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Court of appeals rejects challenges to expert opinion and “failure to assume parental responsibility” instruction in TPR appeal

State v. S.D., 2016AP1701-1702, 7/5/17, District 1, (1-judge opinion, ineligible for publication); case activity

This TPR appeal raises a number of interesting issues ranging from a Daubert challenge to the State’s psychologist and “parenting capacity assessment” to an ineffective assistance of counsel claim for failure to raise an “unconstitutional as applied” challenge to the standard jury instruction on “failure to assume parental responsibility.”

Daubert. Sandra, the mom whose rights were terminated, filed a postdispotion motion arguing that the testimony of the State’s psychologist, Dr. Michelle Iyamah, did not satisfy Daubert and §907.02. Postdisposition, Sandra offered the testimony and report of a rebuttal expert, Dr. Charles Thompson, who opined that Dr. Iyamah’s scientfically unsound and unreliable. For example, some of her tests yielded “invalid results.” Also, Dr. Iyamah has not done longitudinal studies on the families she evaluates in order to check the correctness of her opinions. And she acknowledged that Sandra’s poor reading skills could have affected the accuracy of her test results.

Relying on Seifert v.Balink (SCOW’s recent split on Daubert) and stressing that trial courts are to be “flexible” when applying Daubert to clincians, the court of appeals upheld the trial court’s decision to admit Dr. Iyamah’s report and opinion testimony:

¶19 . . . [The trial court] noted that she had twenty years’ experience in clinical psychology, and that she relied on a methodology developed for child welfare cases in Illinois that has been extensively reviewed professionally and tested in the courts numerous times in Illinois and Milwaukee County. The court held that the expert’s testimony would be helpful to the trier of fact as to diagnoses and key recommendations. The court noted that the State’s expert would be subject to cross-examination at trial by Sandra’s trial counsel on the expert’s qualifications and methods, and their scientific validity.

¶20 Responding specifically to Sandra’s attorneys’ attacks on the test results, the trial court concluded that Dr. Iyamah had made reasonable responses to Sandra’s concerns. Although Dr. Iyamah acknowledged the invalidity of certain tests, she attributed it to Sandra’s lack of openness or truthfulness. She explained the lack of longitudinal studies on the fact that as a clinician, she does not do follow-up studies. And as to Sandra’s reading level, the trial court noted that Dr. Iyamah said she was aware of the problem and read and explained the questions to Sandra.

¶21 Based on all of this, the trial court found that Dr. Iyamah had provided sufficient data using acceptable tools for her expert opinion to be more than ipse dixit (essentially, “because I said so”) testimony. Then, after initially indicating that all of Dr. Iyamah’s testimony might come in, the trial court reconsidered after trial counsel’s argument and excluded Dr. Iyamah’s “poor prognosis” testimony. This careful parsing of the testimony reveals the trial court’s thoughtful and fair exercise of discretion.

Ineffective assistance of trial counsel for failure to retain an expert. Trial counsel did not retain a rebuttal expert, such as Dr. Thompson, to challenge the many problems with Dr. Iyamah’s testing and opinion. Trial counsel testified that she opted not to because the report would not have been confidential–it would have been shared with the State. Plus she knew that Sandra had been the subject of 3 previous evaluations, all of which showed that she had impaired cognitive functioning. Trial counsel said she had no reason to believe a new report would yield a different result. Thus, she focused her efforts on impeaching Dr. Iyamah’s credibility and, as noted above, succeeded in getting some of her opinion excluded.

The court of appeals held that trial counsel had a “cogent reason” for not retaining an expert. Op. ¶28. And her success in getting the trial court to exclude part of Dr. Iyamah’s opinion displayed “competent representation in any view.” Op. ¶30. The court also criticized Dr. Thompson, noting that he had never actually examined Sandra. He just disagreed with Dr. Iyamah’s testing and results. Op.¶31. Furthermore, said the court of appeals, if Dr. Iyamah had been precluded from testifying there was no reasonable probaility of a different outcome. Lots of other evidence supported the State’s case against. Op. ¶¶32-36.

Failure to object to the standard “failure to assume parental responsibility” instruction. Wis JI–Children 346, derived from §48.415(6), provides:

To establish failure to assume parental responsibility, the State of Wisconsin must prove by evidence that is clear, satisfactory, and convincing to a reasonable certainty that [Sandra] has not had a substantial parental relationship with [Quentin, Justine, Karl and Delia] …. The term [“]substantial parental relationship[”] means the acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of the appropriate child or children. Substantial parental relationship is assessed based on the totality of circumstances throughout the child’s entire life. (Emaphsis supplied).

Sandra argued that this instruction is unconstitional as applied to her. She couldn’t satisfy these requirements because her kids had been removed from her home. See Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845 (termination of parent’s rights because her incarceration prevented failure to meet condition for return of child violates substantive due process. The court of appeals holds that Jodie W. is limited to the situation where the parent is incarcerated. Op. ¶¶42-43.  And where the plain language of the statute says “daily supervision, education and care” of the child it doesn’t mean literally “daily.”  It means “totality of the circumstances in the child’s entire life.” In any case, Sandra allegedly did not develop an argument as to how the word “daily” harmed her. Op. ¶43.

The court of appeals seems to be missing the larger point of Jodie W. A person has a substantive due process right to parent her (or his) child. The State can’t prevent a person from parenting and then terminate her parental rights for being a bad parent. That’s the essence of Jodie W. The same should be true if the State called the mom up for national guard duty or took any other measure to prevent her from meeting the conditions for return of her child or otherwise assuming parental responsibility. Perhaps SCOW will take a closer look at the court of appeals’ cramped reading of Jodie W.

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