People ex rel. M.H. , 691 N.W.2d 622 ( 2005 )

GILBERTSON, Chief Justice.

[¶ 1.] In this consolidated appeal, mother, father and the Cheyenne River Sioux Tribe (CRST)¹ appeal a judgment terminating parental rights arguing the provisions of the Indian Child Welfare Act (ICWA) were not followed in the proceeding below. We reverse and remand.

FACTS-

[¶ 2.] On July 10, 2002, a petition was filed by the State of South Dakota alleging M.H. (born July 16, 1993), W.H. Jr. (born June 15, 1994), L.H. (born July 31, 1995), L.H. (born March 8, 1999) and T.H. (born July 14, 2001) were abused and neglected children. T.R.T. (mother) is the maternal parent of these children. W.H., Sr. (father) is the paternal parent of L.H., L.H., M.H. and W.H. Jr. T.H.’s paternal parent did not appear in this matter and is not a party to this appeal. These children are Native American children and ICWA is applicable in this case. After receiving notification of this matter, as required by the ICWA, CRST intervened and participated in the hearings below.

[¶ 3.] The impetus for this action occurred on June 14, 2002, when law enforcement was dispatched to the parents’ home for a domestic dispute. Law enforcement discovered father extremely intoxicated and disoriented. Mother and two other adult males were also present and intoxicated. The children were extremely dirty and one child had a soiled diaper with fecal matter over his body. The youngest child was on a table amidst open and empty beer cans, cigarette butts and raw meat. W.H., Jr. was eating a raw bratwurst. The entire home was filthy. There were beer cans strewn about the apartment, a broken mirror on the kitchen counter and soiled diapers on the floor.

[¶4.] This was not the first allegation of inappropriate parenting of these children. M.H. had previously been placed in protective custody when he received skull fractures and the parents gave conflicting stories as to the cause of the injuries. W.H., Jr. suffered a broken leg in August of 1996 and the Department of Social Services (DSS) became involved in monitoring the family. There were also missed medical appointments relating to W.H. Jr. that resulted in referrals to DSS. In December 1997, the children were placed in the custody of DSS when mother was in jail and father was intoxicated while caring for the children. In May 1999, the children were found unsupervised while the parents were intoxicated. In December 2000, mother was arrested for assaulting father.

[¶ 5.] Mother and father stipulated that the children were abused and neglected. Mother signed a case service plan with DSS to address her parenting deficiencies. Mother agreed to complete a chemical dependency evaluation, however, it took her six months to eventually complete the evaluation and she did not follow through with the recommendations made by the "evaluator. In fact, mother continued to have problems with alcohol abuse during these proceedings and did not complete an alcohol treatment program as recommended. Though mother eventually completed parenting classes it took her six months to do so. Moreover, mother did not find adequate housing, did not complete anger management classes, failed to attend domestic violence support groups and continued to be a victim of domestic violence. There were also concerns regarding mother’s mental condition as she reported being depressed and suicidal.

[¶ 6.] Father also entered into a case service plan with DSS to improve his parenting skills. He completed outpatient alcohol treatment; however, he did not complete his aftercare or faithfully attend AA. Father failed to remain sober during the course of this proceeding. Despite having completed anger management classes, father continued to become involved in domestic abuse situations including an arrest for intentional damage to property and various other encounters with mother.

[¶ 7.] When the children were placed in foster care they had major dental problems, recurring problems with lice and M.H. and L.H. were academically behind. The testimony at trial indicated that the children thrived in foster care, had become more outgoing and were being exposed to their Native American culture. W.H. Jr. and L.H. were in Children’s Care Hospital due to their individualized needs. W.H., Jr. is diaper dependent and wears a helmet because of an unsteady gait. L.H. had recent heart surgery.

[¶ 8.] The trial court found that although reasonable and active efforts had been made to reunite the family termination was in the best interests of the children and supported by evidence beyond a reasonable doubt, including expert testimony, that continued custody would likely result in serious emotional or physical damage to the children.

ANALYSIS

ISSUE

[¶ 9.] Whether the trial court abused its discretion in determining qualified expert testimony as mandated by ICWA was presented prior to ordering termination of parental rights.

[¶ 10.] ICWA provides:

No 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,² 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(f) (emphasis added). However, ICWA does not define “qualified expert witness.” See id. Rather, we have recognized that the BIA has issued guidelines to aid in the determination of a “qualified expert witness” within the meaning of the act; though those guidelines do not have binding legislative effect and have never been formally adopted by this Court.³ In the Matter of S.D., K.C.H., and L.W., 402 N.W.2d 346, 349 (S.D.1987) (citing Guidelines. for State Courts 44 Fed. Reg. 67,584 at 67,593 (November 26,-1979)). Those guidelines indicate:

(a) Removal of an Indian child from his or her family must be based on competent testimony from one or moré experts qualified to speak specifically to the issue of whether continued custody b’y the parents or Indian custodian is likely to. result in serious physical or emotional damage to the child.

