2019 UT App 134

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF L.L.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

GUARDIAN AD LITEM,

Appellant,

v.

STATE OF UTAH, B.W., S.L., AND 

UTE MOUNTAIN UTE TRIBE,

Appellees.

Opinion

No. 20170659-CA

Filed August 1, 2019

Eighth District Juvenile Court, Vernal Department

The Honorable Ryan B. Evershed

No. 1128314

Martha Pierce, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. 

Peterson, Attorneys for Appellee State of Utah

Emily Adams and April Erin Bradley, Attorneys

for Appellee B.W.

Jeffry K. Ross, Attorney for Appellee S.L.

Mark A. Flores, Attorney for Appellee

Ute Mountain Ute Tribe

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Federal law requires that before a court can remove an 

Indian child from a parent’s custody, a “qualified expert 
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witness” must provide evidence that the “continued custody of 

the child by the parent . . . is likely to result in serious emotional 

or physical damage to the child.” 25 U.S.C. § 1912(e) (2012). The 

questions presented for our determination are what constitutes a 

“qualified expert witness” and whether a Utah court must apply 

the definition of that term provided by a federal agency. 

Specifically, the attorney guardian ad litem (the GAL) for an 

Indian child (Child) appeals the juvenile court’s order denying 

the GAL’s motion to transfer custody of Child and the court’s 

order terminating jurisdiction over Child’s status. The GAL 

contends that the juvenile court erred when it refused to 

consider certain of the GAL’s witnesses as “qualified expert 

witnesses” pursuant to the Indian Child Welfare Act (ICWA). See

id. The GAL faults the juvenile court for deferring to the United 

States Department of the Interior, Bureau of Indian Affairs’ (the 

BIA) regulation interpreting the statutory term rather than 

employing its own interpretation. The GAL also argues that the 

juvenile court erred when it excluded certain expert witness 

testimony as privileged.

¶2 We conclude that while the juvenile court correctly 

looked to the BIA regulation to determine whether the GAL’s 

witnesses were qualified expert witnesses pursuant to ICWA, 

the juvenile court misapplied the regulation and exceeded its 

discretion in excluding the GAL’s witnesses and terminating 

jurisdiction over Child and her mother (Mother). We also 

conclude that the juvenile court erred in determining that the 

testimony of two of the GAL’s witnesses was subject to 

therapist–patient privilege. We therefore reverse and remand for 

further proceedings.

BACKGROUND

¶3 Child is a three-year-old girl born in April 2016. She is an 

Indian child as defined by ICWA because she is eligible for 
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membership in the Ute Mountain Ute Tribe (the Tribe) and her 

biological parents are members of the Tribe.1 See 25 U.S.C. 

§ 1903(4) (2012). Child came into the custody of the Utah 

Division of Child and Family Services (DCFS) as a newborn 

because of Mother’s issues with alcohol and domestic violence.

Mother has three older children whom the court also 

adjudicated as abused and neglected and who were removed 

from Mother’s care before Child was born. In November 2016, 

the juvenile court returned Child to Mother’s custody, with 

DCFS providing in-home protective services to Mother and 

Child.

¶4 Shortly thereafter, the juvenile court received letters 

from three therapists who had been involved with Mother 

and her children. The letters expressed the therapists’ concerns 

about Mother’s ability to safely parent Child. Consequently, 

in March 2017, the GAL moved to remove Child from Mother

and return her to DCFS custody. In the motion, the GAL asserted 

that Mother continued to struggle with domestic violence 

issues and explained that all three therapists who had 

submitted letters to the court had concerns about Mother’s 

ability to parent Child safely because of Mother’s continued 

relationship with Child’s father, who had been convicted of 

abusing Mother’s older children. The GAL noted that DCFS was 

in the process of terminating reunification services for Mother 

and her three older children and considering changing their 

permanency goal to adoption, and asked the juvenile court to 

remove or transfer custody of Child because she was a sibling-atrisk.

¶5 The juvenile court set an evidentiary hearing on the 

GAL’s motion for June 27, 2017. In preparation for that hearing, 

the GAL designated as expert witnesses the three therapists who 

 

1. The Tribe intervened in the case in February 2017.
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had previously submitted letters to the court. Prior to the 

hearing, Mother and the Tribe moved to strike the GAL’s motion 

to transfer custody, arguing that the GAL had failed to designate 

an expert witness who was qualified as required by ICWA and 

the BIA regulations; specifically, the GAL had failed to designate 

an expert who could testify about the prevailing social and 

cultural standards of the Tribe as required by the BIA 

regulations. 25 C.F.R. § 23.122(a) (2016). Mother and the Tribe 

also objected to the testimony of two of the therapists on the 

ground that Mother’s therapist–patient privilege rendered their

testimony inadmissible.

¶6 The GAL argued that since ICWA does not explicitly 

define what qualifies a witness as an expert, the juvenile 

court had “discretion to determine whether a witness has

adequate qualifications to provide the proffered testimony.” 

