Evelyn C. R. v. Tykila S.

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2001 WI 110 SUPREME COURT OF WISCONSIN Case No.: 00-1739 Complete Title of Case: In re the Termination of Parental Rights to Jayton S., a Person Under the Age of 18: Evelyn C. R., Petitioner-Respondent, v. Tykila S., Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 239 Wis. 2d 232, 619 N.W.2d 307 (Ct. App. 2000-Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: July 12, 2001 April 25, 2001 Circuit Dane Maryann Sumi ABRAHAMSON, C.J., concurs (opinion filed). CROOKS, J., concurs (opinion filed). WILCOX, J., joins concurrence. Dissented: Not Participating: ATTORNEYS: For the respondent-appellant-petitioner there were briefs by Timothy A. Provis, Madison, and oral argument by Timothy A. Provis. For the petitioner-respondent there was a brief by Theresa L. Roetter and Stafford Rosenbaum LLP, Madison, and oral argument by Theresa L. Roetter. There was a brief and oral argument by the guardian ad litem, Janet Rasmussen, Madison. 2 2001 WI 110 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-1739 STATE OF WISCONSIN : IN SUPREME COURT In re the Termination of Parental Rights to Jayton S., a Person Under the Age of 18: FILED Evelyn C. R., JUL 12, 2001 Petitioner-Respondent, Cornelia G. Clark Clerk of Supreme Court Madison, WI v. Tykila S., Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 appeals JON P. WILCOX, J. decision, unpublished affirmed an slip Evelyn op. order by Affirmed. This is a review of a court of R. (Wis. Ct. the Dane v. Tykila App. Sept. County S., No. 00-1739, 21, 2000), which Circuit Court, Judge Maryann Sumi, terminating Tykila S.'s (Tykila) parental rights to her biological son, Jayton S. (Jayton). After Tykila violated a court order to appear in person at the fact-finding hearing intended to determine whether she had abandoned her son, the circuit court entered a default judgment against Tykila on the issue of abandonment without first taking any evidence on No. the matter. At the subsequent dispositional 00-1739 hearing, the circuit court accepted testimony supporting the termination of Tykila's parental rights to Jayton and, based on this testimony, reaffirmed the default judgment against Tykila and entered an order terminating Tykila's parental rights to Jayton. ¶2 appeals Tykila now petitions this court to review the court of decision, which affirmed terminating her parental rights. single issue: judgment on the circuit court order In doing so, she raises a Did the circuit court err in entering a default the issue of abandonment without first taking evidence sufficient to support a finding of abandonment by clear and convincing evidence? ¶3 We conclude that the circuit court did err in entering the default judgment against Tykila on the issue of abandonment without first taking evidence sufficient to support a finding of abandonment by clear and convincing evidence. However, upon review of the entire record in this case, we further conclude that the circuit court remedied this error at the dispositional hearing when, prior to reaffirming entering the order terminating the default Tykila's judgment parental rights and to Jayton, the court took evidence sufficient to support by clear and convincing Jayton. As evidence such, the a finding error was that Tykila harmless. had abandoned Accordingly, we affirm the decision of the court of appeals. I ¶4 The following facts are undisputed. on May 2, 1992. Jayton was born He has lived with and been cared for by his 2 No. paternal grandmother, Evelyn R. (Evelyn), for 00-1739 virtually his entire life, and in November 1997, Evelyn was appointed Jayton's legal guardian. initiation of For the approximately present five years proceedings, prior Jayton's to the biological mother, Tykila, had not had any contact with Jayton. ¶5 On October 12, 1999, in order to adopt Jayton, Evelyn filed a pro se petition in Dane County Circuit Court for the termination of Tykila's parental rights to Jayton. The circuit court subsequently held a hearing on this petition, during which it expressed concern about the facts that Evelyn's petition lacked an accompanying affidavit and neither Evelyn nor Tykila had counsel. Due to these concerns, the court ordered Evelyn and Tykila to obtain counsel, and set a date for a continued hearing. ¶6 filed On November 24, 1999, after obtaining counsel, Evelyn an amended petition and supporting affidavit termination of Tykila's parental rights to Jayton.1 petition, Evelyn "abandoned" (1997-98):2 alleged Jayton, "Tykila as in pertinent defined [S.] knew part by Wis. or could that Stat. have for the In this Tykila had § 48.415(1)(a)3 discovered the 1 This petition also requested that the court terminate Jayton's father's parental rights to Jayton. Jayton's father voluntarily waived his right to contest the petition and his parental rights to Jayton subsequently were terminated. 