(b) Persons with the following, characteristics are most likely to meet • the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

(i)A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.

(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe. ■

(iii) A professional person having substantial education and experience in the area of his or her specialty.

44 Fed.Reg. 67,584 at 67,593. Comparatively,

We do have firm guidance as to whom shall be expert witnesses in South Dakota: A witness is an expert witness and is qualified to give expert testimony if the judge finds that to perceive, know or understand the matter concerning which the witness is to testify, requires special knowledge, skill, experience or training and that the witness has the requisite special knowledge, skill, experience or training. The qualifications and competency of a witness to give opinion evidence is primarily in the discretion of the trial' court and his ruling in determining qualifications will not be disturbed unless there is no evidence that the witness had the qualifications of an expert or the trial court has proceeded upon erroneous legal standards.

Matter of K.A.B.E and K.B.E., 325 N.W.2d 840, 843-44 (S.D.1982). Consequently, the BIA guidelines help inform the court as to when the witness offered as an ICWA expert has “the requisite special knowledge, skill, experience or training” to assist the trial court. See id.

[¶ 11.] • “This testimony is to provide the court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias.” In re L.N.W., 457 N.W.2d 17, 18 (Iowa App. 1990). “The references to tribal customs, cultural standards, and tribal childrearing practices found in the first two subparts of the Guidelines help to define who can be considered a qualified ICWA expert under the third subpart.” Matter of K.H. and K.L.E., 294 Mont. 466, 981 P.2d 1190, 1196 (1999).⁴ “One of the problems the ICWA sought to correct was the failure of welfare workers to understand Indian culture and practices concerning the raising of children.” In re D.S., 577 N.E.2d 572, 576 (Ind.1991) (reversing for failure of trial court to inquire into expert witnesses’ qualifications relating to placement of Native American Indian children). “[E]x-perts should possess more than simply substantial education and experience in the area of their specialty. Rather, they should have expertise in, and substantial knowledge of, Native American families and their childrearing practices.” Matter of K.H. and K.L.E., 981 P.2d at 1193. Such testimony is a “prerequisite” to the termination of parental rights under ICWA. Id.

[¶ 12.] To fulfill this requirement the State offered the testimony of James Eirinberg as its sole ICWA expert. Eirin-berg was an attorney-at-law licensed in the State of South Dakota. Eirinberg worked for the Yankton Sioux Tribe from 1989 until 1997 as a tribal prosecutor or tribal defender. He dealt mostly with criminal cases though he also encountered some abuse and neglect cases in his work. Ei-rinberg also worked for the Ponca Tribe in Nebraska for three years as a tribal prosecutor for abuse and neglect cases. He doubled as the ICWA director for the tribe during that time. He worked for the Flandreau Santee Sioux Tribe as a special prosecutor for less than a year.

[¶ 13.] Both parents and the CRST objected to Eirinberg’s qualifications to render an opinion on whether returning these children to their parents would likely result in serious emotional or physical damage to the children as required by ICWA. The State maintains that Eirinberg is “a professional person having substantial education and experience in the area of his or her specialty” within the meaning of the BIA guidelines. However, the record in this matter indicates that while Eirinberg had substantial experience dealing with other Native American Tribes, particularly the Yankton Sioux, his contacts and knowledge of the CRST-were extremely limited. In this regal'd, the record reveals the following:

■ He had visited the CRST reservation on one occasion.

■ He was only aware of parental services offered by the Yankton Sioux or Ponca Tribes (neither involved in this proceeding).

■ He was unable to articulate the cultural or religious differences between the tribes he worked with and the CRST.

■ He was not able to identify the Lakota kinship structure or who was primarily responsible for raising the children in that structure.

■ He was unable to identify any services offered by the CRST

It is clear that Eirinberg’s testimony was wholly lacking any specifics concerning the CRST’s unique culture or the available tribal services to address the needs of these parents and children.⁵

[¶ 14.] The focus of ICWA is not a generic reference to all Indian tribe’s in general. Congress established ICWA to not only protect the interests of Indian children but also to avoid a considerable weakening of “the tribe’s ability to assert its interest in its children.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (citing In re Adoption of Halloway, 732 P.2d 962, 969-970 (Utah 1986)) (emphasis added). “The ICWA thus, in the words of the House Report accompanying it, ‘seeks to protect the rights of the Indian child as an Indian and the' rights of the Indian community and tribe in retaining its children in its society.’ ” Id. at 37, 109 S.Ct. 1597. (emphasis added). This is because:

The protection of this tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents. This relationship between Indian tribes and' Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States.

