                                                             2019 WI 14

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2017AP1413 & 2017AP1414
COMPLETE TITLE:        In re the termination of parental rights to
                       S.M.H., a person under the age of 17:

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

                       State of Wisconsin,
                                 Petitioner-Respondent,
                            v.
                       C. L. K.,
                                 Respondent-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                         Reported at 378 Wis. 2d 742, 905 N.W.2d 845
                                     (2017 – unpublished)

OPINION FILED:         February 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 24, 2018

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Christopher R. Foley

JUSTICES:
   CONCURRED:
   DISSENTED:          ROGGENSACK, C.J. dissents, joined by ZIEGLER, J.
                       (opinion filed)
  NOT PARTICIPATING:   DALLET, J. did not participate.

ATTORNEYS:


       For the respondent-appellant-petitioner, there were briefs
filed by Jeffrey W. Jensen and Law Offices of Jeffrey W. Jensen.
There was an oral argument by Jeffrey W. Jensen.
    For the petitioner-respondent, there was a brief filed by
Matthew Westphal, assistant district attorney, with whom on the
brief was John T. Chisholm, district attorney.    There was an
oral argument by Matthew Westphal.


    A guardian ad litem brief was filed by Michael S. Holzman
and Rosen and Holzman Ltd., Waukesha.




                                2
                                                                  2019 WI 14




                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
Nos.    2017AP1413 & 2017AP1414
(L.C. Nos.   2016TP302 & 2016TP303)

STATE OF WISCONSIN                      :             IN SUPREME COURT

In re the termination of parental rights to
S.M.H., a person under the age of 17:


                                                                FILED
State of Wisconsin,
                                                           FEB 19, 2019
             Petitioner-Respondent,
                                                              Sheila T. Reiff
       v.                                                  Clerk of Supreme Court


C. L. K.,

             Respondent-Appellant-Petitioner.


In re the termination of parental rights to
J.E.H., a person under the age of 17:



State of Wisconsin,

             Petitioner-Respondent,

       v.

C. L. K.,

             Respondent-Appellant-Petitioner.
                                                    Nos.    2017AP1413 & 2017AP1414



      REVIEW of a decision of the Court of Appeals.                 Reversed and
remanded.


      ¶1    DANIEL KELLY, J.        The State of Wisconsin petitioned
the   Milwaukee    County     Circuit       Court   to      terminate     C.L.K.'s
parental rights, following which the matter went to trial in due
course.1    After the State rested, the circuit court immediately
decided that Mr. K. was an unfit parent.                   That is, the circuit
court decided the matter before giving Mr. K. an opportunity to
present his case.         The State concedes this was error, but says
it is susceptible to a "harmless-error" review.                  It is not.     We
hold that denying a defendant the opportunity to present his

case-in-chief is a structural error, the consequence of which is
an automatic new trial.
                               I.   BACKGROUND
      ¶2    The   State    petitioned       the   Milwaukee      County    Circuit
Court to terminate Mr. K.'s parental rights with respect to his
two children, S.M.H. and J.E.H.2             The State's petition alleged

that Mr. K.:      (1) abandoned his children, within the meaning of


      1This is a review of an unpublished decision of                   the court
of appeals, State v. C.L.K., Nos. 17AP1413 &                            17AP1414,
unpublished slip op. (Wis. Ct. App. Oct. 10, 2017),                     affirming
the orders of the Milwaukee County Circuit Court, the                   Honorable
Christopher R. Foley presiding.
      2The State's petitions also sought to terminate the
parental rights of E.A.S., the children's mother. Ms. S. did
not contest the petition and voluntarily relinquished her
parental rights to the children.


                                        2
                                                        Nos.   2017AP1413 & 2017AP1414



Wis. Stat. § 48.415(1)(a)2 (2015-16);3 and (2) failed to assume
parental responsibility, within the meaning of § 48.415(6).                            Mr.
K. contested these allegations, and so the matter proceeded to a
bench trial after Mr. K. waived his right to a jury.
       ¶3      When the State wishes to terminate a parent's rights,
it     must        follow     a   statutorily-mandated,             two-phase     trial
procedure.4         The first is the "grounds" phase, the purpose of
which is to determine "if the allegations in a . . . petition to
terminate parental rights are proved by clear and convincing
evidence."          Wis. Stat. § 48.31(1).             The result of this first
phase is a determination regarding the parent's fitness:                               "If
grounds for the termination of parental rights are found by the

court or jury, the court shall find the parent unfit."                             Wis.
Stat. § 48.424(4).            If the parent is found unfit, then (and only
then) may the court proceed to the dispositional phase.                          During
this       phase   of   the   proceedings       "the   court   is    called     upon    to
decide whether it is in the best interest of the child that the
parent's       rights    be   permanently       extinguished."         Steven    V.     v.

Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856; see
also Wis. Stat. § 48.426(2).                    Although the parent may           still
participate in the disposition phase (through the presentation
of evidence and argument), the circuit court does not revisit

       3
       All references to the Wisconsin Statutes are to the 2015-
16 version unless otherwise indicated.
       4
       Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1,
678 N.W.2d 856 ("Wisconsin has a two-part statutory procedure
for the involuntary termination of parental rights.").


                                            3
                                                           Nos.       2017AP1413 & 2017AP1414



the finding of parental unfitness.                       See Wis. Stat. § 48.427(1)

("Any      party    may    present     evidence      relevant          to   the    issue     of
disposition . . . ."); Evelyn C.R. v. Tykila S., 2001 WI 110,
¶23, 246 Wis. 2d 1, 629 N.W.2d 768 ("The parent has the right to
present evidence and be heard at the dispositional phase.");
Sheboygan       Cty.      DHHS   v.    Julie      A.B.,        2002     WI 95,     ¶37,     255
Wis. 2d 170, 648 N.W.2d 402 ("Once a basis for termination has
been found by the jury and confirmed with a finding of unfitness
by   the     court,      the   court   must       move    to    the     second-step,        the
dispositional           hearing . . . .");         see     also        § 48.424(4)        (Upon
finding grounds to terminate parental rights, the court shall
find the parent unfit and "proceed immediately to hear evidence

and motions related to the dispositions . . . .").
       ¶4     This case involves only the "grounds" phase of the
trial, at which the State called Mr. K. as its sole witness.
Mr. K. testified that he had not seen his children "for a couple
of months" and wasn't involved in their lives.                                He testified
that he didn't visit his children, speak to them, write to them,
text    them,      or    contact   their      foster      home    from      July    2015     to
September 2016.            When the State asked Mr. K. why he didn't
contact his children, Mr. K. stated he didn't have a phone and
that a social worker told him he couldn't contact the foster
home.       Mr. K. admits that he didn't make any effort to contact
his children and was hardly involved in their lives for three
years.      When pressed as to whether he had a good reason for not




                                              4
                                                             Nos.     2017AP1413 & 2017AP1414



contacting them, he said:                    "There's no reason at all.                 There's
no excuse."5
       ¶5     On    cross-examination            by    his     own       attorney,      Mr.   K.
reiterated         that    a    social        worker    told       him    that     he     wasn't
permitted to contact his children or allowed to have the foster
home's phone number.             Mr. K.'s attorney didn't explore any other
aspects of Mr. K.'s direct testimony.
       ¶6     On redirect, Mr. K. again admitted that he took no
steps to contact his children and that he did not make any
inquiries about how or if he could contact them.                                 The circuit
court itself asked Mr. K. to relate what the social worker told
him.        "[S]he told me that she wasn't allowed to give me any

information on [my children,]" he said.                        The circuit court also
asked him why he chose not to visit his children even though he
had visitation rights.                Mr. K. said he moved out of town in July
2015 for a better job and was unable to visit his children.
       ¶7     The guardian ad litem renewed his examination, asking
Mr.    K.     whether      anything          prevented       him     from    visiting         his

children.          Mr.    K.    said    that    other    than        being   out     of   town,
nothing      prevented         him    from    exercising       his    visitation        rights.
Mr. K's testimony ended with his attorney asking him about the
contact information Mr. K. gave to the social worker.
       ¶8     The State rested the "grounds" phase of its case at
the conclusion of Mr. K.'s testimony.                           After some discussion

       5
       The      guardian         ad    litem's      questioning          elicited       similar
testimony.


                                                5
                                                 Nos.   2017AP1413 & 2017AP1414



amongst    the   parties   and   the   circuit    court    about    the   next
procedural step in the case, Mr. K.'s attorney asked that he be
allowed to "put my client on the stand and finish our side of
the case."       Before he could do so, however, the guardian ad
litem moved the circuit court for a directed verdict arguing
that the State had proved adequate grounds for terminating Mr.
K.'s parental rights.
     ¶9    Even though Mr. K. had not yet put on his case, the
circuit court granted the motion.          It decided that, even when
viewing the evidence in the light most favorable to Mr. K., he
had abandoned S.M.H. and J.E.H. within the meaning of Wis. Stat.
§ 48.415(a)2.6     After finding Mr. K. to be an unfit parent, the

circuit court proceeded later that same day to the "disposition"
phase of the trial to determine the children's best interests.
At its conclusion, the circuit court permanently terminated Mr.
K.'s parental rights to both his children.
     ¶10   Mr. K. appealed.7      He argued that deciding whether he
was an unfit parent before he could present his case violated

his due process rights.      Further, and more significantly for our
purposes here, Mr. K. said this was no run-of-the-mill error, it


     6 Because it found sufficient grounds for termination based
on abandonment, the circuit court chose not to address the
State's second allegation——that Mr. K. failed to assume parental
responsibility within the meaning of Wis. Stat. § 48.415(6).
     7 On August 9, 2017, the court of appeals consolidated the
two orders terminating Mr. K.'s parental rights and considered
both of them in a single appeal.