2 Section 48.415(1)(a)3 of the Wisconsin Statutes (1997-98) provides that a parent has abandoned a child when: "The child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of 6 months or longer." 3 No. 00-1739 whereabouts of the child [Jayton], and she failed to visit or communicate with the child since December, 1994."3 ¶7 Tykila denied that she had abandoned Jayton. Although she did not dispute the fact that she had not contacted Jayton since December 1994, she claimed that she did not know nor could she have discovered Jayton's whereabouts. Because Tykila contested Evelyn's petition, the court scheduled a fact-finding hearing for February 28, 2000, which, at Tykila's request, would be held before a twelve-person jury. ¶8 On February 28, 2000, Tykila person at the fact-finding hearing. failed to appear in The court did manage to reach Tykila by phone, but, in light of the fact that the jury would be required to determine whether Tykila had abandoned Jayton, the court expressed great apprehension about holding the hearing without Tykila's physical presence. As the court explained: My concern in a case like this where the sole ground is abandonment, and the defendant does not appear, does that irretrievably persuade the jury that she in fact has abandoned this child because she didn't even you can finish the sentence for me care enough to show up. And is that something that once the jury panel and the jurors are exposed to her appearing by telephone, I can offer any reason in the world, but I All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. 3 Evelyn also alleged in the amended petition that Tykila had "fail[ed] to assume parental responsibility" for Jayton, as defined by Wis. Stat. § 48.415(6). However, because Evelyn later withdrew this allegation, it is not relevant to our analysis of this case. 4 No. 00-1739 don't know that it's going to be enough to undo the impression that would be left with the jury. Tykila's attorney agreed with the court that it likely would be highly prejudicial to Tykila to proceed with the hearing in Tykila's absence and, for this reason, objected to proceeding. In the wake of this objection, the court offered Tykila several options, including proceeding with a trial to the court. Tykila refused the court's offers and insisted that the hearing be held before a jury. Tykila. Evelyn then moved for a default judgment against The court denied Evelyn's motion, released the jury panel, and rescheduled the fact-finding hearing for April 3, 2000. However, the court issued an oral and written order that Tykila appear in person at 9:00 a.m. on April 3, 2000, and at "all subsequent proceedings held in this case," or face a potential default judgment. ¶9 On April 3, 2000, Tykila again failed to appear in person. Evelyn Tykila. thus moved for a default judgment against Jayton's GAL voiced "[n]o objection" to the motion. And Tykila's attorney merely stated: argument." "I would object and waive After noting on the record that Tykila was ordered to appear at 9:00 a.m. and that it was then 9:40 a.m., the court granted Evelyn's motion. The court further found, based on the allegations in Evelyn's petition for the termination of Tykila's parental rights to Jayton, that Tykila had abandoned Jayton and, as such, Tykila's Tykila grounds parental to be an existed rights unfit under to § 48.415(1)(a)3 Jayton. parent and 5 to terminate Hence, the court scheduled the case found for a No. 00-1739 hearing to determine what disposition would be in Jayton's best interests. ¶10 2000. The court held the dispositional hearing on April 11, Once again, Tykila failed to appear in person. Nonetheless, the court proceeded to hear testimony. ¶11 Evelyn provided the court with testimony relevant to Tykila's alleged abandonment of Jayton. Evelyn testified in part that Jayton had lived with her since May 1992, and that she and Jayton had lived in Madison since December 1994. She further testified that her address and telephone number had been listed in the telephone directory the entire time that she and Jayton had lived in Madison. Finally, Evelyn testified that although she had done nothing to prevent contact between Tykila and Jayton, Tykila had not contacted Jayton in any way since December 1994. ¶12 Midway through appeared by telephone. the dispositional hearing, Tykila Accordingly, the court offered her the opportunity to be heard. But although Tykila offered brief testimony, she did not say anything regarding Jayton or contest the court's entry of default judgment against her. Rather, she merely gave a one-sentence statement about why she had missed an earlier proceeding. When the court asked if she had anything else to say, Tykila replied "no." ¶13 At the close of the