October 22, 2021- CYFD v. Sara E., No. A-1-CA-38983

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in Odyssey
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ________________
Filing Date: October 22, 2021
Nos. A-1-CA-38910 & A-1-CA-38983
(consolidated for purpose of opinion)
STATE OF NEW MEXICO ex rel.
CHILDREN, YOUTH & FAMILIES
DEPARTMENT,
Petitioner-Appellee,
v.
DOUGLAS B.,
Respondent-Appellant,
and
SARA E.,
Respondent,
IN THE MATTER OF ABIGAIL B.,	16
Child.	17
and	18
STATE OF NEW MEXICO ex rel.	19
CHILDREN, YOUTH & FAMILIES	20
DEPARTMENT,	21
Petitioner-Appellee,	22
v.	23
Court of Appeals of New Mexico
Filed 10/22/2021 1:45 PM

SARA E.,	1
Respondent-Appellant,	2
and	3
DOUGLAS B.,	4
Respondent,	5
IN THE MATTER OF ABIGAIL B.,	6
Child.	7
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY	8
Allen R. Smith, District Judge	9
Children, Youth & Families Department	10
Mary McQueeney, Acting Chief Children’s Court Attorney	11
Robert Retherford, Children’s Court Attorney	12
Santa Fe, NM	13
for Appellee	14
Law Offices of Nancy L. Simmons, P.C.	15
Nancy L. Simmons	16
Albuquerque, NM	17
for Appellant Douglas B.	18
Susan C. Baker	19
El Prado, NM	20
for Appellant Sara E.	21
Gail Chasey	22
Albuquerque, NM	23
Guardian Ad Litem	24

OPINION	1
MEDINA, Judge.	2
{1} 	This consolidated opinion addresses two separate appeals: State ex rel.	3
Children, Youth & Families Department v. Douglas B. and State ex rel. Children,	4
Youth & Families Department v. Sara E. Because the appeals stem from the same	5
nexus of facts and raise substantially similar issues involving child abuse and neglect	6
proceedings and the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 to -1963	7
(1978, as amended through 2021), we exercise our discretion to consolidate them	8
for decision. See Rule 12-317(B) NMRA.	9
{2} 	Douglas B. (Father) and Sara E. (Mother) (collectively, Parents) appeal the	10
district court’s finding that Abigail B. (Child) is an abused and neglected child and	11
the district court’s placement of Child in the custody of the Children, Youth and	12
Families Department (CYFD). Parents raise three arguments on appeal. They	13
contend that (1) CYFD did not prove that active efforts were made to preserve the	14
family by clear and convincing evidence; (2) CYFD’s proffered qualified expert	15
witness was not qualified; and (3) the expert did not offer the testimony required by	16
ICWA to allow for Child’s removal from Parents’ custody. Because we agree that	17
the proffered expert was not qualified to testify as to whether Child’s continued	18
custody by Parents is likely to result in serious emotional or physical damage to	19
Child, we reverse and remand for a new adjudicatory hearing consistent with this	20
opinion.	21

2
BACKGROUND	1
{3} 	On October 16, 2018, CYFD received a referral from a source alleging that	2
Child was abused and neglected by Parents. Child told the source that “she is cutting	3
herself off and on[,] . . . [that] she [was] very depressed . . . [and that] she was going	4
to run away and wanted to kill herself.” Child stated that Mother and Father “are	5
constantly fighting with each other” and that “[Father] is an alcoholic.” According	6
to Child, these fights “happen[] all of the time” and have, on more than one occasion,	7
involved Parents throwing objects at one another, including wine glasses and a	8
laptop computer.	9
{4} 	CYFD developed a safety plan to enable Child to stay in Parents’ home.	10
However, several of Child’s family members expressed concern about “severe	11
domestic violence occurring in the home[.]” Family members also told CYFD that	12
Parents were using methamphetamine and abusing alcohol. “[B]ecause of the safety	13
risks created by the ongoing domestic violence in the home and the concerns of drug	14
use and inadequate shelter,” CYFD took custody of Child. Child was temporarily	15
placed with Father’s sister, Kimberly B. (Aunt).	16
{5} 	On October 23, 2018, CYFD filed a petition alleging that Child was abused	17
and neglected by Parents. At the time of its petition, CYFD did not know that Child	18
was an Indian child for purposes of ICWA because Parents “refused to provide	19
information concerning [Child]’s ancestry.” During an October 31, 2018 hearing,	20

3
counsel for CYFD informed the court that because she was only notified of Child’s	1
Native American heritage two days before the hearing, an ICWA notice had not yet	2
been mailed to the tribe in which Child might be eligible for membership, the	3
Wichita and Affiliated Tribe of Oklahoma (the Tribe). CYFD sent the Tribe notice	4
of Child’s possible tribal affiliation, the Tribe informed CYFD that Child was	5
eligible for membership, and the Tribe intervened in Child’s case.	6
{6} 	Over the course of several hearings, the district court heard testimony from a	7
number of witnesses regarding the allegations of abuse. Aunt—Father’s sister and	8
Child’s temporary foster parent—testified that she had concerns about Child’s safety	9
given the frequent domestic violence in Parents’ home. Aunt testified that Father	10
was not sober and that Father had recently told her that he had been using	11
methamphetamine “for a very long time.” Aunt also testified that Parents’ home was	12
cluttered, that Child’s window had been broken and boarded up, and that she was	13
worried about Child’s safety in the event of a fire in the home.	14
{7} 	Child testified that she did not want to go home because of the fighting	15
between Parents that occurred “once every other day or it would go on all night	16
long.” On one occasion, Father broke Child’s bedroom door in order to reach Mother	17
who was inside Child’s bedroom; as Father came through Child’s bedroom door,	18
Mother grabbed Child’s laptop and “smashed it over [Father’s] head.” When asked	19
to describe her mental health, Child replied that she feels “empty,” as if she were “in	20

