State v. C. L. K.

2019 WI 14
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1413 & 2017AP1414
COMPLETE TITLE: In re the termination of parental rights to
S.M.H., a person under the age of 17:
State of Wisconsin,
Petitioner-Respondent,
v.
C. L. K.,
Respondent-Appellant-Petitioner.
------------------------------------------------
In re the termination of parental rights to
J.E.H., a person under the age of 17:
State of Wisconsin,
Petitioner-Respondent,
v.
C. L. K.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 742, 905 N.W.2d 845
(2017 – unpublished)
OPINION FILED: February 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 24, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Christopher R. Foley
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, C.J. dissents, joined by ZIEGLER, J.
(opinion filed)
NOT PARTICIPATING: DALLET, J. did not participate.
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Jeffrey W. Jensen and Law Offices of Jeffrey W. Jensen.
There was an oral argument by Jeffrey W. Jensen.
For the petitioner-respondent, there was a brief filed by
Matthew Westphal, assistant district attorney, with whom on the
brief was John T. Chisholm, district attorney. There was an
oral argument by Matthew Westphal.
A guardian ad litem brief was filed by Michael S. Holzman
and Rosen and Holzman Ltd., Waukesha.
2
2019 WI 14
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2017AP1413 & 2017AP1414
(L.C. Nos. 2016TP302 & 2016TP303)
STATE OF WISCONSIN : IN SUPREME COURT
In re the termination of parental rights to
S.M.H., a person under the age of 17:
FILED
State of Wisconsin,
FEB 19, 2019
Petitioner-Respondent,
Sheila T. Reiff
v. Clerk of Supreme Court
C. L. K.,
Respondent-Appellant-Petitioner.
In re the termination of parental rights to
J.E.H., a person under the age of 17:
State of Wisconsin,
Petitioner-Respondent,
v.
C. L. K.,
Respondent-Appellant-Petitioner.
Nos. 2017AP1413 & 2017AP1414
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 DANIEL KELLY, J. The State of Wisconsin petitioned
the Milwaukee County Circuit Court to terminate C.L.K.'s
parental rights, following which the matter went to trial in due
course.1 After the State rested, the circuit court immediately
decided that Mr. K. was an unfit parent. That is, the circuit
court decided the matter before giving Mr. K. an opportunity to
present his case. The State concedes this was error, but says
it is susceptible to a "harmless-error" review. It is not. We
hold that denying a defendant the opportunity to present his
case-in-chief is a structural error, the consequence of which is
an automatic new trial.
I. BACKGROUND
¶2 The State petitioned the Milwaukee County Circuit
Court to terminate Mr. K.'s parental rights with respect to his
two children, S.M.H. and J.E.H.2 The State's petition alleged
that Mr. K.: (1) abandoned his children, within the meaning of
1This is a review of an unpublished decision of the court
of appeals, State v. C.L.K., Nos. 17AP1413 & 17AP1414,
unpublished slip op. (Wis. Ct. App. Oct. 10, 2017), affirming
the orders of the Milwaukee County Circuit Court, the Honorable
Christopher R. Foley presiding.
2The State's petitions also sought to terminate the
parental rights of E.A.S., the children's mother. Ms. S. did
not contest the petition and voluntarily relinquished her
parental rights to the children.
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Nos. 2017AP1413 & 2017AP1414
Wis. Stat. § 48.415(1)(a)2 (2015-16);3 and (2) failed to assume
parental responsibility, within the meaning of § 48.415(6). Mr.
K. contested these allegations, and so the matter proceeded to a
bench trial after Mr. K. waived his right to a jury.
¶3 When the State wishes to terminate a parent's rights,
it must follow a statutorily-mandated, two-phase trial
procedure.4 The first is the "grounds" phase, the purpose of
which is to determine "if the allegations in a . . . petition to
terminate parental rights are proved by clear and convincing
evidence." Wis. Stat. § 48.31(1). The result of this first
phase is a determination regarding the parent's fitness: "If
grounds for the termination of parental rights are found by the
court or jury, the court shall find the parent unfit." Wis.
Stat. § 48.424(4). If the parent is found unfit, then (and only
then) may the court proceed to the dispositional phase. During
this phase of the proceedings "the court is called upon to
decide whether it is in the best interest of the child that the
parent's rights be permanently extinguished." Steven V. v.
Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856; see
also Wis. Stat. § 48.426(2). Although the parent may still
participate in the disposition phase (through the presentation
of evidence and argument), the circuit court does not revisit
3
All references to the Wisconsin Statutes are to the 2015-
16 version unless otherwise indicated.
4
Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1,
678 N.W.2d 856 ("Wisconsin has a two-part statutory procedure
for the involuntary termination of parental rights.").
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Nos. 2017AP1413 & 2017AP1414
the finding of parental unfitness. See Wis. Stat. § 48.427(1)
("Any party may present evidence relevant to the issue of
disposition . . . ."); Evelyn C.R. v. Tykila S., 2001 WI 110,
¶23, 246 Wis. 2d 1, 629 N.W.2d 768 ("The parent has the right to
present evidence and be heard at the dispositional phase.");
Sheboygan Cty. DHHS v. Julie A.B., 2002 WI 95, ¶37, 255
Wis. 2d 170, 648 N.W.2d 402 ("Once a basis for termination has
been found by the jury and confirmed with a finding of unfitness
by the court, the court must move to the second-step, the
dispositional hearing . . . ."); see also § 48.424(4) (Upon
finding grounds to terminate parental rights, the court shall
find the parent unfit and "proceed immediately to hear evidence
and motions related to the dispositions . . . .").
¶4 This case involves only the "grounds" phase of the
trial, at which the State called Mr. K. as its sole witness.
Mr. K. testified that he had not seen his children "for a couple
of months" and wasn't involved in their lives. He testified
that he didn't visit his children, speak to them, write to them,
text them, or contact their foster home from July 2015 to
September 2016. When the State asked Mr. K. why he didn't
contact his children, Mr. K. stated he didn't have a phone and
that a social worker told him he couldn't contact the foster
home. Mr. K. admits that he didn't make any effort to contact
his children and was hardly involved in their lives for three
years. When pressed as to whether he had a good reason for not
4
Nos. 2017AP1413 & 2017AP1414
contacting them, he said: "There's no reason at all. There's
no excuse."5
¶5 On cross-examination by his own attorney, Mr. K.
reiterated that a social worker told him that he wasn't
permitted to contact his children or allowed to have the foster
home's phone number. Mr. K.'s attorney didn't explore any other
aspects of Mr. K.'s direct testimony.
¶6 On redirect, Mr. K. again admitted that he took no
steps to contact his children and that he did not make any
inquiries about how or if he could contact them. The circuit
court itself asked Mr. K. to relate what the social worker told
him. "[S]he told me that she wasn't allowed to give me any
information on [my children,]" he said. The circuit court also
asked him why he chose not to visit his children even though he
had visitation rights. Mr. K. said he moved out of town in July
2015 for a better job and was unable to visit his children.
¶7 The guardian ad litem renewed his examination, asking
Mr. K. whether anything prevented him from visiting his
children. Mr. K. said that other than being out of town,
nothing prevented him from exercising his visitation rights.
Mr. K's testimony ended with his attorney asking him about the
contact information Mr. K. gave to the social worker.
¶8 The State rested the "grounds" phase of its case at
the conclusion of Mr. K.'s testimony. After some discussion
5
The guardian ad litem's questioning elicited similar
testimony.
5
Nos. 2017AP1413 & 2017AP1414
amongst the parties and the circuit court about the next
procedural step in the case, Mr. K.'s attorney asked that he be
allowed to "put my client on the stand and finish our side of
the case." Before he could do so, however, the guardian ad
litem moved the circuit court for a directed verdict arguing
that the State had proved adequate grounds for terminating Mr.
K.'s parental rights.
¶9 Even though Mr. K. had not yet put on his case, the
circuit court granted the motion. It decided that, even when
viewing the evidence in the light most favorable to Mr. K., he
had abandoned S.M.H. and J.E.H. within the meaning of Wis. Stat.
§ 48.415(a)2.6 After finding Mr. K. to be an unfit parent, the
circuit court proceeded later that same day to the "disposition"
phase of the trial to determine the children's best interests.
At its conclusion, the circuit court permanently terminated Mr.
K.'s parental rights to both his children.
¶10 Mr. K. appealed.7 He argued that deciding whether he
was an unfit parent before he could present his case violated
his due process rights. Further, and more significantly for our
purposes here, Mr. K. said this was no run-of-the-mill error, it
6 Because it found sufficient grounds for termination based
on abandonment, the circuit court chose not to address the
State's second allegation——that Mr. K. failed to assume parental
responsibility within the meaning of Wis. Stat. § 48.415(6).
7 On August 9, 2017, the court of appeals consolidated the
two orders terminating Mr. K.'s parental rights and considered
both of them in a single appeal.
