfer
ofjurisdiction over his cause to the Crow Tribal Court. T'nus, this appeal pertains only to
K.H.'s state court tennin2ition proceeding
.-.
I .L.E. did not object to rhe Department obtaining t c r n p o r a ~ authority. Thc
in~estigati-~-c

perition was granted and tile chitdren were placed in foster care. 113October o f 1906; T,I..E.

trcament pIa1:s wit11 rhc Department. At the time:
entered into the first oi'sevemi voirii~tary

T.L.E. was told by the Department that continued drug and aicohoi use could result in the

tcrminatiun of her parental rights.

74 i-fowever, T.L.E. relapsed into alcohol, marijuana; and cocaine use. and became

depressed and suicida!. In an attempt to alleviate 'P.L.E.'s bouts of depression, the

Department placed her in foster care with thc children; however, she lasted less than hventy-

four hours in this arrangement before leaving. In late October of 1996, T.L.E. was

discharged from chemical dependency treatment due to a lack of attendance and substance

abuse relapses. Upon relapsing, T.L.E. was filled with thoughts of suicidc and was admitted

for psychiatric treatment.'

75 In Deceniber of 1996, the Department petitioned for temporary custody of the

children. ilgain, T.L.E. did not object. I 1 January of 1097, T.L.E. was arrested for
1

shoplifting and crirninal sale of dangerous drugs; she received probation. That same month;

she entered into anot!~ervoluntary treatment plan, but failed to comply with its terms. 'I'.L.E.

which she continues to
T.L.E. has a nu~nher demotts from her past v~~ith
of
-
erapple. For example, at age seven, she watchcd her mother murder her father. It appears
rhat she has received little, if any, emotioila! support from her mother over the years, arid
to
coz~iinues hat-r a rocky rciationship wit!? her moihcr. Furthe~x~orc; claims to have
she
heen raped at age 12, and again at age 15. T.I..E., who is currently 25 years old, dropped
out of school after tile eighth grade and has been chemically dependent since age 16. She
has never heid down stabie employment in her life, and has, at times, prostituted herself
for drug money and to be able to provide financial support for her children.
s:lisseqiienti). entcred into other rreatrneEt plans with ii-ii: Dcpartmci-I?,b;ii \\us repcatcclly

~tnsucrcssfuiin controlling her addictions.

% D~riringher rrcairnent. T.L.E. missed scheduled visits with her childi~it~ Iaier
and

admitted that some of these absences were due to alcohol abuse. 'i,l..E. also arrived at a

scheduled visittion in March of I994 reeking ofalcohol and claimeci that it had been spilled

upon her, but refused to submit to a breathalyzer test. 111April of 1997, T.L.E. was evicted

from her apartment and stated that she could not adequately care for both of her children.

~ ~ bcdl ,a-number of times T,T,,E. offered to refinquisli custody of the chi!dren bccl~risc
d,. she

c o ~ ~not adequate!^ pro\-ide for them.
ld

77 T.L.E. adamantly maintains that she has remained drug and alcohol free since June

of 1997, when she cvas arrested for probation violations and sentenced to three years -su.th the

Department of Corrce~ions(DOCj. Pursuant to her probationary violations, thc DOC

initially placed T.L.E.. in the Butte Prerelease Center. In Juiy of 1997, the Department

petitioned the court to extend tenlporar7; custody, citing T.L.E.'s failure to successf~tliy

comply with or coinpiete any of her court-approved treatment plans. The extension of

temporary custody was granted without objection from T.L.E. While in Butte, T.L.E. entcred

the Montana C:liernical Dependency Center; she was discharged frorn the program in

September of 1997 for lack of progress. I n October of 1997>T.L.E. was transferrcd to the

Montana Women's Prison in Biiiings for failure to comply with reguialioris 211 the Butte

Prerelease Center. Whiic incarcerated at the Wornen's Prison, T.L.L':. has continued to
experience discipiioary piobiems and has been rvritren up 217 average of oilce per month ibr

n~les.T.L.E. has admitted missing several prison classes :3.i?d
t-aiious infiactons of priso;~

necessary to bcr rreatment plans as a result of her inabiiity to cclrnposc her ernntioi?~
rneetir~gs

when she is not drinking or using illegal drugs on a regular basis.