                                       6
                                                             Nos.    2017AP1413 & 2017AP1414



was structural error, the consequence of which is a mandatory
reversal.         The     State    admitted       error        (it     could     hardly     do
otherwise),      but     maintained       the    circuit       court's      decision       was
subject to a "harmless-error" review.
     ¶11    The court of appeals agreed with the State.                            The court
of appeals said the evidentiary record (to which Mr. K. was
unable     to    contribute        except        through       the      State's      adverse
examination        and      his       own        counsel's            cross-examination)
overwhelmingly      established           grounds      for    termination.           So    the
error, it concluded, was harmless.                  We granted Mr. K.'s petition
for review.
                            II.     STANDARD OF REVIEW

     ¶12    The issue we consider here presents a question of law:
"Whether    a    particular       error     is    structural         and   therefore       not
subject to a harmless error review is a question of law for our
independent review."              State v. Nelson,             2014 WI 70, ¶18, 355

Wis. 2d 722, 849 N.W.2d 317 (citing State v. Travis, 2013 WI 38,
¶9, 347 Wis. 2d 142, 832 N.W.2d 491.).                        Thus, our review is de
novo.
                                   III.    DISCUSSION
     ¶13    The    parties        agree    the    circuit       court      erred    when   it
decided he was an unfit parent before he had an opportunity to
present    his    defense.         But    they    go    their       separate      ways    with
respect to whether this error was "structural," as opposed to
something       subject    to     "harmless-error"            review.           Travis,    347
Wis. 2d 142,       ¶55    ("Constitutional             errors       may    be    structural
errors or may be subject to harmless error analysis.").                                    The
                                             7
                                                           Nos.    2017AP1413 & 2017AP1414



difference is important because the former category requires an
automatic reversal, while the latter allows the circuit court's
judgment to stand so long as there is no consequential injury to
the defendant's case.
      ¶14    The United States Supreme Court provides the rubric we
use   in    categorizing        trial     errors.         The     potentially       harmless
ones, it says, are those that "occur[] during presentation of
the case to the jury and their effect may be quantitatively
assessed in the context of other evidence presented in order to
determine        whether     [they     were]       harmless      beyond      a    reasonable
doubt."      United        States    v.    Gonzales-Lopez,            548   U.S. 140,        148
(2006)     (quoting     Arizona      v.    Fulminante,          499    U.S. 279,        307-08

(1991)) (internal marks omitted).                     Only a very limited number of
errors       "require           automatic           reversal,"           because            "most
constitutional         errors    can      be   harmless . . . ."                 Nelson,     355
Wis. 2d 722, ¶29 (quoting Fulminante, 499 U.S. at 306) (internal
marks omitted).            In fact, "there is a strong presumption that
any . . . errors that may have occurred are subject to harmless-
error analysis."            Neder v. United States, 527 U.S. 1, 8 (1999)
(quoting Rose v. Clark, 478 U.S. 570, 579 (1986)).
      ¶15    A    "structural        error,"       on    the     other      hand,      is    not
discrete.         It   is    something         that     either    affects        the    entire
proceeding, or affects it in an unquantifiable way:

      Structural errors are different from regular trial
      errors because they "are structural defects in the
      constitution of the trial mechanism, which defy
      analysis by 'harmless-error' standards."    Structural
      defects affect "[t]he entire conduct of the trial from
      beginning to end."   An error also may be structural

                                               8
                                                        Nos.    2017AP1413 & 2017AP1414


      because of the difficulty of determining how the error
      affected the trial.
State v. Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 850 N.W.2d 207

(quoted source omitted); see also Weaver v. Massachusetts, 137
S. Ct. 1899, 1907 (2017) ("The purpose of the structural error
doctrine     is     to   ensure        insistence          on      certain      basic,
constitutional guarantees that should define the framework of
any criminal trial.").8          So we recognize a structural error by
how it "affect[s] the framework within which the trial proceeds,

rather than being simply an error in the trial process itself."
Id.   at   1907   (quoting     Fulminante,        499    U.S. at     310)    (internal
marks omitted).      That is to say, structural errors "permeate the
entire     process."         Nelson,     355      Wis. 2d 722,        ¶34.9          Upon
encountering      structural    error,       we   must    reverse.          Neder,    527

      8A defendant's constitutionally-protected right to due
process applies here just as much as it does in the criminal
context:   "The due process protections of the 14th Amendment
apply in termination of parental rights cases.   When the State
seeks to terminate familial bonds, it must provide a fair
procedure to the parents, even when the parents have been
derelict in their parental duties."   Brown Cty. v. Shannon R.,
2005 WI 160, ¶56, 286 Wis. 2d 278, 706 N.W.2d 269.     See also
id., ¶59 ("Although they are civil proceedings, termination of
parental rights proceedings deserve heightened protections
because   they  implicate   a   parent's   fundamental   liberty
interest.").
      9Structural errors include (but are not limited to) denying
the defendant the right to counsel, the right to counsel of his
choice, the right to self-representation, the right to an
impartial judge, the right to a jury selected without reference
to race, and the right to a public trial. See State v. Nelson,
2014 WI 70, ¶34, 355 Wis. 2d 722, 849 N.W.2d 317 (citations
omitted); State v. Pinno, 2014 WI 74, ¶50, 356 Wis. 2d 106, 850
N.W.2d 207.


                                         9
                                                       Nos.   2017AP1413 & 2017AP1414



U.S. 1,     7 (1999)     ("Errors of        this     type   are so       intrinsically
harmful     as    to    require     automatic         reversal      (i.e.,       'affect
substantial      rights')       without   regard      to    their   effect       on    the
outcome.").10
      ¶16    For the reasons we discuss below, we conclude that a
proceeding in which a court decides a disputed matter in favor
of   the    State,     before    allowing      the   respondent      the    option      of
presenting       his    case-in-chief,         adversely      affects       the       very
framework     within which        the trial is         supposed     to    take    place.


      10
       The dissent says the United States Supreme Court recently
clarified that "a new trial does not automatically follow from a
determination that a trial error was structural." Dissent, ¶72
(citing Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017)).
But Weaver addresses the structural error doctrine only in the
context of an ineffective assistance of counsel claim.    Id. at
1911 (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)).   Because of that posture, the Weaver court had to
harmonize:   (1) Strickland's holding that there is no Sixth
Amendment violation unless counsel's error prejudiced the
defense; with (2) the "structural error" doctrine's provision
that reversal is the appropriate remedy without a showing of
prejudice.

     However, when the defendant presents the structural error
on direct appeal, as he did here, Weaver reaffirms Neder's
prescription that the remedy is an automatic reversal.       See
Weaver, 137 S. Ct. at 1910 (citing Neder v. United States, 527
U.S. 1, 8 (1999)). The very quote upon which the dissent relies
says so:    "'[S]tructural error' carries with it no talismanic
significance as a doctrinal matter. It means only that the
government is not entitled to deprive the defendant of a new
trial by showing that the error was 'harmless beyond a
reasonable doubt.'" Dissent, ¶72 (quoting Weaver, 137 S. Ct. at
1910).   There is only one thing a court may do when the State
may not prove an error's harmlessness:      Reverse the judgment
encompassing the error.       So Weaver does not support the
proposition for which the dissent cites it.


                                          10
                                                             Nos.   2017AP1413 & 2017AP1414



Consequently, the error so permeates the proceeding that it is
incapable      of    producing         a   constitutionally-sound           result.            The
error is, therefore, structural.
       ¶17    One of our most familiar constitutional guarantees is
that no State shall "deprive any person of life, liberty, or
property,      without       due       process      of    law . . . ."          U.S.       Const.
amend. XIV, § 1.            Part of the process due to every citizen is
"the opportunity to be heard," which must occur "at a meaningful
time   and    in     a    meaningful        manner."        Armstrong      v.     Manzo,      380

U.S. 545,      552       (1965)    (citation        and     internal      marks       omitted).
This guarantee is foundational:                     "The 'right to be heard before
being condemned to suffer grievous loss of any kind, even though

it   may     not    involve       the      stigma    and    hardships      of     a       criminal
conviction, is a principle basic to our society.'"                                Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (quoted source omitted).
       ¶18    The    primary       mechanism         by    which    we    hear    litigants'
disputes is through the adversarial process.                             "The Constitution
requires      (unless      the     defendant        waives    his    rights)          a    certain
modicum of adversary procedure even if the outcome is a foregone
conclusion . . . ."           Oswald v. Bertrand, 374 F.3d 475, 482 (7th
Cir. 2004) (quoting Walberg v. Israel, 766 F.2d 1071, 1074 (7th
Cir. 1985)).         That is why "litigants must be given their day in
court.       Access to the courts is an essential ingredient of the
constitutional guarantee of due process."                           Piper v. Popp, 167
Wis. 2d 633, 644, 482 N.W.2d 353 (1992).
       ¶19    The    value        of    having      one's    day    in    court,          however,
depends entirely on what the defendant may do with it:                                       "The
                                               11
                                                       Nos.   2017AP1413 & 2017AP1414



opportunity        to   be   heard    includes     the     right     to    'present    a

complete defense.'"          Brown Cty. v. Shannon R., 2005 WI 160, ¶65,
286    Wis. 2d 278,          706     N.W.2d 269       (quoting       California       v.
Trombetta, 467 U.S. 479, 485 (1984)).                    That means our inquiry
must here become more pointed, more focused.                       We must determine
whether a proceeding in which the defendant is not afforded an
opportunity to present his case may be fairly characterized as a
"trial" capable of satisfying the demands of Mathews and Piper.
       ¶20   Our history, and English history too, teach us that
one of the oldest and most constant features of a trial is the
adversarial presentation of a case.                    That is, a trial is a
procedurally balanced proceeding in which the parties face no

disparate     structural       barriers      in   presenting       their    respective
cases to the decision-maker.              Although its precise origins are
unknown,     the    adversarial      trial     took   root    in     England     shortly
after the Norman conquest of 1066.                Ellen E. Sward, The History
of the Civil Trial in the United States, 51 Kan. L. Rev. 347,
354 (2003) (citing James Bradley Thayer, A Preliminary Treatise
on Evidence at the Common Law, 54-67 (Rothman Reprints 1969)
(1898)).     The trial mechanism evolved over time, but manifested
many    of   its    modern     characteristics        as     early    as   the     late-
fifteenth century.           Some accounts, dating back to 1468, describe
a trial as a proceeding in which "the parties or their counsel
in open court present their evidence to the jury, and witnesses
are examined upon oath."               Theodore F.T. Plucknett, A Concise
History of Common Law, 129-30 (Little, Brown & Co. 5th Ed. 1956)
(citation omitted).
                                          12
                                                               Nos.   2017AP1413 & 2017AP1414



       ¶21    Today,          Sir     William     Blackstone's         eighteenth-century
description of a proper trial is readily familiar:

       The nature of the case, and the evidence intended to
       be produced, are next laid before [the jury] by
       counsel also on the [opening] side; and, when their
       evidence is gone through, the advocate on the other
       side opens the adverse case, and supports it by
       evidence; and then the party which began is heard by
       way of reply.
3 William Blackstone, Commentaries on the Laws of England ch.

