State Ex Rel. CYFD v. Douglas B.

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: September 25, 2023

4 NO. S-1-SC-39139

5 STATE OF NEW MEXICO ex rel.
6 CHILDREN, YOUTH & FAMILIES
7 DEPARTMENT,
8 Petitioner-Respondent/Cross-Petitioner,

9 v.

10 DOUGLAS B.,
11 Respondent-Petitioner/Cross-Respondent,

12 and

13 SARA E.,
14 Respondent-Cross Respondent/Cross-Petitioner.

15 IN THE MATTER OF ABIGAIL B.,

16 Child.

17 ORIGINAL PROCEEDING ON CERTIORARI
18 Allen R. Smith, District Judge

19 Mary McQueeney, Chief Children’s Court Attorney
20 Robert Retherford, Children’s Court Attorney
21 Santa Fe, NM

22 for Petitioner-Respondent/Cross-Petitioner
1 Law Offices of Nancy L. Simmons, P.C.
2 Nancy L. Simmons
3 Albuquerque, NM

4 for Respondent-Petitioner/Cross-Respondent

5 Susan C. Baker
6 El Prado, NM

7 for Respondent-Cross Respondent/Cross-Petitioner
1 OPINION

2 THOMSON, Justice.

3 {1} The Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963,

4 places procedural safeguards on removal of Indian children from Indian families.

5 See 25 U.S.C. §§ 1902, 1911. One such safeguard is a requirement that a Qualified

6 Expert Witness (QEW) testify and that the QEW be qualified to provide certain

7 categories of testimony. 25 U.S.C. § 1912(e). These categories generally cover two

8 areas: (1) the likelihood of continued custody by the parent or Indian custodian

9 resulting in serious emotional or physical damage to the child (serious damage) and

10 (2) the prevailing social and cultural standards of the Indian child’s tribe (cultural

11 standards). 25 C.F.R. § 23.122(a) (2023).1 This opinion clarifies whether the two

12 categories of QEW testimony are analyzed independently or jointly and what

13 expertise is required. Next, we examine the particular qualifications of the QEW in

14 this case. Finally, we determine the proper remedy in this case—remand or

15 dismissal.

1
The Code of Federal Regulations is updated annually. For ease of reference,
this opinion cites the current edition of the regulations as there has been no
substantive change to the regulations cited in this opinion since 2016.
1 {2} We affirm the Court of Appeals, concluding first that courts must

2 independently analyze qualification in the two categories of required QEW

3 testimony under ICWA and that the testimony can come from one or multiple

4 experts. Second, our evidentiary rules governing expert testimony are sufficient to

5 guide a court tasked with qualifying a QEW. Applying that standard, we hold that

6 the QEW in this case was qualified to testify as to the cultural standards of the tribe.

7 However, the same QEW was not qualified to testify regarding serious damage to

8 the child. Finally, we hold that remand for a new adjudicatory hearing is the

9 appropriate remedy in this case.

10 I. BACKGROUND

11 {3} In October 2018, the Children, Youth, and Families Department (CYFD)

12 received a referral after a young girl (Child) revealed to a source that she was self-

13 harming and wanted to kill herself. Child also reported that her parents, Douglas B.

14 (Father) and Sara E. (Mother) (collectively, Parents), fought constantly, that they

15 were violent toward one another, and that Father was an alcoholic. Family members

16 expressed concern about “severe domestic violence” and about Parents abusing

17 alcohol and methamphetamine. CYFD took custody of Child and placed her with

18 her paternal aunt.

2
1 {4} Although Parents initially refused to provide information about Child’s

2 ancestry, CYFD discovered that Child was eligible for membership through Mother

3 in the Wichita and Affiliated Tribes of Oklahoma (Child’s Tribe), and Child’s Tribe

4 intervened in the case. After placing Child with her aunt, the district court held a

5 series of adjudicatory hearings to determine whether Child was abused or neglected

6 and whether to keep Child in CYFD custody under her aunt’s care.

