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Steven H. and Tammy H. v.Arizona Dept. of Econ. Security - 8/19/2008

Arizona Supreme Court Holds That A Party Seeking Foster Care Placement of An Indian Child Under The Indian Child Welfare Act Must Present Qualified Expert Testimony Regarding The Likelihood of Future Harm to The Child, But Such Testimony Need Not Explicitly Parrot the Language of The Sta


Matthew andSavannah are the biological children of Tammy and the adopted children of Steven.  Matthew andSavannah are of Indian descent.  Child Protective Services (CPS) had many interactions with the family concerning allegations of abuse by Tammy and Steven of the two children.  A guardian ad litem filed a petition requesting that the court find Savannah and Matthew dependent as to the parents under A.R.S. § 8-201(13)(a)(i) (defining a dependent child as one “in need of proper and effect parental care and control and who has no parent or guardian . . . willing to exercise or capable of exercising such care and control.”).  Because of the Indian descent of the children, the custody proceedings were subject to the requirements of the Indian Child Welfare Act (“ICWA”).  Under ICWA, before a state court judge may order foster care placement of an Indian child, the judge must make “a determination, based on clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”  25 U.S.C. § 1912(e).

The juvenile court held hearings and heard evidence from expert witnesses about the behavioral, emotional, and psychological dysfunction of Matthew andSavannah, demonstrating that the children’s condition resulted from abuse they had suffered over the years.  However, the experts did not specifically opine as to whether continued custody would likely result in serious emotional or physical damage.  The juvenile court found that the children were dependent under A.R.S. § 8-201(13) and that continued custody would result in serious emotional or physical damage to the children.  The court ordered that the children be made wards of the court and placed under the control of DES.  The parents appealed, and the court of appeals vacated the dependency order.  The court of appeals concluded that § 1912 required explicit expert testimony that “continued custody of the children would likely have resulted in serious emotional or physical damage to them.”  The guardian ad litem petitioned for review.

Reviewing de novo, the Supreme Court vacated the court of appeals’ decision and remanded.  The Court noted that neither side disputed that ICWA requires expert testimony; rather, the issue was what type of testimony the statute requires.  Finding that the statute was “forward looking – relating to the likelihood of future harm to the child,” the Court found that expert testimony solely referring to past harms cannot suffice.  The Court then examined the plain language of the statute and considered non-binding (but persuasive) Bureau of Indian Affairs ICWA guidelines in concluding that nothing in the statute requires that the necessary expert testimony “recite the specific language of § 1912(e)” or that “such testimony be expressed in a particular way.  “As long as the testimony addresses likelihood of future harm, it will suffice.”

Justine Ryan authored the opinion for a unanimous Court.

Posted On: 8/26/2008