Id. at 52, 109 S.Ct. 1597 (quoting In re Adoption of Halloway, 732 P.2d at 969-70).⁶

[¶ 15.] An expert’s testimony is no more reliable than its foundation. See Interest of T.A., 2003 SD 56, ¶26, 663 N.W.2d 225, 234. It proves nothing without a supportive factual basis. It may prove little if only partially supported by a factual basis. Lien v. Class, 1998 SD 7, ¶ 23 n. 12, 574 N.W.2d 601, 610 n. 12 (citing Bridge v. Karl’s Inc., 538 N.W.2d 521, 525 (S.D.1995)). Given the lack of this necessary foundation, the trial court abused its discretion in determining Eirin-berg was a qualified expert witness under the ICWA.⁷

[¶ 16.] The necessity of requiring compliance with the terms of ICWA is reflected in its purpose, to protect the tribal interest in its children, therefore, we must “remain vigilant because, in large part, the members of the tribe are its culture.” Matter of K.H. and K.L.E., 981 P.2d at 1195. This is in accord with the general legal doctrine that each tribe needs “to control their own internal relations, and ... preserve them own unique customs and social order.” Duro v. Reina, 495 U.S. 676, 685-86, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990)(overruled by legislative enactment). As the Montana Supreme Court aptly observed, this is “consistent with our responsibility to promote and protect the unique Indian cultures of our state for future generations.” Matter of K.H. and K.L.E., 981 P.2d at 1195. In the absence of qualified expert testimony supporting termination in the proceeding below the judgment of the trial court must be reversed and this matter remanded to the trial court.

[¶ 17.] Reversed and remanded.

[¶ 18.] GORS, Circuit Judge, for MEIERHENRY, Justice, disqualified. [¶ 19.] KONENKAMP, Justice, and GORS, Circuit Judge, concur. [¶ 20.] SABERS, Justice, concurs in result. [¶ 21.] ZINTER, Justice, dissents.

1 . CRST briefed this matter as an "appellee” but it is clear that they are in fact properly designated as an "appellant” as they assert error in the trial court’s ruling.

2 . The use of the plural "expert witnesses” does not require more than one qualified expert to testify in support of termination. In Interest of D.G., 2004 SD 54, ¶ 11 n. 2, 679 N.W.2d 497, 501.

3 . “It should be noted that the BIA did not promulgate their guidelines for state courts in Indian child custody proceedings as regulations because they were not intended to have binding legislative effect. However, the guidelines do represent the Department of Interior's interpretation of certain provisions of the ICWA in order to assure that the rights guaranteed by the ICWA are protected when state courts decide Indian child custody matters. See Guidelines for State Courts, supra at 67,584.” Matter of Defender, 435 N.W.2d 717, 722 n. 5 (S.D.1989). Nevertheless, in interpreting the ICWA these "administrative interpretations of statutory terms are given important but not controlling significance.” Matter of A.L., 442 N.W.2d 233, 236 (S.D.1989)(citing Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977)).

4 . In light of the criticisms made by the dissent, it is important to note that these first two subparts of the Guidelines specifically reference the “Indian child’s tribe” and "tribal community."

Furthermore, under ICWA, jurisdiction may also vest in the Indian child's tribal court; not any tribal court. 25 U.S.C. 1911(f). The legislative history and terms of ICWA are permeated with specific considerations for the Indian child’s tribe.

5 . Appellants also point to the fact that Eirin-berg conceded numerous times during his testimony that he was not an expert on Native American culture. However, reviewing his testimony in context this statement is not dis-positive as he was saying that he is a "student” of Native American culture. This is in the same vein as an attorney or judge stating he or she is a "student” of the law. Each day brings professional opportunities for furthering one's education and experience in their field of expertise.

6 . Given this well-established tribal interest it is not too much to require an ICWA expert to be familiar with the child's tribe. Certainly, we would not approve an expert who had as little familiarity with the parents as this witness had with the tribe. If this witness had only read books about parenting would we consider him an expert on these parents?

7 .To demonstrate error in the State's expert testimony the CRST contrasts the testimony of Eirinberg with their own expert, Steven Emery, who was also qualified as an ICWA expert by the trial court. Emery is a member of the CRST, lives on the reservation and testified that he has substantial experience in Native American culture and child rearing practices. He was qualified by the trial court as an expert witness in Lakota culture without objection b.y the State. Emery testified that in this situation continued custody with the parents would not cause serious emotional or physical damage to the children though he did not recommend the children be returned to the home at this time. Though expert testimony is not required under ICWA for anyone other than the parly advocating termination and this Court is not called upon to review the trial court's admission of this testimony for an abuse of discretion, this Court can recognize, as the trial court did in admitting this testimony, that the ICWA requires cultural identity to be a looking glass through which it is determined if continued custody by the Indian parent would likely result in serious emotional or physical harm to the children.