Steven H. v. Arizona Department of Economic Security

SUPREME COURT OF ARIZONA
En Banc

STEVEN H. and TAMMY H., ) Arizona Supreme Court
) No. CV-08-0026-PR
Appellants, )
) Court of Appeals
v. ) Division One
) No. 1 CA-JV 07-0076
ARIZONA DEPARTMENT OF ECONOMIC )
SECURITY, MATTHEW H., SAVANNAH ) Coconino County
H., ) Superior Court
) No. MD2006-0031
Appellees. )
)
)
) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Coconino County
The Honorable Margaret A. McCullough, Judge

________________________________________________________________

Opinion of the Court of Appeals Division One
217 Ariz. 315, 173 P.3d 479 (App. 2008)

VACATED AND REMANDED
________________________________________________________________

KAISER, JAMES & WILSON P.L.L.C Flagstaff
By Jeffrey A. James
Attorney for Steven H. and Tammy H.

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By William V. Hornung, Tucson
Assistant Attorney General
Dawn R. Williams, Tucson
Assistant Attorney General
Attorneys for Arizona Department of Economic Security

DAVID GOLDBERG, ATTORNEY AT LAW Flagstaff
By David Goldberg
Attorney for Matthew H. and Savannah H.
SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY Scottsdale
By Charleen H. Greer
Cheryl J. Scott
Attorneys for Amicus Curiae Salt River Pima-Maricopa
Indian Community

PAUL J. MATTÉ III, ATTORNEY AT LAW Phoenix
By Paul J. Matté III

And

VIRGINIA MATTÉ, ATTORNEY AT LAW Phoenix
By Virginia Matté
Attorneys for Intervenor Cherokee Nation of Oklahoma

DAVID P. FRANK, TOHONO O’ODHAM NATION ATTORNEY GENERAL
By Samuel F. Daughety Sells
Attorneys for Amicus Curiae Tohono O’odham Nation
________________________________________________________________

R Y A N, Justice

¶1 In a custody proceeding involving an Indian child, a

state court must comply with the Indian Child Welfare Act

(“ICWA”), 25 U.S.C. §§ 1901 to 1963 (2000). Under ICWA, before

a state court judge may order foster care placement of an Indian

child, the judge must make “a determination, supported by 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). We must

decide if § 1912(e) requires explicit expert testimony on the

ultimate issue of fact - that continued custody of the Indian

child will result in serious emotional or physical damage to the

child.

2
 I

¶2 Matthew and Savannah are the biological children of

Tammy H. and the adopted children of Steven H. The family has

had many interactions with Child Protective Services (“CPS”) in

recent years concerning allegations of emotional and physical

abuse of the children by Tammy and Steven. Once, during a

physical examination of Savannah, a Flagstaff police officer

observed bruises, some of which were seven inches wide and five

inches long.

¶3 In July 2006, a guardian ad litem (“GAL”) filed a

petition requesting that the court find Savannah dependent as to

the parents.1 The GAL alleged that Savannah was dependent under

Arizona Revised Statutes (“A.R.S.”) section 8-201(13)(a)(i)

(2007), which defines a dependent child as one “[i]n need of

proper and effective parental care and control and who has no

parent or guardian . . . willing to exercise or capable of

exercising such care and control.” A month later, the GAL filed

a supplemental petition asking the court to declare Matthew

dependent for the same reasons. Because Matthew and Savannah

are of Indian descent and affiliated with the Cherokee Nation,

the custody proceedings were subject to the requirements of

1
Because Savannah and Matthew had been charged for various
criminal offenses before these proceedings, the juvenile court
appointed a GAL to represent their interests in the juvenile
delinquency proceedings.

3
ICWA. 25 U.S.C. § 1903(4) (defining “Indian child”).2

¶4 The juvenile court conducted hearings over eleven days

between October 2006 and March 2007. At the hearings, the GAL

called several mental health professionals who had treated the

children and counseled the parents. These expert witnesses

testified about educational, psychological, and psychosexual

evaluations of the children. The evaluations concluded that

both Matthew and Savannah suffered from significant behavioral,

emotional, and psychological dysfunctions. Expert witness

testimony, as well as other evidence in the record, demonstrated

that the children’s conditions resulted from the abuse they had

suffered over the years. The experts, however, did not

specifically opine as to whether continued custody of the

children by the parents would likely result in serious emotional

or physical damage.3

¶5 Savannah testified that she believed that counseling

had helped her and she wanted to return to her parents’ custody.