testimony, the circuit court considered the evidence before it and reaffirmed its entry of default judgment against Tykila: 6 No. 00-1739 At this point then I need to consider the standards, the factors that are set forth in the statutes governing termination of parental rights. I would note that Tykila [S.], the mother, has repeatedly been in default.4 The court has given her numerous opportunities, including discharging an entire jury panel at one point so that she could appear in person, even though an order for appearance had gone out. So I'm satisfied that the default is sound. I'm also satisfied that grounds exist, that being the ground of abandonment, as established through the testimony of . . . Evelyn [R.] today. So grounds exist for the termination of parental rights of Tykila [S.]. Then, after noting that Tykila's abandonment of Jayton provided grounds to terminate Tykila's parental rights to Jayton, the court concluded that it would be in Jayton's best interests to terminate Tykila's parental rights to him so he could be adopted by Evelyn. parental The court thus entered an order terminating Tykila's rights to Jayton and subsequently signed an order granting a petition by Evelyn to adopt Jayton. ¶14 Tykila appealed the circuit court's order terminating her parental rights to Jayton. The court of appeals, however, affirmed the order. ¶15 Tykila then petitioned this court for review of the court of appeals decision. We granted review. II 4 This seems to be a reference to violated the circuit court order to appear failing to appear in person at the second but also by failing to appear in person hearing. 7 the fact that Tykila in person not only by fact-finding hearing, at the dispositional No. ¶16 Tykila raises a single issue for review: 00-1739 Did the circuit court err in entering a default judgment on the issue of abandonment without first taking evidence sufficient to support a finding Tykila of abandonment concedes that the by clear circuit and convincing court had the evidence? authority to enter a default judgment against her as a sanction for failing to comply with the court order for personal appearance. However, Tykila contends that this authority did not relieve the circuit court of its constitutional and statutory duty to find by clear and convincing evidence prior to finding her to be an unfit parent that circuit evidence, court she entered Tykila had abandoned default further Jayton. judgment contends, there Because the without taking any was evidentiary no basis to support the court's finding of abandonment; the circuit court thus could not find by clear and convincing evidence that she had abandoned Jayton. Therefore, Tykila concludes, the circuit court erred in entering the default judgment against her on the issue of abandonment without first taking evidence. We agree. A ¶17 This case does not fall within the scope of Wis. Stat. § 806.02(5).5 Although Tykila was not physically present at the fact-finding hearing, she nevertheless "appeared" at the hearing 5 Section 806.02(5) of the Wisconsin Statutes provides: "A default judgment may be rendered against any defendant who has appeared in the action but who fails to appear at trial. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof." 8 No. via her counsel. of this case. 00-1739 Thus, § 806.02(5) does not govern the outcome Nevertheless, a circuit court has both inherent authority and statutory authority under Wis. Stat. §§ 802.10(7),6 804.12(2)(a),7 and 805.038 to sanction parties for failing to obey court orders. See Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273-74, 470 N.W.2d 859 (1991) (noting the same, but citing a prior version of the Wisconsin Statutes). Pursuant to this authority, a circuit court may enter a default judgment against a party that fails to comply with a court order. Wis. Stat. §§ 802.10(7), 804.12(2)(a), 805.03; see See generally 6 Section 802.10(7) of the Wisconsin Statutes provides: "SANCTIONS. Violations of a scheduling or pretrial order are subject to ss. 802.05, 804.12 and 805.03." 7 Section 804.12(2)(a) of the Wisconsin Statutes provides in part: If a party . . . fails to obey an order . . ., the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . 3. An order . . . rendering a judgment by default against the disobedient party . . . . 4. 8 Section 805.03 of the Wisconsin Statutes provides part: [F]or failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to orders authorized under s. 804.12(2)(a). 