23,    at     367    (Richard         Couch,     London    21st       ed.    1844)     (1768).
Commentators since then have consistently described trials as
embodying this mutuality of opportunity. See, e.g., Robert W.
Millar,       The        Formative         Principles     of     Civil       Procedure,       18
Ill. L. Rev. 1, 4 (1923) ("Most obvious . . . of the conceptions

in     question          is     the     idea      that     both       parties        must     be
heard . . . .");              Henry     John      Stephen,       A     Treatise        on    the
Principles          of     Pleading         in   Civil     Actions          58   (3d Am. ed.
Washington, D.C.:               W.H. Morrison 1882) ("The appearance of the
parties . . . in              open    court . . . was          requisite.         Upon      such
appearance followed the allegations of fact, mutually made on

either      side, by          which the court received information                     of    the
nature of the controversy.")                      (Original emphasis omitted and
emphasis       added.);         Stephan       Landsman     A     Brief      Survey     of   the
Development of the Adversarial System, 44 Ohio St. L.J. 713, 714
(1983) ("[T]he key element[] in the system . . . [was] reliance
on    party    presentation           of    evidence . . . .");          Ellen    E.     Sward,
Values, Ideology, and the Evolution of the Adversary System 64
Ind. L. Rev. 301,              312    (1989)     ("[T]he       parties      themselves       are


                                                 13
                                                                     Nos.    2017AP1413 & 2017AP1414



responsible for gathering and presenting evidence and arguments
on    behalf of their positions.");                           Sward, supra, at                302 ("The

adversary system is characterized by party . . . presentation of
evidence      and       argument,       and     by    a       passive        decision-maker          who
merely listens to both sides . . . .").
       ¶22    Our       history     teaches          us       that    one     of     the      essential
attributes         of   an    adversarial         trial         is     the    mutuality         of   the
parties' opportunity to present their cases.                                   The defendant may
choose to forgo his presentation, of course, but without the
option of going forward we cannot dignify the proceeding with
the    appellation        "trial."            Such        a    proceeding          is    structurally
unbalanced         because        the    defendant              faces        an     impediment        to

presenting his case that the State does not.                                  Here, for example,
the State had the option of choosing who would testify, the
order    in    which         it    would        present         its         witnesses,         and   the
information it would adduce from each witness.                                           It is of no
constitutional moment that the State's case consisted solely of
Mr. K.'s testimony.               The relevant fact is that the State enjoyed
the liberty of choosing the parameters of its case.
       ¶23    Mr.       K. enjoyed no           such liberty.                  In       the   "grounds"
phase of the trial, the circuit court did not allow him to
decide who his witnesses would be, the order in which they would
testify,      or    the      evidence      he    would         seek     from        each      one.    By
denying to Mr. K. the same opportunity allowed to the State, the

circuit court required that he present his case only in response
to the prosecutor's questions and within the constraints of his
attorney's         cross-examination.                 Mr.        K.'s        attorney         obviously
                                                 14
                                                       Nos.   2017AP1413 & 2017AP1414



believed there was more to the defense than he was able to
squeeze into the interstices of the State's case.                            After the
State rested, he asked "to be able to put my client on the stand
and finish our side of the case."                 The record does not reflect
with certainty whether "finishing" the case would have involved
additional    witnesses.11         But    it    does   show    that    his    attorney
thought there was more to Mr. K.'s defense and that he was not
waiving his right to present it.12
       ¶24   The State says the circuit court's error was of the
same   general nature       as    those     we have     previously         assayed for
harmlessness.       It points out that in Nelson, for example, we

observed     that    "[a]        criminal       defendant      has     a     personal,

fundamental right to testify              and    present      his    own   version   of
events in his own words."            355 Wis. 2d 722, ¶19 (internal marks

       11
       The dissent purports to find conclusive evidence that Mr.
K. would have had no other witness than himself in the "grounds"
phase of the trial.      Dissent, ¶84 n.12.     That conclusion,
however, depends on the dissent's assumption that the witnesses
in the "disposition" phase of the trial will necessarily be the
same as those in the "grounds" phase.      Because the different
phases address different questions, the assumption is unsound.
       12
       The   breadth   of    cross-examination allowable   under
Wisconsin's procedural rules does not affect this analysis. See
Wis. Stat. § 906.11(2) ("A witness may be cross-examined on any
matter relevant to any issue in the case, including credibility.
In the interests of justice, the judge may limit cross-
examination with respect to matters not testified to on direct
examination.").   Although the circuit court could have limited
Mr. K's testimony to matters educed by the State, there is no
indication it did.      Nonetheless, the comments of Mr. K.'s
attorney demonstrate that, in anticipation of putting on his own
case, he did not introduce all of his evidence through cross-
examination.


                                          15
                                                            Nos.    2017AP1413 & 2017AP1414



omitted).        Nonetheless, we said that "[a]n error denying the
defendant . . . the right to testify on his or her own behalf
bears the hallmark of a trial error."                   Id., ¶32.           We concluded,

therefore, that this error's effect "on the jury's verdict can
be 'quantitatively assessed in the context of other evidence
presented       in   order       to    determine     whether        its     admission      was
harmless beyond a reasonable doubt.'"                   Id.        (quoting Fulminante,
499 U.S. at 308.).           The State also cites State v. Kramer for the
proposition that "a violation of the right to present a defense
is subject to harmless error analysis."                        2006 WI App 133, ¶26,
294 Wis. 2d 780, 720 N.W.2d 459 (citing Crane v. Kentucky, 476
U.S. 683, 691 (1986)).                 But Kramer's statement is considerably

more    ambitious      than      its    holding.       Mr.         Kramer    actually      did
present     a    defense;        the    circuit      court     simply       excluded     the
testimony       of   one    of   his     witnesses.         Id.,     ¶21.       Nelson     and
Kramer, therefore, both stand for the proposition that exclusion
of a witness's testimony, whether that of the defendant (Nelson)
or of another (Kramer), is subject to harmless-error review.
The United States Supreme Court came to a similar conclusion
after     considering        a    defendant's        claim     that       his   trial    was
defective because the trial court excluded evidence that could
have cast doubt on the credibility of his confession.                            The Court
said that, "[i]n the absence of any valid state justification,
exclusion       of   this     kind      of   exculpatory       evidence         deprives    a
defendant       of   the    basic      right    to   have    the      prosecutor's       case
encounter and 'survive the crucible of meaningful adversarial
testing.'"       Crane, 476 U.S. at 690-91 (quoted source omitted).
                                               16
                                                             Nos.   2017AP1413 & 2017AP1414



However,      both    the     parties      and      the     Court     agreed      that    this
deprivation was subject to a harmless-error review.                             Id. at 691.

       ¶25    The State says the circuit court's error in this case
is of a piece with Nelson, Kramer, and Crane.                          They may not all
share the same spot on the continuum between harmlessness and
harmfulness, it suggests, but they nonetheless all exist on that
continuum.       The difference, it argues, is one of magnitude, not
type.    Conceptually, excluding a single piece of evidence is a
fractional denial of the defendant's opportunity to put on his
case.        So, if excluding a fractional part of the defendant's
case is subject to harmless-error review (as the State asserts),
it follows that excluding the whole would be subject to the same

test.
       ¶26    The    State's    observation           is    accurate,      as    far     as   it
goes.    But it does not go far enough.                       If a trial were a two-
dimensional         affair,     the       State's          argument     would      be     more
persuasive.         If a case were merely a compilation of individual
facts, then the difference between excluding one piece of the
defendant's         evidence        and   excluding          the      entirety      of        the
defendant's case is just a question of quantity.                           But a trial is
not a formless jumble of evidence dumped in the factfinder's
lap, nor does the factfinder adjudge a party's success by the
size    of    the    heap.      A    trial      is,    instead,       an   exhibition         of
evidence      presented       within      an    intentionally-ordered              construct

designed to produce an intelligible and persuasive account of
the matter sub judice.              It is, in that sense, three-dimensional,


                                               17
                                                             Nos.     2017AP1413 & 2017AP1414



all    components      of    which      combine      to    produce       depth,     emphasis,
cohesion, and——ultimately——understanding.
       ¶27    So a trial is not just a contest between competing
facts; it is a contest between the constructs in which they are
presented,         something      practitioners           call    the    "theory      of    the
case."       The competition between the theories of the case is what
makes the trial adversarial, a dynamic that affects every aspect
of the proceeding, including the type, nature, and extent of
evidence      a    party    may       choose    to    elicit        during    the    opposing
party's case-in-chief.                If defense counsel knew beforehand that
the court would deny him the right to present his case, he might
shoehorn      as    much    of    his    presentation            as    possible     into    the

State's      case.         That       might    solve      the     quantitative       problem
presented by the circuit court's error.                           But it could do very
little,      if    anything,      to    preserve       the      defendant's       ability    to
present his facts according to his theory of the case.
       ¶28    The    error       in    this    case       did    not    affect      just    the
quantity of evidence presented, such as in Nelson, Kramer, and

