(Cite as: 286 Wis.2d 278)

Supreme Court of Wisconsin.

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.

Nos. 2004AP1305, 2004AP1306.

Argued Sept. 8, 2005.

Decided Nov. 30, 2005.

**272 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.

¶ 1 SHIRLEY S. ABRAHAMSON, C.J.

*283 This is a review of an unpublished decision of the court of appeals ^FN1 affirming the order of the circuit court for Brown County, J.D. McKay, Judge, terminating the *284 parental rights of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.

FN1. Brown County v. Shannon R., Nos. 2004AP1305 & 2004AP1306, unpublished slip op., 2004 WL 2453579 (Wis.Ct.App. Nov. 3, 2004).

¶ 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.^FN2

FN2. All references to the Wisconsin Statutes are to the 2003-2004 version unless otherwise indicated.

**273 ¶ 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.^FN3

FN3. Shannon R. further contends that the evidence presented by Brown County was insufficient to sustain a jury finding, beyond a reasonable doubt, that returning custody of the children to her is likely to result in their serious emotional or physical damage.   We do not address this issue.

¶ 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 *285 opinion testimony, which was clearly central to her defense against termination of parental rights, the circuit court committed reversible error. ^FN4  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.

FN4. The phrase “due process” expresses a requirement of “fundamental fairness.”  Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).

¶ 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.^FN5

FN5. Section 48.01 states the legislative purpose of the Children's Code as follows:

(1) ... In construing [the Children's Code], the best interests of the child or unborn child shall always be of paramount consideration.   This chapter shall be liberally construed to effectuate the following express legislative purposes:

(a) While recognizing that the paramount goal of this chapter is to protect children and unborn children, to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents and the expectant mothers of unborn children, whenever appropriate, in fulfilling their responsibilities as parents or expectant mothers.... The courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family.

(ad) To provide judicial and other procedures through which children and all other interested parties are assured fair hearings and their constitutional and other legal rights are recognized and enforced, while protecting the public safety.

*286 ¶ 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 **274 adult) are extraordinarily long for children. Depriving a child of a permanent home deprives the child of his or her childhood.^FN6

FN6. For a discussion of the importance of a child-centered view of time in the legal context, see National Council of Juvenile and Family Court Judges, Adoption and Permanency Guidelines:  Improving Court Practice in Child Abuse and Neglect Cases 5, 26-27, 34-35 (2000).

The United States Congress has also expressed its preference for quick and safe adoption of children by enacting the Adoption and Safe Families Act of 1997 (ASFA), Pub.L. No. 105-89, 111 Stat. 2115. For discussions of ASFA, see Thomas J. Walsh, The Clock Is Ticking:  Do the Time Limits in Wisconsin's Termination of Parental Rights Cases Serve the Best Interests of Children?, 83 Marq. L.Rev. 743 (2000);  Madelyn Freundlich, Expediting Termination of Parental Rights:  Solving a Problem or Sowing the Seeds of a New Predicament?, 28 Cap. U.L.Rev. 97 (1999);  Stephanie Jill Gendell, In Search of Permanency:  A Reflection on the First 3 Years of the Adoption and Safe Families Act Implementation, 39 Fam. Ct. Rev. 25 (2001).

¶ 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.

*287 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.^FN7  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.^FN8

FN7. The record in this case reveals the following basis for the CHIPS petition.   On July 10, 2001, Tianna R., one of Shannon R.'s older children, was found dead in her bedroom from dehydration and hyperthermia.   The room temperature where Tianna was found was 98 degrees and the temperature on the thermostat was turned up.   Further, the only contact Shannon R. and Darell S. (Tianna's father) had with Tianna for 17 hours prior to her death was to observe her from her bedroom door.

FN8. Shannon R. was also required to “participate in individual counseling” to deal with childhood issues and issues created by past relationships;  participate in a psychological evaluation to determine her personality characteristics, her diagnosis, and different modes of treatment;  participate in budget counseling and demonstrate her ability to provide for her own and her children's needs;  comply with her schedule for visitation with the children;  participate in a “wraparound” program to help keep the children in the home once returned;  and have no further law violations.

**275 *288 ¶ 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.^FN9  The last element, that is, that Shannon R. will not meet these conditions, is at issue here.

FN9. Section 48.415(2)(a)3. sets forth the ground for termination of parental rights at issue in the present case as follows:

That the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders not including time spent outside the home as an unborn child;  and that the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following the fact-finding hearing under s. 48.424.

