New Mexico Supreme Court hears dispute over when tribal cultural testimony can satisfy ICWA's expert‑witness requirement

The Supreme Court of the State of New Mexico heard argument in CYFD of New Mexico v. Douglas B., focusing on whether tribal cultural testimony may establish the causation required by the Indian Child Welfare Act (ICWA) for a child’s continued custody to be found likely to cause serious emotional or physical damage.

Robert Rutherford, counsel for the Children, Youth, and Family Department, told the court Abigail — then 12 — testified and “causally linked the parents' behavior to her self harming, her suicidal ideation, and her depression,” arguing that the tribal expert’s testimony and other evidence together provided substantial support for the trial court’s findings. Rutherford urged the court to overturn the Court of Appeals’ reading that he said “emphasizes non‑native academic credentials over the specialized knowledge of the tribal cultural standards.”

Nancy Simmons, counsel for the respondent father, pushed back on whether cultural familiarity alone satisfies the statute’s damage‑causation requirement. Citing 25 U.S.C. §1912(e), Simmons said the statute “says that no foster care placement may be ordered in the absence of a determination supported by clear and convincing evidence including testimony of qualified expert witnesses that the child's continued custody by the parent ... is likely to result in serious emotional or physical damage,” and argued that the statutory text does not expressly make cultural qualification equivalent to qualification to opine on causation.

Justices pressed both sides on how to apply Bureau of Indian Affairs guidance and recent out‑of‑state decisions. Justice Vargas asked whether the tribal expert was designated by the tribe; Rutherford confirmed she “was designated by the child's tribe. She was the assigned worker from the tribe.” Other justices, including Justice Samora and Justice Thompson, explored whether trial courts must always require separate experts for culture and for damage, or whether one qualified witness can cover both prongs in appropriate cases.

The attorneys also debated evidentiary thresholds and standards of review. Counsel discussed when a social‑services worker or tribal elder might qualify as an expert under state rules, whether trial judges should give deference to tribal designations (the BIA regulations create a rebuttable presumption for tribe‑designated experts), and whether appellate review should apply an abuse‑of‑discretion standard or de novo review in ICWA qualification disputes.

Susan Baker, counsel for the respondent mother, urged upholding the Court of Appeals’ bifurcated approach and emphasized parents’ constitutional due‑process interests, arguing that reversal could require the department to re‑prove removal under ICWA standards and might lead to remand rather than outright dismissal. Department counsel warned that a remand may nonetheless require the department to re‑establish the statutory showing under ICWA using properly qualified witnesses.

No decision was announced. The court took the case under advisement and recessed. The record reflects extensive questioning about where to draw the line between cultural knowledge and mental‑health causation and whether deference to tribe‑designated experts should be rebuttable in practice.

What happens next: The court will issue a written opinion clarifying (1) how New Mexico courts should evaluate qualification of ICWA expert witnesses, (2) whether cultural testimony can be used to establish causation in particular categories of cases, and (3) the remedy if a prior adjudication based on a now‑challenged expert is reversed.