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[a] dark hole that never ends.” Child acknowledged that she had been cutting her	1
wrists.	2
{8} 	CYFD permanency planning supervisor Michelle Herrera testified about	3
CYFD’s efforts to provide services to the family. Prior to the adjudicatory hearings,	4
Herrera convened a meeting with Parents and their attorneys to discuss CYFD’s	5
expectations and processes, including visitation with Child. Although such meetings	6
are not typically arranged, Herrera deemed the meeting necessary as it had become	7
difficult to converse with Parents who frequently engaged in “yelling 	. . . threats,	8
and arguing.” Herrera testified that CYFD attempted to provide (1) psychosocial	9
assessments for Parents to further determine their strengths and opportunities for	10
growth with respect to parenting Child; (2) psychological evaluations; (3) visitation	11
with Child; (4) random drug testing for Parents; (5) substance abuse assessments;	12
(6) mental health assessments for Parents; and (7) domestic violence assessments for	13
Parents. Parents refused to participate in CYFD’s recommended services, insisting	14
that they would only participate in services if they were court-ordered. However,	15
when the district court adopted the proposed treatment plan, Parents objected and	16
specifically took issue with the drug testing requirements.	17
{9} 	Herrera 	also 	testified 	about 	efforts 	to 	communicate 	with 	Parents 	and	18
accommodate visitation. CYFD attempted to schedule visitation on weekdays, but	19
this conflicted with Parents’ schedules, so CYFD sought volunteers to accommodate	20

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weekend visits for Parents. Parents did not show up for the first scheduled visit and	1
missed the second scheduled visit. Due to Parents’ failure to appear, visitation with	2
Child was suspended but resumed six months later upon Mother’s request. Parents	3
instructed CYFD to contact them only through their attorneys, so CYFD sent	4
monthly letters and regular emails to Parents’ attorneys to provide Parents with	5
information regarding Child, including her academic progress and copies of case	6
plans. Herrera explained that these communications also included offers to schedule	7
service appointments for Parents and encouraged them to reach out to CYFD if they	8
had any questions or concerns.	9
{10} 	The district court also heard from Kyli Ahtone, an ICWA caseworker	10
employed by Child’s Tribe. She testified that she was a member of the Apache Tribe	11
of Oklahoma—a tribe closely related to Child’s Tribe. She was familiar with the	12
Tribe’s social and cultural expectations with respect to family organization based on	13
her 	own 	personal 	experience. 	Ahtone 	also 	testified 	that 	she 	had 	significant	14
experience working ICWA cases, had access to tribal members with whom she could	15
consult for additional knowledge when necessary, had attended numerous trainings	16
on ICWA, and had testified as a qualified expert witness more times than she could	17
remember. The district court accepted Ahtone as a qualified “ICWA expert” witness.	18
Ahtone ultimately opined that CYFD made active efforts to provide remedial	19
services and rehabilitative programs intended to prevent the breakup of the Indian	20

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family and that “continued custody by . . . Parents would likely result in serious	1
emotional or physical harm for . . . Child.”	2
{11} 	The district court adjudicated Child as abused and neglected and ordered that	3
Child remain in CYFD custody under the care of Aunt. Father and Mother separately	4
appeal, and we consolidate their appeals for decision.	5
DISCUSSION	6
I. 	Qualified Expert Witness Under ICWA	7
{12} 	The Abuse and Neglect Act (ANA), NMSA 1978, §§ 32A-4-1 to -35 (1993,	8
as amended through 2021), our statutory framework for addressing child abuse and	9
neglect in New Mexico, “represents a continuum of proceedings which begins with	10
the filing of a petition for neglect or abuse and culminates in the termination of	11
parental rights.” State ex rel. Child., Youth & Fams. Dep’t v. Maria C., 2004-	12
NMCA-083, ¶ 25, 136 N.M. 53, 94 P.3d 796. Between these two fixed points lies	13
the adjudicatory hearing, during which the court determines whether a child has, as	14
CYFD alleges, been abused and neglected. See State ex rel. Child., Youth & Fams.	15
Dep’t v. Melvin C., 2015-NMCA-067, ¶¶ 11-15, 350 P.3d 1251 (describing abuse	16
and neglect proceedings under the ANA). Parents argue that CYFD failed to present	17
a qualified expert witness during the adjudicatory hearing and that the district court	18
committed 	reversible 	error 	by 	allowing 	Ahtone, 	CYFD’s 	proffered 	“ICWA	19
expert[,]” to testify without the necessary foundation. We agree.	20