¶ 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*289  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;  *290 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 **276 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.^FN10

FN10. No Brown County witness was asked to testify whether, in his or her opinion, Shannon R. will or will not meet the conditions for return within 12 months.

¶ 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.^FN11

FN11. The court of appeals also confused these two concepts in reviewing the circuit court's exclusion of Dr. Wellens's expert opinion.   It declared that the circuit court “only precluded [Dr. Wellens] from opining on the likelihood of Shannon's compliance, not her ability to comply.”   Contrary to this pronouncement of the court of appeals, the circuit court did not preclude Dr. Wellens from opining on the likelihood of Shannon R.'s compliance because Dr. Wellens was never asked his opinion about whether Shannon R. will comply with the conditions for return of the children.   Furthermore, contrary to the court of appeals' conclusion, the circuit court did preclude Dr. Wellens from opining on whether Shannon R. is able to comply with the conditions of return.  See Brown County v. Shannon R., Nos.2004AP1305 & 2004AP1306, unpublished slip op., ¶ 37, 2004 WL 2453579 (Wis.Ct.App. Nov. 3, 2004).

*291 ¶ 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 her conditions [for return] within one year of today's date?

A: ...  [T]he best indicator of change is past behavior.   Has she demonstrated significant amount of change, that she was making progress or making specific changes, and I was unable to see that happening there.... It is my opinion that I hadn't seen enough change there that would warrant that there was going to be significant change in the future, within a year's time.

¶ 18 Judge Smart was qualified by the circuit court as an expert witness.   His primary employment, at the time of his testimony, was as a professor of social *292 work at the University of Wisconsin-Stevens Point.   He holds a master's degree in social work, has conducted some post-graduate study in family therapy and family studies, and has received training from the National Judicial Tribal Judge Association and various other judicial training **277 programs.   He never interviewed nor observed Shannon R. or the children.

¶ 19 Brown County's second expert was one of Shannon R.'s social workers, Kay Reynolds, who testified that in her opinion, there was not a substantial likelihood that Shannon R. would be able to meet the conditions for return of the children within 12 months of the fact-finding hearing.   Her opinion reflected her view that the past was the best predictor of future behavior.

¶ 20 On direct examination, Ms. Reynolds gave her opinion, without any objection, as follows:

Q: In your opinion, if given a year from today to complete the conditions [for return], would she be able to satisfy these conditions?

A: No, I don't believe she would be able to.

Q: Specifically, what leads you to that conclusion?

A: Shannon has had a working relationship with us for the past two-and-a-half years.   And it's my opinion that if after that length of time, when she has been given the amount of support from our agency and from the service providers that have been working with her, if she's still not been able to be successful to show some stability in her lifestyle and, most importantly, to provide ... for her own needs ... I feel strongly that it is not going to happen.

Q: But she has completed some of the conditions, correct?

*293 A: The [Alcohol and Other Drug Abuse] condition that was set for her is a condition that wasn't applicable.   The parenting program, yes, Shannon did complete the Ruth Helf Family Center program.   But the second part of her condition states that she needs to demonstrate a desire and an ability to parent her kids, and ... I don't believe that missing a significant amount of visits, I don't believe that continuing to be unemployed, to have some dishonesty with myself and with Melissa Blom, to continue to be without her own housing are examples of her showing some stability in her lifestyle that she would be able to ... be successful with the court order.

Q: What about her activities over the past few months, does that change your opinion?

A: That hasn't changed my opinion, no.

¶ 21 Ms. Reynolds's qualifications included her employment as a child protection social worker for the Brown County Human Services Department for six and one-half years.   She has a license to practice social work, which requires 30 hours of continued training biannually.   Ms. Reynolds worked with Shannon R. for two and one-half years.

¶ 22 To rebut Brown County's expert opinion evidence about the substantial likelihood of Shannon R. being able to meet the conditions for return of the children to the home within the 12-month period, Shannon R. testified and presented one expert witness.

¶ 23 In her testimony, Shannon R. admitted that she had made mistakes in the past but asserted that she loved her children and that she is able to meet the conditions in the future.   Shannon R. testified as follows:

Q: Ms. R[.], I just have one question for you this morning.   You've listened to all of the testimony, and I'm *294 asking you now, what assurances do you have or why do you think that you can complete your conditions within the next twelve months?

