SUPREME COURT OF ARIZONA

En Banc

STEVEN H. and TAMMY H., ) Arizona Supreme Court 

 ) No. CV-08-0026-PR 

 Appellants, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-JV 07-0076 

ARIZONA DEPARTMENT OF ECONOMIC ) 

SECURITY, MATTHEW H., SAVANNAH ) Coconino County 

H., ) Superior Court 

 ) No. MD2006-0031 

 Appellees. ) 

 ) 

 )

 ) O P I N I O N

_________________________________ ) 

Appeal from the Superior Court in Coconino County 

The Honorable Margaret A. McCullough, Judge

________________________________________________________________

Opinion of the Court of Appeals Division One

217 Ariz. 315, 173 P.3d 479 (App. 2008)

VACATED AND REMANDED

________________________________________________________________

KAISER, JAMES & WILSON P.L.L.C Flagstaff 

 By Jeffrey A. James 

Attorney for Steven H. and Tammy H. 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By William V. Hornung, Tucson 

 Assistant Attorney General 

 Dawn R. Williams, Tucson 

 Assistant Attorney General 

Attorneys for Arizona Department of Economic Security 

DAVID GOLDBERG, ATTORNEY AT LAW Flagstaff 

 By David Goldberg 

Attorney for Matthew H. and Savannah H. 
2 

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY Scottsdale 

 By Charleen H. Greer 

 Cheryl J. Scott 

Attorneys for Amicus Curiae Salt River Pima-Maricopa 

Indian Community 

PAUL J. MATTÉ III, ATTORNEY AT LAW Phoenix 

 By Paul J. Matté III 

And 

VIRGINIA MATTÉ, ATTORNEY AT LAW Phoenix 

 By Virginia Matté 

Attorneys for Intervenor Cherokee Nation of Oklahoma 

DAVID P. FRANK, TOHONO O’ODHAM NATION ATTORNEY GENERAL 

 By Samuel F. Daughety Sells 

Attorneys for Amicus Curiae Tohono O’odham Nation 

________________________________________________________________

R Y A N, Justice

¶1 In a custody proceeding involving an Indian child, a 

state court must comply with the Indian Child Welfare Act 

(“ICWA”), 25 U.S.C. §§ 1901 to 1963 (2000). Under ICWA, before 

a state court judge may order foster care placement of an Indian 

child, the judge must make “a determination, supported by clear 

and convincing evidence, including testimony of qualified expert 

witnesses, that the continued custody of the child by the parent 

or Indian custodian is likely to result in serious emotional or 

physical damage to the child.” 25 U.S.C. § 1912(e). We must 

decide if § 1912(e) requires explicit expert testimony on the 

ultimate issue of fact - that continued custody of the Indian 

child will result in serious emotional or physical damage to the 

child. 
3 

I 

¶2 Matthew and Savannah are the biological children of 

Tammy H. and the adopted children of Steven H. The family has 

had many interactions with Child Protective Services (“CPS”) in 

recent years concerning allegations of emotional and physical 

abuse of the children by Tammy and Steven. Once, during a 

physical examination of Savannah, a Flagstaff police officer 

observed bruises, some of which were seven inches wide and five 

inches long. 

¶3 In July 2006, a guardian ad litem (“GAL”) filed a 

petition requesting that the court find Savannah dependent as to 

the parents.1

 The GAL alleged that Savannah was dependent under 

Arizona Revised Statutes (“A.R.S.”) section 8-201(13)(a)(i) 

(2007), which defines a dependent child as one “[i]n need of 

proper and effective parental care and control and who has no 

parent or guardian . . . willing to exercise or capable of 

exercising such care and control.” A month later, the GAL filed 

a supplemental petition asking the court to declare Matthew 

dependent for the same reasons. Because Matthew and Savannah 

are of Indian descent and affiliated with the Cherokee Nation, 

the custody proceedings were subject to the requirements of 

 

