In re the Termination of Parental Rights to Daniel R.S., 2005 WI 160 (Wis. 11/30/2005), 2004AP1305.

• Decision Date: 30 November 2005
• Docket Number: No. 2004AP1306.,No. 2004AP1305.,2004AP1305.,2004AP1306.
• Parties: In re the Termination of Parental Rights to Daniel R.S., a Person Under the Age of 18: Brown County, Petitioner-Respondent, v. Shannon R., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Darell S.S., a Person Under the Age of 18: Brown County, Petitioner-Respondent, v. Shannon R., Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

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2005 WI 160 In re the Termination of Parental Rights to Daniel R.S., a Person Under the Age of 18:
Brown County, Petitioner-Respondent,
v.
Shannon R., Respondent-Appellant-Petitioner.
In re the Termination of Parental Rights to Darell S.S., a Person Under the Age of 18:
Brown County, Petitioner-Respondent,
v.
Shannon R., Respondent-Appellant-Petitioner. No. 2004AP1305. No. 2004AP1306. Supreme Court of Wisconsin. Opinion Filed: November 30, 2005.

REVIEW of a decision of the Court of Appeals. Reversed and remanded.

For the respondent-appellant-petitioner there were briefs and oral argument by Brian C. Findley, assistant state public defender.

For the petitioner-respondent there was a brief and oral argument by Christopher C. Paquet, assistant corporation counsel.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1 This is a review of an unpublished decision of the court of appeals¹ affirming the order of the circuit court for Brown County, J.D. McKay, Judge, terminating the parental rights of petitioner Shannon R., the mother. The court of appeals affirmed the order of termination. We reverse the decision of the court of appeals.

¶ 2 Several issues were presented to this court. Shannon R. contends that the circuit court lost competency to hear the termination by failing to meet the time limits imposed by Wis. Stat. § 48.422.²

¶ 3 Shannon R. also argues that the instructions presented to the jury relating to state law elements for termination of parental rights overlapped elements under the Indian Child Welfare Act and that the circuit court improperly instructed the jury that the state law elements must be proven only by clear and convincing evidence. We will discuss these arguments because they may arise on retrial.³

¶ 4 The issue upon which we decide this case is as follows: Did the circuit court err by excluding opinion testimony of Shannon R.'s expert witness regarding the substantial likelihood that Shannon R. is able to meet the conditions established for the safe return of her children to the home within the 12-month period following the fact-finding hearing under Wis. Stat. § 48.424? If the circuit court erred in excluding the testimony, we must determine whether the error was reversible error.

¶ 5 We conclude that the constitutional guarantee of due process (fundamental fairness) requires the conclusion that by excluding Shannon R.'s only expert opinion testimony, which was clearly central to her defense against termination of parental rights, the circuit court committed reversible error.⁴ Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings not inconsistent with this opinion.

¶ 6 In so holding, we give full effect to the important legislative policy considerations embodied in the Children's Code. The legislature directs that the best interest of the child remains of paramount concern when deciding cases under the Children's Code. The Children's Code also recognizes the importance of preserving family unity and of assuring fair hearings and the protection of the constitutional rights of all parties involved.⁵

¶ 7 The legislature has recognized that when reunification of the family is not possible, parental rights should be terminated at the earliest feasible time. If court proceedings are viewed through the eyes of a child, several weeks or months of delay (which may seem a short time to an adult) are extraordinarily long for children. Depriving a child of a permanent home deprives the child of his or her childhood.⁶

¶ 8 Considering the legislative policy in the Children's Code, we are reluctant to delay the permanent placement of the boys in the present case. Nevertheless, we must take into account not only the children's interest in the earliest feasible permanent placement but also Shannon R.'s constitutional rights and the possibility that permanent placement with Shannon R. may, indeed, be in the children's best interests.

I

¶ 9 The undisputed facts are as follows. Shannon R. is the mother of two sons: Darell S.S., born June 24, 2001, and Daniel R.S., born May 26, 2002. Darell was removed from Shannon R.'s care on July 17, 2001. Daniel was removed immediately upon birth. The father of both children is a member of the Bad River Band of the Lake Superior Tribe of Chippewa Indians. Both children are eligible for enrollment in the Bad River Band. The father has voluntarily terminated his parental rights.

