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TPR – Federal / Wisconsin Indian Child Welfare Act

Jackson Co. DHS v. Robert H., 2011AP2783, District 4, 7/17/12

court of appeals decision (1-judge, ineligible for publication); case activity

Both federal and state Indian Child Welfare Acts require that termination of parental rights to an Indian child be supported by testimony of a qualified expert witness “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” 25 U.S.C. § 1912(f); Wis. Stat. § 48.028(4)(e)1. No qualified expert testified to this effect at the fact-finding trail. An expert did testify at trial that the child would likely suffer severe damage with the parental custody, but the witness wasn’t specifically qualified as an expert under the Acts. However, an expert did so testify at the dispositional hearing. The federal Act doesn’t specify when this expert testimony must be adduced (i.e., fact-finding or disposition), therefore no error occurred under that Act; presenting the necessary testimony at disposition satisfied the federal act, ¶22. The state Act, by contrast, requires such testimony at the fact-finding phase, therefore § 48.415 was violated – however, this error is subject to harmless error analysis, ¶¶30-31. Given that the jury heard from a qualified witness at fact-finding, just not a witness specifically qualified under the Act; and that the court heard at disposition from a witness qualified under Act, the error was indeed harmless:

¶32      Here, there is no reasonable possibility that this error contributed to the outcome of the action.  The jury heard the testimony of Dr. Dal Cerro regarding the serious emotional/physical damage element and found, beyond a reasonable doubt, that the element was satisfied.  At the disposition hearing, the circuit court heard Lozano, a qualified expert witness, conclude that Avery would likely suffer serious emotional or physical damage if returned to Robert, based at least in part on Dr. Dal Cerro’s opinion.  Afterwards, the circuit court likewise found that the serious emotional/physical damage element was met.

¶33      Accordingly, based on the specific circumstances of this case and given the arguments presented by Robert, we conclude that the error under Wis. Stat. § 48.415 was harmless.


Robert wasn’t denied effective assistance by virtue of counsel’s failure to move to sever his termination of parental rights trial from the mother’s (because Robert can’t show reasonable probability of different result), ¶¶37-43; nor was it deficient performance to fail to object to reference to Robert’s “fairly high level of psychopathy,” or the child’s likelihood to develop his own antisocial or psychopathic tendencies if Robert obtained custody, ¶¶44-53.

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