2019 UT App 134



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH , IN THE INTEREST OF L.L.,
A PERSON UNDER EIGHT EEN YEARS OF AGE

.

G UARDIAN AD L ITEM , Appell ant , v. S TATE OF U TAH , B.W., S.L., AND U TE M OUNTAIN U TE T RIBE , Appell ees

.

Opinion N o. 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 , Attorney s for Appellee State of Utah Emily Adams and April Erin Bradley , Attorney s for Appellee B.W. Jeffry K. Ross , Attorney for Appellee S.L.

Mark A. Flores , Attorney for Appellee Ute Mountain Ute Tribe

J UDGE M ICHELE M. C HRISTIANSEN F ORSTER authored th is Opinion , in which J UDGES D AVID N. M ORTENSEN and R YAN M. H ARRIS concurred

.

CHRISTIANSEN FORSTER , Judge:

¶1 Federal law requires that before a court can remove an Indian child from a parent’s custody, a “qualified expertIn re L.L.

20170659

- CA 2 2019 UT App 134 witness” must provide evidence that the “continued custody o f the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” 2 5 U.S.C. § 1912(e ) (2012) . The question s pr esented 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, t he attorney g uardian ad l item ( 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 f or deferring to the United States Department of the Interior, Bureau of Indian Af fairs’ ( 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 r egulation to determine whether the GAL’s wi tnesses were qualified expert witnesses p ursuant 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 furt her proceedings

.

BACKGROUND

¶3 Child is a three

- year

- old girl born in April 2016. She i s an Indian c hild as defined by ICWA because she is eligible forIn re L.L.

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- CA 3 2019 UT App 134 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 who m 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 a nd Child.

¶4 Shortly thereafter , the ju venile court received letters from three therapists who had been involved with Mother and her children. The letters expressed the therapists’ concerns about Mother’s abi lity to safely parent Child

. Consequently, i n March 2017, the GAL mov ed to remove Ch ild from Mother and return her to DCFS custody. In the motion, the GAL asserted that Mother continued to struggle with dome stic violence issues and explained that all three therapists who had submitted letters to the court had concerns about Mother’s abi lity to parent Child safely because of Mother’s continued relati onship 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 ask ed the juvenile court to

remove or transfer custody of Child because s he was a sibling

- at

risk.

¶5 The juvenile court set an evidentiary hearing on the GAL’s motion for June 27, 2017. I n preparation for that hearing , the GAL designated as expert witnesses the three therapists who

1

. The Tribe intervened in the case in February 2017.In re L.L.

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- CA 4 2019 UT App 134 had previously submitted letters to the court. Prior to the hearing, Mother and the Tribe moved to s trike 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 r egulations; specifically, the GAL had failed to designate an expert who could testify about the prevailing social and cultural standards of t he Tribe as required by the BIA regulations. 25 C.F.R. § 23.122(a) (2016)

. Mother and the Trib e also objected to the testimony of two of the therapists on the ground that Mother’s ther apist

– patient privilege rendered their testimony inadmissible

.
¶6 The GAL a rgued 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 n ot 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 wh ether 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 beca use “ qualified expert witness” i s not defined by ICWA, the court should defer to and adopt the BI A’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 becauseIn re L.L.

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- CA 5 2019 UT App 134 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 t he GAL timely appealed

.

IS SUE S AND STANDARD S 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, t he 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)

. T he 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 a doption 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, giv ing no deference to the trial court’s determination.” Price v. Armour , 949 P.2d 1251, 1254 (Utah 1997).In re L.L.

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- CA 6 2019 UT App 134 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. Se e Elk Grove Unified School Dist. v

. Newdow , 542 U.S. 1, 12 (2004) (“T he 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. , 57 2 U.S. 118 (2014) . While the mandates of ICWA are based on the fede ral gov ernment’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, s ee 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 ca ses 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 U T 55, ¶ 30, but ICWA does provide that “[i]n any case where State or Federal law applicable to a child custo dy proceeding . . . provides a higher standard of (continued...)In re L.L.