2
The GAL notified the Cherokee Nation of Oklahoma of the
pending dependency proceedings as to Savannah and Matthew on
August 16, 2006, and August 23, 2006, respectively. See 25
U.S.C. § 1912(a). The Nation originally elected not to
intervene, but had the right to intervene “at any point in the
proceeding[s].” 25 U.S.C. § 1911(c). On June 4, 2008, after
this Court accepted review, the Nation filed a motion to
intervene. Because no party objected, this Court granted the
motion. Thereafter, the Cherokee Nation filed a brief asking us
to affirm the court of appeals’ decision.
3
The expert testimony primarily focused on the grounds for
determining dependency under A.R.S. § 8-201(13)(a)(i).
4
Matthew told the court that he had attended individual and

family counseling. Tammy testified that she and Steven had made

active efforts to parent the children, had sought counseling for

both, and had involved them in church youth programs. Finally,

the Arizona Department of Economic Security (“DES”) advised the

court that it did not believe there was sufficient evidence to

support the dependency petition.

¶6 At the end of the hearings, the juvenile court found

by clear and convincing evidence that the children were

“dependent as to Tammy and Steve . . . pursuant to A.R.S. § 8-

201(13).” The court found that the parents physically abused

Savannah and emotionally abused both Savannah and Matthew; the

parents failed or refused entirely to participate in services

offered to eliminate the need for the dependency; the parents

failed to provide proper and effective control of Matthew and

Savannah; and the children had serious emotional and behavioral

issues. In addition, the court found that “continued custody of

the children by the parent, guardian or Indian custodian is

likely to result in serious emotional or physical damage to the

children.” The court therefore ordered that the children be

made wards of the court and placed under the control of DES.4

4
When these child custody proceedings began, Matthew was
sixteen years old and Savannah was fourteen years old. This
case is now moot as to Matthew because he has turned eighteen
and ICWA no longer applies to him. See 25 U.S.C. § 1903(4).
5
The parents appealed.

¶7 The court of appeals vacated the dependency order.

Steven H. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 315, 319, ¶

12, 173 P.3d 479, 483 (App. 2008). The court concluded that 25

U.S.C. § 1912(e) requires that “a qualified expert must

explicitly testify that continued custody by the parents . . .

is likely to result in serious physical or emotional damage to

the child.” Id. at 318, ¶ 10, 173 P.3d at 482 (emphasis added).

Solely because none of the expert witnesses explicitly testified

on this issue, the court held that the GAL “failed to prove that

Parents’ continued custody of Children would likely have

resulted in serious emotional or physical damage to them.” Id.

at 319, ¶ 12, 173 P.3d at 483.

¶8 The GAL petitioned for review, contending that the

court of appeals erred by vacating the juvenile court’s

dependency petition for the sole reason that no expert witness

had explicitly testified regarding how the court should decide

the ultimate issue of fact.5

5
As noted above, DES did not support the GAL’s dependency
petition in the juvenile court. DES also did not join in the
appeal from the juvenile court’s order adjudicating the children
dependent. DES filed a response supporting the GAL’s petition
and filed a supplemental brief after we granted review. In
addition, the Salt River Pima-Maricopa Indian Community and the
Tohono O’odham Nation filed amicus briefs urging this Court to
affirm the court of appeals’ opinion.
6
¶9 We granted review to clarify the role expert testimony

has in meeting the requirements of 25 U.S.C. § 1912(e), an issue

of first impression and statewide importance. We have

jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24 (2003).

II

¶10 In Arizona, dependency adjudications are governed by

A.R.S. §§ 8-841 to -847 (2007 & Supp. 2007). Under § 8-

844(C)(1)(a), if the court finds by a preponderance of the

evidence that the allegations contained in the dependency

petition are true, the court must make a finding of dependency.

But a different standard of proof, along with a requirement for

expert testimony, applies when a dependency proceeding involves

an Indian child. 25 U.S.C. § 1912(e).6 Congress imposed these

additional requirements because state courts had historically

been too quick to remove Indian children from their parents and

communities. See, e.g., Maricopa County Juv. Action No. JS-

6
Arizona Rule of Procedure for the Juvenile Court 55(c)
parallels the ICWA provision at issue. It provides in part:

The petitioner must prove the allegations in the
petition . . . in the case of an Indian Child, by
clear and convincing evidence, including
testimony from a qualified expert witness, that
continued custody of the child by the parent or
Indian custodian is likely to result in serious
emotional or physical damage to the child.