9 in No. 00-1739 Chevron Chem. Co. v. Deloitte & Touche LLP, 207 Wis. 2d 43, 557 N.W.2d 775 (1997). ¶18 The decision whether to enter a default judgment is a matter within the sound discretion of the circuit court. Shirk v. Bowling, Inc., 2001 WI 36, ¶9, 242 Wis. 2d 153, 624 N.W.2d 375. But where a circuit court has applied an incorrect legal standard in deciding whether to enter judgment, the court has erroneously exercised its discretion. Oostburg State Bank v. United Sav. & Loan Ass'n, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53 (1986). In such a circumstance, this court may reverse the circuit court's discretionary decision. ¶19 Id. at 11. In the case at hand, by entering a default judgment against Tykila on the issue of abandonment without first taking evidence sufficient to support such a finding, the circuit court failed to comply with the constitutional and requirements for termination of parental rights. statutory We therefore hold that the court erroneously exercised it discretion. B ¶20 Terminations of parental rights parents' most fundamental human rights. affect some of T.M.F. v. Children's Serv. Soc'y, 112 Wis. 2d 180, 184, 332 N.W.2d 293 (1983). At stake for a parent is his or her "interest in the companionship, care, custody, and management of his or her child." Id. Further, the permanency of termination orders "work[s] a unique kind of deprivation. parties' will adjudications or In contrast to matters modifiable at the based involve on the changed awesome 10 circumstances, authority of termination the State to No. destroy permanently relationship." (citations all legal recognition of the 00-1739 parental M.L.B. v. S.L.J., 519 U.S. 102, 127-28 (1996) and quotations omitted). For these reasons, "parental termination decrees are among the most severe forms of state action." ¶21 rights, Id. Due to the severe nature of terminations of parental termination proceedings safeguards against erroneous require decisions. heightened Although legal termination proceedings are civil proceedings, M.W. v. Monroe County Dep't of Human Servs., 116 Wis. 2d 432, 442, 342 N.W.2d 410 (1984), the Due Process Clause of the Fourteenth Amendment to the United States Constitution9 requires that "[i]n order for parental rights to be terminated, the petitioner must show by clear and convincing evidence that the termination is appropriate." L.K. v. B.B., 113 Wis. 2d 429, 441, 335 N.W.2d 846 (1983) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982)). ¶22 This Wisconsin's constitutional Children's safeguard Code, Wis. is Stat. reflected Chapter 48. in As delineated in the Children's Code, when a parent contests the termination of his or her parental rights, proceeding involves a two-step procedure. the termination Waukesha County Dep't of Soc. Servs. v. C.E.W., 124 Wis. 2d 47, 60, 368 N.W.2d 47 (1985); see also Wis. Stat. 9 § 48.422 (setting forth the The Due Process Clause in the Fourteenth Amendment to the United States Constitution provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ." 11 No. different procedural termination frameworks proceedings). for The contested first step 00-1739 and is uncontested a fact-finding hearing "to determine whether grounds exist for the termination of parental rights . . . ." Wis. Stat. § 48.424. During this step, are paramount. Minguey 689, 303 the Brookens, parent's 100 rights Wis. 2d 681, N.W.2d See 581 (1981). v. To protect these rights from erroneous termination, the Children's Code provides that at the fact-finding hearing, "[t]he petitioner must prove the allegations [supporting grounds for termination] convincing in the petition evidence." for C.E.W., termination 124 Wis. 2d at by clear 60 and (emphasis added; quotation and citation omitted); Wis. Stat. §§ 48.31(1). If the petitioner surmounts this evidentiary burden, the circuit court "shall find the parent unfit" and advance to the second step of the termination procedure. Wis. Stat. § 48.424(4). ¶23 The second step is the dispositional phase. At the dispositional phase, as the name of this phase implies, "the circuit court decides the disposition of the child." 124 Wis. 2d at 60. child are C.E.W., During this step, the best interests of the paramount. Wis. Stat. parent's rights are not ignored. § 48.426. However, The parent has the right to present evidence and be heard at the dispositional phase. Stat. § 48.427(1)-(1m). the Wis. And if the circuit court finds during the dispositional phase "that the evidence does not warrant the termination of parental rights," the court need not terminate the parent's rights. Wis. Stat. § 48.427(2). 12 No. ¶24 00-1739 In the case at hand, the circuit court erred during the first step of this procedure. ground for the Tykila had termination "abandoned" § 48.415(1)(a)3. of Evelyn alleged as the sole Tykila's Jayton, as parental defined by rights that Wis. Stat. Thus, pursuant to the Fourteenth Amendment and the Wisconsin Children's Code, Wis. Stat. §§ 48.31 and 48.424, prior to determining that grounds existed to terminate Tykila's parental rights, the circuit court had the duty at the factfinding hearing to find by clear and convincing evidence that all of the elements of § 48.415(1)(a)3 had been satisfied: "(1) the child has been left by the parent with a relative or other person; (2) the parent knows or could discover the whereabouts of the child; communicate and with (3) the the child parent for a has failed period of [6 to visit or months] or longer." S.