6
Nos. 2017AP1413 & 2017AP1414
was structural error, the consequence of which is a mandatory
reversal. The State admitted error (it could hardly do
otherwise), but maintained the circuit court's decision was
subject to a "harmless-error" review.
¶11 The court of appeals agreed with the State. The court
of appeals said the evidentiary record (to which Mr. K. was
unable to contribute except through the State's adverse
examination and his own counsel's cross-examination)
overwhelmingly established grounds for termination. So the
error, it concluded, was harmless. We granted Mr. K.'s petition
for review.
II. STANDARD OF REVIEW
¶12 The issue we consider here presents a question of law:
"Whether a particular error is structural and therefore not
subject to a harmless error review is a question of law for our
independent review." State v. Nelson, 2014 WI 70, ¶18, 355
Wis. 2d 722, 849 N.W.2d 317 (citing State v. Travis, 2013 WI 38,
¶9, 347 Wis. 2d 142, 832 N.W.2d 491.). Thus, our review is de
novo.
III. DISCUSSION
¶13 The parties agree the circuit court erred when it
decided he was an unfit parent before he had an opportunity to
present his defense. But they go their separate ways with
respect to whether this error was "structural," as opposed to
something subject to "harmless-error" review. Travis, 347
Wis. 2d 142, ¶55 ("Constitutional errors may be structural
errors or may be subject to harmless error analysis."). The
7
Nos. 2017AP1413 & 2017AP1414
difference is important because the former category requires an
automatic reversal, while the latter allows the circuit court's
judgment to stand so long as there is no consequential injury to
the defendant's case.
¶14 The United States Supreme Court provides the rubric we
use in categorizing trial errors. The potentially harmless
ones, it says, are those that "occur[] during presentation of
the case to the jury and their effect may be quantitatively
assessed in the context of other evidence presented in order to
determine whether [they were] harmless beyond a reasonable
doubt." United States v. Gonzales-Lopez, 548 U.S. 140, 148
(2006) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08
(1991)) (internal marks omitted). Only a very limited number of
errors "require automatic reversal," because "most
constitutional errors can be harmless . . . ." Nelson, 355
Wis. 2d 722, ¶29 (quoting Fulminante, 499 U.S. at 306) (internal
marks omitted). In fact, "there is a strong presumption that
any . . . errors that may have occurred are subject to harmless-
error analysis." Neder v. United States, 527 U.S. 1, 8 (1999)
(quoting Rose v. Clark, 478 U.S. 570, 579 (1986)).
¶15 A "structural error," on the other hand, is not
discrete. It is something that either affects the entire
proceeding, or affects it in an unquantifiable way:
Structural errors are different from regular trial
errors because they "are structural defects in the
constitution of the trial mechanism, which defy
analysis by 'harmless-error' standards." Structural
defects affect "[t]he entire conduct of the trial from
beginning to end." An error also may be structural
8
Nos. 2017AP1413 & 2017AP1414
because of the difficulty of determining how the error
affected the trial.
State v. Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 850 N.W.2d 207
(quoted source omitted); see also Weaver v. Massachusetts, 137
S. Ct. 1899, 1907 (2017) ("The purpose of the structural error
doctrine is to ensure insistence on certain basic,
constitutional guarantees that should define the framework of
any criminal trial.").8 So we recognize a structural error by
how it "affect[s] the framework within which the trial proceeds,
rather than being simply an error in the trial process itself."
Id. at 1907 (quoting Fulminante, 499 U.S. at 310) (internal
marks omitted). That is to say, structural errors "permeate the
entire process." Nelson, 355 Wis. 2d 722, ¶34.9 Upon
encountering structural error, we must reverse. Neder, 527
8A defendant's constitutionally-protected right to due
process applies here just as much as it does in the criminal
context: "The due process protections of the 14th Amendment
apply in termination of parental rights cases. 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." Brown Cty. v. Shannon R.,
2005 WI 160, ¶56, 286 Wis. 2d 278, 706 N.W.2d 269. See also
id., ¶59 ("Although they are civil proceedings, termination of
parental rights proceedings deserve heightened protections
because they implicate a parent's fundamental liberty
interest.").
9Structural errors include (but are not limited to) denying
the defendant the right to counsel, the right to counsel of his
choice, the right to self-representation, the right to an
impartial judge, the right to a jury selected without reference
to race, and the right to a public trial. See State v. Nelson,
2014 WI 70, ¶34, 355 Wis. 2d 722, 849 N.W.2d 317 (citations
omitted); State v. Pinno, 2014 WI 74, ¶50, 356 Wis. 2d 106, 850
N.W.2d 207.
9
Nos. 2017AP1413 & 2017AP1414
U.S. 1, 7 (1999) ("Errors of this type are so intrinsically
harmful as to require automatic reversal (i.e., 'affect
substantial rights') without regard to their effect on the
outcome.").10
¶16 For the reasons we discuss below, we conclude that a
proceeding in which a court decides a disputed matter in favor
of the State, before allowing the respondent the option of
presenting his case-in-chief, adversely affects the very
framework within which the trial is supposed to take place.
10
The dissent says the United States Supreme Court recently
clarified that "a new trial does not automatically follow from a
determination that a trial error was structural." Dissent, ¶72
(citing Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017)).
But Weaver addresses the structural error doctrine only in the
context of an ineffective assistance of counsel claim. Id. at
1911 (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). Because of that posture, the Weaver court had to
harmonize: (1) Strickland's holding that there is no Sixth
Amendment violation unless counsel's error prejudiced the
defense; with (2) the "structural error" doctrine's provision
that reversal is the appropriate remedy without a showing of
prejudice.
However, when the defendant presents the structural error
on direct appeal, as he did here, Weaver reaffirms Neder's
prescription that the remedy is an automatic reversal. See
Weaver, 137 S. Ct. at 1910 (citing Neder v. United States, 527
U.S. 1, 8 (1999)). The very quote upon which the dissent relies
says so: "'[S]tructural error' carries with it no talismanic
significance as a doctrinal matter. It means only that the
government is not entitled to deprive the defendant of a new
trial by showing that the error was 'harmless beyond a
reasonable doubt.'" Dissent, ¶72 (quoting Weaver, 137 S. Ct. at
1910). There is only one thing a court may do when the State
may not prove an error's harmlessness: Reverse the judgment
encompassing the error. So Weaver does not support the
proposition for which the dissent cites it.
10
Nos. 2017AP1413 & 2017AP1414
Consequently, the error so permeates the proceeding that it is
incapable of producing a constitutionally-sound result. The
error is, therefore, structural.
¶17 One of our most familiar constitutional guarantees is
that no State shall "deprive any person of life, liberty, or
property, without due process of law . . . ." U.S. Const.
amend. XIV, § 1. Part of the process due to every citizen is
"the opportunity to be heard," which must occur "at a meaningful
time and in a meaningful manner." Armstrong v. Manzo, 380
U.S. 545, 552 (1965) (citation and internal marks omitted).
This guarantee is foundational: "The 'right to be 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.'" Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (quoted source omitted).
¶18 The primary mechanism by which we hear litigants'
disputes is through the adversarial process. "The Constitution
requires (unless the defendant waives his rights) a certain
modicum of adversary procedure even if the outcome is a foregone
conclusion . . . ." Oswald v. Bertrand, 374 F.3d 475, 482 (7th
Cir. 2004) (quoting Walberg v. Israel, 766 F.2d 1071, 1074 (7th
Cir. 1985)). That is why "litigants must be given their day in
court. Access to the courts is an essential ingredient of the
constitutional guarantee of due process." Piper v. Popp, 167
Wis. 2d 633, 644, 482 N.W.2d 353 (1992).
¶19 The value of having one's day in court, however,
depends entirely on what the defendant may do with it: "The
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Nos. 2017AP1413 & 2017AP1414
opportunity to be heard includes the right to 'present a
complete defense.'" Brown Cty. v. Shannon R., 2005 WI 160, ¶65,
286 Wis. 2d 278, 706 N.W.2d 269 (quoting California v.
Trombetta, 467 U.S. 479, 485 (1984)). That means our inquiry
must here become more pointed, more focused. We must determine
whether a proceeding in which the defendant is not afforded an
opportunity to present his case may be fairly characterized as a
"trial" capable of satisfying the demands of Mathews and Piper.
¶20 Our history, and English history too, teach us that
one of the oldest and most constant features of a trial is the
adversarial presentation of a case. That is, a trial is a
procedurally balanced proceeding in which the parties face no
disparate structural barriers in presenting their respective
cases to the decision-maker. Although its precise origins are
unknown, the adversarial trial took root in England shortly
after the Norman conquest of 1066. Ellen E. Sward, The History
of the Civil Trial in the United States, 51 Kan. L. Rev. 347,
354 (2003) (citing James Bradley Thayer, A Preliminary Treatise
on Evidence at the Common Law, 54-67 (Rothman Reprints 1969)
(1898)). The trial mechanism evolved over time, but manifested
many of its modern characteristics as early as the late-
fifteenth century. Some accounts, dating back to 1468, describe
a trial as a proceeding in which "the parties or their counsel
in open court present their evidence to the jury, and witnesses
are examined upon oath." Theodore F.T. Plucknett, A Concise
History of Common Law, 129-30 (Little, Brown & Co. 5th Ed. 1956)
(citation omitted).
