Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion
For Shannon R.: Brian C. Findley, SPD, Madison Appellate
Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.
Holding:
¶40 In deciding the issue of foundation, the circuit court seemed fixated on the psychological tests that Dr. Wellens administered and did not consider the psychologist’s experience, training, interview with Shannon R., and review of the voluminous case history. Thus the circuit court did not consider all the relevant facts.¶41 Dr. Wellens could address Shannon R.’s abilities and her future behavior based not only on his training and review of her voluminous case history but also on his personal interview with and testing of Shannon R. and from listening to the opinions of others. …
¶42 The circuit court erred by not applying the proper legal standard. It failed to recognize that courts ordinarily allow psychologists to opine about the future behavior of an individual. …
¶43 … The circuit court seemed to be saying that only those experienced or trained in social work have the expertise to testify in termination of parental rights cases about the substantial likelihood of a parent’s meeting the conditions for return of a child within the 12-month time period. Such a ruling is an error of law. Thus the circuit court erred as a matter of law in declaring that Dr. Wellens, a psychologist, would know so little about the subject that he should not be permitted to give his opinion. …
Concise summary is difficult. This is very much a fact-bound case; keep in mind that the county was allowed to ask its experts whether Shannon “would be able to meet” the conditions for return (the answer of course being, No); but that Shannon was denied the opportunity to ask her expert precisely the same question (the answer would have been, Yes). There’s a 3-vote dissent that, though mostly geared toward harmless error, does say that the trial court’s exclusion was OK. Apparently a Ph.D. in clinical psych, as well as an MA in counseling psych; a private practice focused on counseling both adults and children; and regular commitment and competency exams for the local courts (¶26) wasn’t good enough. What would have satisfied the dissent (¶¶112-19)?
