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Erroneous admission of social worker’s expert testimony on ultimate issue was harmless

Dane County D.H.S. v. J.B., 2016AP2422, District 4, 2/16/17 (1-judge opinion, ineligible for publication); case activity

To terminate parental rights based on the “continuing CHIPS” ground, the jury had find that there was a substantial likelihood that JB would not meet the conditions for the safe return of her child within 9 months of the hearing. §48.415(2)(a).  The circuit court admitted a social worker’s expert testimony on this issue, apparently without following §907.02 and Daubert v. Merrell Dow Pharmacueticals. The court of appeals assumed error but declared it harmless.

Because the record is confidential, the briefs are not available. Nevertheless, it appears that the County asked the social worker if she had an opinion as to whether there is a substantial likelihood that JB would meet the conditions of return relating to drugs and alcohol, and she answered “I don’t believe, in my opinion, that it is likely that JB will be successful with this in the next nine months.” ¶12 n. 4.

The court of appeals found the admission of this testimony harmless because: (1) JB had a long history of failing to meet conditions for return of her child; (2) the social worker allegedly could have given the same testimony in the form of a lay opinion, as opposed to an expert opinion; (3) during closing arguments neither party referred to the social worker as an “expert.” ¶¶11-13.

Query whether the social worker should have been testifying on the ultimate issue for the jury. According to State v. LaCount, 2008 WI 59, ¶21, 310 Wis. 2d 85, 750 N.W.2d 780, “expert opinion testimony on an ultimate fact is permissible, even where the evidentiary facts on which the ultimate fact in issue depends are in dispute, so long as the opinion on the ultimate fact is given using a hypothetical case or situation.” The court of appeals’ quotation of the testimony indicates that the social worker did not give her opinion using a hypothetical case or situation.

JB also highlighted an ambiguity in §48.415(2)(a)3, which required the County to prove that she “has failed to meet conditions established for the safe return of the child to the home.” (Emphasis supplied). The record contained evidence that JB had failed to meet one condition but not the conditions “as a whole.”  The court also rejected this point on harmless error grounds. ¶21.

Perhaps inadvertently, the court of appeals highlighted grounds to support a petition for review on this issue:

¶20 As to the correct way to interpret the statute, I acknowledge that the statutory phrase “failed to meet the conditions” could be clearer. The legislature could have written more clearly by using a phrase such as “failed to meet any one or more conditions,” assuming that is what the legislature meant. But to interpret the statute as J.B. does—as requiring something less than compliance with each and every condition—provides no logical stopping point as to how many conditions a parent must fail to meet before the parent has “failed to meet the conditions” within the meaning of the statute. J.B. appears to draw the line at failing to meet some number of conditions greater than zero, but if failing to meet one or a couple of conditions is okay, then why not perhaps several or even almost half? J.B. never explains.


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