7 {5} Kyli Ahtone was proffered by CYFD to testify as a QEW in one of the

8 adjudicatory hearings. 2 Ms. Ahtone testified that she holds a bachelor’s degree in

9 Criminal Justice and was raised as a member of the Apache Tribe of Oklahoma on

10 her tribe’s reservation. Child’s Tribe had employed Ms. Ahtone for the last five years

11 as an ICWA caseworker, and her job was to monitor state cases involving children

12 from Child’s Tribe to ensure ICWA compliance. Ms. Ahtone handled many ICWA

13 cases throughout her five years working for Child’s Tribe, but she was unable to

14 provide an exact number. She was qualified as an ICWA expert more than fifty times

15 in Oklahoma and other states, but she did not recall whether she had “ever qualified

16 as an expert in New Mexico before.” She regularly attended Child’s Tribe’s

2
It is not clear from the record whether CYFD proffered Ms. Ahtone as its
QEW or simply as a witness who is an expert on ICWA. We analyze Ms. Ahtone’s
qualifications assuming she was proffered as a QEW and suggest that CYFD clarify
this issue on remand to the district court.

3
1 ceremonies, events, and rituals and informed the district court that while her tribe’s

2 cultural norms and those of Child’s Tribe were “very similar,” there were a few ways

3 in which they differed.

4 {6} CYFD proffered Ms. Ahtone as a QEW on this foundation without specifying

5 the category of testimony for which she was proffered. Father objected, arguing that

6 Ms. Ahtone was not properly qualified as a QEW because she was not a member of

7 Child’s Tribe. CYFD responded that while the QEW could be a member of Child’s

8 Tribe, a QEW could also be a person not from Child’s Tribe, but one who “ha[s]

9 substantial experience in the delivery of child and family services to Indian people.”

10 This experience, CYFD argued, could include “knowledge of prevailing social and

11 cultural standards as well as childrearing practices of the Child’s Tribe or Indian

12 cultures.”

13 {7} Before it qualified Ms. Ahtone as an expert, the district court allowed CYFD

14 to lay additional foundation. Ms. Ahtone repeated that she had attended numerous

15 ICWA trainings. She provided more specifics to her previous testimony, adding for

16 example that she met quarterly with the foster care review board, and noted that

17 when she had any questions regarding Child’s Tribe’s culture, she referred to the

18 board. She also stated that she raises her own children in her tribe’s culture and

19 “raise[s] them as [she was] raised to follow [tribal] traditions.”

4
1 {8} CYFD then turned to questions regarding Ms. Ahtone’s understanding of the

2 familial and cultural expectations of Child’s Tribe. Ms. Ahtone appeared confused

3 by these questions. When asked about expectations for family organization and

4 operation, she stated, “we live as a regular family, the only thing different about us

5 is that, for us, we believe in different things.” CYFD attempted to rephrase and asked

6 what duties family members owed to each other and about cultural views concerning

7 arguing and disagreement. Ms. Ahtone answered that she “would probably have to

8 go off of [her] own family” and that these sorts of issues had not come up at the

9 foster review board meetings. She disclosed, “For [Child’s Tribe], I’ve never really

10 been asked that question. I’ve usually just gone on [whether] I’ve known [Child’s

11 Tribe’s] customs.”

12 {9} CYFD then moved on to question Ms. Ahtone about her understanding of her

13 own tribe’s expectations around the use of alcohol and drugs. She responded,

14 “growing up we did not have this type of situation within our family . . . , but . . . I

15 had witnessed this within [other] families” and added, “usually our families would

16 handle these situations [for] ourselves,” and “our parents gave up their children to

17 grandparents for grandparents to raise the children.”

18 {10} The district court asked Ms. Ahtone whether she had anything in writing from

19 Child’s Tribe that certified her as an expert in ICWA related matters. Ms. Ahtone

5
1 stated that she was not sure and would have to look through her records. If Child’s

2 Tribe had not certified her as an expert, she believed there were members of Child’s

3 Tribe on the foster care review board who could testify instead. The record does not

4 show that the district court ever received clarification on this issue, but the court

5 ultimately qualified Ms. Ahtone as a QEW over Parents’ objections. The district

6 court’s decision relied in part on her previous involvement in this case, her

7 experience testifying as an ICWA expert in the past, and the court’s finding that she

8 was designated by Child’s Tribe as an ICWA expert. The district court did not clearly

9 distinguish her qualifications to testify about each of the two categories of QEW

10 testimony required by ICWA.