Although the three therapists were not qualified to testify 

regarding tribal cultural standards, the GAL asserted that the 

court was not bound by the BIA regulations and urged the court

to qualify the therapists as expert witnesses anyway based on 

their qualification “to testify regarding whether the child’s 

continued custody by the parent . . . is likely to result in serious 

emotional or physical damage to the child,” 25 U.S.C. § 1912(e)

(2012).

¶7 Following a hearing on the matter, the juvenile court 

agreed with Mother and the Tribe that because “qualified expert 

witness” is not defined by ICWA, the court should defer to and 

adopt the BIA’s interpretation of that term pursuant to the 

Chevron deference rule articulated by the United States Supreme 

Court, which requires courts to defer to federal agencies’ 

interpretations of federal statutes under certain circumstances. 

See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 

837, 843–45 (1984). Accordingly, the juvenile court determined 

that the standard set forth in the BIA regulation precluded the 

court from qualifying any of the therapists as experts because 
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none of them were qualified to testify about the prevailing social 

and cultural standards of the Tribe. Based on this determination, 

the juvenile court dismissed the GAL’s motion to remove Child 

from Mother’s custody. The court closed Child’s case and 

terminated jurisdiction on August 3, 2017, and the GAL timely 

appealed.

ISSUES AND STANDARDS OF REVIEW

¶8 The GAL asserts that the juvenile court erred in 

determining that the three therapists the GAL intended to call 

to support the motion to remove were not qualified expert 

witnesses because they could not testify regarding the Tribe’s

social and cultural standards. The qualification of witnesses 

as experts is generally a discretionary decision for a trial court. 

See State v. Holm, 2006 UT 31, ¶ 89, 137 P.3d 726. But to 

properly exercise that discretion in an ICWA proceeding, the

court must apply the correct legal standard. See Ross v. Epic 

Eng’g, PC, 2013 UT App 136, ¶ 11, 307 P.3d 576; see also In re 

M.F., 225 P.3d 1177, 1183 (Kan. 2010) (explaining that in a child 

welfare case involving an Indian child, the legal standard for

qualified expert witnesses is defined by ICWA). The juvenile 

court’s interpretation of ICWA’s requirements regarding 

qualified expert testimony presents a pure question of law to be 

reviewed de novo. See In re adoption of B.B., 2017 UT 59, ¶ 16, 417 

P.3d 1.

¶9 The GAL further asserts that the juvenile court erred in 

determining that the therapists’ testimonies were subject to the 

therapist–patient privilege. “The existence of a privilege is a 

question of law for the court, which we review for correctness, 

giving no deference to the trial court’s determination.” Price v. 

Armour, 949 P.2d 1251, 1254 (Utah 1997).
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ANALYSIS

I. The Juvenile Court Correctly Deferred to the BIA’s 

Construction of the Phrase “Qualified Expert Witness” as Used 

in ICWA.

A. ICWA and the BIA

¶10 In a custody proceeding involving an Indian child, a state 

court must comply with ICWA.2 That statute, passed in 1978,

 

2. In general, the promulgation of child welfare procedures is a 

matter reserved to the states. See Elk Grove Unified School Dist. v. 

Newdow, 542 U.S. 1, 12 (2004) (“The whole subject of the 

domestic relations of husband and wife, parent and child, 

belongs to the laws of the States and not to the laws of the 

United States.” (quotation simplified)), abrogated on other grounds 

by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 

118 (2014). While the mandates of ICWA are based on the federal 

government’s “plenary power over Indian affairs,” 25 U.S.C. 

§ 1901(1) (2012), ICWA clearly contemplates that state courts will 

adjudicate child custody cases involving Indian children, see id.

§ 1911. So long as the core intent of ICWA is preserved—

providing procedural and substantive protections such as the 

right to counsel, notice to the tribes, rehabilitative services, a 

procedure to invalidate illegal proceedings, and imposing high 

standards of proof—the underlying procedural framework for 

child custody cases has been left to the states, even in cases 

involving Indian children. See In re adoption of A.B., 2010 UT 55, 

¶ 32, 245 P.3d 711; In re C.D., 2008 UT App 477, ¶ 14, 200 P.3d 

194. The Utah Supreme Court has determined that in passing 

ICWA, Congress did not intend to preempt state child welfare 

law, In re adoption of A.B., 2010 UT 55, ¶ 30, but ICWA does

provide that “[i]n any case where State or Federal law applicable 

to a child custody proceeding . . . provides a higher standard of 

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reflects a national purpose “to protect the best interests of Indian 

children and to promote the stability and security of Indian 

tribes and families.” 25 U.S.C. § 1902 (2012); see also In re adoption 

of A.B., 2010 UT 55, ¶¶ 32, 36, 245 P.3d 711. The act seeks to 

accomplish this purpose by imposing “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.” 25 U.S.C. 

