Watson, In Interest of

• Court: Court of Appeals of Kansas
• Citation: 5 Kan.App.2d 277,615 P.2d 801
• Docket Number: No. 51411,51411
• Parties: In the Interest of Marie Ann WATSON, A Child Under 18 Years of Age.
• Decision Date: 15 August 1980

Page 801

615 P.2d 801

5 Kan.App.2d 277

In the Interest of Marie Ann WATSON, A Child Under 18 Years of Age.

No. 51411.

Court of Appeals of Kansas.

Aug. 15, 1980.

Syllabus by the Court

1. If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.

2. An expert must base his testimony on facts personally perceived by or known to him or made known to him at trial.

3. "Perceived" means knowledge acquired through one's own senses. "Made known" refers to facts put into evidence.

4. The province of an expert witness is to aid the factfinder in the interpretation of technical facts or to assist in understanding the material in evidence and not to state simple conclusions based upon facts which could be, but which have not been, placed in evidence.

J. Michael Lehman of Goering, Lehman & Blanton, Wichita, for appellant Barbara A Watson, the natural mother of Marie Ann Watson.

Robert R. Hiller, Jr., Wichita, for appellee Kansas State Dept. of Soc. and Rehabilitation Services.

Before REES, P. J., and SPENCER and MEYER, JJ.

MEYER, Judge:

Barbara A. Watson (appellant) appeals from the trial court's order severing her parental rights pursuant to K.S.A. 1979 Supp. 38-824(c).

Appellant first claims that the court erred in overruling her objections to expert testimony because of improper foundation.

Appellant objected to the testimony of Dr. Margie L. Cowan, a clinical psychologist. Dr. Cowan's testimony regarding appellant's past mental history was based upon copies of psychological evaluation reports made by others and dated from October 1967 until September 1976. Her evaluation of appellant's present condition was based upon copies of reports of tests administered later by a Mr. Eyman and by Dr. Cowan herself. Appellant specifically objected to Dr. Cowan's conclusion that appellant would be unable to change her present parenting abilities as it was based upon a comparison of present test results with the past reports of earlier tests. Reports of the earlier test results were not offered into evidence.

K.S.A. 60-456(b) provides:

"If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness."

Thus, an expert must base his testimony upon facts personally perceived by or known to him or made known to him at the hearing.

" 'Perceived' means knowledge acquired through one's own senses. (K.S.A. 60-459(c).) 'Made known' refers to facts put into evidence." Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095, 1099 (1978). See also Casey v. Phillips Pipeline Co., 199 Kan. 538, 546, 431 P.2d 518 (1967).

The rationale for this rule was stated in Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 105, 490 P.2d 619, 624 (1971):

"The province of an expert witness is to aid a jury in the interpretation of technical facts or to assist in understanding the material in evidence and not to state simple conclusions based upon facts which could be, but which have not been placed in evidence."

The facts and data in this case which were the basis for Dr. Cowan's conclusion that appellant could not change her parenting abilities were primarily test reports prepared by persons other than Dr. Cowan. Dr. Cowan could not have made the comparison with past abilities without the earlier reports. Therefore, they were not perceived by the witness.

In the case at bar, the evidence of prior evaluations and the current test results by Mr. Eyman were hearsay. There was no attempt to show any applicable exception to the hearsay rule. No attempt was made to qualify the reports as regular business entries nor is there any indication that the persons making them were unavailable as witnesses as required by K.S.A. 60-460(d)(3).

"Hearsay evidence is not admissible in the adjudicatory stage of a proceeding to terminate parental rights." In re Johnson, 214 Kan. 780, Syl. P 1, 522 P.2d 330, 331, Syl. P 1 (1974).

When expert testimony is based on hearsay, it does not meet the requirements of K.S.A. 60-456(b). In Mesecher v. Cropp, 213 Kan. 695, 701-2, 518 P.2d 504 (1974), an examining physician was allowed to testify about findings made in a report prepared by a neurosurgeon who was not at trial. The appellate court noted that those facts or data were not perceived by or personally known to him, nor were they made known to him at the hearing in any acceptable way. The court concluded that the testimony was inadmissible.

Appellee cites In re Kerns, 225 Kan. 746, 594 P.2d 187 (1979), for the proposition that the testimony was admissible. Kerns is distinguishable in that the tests from which the psychologist testified were administered by him and were, thus, within his personal knowledge. Further, the witness' written reports of the tests, results and conclusions had previously been admitted without objection.

The opinion testimony of Dr. Cowan founded upon the earlier reports was inadmissible in this case. However, in order to constitute reversible error, the error must be prejudicial. In this case, there was other competent evidence to support the finding of unfitness.

Not all of Dr. Cowan's testimony was based on hearsay, and that which was not was properly admitted and considered. The doctor had personally observed Barbara and Marie Watson (appellant and her daughter) interacting together for approximately one hour. She testified that there was evidence that appellant had a possible neurological impairment. The behaviors that she directly observed included emotional liability on the part of appellant and a very, very limited stability of emotional response. Dr. Cowan, from personal observation, found that appellant would become very forceful with the infant, grabbing hold of her arm, forcing her to do something, talking rather loudly to the child, teasing her, much like one would tease a pet rather than a child. Dr. Cowan further testified that appellant displayed a "very distorted" judgment of what a ten-month-old child should be able to do and that appellant was lacking in the knowledge of what was socially appropriate for a given situation. Dr. Cowan also testified that the minor child was a totally different infant when the child interacted with her foster mother, and that while with the foster mother the child was more expressive and emotionally responsive than when with her natural mother.

A security officer for a department store testified that when appellant was stopped for shoplifting, she became angry and picked up the child from her baby carrier and threw her to the floor, causing the subsequent hospitalization of the child.

Yet another witness, a social worker employed by SRS, testified that appellant refused to sign a medical consent for treatment when the child was transported by ambulance to the hospital following the incident above.

Another witness, an occupational therapist at the medical center where the child was taken, testified regarding her observations of the interactions between the appellant and her child. She noted that there were very inappropriate expectations by appellant as to her child, and that the child withdrew from her mother. In comparison, the witness testified that when the child was with her foster mother, she was smiling, laughing, and able to initiate play and would vocalize.

Several other witnesses testified that (1) there was substantial improvement in the child after she was placed with foster parents; (2) appel...