A: I've made mistakes in the past two-and-a-half years.   I've paid for the mistakes I've made.   In March of this year **278 I was told from the department that they were going to file a petition to terminate my rights and that there was nothing that I could do to get my kids back.   I didn't listen to them.   I got a job, I got my apartment, I started doing my counseling even though they told me I still didn't have a chance, but I wanted to prove to them that I could do my conditions to get my kids back.   And then I made another mistake and cut off my [electronic monitoring] bracelet.

I love my kids, and they're everything to me.   And I know if I'm given one more opportunity, I can prove that I can complete the conditions they want me to do to get my kids back.   I don't know how I'd be able to live my life without them.

¶ 24 The disposition of this matter does not depend on whether Shannon R. loves her children.   We have no doubt that she does.   Nor do we doubt that her children love her.^FN12

FN12. Dr. Wellens testified that both boys were very affectionate with their mother, as was she toward them, and that Darell was strongly bonded with her.   Another witness testified that Shannon R. successfully completed a six-month parenting class, and Dr. Wellens testified that during a supervised visit in January 2004, Shannon R. was able to direct the boys' behavior, take them to the toilet without incident, and properly discipline Darell when he acted aggressively toward Daniel.

¶ 25 Shannon R.'s expert witness, Dr. Wellens, attempted to testify regarding his opinion about the likelihood that Shannon R. is able to meet the conditions for return of her children within the applicable time period.

*295 ¶ 26 Twice Shannon R.'s attorney asked Dr. Wellens substantially the same question Brown County's attorney asked Tribal Judge Smart and Ms. Reynolds;  namely, whether in his opinion there is a substantial likelihood that Shannon R. is able to meet the conditions for return within 12 months.   Each time, upon objection by the children's guardian ad litem (and over the protestations of Shannon R.'s attorney), the circuit court barred Dr. Wellens from answering the question on the ground that Shannon R.'s counsel failed to lay a proper foundation of expertise for Dr. Wellens to answer the question.

¶ 27 The circuit court was presented with the following foundation regarding Dr. Wellens's qualifications.   Dr. Wellens holds a Ph.D. in clinical psychology and two master's degrees, one in counseling psychology and the other in public administration.   In Dr. Wellens's private practice, he has extensive experience counseling both adults and children.   He conducts approximately two psychological evaluations each week.   He regularly conducts psychological evaluations for commitment and competency proceedings on behalf of Brown County and Marinette County.

¶ 28 Dr. Wellens met with Shannon R. for about two hours, reviewed her case history and records, and gave her a battery of psychological tests to help determine her psychological status and whether she is able to meet the conditions for return.   He testified that “the purpose of the psychological testing, along with training and experience of a psychologist, [is] to make some predictions of future conduct.”

¶ 29 The circuit court ruled that “Dr. Wellens is an expert for purposes of these proceedings in psychology.”   Nevertheless, the circuit court ruled that Dr. Wellens was not qualified to answer the same question *296 asked of the two Brown County expert witnesses.   According to the circuit court, Dr. Wellens was qualified to testify only about whether, in his professional opinion, no psychological impediment existed to prevent Shannon R. from completing all the conditions for return of her children,**279  including her ability to get stable employment and housing.

¶ 30 The pertinent parts of the lengthy exchange among counsel and the circuit court, as Shannon R.'s counsel repeatedly attempted to lay a foundation for her questions and the circuit court repeatedly sustained objections to the question, are as follows:

MS. SCHMIEDER [attorney for Shannon R.]:  Understanding what Shannon's conditions are at this time, do you believe there exists a likelihood that she will be able to complete those that have not yet been completed within the next twelve months?

MS. PLEGER [guardian ad litem for the children]:  Objection, Your Honor.   I think this is outside of his expertise.   I don't think there's foundation been laid regarding the court-ordered conditions in the dispositional order.

....

THE COURT:  Based on his training he can have an opinion, but it can't be as an expert on those conditions.... Lay a foundation that he has an understanding of those conditions and we'll go from there.

¶ 31 Shannon R.'s attorney proceeded to ask Dr. Wellens a series of questions establishing that he had reviewed Shannon R.'s case history and was familiar with the conditions in the CHIPS order. The exchange and the circuit court's explanation of the ruling continued as follows:

*297 MS. SCHMIEDER:  Based upon your years of experience as a psychologist, based upon your review of the three volumes of materials, based upon your interview with my client, and based upon the four psychological instruments that you have utilized to test her, are you able to a reasonable degree of psychological certainty to reach an opinion as to the likelihood of her ability to complete these conditions as they now stand within the next twelve months?