§ 1902; see also In re adoption of A.B., 2010 UT 55, ¶ 36. In passing 

ICWA, Congress wanted to ensure that Indian child-welfare 

determinations were not based on “a white, middle-class 

standard which, in many cases, forecloses placement with an

Indian family.” Mississippi Band of Choctaw Indians v. Holyfield, 

490 U.S. 30, 37 (1989) (quotation simplified) (citing H.R. Rep. No. 

95-1386, at 24 (1978)). Congress recognized “that state law was 

inappropriately addressing the removal and placement of Indian 

children,” In re C.D., 2008 UT App 477, ¶ 14, 200 P.3d 194, by 

“fail[ing] to recognize the essential tribal relations of Indian 

people and the cultural and social standards prevailing in Indian 

communities and families,” 25 U.S.C. § 1901(5) (2012).3

 

(...continued)

protection to the rights of the parent . . . of an Indian child than 

the rights provided under this subchapter, the State . . . shall 

apply the [higher] standard,” 25 U.S.C. § 1921 (2012). This is to 

ensure “that parents of Indian children enjoy the highest level of 

protection of their parental rights available.” In re adoption of 

B.B., 2017 UT 59, ¶ 67, 417 P.3d 1; see also 25 U.S.C. § 1921.

3. ICWA is clearly concerned with the best interests of the 

“Indian child,” but the phrase “best interests of Indian children” 

in the context of ICWA is necessarily more involved than the 

general “best interests of the child” standard applicable in child 

welfare cases involving non-Indian children. Under any analysis, 

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¶11 As part of its efforts to advance these interests, ICWA

requires that any foster care placement of an Indian child be 

“supported by clear and convincing evidence, including testimony 

of qualified expert witnesses, that the continued custody of the 

child by the parent . . . is likely to result in serious emotional or 

physical damage to the child.” Id. § 1912(e) (emphasis added). 

But the phrase “qualified expert witness” is not defined by 

ICWA, and when the juvenile court was asked to examine the 

provision, it found it to be ambiguous. The juvenile court 

therefore looked to the BIA—the executive agency tasked with 

promulgating rules and regulations to carry out ICWA’s 

provisions, id. § 1952; see infra note 4—for guidance. The BIA’s 

2016 Regulations define “qualified expert witness” as follows: “a 

qualified expert witness must be qualified to testify regarding 

whether the child’s continued custody by the parent . . . is likely 

to result in serious emotional or physical damage to the child 

and should be qualified to testify as to the prevailing social and 

cultural standards of the Indian child’s Tribe.” 25 C.F.R. 

§ 23.122(a) (2016); see also Indian Child Welfare Act Proceedings 

Final Rule (Final Rule), 81 Fed. Reg. 38,777, 38,829 (June 14, 2016)

(“The qualified expert witness should have specific knowledge 

of the prevailing social and cultural standards of the Indian 

child’s Tribe . . . . The question of whether the continued custody 

of the child by the parent or Indian custodian is likely to result in 

 

(...continued)

a child’s physical and emotional health must be paramount. But 

under ICWA, there is an additional presumption that it is in the 

best interests of the “Indian child” to maintain ties with the 

Indian tribe, Indian culture, and Indian family. See Mississippi 

Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 50 n.24 (1989) 

(“[ICWA] is based on the fundamental assumption that it is in 

the Indian child’s best interest that its relationship to the tribe be 

protected.” (quotation simplified)).
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20170659-CA 9 2019 UT App 134

serious emotional or physical damage to the child is one that 

should be examined in the context of the prevailing cultural and 

social standards of the Indian child’s Tribe.”); 1979 Guidelines, 

44 Fed. Reg. 67,584, 67,593 (Nov. 26, 1979) (explaining that 

“knowledge of tribal culture and childrearing practices will 

frequently be very valuable to the court” in determining the 

likely impact of parental custody under the standards of ICWA

because “[s]pecific behavior patterns will often need to be placed 

in the context of the total culture to determine whether they are 

likely to cause serious emotional harm”). We now turn to the 

question of whether the juvenile court correctly deferred to the 

BIA regulation to determine whether the GAL’s witnesses 

qualified as experts pursuant to ICWA.

B. In Interpreting Ambiguous Provisions of a Federal 

Statute, We Are Bound by the Chevron Deference 

Doctrine.

¶12 When interpreting a statute, a court’s “primary goal is to 

evince the true intent and purpose” of the legislative body.

Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 

863 (quotation simplified). The best evidence of legislative intent 

is “the plain and ordinary meaning of the statute’s terms.” RentA-Center West, Inc. v. Utah State Tax Comm’n, 2016 UT 1, ¶ 13, 367 

P.3d 989. A statute draws its meaning from its text, but when a 

genuine ambiguity appears, it is usually up to the courts to 

resolve the ambiguity by “resort[ing] to other modes of statutory 

construction,” such as “seek[ing] guidance from legislative 

history and other accepted sources” or employing “unique 

rules” to “guide our construction of ambiguous terms” in 

“specific contexts.” Marion, 2011 UT 50, ¶ 15 (quotation 

simplified).

