State v. Keller

• Decision Date: 03 March 2021
• Docket Number: Appeal No. 2019AP1573-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Patrick A. KELLER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

397 Wis.2d 122

959 N.W.2d 343

2021 WI App 22

STATE of Wisconsin, Plaintiff-Respondent,

v.Patrick A. KELLER, Defendant-Appellant.^†

Appeal No. 2019AP1573-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: October 27, 2020

Opinion Filed: March 3, 2021

On behalf of the defendant-appellant, the cause was submitted on the briefs of Bradley J. Lochowicz of Lochowicz & Venema LLP, Elkhorn.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sara Lynn Shaeffer, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

GUNDRUM, J.

¶1 Patrick A. Keller appeals from a judgment of conviction following a jury trial on three counts of causing mental harm to a child, his step-daughter A.M., as a party to the crimes. He also appeals from an order denying his motion for postconviction relief.¹ Keller asserts that his constitutional Confrontation Clause rights were violated when the circuit court allowed the admission of statements made by confidential reporters to Child Protective Services (CPS) access workers because he had no ability to confront the reporters at trial regarding their statements.² We conclude that because the statements were not made for the primary purpose of gathering evidence for prosecuting Keller or substituting for testimony in a prosecution against him, they were not "testimonial" and thus, the Confrontation Clause was not implicated. We affirm.

Background

¶2 Keller and his wife, Alicyn Keller,³ were charged with and jointly tried, as a party to the crimes, on three counts each of causing mental harm to a child, between December 7, 2012, and March 4, 2015, in connection with their treatment of and conditions related to A.M. during this time period. A.M., who has significantly disabling autism

, was between the ages of eleven and thirteen. Prior to trial, the State moved for a "preliminary finding" on the admissibility of evidence related to numerous CPS reports contemporaneously prepared in connection with contacts from confidential persons reporting disturbing conditions for and conduct toward A.M. Following a hearing, the circuit court granted the motion, paving the way for the admission of this evidence at trial.

¶3 Various Waukesha County Department of Health and Human Services (Department) employees, including CPS personnel, testified at trial regarding the statements in the CPS reports that Keller challenges generally on appeal. Keller has failed to identify any specific statements of concern related to these reports, yet, we cannot properly consider whether any statement is of a testimonial or nontestimonial nature—our critical inquiry—without examining the statements themselves. While we could conclude that Keller insufficiently develops his Confrontation Clause challenge based on his failure to identify statements of specific concern, we instead choose to examine the statements ourselves.

¶4 Kathy Mullooly, division manager of intake and shared services, which includes CPS, testified that the mission of CPS "is about protecting children, number [one], about helping families be self-sufficient, to be caring family units that are providing for the health and well-being of the children in their care." She explained that "the absolute primary reason that we have [CPS] at all" is to "keep[ ] kids safe."

¶5 Mullooly further testified that she supervises CPS "access workers" who take reports from persons contacting CPS regarding concerns about the well-being of a child ("confidential reporters"). The access workers ask the confidential reporters "many, many questions," such as "How old is the child? How vulnerable is the child? What are the capacities of the caregiver? Are ... there drugs and alcohol involved?[,]" "in order to get that information." The access workers prepare contemporaneous "Child Protective Services Reports" regarding these contacts. Mullooly explained that if "there are some conditions that we need to evaluate, we pass it on to one of our ongoing units, and they file a [Child in Need of Protective Services (CHIPS)] petition ... that has ongoing involvement from social workers at the county." Seeking to remove a child from his or her home is the last resort:

[W]e really want to ... keep kids safe in with their families if at all, possible. We want to keep families intact.

... If we remove a child, we want to place them with relatives, kinship placements ....

... The last thing we want to do is remove a child, but we will if we have to [for safety reasons].

¶6 Specifically addressing several of the reports related to A.M., Mullooly agreed that they "all concern a child in need or at least allegedly." In discussing CHIPS petitions generally, Mullooly expressed that such petitions do not "automatically mean a law has been broken," rather they "mean[ ] ... that there are safety concerns in that home."

