State v. S.A.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 6, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2021AP1917 Cir. Ct. Nos. 2019TP6
2019TP7
2021AP1918 2019TP8
2021AP1919
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
APPEAL NO. 2021AP1917

IN RE THE TERMINATION OF PARENTAL RIGHTS TO S.P., A PERSON UNDER THE
AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

S.A.,

RESPONDENT-APPELLANT.
APPEAL NO. 2021AP1918

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.P., A PERSON UNDER THE
AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

S.A.,

RESPONDENT-APPELLANT.
Nos. 2021AP1917
2021AP1918
2021AP1919

APPEAL NO. 2021AP1919

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.P., A PERSON UNDER THE
AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

S.A.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.

¶1 DUGAN, J.1 Sarah appeals from orders of the circuit court
terminating her parental rights to her three children.2 On appeal, Sarah argues that
the trial court erroneously excluded the family therapist as a witness from the jury
trial that was held during the grounds phase of the proceedings. This court
disagrees, and for the reasons set forth below, this court affirms.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
For ease of reference and to maintain the confidentiality of these proceedings, this court
uses a pseudonym to refer to the mother.

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BACKGROUND

¶2 The State filed a petition to terminate Sarah’s parental rights to her
three children on January 11, 2019, and alleged that Sarah had failed to assume
parental responsibility and that the children were in continuing need of protection
or services (CHIPS).3 The petition primarily cited concerns with Sarah’s ability to
control her anger and mental health, a history of domestic violence in the home
between Sarah and the children’s father, and a pattern of Sarah leaving her
children home alone. The petition stated that the children had been placed outside
of Sarah’s care on July 1, 2017, and a CHIPS order had been entered on
December 18, 2017. Sarah contested the petition, and the case proceeded to a jury
trial on the grounds phase, which took place in June of 2021.

¶3 On the first day of trial, the State objected to Sarah calling the family
therapist to testify in regards to Sarah’s involvement with the children’s therapy
and her understanding of the children’s needs.4 In response to the State’s
objection, Sarah’s counsel noted that Sarah “believes her children’s therapy is
private” and she has only “allowed for the treatment plan, progress treatment goals
and attendance” to be released to all the parties. Therefore, counsel argued that
the therapist should be allowed to present “very limited” testimony. The guardian
ad litem (GAL) joined the State’s objection and took the position that the therapist
was providing an expert opinion for which the GAL was not prepared due to the

3
The petition also sought to terminate the rights of the father. The father’s parental
rights are not at issue in this appeal.
4
The therapist that Sarah sought to call as a witness was a therapist Sarah chose for her
children and the therapist began working with them beginning in June 2020.

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lack of records. The GAL also argued in the alternative that the case manager
could provide the same “limited” testimony and there was no need to call the
therapist. The State further added that it did not dispute that limited records had
been provided; however, it argued that those records failed to address the
testimony that Sarah sought to introduce through the therapist, namely
“information [about] the observations of the children’s behavior and ability to
assess if [Sarah] can meet those needs.”

¶4 The trial court excluded the therapist as a witness, and it made the
following ruling:

My decision is as follows as to the therapist …, her
testimony may be relevant at the dispositional phase
regarding the children but without there being shared
information as was required by [Sarah] to the litigants[,]
I’m going to deny her testimony during the grounds phase
of the proceedings and withhold my decision as to whether
or not her—whether or not what she has to offer may be
relevant as to the best interest phase.

¶5 Over the course of the four-day trial that followed, the jury heard
testimony from Sarah, multiple case managers, an advocate for Sarah from Casa
Maria Catholic Worker House that provided social services to Sarah during her
imprisonment and helped Sarah transition back to the community upon her release,
and the director of operations at Butterfly Family Services where Sarah had
supervised visits with her children for a period of time. The jury ultimately found
both grounds as alleged in the petition, and the case proceeded to the disposition.
Prior to the disposition hearing, the records from the therapist were provided to the
State and the GAL, and the therapist was allowed to testify at the disposition.
Following the disposition, the trial court found that it was in the children’s best
interest to terminate Sarah’s parental rights.

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¶6 Sarah filed a postdisposition motion in which she alleged that the
trial court erroneously excluded the therapist as a witness during the jury trial.
The trial court denied Sarah’s motion saying:

The fact is [] that [the therapist] could have testified had
[Sarah] allowed [the therapist] to provide discovery of her
notes, her therapy notes to the parties, the guardian ad litem
and the State. As a matter of fact, the evidence of that is []
that because in the second phase when [Sarah] finally said
okay, and allowed [the therapist] to release that
information, then [the therapist] was allowed to testify. Up
until that point [Sarah]’s position was this is private
information. It’s a violation of HIPPA rights and therefore
[the therapist] shouldn’t—was not allowed to release her
notes for discovery so it was [Sarah]’s position that no one
should have this information and therefore allowing [the
therapist], to almost clearly said to [the therapist] you don’t
have the right to even testify or the ability to testify because
of—and we didn’t use the word privilege, but it wasn’t
only a discovery issue but a privilege issue that [the
therapist] was not allowed to release that information and
to allow [the therapist] to testify without the other parties
having the ability to have that information, would have
been improper.

¶7 Sarah now appeals.