Crane.        It    was,    instead, an        error      affecting the adversarial
nature of the trial.              This matter was presented to the circuit
court according to only the State's theory of the case.                                    This
lack   of     mutuality made           the    hearing      less like         an adversarial
contest between the parties and more like a continental-European




                                               18
                                                      Nos.    2017AP1413 & 2017AP1414



inquisitorial proceeding.13              The State might be more likely to
see the permeating flaw this introduces into the very framework
of   the    trial     if   the    defense   controlled     the     sequence   of    the
State's witnesses and their direct examination, or if the State
could present its case only through the cross-examination of its
own witnesses.
      ¶29       The harmless-error rubric is incapable of reaching an
error that affects the framework of the trial.                          By its own
terms,     it    is   designed      to   address    errors    whose     effect     "may
therefore be quantitatively assessed in the context of other

evidence        presented    in    order    to    determine       whether   [it    was]
harmless beyond a reasonable doubt."                   Fulminante, 499 U.S. at

307-08      (emphasis       added).         But    there     is    no   quantitative
assessment that can measure the harm of a proceeding in which


      13
       In contrast to our adversarial system, which relies on
the parties——plural——to illuminate the case through their
competing presentations, is the inquisitorial system, which
emphasizes the judge's role in elucidating the facts.        See
Mathew T. King, Security, Scale, Form, and Function: The Search
for Truth and the Exclusion of Evidence in the Adversarial and
Inquisitorial Justice Systems, 12 Int'l Legal Persp. 185, 218
(2001-2002) (The inquisitorial system "allocates most of its
investigatory  power   in   judges.");  Abraham   S.  Goldstein,
Reflections on Two Models: Inquisitorial Themes in American
Criminal Procedure, 26 Stan. L. Rev. 1009, 1018 (1976) ("The
judge dominates the proceeding and often appears to move
relentlessly toward a predetermined result of conviction.").
The inquisitorial system places "little emphasis on oral
presentation of evidence or on cross-examination by [a party's]
counsel." Goldstein, supra, at 1018-19. "Instead, the trial is
mainly a public recapitulation of written materials included in
a dossier compiled earlier by an investigating magistrate." Id.
at 1019.


                                            19
                                                           Nos.      2017AP1413 & 2017AP1414



only the State is allowed to present a theory of the case.                                    As
we noted in Nelson, we cannot review a circuit court's error for

harmlessness        if     its     effects       are    "inherently          elusive     [and]
intangible . . . ."               355    Wis. 2d 722,      ¶33       (quoting       Palmer    v.
Hendricks, 592 F.3d 386, 399 (3d Cir. 2010)).                           We have no tools
with which to winnow the ill effects of this type of error,
which makes the harm suffered by Mr. K. inherently elusive and
intangible,         and        therefore     structural.               See     Pinno,        356
Wis. 2d 106, ¶49 ("An error also may be structural because of
the     difficulty        of     determining      how    the      error       affected       the
trial.").14
      ¶30        The dissent's spirited defense of this state-centric

half-trial gets the order of the analysis the wrong way around.
The proper order is first to determine whether the error is
structural in nature.               If it is not, then (and only then) we
assay      the    error's      harmlessness——that         is    to    say,     we    consider
whether      it    prejudiced       the     defense.           The    dissent,       however,
started with the second step.                It conducted a minute examination
of    the    record       to    assess     the    sufficiency         of     the    evidence,
reasoning that "[p]recedent and fundamental fairness to C.L.K.


      14
       The dissent says our opinion "does not explain how the
error so affected the trial that its effect could not be
measured or that its burden continued from the start of the
trial without relief to the end of the trial.    Instead, ipse
dixit, the majority opinion discovers a new type of structural
error." Dissent, ¶80. This is a surprising statement, inasmuch
as the preceding sixteen paragraphs are devoted to nothing but
that explanation.


                                             20
                                                                Nos.    2017AP1413 & 2017AP1414



and    to    his    two        children    require         that    we     consider       evidence
presented at both the factfinding hearing and the dispositional
hearing when determining the effect of the error."                                       Dissent,
¶87.        But    the    "effect     on       C.L.K."     is     what     we    consider       when
conducting the second step of the analysis.                                     The first step

(determining whether the error is structural) depends on the
error's effect on the proceedings, not the prejudice to C.L.K.
       ¶31    This is why cases addressing structural error do not
scrutinize         the    evidence        presented        at     trial,    as     the    dissent
insists we must do.               Dissent, ¶79.            The two cases foundational
to the structural error doctrine, Gonzalez-Lopez and Fulminante,
illustrate this neatly.               The issue in Gonzalez-Lopez was whether

denying a defendant his right to counsel of his choice was a
structural error.                548 U.S. at 150.                 He had gone through a
complete trial, so there was an evidentiary record for the Court
to consider if that had been relevant to the question.                                     But in
the    course       of     reaching       its     decision,        the     Court       completely
ignored it.             There is no mystery as to why——the evidence of
record      simply       has    nothing     to    say      about    whether       an     error    is
structural.              Similarly,       in     Fulminante,        the     Court      addressed
whether coerced confessions qualified as structural errors.                                      499
U.S. at 306-12.            As in Gonzalez-Lopez, there was an evidentiary
record       available         for   the        Court's      consideration.               But     in
concluding there was no structural error, no part of its opinion
addressed         the     evidence    adduced         at    trial.          As    these     cases
demonstrate, a reviewing court does not determine whether an
error is structural by perusing the evidence.                              It discovers that
                                                 21
                                                      Nos.   2017AP1413 & 2017AP1414



answer by evaluating the nature of the error in relation to the
damage it causes to the trial mechanism.                     So when the dissent
faults us for not joining in an in-depth review of the evidence
against Mr. K., it is actually adjuring us to look in the wrong
place for signs of structural error.
       ¶32    If we could start with a harmless-error review, as the
dissent does, we would have no need for the structural error
doctrine at all, because we would just affirm all judgments in
which we believe the error caused no harm.                     That, of course,
depends on the assumption that no error can hide potentially
useful       information   from   us,     that   we    can    always    perform     a
quantitative harmless-error analysis.                 But the whole point of

the structural error doctrine is that some errors so undermine
the proceeding's integrity that we cannot know what we do not
know.        The   dissent's   approach    depends     on    the   belief    that   a
state-centric half-trial in which the defendant was not allowed
to present his case-in-chief could not have deprived the court
of any instructive information.              Based on that assumption, it

totted up the information that is in the record and declared it
good    enough.       Nowhere,    however,   does      it    explore   the   actual
question presented by this case, to wit, whether the circuit
court's proceedings had enough structural integrity to adduce
the information necessary to decide whether Mr. K. was an unfit




                                        22
                                                                Nos.   2017AP1413 & 2017AP1414



parent.         So    the     dissent    proceeded         as    if    the   error    was   not
structural without ever inquiring into whether it actually was.15
     ¶33    Not even the precedent on which the dissent relied for
the motive force of its reasoning supports its conclusion.                                  The
dissent says that Evelyn C.R. teaches us that the solution to

the problem created by the circuit court's error is to borrow
from the "disposition" phase of the trial to supply any deficit
in the "grounds" phase.                 Dissent, ¶78 (citing Evelyn C.R., 246
Wis. 2d 1, ¶¶28, 32.).             That is to say, the dissent believes we
should     import        evidence        and     argument         regarding      the     "best
interests of the child" into the ex ante question of Mr. K.'s
fitness as a parent.              But that would be helpful only if we are

looking for a way to paper over the circuit court's error.                                  The
first     and        second     phases     of        the   trial       address       different
questions, so it is not immediately apparent how evidence and
argument from the second could supply the structural integrity
lacking in the first.              Nor does the circuit court revisit the
question of the parent's fitness in the "disposition" phase of
the trial, so as a practical matter, the borrowed evidence and
argument will always have precisely zero effect on the circuit
court's determination in the "grounds" phase.                                A remedy that
depends on ex post facto evidence and argument to justify a
prior judicial determination is rhetoric, not reality.

     15We will not address the substance of the dissent's
harmless-error review. The error's structural nature means that
any attempt at assessing its prejudicial effect is, by
definition, an exercise in speculation.


                                                23
                                                        Nos.    2017AP1413 & 2017AP1414



     ¶34    Furthermore, Evelyn C.R. cannot                    inform   our    analysis

because the asserted errors there and here are not the same.
Although    both cases          involve parents     who were          not   allowed   to
present their case-in-chief, that is the only similarity they
share.     In Evelyn C.R., the mother (Tykila S.) lost her right to
present her case as a sanction for her failure to appear at
trial.     Id., ¶16.          She did not contest the default and conceded
that failing to appear deprived her of the right to challenge
the State's case.         Consequently, the right to put on one's case-
in-chief was not at issue on appeal, and so it should come as no
surprise that our opinion said nothing about it.                            Tykila S.'s
assignment of error was instead that the circuit court failed to

satisfy its independent statutory and constitutional obligation
to identify sufficient evidence of record to support the state's
case.       Id.         The    issue,      therefore,    was     a    straightforward
challenge to the sufficiency of the evidence.                        Our holding that
evidence presented at the "disposition" phase may supply the
deficit in the "grounds" phase, id., ¶36, says nothing about the
nature of a parent's right to contest the State's case.                               So
Evelyn   C.R.     can    give    us   no    instruction    here      for    the   simple
reason that it did not address, even tangentially, the question
now before the court.
     ¶35    We have little difficulty in concluding that the error
presented in this matter "affect[s] the framework within which
the trial proceeds, rather than being simply an error in the
trial process itself."             Weaver, 137 S. Ct. at 1907.                The error
did not just "affect" the framework, it completely eliminated
                                            24
                                                      Nos.    2017AP1413 & 2017AP1414



half of it.     Further, the remaining half left the State as the
sole expositor of the theory of the case.                    With so much of the
adversarial nature of the trial excised, there is no adequate
context within which to conduct a quantitative analysis of the
missing testimony.         Therefore, we cannot engage in a harmless-
error review.       The dissent worries that, in so concluding, we
have recognized a structural error that has no provenance in
prior pronouncements from either this court or the United States
Supreme    Court.     Dissent,      ¶38.       Perhaps,      however,   neither    of
these courts have had occasion to address this issue because the
proposition    that    a     state-centric       half-trial       can    produce    a
structurally sound         result   is     so astonishing       that    no   one has

thought to make the argument before.
                               IV.       CONCLUSION
     ¶36    We hold that denying the defendant an opportunity to
present his case-in-chief is a structural error, one that is "so
intrinsically harmful as to require automatic reversal."                      Neder,

527 U.S. at 7.        Consequently, we reverse the court of appeals




                                          25
                                               Nos.   2017AP1413 & 2017AP1414



and remand the cause to the circuit court to conduct a new
trial.16
     By    the   Court.—The   decision   of   the   court   of   appeals   is
reversed and the cause is remanded with instructions.
     ¶37    REBECCA FRANK DALLET, J., did not participate.