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- CA 7 2019 UT App 134 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) ; s ee also In re a doption of A.B. , 2010 UT 55, ¶¶ 32, 36, 245 P.3d 711

. T he 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 uniqu e 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 en sure that Indian child

- welfare determ inations we re not based on “a white, middle

- class standard which, in many ca ses, forecloses placement with an Indian family.” Mississippi Band of Choctaw Indian s v. Holyfield , 490 U.S. 30, 37 (1989) (quotation simplified) (citing H.R. Rep. No. 95

- 1386, at 24 (1978) )

. Congress reco gnized “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

“ fai l[ing] to recognize the essential t ribal 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 rig hts 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 a doption of B.B. , 2017 UT 59 , ¶ 67, 417 P.3d 1; see also 25 U.S.C. § 1921.

3

. ICWA is clearly concerned with th e best interests of the “Indian child,” but the phrase “best interests of Indian c hildren” in the context of ICWA is necessarily more involved than t he general “best interest s of the child” standard applicable in child welfare cases involving non

- Indian children. Under any analysis, (continued...)In re L.L.

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- CA 8 2019 UT App 134 ¶11 As part of its efforts to advance these interest s , ICWA requires that any foster care pla cement 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 t he 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 R egulati on s define “qualified expert wit ness” 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 cus tody of the child by the parent or Indian custodian is likely to result in

(...continued) a child’s physical and emotional health must be paramo unt. But under ICWA, there is an additional presumption that it is in the best interests of the “Indian chil d” 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 fundament al assumption that it is in the Indian child’s best interest that its relationship to the tribe be protected

. ” (quotation simplified) ).In re L.L.

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- CA 9 2019 UT App 134 serious emotional or phys ical 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 cultur e and childrearing practices will frequently be very valuable to the court” in determining the likely impact of parental cu stody under the standards of ICWA because “[s]pecific behavior patterns will often need to be placed in the context of the total cult ure 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. I n 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 pu rpose” of the legislative body. Marion Energy, Inc. v. KFJ Ran ch 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.” Rent

A

- 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 def erence to a federal administrative agency’s interpretation of a federal statute when i t appears that Congress has left “gaps” inIn re L.L.

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- 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). “T he 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 simplifie d) ; 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 permiss ible construction of the statute.” Chevron , 467 U.S. at 843; see also Sundquist II , 2018 UT 58, ¶ 45. That is, al though the judiciary is the final authority on issues of statutory construction, if a federal statute is not clear, our courts “have long recog nized 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

- likeIn re L.L.

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- CA 11 2019 UT App 134 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 Su ndquist 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 wi tness” 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 inten t 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,” Sun d quist 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,” i d. ¶ 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 “Qua lified Expert Witness” as Used i n ICWA Is Ambiguous.

¶16 ICWA does not define the term “qualified expert witness.” While “expert witness” is a standard term that isIn re L.L.

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- CA 12 2019 UT App 134 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 in tended 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 addres s the question , we must “ rely on other tools of statutory interpretation , ” s ee 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, t he 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 guid elines 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 Custod y Proceedings (1979 Guidelines), 44 Fed. Reg. 67,584 (Nov. 26, 1979). In the course of the notice

- a nd

comment period for the 1979 G uidelines, “[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 i n its introduction to the 1979 G uidelines that they (continued...)In re L.L.

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- CA 13 2019 UT App 134 (...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 ex pressly 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

- compliance

icwa.pdf [ https://perma.cc/93J8

- DADU] . Accordingly, the BIA updated its guidelines a nd explained that the new 2015 G uidelines were intended to “promote compliance with ICWA’s stated goals and provisions b y 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 procee dings.” Final Rule, 81 Fed. Reg. at 38,784. In response to this commentary, the BIA “began a notice

- and

- (continued...)In re L.L.

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- CA 14 2019 UT App 134 (...continued) comment process to promulgate formal ICWA regulations.” Id. ; see also Regulations for State Courts and Agencies in Indian Child Custody Proceedings (Pro posed 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 rep lace both the 1979 and 2015 G uidelines. 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 [ ht tps://perma.cc/9KUE

- 23QU] . In its in troduction to the 2016 R egulations, the BIA repudiated the opinion expressed in its 1979 G uidelines suggesting that it lacked the authority to promulgate binding regulations. See Final Rule, 81 Fed. Reg. at 38,786. The B IA observed that the jurisprudence that has developed in the in tervening years since the 1979 G uidelines 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 o f Ch o c taw 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].” I d. 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...)In re L.L.

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- CA 15 2019 UT App 134 (...continued) that “grants of rulemaking authority” similar to that granted to the Department of the Inter ior 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 bin ding. See United States v. Haggar Apparel Co. , 526 U.S. 380, 38 7

– 8 9 (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 th at 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 limi ting 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 necess ary 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,

s ee 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...)In re L.L.

