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Appellate Procedure – Harmless Error Analysis – TPR – Exclusion of Expert Opinion Testimony

Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion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.


¶71      The State’s interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.’s constitutionally protected due process right to be heard in a meaningful manner. It would have imposed no burden on the State to allow Shannon R. to present her qualified expert witnesses.¶72      In light of the important constitutional right at stake, the State’s interest in an accurate decision, the fundamental fairness of giving a party the opportunity to defend, and Shannon R.’s inability to present evidence on an issue central to the outcome of the case, we hold that the circuit court’s erroneous preclusion of Dr. Wellens’s expert opinion testimony (the only expert opinion testimony Shannon R. proffered on an issue central to her defense) denied her the due process right to present a defense and goes to the fundamental fairness of the proceeding. We therefore hold that the circuit court committed prejudicial, reversible error.

Very good discussion of right to due process generally in a TPR, particularly with regard to opportunity to mount a meaningful defense,¶¶56-67. Interestingly, the court says nothing about harmless error analysis (where the beneficiary of the error can show harmlessness by showing beyond reasonable doubt that the error didn’t impact the result). The court treats the issue as if it’s one of structural error (reversal is automatic, without regard to impact)—the parent’s fundamental right to defend against the petition was thwarted and reversal automatically follows. The court doesn’t put it that baldly, but that nonetheless seems to be the essence of it.


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