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Nos. 2017AP1413 & 2017AP1414
¶21 Today, Sir William Blackstone's eighteenth-century
description of a proper trial is readily familiar:
The nature of the case, and the evidence intended to
be produced, are next laid before [the jury] by
counsel also on the [opening] side; and, when their
evidence is gone through, the advocate on the other
side opens the adverse case, and supports it by
evidence; and then the party which began is heard by
way of reply.
3 William Blackstone, Commentaries on the Laws of England ch.
23, at 367 (Richard Couch, London 21st ed. 1844) (1768).
Commentators since then have consistently described trials as
embodying this mutuality of opportunity. See, e.g., Robert W.
Millar, The Formative Principles of Civil Procedure, 18
Ill. L. Rev. 1, 4 (1923) ("Most obvious . . . of the conceptions
in question is the idea that both parties must be
heard . . . ."); Henry John Stephen, A Treatise on the
Principles of Pleading in Civil Actions 58 (3d Am. ed.
Washington, D.C.: W.H. Morrison 1882) ("The appearance of the
parties . . . in open court . . . was requisite. Upon such
appearance followed the allegations of fact, mutually made on
either side, by which the court received information of the
nature of the controversy.") (Original emphasis omitted and
emphasis added.); Stephan Landsman A Brief Survey of the
Development of the Adversarial System, 44 Ohio St. L.J. 713, 714
(1983) ("[T]he key element[] in the system . . . [was] reliance
on party presentation of evidence . . . ."); Ellen E. Sward,
Values, Ideology, and the Evolution of the Adversary System 64
Ind. L. Rev. 301, 312 (1989) ("[T]he parties themselves are
13
Nos. 2017AP1413 & 2017AP1414
responsible for gathering and presenting evidence and arguments
on behalf of their positions."); Sward, supra, at 302 ("The
adversary system is characterized by party . . . presentation of
evidence and argument, and by a passive decision-maker who
merely listens to both sides . . . .").
¶22 Our history teaches us that one of the essential
attributes of an adversarial trial is the mutuality of the
parties' opportunity to present their cases. The defendant may
choose to forgo his presentation, of course, but without the
option of going forward we cannot dignify the proceeding with
the appellation "trial." Such a proceeding is structurally
unbalanced because the defendant faces an impediment to
presenting his case that the State does not. Here, for example,
the State had the option of choosing who would testify, the
order in which it would present its witnesses, and the
information it would adduce from each witness. It is of no
constitutional moment that the State's case consisted solely of
Mr. K.'s testimony. The relevant fact is that the State enjoyed
the liberty of choosing the parameters of its case.
¶23 Mr. K. enjoyed no such liberty. In the "grounds"
phase of the trial, the circuit court did not allow him to
decide who his witnesses would be, the order in which they would
testify, or the evidence he would seek from each one. By
denying to Mr. K. the same opportunity allowed to the State, the
circuit court required that he present his case only in response
to the prosecutor's questions and within the constraints of his
attorney's cross-examination. Mr. K.'s attorney obviously
14
Nos. 2017AP1413 & 2017AP1414
believed there was more to the defense than he was able to
squeeze into the interstices of the State's case. After the
State rested, he asked "to be able to put my client on the stand
and finish our side of the case." The record does not reflect
with certainty whether "finishing" the case would have involved
additional witnesses.11 But it does show that his attorney
thought there was more to Mr. K.'s defense and that he was not
waiving his right to present it.12
¶24 The State says the circuit court's error was of the
same general nature as those we have previously assayed for
harmlessness. It points out that in Nelson, for example, we
observed that "[a] criminal defendant has a personal,
fundamental right to testify and present his own version of
events in his own words." 355 Wis. 2d 722, ¶19 (internal marks
11
The dissent purports to find conclusive evidence that Mr.
K. would have had no other witness than himself in the "grounds"
phase of the trial. Dissent, ¶84 n.12. That conclusion,
however, depends on the dissent's assumption that the witnesses
in the "disposition" phase of the trial will necessarily be the
same as those in the "grounds" phase. Because the different
phases address different questions, the assumption is unsound.
12
The breadth of cross-examination allowable under
Wisconsin's procedural rules does not affect this analysis. See
Wis. Stat. § 906.11(2) ("A witness may be cross-examined on any
matter relevant to any issue in the case, including credibility.
In the interests of justice, the judge may limit cross-
examination with respect to matters not testified to on direct
examination."). Although the circuit court could have limited
Mr. K's testimony to matters educed by the State, there is no
indication it did. Nonetheless, the comments of Mr. K.'s
attorney demonstrate that, in anticipation of putting on his own
case, he did not introduce all of his evidence through cross-
examination.
15
Nos. 2017AP1413 & 2017AP1414
omitted). Nonetheless, we said that "[a]n error denying the
defendant . . . the right to testify on his or her own behalf
bears the hallmark of a trial error." Id., ¶32. We concluded,
therefore, that this error's effect "on the jury's verdict can
be 'quantitatively assessed in the context of other evidence
presented in order to determine whether its admission was
harmless beyond a reasonable doubt.'" Id. (quoting Fulminante,
499 U.S. at 308.). The State also cites State v. Kramer for the
proposition that "a violation of the right to present a defense
is subject to harmless error analysis." 2006 WI App 133, ¶26,
294 Wis. 2d 780, 720 N.W.2d 459 (citing Crane v. Kentucky, 476
U.S. 683, 691 (1986)). But Kramer's statement is considerably
more ambitious than its holding. Mr. Kramer actually did
present a defense; the circuit court simply excluded the
testimony of one of his witnesses. Id., ¶21. Nelson and
Kramer, therefore, both stand for the proposition that exclusion
of a witness's testimony, whether that of the defendant (Nelson)
or of another (Kramer), is subject to harmless-error review.
The United States Supreme Court came to a similar conclusion
after considering a defendant's claim that his trial was
defective because the trial court excluded evidence that could
have cast doubt on the credibility of his confession. The Court
said that, "[i]n the absence of any valid state justification,
exclusion of this kind of exculpatory evidence deprives a
defendant of the basic right to have the prosecutor's case
encounter and 'survive the crucible of meaningful adversarial
testing.'" Crane, 476 U.S. at 690-91 (quoted source omitted).
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Nos. 2017AP1413 & 2017AP1414
However, both the parties and the Court agreed that this
deprivation was subject to a harmless-error review. Id. at 691.
¶25 The State says the circuit court's error in this case
is of a piece with Nelson, Kramer, and Crane. They may not all
share the same spot on the continuum between harmlessness and
harmfulness, it suggests, but they nonetheless all exist on that
continuum. The difference, it argues, is one of magnitude, not
type. Conceptually, excluding a single piece of evidence is a
fractional denial of the defendant's opportunity to put on his
case. So, if excluding a fractional part of the defendant's
case is subject to harmless-error review (as the State asserts),
it follows that excluding the whole would be subject to the same
test.
¶26 The State's observation is accurate, as far as it
goes. But it does not go far enough. If a trial were a two-
dimensional affair, the State's argument would be more
persuasive. If a case were merely a compilation of individual
facts, then the difference between excluding one piece of the
defendant's evidence and excluding the entirety of the
defendant's case is just a question of quantity. But a trial is
not a formless jumble of evidence dumped in the factfinder's
lap, nor does the factfinder adjudge a party's success by the
size of the heap. A trial is, instead, an exhibition of
evidence presented within an intentionally-ordered construct
designed to produce an intelligible and persuasive account of
the matter sub judice. It is, in that sense, three-dimensional,
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Nos. 2017AP1413 & 2017AP1414
all components of which combine to produce depth, emphasis,
cohesion, and——ultimately——understanding.
¶27 So a trial is not just a contest between competing
facts; it is a contest between the constructs in which they are
presented, something practitioners call the "theory of the
case." The competition between the theories of the case is what
makes the trial adversarial, a dynamic that affects every aspect
of the proceeding, including the type, nature, and extent of
evidence a party may choose to elicit during the opposing
party's case-in-chief. If defense counsel knew beforehand that
the court would deny him the right to present his case, he might
shoehorn as much of his presentation as possible into the
State's case. That might solve the quantitative problem
presented by the circuit court's error. But it could do very
little, if anything, to preserve the defendant's ability to
present his facts according to his theory of the case.