Id. (emphasis added).
7
8287, 171 Ariz. 104, 106, 828 P.2d 1245, 1247 (App. 1991).

A

¶11 When it enacted ICWA in 1978, Congress recognized that

“there is no resource . . . more vital to the continued

existence . . . of Indian tribes than their children.” 25

U.S.C. § 1901(3). It found that “an alarmingly high percentage

of Indian families are broken up by the removal, often

unwarranted, of their children from them by nontribal public and

private agencies and that an alarmingly high percentage of such

children are placed in non-Indian foster and adoptive homes and

institutions.” Id. § 1901(4).

¶12 To remedy this harm, Congress declared that the

purpose of ICWA is

to protect the best interests of Indian children and
to promote the stability and security of Indian tribes
and families by the establishment of 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 . . . .

Id. § 1902. The principal goal of ICWA then is to protect and

preserve the integrity of America’s Indian tribes, while also

protecting the interests of Indian children.

B

¶13 By requiring a heightened standard of proof for foster

care placement and also requiring qualified expert testimony, 25

U.S.C. § 1912(e) furthers Congress’s intent to prevent state

8
courts from too readily approving dependency dispositions that

remove Indian children from their parents or native communities.

The issue we must decide is how specific an expert witness’s

testimony must be to satisfy § 1912(e)’s requirement that expert

testimony support a court’s determination that “continued

custody of the child by the parent . . . is likely to result in

serious emotional or physical damage to the child.” The GAL and

DES contend that the court of appeals went too far in requiring

explicit expert testimony on the ultimate issue. They argue

that such a requirement has the effect of delegating a court’s

decision to an expert witness. The GAL and DES maintain that as

long as there is some expert testimony in the record concerning

a parent’s past conduct and current inability to care for the

child, a court can infer the likelihood of future emotional or

physical damage to the Indian child. The parents and Indian

tribes, on the other hand, argue that ICWA requires explicit

expert testimony on the likelihood of future harm.

C

¶14 Because this issue requires us to interpret a statute,

our review is de novo. See, e.g., State ex rel. Ariz. Dep't of

Revenue v. Capitol Castings, Inc., 207 Ariz. 445, 447, ¶ 9, 88

P.3d 159, 161 (2004). In interpreting a federal statute, “[o]ur

task is to give effect to the will of Congress, and where its

will has been expressed in reasonably plain terms, that language

9
must ordinarily be regarded as conclusive.” Negonsott v.

Samuels, 507 U.S. 99, 104 (1993) (quoting Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 570 (1982)); see also Navajo

Nation v. Hodel, 645 F. Supp. 825, 827 (D. Ariz. 1986) (stating

that, when interpreting an ICWA provision, a court “will not

look beyond the clear meaning of express statutory terms unless

a literal interpretation would thwart the purpose of the

statutory scheme or lead to absurd results”). Given Congress’s

clear statement of intent with respect to ICWA, its provisions

are to be construed liberally in favor of the Indians’ interest

in preserving family units. See Doe v. Mann, 285 F. Supp. 2d

1229, 1234 (N.D. Cal. 2003).

¶15 With these principles in mind, we turn to 25 U.S.C. §

1912(e)’s requirement for expert testimony and what that

testimony must address to support a superior court’s

determination that an Indian child is dependent.

D

¶16 Section 1912(e) sets forth two requirements. First,

it requires a judge’s determination that an Indian child be

placed in foster care be supported by clear and convincing

evidence that “continued custody of the child by the

parent . . . is likely to result in serious emotional or

physical damage to the child.” § 1912(e). Second, it requires

that the evidence include the “testimony of qualified expert

10
witnesses.” Id.

¶17 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. See, e.g.,

L.G. v. State, 14 P.3d 946, 952-53 (Alaska 2000). Indeed,

Congress’s “primary reason for requiring qualified expert

testimony in ICWA . . . proceedings was to prevent courts from

basing their decisions solely upon the testimony of social

workers who possessed neither the specialized professional

education nor the familiarity with Native culture necessary to

distinguish between cultural variations in child-rearing

practices and actual abuse or neglect.” Id. (emphasis omitted);

In re N.L., 754 P.2d 863, 867 (Okla. 1988); Edward L. Thompson,

Protecting Abused Children: A Judge’s Perspective on Public Law

Deprived Child Proceedings and the Impact of the Indian Child

Welfare Acts, 15 Am. Indian L. Rev. 1, 79-80 (1990).