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{13} 	Before addressing the parties’ arguments on the merits, we begin by clarifying	1
the provisions of ICWA relevant to this issue and the applicable standard of review.	2
A. 	ICWA Sets Forth Two Distinct Requirements Applicable to Qualified	3
Expert Witnesses	4
{14} 	Congress enacted ICWA “to protect the best interests of Indian children and	5
to 	promote 	the 	stability 	and 	security 	of 	Indian 	tribes 	and 	families 	by 	the	6
establishment of minimum Federal standards for the removal of Indian children from	7
their families[.]” 25 U.S.C. § 1902. Relevant to the proceedings in this case, ICWA	8
mandates that “[n]o foster care placement may be ordered . . . in the absence of a	9
determination, supported by clear and convincing evidence, including testimony of	10
qualified expert witnesses, that the continued custody of the child by the parent or	11
Indian custodian is likely to result in serious emotional or physical damage to the	12
child.” 25 U.S.C. § 1912(e) (emphasis added); State ex rel. Child., Youth & Fams.	13
Dep’t v. Marlene C., 2011-NMSC-005, ¶ 30, 149 N.M. 315, 248 P.3d 863 (holding	14
that § 1912(e), as well as § 1912(d), findings “must be made at the adjudicatory	15
hearing because the adjudicatory hearing is the procedural phase that affords the	16
Indian parent and tribe the most procedural due process protection and best	17
accommodates the requirements of § 1912”). An understanding of ICWA’s qualified	18
expert witness requirement is essential to effectuating ICWA’s statutory purpose.	19
“Our overarching goal when interpreting ICWA is to effectuate Congress’s intent.”	20
Marlene C., 2011-NMSC-005, ¶ 15.	21

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{15} 	In discerning legislative intent, “we look first to the plain language of the	1
statute, giving the words their ordinary meaning[.]” Flores v. Herrera, 2016-NMSC-	2
033, ¶ 8, 384 P.3d 1070 (internal quotation marks and citation omitted). “[W]hen a	3
statute contains language which is clear and unambiguous, we must give effect to	4
that language and refrain from further statutory interpretation.” Truong v. Allstate	5
Ins. Co., 2010-NMSC-009, ¶ 37, 147 N.M. 583, 227 P.3d 73 (internal quotation	6
marks and citation omitted). Our review here is de novo. See State ex rel. Child.,	7
Youth & Fams. Dep’t v. Maisie Y., 2021-NMCA-023, ¶ 17, 489 P.3d 964.	8
{16} 	Because the phrase “qualified expert witness” is not defined by ICWA, we	9
look to the federal regulations implementing ICWA and are further informed by the	10
Bureau of Indian Affairs (BIA) interpretive guidelines. Cf. Marlene C., 2011-	11
NMSC-005, ¶ 18 (considering federally promulgated guidelines when interpreting	12
ambiguities in ICWA). Our Supreme Court has noted, “[I]t is hornbook law that an	13
interpretation of a statute by the agency charged with its administration is to be given	14
substantial weight, and is entitled to judicial deference[.]” Regents of Univ. of N.M.	15
v. Hughes, 1992-NMSC-049, ¶ 30, 114 N.M. 304, 838 P.2d 458 (citation omitted)	16
(examining a regulation when interpreting an act and providing that a regulation,	17
which interprets a provision of an act and is promulgated pursuant to statutory	18
authority, “is presumed to be a proper implementation of the provisions of the	19
[a]ct”). In this case, recent regulations promulgated by the United States Department	20

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of the Interior, BIA—the executive agency tasked with promulgating rules and	1
regulations to carry out ICWA’s provisions—aid our inquiry. See 25 U.S.C. § 1952	2
(requiring and authorizing the Secretary to “promulgate such rules and regulations	3
as may be necessary to carry out the provisions of [this chapter of the ICWA]”).	4
{17} 	These regulations state that a “qualified expert witness must be qualified to	5
testify regarding whether the child’s continued custody by the parent . . . is likely to	6
result in serious emotional or physical damage to the child and should be qualified	7
to testify as to the prevailing social and cultural standards of the Indian child’s	8
Tribe.” 25 C.F.R. § 23.122(a) (2016) (emphases added). The definition promulgated	9
by the BIA thus splits the ICWA expert requirement into two separate components:	10
serious damage and cultural standards. The use of the word “must” in the first portion	11
of the definition imposes a mandatory requirement, while the use of the word	12
“should” in the second portion of the definition does not. See Marbob Energy Corp.	13
v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 22, 146 N.M. 24, 206 P.3d	14
135 (“It is widely accepted that when construing statutes, ‘shall’ indicates that the	15
provision is mandatory[.]”); In re N.R., 836 S.E.2d 799, 812 (W. Va. 2019),	16
(observing that “[t]he [phrase] ‘should be’ suggests that state courts have discretion	17
to determine whether such testimony is required given the particular circumstances	18
of the case”), cert. denied sub nom. Rios v. W. Va. Dep’t of Health & Hum. Res., 140	19
S. Ct. 1550 (2020).	20