¶28 The error in this case did not affect just the
quantity of evidence presented, such as in Nelson, Kramer, and
Crane. It was, instead, an error affecting the adversarial
nature of the trial. This matter was presented to the circuit
court according to only the State's theory of the case. This
lack of mutuality made the hearing less like an adversarial
contest between the parties and more like a continental-European
18
Nos. 2017AP1413 & 2017AP1414
inquisitorial proceeding.13 The State might be more likely to
see the permeating flaw this introduces into the very framework
of the trial if the defense controlled the sequence of the
State's witnesses and their direct examination, or if the State
could present its case only through the cross-examination of its
own witnesses.
¶29 The harmless-error rubric is incapable of reaching an
error that affects the framework of the trial. By its own
terms, it is designed to address errors whose effect "may
therefore be quantitatively assessed in the context of other
evidence presented in order to determine whether [it was]
harmless beyond a reasonable doubt." Fulminante, 499 U.S. at
307-08 (emphasis added). But there is no quantitative
assessment that can measure the harm of a proceeding in which
13
In contrast to our adversarial system, which relies on
the parties——plural——to illuminate the case through their
competing presentations, is the inquisitorial system, which
emphasizes the judge's role in elucidating the facts. See
Mathew T. King, Security, Scale, Form, and Function: The Search
for Truth and the Exclusion of Evidence in the Adversarial and
Inquisitorial Justice Systems, 12 Int'l Legal Persp. 185, 218
(2001-2002) (The inquisitorial system "allocates most of its
investigatory power in judges."); Abraham S. Goldstein,
Reflections on Two Models: Inquisitorial Themes in American
Criminal Procedure, 26 Stan. L. Rev. 1009, 1018 (1976) ("The
judge dominates the proceeding and often appears to move
relentlessly toward a predetermined result of conviction.").
The inquisitorial system places "little emphasis on oral
presentation of evidence or on cross-examination by [a party's]
counsel." Goldstein, supra, at 1018-19. "Instead, the trial is
mainly a public recapitulation of written materials included in
a dossier compiled earlier by an investigating magistrate." Id.
at 1019.
19
Nos. 2017AP1413 & 2017AP1414
only the State is allowed to present a theory of the case. As
we noted in Nelson, we cannot review a circuit court's error for
harmlessness if its effects are "inherently elusive [and]
intangible . . . ." 355 Wis. 2d 722, ¶33 (quoting Palmer v.
Hendricks, 592 F.3d 386, 399 (3d Cir. 2010)). We have no tools
with which to winnow the ill effects of this type of error,
which makes the harm suffered by Mr. K. inherently elusive and
intangible, and therefore structural. See Pinno, 356
Wis. 2d 106, ¶49 ("An error also may be structural because of
the difficulty of determining how the error affected the
trial.").14
¶30 The dissent's spirited defense of this state-centric
half-trial gets the order of the analysis the wrong way around.
The proper order is first to determine whether the error is
structural in nature. If it is not, then (and only then) we
assay the error's harmlessness——that is to say, we consider
whether it prejudiced the defense. The dissent, however,
started with the second step. It conducted a minute examination
of the record to assess the sufficiency of the evidence,
reasoning that "[p]recedent and fundamental fairness to C.L.K.
14
The dissent says our opinion "does not explain how the
error so affected the trial that its effect could not be
measured or that its burden continued from the start of the
trial without relief to the end of the trial. Instead, ipse
dixit, the majority opinion discovers a new type of structural
error." Dissent, ¶80. This is a surprising statement, inasmuch
as the preceding sixteen paragraphs are devoted to nothing but
that explanation.
20
Nos. 2017AP1413 & 2017AP1414
and to his two children require that we consider evidence
presented at both the factfinding hearing and the dispositional
hearing when determining the effect of the error." Dissent,
¶87. But the "effect on C.L.K." is what we consider when
conducting the second step of the analysis. The first step
(determining whether the error is structural) depends on the
error's effect on the proceedings, not the prejudice to C.L.K.
¶31 This is why cases addressing structural error do not
scrutinize the evidence presented at trial, as the dissent
insists we must do. Dissent, ¶79. The two cases foundational
to the structural error doctrine, Gonzalez-Lopez and Fulminante,
illustrate this neatly. The issue in Gonzalez-Lopez was whether
denying a defendant his right to counsel of his choice was a
structural error. 548 U.S. at 150. He had gone through a
complete trial, so there was an evidentiary record for the Court
to consider if that had been relevant to the question. But in
the course of reaching its decision, the Court completely
ignored it. There is no mystery as to why——the evidence of
record simply has nothing to say about whether an error is
structural. Similarly, in Fulminante, the Court addressed
whether coerced confessions qualified as structural errors. 499
U.S. at 306-12. As in Gonzalez-Lopez, there was an evidentiary
record available for the Court's consideration. But in
concluding there was no structural error, no part of its opinion
addressed the evidence adduced at trial. As these cases
demonstrate, a reviewing court does not determine whether an
error is structural by perusing the evidence. It discovers that
21
Nos. 2017AP1413 & 2017AP1414
answer by evaluating the nature of the error in relation to the
damage it causes to the trial mechanism. So when the dissent
faults us for not joining in an in-depth review of the evidence
against Mr. K., it is actually adjuring us to look in the wrong
place for signs of structural error.
¶32 If we could start with a harmless-error review, as the
dissent does, we would have no need for the structural error
doctrine at all, because we would just affirm all judgments in
which we believe the error caused no harm. That, of course,
depends on the assumption that no error can hide potentially
useful information from us, that we can always perform a
quantitative harmless-error analysis. But the whole point of
the structural error doctrine is that some errors so undermine
the proceeding's integrity that we cannot know what we do not
know. The dissent's approach depends on the belief that a
state-centric half-trial in which the defendant was not allowed
to present his case-in-chief could not have deprived the court
of any instructive information. Based on that assumption, it
totted up the information that is in the record and declared it
good enough. Nowhere, however, does it explore the actual
question presented by this case, to wit, whether the circuit
court's proceedings had enough structural integrity to adduce
the information necessary to decide whether Mr. K. was an unfit
22
Nos. 2017AP1413 & 2017AP1414
parent. So the dissent proceeded as if the error was not
structural without ever inquiring into whether it actually was.15
¶33 Not even the precedent on which the dissent relied for
the motive force of its reasoning supports its conclusion. The
dissent says that Evelyn C.R. teaches us that the solution to
the problem created by the circuit court's error is to borrow
from the "disposition" phase of the trial to supply any deficit
in the "grounds" phase. Dissent, ¶78 (citing Evelyn C.R., 246
Wis. 2d 1, ¶¶28, 32.). That is to say, the dissent believes we
should import evidence and argument regarding the "best
interests of the child" into the ex ante question of Mr. K.'s
fitness as a parent. But that would be helpful only if we are
looking for a way to paper over the circuit court's error. The
first and second phases of the trial address different
questions, so it is not immediately apparent how evidence and
argument from the second could supply the structural integrity
lacking in the first. Nor does the circuit court revisit the
question of the parent's fitness in the "disposition" phase of
the trial, so as a practical matter, the borrowed evidence and
argument will always have precisely zero effect on the circuit
court's determination in the "grounds" phase. A remedy that
depends on ex post facto evidence and argument to justify a
prior judicial determination is rhetoric, not reality.
15We will not address the substance of the dissent's
harmless-error review. The error's structural nature means that
any attempt at assessing its prejudicial effect is, by
definition, an exercise in speculation.
23
Nos. 2017AP1413 & 2017AP1414
¶34 Furthermore, Evelyn C.R. cannot inform our analysis
because the asserted errors there and here are not the same.
Although both cases involve parents who were not allowed to
present their case-in-chief, that is the only similarity they
share. In Evelyn C.R., the mother (Tykila S.) lost her right to
present her case as a sanction for her failure to appear at
trial. Id., ¶16. She did not contest the default and conceded
that failing to appear deprived her of the right to challenge
the State's case. Consequently, the right to put on one's case-
in-chief was not at issue on appeal, and so it should come as no
surprise that our opinion said nothing about it. Tykila S.'s
assignment of error was instead that the circuit court failed to
satisfy its independent statutory and constitutional obligation
to identify sufficient evidence of record to support the state's
case. Id. The issue, therefore, was a straightforward
challenge to the sufficiency of the evidence. Our holding that
evidence presented at the "disposition" phase may supply the
deficit in the "grounds" phase, id., ¶36, says nothing about the
nature of a parent's right to contest the State's case. So
Evelyn C.R. can give us no instruction here for the simple
reason that it did not address, even tangentially, the question
now before the court.