     16 We decline the State's request that, should we reverse
the court of appeals, we allow the circuit court to resume the
trial where it left off.    Perhaps the first part of the trial
could be salvaged by appending Mr. K.'s presentation.       That,
however,   would  require   a  meticulous   examination  of   the
transcripts to satisfy ourselves that nothing the circuit court
said or did during the State's case foreshadowed its decision to
pretermit the proceedings.    This is the type of "'inherently
elusive [and] intangible'" error that is not susceptible to
harmless-error review, which is why there must be a new trial ab
initio.    Nelson, 355 Wis. 2d 722, ¶33 (quoting Palmer v.
Hendricks, 592 F.3d 386, 399 (3d Cir. 2010).


                                    26
                                                      Nos.   2017AP1413 & 2017AP1414.pdr


      ¶38    PATIENCE         DRAKE         ROGGENSACK,           C.J.     (dissenting).
Structural error is not a "legal rabbit" that a court can pull
out of its hat, and thereby avoid a thorough examination of the
record and the legal principles that must be reviewed when a
parent's rights are terminated.                     Yet, that is just what the
majority      opinion     has       done    today    when     it    creates      this    new
structural error, never before recognized by the United States
Supreme Court or by this court.
      ¶39    Although     I     agree       that    the    circuit       court   erred    in

shortening C.L.K.'s presentation at the factfinding hearing, the
error was a trial error.               It was not a structural error because
it did not affect the framework of the entire trial.                               Rather,
the   framework      of   the       trial    was    established      through     C.L.K.'s
vigorous representation by counsel before an unbiased factfinder
from which framework we can quantitatively assess the effect of
the error.      Accordingly, because the complained-of error is not
structural, it is subject to a harmless-error analysis.

      ¶40    Furthermore, the error did not affect the validity of
the finding that C.L.K. had abandoned his two young children or
that it was in the best interests of the children that C.L.K.'s
parental rights be terminated so that their foster parents can
adopt them.      Because I conclude that the circuit court error was
harmless and, therefore, the two children who were abandoned by
C.L.K.      should   have       a    permanent      home     in    which    to    grow,    I
respectfully dissent from the majority opinion.




                                              1
                                                    Nos.   2017AP1413 & 2017AP1414.pdr


                                   I.    BACKGROUND
     ¶41    On September 13, 2016, when J.E.H. and S.M.H. were
five and six years old, respectively, the State filed a petition
to terminate C.L.K.'s parental rights based on abandonment, as
defined in Wis. Stat. § 48.415(1)(a)2. (2015-16).1                    Both children
have lived with their foster parents, who are their maternal
great aunt and uncle, since March 17, 2014.
     ¶42    Prior    to    being        removed   from     their     mother's    home,
J.E.H.'s mother inflicted second and third-degree burns on both

his feet, requiring hospitalization and extensive treatment for
the burns and for the abuse he suffered.                    The children's mother
voluntarily    terminated      her       parental    rights    to    both   children.
C.L.K.     chose    to    retain     his    parental       rights;    therefore,     a
petition for involuntary termination was filed for C.L.K.
     ¶43    On March 23, 2017, the circuit court held the trial on
the termination of C.L.K.'s parental rights, which is a two-step
process.2     C.L.K. was present and he was represented by counsel

at both hearings, as he has been throughout the proceedings that
relate to J.E.H. and S.M.H.3



     1 All further references to Wisconsin Statutes are to the
2015-16 version unless otherwise noted.
     2 The first hearing focuses on whether facts sufficient to
support a ground for termination exists, and the second hearing
focuses on whether termination of parental rights is in the
child's best interest.     Wis. Stat. § 48.424 and Wis. Stat.
§ 48.427.
     3 For example, C.L.K. was represented by                       counsel     at his
deposition on January 24, 2017.


                                            2
                                              Nos.   2017AP1413 & 2017AP1414.pdr


     ¶44    C.L.K testified.       He admitted that from July of 2015
to September of 2016 he had no contact with the children.                     He
did not visit them, or speak with them by phone, or send them
letters or messages of any type.           He also testified that during
that 15-month period, he had no contact of any type with the
foster    parents.     He   admitted   that    he    could   have   called   the
foster parents, but he did not try to do so.                 He also said he
sent the foster parents no letters, nor did he try to have
contact    with the children       or the     foster   parents through the

"Bureau."       When asked if he could have done so, he said "Yes, I
could have."       When asked, "Was there any reason why you could
not?"    C.L.K. said, "No."
     ¶45    C.L.K. was asked if he had any contact with anyone
from the "Bureau of Milwaukee Child Welfare."                 Again, he said
that he did not.      He also was asked:

          Q Did you make any effort to reach them to find
     out about your children?

            A    No, I did not.

            Q    Could you have?

            A    Yes, I could have.

            Q    Should you have?

            A    Yes, I should have.

            Q    Was there any reason why you did not?

            A    There's no reason at all.       There's no excuse.

     . . . .

            Q    What is the name of their school?

            A    I don't know.

                                       3
                                          Nos.   2017AP1413 & 2017AP1414.pdr

           Q   Have you ever spoken to their doctor?

           A   No.

           Q   Have you ever spoken to their dentist?

           A   No.

           Q   Have you ever spoken to their therapist?

           A   No.

     . . . .

          Q So for the past three years what have you done
     to be involved in the children's lives?

           A   Nothing.
The court then asked C.L.K.'s attorney whether he had further

questions for C.L.K.      He said, "I'm going to reserve questioning
if this case is allowed to proceed past this point, but I do
have one or two at this point."        Counsel then asked C.L.K. his
reasons   for having sparse     contact with     his   children   and the
foster parents:

          Q You mentioned the former social worker led you
     to believe -– what was it?

          A That I wasn't allowed to have any information
     concerning where my children are located.

           Q   And what led you to believe that?

           A   That's what she told me.

     . . . .

           Q   What information?

          A I was asking for information to get a number
     for Ms. Cupil so I can call my children, but I was
     told I couldn't have that number.

     . . . .


                                   4
                                              Nos.   2017AP1413 & 2017AP1414.pdr

          Q So did that prevent you from having contact
     with your children?

            A    Yes.
     ¶46    On re-direct, the State asked:

          Q And since they were brought into care, you've
     known where they were because they've always been with
     the Cupils.

            A    Yes.

          Q And you testified that you made no efforts
     during that time period to get in touch with the
     Cupils.

            A    Yes.

          Q And you testified in your deposition that you
     could have called, but you didn't.

          A I could have tried harder, yes.               That's what I
     meant when I said I could have called.
     ¶47    After C.L.K.'s testimony the State submitted certified
copies     of    relevant   orders,   which    the    court    admitted    into
evidence.       The State then rested.
     ¶48    As the State did so, counsel for C.L.K. began to argue

to the court:

     Well, your Honor, I think at this stage you have to
     take it in the light most favorable to [C.L.K.]. And
     to believe [C.L.K.] has good reason for not having
     communication over that period of time we're talking
     about is that he, in his mind -– it's subjective -–
     but he, in his mind, thought he couldn't because of
     what was told to him directly by a social worker. And
     also that social worker, [C.L.K.] thought, had a way
     to communicate with him if he or she wanted to. . . .

          So I think [C.L.K.], again, at this point,
     believing everything that he says, that he gives a
     good enough reason to have not had the communication.




                                      5
                                                    Nos.    2017AP1413 & 2017AP1414.pdr

          THE COURT:  Well, you've argued a motion that
     hasn't been made yet; although I suspected it was
     coming.
     ¶49    The record shows that counsel for C.L.K. actually was

arguing    to    dismiss       the   State's     case   because       C.L.K.'s    stated
reason constituted good cause for not contacting the children,
the foster parents or the social worker.                      However, the circuit
court interpreted counsel's argument as opposing a State motion
for a directed verdict, which the State never made.
     ¶50    It    is     not    clear   from      the      transcript    whether    the
attorney    for    the     State     thought      the   court's     reference      to   a
"directed verdict" was a motion to dismiss the State's case,

which would have been logical given that it was defense counsel
who made the argument when the State rested, or something else.
Counsel for the State then summarized the overwhelming evidence
of   abandonment       that      had    been      presented      by     C.L.K.'s    own
testimony.
     ¶51    Before the court ruled, counsel for C.L.K. said, "[i]f
this is not a directed verdict motion at this point then and the
State rests its case in chief, then I'm going to ask to be able

to put my client on the stand and finish our side of the case."
     ¶52    The     circuit          court       clearly     interpreted         defense
counsel's argument at the conclusion of the State's proof on
abandonment as arguing against a State motion for a directed
verdict in favor of the State on the ground of abandonment,
which the State never made.              Therefore, after a brief argument
by the guardian ad litem, the court found:

          THE COURT: I'm granting the implicit motion for
     a directed verdict. I get it, that in [C.L.K.]'s mind

                                             6
                                                  Nos.    2017AP1413 & 2017AP1414.pdr

      there was justification for what happened here.  But
      legally, there is not.   And I'm addressing only the
      abandonment claim.
The court then held that the State had met its burden of proof

of abandonment as a ground for terminating C.L.K.'s parental
rights.4
      ¶53   Subsequently, with the agreement of counsel, the court
held the dispositional hearing that same day.                   The State's first
witness was Ms. Cupil, the foster mother.
      ¶54   Ms.   Cupil   testified    that       the     children   have   resided
with her since March of 2014.          She testified that she and John,
her husband, wanted to adopt the children.                    She explained that

she   was   the   children's   great       aunt     and     that   she   loved    the

      4Abandonment pursuant to Wis. Stat. § 48.415(1)(a)2. was
alleged here, which provides in relevant part:

     (1) ABANDONMENT. (a) Abandonment, which, subject to                         par.
(c), shall be established by proving any of the following:

      . . . .

