State v. C.A.A. ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 13, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP1194 Cir. Ct. No. 2019TP115
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO R.A., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
C.A.A.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
GWENDOLYN G. CONNOLLY, Judge. Affirmed.
No. 2020AP1194
¶1 DUGAN, J.1 C.A.A. appeals the order of the Milwaukee County
Circuit Court terminating his parental rights and argues that the circuit court
erroneously admitted the case worker’s testimony regarding his ability to fulfill
the conditions for his child’s return. He further argues that any error in admitting
the case worker’s testimony was not harmless. That is the sole issue on this
appeal. This court concludes that the case manager’s testimony was properly
admitted and, therefore, affirms the order.2
BACKGROUND
¶2 The State filed a petition to terminate the parental rights of C.A.A. to
his son, R.A., on July 9, 2019, alleging grounds for termination based on R.A.
being a child in continuing need of protection and services (CHIPS) and C.A.A.’s
failure to assume parental responsibility. As is relevant here, the continuing
CHIPS grounds were based on repeated incidents of domestic violence between
C.A.A. and R.A.’s mother. The petition alleged that C.A.A. continued to have
contact with R.A.’s mother despite the repeated incidents of domestic violence and
in violation of a no-contact order. The petition also alleged that C.A.A. repeatedly
failed to participate in his treatments for domestic violence and alleged that
C.A.A. routinely impeded reunification efforts because C.A.A. would cancel visits
with R.A. because he was “sick or tired.” The petition alleged that C.A.A.
generally showed a lack of motivation to meet the conditions to have R.A.
returned to his care.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
Because this court concludes that the testimony was properly admitted, we do not
address C.A.A.’s argument regarding harmless error.
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No. 2020AP1194
¶3 The conditions that C.A.A. needed to meet in order to have R.A.
returned included controlling his mental health, not allowing violence in his home,
resolving his criminal cases, and overall to put R.A.’s needs before his own and
provide a safe and stable home environment.
¶4 C.A.A. challenged the grounds for termination of his parental rights,
and the case proceeded to a jury trial. At trial, the State introduced testimony from
the case manager, Megan McDonald, regarding C.A.A.’s efforts to meet the
conditions for R.A.’s return and C.A.A.’s ability to meet the conditions in the
future. McDonald had been the case manager since November of 2018 and had
extensive experience assisting C.A.A. with measures intended to help him satisfy
the conditions for R.A.’s return.
¶5 For example, McDonald testified that she spent more time with
C.A.A. than others, but he failed to take advantage of the time she was willing to
spend with him and counsel him on how to meet the conditions for R.A.’s return.
He was also inconsistent with his visits with R.A. and would cancel his visits for
being tired or sick. McDonald testified that, as a result of his inconsistency,
C.A.A.’s visits with R.A. were not progressing. McDonald further testified that
C.A.A.’s visits could not progress to unsupervised visits because of the unhealthy
relationship C.A.A. maintained with R.A.’s mother, and that C.A.A.’s inability to
maintain a healthy relationship or to end that relationship concerned McDonald.
¶6 Ultimately, McDonald testified that C.A.A. had not met the
conditions for R.A.’s return and testified regarding C.A.A.’s ability to satisfy the
conditions in the future saying, “If I’m making my opinion on what he’s done
during the previous two years on this case, then I would have to say the likelihood
is low.” C.A.A. objected to this testimony, arguing that it was expert testimony
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No. 2020AP1194
and, therefore, not properly admitted. The circuit court overruled this objection
and allowed the testimony.
¶7 Following the trial, the jury returned a verdict finding that both
grounds for the termination of parental rights existed, and the case proceeded to
the dispositional phase of the proceedings, after which the circuit court terminated
C.A.A.’s parental rights. C.A.A. appealed and now argues that the circuit court
erroneously admitted the testimony of the case manager to prove that he would not
meet the conditions for R.A.’s return in the nine-month period following the trial,
and he further argues that this error was not harmless.