1

 Because Savannah and Matthew had been charged for various 

criminal offenses before these proceedings, the juvenile court 

appointed a GAL to represent their interests in the juvenile 

delinquency proceedings. 
4 

ICWA. 25 U.S.C. § 1903(4) (defining “Indian child”).2 

¶4 The juvenile court conducted hearings over eleven days 

between October 2006 and March 2007. At the hearings, the GAL 

called several mental health professionals who had treated the 

children and counseled the parents. These expert witnesses 

testified about educational, psychological, and psychosexual 

evaluations of the children. The evaluations concluded that 

both Matthew and Savannah suffered from significant behavioral, 

emotional, and psychological dysfunctions. Expert witness 

testimony, as well as other evidence in the record, demonstrated 

that the children’s conditions resulted from the abuse they had 

suffered over the years. The experts, however, did not 

specifically opine as to whether continued custody of the 

children by the parents would likely result in serious emotional 

or physical damage.3

¶5 Savannah testified that she believed that counseling 

had helped her and she wanted to return to her parents’ custody. 

 

2

 The GAL notified the Cherokee Nation of Oklahoma of the 

pending dependency proceedings as to Savannah and Matthew on 

August 16, 2006, and August 23, 2006, respectively. See 25 

U.S.C. § 1912(a). The Nation originally elected not to 

intervene, but had the right to intervene “at any point in the 

proceeding[s].” 25 U.S.C. § 1911(c). On June 4, 2008, after 

this Court accepted review, the Nation filed a motion to 

intervene. Because no party objected, this Court granted the 

motion. Thereafter, the Cherokee Nation filed a brief asking us 

to affirm the court of appeals’ decision. 

3

 The expert testimony primarily focused on the grounds for 

determining dependency under A.R.S. § 8-201(13)(a)(i). 
5 

Matthew told the court that he had attended individual and 

family counseling. Tammy testified that she and Steven had made 

active efforts to parent the children, had sought counseling for 

both, and had involved them in church youth programs. Finally, 

the Arizona Department of Economic Security (“DES”) advised the 

court that it did not believe there was sufficient evidence to 

support the dependency petition. 

¶6 At the end of the hearings, the juvenile court found 

by clear and convincing evidence that the children were 

“dependent as to Tammy and Steve . . . pursuant to A.R.S. § 8-

201(13).” The court found that the parents physically abused 

Savannah and emotionally abused both Savannah and Matthew; the 

parents failed or refused entirely to participate in services 

offered to eliminate the need for the dependency; the parents 

failed to provide proper and effective control of Matthew and 

Savannah; and the children had serious emotional and behavioral 

issues. In addition, the court found that “continued custody of 

the children by the parent, guardian or Indian custodian is 

likely to result in serious emotional or physical damage to the 

children.” The court therefore ordered that the children be 

made wards of the court and placed under the control of DES.4 

 

4

 When these child custody proceedings began, Matthew was 

sixteen years old and Savannah was fourteen years old. This 

case is now moot as to Matthew because he has turned eighteen 

and ICWA no longer applies to him. See 25 U.S.C. § 1903(4). 
6 

The parents appealed. 

¶7 The court of appeals vacated the dependency order. 

Steven H. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 315, 319, ¶ 

12, 173 P.3d 479, 483 (App. 2008). The court concluded that 25 

U.S.C. § 1912(e) requires that “a qualified expert must 

explicitly testify that continued custody by the parents . . . 

is likely to result in serious physical or emotional damage to 

the child.” Id. at 318, ¶ 10, 173 P.3d at 482 (emphasis added). 

Solely because none of the expert witnesses explicitly testified 

on this issue, the court held that the GAL “failed to prove that 

Parents’ continued custody of Children would likely have 

resulted in serious emotional or physical damage to them.” Id. 

at 319, ¶ 12, 173 P.3d at 483. 

¶8 The GAL petitioned for review, contending that the 

court of appeals erred by vacating the juvenile court’s 

dependency petition for the sole reason that no expert witness 

had explicitly testified regarding how the court should decide 

the ultimate issue of fact.5 

 

5

 As noted above, DES did not support the GAL’s dependency 

petition in the juvenile court. DES also did not join in the 

appeal from the juvenile court’s order adjudicating the children 

dependent. DES filed a response supporting the GAL’s petition 

and filed a supplemental brief after we granted review. In 

addition, the Salt River Pima-Maricopa Indian Community and the 

Tohono O’odham Nation filed amicus briefs urging this Court to 

affirm the court of appeals’ opinion. 
7 

¶9 We granted review to clarify the role expert testimony 

has in meeting the requirements of 25 U.S.C. § 1912(e), an issue 

of first impression and statewide importance. We have 

jurisdiction under Article 6, Section 5(3) of the Arizona 

Constitution and A.R.S. § 12-120.24 (2003). 