MS. PLEGER:  I have to renew that same objection, Your Honor.   I don't think adequate foundation has been laid.   I think it's clear that Dr. Wellens can testify and has presented himself as an expert as to whether or not Ms. R [.] has an Axis I or Axis II diagnosis, but I don't think there's been ample foundation laid other than the fact that he read a lot of material that would support his expertise in the area of these conditions as outlined in the dispositional order.

MS. SCHMIEDER:  Your Honor, I'm not saying he's an expert on the conditions.   But what I am trying to elicit ... is whether after testing my client he has reached a decision about can she do this in the future.

....

THE COURT:  ... The doctor is in a position to make and offer opinions regarding his expertise and the relationship of his expertise to what he's tested and interviewed and discussed with Ms. R[.], but ... you've asked the question ... in such a way that I can't allow him to answer it in the format that it's been asked.

....

MS. SCHMIEDER:  With regards to the testing that you've done and the condition to evaluate her personality characteristics, did you find any personality characteristics that will present a bar to her completing the conditions in the next twelve months?

*298 MS. PLEGER:  Same objection, Your Honor.   I don't think sufficient foundation has been laid to determine if ... the results of her psychological evaluation can ... present a bar to some of those other conditions that clearly fall outside the scope of ... psychiatry.

**280 THE COURT:  Sustained.... I'm going to allow you to ask questions ... as to whether or not the ... testing [Dr. Wellens] undertook and the conclusions that he's reached ... regarding her personality and psychological traits will be a bar to anything.... But you keep making a hurdle to whether that prevents her from doing the conditions within the next twelve months, and he can't answer that.   He can't make that leap.   He can tell you whether his test results and his evaluation present any bars to her, but he can't conclude that ... she will finish those conditions in twelve months ... because that opinion is not part-or, the basis for that opinion is not part of what he's done.

MS. SCHMIEDER:  ... Dr. Wellens has looked at all the same information that Kay [Reynolds] and [social worker] Melissa [Blom] have had at their disposal, and they were allowed to reach a predictive opinion as social workers about whether or not my client can complete something in the future.   Dr. Wellens after conducting psychological tests and looking at all the same stuff they've looked at should be able to render the same type of predictive opinion.   They didn't say she would or wouldn't.   They said we don't think she will.   He ought to be able to say, I think she will.   And I-

THE COURT:  Don't you see the difference, Ms. Schmieder?

MS. SCHMIEDER:  No, Your Honor, I don't.

THE COURT:  Well, I'm sorry, but the difference is that the basis for his testing is that he can assess whether she has the capability for [meeting the conditions for return].   There is no foundation that he has any understanding or expertise in whether she can *299 actually do it.   The social workers, on the other hand, have worked with her in the field on those very subjects, and that's why they're entitled to make that opinion.

He can express an opinion ... but it has to be on whether or not his expertise and the results of the test that he performed in any way bar her from doing it.... [H]e has every right to testify as to whether or not his testing has evidenced any bars or prohibitions to her completing the conditions.

... Quite honestly, there is a substantial difference, I believe, between asking whether or not she can complete the condition as opposed to asking whether or not he sees any bar based on his expertise to her completing the condition.   I see that as a substantially different consideration.   (Emphasis added.)

¶ 32 Shannon R.'s counsel insisted that she had laid the proper foundation for the question about the substantial likelihood that Shannon R. is able to meet the conditions within the 12-month period, and that Dr. Wellens was as qualified to give his opinion on this question as Tribal Judge Smart and Ms. Reynolds were to give their opinions.

¶ 33 We turn now to the legal analysis of the correctness of the circuit court's evidentiary ruling excluding Dr. Wellens's expert opinion testimony.

II

¶ 34 The first issue presented is whether the circuit court erred in barring Dr. Wellens from giving his expert opinion regarding the substantial likelihood that Shannon R. is able to meet the conditions established for the safe return of the children to the home within the 12-month period following the fact-finding hearing under Wis. Stat. § 48.424. We begin our discussion by examining the applicable rules of evidence.