st,g
; < At the sainc time; since being inprisoned; T,L.E, demonstrated some progress
has

towards meeting the goals of her treatment plans: sl?c has addressed l-ier chemical

ctependency issues by attending classes, including the successful eomplet~on a dnlg and
of

alcohol education program consisting of ~nstmctlon the roots of add~ction.
in personal ~alries,

alternatives to drug-induced highs, methods of enhancing self-respect, relationship skills, and

coping with life after incarceration; she has also been attending alcoholics anonymous; she

successfuily completed a class in coping with anxiet). arid depression and has continued to

work on hcr depressioi~issues; she has attended positive parenting classes; shc lras

participated in additional programs involving relationships with men, criminal thinking, sltills

building, grief group, and moral recognition therapy; and she is close to completing her

GED.

79 In October of 1997, K.1-I. was placed in lzis father's custody. In December of 1997,

tile Department petitioned for permanent custody and termination of 'l'.L.E.'s parental rights,

citing general noncomp!iafiee witi~ treatment plans.' After a hearing on tile Department's
her

' In all, T.L.E. entered into four separate treatment plans with the Departmertt,
spanning from October E1 1996: through March 11, 1098.
 petition, !lie District Coilr-i teni~insrcd
tcm~inntio!~ T.i..F-.Is parental rights to K.11. T.L.P.

appeals.

1)iscnssior:

I Did the District Court e n tinder ICLVA by ordering termination oi'I'.i.li.'s parental

rights to K.H. withoiri the required testimony of a qiialificd expert witncss'?

'ill Determining the qualifications of an expert wttncss is a matter uithin a trial court's

discretion, and this Court will not overturn such determinations in the absence of an abuse

of that discretion. In the Matter of the Adoption of H.M.O., 1998 h.f:IT 175, 'fi 20,259 Mont.

712 T.L.E. argues that the Department failed to qualify an appropriate expert witness with

credentials beyond that of a normal social morker and. therefore, that thc District Court erred

in finding beyond a reasonable doubt that lzcr parental rights should be relminatcd pursuant

to ICWA. Tile Department contends, in response, that T.L.E. has "waived" this claim on

appeal by fa~llng object at the terminatloti hearlng to the Department's lntroduct~on ~ t s
to of

nltness, soclai worker Lor1 Hicks (H~cks). an appropriately quallficd TCiV.4 expert
as

Ti13 ICWA provides in relevant part:

Ko termination of parental rights may be ordered in such proceeding in the
absence of a determination. supported b-dence beyond a reasonable doubt,
-
including testimonv of aualified exoert ~vitneises. the continucd custody
that
of the child by the parent or Indian custodian is likely to rcsrilt in serious
eniotionai or physical damage to the child. [Emphasis added.]
25 I;.S.C. $. 19l'ifi. ?'Inis, kvc must deierrninc, as a ti~reshoidrniiltcr, bv??elherthis coi!rt

sllnLild reach the merits of T.L.E.'s chailcnge to t11c Dqp:lr/rncnilsreliance Hicks as ii

qualified expea witness for piivuscs of lcrminating indiiin yarenlal iighrs prirsiiant lo lCTVi..\.

713 T.!_.E. relic; upon this C:ourtls recent decision in illi;aeioj'Fi,tlLi.. where, afier noting

that qualified expert testimony is a "prerccjuisite" to the teminntio!~ parenta! rights under
cf

ICWA, this Court held that "a social worker must possess exoertise beyond that of the normal

social xorker to satisfy the qualified expert witness requirement of 25 U.S.C. 5 l9l?(i)."
j\lntter of ,4.i\ir,0., 7 26, 33 (emphasis added). We generally decline to address an issue
1
raised for the first time on appeal where the litigant had an opportunity to object at trial;

however, there is a limited exception u-hich permits this Court to reach the merits of an issue,

in the absence of a timely objection, when the party did not have an adequate opportunity to

object at the trial level. ,See Cenex v. Board of Gomm'rs for Yellowstone County ( 1 997). 253

