State In Interest of L.L.

Decision Date01 August 2019
Docket NumberNo. 20170659-CA,20170659-CA
Citation454 P.3d 51
Parties STATE of Utah, IN the INTEREST OF L.L., a Person Under Eighteen Years of Age. Guardian Ad Litem, Appellant, v. State of Utah, B.W., S.L., and Ute Mountain Ute Tribe, Appellees.
CourtUtah Court of Appeals

Martha Pierce, Salt Lake City, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee State of Utah

Emily Adams and April Erin Bradley, Attorneys for Appellee B.W.

Jeffry K. Ross, Attorney for Appellee S.L.

Mark A. Flores, Attorney for Appellee Ute Mountain Ute Tribe

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.



¶1 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.

¶2 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.


¶3 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.1 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.

¶4 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 sibling-at-risk.

¶5 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.

¶6 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).

¶7 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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.


¶8 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. , 290 Kan. 142, 225 P.3d 1177, 1183 (2010) (explaining that in a child welfare case involving an Indian child, the legal standard for qualified expert witnesses is defined by ICWA). The juvenile court's interpretation of ICWA's requirements regarding qualified expert testimony presents a pure question of law to be reviewed de novo. See In re adoption of B.B. , 2017 UT 59, ¶ 16, 417 P.3d 1.

¶9 The GAL further asserts that the juvenile court erred in determining that the therapists' testimonies were subject to the therapist–patient privilege. "The existence of a privilege is a question of law for the court, which we review for correctness, giving no deference to the trial court's determination." Price v. Armour , 949 P.2d 1251, 1254 (Utah 1997).

I. The Juvenile Court Correctly Deferred to the BIA's Construction of the Phrase "Qualified Expert Witness" as Used in ICWA.
A. ICWA and the BIA

¶10 In a custody proceeding involving an Indian child, a state court must comply with ICWA.2 That statute, passed in 1978, reflects a national purpose "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." 25 U.S.C. § 1902 (2012) ; see also In re adoption of A.B. , 2010 UT 55, ¶¶ 32, 36, 245 P.3d 711. The act seeks to accomplish this purpose by imposing "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." 25 U.S.C. § 1902 ; see also In re adoption of A.B. , 2010 UT 55, ¶ 36, 245 P.3d 711. In passing ICWA, Congress wanted to ensure that Indian child-welfare determinations were not based on "a white, middle-class standard which, in many cases, forecloses placement with an Indian family." Mississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 37, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (quotation simplified) (citing H.R. Rep. No. 95-1386, at 24 (1978)). Congress recognized "that state law was inappropriately addressing the removal and placement of Indian children," State ex rel. C.D ., 2008 UT App 477, ¶ 14, 200 P.3d 194, by "fail[ing] to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families," 25 U.S.C. § 1901(5) (2012).3

¶11 As part of its efforts to advance these interests, ICWA requires that any foster care placement of an Indian child be ...

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