¶35 We have little difficulty in concluding that the error
presented in this matter "affect[s] the framework within which
the trial proceeds, rather than being simply an error in the
trial process itself." Weaver, 137 S. Ct. at 1907. The error
did not just "affect" the framework, it completely eliminated
24
Nos. 2017AP1413 & 2017AP1414
half of it. Further, the remaining half left the State as the
sole expositor of the theory of the case. With so much of the
adversarial nature of the trial excised, there is no adequate
context within which to conduct a quantitative analysis of the
missing testimony. Therefore, we cannot engage in a harmless-
error review. The dissent worries that, in so concluding, we
have recognized a structural error that has no provenance in
prior pronouncements from either this court or the United States
Supreme Court. Dissent, ¶38. Perhaps, however, neither of
these courts have had occasion to address this issue because the
proposition that a state-centric half-trial can produce a
structurally sound result is so astonishing that no one has
thought to make the argument before.
IV. CONCLUSION
¶36 We hold that denying the defendant an opportunity to
present his case-in-chief is a structural error, one that is "so
intrinsically harmful as to require automatic reversal." Neder,
527 U.S. at 7. Consequently, we reverse the court of appeals
25
Nos. 2017AP1413 & 2017AP1414
and remand the cause to the circuit court to conduct a new
trial.16
By the Court.—The decision of the court of appeals is
reversed and the cause is remanded with instructions.
¶37 REBECCA FRANK DALLET, J., did not participate.
16 We decline the State's request that, should we reverse
the court of appeals, we allow the circuit court to resume the
trial where it left off. Perhaps the first part of the trial
could be salvaged by appending Mr. K.'s presentation. That,
however, would require a meticulous examination of the
transcripts to satisfy ourselves that nothing the circuit court
said or did during the State's case foreshadowed its decision to
pretermit the proceedings. This is the type of "'inherently
elusive [and] intangible'" error that is not susceptible to
harmless-error review, which is why there must be a new trial ab
initio. Nelson, 355 Wis. 2d 722, ¶33 (quoting Palmer v.
Hendricks, 592 F.3d 386, 399 (3d Cir. 2010).
26
Nos. 2017AP1413 & 2017AP1414.pdr
¶38 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting).
Structural error is not a "legal rabbit" that a court can pull
out of its hat, and thereby avoid a thorough examination of the
record and the legal principles that must be reviewed when a
parent's rights are terminated. Yet, that is just what the
majority opinion has done today when it creates this new
structural error, never before recognized by the United States
Supreme Court or by this court.
¶39 Although I agree that the circuit court erred in
shortening C.L.K.'s presentation at the factfinding hearing, the
error was a trial error. It was not a structural error because
it did not affect the framework of the entire trial. Rather,
the framework of the trial was established through C.L.K.'s
vigorous representation by counsel before an unbiased factfinder
from which framework we can quantitatively assess the effect of
the error. Accordingly, because the complained-of error is not
structural, it is subject to a harmless-error analysis.
¶40 Furthermore, the error did not affect the validity of
the finding that C.L.K. had abandoned his two young children or
that it was in the best interests of the children that C.L.K.'s
parental rights be terminated so that their foster parents can
adopt them. Because I conclude that the circuit court error was
harmless and, therefore, the two children who were abandoned by
C.L.K. should have a permanent home in which to grow, I
respectfully dissent from the majority opinion.
1
Nos. 2017AP1413 & 2017AP1414.pdr
I. BACKGROUND
¶41 On September 13, 2016, when J.E.H. and S.M.H. were
five and six years old, respectively, the State filed a petition
to terminate C.L.K.'s parental rights based on abandonment, as
defined in Wis. Stat. § 48.415(1)(a)2. (2015-16).1 Both children
have lived with their foster parents, who are their maternal
great aunt and uncle, since March 17, 2014.
¶42 Prior to being removed from their mother's home,
J.E.H.'s mother inflicted second and third-degree burns on both
his feet, requiring hospitalization and extensive treatment for
the burns and for the abuse he suffered. The children's mother
voluntarily terminated her parental rights to both children.
C.L.K. chose to retain his parental rights; therefore, a
petition for involuntary termination was filed for C.L.K.
¶43 On March 23, 2017, the circuit court held the trial on
the termination of C.L.K.'s parental rights, which is a two-step
process.2 C.L.K. was present and he was represented by counsel
at both hearings, as he has been throughout the proceedings that
relate to J.E.H. and S.M.H.3
1 All further references to Wisconsin Statutes are to the
2015-16 version unless otherwise noted.
2 The first hearing focuses on whether facts sufficient to
support a ground for termination exists, and the second hearing
focuses on whether termination of parental rights is in the
child's best interest. Wis. Stat. § 48.424 and Wis. Stat.
§ 48.427.
3 For example, C.L.K. was represented by counsel at his
deposition on January 24, 2017.
2
Nos. 2017AP1413 & 2017AP1414.pdr
¶44 C.L.K testified. He admitted that from July of 2015
to September of 2016 he had no contact with the children. He
did not visit them, or speak with them by phone, or send them
letters or messages of any type. He also testified that during
that 15-month period, he had no contact of any type with the
foster parents. He admitted that he could have called the
foster parents, but he did not try to do so. He also said he
sent the foster parents no letters, nor did he try to have
contact with the children or the foster parents through the
"Bureau." When asked if he could have done so, he said "Yes, I
could have." When asked, "Was there any reason why you could
not?" C.L.K. said, "No."
¶45 C.L.K. was asked if he had any contact with anyone
from the "Bureau of Milwaukee Child Welfare." Again, he said
that he did not. He also was asked:
Q Did you make any effort to reach them to find
out about your children?
A No, I did not.
Q Could you have?
A Yes, I could have.
Q Should you have?
A Yes, I should have.
Q Was there any reason why you did not?
A There's no reason at all. There's no excuse.
. . . .
Q What is the name of their school?
A I don't know.
3
Nos. 2017AP1413 & 2017AP1414.pdr
Q Have you ever spoken to their doctor?
A No.
Q Have you ever spoken to their dentist?
A No.
Q Have you ever spoken to their therapist?
A No.
. . . .
Q So for the past three years what have you done
to be involved in the children's lives?
A Nothing.
The court then asked C.L.K.'s attorney whether he had further
questions for C.L.K. He said, "I'm going to reserve questioning
if this case is allowed to proceed past this point, but I do
have one or two at this point." Counsel then asked C.L.K. his
reasons for having sparse contact with his children and the
foster parents:
Q You mentioned the former social worker led you
to believe -– what was it?
A That I wasn't allowed to have any information
concerning where my children are located.
Q And what led you to believe that?
A That's what she told me.
. . . .
Q What information?
A I was asking for information to get a number
for Ms. Cupil so I can call my children, but I was
told I couldn't have that number.
. . . .
4
Nos. 2017AP1413 & 2017AP1414.pdr
Q So did that prevent you from having contact
with your children?
A Yes.
¶46 On re-direct, the State asked:
Q And since they were brought into care, you've
known where they were because they've always been with
the Cupils.
A Yes.
Q And you testified that you made no efforts
during that time period to get in touch with the
Cupils.
A Yes.
Q And you testified in your deposition that you
could have called, but you didn't.
A I could have tried harder, yes. That's what I
meant when I said I could have called.
¶47 After C.L.K.'s testimony the State submitted certified
copies of relevant orders, which the court admitted into
evidence. The State then rested.
¶48 As the State did so, counsel for C.L.K. began to argue
to the court:
Well, your Honor, I think at this stage you have to
take it in the light most favorable to [C.L.K.]. And
to believe [C.L.K.] has good reason for not having
communication over that period of time we're talking
about is that he, in his mind -– it's subjective -–
but he, in his mind, thought he couldn't because of
what was told to him directly by a social worker. And
also that social worker, [C.L.K.] thought, had a way
to communicate with him if he or she wanted to. . . .
So I think [C.L.K.], again, at this point,
believing everything that he says, that he gives a
good enough reason to have not had the communication.
5
Nos. 2017AP1413 & 2017AP1414.pdr
THE COURT: Well, you've argued a motion that
hasn't been made yet; although I suspected it was
coming.
¶49 The record shows that counsel for C.L.K. actually was
arguing to dismiss the State's case because C.L.K.'s stated
reason constituted good cause for not contacting the children,
the foster parents or the social worker. However, the circuit
court interpreted counsel's argument as opposing a State motion
for a directed verdict, which the State never made.
¶50 It is not clear from the transcript whether the
attorney for the State thought the court's reference to a
"directed verdict" was a motion to dismiss the State's case,
which would have been logical given that it was defense counsel
who made the argument when the State rested, or something else.
Counsel for the State then summarized the overwhelming evidence
of abandonment that had been presented by C.L.K.'s own
testimony.
¶51 Before the court ruled, counsel for C.L.K. said, "[i]f
this is not a directed verdict motion at this point then and the
State rests its case in chief, then I'm going to ask to be able
to put my client on the stand and finish our side of the case."