¶13 One of these unique rules requires courts to grant 

deference to a federal administrative agency’s interpretation of a 

federal statute when it appears that Congress has left “gaps” in 
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20170659-CA 10 2019 UT App 134

the legislation for the agency to fill. See Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). “The court 

does not simply impose its own construction on the statute, as 

would be necessary in the absence of an administrative 

interpretation.” Federal Nat’l Mortgage Ass’n v. Sundquist 

(Sundquist I), 2013 UT 45, ¶ 19, 311 P.3d 1004 (quotation 

simplified); see also Bank of Am., NA v. Sundquist (Sundquist II), 

2018 UT 58, ¶¶ 23–24, 430 P.3d 623. “Rather, if the statute is 

silent or ambiguous with respect to the specific issue, the 

question for the court is whether the agency’s answer is based on 

a permissible construction of the statute.” Chevron, 467 U.S. at

843; see also Sundquist II, 2018 UT 58, ¶ 45. That is, although the 

judiciary is the final authority on issues of statutory 

construction, if a federal statute is not clear, our courts “have 

long recognized that considerable weight should be accorded to 

an executive department’s construction of a statutory scheme it 

is entrusted to administer, and the principle of deference to 

administrative interpretations.” Chevron, 467 U.S. at 844; 

Sundquist II, 2018 UT 58, ¶ 24. This principle is commonly 

known as the Chevron deference doctrine.

¶14 To the juvenile court below and on appeal in this court, 

the GAL argued that our supreme court had repudiated any of 

its prior precedent that supports deference to a federal 

administrative agency’s interpretation of a federal statute 

pursuant to the Chevron deference doctrine. See Outfront Media, 

LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12 n.13, 416 P.3d 389; 

Ellis-Hall Consultants v. Public Service Comm’n, 2016 UT 34, ¶ 33, 

379 P.3d 1270; Hughes Gen. Contractors, Inc. v. Utah Labor Comm’n, 

2014 UT 3, ¶ 25, 322 P.3d 712; Sundquist I, 2013 UT 45, ¶ 40; 

Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 29, 308 P.3d 461. 

However, while this case was pending on appeal, the Utah 

Supreme Court issued a decision in Sundquist II, 2018 UT 58, 

wherein the court overruled its 2013 decision in Sundquist I and 

held that while the court has declined to employ Chevron-like 
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deference when reviewing a state agency’s interpretation of a 

state statute or regulation, or a state agency’s interpretation of a 

federal statute, see Hughes Gen. Contractors, 2014 UT 3, ¶ 25, our 

courts must still defer to a federal administrative agency’s 

interpretation of an ambiguous federal statute. See Sundquist II, 

2018 UT 58, ¶¶ 21–24. Therefore, because the BIA is a federal 

administrative agency and ICWA is a federal statute, we must 

employ the principles articulated in Chevron to determine

whether the BIA’s 2016 regulation defining “qualified expert 

witness” is entitled to deference.

C. The BIA’s Definition of the Term “Qualified Expert 

Witness” Is Entitled to Chevron Deference.

¶15 When a federal agency’s interpretation of a federal statute 

“places us in the shadow of Chevron,” we must “pass through a 

series of analytical gates.” Id. ¶¶ 21–22. First, we must determine 

whether the provision is ambiguous. “If the intent of Congress is 

clear, that is the end of the matter; for the court, as well as the 

agency, must give effect to the unambiguously expressed intent 

of Congress.” Chevron, 467 U.S. at 842–43. If we determine that 

“the statute is silent or ambiguous with respect to the specific 

issue,” Sundquist II, 2018 UT 58, ¶ 45 (quotation simplified), then 

we must consider “whether Congress intended to delegate 

authority to the [agency] to weigh in on the issue,” id. ¶ 22, and, 

if so, whether the agency’s interpretation “is based on a 

permissible construction of the statute,” Chevron, 467 U.S. at 843.

If we determine that the agency has authority and that its 

construction is reasonable, then the agency’s interpretation is 

entitled to deference. See id. at 843–45.

1. The Term “Qualified Expert Witness” as Used in ICWA Is 

Ambiguous.

¶16 ICWA does not define the term “qualified expert 

witness.” While “expert witness” is a standard term that is 
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defined by reference to state and federal law, the word 

“qualified” is not so easily defined. The use of the extra word 

“qualified” in the statute indicates that Congress intended to 

give that word separate meaning and to require that an “expert” 

be possessed of an extra set of qualifications beyond traditional 

expertise. But ICWA is silent as to what those qualifications are. 

Because the statute does not unambiguously address the 

question, we must “rely on other tools of statutory 

interpretation,” see Sundquist II, 2018 UT 58, ¶ 37, beginning with 

an examination of the BIA’s interpretation.

2. Congress Has Granted the BIA the Authority to Interpret 

ICWA.

¶17 When ICWA was enacted, the statute instructed the 

Department of the Interior as follows: “Within one hundred and 

eighty days after November 8, 1978, the Secretary shall 

promulgate such rules and regulations as may be necessary to 

carry out the provisions of this chapter.” 25 U.S.C. § 1952 (2012). 