-G. v. S.-G., 194 Wis. 2d 365, 372, 533 N.W.2d 794 (1995). However, by entering a default judgment against Tykila on the issue of abandonment without first taking evidence, the circuit court did not make and, indeed, could not make such a finding. Because it failed to take evidence at the fact-finding hearing, the circuit court had no evidentiary basis to support its finding of abandonment prior to finding grounds for the termination of Tykila's parental rights. ¶25 Where, as in the present case, the constitution and statutory code require a showing of proof before the circuit court can enter a particular judgment or order, the circuit court cannot enter the judgment or order without the appropriate showing. To be sure, the circuit court may, as it did here, 13 No. 00-1739 determine that a party's action or inaction provides adequate cause for sanctions against that party. But such cause does not allow the court to dispense with any independent constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. ¶26 The circuit court in the present case breached this principle. As Tykila acknowledges, her violation of the order for personal appearance supplied the circuit court with adequate cause to sanction her by means of a default judgment. However, this cause did not relieve the circuit court of its duty under the Fourteenth sufficient Amendment and evidence prior to Wis. Stat. finding Chapter Tykila to 48 be to an take unfit parent to support a finding by clear and convincing evidence that Tykila judgment first had against taking evidence, abandoned Jayton. By entering a default Tykila the of abandonment without this the on issue constitutionally circuit court and statutorily erroneously required exercised its discretion. C ¶27 Our conclusion that the circuit court erroneously exercised its discretion does not end our review of this case. We also must determine whether this error requires us to reverse the court of appeals decision and the circuit court order terminating Tykila's parental rights to Jayton. ¶28 Section 805.18(2) of the Wisconsin Statutes provides in pertinent part: 14 No. 00-1739 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 in the opinion of the court to which the application is made, 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. (Emphasis added.) For an error to "affect the substantial rights" of a party, there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. State v. Dyess, 124 Wis. 2d 525, 543, 547, 370 N.W.2d 222 (1985); see also Town of Geneva v. Tills, 129 Wis. 2d 167, 184-85, forth 384 N.W.2d in cases). Dyess 701 applies (1986) in (noting civil that cases as the standard well as set criminal A reasonable possibility of a different outcome is a possibility sufficient to "undermine confidence in the outcome." Dyess, 124 Wis. 2d at 544-45 (quotation omitted). If the error at issue is not sufficient to undermine the reviewing court's confidence in the outcome of the proceeding, the error is harmless. ¶29 Last term, in Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607, we applied harmless error analysis to a case similar to the one presently at hand. Steven H. involved a respondent to a termination of parental rights petition who voluntarily waived his allegations in the petition. Id. at ¶51. waiver, taking and allegations without in the first petition, the 15 right to contest the Based largely on this testimony circuit to support the court found that No. 00-1739 grounds existed to terminate the respondent's parental rights. Id. at ¶54. ¶30 court On review of Steven H., we concluded that the circuit erred allegations in failing in the parental rights. to take petition Id. at ¶56. to testimony terminate to support the the respondent's As we explained, the respondent's waiver of his right to contest the petition was not tantamount to the respondent admitting the allegations in the petition; the circuit court still had the duty to make findings sufficient to support the allegations in the petition for termination. Id. at ¶¶52, 56. ¶31 Nonetheless, we concluded in Steven H. that the circuit court's failure to take testimony did not require us to overturn the order terminating the respondent's parental rights. Id. at ¶57. Rather, we noted that "[a] factual basis for several of the allegations in the petition c[ould] be teased out of the testimony of other witnesses at other hearings when the entire record [wa]s examined." Id. at ¶58. Based on this factual basis, we held that although we had grave concerns about the circuit