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TPR court didn’t err in admitting children’s hearsay statements or expert “bonding” testimony

State v. D.L., 2016AP735 & 2016AP736, District 1, 8/18/16 (one-judge decision; ineligible for publication); case activity

The trial court didn’t err in admitting multiple hearsay statements made by D.L.’s children about her treatment of them or in admitting expert testimony about whether D.L. had a “strong bond” or “positive and healthy relationships” with her children.


Using the residual or “catch-all” hearsay exception under § 908.03(24) as justification, the trial court let the children’s therapists testify to what the children had told them about being “whooped” or hit and by D.L. (¶¶17-18). The court of appeals affirms, applying the test for admission under § 908.03(24) established by State v. Sorenson, 143 Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988), which considers five factors: 1) the child’s age, ability to communicate, familial relationship with the defendant, and knowledge of the difference between truth and falsehood; 2) the person to whom the child made the statement and that person’s relationship to the child; 3) the circumstances under which the child made the statement, including length of time elapsed since the alleged conduct; 4) the content of the statement itself, including any signs of deceit or falsity, as well as whether the statement reveals knowledge of matters a child of that age would not generally know; and (5) the existence of other corroborating evidence. After reviewing the children’s statements in light of the five factors (¶¶19-23), the court concludes the children’s statements contain circumstantial guarantees of trustworthiness consistent with the other hearsay exceptions enumerated in § 908.03 and were properly admitted under § 908.03(24).

D.L. argued that applying the “expansive” Sorenson rationale to TPR cases “‘would result in the residual exception virtually swallowing the hearsay rule in TPR cases’ because there is always a close familial relationship between the child declarant and the parent, who presumably is the subject of the statements, and that it would be virtually impossible to prove whether a therapist or caseworker had motive to falsify what a child stated.” The court of appeals sees nothing to be concerned about:

¶16     …. Before a hearsay statement may be admitted under the residual exception, the statement must “demonstrate sufficient indicia of reliability to be admitted.” See [State v.] Huntington, 216 Wis. 2d [671,] 687[, 575 N.W.2d 268 (1998)]. The factors set forth in Sorenson provide a mechanism for establishing whether a child’s hearsay statement contains such indicia of reliability and trustworthiness. See [State v.] Jagielski, 161 Wis. 2d 67[,] 74[, 467 N.W.2d 196 (Ct. App. 1991)]; see also State v. Oliver, 161 Wis. 2d 140, 144, 467 N.W.2d 211 (Ct. App 1991) (applying the Sorenson factors to evaluate admissibility of a child’s hearsay statement under the residual exception in a case alleging physical abuse of a child). We see no compelling reason to formulate a different test to be applied to the admissibility of a child’s hearsay statement under the residual exception in TPR cases.

The court also says that if it was error to admit the children’s statements, that error was harmless. (¶¶25-31). Basically the court says the evidence was harmless because it wasn’t very relevant to the issues in dispute at trial—which suggests it should have been excluded under § 904.02 or 904.03 (thought it’s not clear D.L. raised those objections). After the court’s effort to justify and apply the Sorenson factors, the lengthy and needless harmless error analysis makes one think the court doth protest too much.

Expert testimony

The court of appeals holds that expert testimony about D.L.’s bonding and relationships with her children was admissible under § 907.02, now revamped and retrofitted with the Daubert standard. The expert was a licensed clinical psychologist specializing in parenting capacity. (¶37). D.L. argues the expert did not explain what scientific methodology she applied to reach the opinion that D.L. did not have a strong bond or positive, healthy relationship with J.S. and J.L. and did not explain what aspects of her education and experience she applied to the observations she made during the bonding assessment to arrive at her opinion. (¶38). The court disagrees, relying on the expert’s testimony about the standards she has used in the many similar “bonding assessments” she’s done in her practice in Illinois (¶¶39-40).

¶41     Testimony concerning the existence of a bond and healthy relationship between a parent and child is not particularly amenable to analysis under the specific factors identified in Daubert. However, although this type of testimony may not be susceptible to testing or peer review in the same manner we might consider for fields where scientific testing occurs in a laboratory, Dr. Iyamah did testify that her work is subject to a form of peer review in Illinois, where her reports and conclusions are submitted to a quality assurance program. She further explained that the assessments she performed on D.L., including the bonding and parenting capacity assessments, are of the same nature as those she performs and submits for peer review in Illinois and that she relied on her over twenty years of experience performing these types of assessments. Dr. Iyamah also explained her observations and how her observations impacted her conclusions. Under these circumstances, we are sufficiently convinced this provided a basis for the trial court to conclude that Dr. Iyamah’s testimony met the reliability standard set forth in Wis. Stat. § 907.02(1). See, e.g., Kumho Tire [Co., Ltd. v. Carmichael], 526 [U.S. 137,] 151-52, 156 [(1999)] (trial courts should have considerable leeway in determining whether expert testimony is reliable based on the facts of a particular case, and an expert may “draw a conclusion from a set of observations based on extensive and specialized experience.”). ….

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