¶7 Department access supervisor Sarah Vargas testified that when a confidential reporter contacts CPS regarding "concern for a child," the access worker prepares a report, which is then sent to an access supervisor to make a decision on whether investigation is warranted. She explained that the criteria for that decision are "not ... criminal criteria." When asked if the purpose of this decision-making process is "to keep families together and kids safe" or "for litigation purposes going forward," Vargas responded that the purpose is "to ensure the safety of children."

¶8 Vargas testified to a January 30, 2013 report she prepared based upon a contact she received from a confidential reporter when she previously worked as an access worker. Vargas explained that the reporter was "concerned for [A.M.] in her home," having witnessed Keller "yell[ ] and scream at [A.M.] nonstop [for] at least 20 minutes" and be "very degrading" and "verbally abusive" toward A.M., "screaming that they don't want her, she is no good, she is worthless." Keller was "screaming" about A.M. "having urination and bowel movement accidents" "on purpose," which accidents the reporter indicated "only happen[ ] when [A.M. is] at home." The reporter further told Vargas that A.M.’s "accidents" were shown "through testing" to "not [be] due to ... a medical issue." The reporter conveyed that two younger children were also present during the screaming, and the reporter referenced also witnessing Keller "scream at them and harshly put them into a chair if they were standing up and moving around." The reporter expressed that Keller "was seen as very threatening and ugly in how he talked to all the children."

¶9 Vargas next testified to a February 12, 2013 report she prepared, explaining that the confidential reporter who contacted CPS that day informed her that A.M. "came to school with a soiled diaper" and the "contents of the diaper were all over" and added that "[t]here have been other occasions ... where she comes to school with soiled diapers" and "the contents ... often appear[ ] dried, as if the diaper has not been changed for a long ... time." The reporter also conveyed that "[a]t school [A.M. is] potty trained" but at home her "caregivers place her in diapers." According to this reporter, bruising was observed on A.M.’s right arm and shoulder, which looked as if "someone grabbed [her] forcibly," but A.M. gave "[two] different stories" related to the bruising, one that "she fell on the ice" and the other that "her mother hit her." The reporter indicated that A.M. was "difficult to get information from" and was "not a good communicator."

¶10 Another access supervisor, Bobbi Borchardt, testified regarding the December 7, 2012 and September 4, 2014 reports she prepared when she was an access worker. Regarding the 2012 report, she stated that the confidential reporter told her that A.M. was "wearing the same clothes [two] days in a row," had been wearing a diaper and clothes that had been "soiled with dried feces and urine," and stated, "Mommy knew I pooped but she was crying and she just put my clothes on." The reporter added that A.M. "wears diapers at home and then to and from school ... despite ... wearing underwear in other areas like at the grandparents’ home without having any toileting issues"; wearing diapers was "at the insistence of the mother"; and "some mornings [A.M.] reports not eating breakfast at home." The reporter further indicated that A.M.’s younger stepsisters "had been given toys and other items" and Keller, their biological father, "interacted with them frequently" but that A.M. "was not provided with any of these items and [had] no interaction" with Keller. The reporter also conveyed that because of A.M.’s autism

, A.M. was "not able to provide ... a reliable narrative."

¶11 The confidential reporter who provided the information for the 2014 report indicated to Borchardt that A.M. "had stated that her mom hurts her," giving an example of her mother hitting her "when she goes upstairs when she isn't supposed to." The reporter, however, had observed no injuries to A.M. that suggested abuse. The reporter added that A.M. "eats dinner in her room"; "does not play games or watch movies"; "has to ask permission to get food when she's hungry or [to] use the bathroom," adding that A.M. "needs assistance toileting"; and "appear[s] to have a distended stomach which [is] either ... due to constipation or ... that she doesn't always eat dinner."

¶12 Access worker Kathryn Flansburg testified to reports she prepared based on confidential reporter contacts on August 1, 2013, and December 5, 2014. The 2013 reporter indicated that A.M. "doesn't always get her medication the way she is supposed to [a]nd sometimes her mother doesn't give her anything"; A.M. "has poop all the way up her back and the poop appears crusty and hard which look[s] like it ha[s] been there a while"; A.M.’s mother "doesn't always change" A.M.’s PullUps because "she doesn't have time to deal with [A.M.] because she's busy dealing with her husband and her other [two] ch...