Library: Policy
340:75-19-13. Qualified expert witness testimony in the case requiring Indian Child Welfare Act compliance
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Revised 9-15-16
(a) Per Section 1912 of Title 25 of the United States Code (25 U.S.C. § 1912) no foster care placement or termination of parental rights may be ordered without the testimony of a qualified expert witness that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage or harm to the child.
(b) A qualified expert witness has specific knowledge of the Indian tribe's culture and customs.Persons with the following characteristics, in descending order, meet the requirements for a qualified expert witness, a:
(1) member of the Indian child's tribe recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organizations and child rearing practices;
(2) member of another tribe recognized to be a qualified expert witness by the Indian child's tribe based on his or her knowledge of the delivery of child and family services to Indians and the Indian child's tribe;
(3) layperson recognized by the Indian child's tribe as having substantial experience in the delivery of child and family services to Indians, and knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe; and
(4) professional person with substantial education and experience in the area of his or her specialty who can demonstrate knowledge of the prevailing social and cultural standards and childrearing practices within the Indian child's tribe.
(c) The court or any party may request the assistance of the Indian child's tribe or the Bureau of Indian Affairs agency serving the child's tribe in locating persons qualified to serve as an expert witness.
INSTRUCTIONS TO STAFF 340:75-19-13
Revised 9-16-21
1. Qualified expert witness testimony in the case requiring Indian Child Welfare Act compliance.
(1) The court or district attorney ascertains the characteristics and knowledge of the proposed qualified expert witness to determine if that particular person qualifies as an expert witness in that specific case. Qualifications of the qualified expert witness differ depending upon the evidence and testimony presented in person, via telecommunications, or through other virtual means upon approval by the court of the telephonic testimony per Section 1-4-503 of Title 10A of the Oklahoma Statutes required for the specific case.
(2) Indian child welfare (ICW) workers serve as qualified expert witnesses. The child welfare (CW) specialist staffs the case with the ICW worker to determine if the ICW worker is available to provide testimony in person, via telephone, or by other virtual means. The CW specialist notifies the district attorney that the ICW worker:
(A) is available to provide testimony in-person via telecommunications, or other virtual means at the appointed date and time; or
(B) is not available to provide qualified expert testimony and that an alternate qualified expert witness is needed; and
(C) wants to approve the alternate qualified expert witness.
(3) The CW specialist assigned to the case:
(A) may be asked to assist the district attorney in identifying persons who qualify as a qualified expert witness;
(B) staffs the case with the ICW worker when the Indian child welfare worker is asked to provide qualified expert witness testimony; and
(C) may not serve as the qualified expert witness.
(4) When the qualified expert witness is an Oklahoma Human Services CW specialist not associated with the case or the tribal ICW worker, the court or district attorney determines if a conflict of interest exists prior to the testimony being given.