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{18} 	Indeed, the BIA clarified that state courts have discretion to determine	1
whether cultural standard testimony is “necessary in any particular case.” See Indian	2
Child Welfare Act Proceedings, Final Rule, 81 Fed. Reg. 38,778, 38830 (June 14,	3
2016).1 In issuing the 2016 Regulations, the BIA explained:	4
The final rule does not . . . strictly limit who may serve as a qualified	5
expert witness to only those individuals who have particular Tribal	6
social and cultural knowledge. The Department recognizes that there	7
may be certain circumstances where a qualified expert witness need not	8
have specific knowledge of the prevailing social and cultural standards	9
of the Indian child’s Tribe in order to meet the statutory standard. For	10
example, a leading expert on issues regarding sexual abuse of children	11
may not need to know about specific Tribal social and cultural	12
standards in order to testify as a qualified expert witness regarding	13
whether return of a child to a parent who has a history of sexually	14
abusing the child is likely to result in serious emotional or physical	15
damage to the child. Thus, while a qualified expert witness should	16
normally be required to have knowledge of Tribal social and cultural	17
standards, that may not be necessary if such knowledge is plainly	18
irrelevant to the particular circumstances at issue in the proceeding.	19
Id. at 38,829-30 (citation omitted). In accordance with this guidance, we conclude,	20
as have other states, that a qualified expert witness for ICWA purposes must be	21
qualified to testify regarding serious damage, but need not necessarily be qualified	22
to testify about cultural standards if such expertise is irrelevant to the particular	23
circumstances at issue in the proceeding. See, e.g., Eva H. v. Dep’t of Health & Soc.	24
Servs., 436 P.3d 1050, 1054 (Alaska 2019) (“[T]he ability to testify about the risk of	25
1 The “Final Rule” refers to the 2016 amendments to ICWA. 81 Fed. Reg.
38,778, 38,779.

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harm is required of every qualified expert witness, but the ability to testify about ‘the	1
prevailing social and cultural standards’ is not essential in every case.”); Steven H.	2
v. Ariz. Dep’t of Econ. Sec., 190 P.3d 180, 185 (Ariz. 2008) (concluding that ICWA	3
always requires that an expert be able to testify about harm to the child, but not about	4
tribal customs and childrearing practices); In re R.L., 961 P.2d 606, 609 (Colo. App.	5
1998) (“[I]f termination is based on parental unfitness unrelated to Indian culture or	6
society, an expert witness . . . need not possess special knowledge of Indian life.”);	7
In re Guardianship of LNP, 294 P.3d 904, 910-11 (Wyo. 2013) (concluding that a	8
qualified expert witness with substantial education and experience need not have	9
special knowledge of Indian life if testimony does not implicate cultural bias); In re	10
L.L., 2019 UT App. 134, ¶ 19, 454 P.3d 51 (recognizing that “[i]n many ICWA	11
cases, expert testimony may be necessary to educate a court about tribal customs and	12
childrearing practices to diminish any risk of cultural bias” (emphasis added)	13
(internal quotation marks and citation omitted)).	14
B. 	The Standard of Review Applicable to a District Court’s Acceptance of	15
Qualified Expert Witnesses Under ICWA Is Abuse of Discretion	16
{19} 	Before we address whether the district court erred in accepting Ahtone as a	17
qualified expert witness, we must first determine the standard of review applicable	18
to this inquiry. Parents argue that our consideration of the qualifications of proffered	19
expert witnesses should be de novo. In contrast, CYFD argues that an abuse of	20
discretion standard should be adopted.	21

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{20} 	The standard of review to be applied to a district court’s decision to qualify	1
and admit the testimony of a qualified expert witnesses within the meaning of 25	2
U.S.C. § 1912(f) appears to be a matter of first impression in New Mexico. Father	3
directs us to In re L.L., 454 P.3d 51, to support his argument that the admission of	4
an individual as a qualified expert witness under ICWA should be reviewed under a	5
de novo standard. In In re L.L., the Utah Court of Appeals reviewed an appeal by a	6
guardian ad litem challenging the district court’s denial of its motion to transfer the	7
custody of an Indian child from her mother to the state’s family services department.	8
Id. ¶ 1. On appeal, the guardian ad litem argued that the district court erred when it	9
deferred to the interpretation of the qualified expert witness requirement in the	10
regulations and in doing so, precluded the guardian ad litem’s proffered witnesses	11
from being admitted as qualified expert witnesses. Id. ¶¶ 5, 7. Contrary to Father’s	12
characterization however, the Utah Court of Appeals did not review the district	13
court’s rejection of the guardian ad litem’s proffered expert witnesses under a de	14
novo standard. Rather, the court reviewed de novo the district court’s interpretation	15
of 	and 	deference 	to 	the 	qualified 	expert 	witness 	definition 	included 	in 	BIA	16
regulations. Id. ¶ 8. Upon concluding that no error occurred in this respect, the court	17
then determined that the district court’s application of the qualified expert witness	18
definition to the facts at hand was in excess of its discretion. Id. ¶¶ 8, 20-23. Father’s	19
reliance on In re L.L. is thus misplaced.	20