II 

¶10 In Arizona, dependency adjudications are governed by 

A.R.S. §§ 8-841 to -847 (2007 & Supp. 2007). Under § 8-

844(C)(1)(a), if the court finds by a preponderance of the 

evidence that the allegations contained in the dependency 

petition are true, the court must make a finding of dependency. 

But a different standard of proof, along with a requirement for 

expert testimony, applies when a dependency proceeding involves 

an Indian child. 25 U.S.C. § 1912(e).6

 Congress imposed these 

additional requirements because state courts had historically 

been too quick to remove Indian children from their parents and 

communities. See, e.g., Maricopa County Juv. Action No. JS-

 

6

 Arizona Rule of Procedure for the Juvenile Court 55(c) 

parallels the ICWA provision at issue. It provides in part: 

The petitioner must prove the allegations in the 

petition . . . in the case of an Indian Child, by 

clear and convincing evidence, including 

testimony from a qualified expert witness, that 

continued custody of the child by the parent or 

Indian custodian is likely to result in serious 

emotional or physical damage to the child. 

Id. (emphasis added). 
8 

8287, 171 Ariz. 104, 106, 828 P.2d 1245, 1247 (App. 1991).

A 

¶11 When it enacted ICWA in 1978, Congress recognized that 

“there is no resource . . . more vital to the continued 

existence . . . of Indian tribes than their children.” 25 

U.S.C. § 1901(3). It found that “an alarmingly high percentage 

of Indian families are broken up by the removal, often 

unwarranted, of their children from them by nontribal public and 

private agencies and that an alarmingly high percentage of such 

children are placed in non-Indian foster and adoptive homes and 

institutions.” Id. § 1901(4). 

¶12 To remedy this harm, Congress declared that the 

purpose of ICWA is 

to protect the best interests of Indian children and 

to promote the stability and security of Indian tribes 

and families by the establishment of 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 . . . . 

Id. § 1902. The principal goal of ICWA then is to protect and 

preserve the integrity of America’s Indian tribes, while also 

protecting the interests of Indian children. 

B 

¶13 By requiring a heightened standard of proof for foster 

care placement and also requiring qualified expert testimony, 25 

U.S.C. § 1912(e) furthers Congress’s intent to prevent state 
9 

courts from too readily approving dependency dispositions that 

remove Indian children from their parents or native communities. 

The issue we must decide is how specific an expert witness’s 

testimony must be to satisfy § 1912(e)’s requirement that expert 

testimony support a court’s determination that “continued 

custody of the child by the parent . . . is likely to result in 

serious emotional or physical damage to the child.” The GAL and 

DES contend that the court of appeals went too far in requiring 

explicit expert testimony on the ultimate issue. They argue 

that such a requirement has the effect of delegating a court’s 

decision to an expert witness. The GAL and DES maintain that as 

long as there is some expert testimony in the record concerning 

a parent’s past conduct and current inability to care for the 

child, a court can infer the likelihood of future emotional or 

physical damage to the Indian child. The parents and Indian 

tribes, on the other hand, argue that ICWA requires explicit 

expert testimony on the likelihood of future harm. 

C 

¶14 Because this issue requires us to interpret a statute, 

our review is de novo. See, e.g., State ex rel. Ariz. Dep't of 

Revenue v. Capitol Castings, Inc., 207 Ariz. 445, 447, ¶ 9, 88 

P.3d 159, 161 (2004). In interpreting a federal statute, “[o]ur 

task is to give effect to the will of Congress, and where its 

will has been expressed in reasonably plain terms, that language 
10 

must ordinarily be regarded as conclusive.” Negonsott v. 

