K. Who is a Qualified Expert Witness?

The statute does not define what constitutes a qualified expert witness under ICWA. The Regulations require that an expert be qualified to testify as to whether the child's continued custody by the parent or custodian is "likely to result in serious emotional or physical damage," and direct that an expert should be qualified to testify as to the "prevailing social and cultural standards" of the child's Tribe. 25 C.F.R. § 23.122. The social worker assigned to the child's case may not serve as an expert (although a caseworker may testify otherwise, as to the parent's compliance with the service plan, visitation, and other issues).

Without question, the child's Tribe is the best source for an expert. If the Tribe is in agreement with the agency's legal strategy and has an expert willing and able to testify, this is ideal. However, if a Tribe has a policy against termination of parental rights or is not in agreement with DFPS on a specific case, finding an ICWA expert can be challenging. Understandably, many Tribal members do not want to take a position in a court proceeding adverse to a fellow Tribal member and with very small Tribes, the pool of potential qualified expert witnesses is limited. Courts with capability should allow participation by phone, video conferencing, or other methods. 25 C.F.R. § 23.133.