11 {11} In a written judgment, the district court held that the return of Child to Parents

12 was likely to result in serious harm to Child and was not in Child’s best interest. It

13 noted that “[a]ctive efforts ha[d] been made to provide remedial services and

14 rehabilitative programs designed to prevent the breakup of the Indian family and

15 [that] such efforts ha[d] been unsuccessful,” and it ordered continued custody by

16 CYFD. The judgment did not mention the cultural standards testimony required of

17 a QEW under ICWA nor did it provide a reason why cultural standards testimony

18 may not be required in this instance. Parents each appealed.

6
1 {12} In a consolidated opinion, the Court of Appeals reversed. State ex rel. CYFD

2 v. Douglas B., 2022-NMCA-028, ¶¶ 1-2, 511 P.3d 357. It held that serious damage

3 to the child and cultural standards of the Indian child’s tribe are subjects requiring

4 QEW testimony and that qualifications of an expert on these subjects must be

5 analyzed independently. Id. ¶¶ 17-18. It affirmed the district court’s qualification of

6 Ms. Ahtone as an expert on cultural standards. Id. ¶ 29. However, it concluded that

7 the district court abused its discretion in qualifying Ms. Ahtone as an expert on

8 serious damage to the child. Id. ¶ 35. In the absence of reliable testimony by a QEW,

9 the Court of Appeals reversed the district court’s abuse and neglect adjudication. Id.

10 ¶ 35. The Court of Appeals remanded the case to the district court for proceedings

11 applying its interpretation of the QEW requirements under State ex rel. CYFD v.

12 Marlene C. (In re Esther V.), 2011-NMSC-005, 149 N.M. 315, 248 P.3d 863.

13 Douglas B., 2022-NMCA-028, ¶ 37. Father filed a petition for certiorari while

14 Mother and CYFD filed separate cross-petitions, all of which this Court granted.

15 II. DISCUSSION

16 A. Standard of Review

17 {13} Interpretation of ICWA and its relationship to New Mexico law presents a

18 question of law that we review de novo. Esther V., 2011-NMSC-005, ¶ 14. “Our

19 overarching goal when interpreting ICWA is to effectuate Congress’s intent.” Id. ¶

7
1 15. In discerning legislative intent, “we look first to the plain language of the statute,

2 giving the words their ordinary meaning.” Flores v. Herrera, 2016-NMSC-033, ¶ 8,

3 384 P.3d 1070 (internal quotation marks and citation omitted). “The text of ICWA

4 is the primary indicator of congressional intent, and to the extent that the language

5 of the statute is clear and unambiguous, we must give effect to that language and

6 refrain from further statutory interpretation.” Esther V., 2011-NMSC-005, ¶ 15

7 (internal quotation marks and citation omitted).

8 B. The Two Categories of QEW Testimony Required by ICWA

9 {14} ICWA was designed in part to respond to the fact that “an alarmingly high

10 percentage of Indian families are broken up by the removal, often unwarranted, of

11 their children from them by nontribal public and private agencies.” 25 U.S.C. §

12 1901(4). “States, exercising their recognized jurisdiction over Indian child custody

13 proceedings through administrative and judicial bodies, have often failed to

14 recognize the essential tribal relations of Indian people and the cultural and social

15 standards prevailing in Indian communities and families.” 25 U.S.C. § 1901(5). In

16 recognition of these issues, ICWA imposes procedural safeguards for removal of an

17 Indian child from an Indian family, including a statutory requirement for QEW

18 testimony:

19 No foster care placement may be ordered in such proceeding in the
20 absence of a determination, supported by clear and convincing

8
1 evidence, including testimony of qualified expert witnesses, that the
2 continued custody of the child by the parent or Indian custodian is likely
3 to result in serious emotional or physical damage to the child.

4 25 U.S.C. § 1912(e). In promulgating regulations to implement Section 1912(e), the

5 Bureau of Indian Affairs (BIA) offered insight into the considerations behind the

6 two testimony requirements by stating, “In passing ICWA, Congress wanted to make

7 sure that Indian child-welfare determinations are not based on a white, middle-class

8 standard which, in many cases, forecloses placement with [an] Indian family.”