¶52 The circuit court clearly interpreted defense
counsel's argument at the conclusion of the State's proof on
abandonment as arguing against a State motion for a directed
verdict in favor of the State on the ground of abandonment,
which the State never made. Therefore, after a brief argument
by the guardian ad litem, the court found:
THE COURT: I'm granting the implicit motion for
a directed verdict. I get it, that in [C.L.K.]'s mind
6
Nos. 2017AP1413 & 2017AP1414.pdr
there was justification for what happened here. But
legally, there is not. And I'm addressing only the
abandonment claim.
The court then held that the State had met its burden of proof
of abandonment as a ground for terminating C.L.K.'s parental
rights.4
¶53 Subsequently, with the agreement of counsel, the court
held the dispositional hearing that same day. The State's first
witness was Ms. Cupil, the foster mother.
¶54 Ms. Cupil testified that the children have resided
with her since March of 2014. She testified that she and John,
her husband, wanted to adopt the children. She explained that
she was the children's great aunt and that she loved the
4Abandonment pursuant to Wis. Stat. § 48.415(1)(a)2. was
alleged here, which provides in relevant part:
(1) ABANDONMENT. (a) Abandonment, which, subject to par.
(c), shall be established by proving any of the following:
. . . .
2. That the child has been placed, or continued in a
placement, outside the parent's home by a court order . . . and
the parent has failed to visit or communicate with the child for
a period of 3 months or longer.
. . . .
(c) Abandonment is not established under par.
(a)2. . . . if the parent proves all of the following by a
preponderance of the evidence:
1. That the parent had good cause for having failed to
visit with the child throughout the time period specified in
par. (a)2. . . . .
2. That the parent had good cause for having failed to
communicate with the child throughout the time period specified
in par. (a)2. . . . .
7
Nos. 2017AP1413 & 2017AP1414.pdr
children very much. She said that when the children first came
to live with her and her husband they were two and four years
old, respectively. At the date of the hearing, March 23, 2017,
they were five and seven years old.5
¶55 She explained that the children were well, but that
both children had Von Willebrand's Disease.6 She said she had to
be mindful of cuts and if they hit their heads, because if they
bled, the bleeding could continue. She said that they regularly
visited the doctor, but their symptoms were mild, and that the
children's medical condition did not affect their desire to
adopt them.
¶56 She said that the children's mother, who is
incarcerated for severely burning the younger child, regularly
sends the children notes and has talked on the phone with them.
In regard to C.L.K., she testified:
Q What kind of relationship do the kids have
with [C.L.K.]?
A None.
Q Do they ever ask about him in the home?
A No.
Q Have they ever asked to go see him?
5 The children are now eight and ten years of age.
6 Von Willebrand's Disease is an inherited disorder wherein
the person's blood clots more slowly, which may cause problems
from cuts, or nose bleeds, or other soft tissue injuries. Mayo
Clinic Von Willebrand Disease at
https://mayoclinic.org/diseases-conditions/von-willebrand-
disease/symptoms, last visited December 14, 2018.
8
Nos. 2017AP1413 & 2017AP1414.pdr
A No.
Q Have they ever asked to call him?
A No.
Q Now, there was a little over a year-long
period where there were no visits; correct?
A Yes.
Q Was [C.L.K.] in contact with your home at all
during that time?
A No.
Q Did he send any letters during that time?
A No.
. . . .
Q Now, have you ever talked with the children
about where they want to stay?
A Yes.
Q What have they said?
A We want to stay here with you, mommy and
daddy.
. . . .
Q Do you think you could provide [S.M.H.] and
[J.E.H.] with a permanent and stable situation for
their life?
A Yes, we can.
¶57 C.L.K.'s counsel then questioned Ms. Cupil in regard
to C.L.K.'s parental rights:
Q Do you think it's necessary to terminate
[C.L.K.]'s parental rights?
A Yes.
Q Why?
9
Nos. 2017AP1413 & 2017AP1414.pdr
A He hasn't been there. I mean, he has not been
there. We have been their family. We have been there
for them every day from day one to now. We have been
there.
He has been there because it's court-ordered.
When it wasn't, he didn't make any effort before then.
He didn't call between times. He doesn't make any
efforts to be at any of their appointments. He did
not call just because. He only called because when he
was instructed to. He only called at the times they
told him to call. He didn't do anything more than
that. He only did what he was told to do.
. . . .
So him being the biological father, then be the
father. See, I didn't say that I have a problem with
him. I'm just saying there is no relationship because
he made no effort to make a relationship with us or
his children. That's what I'm saying to you.
¶58 The case manager, Ms. Mariah Ahles, was the next
witness. She had been in charge of the children's case since
September of 2015.
¶59 She was asked about the suitability of the Cupils as
an adoptive home.
Q Do you believe the Cupils are a good fit for
the children?
A Yes, I do.
Q Why is that?
A The Cupils have demonstrated over the last
three years that they are able to make sure that the
children's basic needs are met such as food, shelter,
their schooling.
They work with their school very well to make
sure the kids' mental health needs are met at school.
They've been able to get them to the doctor, the
dentist. When they had therapy services, they were in
therapy.
10
Nos. 2017AP1413 & 2017AP1414.pdr
They've also been able to build relationships
with the children. The children have built
relationships with the Cupils' other children and
their maternal great grandmother.
. . . .
Q Have the children ever asked to go see
[C.L.K.]?
A They have never mentioned him besides when I
mention him.
Q Have they ever asked to call him?
A No.
Q Have they ever just spoke about him?
A No.
. . . .
Q Do you believe a termination and adoption
would provide the children with more permanence and
stability than any other outcome?
A I do.
¶60 She explained that she called C.L.K. monthly
attempting to make connections between him and the children.
His phone became disconnected; however, the letters she sent to
the mailing address C.L.K. gave were not returned.
¶61 C.L.K.'s attorney questioned Ms. Ahles about visits
that the children have had with C.L.K and their responses to
those visits, indicating that their responses generally were
positive.
¶62 The State then rested its termination of parental
rights evidentiary submissions. C.L.K.'s attorney first moved
the defense exhibits that he had used during the proceedings
into evidence. He then called C.L.K. to the witness stand.
11
Nos. 2017AP1413 & 2017AP1414.pdr
C.L.K. began by explaining that he, S.M.K. and the children's
mother lived together when S.M.K. was nine months old until she
was about two.
Q And can you tell me what you did, just
generally? Generally, what was your role?
A Generally, I went to work. And then when I
came home from work, I helped change diapers or
whatever else I needed to do for [S.M.K.] at that
time.
Q All right. And then you moved away, is that
it, or separated somehow?
A Yes. We separated.
Q Okay. And then you had another child
together?
A By the time we separated, she was pregnant
with [J.E.H.] then.
. . . .
Q Okay. So are you saying the mother of the
children essentially stopped you from visiting the
children at some point?
A Yes.
Q Do you know about when that was?
A I'm going to say [J.E.H.] was about one, a
little over one. One and a half, probably.
Q Okay. And then at some point you moved to
Green Bay; is that right?
A Yes.
Q When was that?
A That was in July of 2015.
. . . .
Q Are you currently working?
12
Nos. 2017AP1413 & 2017AP1414.pdr
A Yes.
Q Can you describe your -– Tell us about your
job.
A I'm a PCW for my god son, Mateo Escavel.
Q All right. And where do you currently live?
Is it a house you own or a house you rent?
A No. I'm living with a friend right now.
Q Okay. You understand you're up here
testifying because you're asking that you be reunited
-– or have your children returned; right?
A Correct.
Q You understand that, you know, the reality is
they're probably not going to return them to you if
you don't have a place for them to live; right?
A Correct.
. . . .
Q What about health insurance. How would the
kids, if at all, be covered by health insurance?
A I'm already in the process of looking for a
second job. And the second job, I'll make sure it do
have insurance so I can get it.
. . . .
Q And it was mentioned in testimony earlier that
you're currently in therapy.
A Yes.
. . . .
Q Okay. And can you tell me what your therapy -
– what you cover in therapy?
A We cover my thinking pattern and my
depression.
. . . .
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Q Is there anything else you want to tell the
Court here regarding reunification with your children?
A I know -- Like I said, I know I messed up.
But that mess-up don't make me a bad parent. I mean,
nobody is perfect. I mean, everybody makes mistakes.
I made mine. I learned from it. To me, that should
be the most important thing, you learn from your
mistakes.
¶63 The State then conducted cross-examination as did the
guardian ad litem. The guardian ad litem's questioning focused
on the extremely sparse contacts that C.L.K. had with the
children and concerns about his mental health.
Q You've had -– Every other week you've had
three visits in the last two years with the kids
supervised; correct?
A Yes.
Q And, also, you've had the opportunity to have
phone calls after those visits on Sundays.
A Yes.
Q And you haven't had those phone calls, have
you?
A No.
Q So you've had these three visits and that's
it; correct?
A Yes.
Q In terms of the medication and the mental
health treatment you are getting at the present time,
you've been diagnosed with bipolar disorder?
A Yes.
Q And your doctors recommended medication for
that?
