State v. C. L. K. (In re S.M.H.)
| Decision Date | 19 February 2019 |
| Docket Number | Nos. 2017AP1413 & 2017AP1414,s. 2017AP1413 & 2017AP1414 |
| Citation | 922 N.W.2d 807,385 Wis.2d 418,2019 WI 14 |
| Parties | 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. |
| Court | Wisconsin Supreme Court |
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.
¶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.
¶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 ; 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) (); Evelyn C.R. v. Tykila S., 2001 WI 110, ¶23, 246 Wis. 2d 1, 629 N.W.2d 768 (); Sheboygan Cty. DHHS v. Julie A.B., 2002 WI 95, ¶37, 255 Wis. 2d 170, 648 N.W.2d 402 (); see also § 48.424(4) ().
¶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: 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 (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, 832 N.W.2d 491 (). 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. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. Ct. 2557, 165 L.Ed.2d 409 (2006) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S. Ct. 1246, 113 L.Ed.2d 302 (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, 849 N.W.2d 317 (quoting Fulminante, 499 U.S. at 306, 111 S. Ct. 1246 ) (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, 119 S. Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 3101, 92 L.Ed.2d...
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