**281 *300 ¶ 35 Admissibility of expert testimony is governed by Wis. Stat. § 907.02, which permits expert testimony if the witness possesses specialized knowledge relevant to a specific question and the testimony will assist the trier of fact in understanding the evidence or determining a fact in issue. ^FN13  Section 907.02 on expert witnesses “ ‘continues the tradition of liberally admitting expert testimony’ in Wisconsin.” ^FN14

FN13. Wisconsin Stat. § 907.02 reads in full:  “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

FN14. State v. St. George, 2002 WI 50, ¶ 39, 252 Wis.2d 499, 643 N.W.2d 777 (quoting 7 Daniel Blinka, Wisconsin Practice:  Wisconsin Evidence § 702.202 at 478 (2d ed.2001)).

¶ 36 An expert witness is qualified if “he or she has superior knowledge in the area in which the precise question lies.” ^FN15  An expert witness, though qualified to testify, may not be qualified to testify with regard to a particular question.^FN16

FN15. St. George, 252 Wis.2d 499, ¶ 40, 643 N.W.2d 777 (quoting Tanner v. Shoupe, 228 Wis.2d 357, 370, 596 N.W.2d 805 (Ct.App.1999)).

FN16. St. George, 252 Wis.2d 499, ¶¶ 40-48, 643 N.W.2d 777;  Martindale v. Ripp, 2001 WI 113, ¶¶ 44, 52, 246 Wis.2d 67, 629 N.W.2d 698;  7 Blinka, supra note 14, § 702.4 at 489.

¶ 37 Admissibility of expert testimony is generally within the discretion of the circuit court.^FN17  The circuit court's determination about an expert's qualifications*301  to testify is ordinarily a discretionary determination entitled to substantial deference.   But “even evidentiary rulings may be held to account.” ^FN18  The circuit court's ruling regarding the admissibility of Dr. Wellens's expert opinion will not be disturbed unless it is an erroneous exercise of discretion.^FN19  A circuit court erroneously exercises its discretion if it does not examine the relevant facts, applies the wrong legal standard, or fails to use a demonstrated rational process to reach a reasonable conclusion.^FN20

FN17. St. George, 252 Wis.2d 499, ¶ 37, 643 N.W.2d 777;  Martindale, 246 Wis.2d 67, ¶ 28, 629 N.W.2d 698;  State v. Watson, 227 Wis.2d 167, 186, 595 N.W.2d 403 (1999).

FN18. Martindale, 246 Wis.2d 67, ¶ 45, 629 N.W.2d 698.

FN19. Id. ¶ 28;  State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498 (1983).

FN20. Martindale, 246 Wis.2d 67, ¶ 45, 629 N.W.2d 698;  Morden v. Cont'l AG, 2000 WI 51, ¶ 81, 235 Wis.2d 325, 611 N.W.2d 659.

¶ 38 The issue, then, is whether the circuit court erroneously exercised its discretion in ruling that Shannon R. had not laid a proper foundation qualifying Dr. Wellens as an expert to testify as to whether Shannon R. is likely to be able to meet the conditions for return of her children within the 12-month period.   We conclude that the circuit court erroneously exercised its discretion in barring Dr. Wellens's testimony.

¶ 39 The circuit court erred by not considering all the relevant facts;  by applying the wrong legal standard;  and by failing to demonstrate a rational process to reach a reasonable conclusion.

¶ 40 In deciding the issue of foundation, the circuit court seemed fixated on the psychological tests that Dr. Wellens administered and did not consider the psychologist's experience, training, interview with Shannon R., and review of the voluminous case history.   Thus the circuit court did not consider all the relevant facts.

**282 *302 ¶ 41 Dr. Wellens could address Shannon R.'s abilities and her future behavior based not only on his training and review of her voluminous case history but also on his personal interview with and testing of Shannon R. and from listening to the opinions of others.   His expert opinion on the substantial likelihood that she is able to meet the conditions for return within the time period would have been based on a psychologist's training to understand human behavior and the information he personally had about Shannon R. and the conditions for the return of the children.   His training and the information he personally acquired about Shannon R. from testing and interviewing her provided a foundation for his opinion about not only whether any psychological bar exists to Shannon R.'s completing the conditions for return of the children, but also whether Shannon R. is able to meet the conditions.