A Yes.
Q And you're not taking medication, are you?
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A No.
¶64 When C.L.K.'s testimony concluded, the court asked his
attorney whether he had other witnesses to present. Counsel
said he had no further witnesses. The argument of counsel
followed. The court took the case under advisement and issued
the written ruling that terminated C.L.K.'s parental rights,
which is the subject of this review.
¶65 The court of appeals affirmed, and I would do likewise
because any error in shortening the factfinding on abandonment
was abrogated by the evidentiary hearing that continued that
same day. C.L.K., who was his own only witness in defense,
testified extensively about his contacts with the children and
why he was absent from their lives for extended periods of time.
No structural error occurred here. The majority errs, and I
respectfully dissent.
II. DISCUSSION
A. Standard of Review
¶66 Whether an error is structural and, therefore, not
subject to a harmless error review, is a question of law for our
independent consideration. State v. Nelson, 2014 WI 70, ¶18,
355 Wis. 2d 722, 849 N.W.2d 317. If an error, though
structural, arises through ineffective assistance of counsel, we
determine as a matter of law whether counsel's deficient
performance was prejudicial. Weaver v. Massachusetts, 137
S. Ct. 1899, 1910 (2017). If the error is not structural, we
independently determine whether the error was harmless. Nelson,
355 Wis. 2d 722, ¶18.
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B. Structural Error
1. General Principles
¶67 Structural error is a judicially created criminal law
doctrine. Structural errors arise out of concerns for
constitutional principles that are required to be upheld to
achieve a fair trial. Arizona v. Fulminante, 499 U.S. 279, 282
(1991). Structural errors affect the framework in which the
entire trial takes place; they differ from other serious errors
that may occur in a trial. State v. Martin, 2012 WI 96, ¶43,
343 Wis. 2d 278, 816 N.W.2d 270. Although the concept of
structural error developed in a criminal law context, it has
been applied in a termination of parental rights proceeding,
which is civil in nature. State v. Shirley E., 2006 WI 129,
¶63, 298 Wis. 2d 1, 724 N.W.2d 623.
¶68 In regard to structural error, we have adopted the
United States Supreme Court's framework for assessing trial
errors that are of a constitutional nature. Nelson, 355 Wis. 2d
722, ¶31 (explaining that we have "embraced" the federal method
for assessing when error may be analyzed as harmless and when
that analysis may not be employed because the error is
structural). When the effect of an error on the outcome of a
trial is capable of assessment, the error is not structural.
Id., ¶5 (citing Fulminante, 499 U.S. at 307-08). Stated
otherwise, a trial error, i.e., an error that occurs in the
presentation of the case to the factfinder and which therefore
may be quantitatively assessed in the context of other evidence,
is not structural. Fulminante, 499 U.S. at 307-08.
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¶69 The United States Supreme Court decision in Weaver
provides a helpful summary and a clear roadmap for assessing
whether a constitutional error is structural. Weaver explained
that, generally, structural errors fall within one of three
categories, although the categories may overlap. They are:
(1) affect an underlying right that protects some interest other
than an adverse determination for the defendant; (2) the error's
quantitative effect on the trial is too hard to measure; and
(3) fundamental unfairness results from the error. Weaver, 137
S. Ct. at 1908. Stated otherwise, structural errors are so
profound in their effect that "a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence." Rose v. Clark, 478 U.S. 570, 577-78 (1986).
However, "if the defendant had counsel and was tried before an
impartial adjudicator, there is a strong presumption that any
other errors that may have occurred are subject to harmless-
error analysis." Id. at 579.
¶70 There are many errors that can occur during a trial,
some are serious and require reversal and some are harmless, not
requiring reversal. However, not all serious errors are
structural; the list of structural errors is limited: Complete
denial of the right to counsel has been held to be structural
error, Gideon v. Wainwright, 372 U.S. 335 (1963); as has trial
before a biased judge, Tumey v. Ohio, 273 U.S. 510 (1927);
racial discrimination in the selection of a grand jury, Vasquez
v. Hillery, 474 U.S. 254 (1986); and the complete denial of
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self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168
(1984).
¶71 The above-listed errors affect the framework in which
a trial is conducted. Their effect starts at the beginning of
the trial and continues throughout the trial. There is no
relief from the burden they impose.
¶72 However, Weaver recently clarified that a new trial
does not automatically follow from a determination that a trial
error was structural. Weaver, 137 S. Ct. at 1910
("'[S]tructural error' carries with it no talismanic
significance as a doctrinal matter. It means only that the
government is not entitled to deprive the defendant of a new
trial by showing that the error was 'harmless beyond a
reasonable doubt.'").
¶73 In regard to the denial of the right to a public
trial, the structural error that was the focus of Weaver, the
court concluded that because the error was raised in the course
of an ineffective assistance of counsel review, the defendant
had to prove prejudice before a new trial would be ordered. Id.
Because Weaver failed in that proof, he failed in his efforts to
obtain a new trial. Therefore, as the United States Supreme
Court has explained, the conclusion that a structural error
occurred does not automatically result in a new trial——sometimes
it does and sometimes it does not. Id.; see also State v.
Pinno, 2014 WI 74, ¶63, 356 Wis. 2d 106, 850 N.W.2d 207
(concluding that the denial of "the Sixth Amendment right to a
public trial may be forfeited when a defendant knows that the
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judge has ordered the public to leave the courtroom but does not
object.").
2. C.L.K.'s Parental Rights Trial
¶74 C.L.K. was represented by competent counsel in all
proceedings before and during the two-step trial.7 The trial was
public and the adjudicator was impartial. Accordingly, there is
a "strong presumption" that any error by the circuit court was
not structural. Rose, 478 U.S. at 579.
¶75 Although evidence on grounds for termination of
C.L.K.'s parental rights and on C.L.K.'s reason for failing to
communicate with his children and with the foster parents was
presented at the first hearing, C.L.K. presented additional
testimony relative to abandonment at the second hearing upon
direct examination by his counsel. It was after the second
hearing and argument of counsel that the court decided to
terminate C.L.K.'s parental rights. These events are similar to
the process that occurred in another case where a termination of
parental rights resulted, Evelyn C.R. v. Tykila S., 2001 WI 110,
246 Wis. 2d 1, 629 N.W.2d 768.
¶76 In Evelyn C.R., the issue was whether Tykila's
parental rights should be terminated because she had abandoned
her son. Id., ¶1. When Tykila violated a court order to appear
in person at the factfinding hearing, the circuit court entered
a default judgment on the grounds of abandonment without taking
7 No allegation of ineffective assistance of counsel has
been raised.
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sufficient testimony to support a finding of abandonment by
clear and convincing evidence. Id., ¶3.
¶77 We held that the circuit court erred in making a
finding of abandonment without first taking evidence sufficient
to support that finding. Id., ¶19. We explained that the
procedure used "failed to comply with the constitutional and
statutory requirements for termination of parental rights." Id.
However, we also explained that at the second step in the two-
step statutory process applicable to termination of parental
rights trials, the "parent's rights are not ignored. The parent
has the right to present evidence and be heard." Id., ¶23.
¶78 We then explained, that notwithstanding the error that
occurred at the factfinding hearing, "we nonetheless must
examine the entire record to determine whether it provides a
factual basis to support the court's finding of grounds for
termination." Id. at ¶32. We did not ignore what had occurred
at the second hearing where proof of abandonment was provided.
We relied on Wis. Stat. § 805.18(2) in part for that conclusion.
Section 805.18(2) provides in relevant part:
No judgment shall be reversed or set aside or new
trial granted in any action or proceeding on the
ground of . . . error as to any matter of pleading or
procedure, unless . . . after an examination of the
entire action or proceeding, it shall appear that the
error complained of has affected the substantial
rights of the party seeking to reverse or set aside
the judgment, or to secure a new trial.
Id., ¶28 (emphasis in Evelyn C.R.).
¶79 So too, in the case before us, we must examine the
entire trial record to determine whether the error of shortening
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the factfinding hearing was abrogated by the participation and
evidence that C.L.K. presented at the second step——i.e., the
dispositional hearing. Id., ¶33. Stated otherwise, we must
consider C.L.K.'s testimony at the dispositional hearing
relative to abandonment in order to assess whether the error at
the grounds hearing permeated the entire trial.
a. Structural Error
¶80 I begin my discussion, based on the record before us
and the applicable law in which structural error is grounded.
It should be noted that the majority opinion refuses to consider
the entire trial that took place before C.L.K.'s parental rights
were terminated. It also does no analysis of the law when
concluding that the error at the factfinding hearing was
structural error. It gives only lip service to the "strong
presumption" that an error is not structural when counsel was
afforded and the factfinder was impartial, which is required by
Rose v. Clark. It does not explain how the error so affected
the trial that its effect could not be measured or that its
burden continued from the start of the trial without relief to
the end of the trial after which C.L.K.'s parental rights were
terminated. Instead, ipse dixit, the majority opinion discovers
a new type of structural error.8
¶81 However, the structural error factors identified in
8 Neither United States Supreme Court, nor this court, has
ever said that affecting the adversary system is structural
error.