Mont. 330,337-38, 931 P.2d 964,968. In Matter ofH.MO., this Court invoked that limited

exception and took cognizance of the appellant's challeilge to the Statc's witnesses as

qualified ICWA experts, despite a failure to object to those witnesses at the trial level. See

jllirtter ofH.lLf.U., ! 25.
I
Pi15 The Department contends that lll(ztter ofH.Al.0. is distinguishable, however. The

appellant in that case neber had an adequate opportunity to object to the Statc's expert

witnesses because the "testimony" 31 issue was coriiaiiied in wr-iitcn repor-ts reccivcii into

evidence; no foundation was therefore established for the admission of the expert testimony.
in contrast: T.L,E. i\-as rcprcsenteci by cotinsc! :it her tern:ination hearing. but n:wr objected
-. -
to the adequacy ot tile iaundation escahiisi~ed tirc Depzrtinent for thc prcscntarion of
by

I-iicks expert testimony--including Flicks' opinion, prsuailt to $ i 9 i2(0 of i C ' i i V - i ~ K.H.
that

=-as seriously endangered by a continuation of the parcnrai relationsliip wie'n T.L.E. Noi- did

T.L.E. choose to voir d i . Hicks regarding her qlialifications as an appropriate ICWA expert.
~

According to the Department, this Court should therefore decline to invoke the limited

exception recognized in hfattev qf HiKO. and refuse to reaclt the merits of T.L.E.'s claim.

516 Contrary to the Department's position, n.e do not find &fartev c~f ~EIILIO.

distinguishable kom the facts of this case. For the reasons set foi-ih below, we conclude that

T.L.E. did not have an adequate opportunity to object to the District Curt's implied reliance

on Hicks as an ICWA cxpert witness in terminating T.L.E.'s parental rights, Therefore,

despite T.L.E.'s failure to object to Hicks as an appropriately qtialificd 1CWA cxpert. the

question of whether Hicks \%-as qualified is properly before this Court.
so

717 In klutteu o H.kf.O., the "first notice" that certain ~vitnesses
f "were to be treated as

experts for ICWA purposes was when the District Court entered its findings of fact,

conclusions of law, and order." Mutter qfl%l\.il.O., 1/ 24. This peculiar sittiation arose

because the State's experts did not testify in person at the termination hearing: ratlic~-,
the

State introduced written reports and deposition testimony, but failed to ever disclose to the

natural Indian mother thar thc witnesses wecc being offcrsd and qu~tlificd ICWA "c; : Coiirt's reliarrcc
! District
i

experts pursuant to $ i9liZifj o f 1CTV.A. A\fl<~l?er
oE" the \\-ir;itn-;ses 2s q ~ ~ a l i f i e d ~$'fi.~%l.O..

7; 25.

518 We reach the same result here. Nowl~ere the transcript of the tcrrnination hearing
in

is :hex any indication that the Depixtinent ever expressly offered--let alone ciualificd--Hicks'

testimony as that of a11 ICIVA "expert." Nor did the District Court el-er expressly rule on

Hicks' qualifications as an IC'it'A expert during that proceeding. Thus, as ii-i Matter oj

H.t,fO., T.L.E. was not put on "notice" that tile Department was intending that Hicks'

testimony satisfy its burden of proof under 9 1912(1) of ICWA until the District Court

returned its order, relying by inference upon Hicks' testimony as that of a qualified ICWA

expert in terminating T.L.E.'s parental rights to K.H.

1 iVe refuse to endorsz tlie unreasonable norion, implicit in the Departnlcnt's position

on appeal, that T.L.E. was under an obligation to object to each and every witness offered

by the Department if she wished to preclude a witness from being deemed, after the fact, an

ICWA expert. The burden under ICWA is not upon T.I..E. to preclude such expert

testimony, but on the Departnieilt to produce it: an essential "prerequisite" to the termination

of Indian parental rights under 5 1912(f) of ICWA is the testimony of a qualified expert that
a continuation of the parental rclatiottship would likely result in serious emotional or physical

damage to the Indian chiid in quesiion. iihfter ofl%ii.iO., 26, fiowever, as we suggested

in illntter o H.,W.O., "infom~ation forth in a vacuum-that is, without any disclosure that
f set
the witness is being offered and qualified as an expertw--isneither suiticici?: r put the Indian
s

nat:Jrzi ~ar;a: on n o i i c ~
ih:it the 1,vitness is being put hnvard ris an iC;i\-A expert. nor to

establish an adcquatc foundation for the admission oi'such expert tcsiimor.y. ,!kc ,',ftrtter if

fI.4f.O,,7 26.