9 Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38777, 38829 (Dec. 12, 2016)

10 (codified at 25 C.F.R. pt. 23) (alteration in original) (internal quotation marks and

11 citation omitted).

12 {15} The BIA regulations (Regulations) link the two categories of testimony by

13 noting that the question whether continued custody by a parent or Indian custodian

14 “is likely to result in serious emotional or physical damage to the child is one that

15 should be examined in the context of the prevailing cultural and social standards of

16 the Indian child’s Tribe.” Id. There are, however, “certain circumstances where a

17 qualified expert witness need not have specific knowledge of the prevailing social

18 and cultural standards of the Indian child’s Tribe in order to meet the statutory

19 standard.” Id. at 38829-30. Ultimately, “the [Regulations] still provide[] State courts

9
1 with discretion to determine what qualifications are necessary in any particular

2 case.” Id. at 38830.

3 {16} CYFD argues that, in general, the cultural standards category of testimony

4 should be considered jointly with the serious damage category because the plain

5 language of federal regulations promulgated to implement § 1912(e) provides that

6 the serious damage component should be considered in light of the Indian child’s

7 tribe’s cultural standards. CYFD suggests that the Regulations do not explicitly

8 provide for separately weighing the cultural standards requirement and the serious

9 damage requirement. In contrast, Parents highlight the plain language of the

10 Regulations and argue that the two qualification categories are separate and, as a

11 result, whether a particular expert is qualified to testify as to each type of testimony

12 is determined independently.

13 {17} On this question, the Court of Appeals concluded that the “definition

14 promulgated by the BIA . . . splits the ICWA expert [testimony] requirement into

15 two separate components.” Douglas B., 2022-NMCA-028, ¶ 17. While CYFD is

16 correct that the plain language of the statute does not include a strict requirement

17 that one expert be qualified to testify about both cultural standards and serious

18 damage to the child, the Regulations highlight and consistently reference the

19 importance of providing testimony about the cultural standards of the tribe. See 81

10
1 Fed. Reg. 38779 (“State agencies and courts had often failed to recognize the

2 essential tribal relations of Indian people and the cultural and social standards

3 prevailing in Indian communities and families.”); id. at 38780 (noting that one of the

4 four leading factors contributing to high rates of Indian child removal was “a lack of

5 culturally competent State child-welfare standards for assessing the fitness of Indian

6 families”); id. at 38784 (“ICWA helps ensure that State courts incorporate Indian

7 social and cultural standards into decision-making that affects Indian children.”); id.

8 at 38829 (“[E]xpert testimony presented to State courts should reflect and be

9 informed by those cultural and social standards.”). Although the BIA regards

10 cultural testimony as important, it clarified that if there are multiple experts in the

11 case, they may each be qualified separately to testify about either cultural standards

12 or serious damage; one, however, must testify about serious damage. See id. at 38831

13 (“The court may accept expert testimony from any number of witnesses, including

14 from multiple qualified expert witnesses . . . [where] at least one qualified expert

15 witness must address the issue of whether continued custody of the child by the

16 parent or Indian custodian is likely to result in serious emotional or physical damage

17 to the child . . . and that the qualified expert witnesses should be qualified to testify

18 as to the prevailing social and cultural standards of the Indian child’s Tribe.”

19 (emphasis added)).

11
1 {18} Ultimately, the BIA left the determination of whether testimony about cultural

2 standards is necessary in a particular case to the discretion of the court and noted

3 that cultural testimony is not necessary where it is “plainly irrelevant to the particular

4 circumstances at issue in the proceeding.” Id. at 38830. For example, it referenced

5 situations where a child is a victim of sexual abuse, explaining that “a leading expert

6 on issues regarding sexual abuse of children may not need to know about specific

7 Tribal social and cultural standards in order to testify as a qualified expert witness

8 regarding whether return of a child to a parent who has a history of sexually abusing

9 the child is likely to result in serious emotional or physical damage to the child.” Id.