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Weaver are my guides.9 As I explain as this discussion of
structural error progresses, the framework in which this
termination of parental rights trial was conducted was sound.
It consisted of vigorous representation by counsel before an
unbiased judge. Although protection of an interest beyond that
of an adverse decision for a defendant can be structural error,
for example when there is a complete denial of the right to
counsel at trial, as in Gideon, the majority opinion identifies
no such interest, and I could find none in this record.
¶82 The majority eloquently and expansively expounds on
the merits of the adversary system.10 It grounds its newly
minted structural error in the alleged failure to permit "the
respondent the option of presenting his case-in-chief" at the
first step of a two-step trial.11 However, the majority opinion
sets out no reasoning and applies no structural error precedent
to support its broad assertion that an error at one hearing
cannot be abrogated by presentations later in the trial.
¶83 Furthermore, the quantitative effect of the error that
occurred in the factfinding hearing is easily measured. Review
9In ¶69 above, I identified three categories into which
structural errors generally fall. As an assist to the reader, I
repeat them here. They are: (1) affect an underlying right
that protects some interest other than an adverse determination
for the defendant; (2) the error's quantitative effect on the
trial is too hard to measure; and (3) fundamental unfairness
results from the error. Weaver v. Massachusetts, 137 S. Ct.
1899, 1908 (2017).
10 See e.g., majority op., ¶¶17-22.
11 Majority op., ¶16.
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of the full record, i.e., both hearings that were held March 23,
2017, shows that C.L.K. fully testified about why he had had so
little contact with his children and the foster parents. He
explained why he thought he had an excuse for "messing-up" and
that he loved his children. The foreshortening of C.L.K.'s
testimony that occurred at the first-step of the trial, was
abrogated by his direct testimony at the second-step, as well as
by his counsel's thorough cross-examination of all witnesses the
State presented at both hearings. As Nelson explained, when the
effect of the error on the outcome of a trial is capable of
assessment, the error is not structural. Nelson, 355 Wis. 2d
722, ¶5 (citing Fulminante, 499 U.S. at 307-08). However,
notwithstanding the law and the record, the majority opinion
ignores the second hearing and all of C.L.K.'s direct testimony.
¶84 In addition, C.L.K. had no witnesses who were not
allowed to testify, as his counsel explained twice.12 First, at
the factfinding hearing counsel said, "[i]f this is not a
directed verdict motion at this point then and the State rests
its case in chief, then I'm going to ask to be able to put my
client on the stand and finish our side of the case." C.L.K.,
himself, was his only witness. Second, his attorney confirmed
12
The majority opinion states, "the circuit court did not
allow him to decide who his witnesses would be, the order in
which they would testify, or the evidence he would seek from
each one." Majority. op., ¶23. The transcript of the trial
conclusively proves that C.L.K. had only one witness, himself,
at both hearings and that he testified fully. There is
absolutely nothing in the record to indicate that C.L.K. had any
witnesses other than himself whom he sought to present during
any part of the trial.
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that C.L.K. had no other witnesses to present when C.L.K.'s
testimony at the dispositional hearing was concluded and counsel
told the court that he had no further witnesses. And think
about it, who besides C.L.K. would know why he did not see,
speak with or attempt to contact his two young children and
their foster parents for 15 months.
¶85 C.L.K. had a full opportunity to explain why his
absence should not be sufficient to prove abandonment. The
transcript of the trial conclusively demonstrates that.
Therefore, we can measure the quantitative effect of this error,
which we could not do if this error were structural. This trial
was not fundamentally unfair.
¶86 Furthermore, Evelyn C.R., which also involved an
ultimate finding of abandonment when the factfinding hearing had
been deficient in regard to proof of abandonment, requires that
we consider the entire record when a proof problem occurs at the
factfinding hearing. Evelyn C.R., 246 Wis. 2d 1, ¶32
(explaining that "we nonetheless must examine the entire record
to determine whether it provides a factual basis to support the
court's finding of grounds for termination."). That is, on
review, we must consider evidence presented at both hearings
that are components of a termination of parental rights trial
before concluding that an initial error in one part of the trial
is sufficient to require a new trial. Id., ¶¶23, 32.
¶87 Precedent and fundamental fairness to C.L.K. and to
his two children require that we consider evidence presented at
both the factfinding hearing and the dispositional hearing when
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determining the effect of the error on the trial. Id. After
having fully considered the record and the law, I conclude that
structural error is nowhere to be found in this record.
b. Harmless Error
¶88 Because the error that occurred is not structural, I
examine whether it is harmless. State v. Travis, 2013 WI 38,
¶66, 347 Wis. 2d 142, 832 N.W.2d 491. The State has the burden
of proving the error was harmless. State v. Tiepelman, 2006 WI
66, ¶3, 291 Wis. 2d 179, 717 N.W.2d 1.
¶89 A termination of parental rights proceeding is civil
in nature. Door Cty. DHFS v. Scott S., 230 Wis. 2d 460, 465,
602 N.W.2d 167 (Ct. App. 1999). Wisconsin has codified its
harmless error doctrine in Wis. Stat. § 805.18(2), which we
quoted in Evelyn C.R. and which I repeated at ¶78 above.
¶90 Notwithstanding that codification, which is applicable
in a criminal law context as well as a civil context, our
decisions have expressed harmless error in a variety of ways:
[I]n order to conclude that an error "did not
contribute to the verdict" within the meaning of
Chapman, a court must be able to conclude "beyond a
reasonable doubt that a rational jury would have found
the defendant guilty absent the error."
State v. Harvey, 2002 WI 93, ¶48 n.14, 254 Wis. 2d 442, 647
N.W.2d 189 (citation omitted).
In other words, if it is "clear beyond a reasonable
doubt that a rational jury would have convicted absent
the error," then the error did not "contribute to the
verdict."
Travis, 347 Wis. 2d 142, ¶67 n.54.
[T]he standard for harmless error is the same for
civil as well as criminal cases.
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Evelyn C.R., 246 Wis. 2d 1, ¶43 (Crooks, J. concurring).
Wisconsin Stat. § 805.18(2) provides that an error
requires reversal only where it has "affected the
substantial rights of the party" claiming
error. . . . An error is significant enough to
undermine confidence in the outcome if there is a
reasonable probability of a different outcome without
the error.
Id., ¶46. I conclude that the complained-of error in the
presentation of evidence in a termination of parental rights
trial is harmless unless there is a reasonable probability that
absent the error, the trial outcome would have been different,
i.e., the parent's rights would not have been terminated.
¶91 The shortening of C.L.K.'s testimony at the first
hearing is the error of which he complains. In order to assess
whether that error was harmless, we must consider the record of
the entire termination of parental rights trial. Waukesha Cty.
v. Steven H., 2000 WI 28, ¶58, 233 Wis. 2d 344, 607 N.W.2d 607
(concluding that "[a] factual basis for several of the
allegations in the petition can be teased out of the testimony
of other witnesses at other hearings"); Evelyn C.R., 246 Wis. 2d
1, ¶32 (concluding that we "must examine the entire record to
determine whether it provides a factual basis to support the
court's finding of grounds for termination.").
¶92 Upon review of the applicable law and the entire
transcript of the two-step trial after which C.L.K.'s parental
rights were terminated, it is apparent that C.L.K. did not
suffer a violation of his substantial rights because the outcome
of the trial would not have been different if he had given the
testimony relative to abandonment at the first hearing that he
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Nos. 2017AP1413 & 2017AP1414.pdr
gave at the second hearing. Accordingly, I conclude that the
State has proved that it is not reasonably probable that there
would have been a different outcome if the error had not
occurred. Therefore, the error was harmless.
III. CONCLUSION
¶93 In conclusion, although I agree that the circuit court
erred in shortening C.L.K.'s presentation at the factfinding
hearing, the error was a trial error. It was not a structural
error because it did not affect the framework of the entire
trial. Rather, the framework of the trial was established
through C.L.K.'s vigorous representation by counsel before an
unbiased factfinder from which framework we can quantitatively
assess the effect of the error. Accordingly, because the
complained-of error is not structural, it is subject to a
harmless-error analysis.
¶94 Furthermore, the error did not affect the validity of
the finding that C.L.K. had abandoned his two young children or
that it was in the best interests of the children that C.L.K.'s
parental rights be terminated so that their foster parents can
adopt them. Because I conclude that the circuit court error was
harmless and, therefore, the two children who were abandoned by
C.L.K. should have a permanent home in which to grow, I
respectfully dissent from the majority opinion.
¶95 I am authorized to state that ANNETTE KINGSLAND
ZIEGLER, J. joins this dissent.
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