court's failure to follow the statutory procedure for termination record persuaded proceedings, us that the our examination circuit court's of the error sufficient to justify overturning the termination order. entire was not Id. at ¶60. ¶32 case. We find Steven H. to be instructive in the present Although the circuit court in the case at hand may have procedurally erred, we nonetheless 16 must examine the entire No. record to determine whether it provides a factual 00-1739 basis to support the court's finding of grounds for termination. ¶33 its In the present case, the circuit court did not enter order taking terminating Evelyn's Tykila's testimony parental and, rights based reaffirming its finding of abandonment. on until this after testimony, At the time the court reaffirmed its finding of abandonment and prior to the court ordering the termination of Tykila's parental rights, the record contained sufficient facts finding of abandonment. to support the circuit court's First, the record contained evidence that Tykila had left Jayton with Evelyn: as Evelyn explained in her her testimony, Second, there discovered Jayton was had lived that evidence Jayton's with Tykila whereabouts: since knew Evelyn or May 1992. could have testified that her telephone number and address had been listed in the telephone directory throughout all of the approximately preceding the commencement of this case. contained evidence that Tykila had five years And third, the record failed to visit communicate with Jayton for far more than six months: or Evelyn's testimony revealed that Tykila had not contacted Jayton since December 1994; that is, at the time Evelyn filed her petition for the Tykila termination had approximately not ten of Tykila's contacted times the parental Jayton amount for of rights about time § 48.415(1)(a)3 to constitute abandonment. to Jayton, five years necessary under Although given the opportunity to do so, Tykila did not dispute any of these facts. 17 No. ¶34 In addition, the record reflects that the 00-1739 circuit court weighed these facts prior to reaffirming its finding of abandonment and terminating Tykila's parental rights. Indeed, the circuit court made specific reference to Evelyn's testimony when it reexamined whether grounds existed for the termination of Tykila's parental rights. ¶35 With these considerations in mind, we hold that the circuit court's failure to take evidence prior to entering the default judgment confidence in against the Tykila outcome of fails the to undermine termination our proceeding. Accordingly, while this case again raises the concerns that we expressed in Steven H. about the circuit court failing to follow the procedures delineated in Chapter 48, we conclude that the circuit court's procedural error was harmless. III ¶36 In sum, we hold that the circuit court erred in entering a default judgment against Tykila regarding the issue of abandonment without first taking evidence sufficient to support a finding by clear and convincing evidence that Tykila indeed had abandoned Jayton. However, we further hold that because the record when examined in its entirety reveals that prior to reaffirming the default judgment and issuing the order terminating Tykila's parental rights, the circuit court had taken and considered evidence sufficient to support its finding of abandonment, harmless. the circuit court's procedural error was Therefore, we affirm the decision of the court of 18 No. appeals, which upheld the circuit court order 00-1739 terminating Tykila's parental rights to Jayton. By the Court. The decision affirmed. 19 of the court of appeals is No. 00-1739.ssa ¶37 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). Errors are the insects in the world of law, travelling through it in swarms, often unnoticed in their endless procession. Many are plainly harmless; some appear ominously harmful. Some, for all the benign appearance of their spindly traces, mark the way for a plague of followers that deplete trials of fairness. The well-being of the law encompasses a tolerance for harmless errors adrift in an imperfect world. Its well-being must also encompass the capacity to ward off the destroyers. So an inquiry into what makes error harmless, though one of philosophical tenor, is also an intensely practical inquiry into the health and sanitation of the law. Roger J. Traynor, Foreword, The Riddle of Harmless Error (1970). ¶38 federal The harmless error doctrine, as applied in state and courts alike, has inspired several decades of commentary, criticism, skepticism, and attempted clarification.10 10 See, e.g., Roger J. Traynor, The Riddle of Harmless Error (1970) (proposing several different variations of the harmless error standard depending on the nature of the error); Harry T. Edwards, Madison Lecture: To Err is Human, But Not Always Harmless: When Should Legal Error Be Tolerated, 70 N.Y.U. L. Rev. 1167, 1199 (1995) (expressing skepticism that "in practical application we can ever solve the riddle of harmless error"). 