¶ 42 The circuit court erred by not applying the proper legal standard.   It failed to recognize that courts ordinarily allow psychologists to opine about the future behavior of an individual.   The United States Supreme Court and this court have recognized that, although it is not easy to predict future behavior and psychiatrists and psychologists are not infallible, they can opine about future behavior.   Such testimony predicting behavior has been introduced in Wisconsin in numerous types of cases.^FN21  In the context of predicting future violent behavior by a sexual predator, this court stated:  “[A]lthough predictions of future dangerousness may be *303 difficult, they are still an attainable, in fact essential, part of our judicial process.” ^FN22

FN21. See, e.g., Barefoot v. Estelle, 463 U.S. 880, 896-903, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)(dangerousness), superceded by statute on other grounds as stated in United States v. Monroe, 974 F.Supp. 1472 (N.D.Ga.1997), quoted with approval in State v. Post, 197 Wis.2d 279, 312, 541 N.W.2d 115 (1995) (ch. 980 case).

FN22. State v. Post, 197 Wis.2d 279, 312, 541 N.W.2d 115 (1995) (citing Barefoot, 463 U.S. at 897, 103 S.Ct. 3383).

¶ 43 The circuit court concluded that “[t]here is no foundation that he has any understanding or expertise in whether she can actually do it.   The social workers, on the other hand, have worked with her in the field on those very subjects, and that's why they're entitled to make that opinion.”   The circuit court seemed to be saying that only those experienced or trained in social work have the expertise to testify in termination of parental rights cases about the substantial likelihood of a parent's meeting the conditions for return of a child within the 12-month time period.   Such a ruling is an error of law.   Thus the circuit court erred as a matter of law in declaring that Dr. Wellens, a psychologist, would know so little about the subject that he should not be permitted to give his opinion.   Dr. Wellens was qualified to state whether in his opinion it is likely that Shannon R. is able to meet the conditions for return within the 12-month period.

¶ 44 Furthermore, it is difficult to understand the circuit court's reasoning in excluding Dr. Wellens's opinion.   We identify several reasons why the circuit court did not demonstrate a rational process to reach a reasonable conclusion.

¶ 45 First, the circuit court's analysis is demonstrably inconsistent with the question asked of Dr. Wellens.   Shannon R.'s attorney asked Dr. Wellens to assess the “likelihood that [Shannon R.] will be able to complete” the conditions for return in 12 months.   The circuit court's analysis, however, emphasizes that Dr. *304 Wellens lacked foundation to testify that Shannon R. “will finish those conditions in twelve months.”

¶ 46 Second, the circuit court sustained an objection to the predictive question it later discussed approvingly.   When Shannon R.'s attorney asked Dr. Wellens if he could identify “any personality characteristics that will present a bar to [Shannon R.'s] completing the conditions in the next twelve months[,]” the circuit court sustained the guardian ad litem's objection on lack of foundation.   However, soon after sustaining this objection, the circuit court stated that Dr. Wellens could testify “whether or not his testing has evidenced any bars or prohibitions to her completing the conditions.”   Dr. Wellens ultimately testified that there is no bar to Shannon R. meeting the conditions but she would need help.

¶ 47 The circuit court saw a difference between asking Dr. Wellens whether or not Shannon R. “can complete the condition as opposed to asking whether or not he sees any bar based on his expertise to her completing the condition.”  ^FN23

FN23. The court of appeals improperly conflated Dr. Wellens's excluded expert opinion testimony that Shannon R. has the capacity to meet the conditions with the admitted expert opinion testimony that she has no psychological impediments that would prevent her from meeting those conditions.  Brown County v. Shannon R., Nos. 2004AP1305 & 2004AP1306, unpublished slip op., ¶ 33, 2004 WL 2453579 (Wis.Ct.App. Nov. 3, 2004).

¶ 48 Third, as Shannon R.'s attorney correctly explained in the circuit court and here, the foundation for Dr. Wellens's offering a predictive opinion was as good or better than the foundation set forth for Brown County's two witnesses who offered their opinions.   Brown County's two expert witnesses, Tribal Judge Smart and Ms. Reynolds, testified, without objection, *305 that it was their opinion that no substantial likelihood exists that Shannon R. is able to meet the conditions for return within 12 months of the hearing.^FN24

FN24. In her briefs, Shannon R. suggests that Melissa Blom, a social worker, testified that Shannon R. is unable to meet her conditions of return within one year.   Brief of Respondent-Appellant-Petitioner at 18-23.   In fact, Ms. Blom testified only about her own interactions with Shannon R., that Brown County had met its obligations under the Indian Child Welfare Act (ICWA), that Shannon R. had not yet met the conditions of return, and that she thought the children would be unsafe in Shannon R.'s care.   Ms. Blom was not asked to state her opinion whether Shannon R. is able to meet the conditions of return.