     2. That the child has been placed, or continued in a
placement, outside the parent's home by a court order . . . and
the parent has failed to visit or communicate with the child for
a period of 3 months or longer.

      . . . .

     (c) Abandonment    is    not             established  under                  par.
(a)2. . . . if the parent proves             all of the following                by a
preponderance of the evidence:

     1. That the parent had good cause for having failed to
visit with the child throughout the time period specified in
par. (a)2. . . . .

     2. That the parent had good cause for having failed to
communicate with the child throughout the time period specified
in par. (a)2. . . . .


                                       7
                                               Nos.   2017AP1413 & 2017AP1414.pdr


children very much.         She said that when the children first came
to live with her and her husband they were two and four years
old, respectively.         At the date of the hearing, March 23, 2017,
they were five and seven years old.5
     ¶55    She explained that the children were well, but that
both children had Von Willebrand's Disease.6               She said she had to
be mindful of cuts and if they hit their heads, because if they
bled, the bleeding could continue.            She said that they regularly
visited the doctor, but their symptoms were mild, and that the

children's      medical    condition   did    not   affect   their      desire   to
adopt them.
     ¶56    She     said    that   the       children's      mother,      who    is
incarcerated for severely burning the younger child, regularly
sends the children notes and has talked on the phone with them.
In regard to C.L.K., she testified:

          Q What kind         of   relationship       do   the   kids   have
     with [C.L.K.]?

            A     None.

            Q     Do they ever ask about him in the home?

            A     No.

            Q     Have they ever asked to go see him?


     5   The children are now eight and ten years of age.
     6 Von Willebrand's Disease is an inherited disorder wherein
the person's blood clots more slowly, which may cause problems
from cuts, or nose bleeds, or other soft tissue injuries. Mayo
Clinic         Von          Willebrand         Disease        at
https://mayoclinic.org/diseases-conditions/von-willebrand-
disease/symptoms, last visited December 14, 2018.


                                       8
                                               Nos.    2017AP1413 & 2017AP1414.pdr

           A   No.

           Q   Have they ever asked to call him?

           A   No.

          Q Now, there was a little over a                       year-long
     period where there were no visits; correct?

           A   Yes.

          Q Was [C.L.K.] in contact with your home at all
     during that time?

           A   No.

           Q   Did he send any letters during that time?

           A   No.

     . . . .

          Q Now, have you ever talked with the children
     about where they want to stay?

           A   Yes.

           Q   What have they said?

          A    We    want   to   stay   here    with     you,    mommy   and
     daddy.

     . . . .

          Q Do you think you could provide [S.M.H.] and
     [J.E.H.] with a permanent and stable situation for
     their life?

           A   Yes, we can.
     ¶57   C.L.K.'s counsel then questioned Ms. Cupil in regard
to C.L.K.'s parental rights:

          Q Do you think it's               necessary       to   terminate
     [C.L.K.]'s parental rights?

           A   Yes.

           Q   Why?


                                        9
                                            Nos.   2017AP1413 & 2017AP1414.pdr

          A He hasn't been there. I mean, he has not been
     there. We have been their family. We have been there
     for them every day from day one to now. We have been
     there.

          He has been there because it's court-ordered.
     When it wasn't, he didn't make any effort before then.
     He didn't call between times.     He doesn't make any
     efforts to be at any of their appointments.     He did
     not call just because. He only called because when he
     was instructed to.   He only called at the times they
     told him to call.    He didn't do anything more than
     that. He only did what he was told to do.

     . . . .

     So him being the biological father, then be the
     father. See, I didn't say that I have a problem with
     him. I'm just saying there is no relationship because
     he made no effort to make a relationship with us or
     his children. That's what I'm saying to you.
     ¶58   The    case   manager,   Ms.   Mariah    Ahles,   was   the   next
witness.   She had been in charge of the children's case since
September of 2015.
     ¶59   She was asked about the suitability of the Cupils as
an adoptive home.

          Q Do you believe the Cupils are a good fit for
     the children?

           A     Yes, I do.

           Q     Why is that?

           A The Cupils have demonstrated over the last
     three years that they are able to make sure that the
     children's basic needs are met such as food, shelter,
     their schooling.

          They work with their school very well to make
     sure the kids' mental health needs are met at school.
     They've been able to get them to the doctor, the
     dentist. When they had therapy services, they were in
     therapy.


                                     10
                                                     Nos.    2017AP1413 & 2017AP1414.pdr

          They've also been able to build relationships
     with   the  children.      The   children have built
     relationships with the Cupils' other children and
     their maternal great grandmother.

     . . . .

          Q Have          the   children       ever         asked   to   go   see
     [C.L.K.]?

          A They have never mentioned him besides when I
     mention him.

            Q     Have they ever asked to call him?

            A     No.

            Q     Have they ever just spoke about him?

            A     No.

     . . . .

          Q Do you believe a termination and adoption
     would provide the children with more permanence and
     stability than any other outcome?

            A     I do.
     ¶60    She     explained      that        she      called       C.L.K.    monthly
attempting to make connections between him and the children.
His phone became disconnected; however, the letters she sent to
the mailing address C.L.K. gave were not returned.
     ¶61    C.L.K.'s attorney        questioned             Ms. Ahles about     visits
that the children have had with C.L.K and their responses to
those   visits,     indicating     that    their       responses      generally     were
positive.
     ¶62    The    State    then   rested      its      termination      of   parental
rights evidentiary submissions.                C.L.K.'s attorney first moved
the defense exhibits that he had used during the proceedings
into evidence.          He then called C.L.K. to the witness stand.

                                          11
                                            Nos.   2017AP1413 & 2017AP1414.pdr


C.L.K. began by explaining that he, S.M.K. and the children's
mother lived together when S.M.K. was nine months old until she
was about two.

          Q And can you tell me what you                   did,    just
     generally? Generally, what was your role?

           A Generally, I went to work. And then when I
     came home from work, I helped change diapers or
     whatever else I needed to do for [S.M.K.] at that
     time.

          Q All right.    And then you moved away, is that
     it, or separated somehow?

          A    Yes.   We separated.

          Q Okay.        And     then     you   had   another     child
     together?

          A By the time         we   separated,    she   was   pregnant
     with [J.E.H.] then.

     . . . .

          Q Okay.    So are you saying the mother of the
     children essentially stopped you from visiting the
     children at some point?

          A    Yes.

          Q    Do you know about when that was?

          A I'm going to say [J.E.H.] was about one, a
     little over one. One and a half, probably.

          Q Okay.    And then at some point you moved to
     Green Bay; is that right?

          A    Yes.

          Q    When was that?

          A    That was in July of 2015.

     . . . .

          Q    Are you currently working?

                                     12
                                     Nos.   2017AP1413 & 2017AP1414.pdr

       A   Yes.

       Q   Can you describe your -– Tell us about your
job.

       A   I'm a PCW for my god son, Mateo Escavel.

     Q All right.    And where do you currently live?
Is it a house you own or a house you rent?

       A   No.    I'm living with a friend right now.

     Q Okay.       You   understand  you're up   here
testifying because you're asking that you be reunited
-– or have your children returned; right?

       A   Correct.

     Q You understand that, you know, the reality is
they're probably not going to return them to you if
you don't have a place for them to live; right?

       A   Correct.

. . . .

     Q What about health insurance.      How would the
kids, if at all, be covered by health insurance?

     A I'm already in the process of looking for a
second job. And the second job, I'll make sure it do
have insurance so I can get it.

. . . .

     Q And it was mentioned in testimony earlier that
you're currently in therapy.

       A   Yes.

. . . .

     Q Okay. And can you tell me what your therapy -
– what you cover in therapy?

     A We         cover   my   thinking     pattern    and    my
depression.

. . . .


                               13
                                              Nos.   2017AP1413 & 2017AP1414.pdr

           Q Is there anything else you want to tell the
      Court here regarding reunification with your children?

           A I know -- Like I said, I know I messed up.
      But that mess-up don't make me a bad parent. I mean,
      nobody is perfect.  I mean, everybody makes mistakes.
      I made mine. I learned from it. To me, that should
      be the most important thing, you learn from your
      mistakes.
      ¶63    The State then conducted cross-examination as did the
guardian ad litem.         The guardian ad litem's questioning focused
on   the    extremely    sparse   contacts    that    C.L.K.   had   with   the
children and concerns about his mental health.

           Q You've had -– Every other week you've had
      three visits in the last two years with the kids
      supervised; correct?

             A   Yes.

           Q And, also, you've had the opportunity to have
      phone calls after those visits on Sundays.

             A   Yes.

             Q   And you haven't had those phone calls, have
      you?

             A   No.

           Q So you've had these three visits and that's
      it; correct?

             A   Yes.

           Q In terms of the medication and the mental
      health treatment you are getting at the present time,
      you've been diagnosed with bipolar disorder?

             A   Yes.

             Q   And    your   doctors   recommended    medication    for
      that?

             A   Yes.

