Qualified Expert Witness
- A Qualified Expert Witness is a person who is knowledgeable regarding the customs of the Indian child’s tribe. It is required that the QEW possess knowledge relating to the family organization and child-rearing practices of the Indian child’s tribe.
- Testimony must be given by a QEW before there can be an out-of-home placement or TPR [Ref. s. 48.028(4)(f); 938.028(4)(e)].
- QEW testimony must happen at the hearing in which the child is either going to be placed out-of-home, or where the TPR will occur. These hearings may include: Fact-Finding or Dispositional hearings under s. 48.13 or s. 938.13, Consent Decree hearings if the child is being placed out-of-home, and Change in Placement hearings if the child will be moved from in-home to our-of-home. Additionally, even though QEW testimony was provided when the child was initially placed out of home, it must be provided again if an Involuntary TPR proceeding occurs.
- The QEW is not required to conduct an in-person assessment of the family. He or she may, but the QEW may also (and often does) base their testimony on a review of all the written reports and evaluations and their own knowledge of the child-rearing practices and family organization of the child’s tribe.
- It is the responsibility of the petitioning party to identify a QEW. In some counties, the DA or Corp Counsel obtains a QEW; however, as a case worker, you will likely be involved in providing assistance or contacting the tribe for resources.
- When selecting a QEW, the following characteristics must be sought after in order. You can only move onto the next tier after you have exhausted all available resources in the prior tier.
- The fact that the QEW is not in agreement with your case plan is not a reason to move to a lower tier.
- It is essential to have documentation in the file to indicate that you successfully exhausted prior tiers prior to moving to the next tier.
- The assigned county worker cannot serve as QEW.
A member of the Indian child’s tribe recognized by the Indian child’s tribal community as knowledgeable regarding the tribe’s customs relating to family organization or child-rearing practices
A member of another tribe who is knowledgeable regarding the customs of the Indian child’s tribe relating to family organization or child-rearing practices.
A professional person having substantial education and experience in the person’s professional specialty and having substantial knowledge of the customs, traditions, and values of the Indian child’s tribe relating to family organization and child-rearing practices.
Tier 3 of the statute provides alternatives when the responsible agency cannot locate a QEW from Tier 1 or Tier 2, and those searches or diligent efforts have been documented. A professional person is considered as possessing substantive experience, education and expertise in the designated area, but who also has substantial knowledge of the customs of the child’s tribe. This designated person (e.g., psychologists, social worker, health provider, teacher, and law enforcement officer) may not have a direct connection to the child’s tribe but may have the knowledge gained through experience, marriage, employment with the tribe or long-standing relationship with tribal members. It is not expected that this person is a tribal member, but will be required to provide testimony related to the child’s tribal customs, traditions and values as a QEW.
A layperson having substantial experience in the delivery of child and family services to Indians and substantial knowledge of the prevailing social and cultural standards and child-rearing practices of the Indian child’s tribe.
By definition, a lay person must possess substantial experience and knowledge in the delivery of child and family services and the child rearing practices of the Indian child’s tribe. The Tier 4 QEW is not required to be a tribal member. The test is whether the lay person meets the criteria of substantial experience and knowledge in the requested areas. Utilization of Tier 4 candidates requires that previous searches and diligent efforts have failed to provide a QEW from any of the other Tiers and that the attempts of the county/state agency have been documented and are filed with the responsible agency.
- A state/county agency responsible for obtaining a QEW for an involuntary custody proceeding may contact the Tribe’s Indian Child Welfare Director listed on the back cover of the WICWA Desk Aid, or found on the Department of Children and Families website . For out-of-state tribes refer to the Federal Register of Designated Tribal Agents for Service of Notice.
- The Tribal contact may recommend a QEW or may elect to provide QEW testimony themselves. The Tribe is not under any obligation to provide QEW and the petitioning party must be prepared to find a QEW elsewhere if the Tribe is unable or unwilling.
- It is important that the responsible agency document diligent efforts to secure a QEW. If it is necessary to recruit a QEW from a lower tier, efforts must be documented and retained for record by the agency.
- It is ultimately the county’s responsibility to ensure WICWA compliance by securing a QEW.
- If the tribe is not in agreement with the caseworker’s plan they may provide QEW that contradicts the out of home placement or termination of parental rights.
The state/county agency responsible for contacting a QEW might utilize the following listed resources for a ‘member of another tribe’ to provide testimony regarding the customs of the child’s tribal family organization or child-rearing practices.
- WICWA Desk Aid listing of Tribal ICWA Directors
- UW-Tribal member Professors
- Great Lakes Intertribal Council
- Tribal Professional employees
- Psychologists, social workers, health providers, teachers, law enforcement officers
- University of Wisconsin Indian Studies Professors/Directors
- Tribal College Professors
- Lac Courte Oreilles Tribal Community College
- Menominee Tribal College
- Milwaukee Urban Indian Organizations
- Spotted Eagle, Inc
- Indian Community School
- American Indian Center of Milwaukee
- Potawatomi Foundation
- Gerald L Ignace Heath Center
- American Indian Council on Alcoholism
- Indian Council of the Elderly
- United Indians of Milwaukee
- Persons experienced working with Indian families
- Tribal GAL
- Tribal Youth Services
- Tribal Day Care providers
- Parents of Indian children
- Retired Tribal Social Workers, GALs, etc.
- The QEW will be asked to demonstrate how they gained their knowledge of the family structure and childrearing practices of the Indian child’s tribe.
- The QEW must testify as to whether the child(ren) are likely to suffer serious emotional or physical damage if returned to the parent(s).
- The testimony must include the causal relationship between the action/inaction of the parent(s) and the damage to the child(ren).
- The mere existence of poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not in itself constitute that continued custody is likely to result in serious emotional or physical damage to the child.
- The QEW may testify as to whether active efforts were made to prevent the removal of the child(ren) from the home.
- The QEW may testify as to whether active efforts were made to reunify the Indian family.
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