¶ 49 Yet Tribal Judge Smart did not interview Shannon R. or the children, and he did not conduct any tests.   He relied on the case history and his qualifications in social work.   In light of Tribal Judge Smart's qualifications, it was not reasonable for the circuit court to bar Dr. Wellens's testimony on the ground that Dr. Wellens had not “worked with her in the field.”

¶ 50 Ms. Reynolds relied on her personal interaction with Shannon R., her review of the case history, and her qualifications as a social worker.   Dr. Wellens also had personal interaction with Shannon R., although of significantly shorter duration than Ms. Reynolds's.

¶ 51 Dr. Wellens's training and experience is as a psychologist. His background, tests, interview, and review of the case history provides an expertise comparable to the training of Ms. Reynolds for purposes of qualifying him as an expert witness in the present case.

¶ 52 Thus, we conclude that a proper foundation was laid for Dr. Wellens's proffered testimony regarding whether Shannon R. is able to meet the conditions for return within the 12-month period and that the circuit *306 court erroneously exercised its discretion by excluding Dr. Wellens's expert opinion.

III

¶ 53 The next question we must address is whether the circuit court's erroneous exercise of discretion in excluding Dr. Wellens's expert opinion was prejudicial, reversible error.   The circuit court's erroneous exercise of discretion to exclude Dr. Wellens's expert opinion testimony is reversible error if it interfered with Shannon R.'s due process right to present admissible evidence central to her defense.^FN25

FN25. See Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) (“A fundamental requirement of due process is ‘the opportunity to be heard.’   It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” (quoted source omitted)).   See also St. George, 252 Wis.2d 499, ¶ 52, 643 N.W.2d 777 (“[E]xclusion of evidence is ‘unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.’   The weighty interest of the defendant is to present ‘fundamental elements' of his defense.” (quoted source omitted)).

¶ 54 Shannon R. argued in the court of appeals and in this court that it was fundamentally unfair to preclude Dr. Wellens's expert opinion testimony.   She argued in each court that it was especially unfair that Brown County's experts' opinions were admitted but the expert opinion testimony of Shannon R.'s expert was not.

¶ 55 The court of appeals addressed the fairness issue and simply stated that fundamental fairness did not require admitting Dr. Wellens's testimony.  ^FN26

FN26. Brown County v. Shannon R., Nos. 2004AP1305 & 2004AP1306, unpublished slip op., ¶ 37, 2004 WL 2453579 (Wis.Ct.App. Nov. 3, 2004) (“ ‘Fundamental fairness' does not require that Wellens be allowed to testify to the ultimate issue merely because Smart's unobjected-to testimony encompassed the issue.”).

*307 ¶ 56 The due process protections of the 14th Amendment ^FN27 apply in termination of parental rights cases.^FN28  When the State seeks to terminate familial bonds, it must provide a fair procedure to the parents, even when the parents have been derelict in their parental duties. ^FN29

FN27. “No State shall ... deprive any person of life, liberty, or property, without due process of law....”

FN28. Santosky v. Kramer, 455 U.S. 745, 754-70, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);  Lassiter, 452 U.S. at 27-32, 101 S.Ct. 2153.

FN29. Santosky, 455 U.S. at 753-54, 102 S.Ct. 1388;  Lassiter, 452 U.S. at 27-32, 101 S.Ct. 2153.

¶ 57 The nature and extent of the process due to a party depends on the nature of the case and is influenced by the grievousness of the loss which may be suffered.   Determining what due process requires in any particular case must begin with an analysis of the government function involved and the private interest affected by the governmental action.^FN30  A court balances the private interests, the risk of an erroneous deprivation of the interests through the procedures used, and the government interests in determining the process due.   The factors to be weighed are set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), as follows:

FN30. Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974);  Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

[F]irst, the private interest that will be affected by the official action;  second, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substituted procedural safeguards;  and finally, the Government's interest, including the function involved *308 and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

¶ 58 A parent's private interest in a termination of parental rights proceeding is a grievous loss, namely the permanent deprivation of a legal relationship with his or her child.   Termination “work[s] a unique kind of deprivation.” ^FN31  “[T]he removal of a child from the parent is a penalty as great [as], if not greater, than a criminal penalty....” ^FN32

FN31. M.L.B. v. S.L.J., 519 U.S. 102, 127-28, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996);  see Lassiter, 452 U.S. at 27, 101 S.Ct. 2153.