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- CA 16 2019 UT App 134 definition of “qualified expert witness” was promulgated in accordance with the rulemaking power granted to it by ICWA,

s ee 25 U.S.C. § 1952, and “the agency utilized the notice

- and

comment rulemaking process before issuing the regulations,” s ee 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 Fe d. Reg. 14 , 880 (March 2 0, 2015). Thus, it is apparent that the BIA’s regulation defining “qualified expert witn ess ” fell within the scope of its c ongressionally 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 defin ition of “qualified

(...continued) “in the exercise of [its] authority” to “pr omulgate 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 congre ssional 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 appa rent in light of ICW A’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.

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- 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 seriou s 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 cu ltural standards of the Indian c hild’s Tribe” is consistent with Congressional inten t and is reasonable. The purpose of promulgating ICWA in the first place is stated in the statute: “States . . . have often fa iled 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 Chocta w 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 traditio nal custody concerns regarding serious emotional or physical damage to the child may b e 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) ; se e also Marcia V. v. St ate , 201 P.3d 496, 504 (Alaska 2009) ( “Congress intended ICWA to prevent NativeIn re L.L.

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- CA 18 2019 UT App 134 children from being separated from their families solely on the basis of testimony from soc ial workers who were unable to distinguish between cultural variations in child

- rearing practices and actual abuse o r neglect.” (quotation simplified)). Accordingly, it is not unreasonable to require expert testi mony presented to a court to reflect and be informed by the cultural and social st andards of the relevan t Indian t ribe. 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 BI A’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 so ci al and cultural st andards of Child’s Tribe.

¶21 The BIA’s definition contained in the 2016 R egulations 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

seco nd part of the definition, pertaining to the witness’s qualification to testify regarding t ribal social and cultural standards , uses the phrase “should be” rather than “must be.” It therefore grants s tate 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 issuingIn re L.L.

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- CA 19 2019 UT App 134 the 2016 R egulations, 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 no t 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 Tr ibal 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. T hus, 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. a t 38,829

– 30 (citation omitted) . This approach is consistent with the body of case law that developed on this issue prio r to the enactment of the 2016 R egulations. See, e.g. , Rachelle S. v. Arizona Dep’t of Econ. Sec. , 958 P.2d 459 , 461

– 62 (Ariz. Ct. App. 1 99 8) (collecting cases).

¶22 Thus, while it will generally be important for a qualified expert witness to have knowledge of t ribal soc ial and cultural standards, such specialized knowledge may not be necessary if tribal cultural standards are plainly irrelevant to the particularIn re L.L.

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- 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 ma y be a qualified expert witness , depending upon the basis urged for re moval.” 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) (“W hen the basis for te rmination is unrelated to [Indian] culture and socie ty 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 t hat a medical expert on “shaken

- baby syndrome” who lacked specialized knowledge of Indian culture satisfied IC WA’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 a s 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 r elationship with the person who had been convicted of abusing Child’s o lder 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 th is was the sort of case in which the claimed reasons for removal were unrelated to tribal customs and culture. Accordingly, we r everse the court’s exclusion of the GAL’s witnesses and remand for further proceedings , in whichIn re L.L.

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- 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 Cou rt Erred in Determining That Two of the Thera pists Could Be Precluded from Testifying by Therapist

– Patient Privilege.

¶24 The GAL also challenges the juvenile court ’s determination that Mother’s communication s 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 [f amily therapist] according to Objection 506.” However, t he 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 conclu ding, “I think it’s clear that there may be at least some testimony from some of the counselors . . . if it is relevant testimon y. I guess, the hurd le we would need to get over before that, is to determine whether they are, or whether we have a qualified e xpert 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 quali fied 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 appropri ate on remand.In re L.L.

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- 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
q ualified 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, w e agree w ith the G AL 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 a ny proceeding s in which any party relies upon the condi tion 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. Mot her’s ability to safely parent C hild was directly at issue in the hearing on the GAL’s motion for removal and was the subj ect of the therapists’ testimonies

. Thus, we can see no ba sis 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 wa ived.” 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 toIn re L.L.

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- 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 privile ge to exclude the testimony of Mother’s therapist and t he 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 qu alified 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 p rivilege 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.