7 0 Our interpretation of lim;er ofI%11,f..O.so as to reach the merits of T.L.E.'s claim in

this case is, in our view, both "congruent with the remedial character of [1(1WA3" and

consistent uith "our responsibility to promote and protect the unicpe Indian cultures of our

state for fiiture generations of hIontanans." In the itlatter of M.E.M. (1981), 105 klont. 329,

333-35,635 P.2d 1313; 1316-17. The District C o ~ r tby terniinating 7'.I,.E.'s parental rights
,

to K.H., severed a f~mdamental
bond not only between inother and child, but also between

culture and individual. The very use of the "reasonable doubt" standard of proof in ICWA

termination actions, the highest stacdard of proof known to American jurispr~idcnce,.ri as

intended by Congress to stop the all-too-cornrnon reinoval of Indian children from their

Indian families, and tllus tribal culture, " 'by non-tribal government authorities wlio have no

basis for intelligently evaluating the c~lliural social premises underlying Indian home life
and

and childrearing.' " Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 C.S. 30,

34-35, 109 S.Ct. 1597, 1601, 104 L.Ed.Zd 29, 38, quutirzg Hearings on S. 1214 Before the

S~rbcornlnittee Indian Afkirs and P~rblic
on Lands of the I-touse Comrnittce on lnterior and

insular Affairs, 95th Cong. 191-92 (i978) (siatemcni of Calvin Isaac, Tribal Chicf of the

Mississippi Band of Choctaw indians).
<'I W e remain vigilant because, in large p:irt, "!he rncrnbers of a tribe me i t s ci~lrure."
..
ifiit&ercfM.E.CI., hxlont. ar 3t3,6?5 P.2d at 1316, -4s K.H.'s E~ll:e: is ron-Indian, the
195

child's connection to itis Crow Indian c~:l?ure
will be maintained int:icr primarily illrough a

continuing relationship with his lndian mother, 1.L.E.
LVhile we express no opinion as to

whether T.L.E.
deserves a continuation of l-ier parental rights to K.H., it-e conclude, in light

of the curative function of ICIVA; that her cl-rallenge to the Department's expert witness,

Hicks, is properly before us.

922 Under Montana law, a witness may be "qualified as an expert by knowledge, skill,

expeiience, training, or education:" and when so qualified, "may testify thereto in the form

of an opinion or othenvise." Rule 702, M.R.Evid. Before such expert evidence can be

admitted, however, " 'some foundation must be laid to show that the expert has special

training or education and adequate knowledge on \vl:ich to base ail opinion.' " Mutter of

fI.M.O., 7 26, quoting Cottrell v. Burlington Northern K. Co. (1993): 261 Mont. 296, 301,

863 P.2d 381, 384.

723 Furthennore, in determining whether a proper foundation has been laid for the

admission of a qualified expert opinion in an ICWA termination proceeding, tlie Guidelines

for State Courts; Indian Child Custody Proceedings (the Guidelines), promulgated by the

iinited States Department of the interior, Bureau of Indian Affairs (B14) additionally

provide:

"D.4. Qualified Expert Witnesses
 (aj Rcmoval of an imdian chiid from his or her family must be based or;
conipeieni; iestimon:v from one or n~ore experts qualified to spcak specificailq-
to the issue of whether continued custody by the parents or Indian cusiodim
is likely to result in scrioiis physical or emotional damage to the child.
(b) Persons kvith the fo!lo\riiig characteristics are most likely to meet the
requircmc~itsfor a qualified expcrt ~vitnessfor purposes of Indian child
custody proceedings:
(i) h member of the Indian child's tribe who is rccogliizcd by the tribal
community as knowledgeable in tribal custoi?ls as they pertain to fami!y
organization and childbearing 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 childbearing practices within the Indian child's
tribe.
(iii) A professional person having substantial educaiion and experience in the
area of his or her specialty."

itlatter qfHM.O., 1 3 0 , quoting 1 4 Fed. Reg. 67, 584,67, 593 (1979) (not codified), LYhiie

the Guidelines are not binding on state courts and admittedl) "add a dimension to expert

testimony not normally required" under Montana law, we have deemed them applicable in

the courts of this state because the Guidelnles "comport with the spirit of [ICWA]." illotter

nf.&l,E.M., 195 Mont. at 337, 635 P.2d at 1318.

