Walworth County v. THERESE B.

• Decision Date: 03 September 2003
• Docket Number: No. 03-0967.,03-0967.
• Citation: 2003 WI App 223,267 Wis.2d 310,671 N.W.2d 377
• Parties: IN the MATTER OF the GUARDIANSHIP OF THERESE B.: WALWORTH COUNTY, Petitioner-Respondent, v. THERESE B., Respondent-Appellant.
• Court: Wisconsin Court of Appeals

267 Wis.2d 310

2003 WI App 223

671 N.W.2d 377

IN the MATTER OF the GUARDIANSHIP OF THERESE B.:

WALWORTH COUNTY, Petitioner-Respondent, v. THERESE B., Respondent-Appellant.¹

No. 03-0967.

Court of Appeals of Wisconsin.

Submitted on briefs August 14, 2003.

Decided September 3, 2003.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Gary Rehfeldt, assistant corporation counsel — Walworth County, Elkhorn.

Before Anderson, P.J., Brown and Snyder, JJ.

¶ 1. ANDERSON, P.J.

Wisconsin makes full due process statutorily available to individuals subject to involuntary guardianship and protective placement petitions. Among the protections available is the requirement that an expert witness cannot simply summarize the findings and opinions of others but must reach an independent opinion only after a disinterested review of all relevant records. The record in this case does not support Therese B.'s contention that the expert witness simply regurgitated the opinions of others and the circuit court erred in not sustaining her objection to the admission of the expert's testimony and opinion. In addition, there is substantial and credible evidence to support the circuit court's conclusion that Therese is incompetent and in need of protective placement. Therefore, we affirm.

PROCEDURAL BACKGROUND

¶ 2. Cheryle Gasch, a social worker with the Walworth County Department of Human Services (County) filed a Petition for Guardianship and Protective Placement of Therese. The petition alleged that Therese required a permanent guardian and protective placement because "[d]ue to Chronic mental illness (Schizophrenia Paranoid Type) she is substantially unable to manage her property or care for herself." The circuit court appointed a guardian ad litem and a psychologist to furnish the court with a written report concerning Therese's mental condition. Therese opposed the petition and the state public defender appointed adversary counsel for her.

¶ 3. At the evidentiary hearing, the County presented the testimony of the examining psychologist, Dr. Steven Braam, and the social worker. Therese lodged an objection to the testimony of Dr. Braam; she contended that Dr. Braam could not testify about the opinions formed by any other physician or psychologist who may have examined her because such testimony would be hearsay and would violate her confrontation rights. The circuit court overruled the objection, concluding that Dr. Braam could rely upon collateral sources, including the opinions of others, in testifying as to his professional opinion. The court also concluded that because Dr. Braam's testimony was an exception to the hearsay rule, there was no violation of Therese's confrontation rights. Dr. Braam testified that in his professional opinion Therese suffered from schizophrenia, paranoid type, the condition was permanent, and she has a primary need for residential custody and placement. The social worker also testified that Therese had a primary need for residential care and custody. Therese presented the testimony of Dr. Ronald G. Rubin, a psychiatrist who examined Therese on behalf of the State of Wisconsin, to determine if she matched the federal government's criteria for having a serious mental illness. He testified that he strongly disagreed with the diagnosis of schizophrenia, paranoid type, and believed that her problems were caused by Graves' Disease. At the conclusion of the hearing, the circuit court granted the petition, appointed a guardian for Therese and ordered her to be protectively placed. Further facts will be set forth later.

DISCUSSION

¶ 4. On appeal, Therese contends that the circuit court erred in admitting the written report and testimony of Dr. Braam, the licensed psychologist appointed to examine her pursuant to WIS. STAT. § 880.33(1) (2001-02).² She complains that Dr. Braam's report and testimony were based entirely on hearsay because she did not cooperate with his examination and he instead had to reply upon the reports previously prepared by Robert Loiben, M.D., and David Thompson, Ph.D. Therese argues that because the County did not call Dr. Loiben or Dr. Thompson to testify, she was denied the opportunity to cross-examine them and to challenge their qualifications and diagnosis. She claims that Dr. Braam simply restated and summarized the findings of others and she was deprived of her right to cross-examine those who had previously examined her, a right guaranteed by § 880.33(2)(a)1.

