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No error in admitting opinion testimony of case manager in TPR trial

State v. C.A.A., 2020AP1194, District 1, 10/13/20 (one-judge decision; ineligible for publication); case activity

At the trial on the petition to terminate C.A.A.’s parental rights, the case manager handling the CHIPS case pertaining to C.A.A.’s child testified that, in her opinion, C.A.A. would not likely satisfy the conditions of return under the CHIPS order within the 9-month period prescribed by § 48.415(2)(a)3. (2015-16) (a requirement eliminated by 2017 Wis. Act 256). (¶6 & ¶9 n.3). The court of appeals holds this was admissible lay opinion testimony.

Under § 907.01, 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.” Citing previous unpublished decisions addressing opinion testimony by case managers in TPR trials—State v. B.D.H., Nos. 2017AP2390 and 2017AP2391, unpublished slip op. (WI App Mar. 6, 2018); Dane County DHS v. J.B., No. 2016AP2422, unpublished slip op. (WI App Feb. 16, 2017); and La Crosse County DHS v. C.J.T., No. 2015AP252, unpublished slip op. (WI App Oct. 16, 2015)—the court finds no problem with the testimony of the case manager here:

¶12     …. 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.

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