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{21} 	Similarly, Mother argues for de novo review of the admission of a qualified	1
expert witness, citing Marcia V. v. Alaska, 201 P.3d 496 (Alaska 2009), but her	2
argument misconstrues the case. In Marcia V., the Alaska Supreme Court noted that	3
“[t]he question of whether an expert’s testimony presented at trial is sufficient	4
pursuant to ICWA is a legal question, which we review de novo.” Id. at 502.	5
However, the court did not—as Mother seems to claim—review the admission of	6
the qualified expert witnesses de novo, but instead applied an abuse of discretion	7
standard to that question. See id. at 505 (“[W]e conclude that the court did not abuse	8
its discretion in qualifying [a state children’s services supervisor] as an expert[.]”).	9
{22} 	Unpersuaded by Parents’ arguments, we turn again to the same 2016	10
regulations for a different purpose: to determine whether they offer any guidance as	11
to the applicable standard. The 2016 regulations explain that	12
[a] qualified expert witness must be qualified to testify regarding	13
whether the child’s continued custody by the parent . . . is likely to result	14
in serious emotional or physical damage to the child and should be	15
qualified to testify as to the prevailing social and cultural standards of	16
the Indian child’s Tribe. A person may be designated by the Indian	17
child’s Tribe as being qualified to testify to the prevailing social and	18
cultural standards of the Indian child’s Tribe.	19
25 C.F.R. § 23.122(a) (emphases added). The requirement that an expert be	20
“qualified” implies that ICWA experts are to be evaluated in the same manner as	21
other experts under a given jurisdiction’s evidentiary rules. See, e.g., Rule 11-702	22
NMRA (“A witness who is qualified as an expert by knowledge, skill, experience,	23

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training or education may testify in the form of an opinion or otherwise if the expert’s	1
scientific, technical, or other specialized knowledge will help the trier of fact to	2
understand the evidence or to determine a fact in issue.”); see also State v. Alberico,	3
1993-NMSC-047, ¶ 43, 116 N.M. 156, 861 P.2d 192 (noting that the first	4
prerequisite for admission of expert testimony “is that the expert be qualified”).	5
{23} 	We see no reason to apply a different appellate review framework from the	6
abuse of discretion standard that we generally apply in New Mexico to evaluate the	7
admission of expert testimony. See Id. ¶ 58 (“The rule in this [s]tate has consistently	8
been that the admission of expert testimony . . . is peculiarly within the sound	9
discretion of the trial court and will not be reversed absent a showing of abuse of	10
that discretion.”). We have routinely applied the abuse of discretion standard when	11
evaluating whether an individual is qualified to testify as an expert witness across	12
all other contexts where the admission of expert witness testimony is at issue. Id.;	13
see also State v. Sloan, 2019-NMSC-019, ¶ 42, 453 P.3d 401 (“Appellate courts	14
review the qualification of an expert for an abuse of discretion.”); Lopez v. Reddy,	15
2005-NMCA-054, ¶ 14, 137 N.M. 554, 113 P.3d 377 (“In determining whether an	16
expert witness is competent or qualified to testify, the district court has wide	17
discretion, and the court’s determination of this question will not be disturbed on	18
appeal, unless there has been an abuse of this discretion.” (alteration, omission,	19
internal quotation marks, and citation omitted)). Not only is this conclusion	20

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supported by our own jurisprudence, it is also supported by decisions from other	1
jurisdictions addressing this issue in the context of ICWA, including those cases	2
cited by Parents. See, e.g., In re L.L., 2019 UT App. 134, ¶ 8 (applying abuse of	3
discretion to admission of expert witness in a case subject to ICWA); Marcia V., 201	4
P.3d at 501 (same); Monroe Cnty. Dep’t of Hum. Servs. v. Luis R., 2009 WI App	5
109, ¶ 33, 320 Wis. 2d 652, 770 N.W.2d 795 (same); In re LNP, 2013 WY 20, ¶ 17,	6
294 P.3d 904 (same); In re D.M., 2003 SD 49, ¶ 19, 661 N.W.2d 768, 773 (same);	7
In re T.W.F., 2009 MT 207, ¶ 17, 351 Mont. 233, 210 P.3d 174 (same); Busenbark	8
v. Oklahoma, 2005 OK CIV APP 5, ¶ 17, 105 P.3d 354, 359 (same). We note that to	9
the extent our analysis of this issue involves the interpretation of ICWA and other	10
questions of law, our review is de novo. See Maisie Y., 2021-NMCA-023, ¶ 17.	11
C. 	Whether Ahtone Was Qualified to Testify as the Qualified Expert	12
Witness	13
{24} 	Having determined the appropriate standard of review, we now evaluate	14
whether the district court abused its discretion in allowing Ahtone to testify as the	15
ICWA qualified expert witness in this case. “In determining whether an expert	16
witness is competent or qualified to testify, the [district] court has wide discretion,	17
and the court’s determination of this question will not be disturbed on appeal, unless	18
there has been 	an abuse of this discretion.” 	Lopez, 2005-NMCA-054, ¶ 14	19
(alteration, omission, internal quotation marks, and citation omitted). “The ruling	20
will not be disturbed unless it is manifestly wrong or the trial court has applied wrong	21