10 In this situation, and other very limited similar situations, cultural standards

11 testimony is not strictly required in order to determine that the abuse caused serious

12 damage to the child. See id. This does not mean, however, that even in these limited

13 situations, a court is released from its obligation to qualify a QEW—whether one or

14 several—separately on the two categories identified in the Regulations. We apply

15 this separate approach to the qualification of the expert in this case.

16 C. Standard for Qualification of a § 1912(e) Expert

17 {19} As in other areas of expert testimony, the standard for qualification of a QEW

18 exists in our rules of evidence, which provide,

19 A witness who is qualified as an expert by knowledge, skill, experience,
20 training, or education may testify in the form of an opinion or otherwise

12
1 if the expert’s scientific, technical, or other specialized knowledge will
2 help the trier of fact to understand the evidence or to determine a fact
3 in issue.

4 Rule 11-702 NMRA. There are three requirements for experts to be qualified under

5 Rule 11-702. State v. Alberico, 1993-NMSC-047, ¶¶ 43-45, 116 N.M. 156, 861 P.2d

6 192. They must (1) be qualified “by knowledge, skill, experience, training, or

7 education,” (2) present an opinion based on their “scientific, technical, or other

8 specialized knowledge,” and (3) be helpful to the trier of fact in understanding the

9 evidence or determining a fact at issue. Id. (internal quotation marks and citation

10 omitted). Our evidentiary rules combined with the standard announced in Alberico

11 provide sufficient guidance to our courts to qualify a QEW in an ICWA proceeding.

12 1. Category 1: serious damage

13 {20} “For a foster-care placement . . . , the evidence must show a causal

14 relationship between the particular conditions in the home and the likelihood that

15 continued custody of the child will result in serious emotional or physical damage

16 to the . . . child.” 25 C.F.R. § 23.121(c) (2023). The QEW’s role is to assist the trier

17 of fact with the causation element of the serious damage requirement. The BIA

18 implementation guidelines further explain that an expert witness who is qualified to

19 draw this causal connection must have “‘expertise beyond normal social worker

20 qualifications.’” U.S. Dep’t of the Interior, BIA, Guidelines for Implementing the

13
1 Indian Child Welfare Act, 53-54 (quoting H.R. Rep. No. 95-1386, at 22 (1978)).

2 Various justifications for this standard include the concern that many social workers

3 who lack understanding of Indian cultural values and social norms make decisions

4 without proper context and “frequently discover neglect or abandonment where none

5 exists.” H.R. Rep. 95-1386, at 10. We construe this guidance along with the plain

6 meaning of 25 U.S.C. § 1912(e),3 to require that a court not accept an expert based

7 simply on a social work degree but must require expertise beyond the normal social

8 worker qualification. See 81 Fed. Reg. 38780 (reporting that “‘social workers,

9 ignorant of Indian cultural values and social norms, ma[d]e decisions that [we]re

10 wholly inappropriate in the context of Indian family life and so they frequently

11 discovere[d] neglect or abandonment where none exist[ed]’”) (alterations in

12 original) (quoting H.R. Rep. 95-1386, at 10); see, e.g., I.P. v. Wisconsin (In re

13 Interest of D.S.P.), 480 N.W.2d 234, 240 (1992) (affirming as a QEW, a testifying

14 social worker who was a member of the petitioner’s tribe, who “was reared in the

15 tribal tradition,” who “has reared eight children in the tribal tradition,” and who was

16 “one of the drafters of the ICWA at the federal level”).

3
Although this case involves an adjudicatory hearing, our holding also applies
to termination hearings under 25 U.S.C. § 1912(f).

14
1 {21} This does not mean, however, that someone like Ms. Ahtone who has other

2 education, including significant ICWA training, could not be qualified as a QEW

3 due to absence of a social work degree. “[T]he proper initial inquiry for the

4 admissibility of expert opinion testimony, or any evidence for that matter, is the

5 purpose for which it is being offered.” Alberico, 1993-NMSC-047, ¶ 71. A court’s

6 inquiry into whether an expert is qualified to give an opinion is guided by that

7 expert’s qualification to assist a trier of fact to understand the causal connections

8 described in ICWA regulations, 25 C.F.R. § 23.121(c). This is why a “trial judge has

9 wide discretion to determine whether a witness is qualified to give testimony as an

10 expert, and no set criteria can be laid down to test [such] qualifications.” State v.