DISCUSSION

¶8 On appeal, Sarah renews her argument that the trial court
erroneously excluded the therapist as a witness during the jury trial. She argues
that the trial court erroneously prohibited the therapist from providing even limited
testimony related to the records that were provided, and she maintains that the trial
court erroneously excluded the therapist as a sanction for violating discovery.
Sarah finally argues that the exclusion of the therapist was not harmless error
because the jury never heard the information the therapist would have provided.

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¶9 The decision to admit or exclude evidence is committed to the trial
court’s discretion. State v. Hunt, 2014 WI 102, ¶20, 360 Wis. 2d 576, 851
N.W.2d 434. Thus, “[t]his court will reverse such a decision only if the [trial]
court erroneously exercises its discretion.” State v. Warbelton, 2009 WI 6, ¶17,
315 Wis. 2d 253, 759 N.W.2d 557. “A circuit court erroneously exercises its
discretion if it applies an improper legal standard or makes a decision not
reasonably supported by the facts of record.” Weborg v. Jenny, 2012 WI 67, ¶41,
341 Wis. 2d 668, 816 N.W.2d 191 (citation omitted). Applying the above
standard, this court concludes that the trial court properly exercised its discretion
to exclude the therapist as a witness during the trial.

¶10 As Sarah describes, the family therapist would have testified about
Sarah’s involvement with the children’s therapy, about Sarah’s understanding of
her children’s needs, and about Sarah’s ability to meet those needs, and she points
to a letter written by the therapist in arguing that the therapist provided all the
information needed to allow the therapist to testify. While this court agrees that
the proffered testimony from the therapist would have been relevant, the fact
remains that the specific records related to the therapy had not been provided to
either the State or the GAL prior to the trial when they should have been provided.

¶11 The dispositional order entered as part of the CHIPS proceedings
required Sarah to sign the necessary releases to have the therapist’s records
provided to the case managers, the State, and the GAL that were involved in this
case. Then, the scheduling order required Sarah to provide all necessary discovery
or face sanctions. See WIS. STAT. § 804.12(2) (listing possible sanctions); see also
WIS. STAT. § 48.293(4) (stating that procedures under ch. 804 apply to
proceedings under ch. 48). Among the possible sanctions were the exclusion of

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evidence and the exclusion of witnesses. See § 804.12(2)(a)2. Sarah was also
explicitly made aware of the importance of signing these releases to turn over the
therapy records when the scheduling order was entered and at a subsequent motion
hearing at which the trial court told Sarah to sign the necessary releases and
provide the therapy records. It was, therefore, a reasonable exercise of the trial
court’s discretion to exclude the therapist as a witness at the trial when Sarah
failed to sign the releases to have the therapy records provided to the State and the
GAL.5

¶12 Moreover, even if we accept Sarah’s contention that the trial court
erroneously exercised its discretion by failing to specify what discovery
requirement was violated or by excluding the witness in her entirety, this court
will “generally look for reasons to sustain a [trial] court’s discretionary
determination.” See Miller v. Hanover Ins. Co., 2010 WI 75, ¶30, 326 Wis. 2d
640, 785 N.W.2d 493. “[W]here the [trial] court sets forth no reasons or
inadequate reasons for its decisions, [this court] will independently review the
record[.]” Id. Here, the record clearly indicates that the trial court was well
within its discretion to exclude the therapist as a witness as a sanction for Sarah’s
failure to sign the releases and provide the therapy records to the State and the
GAL.

¶13 Moreover, this court concludes that any error in excluding the
therapist as a witness was harmless error. “An error is harmless if the beneficiary

5
Sarah further argues that the therapy records sought by the State and the GAL were
privileged and not subject to disclosure. This court again disagrees. Pursuant to WIS. STAT.
§ 905.04(4)(c), those records were subject to disclosure. Thus, this argument fails.

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of the error proves ‘beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” State v. Hale, 2005 WI 7, ¶60, 277 Wis. 2d
593, 691 N.W.2d 637 (citation omitted).

¶14 Sarah testified at the grounds phase that she had identified a therapist
for her children and participated in therapy with them. Sarah’s advocate also
testified to her observations of Sarah and her children, and she testified that Sarah
was able to manage their behavior and meet their needs. Her advocate also
provided that Sarah was involved with her children’s medical appointments, was
in contact with her children’s teachers, and even helped to choose the school that
her youngest daughter would attend. The director of operations at Butterfly
Family Services also testified that Sarah brought food and clothes and other things
for the children at her scheduled visits. The director further testified on direct
examination that Sarah was generally able to appropriately manage her children at
the visits and there were no identified safety concerns.

¶15 The jury, therefore, ultimately heard the basic outlines of the
testimony that Sarah sought to elicit from the therapist; therefore, any error in the
exclusion of the therapist as a witness was harmless, and there is no possibility
that the error complained of contributed to the verdict obtained. See id.

CONCLUSION

¶16 In sum, this court is not persuaded by Sarah’s argument that the trial
court erroneously exercised its discretion by excluding the family therapist as a
witness. Sarah failed to provide the records required for the therapist to testify,
and the trial court was well within its discretion to sanction her for this failure by

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excluding the therapist. Furthermore, even assuming any error in the exclusion of
the therapist, it was harmless. Accordingly, this court affirms.6

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

6
Having concluded that the trial court properly excluded the therapist for failing to
provide records, this court does not address whether the therapist was improperly excluded on the
grounds that she was a lay witness for which records did not need to be provided.

9