             Q   And you're not taking medication, are you?
                                         14
                                                           Nos.   2017AP1413 & 2017AP1414.pdr

             A     No.
       ¶64   When C.L.K.'s testimony concluded, the court asked his
attorney whether he had other witnesses to present.                                     Counsel
said   he    had      no   further       witnesses.             The    argument    of   counsel
followed.        The court took the case under advisement and issued
the    written        ruling      that    terminated           C.L.K.'s    parental     rights,
which is the subject of this review.
       ¶65   The court of appeals affirmed, and I would do likewise
because any error in shortening the factfinding on abandonment

was abrogated by the evidentiary hearing that continued that
same day.          C.L.K., who was his own only witness in defense,
testified extensively about his contacts with the children and
why he was absent from their lives for extended periods of time.
No structural error occurred here.                             The majority errs, and I
respectfully dissent.
                                       II.     DISCUSSION
                                  A.     Standard of Review

       ¶66   Whether         an    error      is    structural         and,    therefore,   not
subject to a harmless error review, is a question of law for our
independent consideration.                    State v. Nelson, 2014 WI 70, ¶18,

355    Wis. 2d        722,     849       N.W.2d         317.      If      an   error,    though
structural, arises through ineffective assistance of counsel, we
determine        as    a   matter        of    law       whether       counsel's    deficient
performance        was     prejudicial.                 Weaver    v.    Massachusetts,      137
S. Ct. 1899, 1910 (2017).                     If the error is not structural, we
independently determine whether the error was harmless.                                 Nelson,
355 Wis. 2d 722, ¶18.


                                                   15
                                                      Nos.    2017AP1413 & 2017AP1414.pdr


                              B.    Structural Error
                            1.     General Principles
       ¶67    Structural error is a judicially created criminal law
doctrine.        Structural         errors         arise     out    of      concerns       for
constitutional       principles      that     are     required        to   be     upheld    to
achieve a fair trial.            Arizona v. Fulminante, 499 U.S. 279, 282

(1991).       Structural errors affect the framework in which the
entire trial takes place; they differ from other serious errors
that may occur in a trial.                State v. Martin, 2012 WI 96, ¶43,

343    Wis. 2d   278,   816      N.W.2d      270.          Although      the     concept    of
structural error developed in a criminal law context, it has
been applied in a termination of parental rights proceeding,
which is civil in nature.                 State v. Shirley E., 2006 WI 129,
¶63, 298 Wis. 2d 1, 724 N.W.2d 623.
       ¶68    In regard to structural error, we have adopted the
United    States    Supreme        Court's        framework     for    assessing       trial
errors that are of a constitutional nature.                        Nelson, 355 Wis. 2d

722, ¶31 (explaining that we have "embraced" the federal method
for assessing when error may be analyzed as harmless and when
that     analysis    may    not      be    employed          because       the    error     is
structural).        When the effect of an error on the outcome of a
trial is capable of assessment, the error is not structural.
Id.,     ¶5   (citing   Fulminante,          499     U.S.     at    307-08).         Stated
otherwise, a trial error, i.e., an error that occurs in the
presentation of the case to the factfinder and which therefore
may be quantitatively assessed in the context of other evidence,
is not structural.         Fulminante, 499 U.S. at 307-08.

                                             16
                                                      Nos.   2017AP1413 & 2017AP1414.pdr


     ¶69     The   United    States    Supreme         Court    decision      in     Weaver

provides a helpful summary and a clear roadmap for assessing
whether a constitutional error is structural.                         Weaver explained
that,    generally,   structural       errors         fall    within    one     of    three
categories,    although      the    categories         may    overlap.        They     are:
(1) affect an underlying right that protects some interest other
than an adverse determination for the defendant; (2) the error's
quantitative effect on the trial is too hard to measure; and
(3) fundamental unfairness results from the error.                         Weaver, 137

S. Ct.   at 1908.         Stated    otherwise, structural errors                     are    so
profound in their effect that "a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence."        Rose     v.   Clark,     478       U.S.     570,    577-78      (1986).
However, "if the defendant had counsel and was tried before an
impartial adjudicator, there is a strong presumption that any
other errors that may have occurred are subject to harmless-
error analysis."      Id. at 579.

     ¶70     There are many errors that can occur during a trial,
some are serious and require reversal and some are harmless, not
requiring     reversal.          However,       not     all    serious     errors          are
structural; the list of structural errors is limited:                            Complete
denial of the right to counsel has been held to be structural
error, Gideon v. Wainwright, 372 U.S. 335 (1963); as has trial
before   a   biased   judge,       Tumey    v.    Ohio,       273   U.S.   510     (1927);
racial discrimination in the selection of a grand jury, Vasquez
v. Hillery, 474 U.S. 254 (1986); and the complete denial of



                                           17
                                                          Nos.    2017AP1413 & 2017AP1414.pdr


self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168

(1984).
      ¶71      The above-listed errors affect the framework in which
a trial is conducted.                Their effect starts at the beginning of
the   trial       and    continues      throughout         the     trial.          There     is    no
relief from the burden they impose.
      ¶72      However, Weaver recently clarified that a new trial
does not automatically follow from a determination that a trial
error       was     structural.               Weaver,            137        S. Ct.      at     1910

("'[S]tructural            error'       carries           with         it     no        talismanic
significance as a doctrinal matter.                            It means only that the
government is not entitled to deprive the defendant of a new
trial     by      showing    that       the       error     was        'harmless        beyond      a
reasonable doubt.'").
      ¶73      In   regard      to    the   denial        of     the    right      to    a   public
trial, the structural error that was the focus of Weaver, the
court concluded that because the error was raised in the course

of an ineffective assistance of counsel review, the defendant
had to prove prejudice before a new trial would be ordered.                                       Id.
Because Weaver failed in that proof, he failed in his efforts to
obtain a new trial.                  Therefore, as the United States Supreme
Court    has      explained,     the     conclusion            that    a     structural       error
occurred does not automatically result in a new trial——sometimes
it does and sometimes it does not.                             Id.; see also State v.
Pinno,      2014    WI    74,    ¶63,       356    Wis. 2d        106,       850     N.W.2d       207
(concluding that the denial of "the Sixth Amendment right to a
public trial may be forfeited when a defendant knows that the

                                              18
                                                    Nos.   2017AP1413 & 2017AP1414.pdr


judge has ordered the public to leave the courtroom but does not
object.").
                   2.    C.L.K.'s Parental Rights Trial
     ¶74    C.L.K.      was   represented      by    competent      counsel     in   all
proceedings before and during the two-step trial.7                     The trial was
public and the adjudicator was impartial.                   Accordingly, there is
a "strong presumption" that any error by the circuit court was
not structural.      Rose, 478 U.S. at 579.

     ¶75    Although       evidence     on     grounds       for    termination      of

C.L.K.'s parental rights and on C.L.K.'s reason for failing to
communicate with his children and with the foster parents was
presented    at   the    first      hearing,    C.L.K.      presented        additional
testimony relative to abandonment at the second hearing upon
direct examination by his counsel.                    It was after the second
hearing    and    argument     of    counsel    that       the   court   decided     to
terminate C.L.K.'s parental rights.                 These events are similar to
the process that occurred in another case where a termination of

parental rights resulted, Evelyn C.R. v. Tykila S., 2001 WI 110,
246 Wis. 2d 1, 629 N.W.2d 768.
     ¶76    In    Evelyn      C.R.,    the     issue       was     whether    Tykila's
parental rights should be terminated because she had abandoned
her son.     Id., ¶1.      When Tykila violated a court order to appear
in person at the factfinding hearing, the circuit court entered
a default judgment on the grounds of abandonment without taking



     7 No allegation of ineffective assistance of counsel has
been raised.


                                         19
                                                   Nos.    2017AP1413 & 2017AP1414.pdr


sufficient     testimony     to    support     a   finding       of   abandonment      by
clear and convincing evidence.            Id., ¶3.

       ¶77    We   held   that    the    circuit        court   erred   in    making   a
finding of abandonment without first taking evidence sufficient
to support that finding.                Id., ¶19.          We explained that the
procedure used "failed to comply with the constitutional and
statutory requirements for termination of parental rights."                         Id.
However, we also explained that at the second step in the two-
step   statutory     process      applicable       to    termination     of    parental

rights trials, the "parent's rights are not ignored.                         The parent
has the right to present evidence and be heard."                      Id., ¶23.

       ¶78    We then explained, that notwithstanding the error that
occurred      at   the    factfinding      hearing,        "we    nonetheless      must
examine the entire record to determine whether it provides a
factual      basis to support       the court's           finding     of grounds for
termination."       Id. at ¶32.         We did not ignore what had occurred
at the second hearing where proof of abandonment was provided.

We relied on Wis. Stat. § 805.18(2) in part for that conclusion.
Section 805.18(2) provides in relevant part:

            No judgment shall be reversed or set aside or new
       trial granted in any action or proceeding on the
       ground of . . . error as to any matter of pleading or
       procedure, unless . . . after an examination of the
       entire action or proceeding, it shall appear that the
       error complained of has affected the substantial
       rights of the party seeking to reverse or set aside
       the judgment, or to secure a new trial.
Id., ¶28 (emphasis in Evelyn C.R.).
       ¶79    So too, in the case before us, we must examine the
entire trial record to determine whether the error of shortening

                                          20
                                                Nos.   2017AP1413 & 2017AP1414.pdr


the factfinding hearing was abrogated by the participation and
evidence that C.L.K. presented at the second step——i.e., the
dispositional hearing.          Id., ¶33.           Stated otherwise, we must

consider     C.L.K.'s   testimony        at     the    dispositional     hearing
relative to abandonment in order to assess whether the error at
the grounds hearing permeated the entire trial.
                           a.   Structural Error
     ¶80   I begin my discussion, based on the record before us
and the applicable law in which structural error is grounded.

It should be noted that the majority opinion refuses to consider
the entire trial that took place before C.L.K.'s parental rights
were terminated.        It also does no analysis of the law when
concluding    that   the   error    at        the    factfinding    hearing     was
structural error.       It gives only lip service to the "strong
presumption" that an error is not structural when counsel was
afforded and the factfinder was impartial, which is required by
Rose v. Clark.       It does not explain how the error so affected

the trial that its effect could not be measured or that its
burden continued from the start of the trial without relief to
the end of the trial after which C.L.K.'s parental rights were
terminated.    Instead, ipse dixit, the majority opinion discovers
a new type of structural error.8
     ¶81   However, the     structural         error factors       identified    in




     8 Neither United States Supreme Court, nor this court, has
ever said that affecting the adversary system is structural
error.


