State of Utah, in the interest of L.L., a person under eighteen years of age.
State of Utah, B.W., S.L., and Ute Mountain Ute Tribe, Appellees. Guardian ad Litem, Appellant,
District Juvenile Court, Vernal Department The Honorable Ryan
B. Evershed No. 1128314
Pierce, Attorney for Appellant
D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys
for Appellee State of Utah
Adams and April Erin Bradley, Attorneys for Appellee B.W.
K. Ross, Attorney for Appellee S.L.
A. Flores, Attorney for Appellee Ute Mountain Ute Tribe
Michele M. Christiansen Forster authored this Opinion, in
which Judges David N. Mortensen and Ryan M. Harris.
CHRISTIANSEN FORSTER, JUDGE.
Federal law requires that before a court can remove an Indian
child from a parent's custody, a "qualified expert
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.
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.
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
membership in the Ute Mountain Ute Tribe (the Tribe) and her
biological parents are members of the Tribe. 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.
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
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 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.
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).
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 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.
AND STANDARDS OF REVIEW
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