¶18 Expert witnesses who do not possess special knowledge

of Indian life may also supply testimony supporting a

determination that continued custody will likely result in

serious emotional or physical harm to the child. 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. In re N.L., 754 P.2d at 867; see Rachelle S. v. Ariz.

11
Dep’t of Econ. Sec., 191 Ariz. 518, 520-21, ¶¶ 14-16, 958 P.2d

459, 461-62 (App. 1998) (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).

¶19 Neither side disputes that 25 U.S.C. § 1912(e)

requires expert testimony; the question is what type of

testimony the statute requires. Some guidance comes from the

language of § 1912(e), which requires that “testimony of

qualified expert witnesses” be given on the question whether

“continued custody of the child . . . is likely to result in

serious emotional or physical damage to the child.” The subject

matter of that testimony must therefore be forward looking –

relating to the likelihood of future harm to the child. See

E.A. v. State, 46 P.3d 986, 991 (Alaska 2002) (stating that the

state’s proof that the child is likely to suffer serious

emotional or physical damage “must include qualified expert

testimony”); C.J. v. State, 18 P.3d 1214, 1218 (Alaska 2001)

(same). Expert testimony limited to past harm, such as the

physical examination of the child after the alleged incident,

cannot suffice.

¶20 Although there must be expert testimony addressing the

future harm determination, “ICWA does not require that the

experts’ testimony provide the sole basis for the court’s

12
conclusion; ICWA simply requires that the testimony support that

conclusion.” E.A., 46 P.3d at 992 (discussing parental

termination proceeding under 25 U.S.C. § 1912(f));7 see also

Thomas H. v. State, 184 P.3d 9, 17 (Alaska 2008) (“ICWA requires

that expert testimony support a decision to terminate parental

rights, based upon the particular facts and issues of the

case.”) (internal quotation marks omitted).

E

¶21 A determination that an Indian child will likely

suffer serious harm if returned to the custody of the parent,

requires clear and convincing evidence “both that [the parent’s]

conduct is likely to harm [the child] and that [the parent] is

unlikely to change her conduct.” E.A., 46 P.3d at 992; accord

Thomas H., 184 P.3d at 19. The determination of a likelihood of

future harm must include expert testimony that addresses this

issue. See E.A., 46 P.3d at 991 (“We hold that qualified expert

7
Termination of a parent’s custody of an Indian child is
governed by 25 U.S.C. § 1912(f). Section 1912(f) provides that

[n]o termination of parental rights may be ordered in
such proceeding in the absence of a determination,
supported by evidence beyond a reasonable doubt,
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.

Although § 1912(f) imposes a higher burden of proof, it
otherwise mirrors the evidentiary requirements of § 1912(e).
Thus, cases interpreting the requirement for expert testimony in
§ 1912(f) may be used in analyzing § 1912(e).
13
testimony in combination with substantial evidence in the record

supported the court’s determination that [the child] would

likely be harmed if returned to [the parent].”); see also D.E.D.

v. State, 704 P.2d 774, 783 (Alaska 1985) (affirming superior

court’s order terminating parental rights in light of expert

testimony that mother’s behavior would not likely change based

on her past conduct and her lack of response to the services

offered); Rachelle S., 191 Ariz. at 521, ¶ 16, 958 P.2d at 462

(affirming the lower court’s dependency order after expert

testified that the Indian child had a very high risk of

mortality and morbidity continuing in life and that the family

members evinced a lack of motivation to protect the child in the

future).

¶22 In short, in addition to any evidence establishing the

state statutory grounds for dependency, ICWA requires qualified

expert testimony that addresses the determination that the

Indian child is at risk of future harm unless the child is

removed from the parents’ custody. But the statute does not

require that the necessary expert testimony recite the specific

language of § 1912(e); nor need such testimony be expressed in a

particular way. As long as the expert testimony addresses the

likelihood of future harm, it will suffice.8

8
For example, in State ex rel. State Office for Services to
Children and Families v. Lucas, which dealt with Indian children
14
 III

A

¶23 The court of appeals found 25 U.S.C. § 1912(e)

ambiguous because it is “silent . . . regarding whether a court

can make the necessary finding inferentially based, at least in

part, on qualified expert testimony concerning past and current

conditions.” Steven H., 217 Ariz. at 317-18, ¶ 9, 173 P.3d at

481-82. The court thus turned to “secondary sources to

determine Congressional intent.” Id. at 318, ¶ 9, 173 P.3d at

482. Specifically, the court considered the Guidelines for

State Courts; Indian Child Custody Proceedings, 44 Fed. Reg.