Samuels, 507 U.S. 99, 104 (1993) (quoting Griffin v. Oceanic 

Contractors, Inc., 458 U.S. 564, 570 (1982)); see also Navajo 

Nation v. Hodel, 645 F. Supp. 825, 827 (D. Ariz. 1986) (stating 

that, when interpreting an ICWA provision, a court “will not 

look beyond the clear meaning of express statutory terms unless 

a literal interpretation would thwart the purpose of the 

statutory scheme or lead to absurd results”). Given Congress’s 

clear statement of intent with respect to ICWA, its provisions 

are to be construed liberally in favor of the Indians’ interest 

in preserving family units. See Doe v. Mann, 285 F. Supp. 2d 

1229, 1234 (N.D. Cal. 2003). 

¶15 With these principles in mind, we turn to 25 U.S.C. § 

1912(e)’s requirement for expert testimony and what that 

testimony must address to support a superior court’s 

determination that an Indian child is dependent. 

D 

¶16 Section 1912(e) sets forth two requirements. First, 

it requires a judge’s determination that an Indian child be 

placed in foster care be supported by clear and convincing 

evidence that “continued custody of the child by the 

parent . . . is likely to result in serious emotional or 

physical damage to the child.” § 1912(e). Second, it requires 

that the evidence include the “testimony of qualified expert 
11 

witnesses.” Id. 

¶17 In many ICWA cases, expert testimony may be necessary 

to educate a court about tribal customs and childrearing 

practices to diminish any risk of cultural bias. See, e.g.,

L.G. v. State, 14 P.3d 946, 952-53 (Alaska 2000). Indeed, 

Congress’s “primary reason for requiring qualified expert 

testimony in ICWA . . . proceedings was to prevent courts from 

basing their decisions solely upon the testimony of social 

workers who possessed neither the specialized professional 

education nor the familiarity with Native culture necessary to 

distinguish between cultural variations in child-rearing 

practices and actual abuse or neglect.” Id. (emphasis omitted);

In re N.L., 754 P.2d 863, 867 (Okla. 1988); Edward L. Thompson, 

Protecting Abused Children: A Judge’s Perspective on Public Law 

Deprived Child Proceedings and the Impact of the Indian Child 

Welfare Acts, 15 Am. Indian L. Rev. 1, 79-80 (1990). 

¶18 Expert witnesses who do not possess special knowledge 

of Indian life may also supply testimony supporting a 

determination that continued custody will likely result in 

serious emotional or physical harm to the child. In such a 

situation, “a professional person with substantial education and 

experience in the area of his or her specialty may be a 

qualified expert witness,” depending upon the basis urged for 

removal. In re N.L., 754 P.2d at 867; see Rachelle S. v. Ariz. 
12 

Dep’t of Econ. Sec., 191 Ariz. 518, 520-21, ¶¶ 14-16, 958 P.2d 

459, 461-62 (App. 1998) (holding that a medical expert on 

“shaken baby syndrome” who lacked specialized knowledge of 

Indian culture satisfied ICWA’s criteria for expert testimony 

when the Indian parents were accused of child abuse). 

¶19 Neither side disputes that 25 U.S.C. § 1912(e) 

requires expert testimony; the question is what type of 

testimony the statute requires. Some guidance comes from the 

language of § 1912(e), which requires that “testimony of 

qualified expert witnesses” be given on the question whether 

“continued custody of the child . . . is likely to result in 

serious emotional or physical damage to the child.” The subject 

matter of that testimony must therefore be forward looking – 

relating to the likelihood of future harm to the child. See

E.A. v. State, 46 P.3d 986, 991 (Alaska 2002) (stating that the 

state’s proof that the child is likely to suffer serious 

emotional or physical damage “must include qualified expert 

testimony”); C.J. v. State, 18 P.3d 1214, 1218 (Alaska 2001) 

(same). Expert testimony limited to past harm, such as the 

physical examination of the child after the alleged incident, 

cannot suffice. 

