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Expert What? A Little Matter of ICWA - The QEW
 

Expert What? A Little Matter of ICWA - The QEW

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The Qualified Expert Witness Requirement Under the Indian Child Welfare Act Demystified.

The Qualified Expert Witness Requirement Under the Indian Child Welfare Act Demystified.

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    Expert What? A Little Matter of ICWA - The QEW Expert What? A Little Matter of ICWA - The QEW Presentation Transcript

    • Expert What?
      • A “ Little ” Matter of Indian Child Welfare
      • The Qualified Expert Witness
      Rachelle Pavao Goldenberg, MSW Seawolf Consulting & Advocacy Services SeawolfConsulting.com Follow me on Twitter: @RPGoldenberg
    • You probably know
      • The Indian Child Welfare Act was created in 1978
      • to address and try to overcome of a distressing pattern of discrimination against American Indians and Alaska Natives
      • using standards based on “ middle class American ” values, and without consideration for the traditional culture of the family.
      • “ ...Probably in no area is it more important that tribal sovereignty be respected than in an area socially and culturally determinative as family relationships. One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing . Many of the individuals who decide the fate of our children are at best ignorant of our cultural values and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution can only benefit an Indian child. “
      • Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians.
    • ...but did you know?over 30 years later
    • Not one state claims full implementation of ICWA
      • (as of January 1, 2011)
    • Qualified Expert Witness (QEW) requirements are applied unevenly across the states
    • You probably also know that ...
      • in a state court proceeding, ICWA requires:
      • QEW when an Indian child is removed from the parents and placed in foster care or parental rights are to be terminated.
      • Proof is at a higher standard than non-ICWA cases
          • Foster Care: Clear and Convincing
          • Termination: Beyond a Reasonable Doubt
      • But did you know... if they fail to use a QEW testimony, it is grounds for a petition to invalidate the action? (25 USC section 1914)
    • What is a “ Qualified Expert Witness ” ?
    •  
    • A QEW is:
      • someone
      • like YOU.
      • (likely)
    • A Qualified expert witness:
      • is qualified to testify regarding cultural aspects of the case
      • offers expertise and specialized knowledge to assist the court in determining the facts of the case
      • understands and interprets cultural child-rearing customs to ensure that there will not be mainstream bias in making critically important decisions like understanding behavior
      • has knowledge that is beyond the average person based upon the expert ’ s education, training, skill, or experience.
    • They Are NOT ...
      • ...like other types of “ expert witnesses ” used in other types of court cases such as:
      • Forensic experts interpreting crime scene evidence in a criminal case, or
      • Doctors or Medical staff providing medical testimony in a malpractice suit.
      • Example: If a business burns down and arson is suspected, a certified fire investigator serves as an expert witness to look for fraud. for arson.
      • The QEW under ICWA answers the primary question:
      • Is continuing custody of the child by the parent/guardian or Indian custodian likely to result in serious emotional harm or result in physical damage to the child?
    • They report based on their area of Expertise
    • Usually they address:
      • Family organization
      • tribal customs as they apply to child-rearing
      • potential harm to the child
    • For example:
      • Is the action (or inaction) of the parent or Indian Custodian likely to result in serious emotional or physical damage to the child?
        • If yes, can the parents be persuaded to modify their conduct?
    • Sometimes, if qualified , they testify to:
      • culturally appropriate services /placements
      • adequacy of tribal notice
      • active efforts
      • impact of the permanency plan on the child ’ s relationship with the tribe
    • Qualification under ICWA
      • Qualifications are not specifically defined under the act, but the BIA has established some qualifying guidelines.
    • It is not just....
      • Recognized community member of the Indian Child ’ s tribe.
      • A lay person with substantial experience in the delivery of child and family service to American Indians.
      • A professional person with substantial education and experience in the delivery of child and family services to American Indians.
      • For each of these, they should be recognized by the tribe as knowledgable about culture and child rearing practices of the tribe, AND for the case.
      • Best practice is for this person NOT to be an employee of the case carrying agency.
      3 types of qualifying traits
    • Getting the QEW
      • Every state and every tribe is different.
      • Some have lists (like California), and some do not.
      • While it is difficult, it is OK if the expert knows the family. This frequently happens with small cultural communities.
      • Practices vary, however at minimum reimbursement for travel and other expenses is customary,
        • In many states the expert witness is compensated for their time as well, on the same basis as other types of expert witnesses that may be called in for duty related to court matters. (preparation, presentation, travel, etc)
    • FAQ - Let ’ s talk
      • FREQUENTLY ASKED QUESTIONS:
      • What is it like?
      • What kind of questions do they ask?
      • How do you prepare?
      • How do I get to be an Expert Witness?
    • Scan Me: Link
      • http://seawolfconsulting.posterous.com/private/iwtGxvamyG