11 Sloan, 2019-NMSC-019, ¶ 42, 453 P.3d 401 (alteration in original) (internal

12 quotation marks and citation omitted). “Appellate courts review the qualification of

13 an expert for an abuse of discretion.” Id. We turn now to whether Ms. Ahtone was

14 qualified to testify as a QEW.

15 {22} At the time of the hearing, Ms. Ahtone worked for Child’s Tribe as an ICWA

16 caseworker, and she stated that her job was to monitor state cases involving children

17 from Child’s Tribe to ensure compliance with ICWA. She testified about her

18 education and experience working with ICWA cases and her attendance at multiple

19 ICWA trainings. In this case, Child was allegedly exposed to substance abuse and

15
1 domestic violence, and she was allegedly engaging in self-harm and experiencing

2 suicidal ideation. None of Ms. Ahtone’s testimony demonstrated that she had

3 expertise, or even experience, in these areas. CYFD never asked Ms. Ahtone to

4 explain the subject matter of her previous expert testimony, whether her ICWA

5 training covered the topics presented, or whether she had been taught how to

6 determine whether certain types of abuse were likely to manifest self-harm or

7 suicidal thoughts. In other words, CYFD did not link Ms. Ahtone’s training,

8 education, or experience to the required “causal relationship between the particular

9 conditions in the home and the likelihood that continued custody of [C]hild will

10 result in serious emotional or physical damage to [Child].” 25 C.F.R. § 23.121(c).

11 {23} We therefore agree with the Court of Appeals that CYFD did not lay the

12 proper foundation required by Rule 11-702 to qualify Ms. Ahtone to testify about

13 serious damage to Child, Douglas B., 2022-NMCA-028, ¶ 30, and we hold that the

14 district court abused its discretion in allowing Ms. Ahtone to testify on this subject.

15 2. Category 2: cultural standards

16 {24} With regard to the cultural standards testimony, the BIA procedural guidelines

17 provide that a “a qualified expert witness should have specific knowledge of the

18 Indian tribe’s culture and customs” and then set out a list of persons who, “in

19 descending order [based on various levels of experience and knowledge], are

16
1 presumed to meet the requirements for a qualified expert witness,” including a

2 “member of another tribe who is recognized to be a qualified expert witness by the

3 Indian child’s tribe based on [that witness’s] knowledge of the delivery of child and

4 family services to Indians and the Indian child’s tribe.” Guidelines for State Courts

5 and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146, 10157 §

6 D.4 (Feb. 25, 2015). Experts who meet one of those requirements are presumably

7 qualified as QEWs. Id.

8 {25} In considering the BIA procedural guidelines’ approach, to the extent that the

9 witness was designated by Child’s Tribe as its ICWA expert, that witness would be

10 “presumed to meet the requirements” for testifying as a QEW about Child’s Tribe’s

11 cultural standards. Id. The district court found that Ms. Ahtone was designated by

12 the Tribe as its ICWA expert. This finding is supported by substantial evidence in

13 the record, including Ms. Ahtone’s statement to the district court that she was

14 designated by the Tribe, her five years of employment by the Tribe, and the notice

15 she sent that Child “is . . . eligible for membership in the [Tribe]” and that the Tribe

16 “intend[ed] to intervene” in the case, which was on the Tribe’s letterhead. Therefore,

17 Ms. Ahtone was qualified as a QEW to testify about the cultural standards of the

18 Tribe. See 80 Fed. Reg. 10157 § D.4.

17
1 {26} While we affirm the Court of Appeals on this category of testimony based on

2 Ms. Ahtone’s designation by Child’s Tribe, we emphasize that knowledge about a

3 tribe’s spiritual customs and ceremonial events is not necessarily sufficient to qualify

4 an expert to testify about the tribe’s societal and cultural attitudes surrounding

5 familial relationships. The BIA procedural guidelines emphasize consideration of

6 the tribe’s cultural standards regarding raising children. See id. If a witness is not

7 presumably qualified by having been designated by the tribe, the BIA procedural

8 guidelines go on to list two options for persons to become presumably qualified to

9 meet the requirements of a QEW, both of which require the person to have

10 “knowledge of prevailing social and cultural standards and childrearing practices

11 within the Indian child’s tribe.” Id. § D.4 (b)(3), (4). Parties should take care to lay

12 sufficient foundation to meet these requirements.

