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Child protective services case worker properly allowed to give lay opinion testimony

State v. B.D.H., 2017AP2390 & 2017AP2391, District 1, 3/6/18 (one-judge decision; ineligible for publication); case activity

At B.D.H.’s TPR trial her case worker testified that, in her opinion, B.D.H. wouldn’t be able to meet the conditions set by a CHIPS order for the return of her children within the statutory timeframe. The testimony was admissible under § 907.01, which allows lay opinion testimony 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….”

B.D.H. objected to the case worker’s testimony on this topic in a motion in limine, which the circuit court decided before trial. (¶12).

¶15    In making its rulings on the motions in limine, the trial court distributed to the parties a document that provided its rulings. This document included a ruling that a case manager is permitted to offer opinion testimony as a lay witness regarding whether the parent is likely to meet the conditions of the CHIPS dispositional order within the nine-month period following the trial. See Wis. Stat. § 48.415(2)(a)3. The trial court noted in this document that the social worker’s opinion, “while informed by their education, experience and training, is primarily based on personal knowledge and interaction with the client,” and is therefore considered to be lay witness testimony. The trial court further stated, during a hearing on the motions in limine, that the case manager’s opinion testimony as a lay witness still required proper foundation before it would be admitted.

¶16     We find this to be a reasonable basis for the trial court’s determination. The State elicited testimony from [the case worker] regarding her background and her experience, as well as her work with B.D.H., which provided proper foundation for her opinion testimony. Furthermore, we agree with the trial court that this issue falls within the understanding of a reasonable juror, and thus establishing [the case worker] as an expert witness was not required.

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