DISCUSSION
¶8 The circuit court has “broad discretion in determining the relevance
and admissibility of proffered evidence.” State v. Brecht, 143 Wis. 2d 297, 320,
421 N.W.2d 96 (1988). This court “will not set aside a discretionary ruling of the
[circuit] court if it appears from the record that the court applied the proper legal
standards to the facts before it, and through a process of reasoning, reached a
result which a reasonable judge could reach.” State v. Grindemann, 2002 WI App
106, ¶30, 255 Wis. 2d 632, 648 N.W.2d 507.
¶9 As part of the continuing CHIPS grounds for terminating C.A.A.’s
parental rights, the circuit court instructed the jury that the State was required to
prove that “there is a substantial likelihood that the parent will not meet the
conditions [of return] within the 9-month period following the fact-finding
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No. 2020AP1194
hearing.” WIS. STAT. § 48.415(2)(a)3. (2015-16).3 To do this, the State offered
the above testimony from McDonald as lay opinion testimony.
¶10 Opinion testimony from a lay witness is admissible if it is
(1) “[r]ationally based on the perception of the witness,” (2) “[h]elpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue,”
and (3) “[n]ot based on scientific, technical, or other specialized knowledge.”
WIS. STAT. § 907.01. Testimony based on scientific, technical, or other
specialized knowledge is considered expert testimony governed by WIS. STAT.
§ 907.02.
¶11 This court has previously affirmed circuit court decisions to admit
testimony from a case manager that the parent was unlikely to meet the conditions
of a child’s return as lay opinion testimony. See State v. B.D.H.,
Nos. 2017AP2390 and 2017AP2391, unpublished slip op. (WI App Mar. 6, 2018)
(concluding that a case manager’s testimony opining “that she did not believe that
[the parent] would be able to meet those conditions in the next nine months” was
properly admitted as lay opinion testimony); Dane Cnty. DHS v. J.B.,
No. 2016AP2422, unpublished slip op. (WI App Feb. 16, 2017) (concluding that
the circuit court erred in admitting case manager testimony as expert opinion); and
La Crosse Cnty. DHS v. C.J. T., No. 2015AP252, unpublished slip op. (WI App
3
We note that effective April 6, 2018, our legislature changed one of the elements of the
continuing CHIPS ground by amending WIS. STAT. § 48.415(2)(a)3. See 2017 Wis. Act 256, § 1.
The prior version of subdivision 3. required the petitioner to show, among other things, that there
was a “substantial likelihood” that the parent would not meet “the conditions established for the
safe return of the child to the home” within “the 9-month period following the fact-finding
hearing.” Our legislature eliminated the 9-month failure to meet requirement when it amended
WIS. STAT. § 48.415(2)(a)3. See 2017 Wis. Act 256, § 1. Neither party raises any issue
regarding what, if any, effect that amendment has in this case. Therefore, we do not address the
amendment.
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No. 2020AP1194
Oct. 16, 2015) (concluding that counsel was not ineffective for failing to object to
a case manager’s testimony regarding a parent’s future ability to meet the
conditions of return).
¶12 Accordingly, this court finds that the circuit court did not
erroneously exercise its discretion here when it admitted McDonald’s testimony as
lay opinion testimony. McDonald satisfied the first two requirements for lay
witness testimony by providing testimony regarding her background and
experience with this type of work, her background and experience with this case
specifically, and her repeated efforts to assist C.A.A. She then provided her
opinion, based on her perception, regarding whether C.A.A. would meet the
conditions of R.A.’s return, and she did so in order to assist the jury in determining
an element that the circuit court instructed them upon as an element the State was
required to prove for the continuing CHIPS grounds for termination. Moreover,
McDonald’s testimony “falls within the understanding of a reasonable juror” and
thus admitting McDonald as an expert is not required. B.D.H., Nos. 2017AP2390
and 2017AP2391, ¶16. Indeed, “the testimony reflected an inference that the
jurors surely would have drawn on their own.” J.B., No. 2016AP2422, ¶12.
CONCLUSION
¶13 This court concludes that the circuit court did not erroneously
exercise its discretion in admitting the case manager’s testimony. Therefore, this
court affirms the circuit court’s order terminating C.A.A.’s parental rights.
By the Court.—Order Affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
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