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TPR – opinion testimony by case manager

State v. Gloria C., 2012AP1693 and 2012AP1694, District 1, 2/5/13; court of appeals decision (1-judge, ineligible for publication); case activity

Trial counsel was not ineffective for failing to object to the opinion testimony of the parent’s ongoing case manager, who said that based on the parent’s conduct in the preceding two years, she would not be able to meet the conditions necessary for the return of her children within nine months. The court concludes the case manager was qualified as an expert based on his background, education and experience: He is a licensed social worker with a Bachelor’s degree in the field and had been working as Gloria’s ongoing case manager for over two years, during which he observed that she had been unable to provide stable housing, budget her finances, and make the changes necessary to meet the full-time needs of all her kids. His education and experience with Gloria, therefore, gave him specialized knowledge and expertise as to Gloria C.’s ability to meet the conditions necessary for the return of her children, and his conclusion that it was unlikely she would meet the conditions was rationally based on facts he had observed. (¶11).

The court also notes that Gloria’s case commenced before Rule 907.02 was amended to adopt the so-called Daubert standard, so the amended rule did not apply here. (¶11 n.3). It is not clear the case manager would be an expert who is applying “principles and methods” to the facts under the amended rule, though his opinion might still be admissible lay opinion under Rule 907.01.

The court also concludes that even if trial counsel should have objected to the case manager’s opinion testimony, there is no reasonable probability that the outcome of Gloria C.’s trial would have been different. Not only does the record contain overwhelming evidence supporting the jury’s finding that Gloria C. was unable to meet the conditions of her children’s return within nine months, but the jury also found that Gloria C. failed to assume parental responsibility—a termination ground independent of the continuing CHIPS order. (¶¶12-13).

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