724 T.L.E. effectively argues that since the Department could not Itah-e qualified social

worker Hicks under sdbparts (i) or (ii) of the Guidelines. Hicks could be qualified as an

expert for purposes of ICWA--if at all--only under subpart (iii). See ,&fatterof H.M.O., ! 3 1.
;

In turn, T.L.E. asserts that Hicks could not qualify as an expert under the third subpart of the

Guidelines because, as in rbfatier ~fEl.i1/I.O., does not possess any qualifications beyond
she

that of a nonl~al
social morkcr. We agree
725 The first two subpans of the Guidziines instruct statc courts that a qualified IC5V.4

cxpc!? should be "knc~.vlcdgeahie ir.hai customs as they pertain to farnii:; or@nit;iiion and
in
.~.
childbearing practices" (first subpart): or should have "extensive knowledge cf picva!;ing

social and cu!hlra! standards and childbearing practices within t'he Indian child's tribe"

(second sabpart). In our opinion, these references to tribal customs, ~ u l ~ r rstandards, and
al

tribal childbearing practices found in the firs: two subparts of the Guidelines help to define

who can be considered a qualified ICWA expert under the third subpart.

1126 in keeping with this notion; enlightened state courts have gone beyond the plain

language of subpart three of the Guidelines--appropiiate!y,in our view--and have concluded

that experts should possess more than siinply substantial education and experience in the area

of their specialty. Rather, they should have expertise in. and substantial kilowledge of,

Xative American families and their chiidrearinz practices. See, e.g., !n the Matter of the

'il'elfare of M.S.S. (Minil. App. 1091), 465 X.W.2d 412,417 ("The experts should also be

conversant with Indian culture and child-rearing practices, lest 'tile problems Congress has

tried to remedy may remain despite the adoption of [ICJVA].' " ) (citation omitted); State ex

re]. Juv. Dep't v. Charles (Or. App. 1984), 688 P.2d 1354, 1359-60 n.3 ("[A& expert witness

within the mcaniilg of [IC:L\iA] must possess special knowledge of social and cultural aspects

of Indian life.").

727 Such ail approach is consistelit with tl.ii: rctnedial purpose of iCit"-Z. 11s the

Coinn~eiltary the B I h Guidelines regulations explains:
to
 [I(jnon-ledgt of tri'oal culture and chiidrearing practices will fiequenli y be v e v
va!uahle to the court, Determining the iikclihood of FLiturehaimi frcquentiy
inioi~.es prcdicting futurz behavior--i.;hich is ixfl~lenced n large dcgrer bq-
to
culture. Specific behavior parteins :vill often need to be placecl in tl?e contcxt
of ih:: total culttire to determine tvhether they are *i .,~ e l y cause serior!s
l ro
emotional harni.

d l Fed. Reg. at 07,593. Indeed. the berq. adoption of 1C'lV.A by Congress \bas prechcatcd

upon an express recognition of the cultural differences between Anglo and Indian notions of

the family (e.g., the nuclear family versus the extended family)," and the ways in uhich this

cultural disjunction had often resulted in "an ala~mingly
hlgh percentage of Indian famihes

[he~ng]
broken up by the removal, often unwarranted. of then- children from them by

nontribal public and private agencies . . . ." 25 U.S.C. 5 1001(1).
728 Although we do not hold that an expert [C'WA \\:tness qual~fied
under subpart three

of the Guidelines must be fluent in the cultural standards of a particular Indian tribe, we

preferable tkat any expert witness qualified for purposes of ICWA--
conclude that it is h~ghly

particularly a non-Indian expert nitncss--possess significant knowledge of and experience