This express grant of rulemaking authority gives the BIA broad 

discretion to interpret and implement ICWA.4 The BIA’s 

 

4. Immediately following the passage of ICWA, in 1979, the BIA 

issued guidelines representing the BIA’s interpretation of ICWA 

and providing procedures designed to “help assure that rights 

guaranteed by [ICWA] are protected when state courts decide 

Indian child custody matters,” Guidelines for State Courts in 

Indian Child Custody Proceedings (1979 Guidelines), 44 Fed. 

Reg. 67,584 (Nov. 26, 1979). In the course of the notice-andcomment period for the 1979 Guidelines, “[s]everal commenters 

remarked . . . that the Department [of the Interior] had the 

authority to issue regulations and should do so.” Final Rule, 81 

Fed. Reg. 38,777, 38,784 (June 14, 2016). Nevertheless, “[t]he 

Department declined to issue regulations” at that time, id., and 

made it clear in its introduction to the 1979 Guidelines that they 

(continued...)
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(...continued)

were not intended to have binding legislative effect and were 

issued primarily to assist state courts in their implementation of 

ICWA, see 1979 Guidelines, 44 Fed. Reg. at 67,584. The BIA 

explained that while “[p]ortions of [ICWA] do expressly 

delegate to the Secretary of the Interior responsibility for 

interpreting statutory language[,] . . . [p]rimary responsibility for 

interpreting other language used in the Act . . . rests with the 

courts that decide Indian child custody cases.” Id.

In 2015, because of inconsistent implementation 

and interpretation of ICWA among the states and the fact 

that Indian children were still found in child-welfare 

proceedings at twice the rate of the general population, the 

BIA determined that it would be appropriate and necessary to 

promulgate additional and updated guidelines interpreting 

ICWA and provide uniform standards for state courts. 

See generally Jason R. Williams et al., Casey Family Programs, 

Indian Child Welfare Act: Measuring Compliance 

(2015), http://www.casey.org/media/measuring-complianceicwa.pdf [https://perma.cc/93J8-DADU]. Accordingly, the BIA 

updated its guidelines and explained that the new 2015 

Guidelines were intended to “promote compliance with ICWA’s 

stated goals and provisions by providing a framework for State 

courts and child welfare agencies to follow.” Guidelines for State 

Courts and Agencies in Indian Child Custody Proceedings, 80 

Fed. Reg. 10146–47 (Feb. 25, 2015).

Again, in the course of the notice-and-comment period, 

“[m]any commenters on the 2015 Guidelines requested not only 

that the Department update its ICWA guidelines but that the 

Department also issue binding regulations addressing the 

requirements and standards that ICWA provides for State-court 

child-custody proceedings.” Final Rule, 81 Fed. Reg. at 38,784. In 

response to this commentary, the BIA “began a notice-and-

(continued...)
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(...continued)

comment process to promulgate formal ICWA regulations.” Id.; 

see also Regulations for State Courts and Agencies in Indian 

Child Custody Proceedings (Proposed Regulations), 80 Fed. Reg. 

14,880 (March 30, 2015).

A final rule promulgating binding regulations was issued 

by the BIA in 2016, along with a new set of nonbinding 

guidelines to replace both the 1979 and 2015 Guidelines. See

Final Rule, 81 Fed. Reg. 38,777; U.S. Dep’t of Interior, Office of 

the Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, 

Guidelines for Implementing the Indian Child Welfare Act, 4–6 (2016), 

https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-05

6831.pdf [https://perma.cc/9KUE-23QU]. In its introduction to 

the 2016 Regulations, the BIA repudiated the opinion expressed 

in its 1979 Guidelines suggesting that it lacked the authority to 

promulgate binding regulations. See Final Rule, 81 Fed. Reg. at 

38,786. The BIA observed that the jurisprudence that has 

developed in the intervening years since the 1979 Guidelines 

were issued, both with respect to ICWA specifically and to the 

authority of federal agencies generally, indicates that Congress 

intended to grant the BIA authority to issue binding regulations 

interpreting ICWA. For example, in Mississippi Band of Choctaw 

Indians v. Holyfield, 490 U.S. 30 (1989), the Supreme Court 

considered whether Congress intended the definition of 

“domicile” to be left to the interpretation of individual states or 

whether it should be interpreted uniformly. See id. at 43. The 

Court concluded that Congress intended ICWA to have 

“nationwide uniformity” with respect to the definition of 

“critical term[s].” Id. at 44–45. Relying on this jurisprudence, the 

BIA concluded that Congress intended to grant it the authority 

to promulgate binding regulations to ensure uniform 

interpretation and application of important ICWA provisions. 

