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
OF DECISION OF THE COURT OF APPEALS Reported at 378 Wis.2d
742, 905 N.W.2d 845
of Appeal: Circuit county L.C. Nos. 2016TP302 & 2016TP303
Milwaukee: Christopher R. Foley Judge
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.
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.
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. 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.
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. 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); 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.
When the State wishes to terminate a parent's rights, it
must follow a statutorily-mandated, two-phase trial
procedure. 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 . . . .").
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."
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.
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.
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.
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.
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. 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.
Mr. K. appealed. 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.
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.
STANDARD OF REVIEW
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.
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.
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)).
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."). 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. 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 .
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.
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).
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).
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.
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).
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 . . . .").
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.
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. 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
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.
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.
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,
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.
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. 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.
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.") .
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
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
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
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.
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
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.
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, 
decision of the court of appeals is reversed and the cause is
remanded with instructions.
REBECCA FRANK DALLET, J., did not participate.
PATIENCE DRAKE ROGGENSACK, C.J. (dissenting).
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.
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.
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
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). Both children have lived with their
foster parents, who are their maternal great aunt and uncle,
since March 17, 2014.
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.
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. 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.
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.
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
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?
Q Have you ever spoken to their dentist?
Q Have you ever spoken to their therapist?
Q So for the past three years what have you done to be
involved in the children's lives?
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 ...