According to the authors of an oft-quoted law review article:
An Indian's extended family includes not only grandparents, and aunts and
uncles, but often distant relatives who, by custoin, tradition, or necessity
have definite responsibilities and duties in child rearing. Although the
nuclear family is the generally accepted standard of a basic family unit, the
nuclear family concept is frequently inapplicable to Indians. Yet it is the
nuclear family standard by which many state courts determine that Indian
chiidrcn are neglected. This built-in bias againsi indian child rearing
practices is further cornpounded by state laws . . . that frequently make it
easy to remove Indian children.
Jesse C. Trentadue 8: Myra 1-1. DeTvfontigny9The Indian Child W e f i r e Act of197iF: A
Petitioizer's P c ~ ~ p c c t i v62N.D. L. Rev. 487, 498 (1986) (footnotes omitted).
c,
with Indian culture? fafarnily sinictuie, and chiidrearing practices i n geileral. \Vheihcr a

p f f e r e d expet? iC'Lt'i lxitness has been sufficiently qualified as an "expert" rcinains a

matter within the discretion of a district court. Nonetheicss, ;i.-e urgc trial co::rts to citsure

that a proper foundation has becn establrslied shoi\~ngsbcb l i ~ d ~ a n
culr~lral
qualificatlon~

prior to admitting the testimony of a witness as a qualified ICWA expert.

329 As in itfatter ofFI,MO., the Department laid an inadequate foundation in this case for

the admiftance of Hicks' testimony as a qualified ICW.4 expelt. At the termmation hearing.

the Department established only the follouring foundation for the admission of Hicks' so-

called "expcrt" opicion:

Can you briefly describe your education and experience[?]
I have a Bacl~elor of Science in education health and human
developinent from Montana State Univer-sity. I have almost completed
halfway--completed a degree in comm~~nity counseling, a master's
degree here in Bi!!ings.
Do you have contact with Native American people on a regular basis6?
Yes.
You have contact with numerous children on a regular basis; is that
correct?
Yes, daily.
Are you familiar with the needs of children and minimally acceptable
parenting skills needed to meet those needs?
Yes.

Where, as here, an ICWA termination proceeding takes place in state court, rather than a

trlbal forum. it bchoobes us to take great pains to ensure that the prercqursltes of ICWh havc

been satisfied. We are not confident that ICWh's reqiiircments h w e becn satisfied herc.

lttclts testified that she has contact on a "regular bas~s" ~ t h
n h'at~i~e
Amerlcan people, but
 . .
cTr childrearing pracriccs. Just hecause a socia; ~vorlter
interacts wit11 irdians, even on ii

rcgir!ar basis. it does not necessarily foilo\\ that he or she quailtics :is an Indian child t~iili;iiz

530 This C'oart has pre~viocslyacitnowledged that " '[tlhe separation of Indian children
occurs in situations where . . . the agency officials involved are
from their families frcq~~ently

unfamiliar with, and often disdainful of Indian culture and society . . . .' " Matter ~j'iCfE..Vt..

195 Llont. at 331.635 P.2d at 1316-17, quoting S, Rep. No. 95-597 (1977). iYh11ewe do not

suggest that tIicks' testlmoriy rcveals any disdain for an Indian way of life, it is possible that

ignorance of Indian culture and society played an undetermined role in her exprcssed

opinions.' Given the fu~ldamental
liberty interest at stake in a ternlination proceeding and

the unique role of state courts in carrqing out the federal purposes of !Chi-11. there is all thi

more reason for proceeding with caution in such cases.

73 1 We hold that the Department failed to sustain its heavy burden of producing "e~idencc

beyond a reasonable doubt, including testimony of qualified expert witnesses," shotving that

T.L..E.'s parental lights should be terminated under ICWA. 25 C.S.C. $ 1912(f). The District

Court therefore abused its discretion in implicitly concluding that an adequate fo~ndation
had

To illustrate, portions of both Hicks' testimony as well as the District Court's
cir-cler appear to express ilx view that T.L.F.'s attempts to anailge for the adoption oCK.13,
by her sister is indicative of a desire by T.L.E. "to relinquish" her parental rights. This
prognosis, while entirely consistent with Anglo notions of the nuclear Family, could be an
unfortunate misinterpretation of a not uncommon behavioral response by an Indian parent
in a traditional culture which embraces child rearing within an extended family structure.
been for the admission of ilicks' rcstimony as that of an appropriaiciy qilalifieci

ri