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legal standards in the determination.” Id. (alterations, omission, internal quotation	1
marks, and citation omitted).	2
{25} 	We reiterate that ICWA’s qualified expert witness requirement has two	3
components: (1) a “qualified expert witness must be qualified to testify regarding	4
whether the child’s continued custody by the parent . . . is likely to result in serious	5
emotional or physical damage to the child,” and (2) the witness “should be qualified	6
to testify as to the prevailing social and cultural standards of the Indian child’s	7
Tribe.” 25 C.F.R. § 23.122(a) (emphases added). We address the cultural standards	8
requirement first because both the parties and the district court focused primarily on	9
this requirement during proceedings below.	10
1. 	Ahtone Was Qualified to Testify With Respect to the Prevailing Social	11
and Cultural Standards of Child’s Tribe2
12
{26} 	In his reply brief, Father argues that the recommendation or designation of a	13
qualified expert witness by a tribe or the BIA should not be entitled to deference.	14
This, however, is contrary to the BIA guidelines, which provide that “[a] qualified	15
expert witness should have specific knowledge of the Indian tribe’s culture and	16
customs[,]” and then sets out a list of persons who, “in descending order [based on	17
various levels of experience and knowledge], are presumed to meet the requirements	18
2Neither party addresses whether an expert in prevailing social and cultural
standards of Child’s Tribe was necessary under the circumstances of this case. We,
therefore, do not address this matter.

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for a qualified expert witness[,]” including “[a] member of another tribe who is	1
recognized to be a qualified expert witness by the Indian child’s tribe based on their	2
knowledge of the delivery of child and family services to Indians and the Indian	3
child’s tribe.” Guidelines for State Courts & Agencies in Indian Child Custody	4
Proceedings, 80 Fed. Reg. 10,146, 10,157, § D.4 (Feb. 25, 2015).3
5
{27} 	Regardless, Ahtone demonstrated that she was in fact qualified to testify as to	6
the prevailing social and cultural standards of the Child’s Tribe by testifying to her	7
experience and knowledge. See Rule 11-702 (“A witness who is qualified as an	8
expert by knowledge, skill, experience, training or education may testify in the form	9
of an opinion or otherwise if the expert’s scientific, technical or other specialized	10
knowledge will help the trier of fact understand the evidence or to determine a fact	11
in issue.”); see also 171 Am. Jur. 3d Proof of Facts 293, § 39 (2018) (“In child	12
custody proceedings subject to the ICWA, the trial court is required to determine the	13
proper foundation to qualify a witness as an expert witness.”). She testified that she	14
was a member of the Apache Tribe of Oklahoma—a tribe closely related to the Tribe.	15
Ahtone grew up on her tribe’s reservation and was also raising her own children in	16
her cultural traditions. She was familiar with the Tribe’s social and cultural	17
3While we acknowledge that only the regulations and not the guidelines are
binding, 	“[w]e 	have 	previously 	found 	[BIA] 	guidelines 	persuasive[.]” 	In 	re
Guardianship of Ashley Elizabeth R., 1993-NMCA-129, ¶ 8, 116 N.M. 416, 863
P.2d 451.

18
expectations with respect to family organization based on her own personal	1
experience, and also had access to tribal members with whom she could consult for	2
additional knowledge when necessary. Ahtone also testified that she had significant	3
experience working ICWA cases, had attended numerous trainings on ICWA, and	4
had testified as a qualified expert witness more times than she could remember.	5
{28} 	Despite Ahtone’s apparent qualifications, Father argues that Ahtone could not	6
serve as a qualified expert witness because she is not a member of Child’s Tribe. We	7
disagree. BIA guidelines explicitly state that “[t]here is no requirement that the	8
qualified expert witness be a citizen of the child’s Tribe.” U.S. Dep’t of the Interior,	9
Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare	10
Act, 55 (2016). Taking this one step further, the guidelines explain that “[i]n some	11
instances, it may be appropriate to accept an expert with knowledge of the customs	12
and standards of closely related Tribes.” Id.	13
{29} 	Such is the case here. Ahtone, a member of the Apache Tribe of Oklahoma,	14
testified at the adjudicatory hearing that she was familiar with the cultural and social	15
standards of the Tribe and that she was unaware of any significant different tribal	16
standards between her tribe and Child’s. Through her employment with the Tribe,	17
Ahtone had attended more ceremonies with the Tribe than with her own tribe.	18
Moreover, Ahtone explained that she had access to members of the Tribe with whom	19
she could consult when she has specific questions about the Tribe’s cultural and	20

19
social standards. Given the foregoing, we conclude that the district court did not	1
abuse its discretion in accepting her testimony as to the applicable prevailing social	2
and cultural standards.	3
2. 	Ahtone Was Not Qualified to Opine as to Whether Child’s Continued	4
Custody by Parents Was Likely to Result in Serious Emotional or	5
Physical Damage to Child	6
{30} 	We now consider whether Ahtone was “qualified to testify regarding whether	7
the child’s continued custody by the parent . . . is likely to result in serious emotional	8
or physical damage to the child.” 25 C.F.R. § 23.122(a). Based upon the record	9
before us, we conclude that CYFD did not lay a sufficient foundation to establish	10
that Ahtone had the requisite “knowledge, skill, experience, training or education,”	11
see Rule 11-702, to form an opinion on this subject.	12
{31} 	Subsections 	(c) 	and 	(d) 	of 	25 	C.F.R. 	§ 	23.121 	(2016) 	illuminate 	the	13
evidentiary standard a proffered ICWA expert testifying about potential emotional	14
or physical damage to the child must meet:	15
(c) For a foster-care placement or termination of parental rights, the	16
evidence must show a causal relationship between the particular	17
conditions in the home and the likelihood that continued custody of the	18
child will result in serious emotional or physical damage to the child[.]	19
(d) 	Without 	a 	causal 	relationship 	identified 	in 	paragraph 	(c) . . .	20
evidence that shows only the existence of community or family poverty,	21
isolation, single parenthood, custodian age, crowded or inadequate	22
housing, substance abuse, or nonconforming social behavior does not	23
by itself constitute clear and convincing evidence or evidence beyond	24
a reasonable doubt that continued custody is likely to result in serious	25
emotional or physical damage to the child.	26