¶20 Although there must be expert testimony addressing the 

future harm determination, “ICWA does not require that the 

experts’ testimony provide the sole basis for the court’s 
13 

conclusion; ICWA simply requires that the testimony support that 

conclusion.” E.A., 46 P.3d at 992 (discussing parental 

termination proceeding under 25 U.S.C. § 1912(f));7 see also 

Thomas H. v. State, 184 P.3d 9, 17 (Alaska 2008) (“ICWA requires 

that expert testimony support a decision to terminate parental 

rights, based upon the particular facts and issues of the 

case.”) (internal quotation marks omitted). 

E 

¶21 A determination that an Indian child will likely 

suffer serious harm if returned to the custody of the parent, 

requires clear and convincing evidence “both that [the parent’s] 

conduct is likely to harm [the child] and that [the parent] is 

unlikely to change her conduct.” E.A., 46 P.3d at 992; accord 

Thomas H., 184 P.3d at 19. The determination of a likelihood of 

future harm must include expert testimony that addresses this 

issue. See E.A., 46 P.3d at 991 (“We hold that qualified expert 

 

7

 Termination of a parent’s custody of an Indian child is 

governed by 25 U.S.C. § 1912(f). Section 1912(f) provides that 

[n]o termination of parental rights may be ordered in 

such proceeding in the absence of a determination, 

supported by evidence beyond a reasonable doubt, 

including testimony of qualified expert witnesses, 

that the continued custody of the child by the parent 

or Indian custodian is likely to result in serious 

emotional or physical damage to the child. 

Although § 1912(f) imposes a higher burden of proof, it 

otherwise mirrors the evidentiary requirements of § 1912(e). 

Thus, cases interpreting the requirement for expert testimony in 

§ 1912(f) may be used in analyzing § 1912(e). 
14 

testimony in combination with substantial evidence in the record 

supported the court’s determination that [the child] would 

likely be harmed if returned to [the parent].”); see also D.E.D. 

v. State, 704 P.2d 774, 783 (Alaska 1985) (affirming superior 

court’s order terminating parental rights in light of expert 

testimony that mother’s behavior would not likely change based 

on her past conduct and her lack of response to the services 

offered); Rachelle S., 191 Ariz. at 521, ¶ 16, 958 P.2d at 462 

(affirming the lower court’s dependency order after expert 

testified that the Indian child had a very high risk of 

mortality and morbidity continuing in life and that the family 

members evinced a lack of motivation to protect the child in the 

future). 

¶22 In short, in addition to any evidence establishing the 

state statutory grounds for dependency, ICWA requires qualified 

expert testimony that addresses the determination that the 

Indian child is at risk of future harm unless the child is 

removed from the parents’ custody. But the statute does not 

require that the necessary expert testimony recite the specific 

language of § 1912(e); nor need such testimony be expressed in a 

particular way. As long as the expert testimony addresses the 

likelihood of future harm, it will suffice.8

 

8

 For example, in State ex rel. State Office for Services to 

Children and Families v. Lucas, which dealt with Indian children 
15 

III 

A 

¶23 The court of appeals found 25 U.S.C. § 1912(e) 

ambiguous because it is “silent . . . regarding whether a court 

can make the necessary finding inferentially based, at least in 

part, on qualified expert testimony concerning past and current 

conditions.” Steven H., 217 Ariz. at 317-18, ¶ 9, 173 P.3d at 

481-82. The court thus turned to “secondary sources to 

determine Congressional intent.” Id. at 318, ¶ 9, 173 P.3d at 

482. Specifically, the court considered the Guidelines for 

State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 

67,584 (Nov. 26, 1979). Steven H., 217 Ariz. at 318, ¶ 10, 173 

P.3d at 482.

B 

¶24 To assist state courts in complying with ICWA, the 

United States Department of the Interior, Bureau of Indian 

 

whose mother abused drugs and neglected the children, the court 

pointed to testimony that included a psychologist’s opinion that 

the mother’s risk of drug relapse would be high if she were left 

to care for a drug-addicted baby; a pediatrician’s conclusion 

that the youngest child would be at risk of being abused if she 

went back to an environment in which the mother was using drugs; 