¶ 5. She also contends that the evidence is insufficient to support the circuit court's conclusion that she is incompetent due to a "mental disability." Finally, she asserts that even if there is sufficient evidence to support the conclusion that she is incompetent, there is no evidence that she is in need of protective placement.

A. Hearsay Testimony of Examining Psychologist

[1]

¶ 6. Before considering Therese's first argument, we turn to the County's proposition that she is estopped from "complaining that Dr. Braam's testimony and report were based on hearsay because she refused to talk with him, forcing that result." WISCONSIN STAT. § 880.33(1) provides that the examining professional inform the proposed ward that

he or she has a right to remain silent and that the examiner is required to report to the court even if the person remains silent. The issuance of such a warning to the person prior to each examination establishes a presumption that the person understands that he or she need not speak to the examiner.

It would be fundamentally unfair and a denial of due process to assure a person, through the warning required by § 880.33(1), that he or she has the right to remain silent and then penalize him or her for exercising that right by holding his or her silence judicially estops him or her from challenging the testimony of the reporting professional.

[2]

¶ 7. We agree with Therese that WIS. STAT. § 880.33(2)(a)1 guarantees her the right to cross-examine the physician or psychologist appointed to examine her and report to the circuit court.³ In R.S. v Milwaukee County, 162 Wis. 2d 197, 209, 470 N.W.2d 260 (1991), the supreme court held that in contested guardianship proceedings, the petitioner was required "to produce the licensed professional reporting to the court to testify in person ... and that the proposed ward has the right to cross-examine the witness." The court also provided that:

A witness in a contested guardianship proceeding would have to be qualified to give a medical or psychological opinion on, for example, a diagnosis of the proposed ward's mental disorder or disability and whether the proposed ward's inability to care for himself or herself is caused by the mental condition alleged in the petition, not a physical disability. Section 880.01(4).

R.S., 162 Wis.2d at 210 n.10.⁴

[3]

¶ 8. It is well settled that it is "proper for a physician to make a diagnosis based in part upon medical evidence of which he has no personal knowledge but which he gleaned from the reports of others." Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284, 299, 254 N.W.2d 255 (1977).⁵ However, there are two important qualifications of this rule. First, although WIS. STAT. § 907.03 allows an expert to base an opinion on hearsay, it does not transform the hearsay into admissible evidence. State v. Watson, 227 Wis. 2d 167, 198, 595 N.W.2d 403 (1999). The circuit court must determine when the underlying hearsay may reach the trier of fact through examination of the expert, with cautioning instructions, and when it must be excluded altogether. Id. at 200-01. In State v. Coogan, 154 Wis. 2d 387, 399 n.4, 453 N.W.2d 186 (Ct. App. 1990), we sounded a cautionary note:

We need not reach the question of whether an expert's opinion based solely on inadmissible evidence, but that of a type reasonably relied on in his field, is admissible. However, this court has suggested that at some point when the reliability of the underlying evidence is called seriously into question, it is permissible to bar the expert's testimony.

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¶ 9. Second, WIS. STAT. § 907.03 does not give license to the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. State v. Williams, 2002 WI 58, ¶ 19, 253 Wis. 2d 99, 644 N.W.2d 919. In Williams, the supreme court relied upon United States v. Lawson, 653 F.2d 299 (7th Cir. 1981), to reach this conclusion. In Lawson, the challenge was that the admission of hearsay in the testimony of an examining psychiatrist violated Lawson's right to confront the witnesses against him. Id. at 301. The examining psychiatrist testified that he never interviewed Lawson privately but reached his opinion by relying upon reports and material he received from two treating physicians, other staff at the hospital and other sources. Id. The Seventh Circuit agreed with Lawson that "the introduction of expert testimony based in large part on hearsay may raise serious constitutional problems if there is no adequate opportunity to cross-examine the witness." Id.

An expert's testimony that was based entirely on hearsay reports, while it might satisfy Rule 703, would nevertheless violate a defendant's constitutional right to confront adverse witnesses. The Government could not, for example, simply produce a witness who did nothing but summarize out-of-court statements made by others. A criminal defendant is guaranteed the right to an effective cross-examination.

Id. at 302 (footnote omitted). The court also noted that the right of confrontation might necessitate giving a defendant the opportunity to cross-examine the person or persons who prepared the underlying data on which the expert relied. Id. at 302 n.8.⁶

[5]

¶ 10. Therese argues that in permitting Dr. Braam to testify to his opinion, which was not based upon...