20
BIA guidelines further explain that an expert witness who is qualified to draw this	1
causal 	connection 	must 	have 	an 	“expertise 	beyond 	normal 	social 	worker	2
qualifications.” U.S. Dep’t of the Interior, BIA, Guidelines for Implementing the	3
Indian Child Welfare Act, 53-54. We join the numerous courts in other jurisdictions	4
that have interpreted this language as requiring ICWA experts to have expertise	5
beyond the “normal” social worker qualifications. See Luis R., 2009 WI App 109,	6
¶ 38 (holding that social worker’s specialized knowledge as result of bachelor’s and	7
master’s degrees in criminal justice did not qualify the social worker to testify	8
regarding the likelihood of serious damage to the child from continued custody by	9
the parent, and experience in monitoring conditions imposed on parents for the	10
return of their children did not suggest something beyond normal social work	11
qualifications); Eva H., 436 P.3d at 1056 (holding that the proposed expert witness’s	12
extensive experience as a guardian ad litem did not meet the heightened standard for	13
qualified expert witnesses under ICWA); In re M.F., 225 P.3d 1177, 1185 (Kan.	14
2010) (holding that social workers testifying in a proceeding subject to ICWA must	15
have substantial education and experience in the area of social work beyond the	16
typical qualifications for the profession and citing other jurisdictions that have	17
reached the same conclusion); C.E.H. v. L.M.W., 837 S.W.2d 947, 955 (Mo. Ct. App.	18
1992) (stating that the phrase “qualified expert witness” is not defined by ICWA,	19

21
but legislative history of ICWA reveals that phrase is meant to apply to expertise	1
beyond normal social worker’s qualifications).	2
{32} 	Father argues that there was “no indication whether Ahtone’s training and	3
experience equipped her to address ‘serious emotional or physical damage to	4
[C]hild’ at any level.” We agree that the record does not contain a sufficient	5
foundation establishing that Ahtone was qualified to render an expert opinion on this	6
subject. Under Rule 11-702, “a witness must qualify as an expert in the field for	7
which his or her testimony is offered before such testimony is admissible. In most	8
cases, this means that the calling party must qualify the witness to testify as an expert	9
first, before any substantive testimony is given.” Lopez, 2005-NMCA-054, ¶ 15	10
(internal quotation marks and citations omitted). This case involved allegations of	11
substance abuse, domestic violence, self-harm, suicidal ideation, and household	12
hazards, and Ahtone did not demonstrate that she had the requisite expertise in these	13
areas to opine as to “a causal relationship between [these] particular conditions . . .	14
and the likelihood that continued custody of [C]hild will result in serious emotional	15
or physical damage to [Child].” 25 C.F.R. § 23.121(c).	16
{33} 	Ahtone did testify that she holds a bachelor’s degree in criminal justice,	17
significant experience working ICWA cases over her five-year tenure as an ICWA	18
caseworker, had attended numerous trainings on ICWA, and had been qualified as	19
an ICWA expert witness at least fifty times. She also said she was familiar with how	20

22
tribal family disputes are generally resolved based on personal experience growing	1
up in a similar tribal culture. Finally, she testified that alcohol and drug abuse is not	2
typically tolerated within tribal cultures. However, Ahtone did not claim to have any	3
education, training, or specialized knowledge that would permit her to testify about	4
“a causal relationship between the particular conditions in the home and the	5
likelihood that continued custody of [C]hild will result in serious emotional or	6
physical damage to [Child.]” 25 C.F.R. § 23.121(c). Numerous other courts have	7
concluded that proffered experts with similar levels of training and experience do	8
not meet ICWA’s heightened requirement for expert testimony. See, e.g., Eva H.,	9
436 P.3d at 1057 (holding that a guardian ad litem experienced in cases involving	10
substance abuse, domestic violence, and delivery of child to protective services did	11
not meet the heightened standard for a qualified expert witnesses under ICWA	12
because the proffered expert had no formal training in social work, psychology, or	13
counseling, and she had no professional tools for recognizing mental health issues);	14
Oliver N. v. Dep’t of Health & Soc. Servs., 444 P.3d 171, 177-79 (Alaska 2019)	15
(holding that a tribal elder offered as an expert at a termination of parental rights	16
trial, while clearly qualified to testify to tribal cultural standards and childrearing	17
norms, was unqualified to speak to the likelihood of harm to the child if returned to	18
the parent’s custody because there was no evidence that the source of the tribal	19
elder’s conclusion that the father’s behavior would likely harm the child was based	20