See Final Rule, 81 Fed. Reg. at 38,787–88. The BIA also observed 

(continued...)
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(...continued)

that “grants of rulemaking authority” similar to that granted to 

the Department of the Interior by section 1952 of ICWA “have 

been held to presumptively authorize agencies to issue rules and 

regulations addressing matters covered by the statute unless 

there is clear congressional intent to withhold authority in a 

particular area.” Final Rule, 81 Fed. Reg. at 38,785. Relying on 

such cases, the BIA concluded that ICWA’s “grant of rulemaking 

authority is broad and inclusive,” encompassing the authority to 

issue binding regulations. Id.

An agency’s assessment of its own rulemaking authority 

is not binding. See United States v. Haggar Apparel Co., 526 U.S. 

380, 387–89 (1999) (determining that the Customs Service’s 

statement that it considered its regulatory authority to be limited 

“does not suffice to displace the usual rule of Chevron deference” 

and that the agency’s use of the notice-and-comment process, in 

conjunction with a broad grant of authority to the Secretary of 

the Treasury to “establish and promulgate” necessary “rules and 

regulations,” demanded judicial deference absent express 

language limiting the Customs Service’s authority (quotation 

simplified)). Nevertheless, the BIA’s careful examination of its 

authority under ICWA is persuasive. ICWA’s express instruction 

that “the Secretary shall promulgate such rules and regulations 

as may be necessary to carry out the provisions of this chapter,”

25 U.S.C. § 1952 (emphasis added), is similar to other grants of 

rulemaking authority that have been afforded Chevron deference,

see City of Arlington v. FCC, 569 U.S. 290, 306 (2013) (observing 

the absence of “a single case in which a general conferral of 

rulemaking or adjudicative authority has been held insufficient 

to support Chevron deference for an exercise of that authority 

within the agency’s substantive field”); see also National Cable 

& Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967, 980–

81 (2005) (explaining that where an agency issues a regulation 

(continued...)
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definition of “qualified expert witness” was promulgated in 

accordance with the rulemaking power granted to it by ICWA, 

see 25 U.S.C. § 1952, and “the agency utilized the notice-andcomment rulemaking process before issuing the regulations,” see 

United States v. Haggar Apparel Co., 526 U.S. 380, 390 (1999); see 

also United States v. Mead Corp., 533 U.S. 218, 226–27 (2001)

(stating that notice-and-comment rulemaking is an indicator of 

authority entitled to Chevron deference). See generally Proposed 

Regulations, 80 Fed. Reg. 14,880 (March 20, 2015). Thus, it is 

apparent that the BIA’s regulation defining “qualified expert 

witness” fell within the scope of its congressionally granted 

authority.

3. The BIA’s Definition of “Qualified Expert Witness” Is a 

Permissible Construction of That Term.

¶18 Finally, we must decide whether the juvenile court 

correctly determined that the BIA’s definition of “qualified 

 

(...continued)

“in the exercise of [its] authority” to “promulgate binding legal 

rules,” there is “no . . . question[]” that the regulation is within 

the agency’s jurisdiction and it is therefore entitled to Chevron

deference); United States v. Mead Corp., 533 U.S. 218, 229 (2001) 

(explaining that “express congressional authorization[] to 

engage in the process of rulemaking or adjudication that 

produces regulations or rulings” is “a very good indicator of 

delegation meriting Chevron treatment”). Further, the need for 

binding regulations is apparent in light of ICWA’s purpose to 

resolve the historical problem of states failing “to recognize the 

essential tribal relations of Indian people and the cultural and 

social standards prevailing in Indian communities and families.” 

25 U.S.C. § 1901(5). Thus, we agree with the BIA that, in spite of 

its 1979 indication to the contrary, it has the authority to 

promulgate binding regulations interpreting ICWA.
In re L.L.

20170659-CA 17 2019 UT App 134

expert witness” is a permissible construction of ICWA. The 

regulation states that a “qualified expert witness must be 

qualified to testify regarding whether the child’s continued 

custody by the parent . . . is likely to result in serious emotional 

or physical damage to the child and should be qualified to testify 

as to the prevailing social and cultural standards of the Indian 

child’s Tribe.” 25 C.F.R. § 23.122(a) (2016). Determining that a 

“qualified expert witness” “should be qualified to testify as to 

the prevailing social and cultural standards of the Indian child’s 

Tribe” is consistent with Congressional intent and is reasonable. 

The purpose of promulgating ICWA in the first place is stated in 

the statute: “States . . . have often failed to recognize the essential 

tribal relations of Indian people and the cultural and social 

standards prevailing in Indian communities and families.” 25 

U.S.C § 1901(5). Consequently, “an alarmingly high percentage 

of Indian families are broken up by the removal, often 

unwarranted, of their children from them.” Id. § 1901(4). The 

BIA’s determination that a qualified expert should be prepared 

to testify regarding the prevailing social and cultural standards 

of the relevant Tribe certainly helps ensure that Indian children 

will not be removed from their homes based on “a white,

middle-class standard.” Mississippi Band of Choctaw Indians v. 

Holyfield, 490 U.S. 30, 37 (1989) (quotation simplified).

