COA: Circuit court properly exercised its discretion in its evidentiary rulings at trial on grounds to terminate parental rights.
State v. D.J., 2025AP1334 and 1335, 9/16/25, District I (one-judge decision; ineligible for publication); case activity
Over the respondent’s evidentiary objections, the COA affirmed the circuit court’s orders terminating D.J.’s parental rights to two of her children.
A jury found that D.J. failed to assume parental responsibility for her two children, Jack and Mia; and that the children were in continuing need of protection and services (continuing CHIPS). The circuit court thereafter terminated D.J.’s parental rights. (¶ 12).
D.J. argued on appeal that her two psychological evaluations admitted at trial were privileged, that she was unfairly prejudiced by the State introducing evidence at trial that she was on bail for two pending criminal charges in South Dakota, and that she was denied the right to present a defense because the circuit court limited the testimony of her former wraparound case worker.
Psychological Evaluations
Regarding the evaluations, the circuit court determined that the diagnoses of ADHD and major depressive disorder were relevant and not overly prejudicial, but excluded any evidence related to a provisional diagnosis of narcissistic personality disorder because the prejudice to D.J. outweighed its probative value. (¶ 14). D.J. did not raise privilege in the circuit court but argued on appeal that Wis. Stat. § 905.04(2) provides that a patient’s confidential communications with her provider are privileged. D.J. cited the psychological reports, which stated “Confidential Mental Health Record,” to maintain that she had an objectively reasonable belief that her communications with the psychologists were confidential. Although she acknowledged signing forms authorizing release of her records, she said only her social workers were allowed to have access to the evaluations. (¶¶ 15-16).
The COA concluded D.J. did not show she had an objectively reasonable expectation that the results of her evaluations would remain confidential because she participated in the evaluations to comply with the CHIPS orders, not as personal therapy. The Court also observed that she signed informed consent forms allowing personnel in the CHIPS cases to monitor her progress using the contents of the evaluations and she was informed about the limits of confidentiality. (¶ 20).
Pending Criminal Cases
Over D.J.’s objection, the circuit court allowed the State to introduce evidence related to the fact that D.J. was on bail for two pending charges in South Dakota for which her bail was revoked. The circuit court limited the evidence to the facts underlying the criminal charges, that D.J. was criminally charged with two misdemeanors, and that she was not in compliance with her conditions of bail and the South Dakota court issued an order of noncompliance. (¶ 22).
D.J. argued the evidence was unfairly prejudicial because the charges were unresolved and could have resulted in dismissal or acquittal. She also claimed the probative value was minimal because the State did not present evidence that her pending criminal charges prevented her from assuming parental responsibility or following the CHIPS orders. (¶ 23).
The COA found that the circuit court “carefully” weighed the prejudicial effect of the evidence against its probative value and minimized any potential prejudice by limiting the evidence to that which it found most relevant; the circuit court did not allow the State to refer to which crimes D.J. was charged or that she had an open warrant for her arrest on those charges. Moreover, the circuit court did not erroneously exercise its discretion by finding the evidence relevant because the fact that D.J. was not in compliance with her bail conditions “spoke directly to whether she had fulfilled the conditions of the CHIPS orders,” which required her to follow all court orders including conditions of bail. (¶ 26).
Right to Present a Defense
D.J. was subject to a CHIPS order herself when her son Jack was born in 2018. She called her case worker (referred to as a “wraparound care coordinator”) to testify at trial. The case worker said her professional involvement with D.J. ended when she turned 18 in 2019, but she continued to be involved with D.J. to provide “informal support.” (¶ 11). D.J. sought to elicit testimony from her case worker regarding services she recommended to D.J.’s case managers and why she disagreed with the services offered to D.J. by Milwaukee Child Protective Services (DMCPS). She also wanted the case worker to testify regarding her parenting skills. The circuit court limited the case worker’s testimony to referrals and recommendations she made when she was D.J.’s wraparound case worker, her factual observations at visits between D.J. and her children, and any statements D.J. made to her expressing concerns for her children. (¶ 27).
Although the COA recognized the due process right to present a defense applies at a TPR proceeding, the Court concluded the circuit court did not erroneously exercise its discretion when it limited the case worker’s testimony. The Court noted that the case worker was not noticed as an expert witness; therefore, it “would have been inappropriate for her to offer an expert opinion as to whether she believed the services provided by DMCPS were properly tailored to D.J.’s personality and characteristics.” (¶ 35). The Court observed that the circuit court accounted for D.J.’s right to present a defense by allowing the case worker to testify on her behalf, while restricting her testimony “in an effort to comply with the rules of evidence and to prevent confusion of the issues.” (¶ 36).