## Facts

- D.S.P., an Indian child and tribal member, lived with her mother until foster care was initiated when the child was about seven months old due to the mother’s repeated absences and extended placement of the child with babysitters.
- The state initiated child-protection proceedings and warned the parents that failure to visit or maintain contact could lead to termination of parental rights for abandonment.
- The parents rarely visited and then had no contact with D.S.P. for more than one year.
- The state sought termination of both parents’ rights on the statutory ground of abandonment under Wisconsin law.
- Because the child and parents were tribal members, federal ICWA requirements applied to the termination proceeding.
- At trial, the jury was instructed to apply Wisconsin’s clear-and-convincing-evidence standard to abandonment and ICWA’s beyond-a-reasonable-doubt standard to the determination that continued parental custody was likely to cause serious emotional or physical damage.
- Two Indian social workers testified for purposes of ICWA’s qualified-expert-witness requirement; a tribal representative supported termination.

## Issues

1. Whether a termination proceeding involving an Indian child may require the jury to apply both (a) clear and convincing evidence for the state-law ground of abandonment and (b) beyond a reasonable doubt for ICWA’s serious-damage determination.
2. Whether Indian social workers may be “qualified expert witnesses” under ICWA, or whether testimony from a licensed psychologist or psychiatrist is required.
3. Whether the evidence, including expert testimony, was sufficient to prove beyond a reasonable doubt that continued parental custody was likely to result in serious emotional or physical damage to the child.

## Decision

- The court affirmed the termination orders.
- The circuit court properly instructed on dual burdens of proof: clear and convincing evidence for abandonment under state law and beyond a reasonable doubt for ICWA’s serious-damage finding.
- The circuit court did not err in treating the two Indian social workers as ICWA qualified expert witnesses; the separate state-law requirement for psychologist/psychiatrist testimony in specified child-protection proceedings did not control this termination action.
- The evidence was sufficient to support the jury’s beyond-a-reasonable-doubt determination that continued parental custody was likely to cause serious emotional or physical damage.

## Legal Principles

- ICWA sets minimum federal standards for terminating parental rights to an Indian child; state law may supply additional or different protections without being displaced.
- In an ICWA termination case, a state may require proof of the state-law ground for termination by clear and convincing evidence while also requiring ICWA’s separate serious-damage determination to be proven beyond a reasonable doubt.
- ICWA’s “qualified expert witness” requirement may be satisfied by witnesses with substantial knowledge of the tribe’s social and cultural child-rearing standards; licensure as a psychologist or psychiatrist is not categorically required by ICWA.
- The ICWA serious-damage finding must rest on evidence showing a likelihood (not speculation) that continued parental custody will cause serious emotional or physical harm, supported by qualified expert testimony.

## Conclusion

The court upheld termination of parental rights, holding that ICWA permits applying a dual-burden framework (state-law grounds by clear and convincing evidence and ICWA harm by proof beyond a reasonable doubt), that tribally knowledgeable social workers can qualify as ICWA expert witnesses, and that the record supported the required serious-damage finding.


In re Interest of D.S.P., 480 N.W.2d 234 (Wis. 1992)