¶19 In addition, defining “qualified expert witness” as a 

witness capable of testifying about the relevant Tribe’s social and 

cultural standards seems entirely reasonable. A state court’s 

traditional custody concerns regarding serious emotional or 

physical damage to the child may be different in the context of 

an Indian family. “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.” 

Steven H. v. Arizona Dep’t of Econ. Sec., 190 P.3d 180, 185 (Ariz. 

2008) (en banc); see also Marcia V. v. State, 201 P.3d 496, 504 

(Alaska 2009) (“Congress intended ICWA to prevent Native 
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20170659-CA 18 2019 UT App 134

children from being separated from their families solely on the 

basis of testimony from social workers who were unable to 

distinguish between cultural variations in child-rearing practices 

and actual abuse or neglect.” (quotation simplified)).

Accordingly, it is not unreasonable to require expert testimony 

presented to a court to reflect and be informed by the cultural 

and social standards of the relevant Indian tribe. Because the 

BIA’s definition is reasonable, it is entitled to deference under 

Chevron. See Chevron, 467 U.S. at 843–45. Thus the juvenile court 

did not err in determining that the regulation was binding.

II. The Juvenile Court Misapplied the BIA’s Regulation in 

Considering the GAL’s Motion to Transfer Custody and 

Exceeded Its Discretion When It Excluded the GAL’s Witnesses 

Without Considering Their Qualifications.

¶20 While the juvenile court was right to defer to the BIA’s 

definition of “qualified expert witness” contained in the federal 

regulation, the court erred in summarily denying the GAL’s 

motion to transfer custody of Child purely on the basis that the 

GAL did not produce a witness who could testify about the 

prevailing social and cultural standards of Child’s Tribe.

¶21 The BIA’s definition contained in the 2016 Regulations

states that while a “qualified expert witness must be qualified to 

testify regarding whether the child’s continued custody by the 

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

damage to the child,” the witness “should be qualified to testify as 

to the prevailing social and cultural standards of the Indian 

child’s Tribe.” 25 C.F.R. § 23.122(a) (2016) (emphases added). The 

second part of the definition, pertaining to the witness’s 

qualification to testify regarding tribal social and cultural 

standards, uses the phrase “should be” rather than “must be.” It 

therefore grants state courts discretion to determine whether this 

type of qualification is “necessary in any particular case.” See 

Final Rule, 81 Fed. Reg. 38,777, 38,830 (June 14, 2016). In issuing 
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20170659-CA 19 2019 UT App 134

the 2016 Regulations, the BIA explained its intent in making this 

portion of the regulation discretionary:

The final rule does not . . . strictly limit who may 

serve as a qualified expert witness to only those 

individuals who have particular Tribal social and 

cultural knowledge. The Department recognizes 

that there may be certain circumstances where a 

qualified expert witness need not have specific 

knowledge of the prevailing social and cultural 

standards of the Indian child’s Tribe in order to 

meet the statutory standard. For example, a 

leading expert on issues regarding sexual abuse of 

children may not need to know about specific 

Tribal social and cultural standards in order to 

testify as a qualified expert witness regarding 

whether return of a child to a parent who has a 

history of sexually abusing the child is likely to 

result in serious emotional or physical damage to 

the child. Thus, while a qualified expert witness 

should normally be required to have knowledge of 

Tribal social and cultural standards, that may not 

be necessary if such knowledge is plainly 

irrelevant to the particular circumstances at issue 

in the proceeding.

Id. at 38,829–30 (citation omitted). This approach is consistent 

with the body of case law that developed on this issue prior to 

the enactment of the 2016 Regulations. See, e.g., Rachelle S. v. 

Arizona Dep’t of Econ. Sec., 958 P.2d 459, 461–62 (Ariz. Ct. App.

1998) (collecting cases).

¶22 Thus, while it will generally be important for a qualified

expert witness to have knowledge of tribal social and cultural 

standards, such specialized knowledge may not be necessary if 

tribal cultural standards are plainly irrelevant to the particular 
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20170659-CA 20 2019 UT App 134

circumstances at issue. “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.” Steven H. v. Arizona Dep’t of 

Econ. Sec., 190 P.3d 180, 185 (Ariz. 2008) (en banc) (quotation 

simplified); see also, e.g., In re Candace A., 332 P.3d 578, 584 

(Alaska 2014) (“When the basis for termination is unrelated to 

[Indian] culture and society and when any lack of familiarity 

with cultural mores will not influence the termination decision 

or implicate cultural bias in the termination proceeding, the

qualifications of an expert testifying under ICWA § 1912(f) need 

not include familiarity with [Indian] culture.” (quotation 

simplified)); Rachelle S., 958 P.2d at 461–62 (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).

