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In re Termination of Parental Rights To S.M.H.

Supreme Court of Wisconsin

February 19, 2019

In re the Termination of Parental rights to S.M.H., a person under the age of 17:
C. L. K., Respondent-Appellant-Petitioner. State of Wisconsin, Petitioner-Respondent, In re the termination of parental rights to J.E.H., a person under the age of 17: State of Wisconsin, Petitioner-Respondent,
C. L. K., Respondent-Appellant-Petitioner.

          Submitted on Briefs: oral argument: September 24, 2018

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 378 Wis.2d 742, 905 N.W.2d 845

          Source of Appeal: Circuit county L.C. Nos. 2016TP302 & 2016TP303 Milwaukee: Christopher R. Foley Judge

          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.

          DANIEL KELLY, J.

         ¶1 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 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');">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 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 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 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 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.


         ¶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');">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.


         ¶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 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 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');">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 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. 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 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).

         ¶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, 18111. 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 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 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 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). 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, 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 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 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. 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 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 i_s 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 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.

         ¶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 casein-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 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.


         ¶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 and remand the cause to the circuit court to conduct a new trial, [16]

         The decision of the court of appeals is reversed and the cause is remanded with instructions.

         ¶37 REBECCA FRANK DALLET, J., did not participate.

         ¶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.

         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]

         ¶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.
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 ...

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