23
on anything other than the elder’s extensive life experience as a community leader	1
and grandfather, which was insufficient to qualify him to testify about the likelihood	2
of harm should the child be returned to the father); Luis R., 2009 WI App 109, ¶ 38	3
(holding that a social worker’s specialized knowledge as a result of bachelor’s and	4
master’s degrees in criminal justice did not relate to required showing of likely	5
serious damage to the child from continued custody by the parent, and experience in	6
monitoring conditions imposed on the parents for the return of their children did not	7
suggest something beyond normal social work qualifications); In re Adoption of	8
H.M.O., 1998 MT 175, ¶ 34, 289 Mont. 509, 962 P.2d 1191 (holding that the district	9
court abused its discretion in qualifying an ICWA expert where the record was silent	10
as to the qualifications beyond being a social worker).	11
{34} 	Similarly here, we are not satisfied that CYFD laid a sufficient foundation to	12
qualify Ahtone as an expert witness qualified to opine as to the likelihood of future	13
emotional or physical damage to Child. We acknowledge that “no set criteria can be	14
laid down to test [the] qualifications” of an expert, Smith v. Smith, 1992-NMCA-	15
080, ¶ 19, 114 N.M. 276, 837 P.2d 869, and we do not mean to say that a social	16
worker 	may 	never 	be 	qualified 	as 	an 	expert 	witness 	for 	ICWA 	purposes. 4
17
Nonetheless, we do not believe that Ahtone adequately demonstrated that she had	18
4We recognize “[t]he social worker regularly assigned to the Indian child may
not serve as a qualified expert witness in child-custody proceedings.” 25 C.F.R.
§ 23.122(c).

24
the requisite knowledge, education, or training, to qualify as an expert on this issue.	1
She did not explain whether or how her bachelor’s degree in criminal justice	2
supported her purported expertise, did not explain the specifics of her ICWA	3
training, or indicate whether or how her ICWA training provided her with relevant	4
knowledge, and when asked about family disputes and substance abuse, testified that	5
her understanding of such matters was limited to her personal experiences growing	6
up.	7
{35} 	Under an abuse of discretion standard, a district court’s qualification of an	8
expert “will not be disturbed, unless it is manifestly wrong or the [district] court has	9
applied wrong legal standards in the determination.” Lopez, 2005-NMCA-054, ¶ 14	10
(alterations, omission, internal quotation marks, and citation omitted). In this case,	11
the district court did not appear to draw a distinction between Ahtone’s qualifications	12
to opine on social and cultural standards and the separate requirement that she be	13
qualified to opine on emotional or physical damage to Child. Instead, the district	14
court ultimately qualified her under the general term “ICWA expert.” In failing to	15
separate these two bases, the district court applied the wrong legal standard, and	16
there is insufficient foundational evidence in the record to uphold the district court’s	17
acceptance of Ahtone as qualified to issue an opinion as to whether Child’s	18
continued custody by Parents was likely to result in serious emotional or physical	19
damage. In absence of testimony from a qualified expert, we conclude that the	20

25
district court’s finding required under § 1912(e) must be reversed as well as the	1
neglect and abuse adjudications. See Marlene C., 2011-NMSC-005, ¶ 47 (reversing	2
neglect adjudication “because the findings required by § 1912 (d) and (e) of ICWA	3
were not made at the adjudicatory hearing on abuse and neglect”). 5
4
II. 	The Remedy on Remand	5
{36} 	In his brief in chief, Father’s requests that we reverse and remand with	6
instructions to implement a plan for reunification and in his reply brief requests that	7
we reverse and remand for a new trial. Mother on the other hand seeks reversal of	8
the adjudication order, return of Child to Mother, and alternatively a new custody	9
and adjudicatory hearing “to ensure proof that Mother received ‘active efforts’ prior	10
to the removal of Child” and at which CYFD presents testimony from a qualified	11
ICWA expert. CYFD requests affirmance of the district court’s adjudicatory order	12
in both Father and Mother’s cases.	13
{37} 	In this case as a matter of first impression we clarify that ICWA sets forth two	14
distinct requirements for qualified expert witnesses, and we reverse the neglect and	15
abuse adjudications upon a determination that the record did not support the district	16
court’s qualification of Ahtone to testify as an expert regarding the risk of harm to	17
5Because we conclude that the district court abused its discretion in qualifying
Ahtone as an expert capable of offering a risk of harm opinion and reverse on that
ground, we need not address Parents’ separate challenge to the sufficiency of her
testimony, nor do we reach Parents’ remaining arguments on appeal.

26
Child. We recognize that if we were to order dismissal of the abuse and neglect	1
petition, CYFD would be “precluded from bringing the same potentially meritorious	2
allegations in a new petition but would instead have to decide whether it had grounds	3
to supplement the original petition or file a new petition with different allegations of	4
abuse or neglect.” Marlene C., 2011-NMSC-005, ¶ 49. We conclude, just as our	5
Supreme Court concluded in Marlene C., that “requiring CYFD to begin the process	6
anew in this case by bringing new allegations of abuse [and] neglect neither	7
promotes judicial economy nor protects Child’s best interests.” Id. Therefore we	8
remand this case to the district court for a new adjudicatory hearing.	9
CONCLUSION	10
{38} 	For the foregoing reasons, we reverse and remand for further proceedings in	11
accordance with this opinion.	12
{39} 	IT IS SO ORDERED.	13
_________________________________	14
JACQUELINE R. MEDINA, Judge	15
WE CONCUR:	16
_________________________________	17
JENNIFER L. ATTREP, Judge	18
_________________________________	19
MEGAN P. DUFFY, Judge	20