67,584 (Nov. 26, 1979). Steven H., 217 Ariz. at 318, ¶ 10, 173

P.3d at 482.

B

¶24 To assist state courts in complying with ICWA, the

United States Department of the Interior, Bureau of Indian

whose mother abused drugs and neglected the children, the court
pointed to testimony that included a psychologist’s opinion that
the mother’s risk of drug relapse would be high if she were left
to care for a drug-addicted baby; a pediatrician’s conclusion
that the youngest child would be at risk of being abused if she
went back to an environment in which the mother was using drugs;
and the opinion of a former nurse that the mother had a “very
guarded prognosis” and that her “chance of recovery is highest
when she is responsible only for herself.” 33 P.3d 1001, 1005-
06 (Or. Ct. App. 2001). Although these expert witnesses did not
explicitly testify to the ultimate issue, their testimony
addressed the requirement that continued custody was likely to
result in serious damage to the children; the court thus found
that the petitioner satisfied the requirements of ICWA. Id.
15
Affairs, promulgated guidelines. The guidelines are not

binding. See 44 Fed. Reg. at 67,584. Nonetheless, courts have

looked to them for assistance in interpreting and applying the

provisions of ICWA. See Rachelle S., 191 Ariz. at 520, ¶ 12,

958 P.2d at 461; accord In re N.L., 754 P.2d at 867.

¶25 The court of appeals relied on Section D.4(a)

(“Qualified Expert Witnesses”) of the guidelines, which provides

that

[r]emoval of an Indian child from his or her family
must be based on competent testimony from one or more
experts qualified to speak specifically to the issue
of whether continued custody by the parents or Indian
custodians is likely to result in serious physical or
emotional damage to the child.

44 Fed. Reg. at 67,593 (emphasis added); Steven H., 217 Ariz. at

318-19, ¶¶ 10-11, 173 P.3d at 482-83.9 Because the parents never

claimed that the expert witnesses were not qualified, we do not

find Section D.4(a) particularly persuasive to the question

presented in this case.

9
The commentary to Section D.4 explains,

[Subsection (a)] is intended to point out that the
issue on which qualified expert testimony is required
is the question of whether or not serious damage to
the child is likely to occur if the child is not
removed. Basically two questions are involved.
First, is it likely that the conduct of the parents
will result in serious physical or emotional harm to
the child? Second, if such conduct will likely cause
such harm, can the parents be persuaded to modify
their conduct?

44 Fed. Reg. at 67,593.
16
 C

¶26 We conclude that Section D.3 (“Standards of Evidence”)

of the guidelines is the more relevant provision. That section

addresses the necessary proof and the role of expert testimony

in supporting that proof.

¶27 In relevant part, Section D.3(a) states:

The court may not issue an order effecting a
foster care placement of an Indian child unless
clear and convincing evidence is presented,
including the testimony of one [or] more
qualified expert witnesses, demonstrating that
the child’s continued custody with the child’s
parents [or] Indian custodian is likely to result
in serious emotional or physical damage to the
child.

44 Fed. Reg. at 67,592 (emphasis added). Section D.3(c) further

provides that

[t]o be clear and convincing, the evidence must
show the existence of particular conditions in
the home that are likely to result in serious
emotional or physical damage to the particular
child who is the subject of the proceeding. The
evidence must show the causal relationship
between the conditions that exist and the damage
that is likely to result.

Id. at 67,593 (emphasis added).

¶28 Section D.3 spells out the requirement for expert

testimony, and what that testimony, in combination with other

evidence, must address. This guideline confirms our reading of

17
the statutory text.

IV

¶29 In summary, a party seeking foster care placement of

an Indian child under § 1912(e) must present qualified expert

testimony regarding the likelihood of future harm to the child.

But we conclude that that expert testimony need not parrot the

language of the statute. So long as expert testimony addresses

the issue that continued custody of the Indian child by the

parent is likely to result in emotional or physical harm, this

requirement of § 1912(e) is satisfied.

V

¶30 Because the court of appeals reviewed the expert

testimony in the record under a different standard than we

announce today, we remand to that court for it to reconsider

that testimony in light of our interpretation of what 25 U.S.C.

§ 1912(e) requires.

VI

¶31 For the foregoing reasons, we vacate the opinion of

the court of appeals, and remand to that court for further

proceedings consistent with this opinion.

_______________________________________
Michael D. Ryan, Justice

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CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

19