FN32. Santosky, 455 U.S. at 769, 102 S.Ct. 1388 (quoting H.R.Rep. No. 95-1386, at 22 (1978)).

¶ 59 Although they are civil proceedings,^FN33 termination of parental rights proceedings deserve heightened protections because they implicate a parent's fundamental liberty interest.^FN34  Parents have a fundamental, constitutionally protected liberty interest in the “companionship, care, custody, and management” of their children.^FN35  The United States Supreme Court has repeatedly declared that “personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” ^FN36  “[A] parent's desire for *309 and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ ” ^FN37 “Terminations of parental rights affect some of parents' most fundamental human rights.' ” ^FN38

FN33. See M.W. v. Monroe County Dep't of Human Servs., 116 Wis.2d 432, 442, 342 N.W.2d 410 (1984).

FN34. See Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶ 20-21, 246 Wis.2d 1, 629 N.W.2d 768;  L.K. v. B.B., 113 Wis.2d 429, 441, 335 N.W.2d 846 (1983) (citing Santosky, 455 U.S. at 769, 102 S.Ct. 1388);  In re J.L.W., 102 Wis.2d 118, 132, 306 N.W.2d 46 (1981).

FN35. In re D.L.S., 112 Wis.2d 180, 184, 332 N.W.2d 293 (1983).

FN36. Santosky, 455 U.S. at 753, 102 S.Ct. 1388;  see Lassiter, 452 U.S. at 24-32, 101 S.Ct. 2153;  Lassiter, 452 U.S. at 59-60, 101 S.Ct. 2153 (Stevens, J., dissenting);  see also Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978);  Smith v. Org. of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977);  Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion).

FN37. Lassiter, 452 U.S. at 27, 101 S.Ct. 2153 (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)).

FN38. Evelyn C.R., 246 Wis.2d 1, ¶ 20, 629 N.W.2d 768;  see D.L.S., 112 Wis.2d at 184, 332 N.W.2d 293;  Minguey v. Brookens, 100 Wis.2d 681, 689, 303 N.W.2d 581 (1981).

¶ 60 The State has an urgent interest in a termination of parental rights proceeding to protect the welfare of the children.^FN39  An important aspect of a child's welfare is a parent's relationship with the child.

FN39. Lassiter, 452 U.S. at 27, 101 S.Ct. 2153.

¶ 61 Accordingly, the State and parent share an interest in the accuracy and justice of the decision to terminate parental rights.^FN40

FN40. Id.;  D.L.S., 112 Wis.2d at 185, 332 N.W.2d 293.

¶ 62 The protection of a parent's interests in termination of parental rights proceedings is particularly important in light of the “vast disparity in an involuntary termination case between the ability of the state to prosecute and the ability of the parent to defend.” ^FN41  The United States Supreme Court has described the formidable task a parent faces in defending *310 herself against the involuntary termination of parental rights as follows:

FN41. A.S. v. State, 163 Wis.2d 687, 704, 472 N.W.2d 819 (Ct.App.1991) (Sundby, J., dissenting), cited with approval in A.S. v. State, 168 Wis.2d 995, 1003, 485 N.W.2d 52 (1992).

The State's ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense.   No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding.   The State's attorney usually will be expert on the issues contested and the procedures employed at the fact-finding hearing, and enjoys full access to all public records concerning the family.   The State may call on experts in family relations, psychology, and medicine to bolster its case.   Furthermore, the primary witnesses at the hearing will be the agency's own professional caseworkers whom the State has empowered both to investigate the family situation and to testify against the parents.   Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.^FN42

FN42. Santosky, 455 U.S. at 763, 102 S.Ct. 1388.

¶ 63 Considering that the process due depends on the fundamental liberty interests of the parent, the State's urgent interest in the welfare of children and in the accuracy of a decision terminating parental rights, and the disparity between the ability of the State to prosecute and the ability of a parent to defend in termination proceedings, we now must determine what process was due in this termination of parental rights case regarding the admission of Dr. Wellens's expert opinion.

¶ 64 A fundamental guarantee of due process of law is the opportunity to be heard ^FN43 “at a meaningful time and in a meaningful manner.” ^FN44  “The right to be *311 heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”  ^FN45

FN43. Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914) (civil case).

FN44. Armstrong, 380 U.S. at 552, 85 S.Ct. 1187 (civil case).