November 20, 2019
By Timothy Sandefur
The
Rhode Island Supreme Court issued an interesting
decision
this week in a case involving the Indian Child
Welfare Act (ICWA)—specifically,
its “expert witness” requirement. That’s the rule that says
an abused or neglected Indian child may not be rescued from his abusive parents
unless the state proves, beyond a
reasonable doubt, on the testimony of expert witnesses, that failing to
terminate the parents’ rights would pose a serious risk to his safety. This
requirement applies to no other ethnicity in the United States—and that’s good,
because it’s so extremely demanding—more demanding, in fact, than the requirement
that applies in death penalty cases—that it poses a serious threat to
children’s safety and well-being.
In
fact, the Supreme Court rejected the “reasonable
doubt” standard in a 1982 case, because it “would erect an unreasonable barrier
to state efforts to free permanently neglected children for adoption.” Yet ICWA
imposes that requirement in cases involving one specific ethnic group: children
who are biologically eligible for membership in an Indian tribe. As a result, these
kids must be more abused for longer before the state can rescue them,
compared to kids of any other race.
But
ICWA goes even further and also requires the testimony of “expert witnesses,”
an expensive and time-consuming requirement that stands as yet another barrier
against efforts to protect at-risk Indian kids. And what kind of “expert
witness” is required? As is often the case with ICWA, the law’s definitions
aren’t clear. A few years ago, the Bureau of Indian Affairs issued guidelines saying they must
be experts in tribal culture. But the
law doesn’t actually require that, and it’s puzzling why cultural experts would be helpful in cases that don’t involve
disputes over culture, but over a child’s health or safety. That was the issue
the Rhode Island court addressed in its ruling.
The
case involved a 5-year-old child called Roman, who was born with serious heart
problems, and whose mother was accused of neglect almost immediately after his
birth. State officials intervened and tried to help the mother, but—as the
court explains
at length in the decision—she was uncooperative. She suffered from bipolar disorder,
and, in addition to instances of domestic violence (and even an incident in
which she was arrested after an episode of “road rage”), she failed to attend
Roman’s medical appointments, refused to get him medicine he needed, fed him in
ways that were dangerous given the medical equipment he was required to use,
and posed a serious risk to his safety in other ways. These factors would have
justified the state taking any child into protective custody. As the justices
said, “an exhaustive review of the record leaves this Court thoroughly
convinced that the termination of Mother’s rights is in Roman’s best interest.”
But
because Roman is eligible—based exclusively on genetic factors—for membership
in the Narragansett tribe, his case was subject to ICWA’s less protective
and more complicated rules, including the “expert witness” requirement.
The
mother’s lawyers argued that the state hadn’t offered testimony from tribal
cultural experts. But the court rejected that argument. ICWA requires testimony
from “a qualified expert witness,” said
the court, but it doesn’t require that the person be an expert in tribal
culture. “Moreover, it would exceed the bounds of common sense to hold that an
expert witness on Indian cultural affairs was necessary to prove that a child’s
reunification with a parent was ‘likely to result in serious emotional or
physical damage to the child’ when the evidence for and against termination is
noncultural…. [I]n culturally-neutral termination cases, such as the one before
us now, about what would an expert in Indian affairs testify? It is our
considered opinion that, while at least one qualified expert witness is
necessary under [ICWA], that expert may be qualified in any relevant area if,
as here, the case presents no culturally-relevant issues.”
That’s
the right call: Courts in child welfare cases should focus on the circumstances
of the individual child, not on vaguely
defined sociological concerns. Unfortunately, several other courts have ruled
that ICWA overrides the “best interests of the child” standard in cases
involving Indian children—and that it imposes a one-size-fits-all, nationwide
rule that Indian kids should always be treated in accordance with its racial
categorization.
And
there’s a second issue in the Rhode Island case that touches on this subject,
as well—because Roman’s mother is not
Native American.
Instead,
Roman’s eligibility for tribal membership comes from his biological father, who abandoned him at an early
age (and did not challenge the termination of his rights). Why, then, should
ICWA apply at all in this case? If ICWA’s
purpose is protect Indian children from being unduly removed from Indian
families, it has no role in a case that only involves a child’s relationship to
his non-Indian mother. “This Court
has grave reservations as to whether the provisions contained in [ICWA] apply,”
declared the justices. They pointed with disapproval to a Washington state
case from 2016,
in which a non-Indian father was
allowed to use ICWA’s restrictions to prevent an Indian mother from taking steps to protect her child. Although the
Rhode Island court ultimately did not decide this issue, its wording raises an
important problem with ICWA: Its burdens are often imposed on cases that have
nothing to do with the purposes behind ICWA—with consequences that harm the
very children ICWA was supposed to help.
Roman’s
case is a sad one—as all ICWA cases are sad cases—but the decision is likely to
result in a better life for him and for other children in similar
circumstances. And the decision is a reminder of the need to protect at-risk
children from the well-intended but deeply flawed ICWA.
Timothy Sandefur
is the Vice President for Litigation at the Goldwater Institute.
