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Exclusion of family therapist’s testimony regarding mom’s fitness okay; TPR affirmed

State v. S.A., 2021AP1917-1919, 7/6/22, District 1, (1-judge opinion, ineligible for publication); case activity

The State petitioned to terminate Sarah’s parental rights to her three children because she had failed to assume parental responsibility and her kids were in continuing need of protective services.  According to the State, Sarah had trouble controlling her anger and mental health. She left her kids home alone, and she and the children’s father had a history of domestic violence.

During the grounds phase of this case, Sarah wanted to call the family’s therapist to testify about her involvement with her kids’ therapy and her understanding of their needs. The court of appeals held that the proffered testimony was relevant. But it affirmed the circuit court’s decision to exclude it because  Sarah had released only part of her records to case managers, the State, and the GAL. She had not signed a release to have all of these records provided to them.  Opinion, ¶¶10-11.

Sarah signed the necessary release before the disposition phase of this case, so the family therapist was able to testify then. Opinion, ¶5. Unfortunately, her parental rights were terminated anyway.

The court of appeals held that if the exclusion of the therapist’s testimony was erroneous, the error was harmless because Sarah and her advocate were permitted to testify about her ability to manage her behavior. And the director of the social services provider testified to the food and clothing Sarah brought to her kids during scheduled visits and said Sarah behaved appropriately. “The jury, therefore, ultimately heard the basic outlines of the testimony that Sarah sought to elicit from the therapist.” Opinion, ¶15.

This harmless error analysis seems questionable.  The State accused Sarah of having anger and mental health issues. She wanted to show her involvement in her children’s therapy and how she was trying to address those needs–treatment that is generally confidential. To a jury, the family therapist would be a far more credible witness on these matters than Sarah herself, her “advocate,” or the director of the social services provider, who probably lacks first-hand knowledge.  The fact that the family therapist was allowed to testify after the jury found Sarah unfit hardly cures the problem.

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