                                     21
                                              Nos.   2017AP1413 & 2017AP1414.pdr


Weaver are my      guides.9     As I    explain as this        discussion     of

structural     error    progresses,     the   framework      in   which    this
termination of parental rights trial was conducted was sound.
It consisted of vigorous representation by counsel before an
unbiased judge.        Although protection of an interest beyond that
of an adverse decision for a defendant can be structural error,
for example when there is a complete denial of the right to
counsel at trial, as in Gideon, the majority opinion identifies
no such interest, and I could find none in this record.

      ¶82    The majority eloquently and expansively              expounds    on
the   merits    of the adversary      system.10      It grounds     its    newly
minted structural error in the alleged failure to permit "the
respondent the option of presenting his case-in-chief" at the
first step of a two-step trial.11           However, the majority opinion
sets out no reasoning and applies no structural error precedent
to support its broad assertion that an error at one hearing
cannot be abrogated by presentations later in the trial.

      ¶83    Furthermore, the quantitative effect of the error that
occurred in the factfinding hearing is easily measured.                   Review


      9In ¶69 above, I identified three categories into which
structural errors generally fall. As an assist to the reader, I
repeat them here.    They are:    (1) affect an underlying right
that protects some interest other than an adverse determination
for the defendant; (2) the error's quantitative effect on the
trial is too hard to measure; and (3) fundamental unfairness
results from the error.     Weaver v. Massachusetts, 137 S. Ct.
1899, 1908 (2017).
      10   See e.g., majority op., ¶¶17-22.
      11   Majority op., ¶16.


                                       22
                                               Nos.    2017AP1413 & 2017AP1414.pdr


of the full record, i.e., both hearings that were held March 23,
2017, shows that C.L.K. fully testified about why he had had so
little contact with his children and the foster parents.                            He
explained why he thought he had an excuse for "messing-up" and
that   he loved      his children.      The     foreshortening of        C.L.K.'s
testimony     that   occurred at     the first-step         of the    trial, was
abrogated by his direct testimony at the second-step, as well as
by his counsel's thorough cross-examination of all witnesses the
State presented at both hearings.             As Nelson explained, when the

effect of the error on the outcome of a trial is capable of
assessment, the error is not structural.                   Nelson, 355 Wis. 2d
722,    ¶5   (citing   Fulminante,     499    U.S.    at   307-08).      However,
notwithstanding the law and the record, the majority opinion
ignores the second hearing and all of C.L.K.'s direct testimony.
       ¶84   In   addition,   C.L.K.    had    no     witnesses   who    were   not
allowed to testify, as his counsel explained twice.12                   First, at
the    factfinding     hearing   counsel      said,    "[i]f   this     is    not   a

directed verdict motion at this point then and the State rests
its case in chief, then I'm going to ask to be able to put my
client on the stand and finish our side of the case."                        C.L.K.,
himself, was his only witness.              Second, his attorney confirmed

       12
       The majority opinion states, "the circuit court did not
allow him to decide who his witnesses would be, the order in
which they would testify, or the evidence he would seek from
each one."   Majority. op., ¶23.    The transcript of the trial
conclusively proves that C.L.K. had only one witness, himself,
at both hearings and that he testified fully.          There is
absolutely nothing in the record to indicate that C.L.K. had any
witnesses other than himself whom he sought to present during
any part of the trial.


                                       23
                                                     Nos.   2017AP1413 & 2017AP1414.pdr


that   C.L.K. had no other              witnesses to        present       when    C.L.K.'s
testimony at the dispositional hearing was concluded and counsel
told the court that he had no further witnesses.                                 And think
about it, who besides C.L.K. would know why he did not see,
speak with or attempt to contact his two young children and
their foster parents for 15 months.
       ¶85    C.L.K.    had    a    full    opportunity       to    explain       why    his
absence      should    not be      sufficient      to     prove    abandonment.          The
transcript      of     the      trial       conclusively          demonstrates         that.

Therefore, we can measure the quantitative effect of this error,
which we could not do if this error were structural.                         This trial
was not fundamentally unfair.
       ¶86    Furthermore,         Evelyn    C.R.,      which      also    involved      an

ultimate finding of abandonment when the factfinding hearing had
been deficient in regard to proof of abandonment, requires that
we consider the entire record when a proof problem occurs at the
factfinding      hearing.            Evelyn       C.R.,     246     Wis. 2d       1,     ¶32

(explaining that "we nonetheless must examine the entire record
to determine whether it provides a factual basis to support the
court's      finding of       grounds      for termination.").             That    is,    on
review, we must consider evidence presented at both hearings
that are components of a termination of parental rights trial
before concluding that an initial error in one part of the trial
is sufficient to require a new trial.                   Id., ¶¶23, 32.
       ¶87    Precedent and fundamental fairness to C.L.K. and to
his two children require that we consider evidence presented at
both the factfinding hearing and the dispositional hearing when

                                             24
                                                     Nos.   2017AP1413 & 2017AP1414.pdr


determining the effect of the error on the trial.                           Id.       After

having fully considered the record and the law, I conclude that
structural error is nowhere to be found in this record.
                               b.    Harmless Error
         ¶88   Because the error that occurred is not structural, I
examine whether it is harmless.                 State v. Travis, 2013 WI 38,
¶66, 347 Wis. 2d 142, 832 N.W.2d 491.                   The State has the burden
of proving the error was harmless.               State v. Tiepelman, 2006 WI
66, ¶3, 291 Wis. 2d 179, 717 N.W.2d 1.

         ¶89   A termination of parental rights proceeding is civil
in nature.        Door Cty. DHFS v. Scott S., 230 Wis. 2d 460, 465,

602 N.W.2d 167 (Ct. App. 1999).                  Wisconsin has codified its
harmless       error   doctrine     in   Wis.   Stat.       § 805.18(2),        which   we
quoted in Evelyn C.R. and which I repeated at ¶78 above.
         ¶90   Notwithstanding that codification, which is applicable
in   a    criminal     law   context     as   well    as    a    civil    context,      our
decisions have expressed harmless error in a variety of ways:

         [I]n order to conclude that an error "did not
         contribute to the verdict" within the meaning of
         Chapman, a court must be able to conclude "beyond a
         reasonable doubt that a rational jury would have found
         the defendant guilty absent the error."
State v. Harvey, 2002 WI 93, ¶48 n.14, 254 Wis. 2d 442, 647
N.W.2d 189 (citation omitted).

         In other words, if it is "clear beyond a reasonable
         doubt that a rational jury would have convicted absent
         the error," then the error did not "contribute to the
         verdict."
Travis, 347 Wis. 2d 142, ¶67 n.54.

         [T]he standard for harmless error                  is   the     same   for
         civil as well as criminal cases.
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Evelyn C.R., 246 Wis. 2d 1, ¶43 (Crooks, J. concurring).

       Wisconsin Stat. § 805.18(2) provides that an error
       requires reversal only where it has "affected the
       substantial   rights    of   the    party"   claiming
       error. . . .   An error is significant enough to
       undermine confidence in the outcome if there is a
       reasonable probability of a different outcome without
       the error.
Id.,   ¶46.         I    conclude      that    the     complained-of       error       in    the

presentation of evidence in a termination of parental rights
trial is harmless unless there is a reasonable probability that
absent the error, the trial outcome would have been different,
i.e., the parent's rights would not have been terminated.
       ¶91    The       shortening     of     C.L.K.'s     testimony       at    the       first
hearing is the error of which he complains.                           In order to assess
whether that error was harmless, we must consider the record of
the entire termination of parental rights trial.                           Waukesha Cty.
v. Steven H., 2000 WI 28, ¶58, 233 Wis. 2d 344, 607 N.W.2d 607
(concluding         that    "[a]       factual        basis     for     several       of    the
allegations in the petition can be teased out of the testimony

of other witnesses at other hearings"); Evelyn C.R., 246 Wis. 2d
1, ¶32 (concluding that we "must examine the entire record to
determine whether it provides a factual basis to support the
court's finding of grounds for termination.").
       ¶92    Upon       review   of    the        applicable     law   and     the    entire
transcript of the two-step trial after which C.L.K.'s parental
rights   were       terminated,        it     is    apparent     that    C.L.K.       did    not
suffer a violation of his substantial rights because the outcome
of the trial would not have been different if he had given the
testimony relative to abandonment at the first hearing that he

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gave at the second hearing.                   Accordingly, I conclude that the
State has proved that it is not reasonably probable that there
would    have      been    a    different         outcome        if    the       error      had    not
occurred.         Therefore, the error was harmless.
                                      III.    CONCLUSION
     ¶93      In conclusion, although I agree that the circuit court
erred    in   shortening         C.L.K.'s         presentation             at   the    factfinding
hearing, the error was a trial error.                            It was not a structural
error because it did not affect the framework of the entire

trial.        Rather, the framework of the trial was established
through C.L.K.'s vigorous representation by counsel before an
unbiased factfinder from which framework we can quantitatively
assess    the      effect       of    the    error.            Accordingly,           because      the
complained-of        error       is    not    structural,             it    is     subject        to   a
harmless-error analysis.
     ¶94      Furthermore, the error did not affect the validity of
the finding that C.L.K. had abandoned his two young children or

that it was in the best interests of the children that C.L.K.'s
parental rights be terminated so that their foster parents can
adopt them.         Because I conclude that the circuit court error was
harmless and, therefore, the two children who were abandoned by
C.L.K.     should        have    a    permanent          home    in        which      to   grow,       I
respectfully dissent from the majority opinion.
     ¶95      I     am    authorized         to        state    that        ANNETTE        KINGSLAND
ZIEGLER, J. joins this dissent.




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