¶23 The juvenile court determined that the GAL’s witnesses 

were not qualified as expert witnesses under ICWA solely 

because they lacked expertise in and could not testify about the 

Tribe’s culture. However, the GAL’s purported basis for moving 

to remove Child from Mother’s care may not have been 

influenced by cultural bias. Rather, the GAL sought removal

based on the potential risk to Child arising from Mother’s 

continued relationship with the person who had been convicted 

of abusing Child’s older siblings. This may well be the type of 

situation that prompted the BIA to give discretion to state courts 

to determine the necessity of qualified expert testimony 

regarding tribal cultural standards in each particular case. Thus, 

the juvenile court erred in dismissing the case without 

considering whether this was the sort of case in which the 

claimed reasons for removal were unrelated to tribal customs 

and culture. Accordingly, we reverse the court’s exclusion of the 

GAL’s witnesses and remand for further proceedings, in which 
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20170659-CA 21 2019 UT App 134

the juvenile court should assess whether the GAL’s expert 

witnesses should be allowed to testify.

III. The Juvenile Court Erred in Determining That Two of the 

Therapists Could Be Precluded from Testifying by Therapist–

Patient Privilege.

¶24 The GAL also challenges the juvenile court’s

determination that Mother’s communications with her 

individual therapist and the family therapist were privileged 

pursuant to rule 506 of the Utah Rules of Evidence.5 The GAL 

 

5. The juvenile court’s ruling on this issue is curious. The June 

27, 2017 minute order states, “Court finds Mother would have 

privilege with [Mother’s therapist] and [family therapist] 

according to Objection 506.” However, the discussion of the 

therapist–patient privilege at the hearing appears to have been 

overshadowed by the ICWA issue. Regarding privilege with 

respect to Mother’s therapist, the court stated, almost 

conversationally mid-discussion, “All right, so mom would have 

a privilege according to rule 506 for at least [Mother’s 

therapist].” The court then heard additional argument regarding 

the privilege before concluding, “I think it’s clear that there may 

be at least some testimony from some of the counselors . . . if it is 

relevant testimony. I guess, the hurdle we would need to get 

over before that, is to determine whether they are, or whether we 

have a qualified expert witness pursuant to ICWA . . . .” So from 

the oral ruling, the court seems to have neglected the issue of 

privilege due to its ultimate determination that the therapists 

were not qualified experts under ICWA. Yet the court’s written 

minute order states that the privilege existed. Given that the 

juvenile court appears to have focused less on this issue in its 

order than the expert witness issues, it is possible that further

briefing and/or argument relevant to the asserted privilege may 

be appropriate on remand.
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20170659-CA 22 2019 UT App 134

asserts that the testimony was not privileged, because the 

therapy was court-ordered and intended to address Mother’s 

parenting deficits that were directly at issue in the proceedings, 

and because Mother waived any claim of privilege by failing to 

object to the therapists’ letters at previous hearings. Appellees 

do not dispute this assertion on appeal but maintain that any 

error was harmless because the therapists were ultimately not 

qualified as experts under ICWA. Because we have determined 

that the juvenile court erred in rejecting, pursuant to ICWA, the 

testimony of the GAL’s proposed expert witnesses, Appellees’ 

harmlessness assertion is without merit.

¶25 Moreover, we agree with the GAL that the testimony of 

the therapists was not subject to therapist–patient privilege. 

Under rule 506(d) of the Utah Rules of Evidence, 

communications that are “relevant to an issue of the physical, 

mental, or emotional condition of the patient . . . in any 

proceedings in which any party relies upon the condition as an 

element of the claim or defense” are not subject to therapist–

patient privilege. Utah R. Evid. 506(d). The therapy at issue here 

was court-ordered for the purpose of addressing the concerns 

that brought Child and her siblings under the jurisdiction of the 

court. Mother’s ability to safely parent Child was directly at 

issue in the hearing on the GAL’s motion for removal and was 

the subject of the therapists’ testimonies. Thus, we can see no 

basis for concluding that the testimony of the therapists was

subject to therapist–patient privilege, and Appellees have 

pointed us to none.

¶26 Further, as the GAL has pointed out, when a patient “is in 

the position to claim the privilege and does not, it is waived.” 

State v. Anderson, 972 P.2d 86, 90 (Utah Ct. App. 1998) (quotation 

simplified). The therapists’ letters were disclosed at two hearings 

prior to the hearing on the GAL’s motion to remove Child from 

Mother’s custody. Because Mother failed to object to the 

disclosures when they were first made, she waived her right to 
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20170659-CA 23 2019 UT App 134

do so at the subsequent hearing. Accordingly, we reverse the 

court’s determination that Mother could assert therapist–patient 

privilege to exclude the testimony of Mother’s therapist and the 

family therapist.

CONCLUSION

¶27 Although the juvenile court correctly applied Chevron

deference to the BIA’s interpretation of ICWA, it did not 

correctly apply the regulation, because it rejected the GAL’s 

experts solely on the ground that they were not qualified to 

testify regarding the Tribe’s cultural standards without 

considering whether those standards had any actual bearing on 

the proposed grounds for removal. Further, the juvenile court 

erred in determining that Mother could claim therapist–patient 

privilege with respect to testimony from her therapist and the 

family therapist. We therefore reverse the juvenile court’s 

decision and remand for further proceedings consistent with this 

opinion.