and the opinion of a former nurse that the mother had a “very 

guarded prognosis” and that her “chance of recovery is highest 

when she is responsible only for herself.” 33 P.3d 1001, 1005-

06 (Or. Ct. App. 2001). Although these expert witnesses did not 

explicitly testify to the ultimate issue, their testimony 

addressed the requirement that continued custody was likely to 

result in serious damage to the children; the court thus found 

that the petitioner satisfied the requirements of ICWA. Id. 
16 

Affairs, promulgated guidelines. The guidelines are not 

binding. See 44 Fed. Reg. at 67,584. Nonetheless, courts have 

looked to them for assistance in interpreting and applying the 

provisions of ICWA. See Rachelle S., 191 Ariz. at 520, ¶ 12, 

958 P.2d at 461; accord In re N.L., 754 P.2d at 867.

¶25 The court of appeals relied on Section D.4(a) 

(“Qualified Expert Witnesses”) of the guidelines, which provides 

that

[r]emoval of an Indian child from his or her family 

must be based on competent testimony from one or more 

experts qualified to speak specifically to the issue 

of whether continued custody by the parents or Indian 

custodians is likely to result in serious physical or 

emotional damage to the child.

44 Fed. Reg. at 67,593 (emphasis added); Steven H., 217 Ariz. at 

318-19, ¶¶ 10-11, 173 P.3d at 482-83.9

 Because the parents never 

claimed that the expert witnesses were not qualified, we do not 

find Section D.4(a) particularly persuasive to the question 

presented in this case. 

 

9

 The commentary to Section D.4 explains, 

[Subsection (a)] is intended to point out that the 

issue on which qualified expert testimony is required 

is the question of whether or not serious damage to 

the child is likely to occur if the child is not 

removed. Basically two questions are involved. 

First, is it likely that the conduct of the parents 

will result in serious physical or emotional harm to 

the child? Second, if such conduct will likely cause 

such harm, can the parents be persuaded to modify 

their conduct? 

44 Fed. Reg. at 67,593. 
17 

C 

¶26 We conclude that Section D.3 (“Standards of Evidence”) 

of the guidelines is the more relevant provision. That section 

addresses the necessary proof and the role of expert testimony 

in supporting that proof.

¶27 In relevant part, Section D.3(a) states: 

The court may not issue an order effecting a 

foster care placement of an Indian child unless 

clear and convincing evidence is presented, 

including the testimony of one [or] more 

qualified expert witnesses, demonstrating that 

the child’s continued custody with the child’s 

parents [or] Indian custodian is likely to result 

in serious emotional or physical damage to the 

child. 

44 Fed. Reg. at 67,592 (emphasis added). Section D.3(c) further 

provides that 

[t]o be clear and convincing, the evidence must 

show the existence of particular conditions in 

the home that are likely to result in serious 

emotional or physical damage to the particular 

child who is the subject of the proceeding. The 

evidence must show the causal relationship 

between the conditions that exist and the damage 

that is likely to result. 

Id. at 67,593 (emphasis added). 

¶28 Section D.3 spells out the requirement for expert 

testimony, and what that testimony, in combination with other 

evidence, must address. This guideline confirms our reading of 
18 

the statutory text. 

IV 

¶29 In summary, a party seeking foster care placement of 

an Indian child under § 1912(e) must present qualified expert 

testimony regarding the likelihood of future harm to the child. 

But we conclude that that expert testimony need not parrot the 

language of the statute. So long as expert testimony addresses 

the issue that continued custody of the Indian child by the 

parent is likely to result in emotional or physical harm, this 

requirement of § 1912(e) is satisfied. 

V 

¶30 Because the court of appeals reviewed the expert 

testimony in the record under a different standard than we 

announce today, we remand to that court for it to reconsider 

that testimony in light of our interpretation of what 25 U.S.C. 

§ 1912(e) requires. 

VI 

¶31 For the foregoing reasons, we vacate the opinion of 

the court of appeals, and remand to that court for further 

proceedings consistent with this opinion. 

 _______________________________________

 Michael D. Ryan, Justice
19 

CONCURRING:

_______________________________________

Ruth V. McGregor, Chief Justice

_______________________________________

Rebecca White Berch, Vice Chief Justice

_______________________________________

Andrew D. Hurwitz, Justice

_______________________________________

W. Scott Bales, Justice