¶ 10 Each child was removed from the mother under a child in need of protection or services (CHIPS) order. The reasons for removal under the CHIPS order are not before this court.⁷ The conditions for return of the children in the CHIPS order are, however, important for the present case. The most significant conditions, based on the evidence presented at the fact-finding hearing in the termination proceeding, are that Shannon R. "obtain and maintain suitable housing for a minimum period of three months[,]" including keeping the environment in a condition safe and sanitary for a child; "obtain suitable employment for a 3-month period of time[;]" meet regularly with the Brown County Human Services Department; and cooperate with her probation agent.⁸

¶ 11 Brown County's petition for termination of parental rights alleged, as the ground for termination under Wis. Stat. § 48.415(2)(a)3., that the children had been outside the home for a cumulative total period of six months or longer pursuant to a CHIPS order, that Shannon R. failed to meet the conditions established for the safe return of the children to the home, and that there is a substantial likelihood that she will not meet these conditions within the 12-month period following the fact-finding hearing.⁹ The last element, that is, that Shannon R. will not meet these conditions, is at issue here.

¶ 12 In regard to this last element, the circuit court asked the jury to answer special verdict question 4, namely: "Is there a substantial likelihood that Shannon R[.] will not meet these conditions within the twelve-month period following the conclusion of this hearing?" (Emphasis added.) The circuit court instructed the jury that Brown County had the burden of convincing the jury to a reasonable certainty by evidence that is clear, satisfactory, and convincing that the answer to that question should be yes.

¶ 13 The jury was instructed (in accordance with pattern instruction Wis JI-Children 324) on special verdict question 4 as follows:

Brown County Human Services Department must prove the following four elements to a reasonable certainty by evidence that is clear, satisfactory, and convincing. . . . Fourth: That there is a substantial likelihood that Shannon R[.] will not meet the conditions for the safe return of Darell and Daniel [] within the twelve-month period following the conclusion of this hearing. Substantial likelihood means that there is a real and significant probability rather than a mere possibility that Shannon R[.] will not meet the conditions for the safe return within that time period. Question four of the special verdict addresses this element.

In answering question four, you may consider all evidence bearing on that question, including evidence of events and conduct occurring since the filing of the respective petitions. Your answer must be [sic] reflect your findings as of today's date in each instance.

In determining whether Shannon R[.] failed to meet the conditions established for the safe return of Darell and Daniel to the home or whether there is a substantial likelihood that Shannon R[.] will not meet the conditions for the safe return of Darell and Daniel within the twelve-month period following the conclusion of this hearing, you may consider the following:

The length of time Darell and Daniel have been in placement outside the home; the number of times Darell and Daniel have been removed from the home; the parent's performance in meeting the conditions for return of the children; the parent's cooperation with the social service agency; parental conduct during periods in which Darell and Daniel had contact with Shannon R[.]; and all other evidence presented during this hearing which assists in making those determinations. (Emphasis added.)

¶ 14 Apparently to assist the jury in answering special verdict question 4, Brown County presented two expert witnesses. Each witness testified that, in his or her opinion, Shannon R. is not able to meet the conditions for return within a 12-month period after the hearing. The testimony that Shannon R. is not able to meet the conditions for return of the children within the time period was apparently proffered to assist the jury in determining whether, as required by the statutes, she will not meet the conditions in the statutory time period.¹⁰

¶ 15 The circuit court precluded, however, Shannon R.'s expert, Dr. Gerald G. Wellens, from testifying about his opinion whether Shannon R. is able to meet the conditions for return of the children.

¶ 16 The confusion of the concepts "is able to meet" and "will meet" permeates the circuit court's exclusion of Shannon R.'s expert witness's opinion testimony, as is evident from the testimony of Brown County's experts, the objection to Dr. Wellens's expert opinion testimony, and the circuit court's explanation of the ruling excluding Dr. Wellens's testimony.¹¹

¶ 17 Brown County's first expert witness was Tribal Judge Alton Smart of the Bad River Band of Ojibway Indians. On direct examination, Brown County asked Tribal Judge Smart, without any objection, for his opinion about the substantial likelihood that Shannon R. would be able to complete the conditions for return within one year of the hearing. He testified that, on the basis of her past behavior, he did not think there would be any significant behavioral change within one year's time. The exchange went like this:

Q: [I]s your opinion to the substantial likelihood that . . . Miss R[.] would be able to complete...