13 D. The Proper Remedy Is to Remand to the District Court for Further
14 Proceedings

15 {27} Having determined that Ms. Ahtone was not qualified to testify as a QEW, we

16 clarify the remedy. “Ordinarily, appellate reversal on substantive grounds of an

17 adjudication of abuse or neglect results in the dismissal of the petition and a remand

18 to the district court, which retains jurisdiction to determine whether the parent

19 prevailing on appeal should regain custody of the child.” Esther V., 2011-NMSC-

20 005, ¶ 48 (internal quotation marks and citation omitted). However, in Esther V., this

18
1 Court remanded a similar case instead of dismissing because (1) the case decided an

2 issue of first impression, (2) CYFD “made a good faith effort to comply with the

3 letter and spirit of ICWA,” and (3) “requiring CYFD to begin the process anew . . .

4 by bringing new allegations of abuse or neglect neither promotes judicial economy

5 nor protects [the child’s] best interests.” Id. ¶ 49. Parents argue that this case should

6 be dismissed under State ex rel. CYFD v. Benjamin O, 2007-NMCA-070, 141 N.M.

7 692, 160 P.3d 601, while CYFD argues that this case should be remanded because,

8 as in Esther V., it is an issue of first impression that clarifies a procedural issue.

9 Parents respond that Ms. Ahtone’s nonqualification as a QEW is not procedural but

10 substantive because it constitutes a failure by CYFD to prove an element in its prima

11 facie case and therefore that the case should be dismissed.

12 {28} In this case, as a procedural matter and a matter of first impression, we clarify

13 that ICWA sets forth two distinct testimony requirements for QEWs, and we reverse

14 the neglect and abuse adjudications upon a determination that the record did not

15 support the district court’s qualification of Ms. Ahtone to testify as an expert

16 regarding serious damage to the Child. CYFD acted in good faith to comply with

17 ICWA, its error being conflation of the cultural standards testimony requirements

18 with the serious damage to the child requirements. If we were to order dismissal of

19 the abuse and neglect petition, “CYFD would be precluded from bringing the same

19
1 potentially meritorious allegations in a new petition but instead would have to decide

2 whether it had grounds to supplement the original petition or file a new petition with

3 different allegations of abuse or neglect.” Esther V., 2011-NMSC-005, ¶ 49. Remand

4 is in the interest of judicial economy because there is a possibility that Ms. Ahtone

5 could qualify to testify as a QEW if the proper foundation is laid under this Court’s

6 guidance. We conclude, as this Court did in Esther V., “that requiring CYFD to begin

7 the process anew in this case by bringing new allegations of abuse [and] neglect

8 neither promotes judicial economy nor protects Child’s best interests.” Id. We

9 therefore affirm the Court of Appeals and remand this case to the district court for a

10 new adjudicatory hearing.

11 III. CONCLUSION

12 {29} We affirm the Court of Appeals’ conclusions that the two testimony

13 requirements for QEWs under ICWA are separate and that Rule 11-702 supplies the

14 proper standard for qualification. We affirm the Court of Appeals’ holding that Ms.

15 Ahtone is not qualified to testify as to serious damage to Child. We also affirm the

16 Court of Appeals’ holding that Ms. Ahtone was qualified to testify as to the cultural

17 standards of Child’s Tribe. Finally, we remand to the district court for a new

18 adjudicatory hearing.

19 {30} IT IS SO ORDERED.

20
1
2 DAVID K. THOMSON, Justice

3 WE CONCUR:

4
5 C. SHANNON BACON, Chief Justice

6
7 MICHAEL E. VIGIL, Justice

8
9 JULIE J. VARGAS, Justice

10
11 BRIANA H. ZAMORA, Justice

21