1 No. 00-1739.ssa This academic and judicial scrutiny will likely continue to flourish as this court and other courts expand the harmless error doctrine to violations of substantive rights in which the effect of the error is difficult, if not impossible, to quantify.11 ¶39 The present case, like other cases this year12 and in prior years,13 requires this court to apply the harmless error See also James Edward Wicht III, There is No Such Thing as a Harmless Constitutional Error: Returning to a Rule of Automatic Reversal, 12 B.Y.U. Pub. L. 73 (1997); Gregory Mitchell, Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review, 82 Calif. L. Rev. 1335 (1994); Vilija Bilaisis, Comment, Harmless Error: Abettor of Courtroom Misconduct, 74 J. Crim. L. & Criminology 457 (1983); Comment, Confusion in the Court: Wisconsin's Harmless Error Rule in Criminal Appeals, 63 Marq. L. Rev. 643 (1980). For a discussion of reversible error and the review function, and a critique of Wisconsin case law, see Ruggero J. Aldisert, The Judicial Process: Readings, Materials and Cases 706-42 (1976). 11 See, e.g., State v. Lindell, 2001 WI 108, ___ Wis. 2d ___, ___ N.W.2d ___ (applying harmless error doctrine to the circuit court's failure to strike a biased juror for cause, requiring the defendant to use a peremptory challenge to remove the juror). 12 See also Green v. Smith, 2001 WI 109, ___ Wis. 2d ___, ___ N.W.2d ___; Koffman v. Leichtfuss, 2001 WI 111, ___ Wis. 2d ___, ___ N.W.2d ___; Martindale v. Ripp, 2001 WI 113, ___ Wis. 2d ___, ___ N.W.2d ___; Nommenson v. Amer. Cont l, 2001 WI 112, ___ Wis. 2d ___, ___ N.W.2d ___; Lindell, 2001 WI 108. 13 See, e.g., State v. Mendoza, 227 Wis. 2d 838, 864, 596 N.W.2d 736 (1999); State v. Jones, 226 Wis. 2d 565, 597-98, 594 N.W.2d 738 (1999); State v. Agnello, 226 Wis. 2d 164, 178-79, 593 N.W.2d 427 (1999); State v. Armstrong, 223 Wis. 2d 331, 36771, 588 N.W.2d 606 (1999); State v. Sullivan, 216 Wis. 2d 768, 792-94, 576 N.W.2d 30 (1998); State v. Jackson, 216 Wis. 2d 646, 668-69, 575 N.W.2d 475 (1998); State v. Huntington, 216 Wis. 2d 671, 695-96, 575 N.W.2d 268 (1998); State v. Alexander, 214 Wis. 2d 628, 652-54, 571 N.W.2d 662 (1997). 2 No. 00-1739.ssa doctrine. Some may view the cases decided today as an opportunity to "fix" Wisconsin's harmless error doctrine once and for all. I do not share this sentiment. Appellate courts should not tinker with the harmless error doctrine without the benefit of briefing by both parties, oral argument on the issue, and an exploration of the federal and state cases and the that the historical development of the law.14 ¶40 Our cases and scholarly commentary reveal doctrine of harmless error is a work in progress.15 approaches have been explored in the legal Numerous literature. For example, Justice Roger Traynor and others have proposed that the harmless error test might vary depending on the nature of the error.16 For errors at trial that affect some aspect of the fact-finding process, Justice Traynor proposed that the appellate court reverse unless it finds it "highly probable that This court has also applied the harmless error doctrine in the context of administrative agency determinations. See, e.g., Responsible Use of Rural and Agric. Land v. PSC, 2000 WI 129, ¶63, 239 Wis. 2d 660, 619 N.W.2d 888; State ex rel. Anderson-El v. Cooke, 2000 WI 40, ¶¶21-24, 234 Wis. 2d 626, 610 N.W.2d 821. 14 See also State v. Grant, 139 Wis. 2d 45, 88, 406 N.W.2d 744 (1987) (Abrahamson, J., concurring). 15 See, e.g., 5 Wayne R. LaFave et al., Criminal Procedure § 27.6(b), at 938-39 (2d ed. 1999) ("Few areas of doctrinal development have been marked by greater twisting and turning than the development of standards for applying the harmless error rule."). 16 See also 5 Wayne R. LaFave et al., Criminal Procedure § 27.6(b) at 934-36 (2d ed. 1999) (noting that courts have long applied the harmless error statute differently depending on the nature of the right violated). 3 No. 00-1739.ssa the error did not affect the judgment."17 Justice Traynor would require reversal for "errors that carry a high risk of prejudice to the judicial process itself," such as errors relating to the composition of a jury.18 reversal affecting obtained for the Likewise, Justice Traynor would require errors "that judgment," confession or inherently such not carr[y] as a high admitting policing an against the risk of unlawfully effect of prejudicial pretrial publicity.19 ¶41 My hope is for increased discussion of the doctrine of harmless error and educational programs for the bench and the bar regarding the application of, and limitations of, the 17 See Roger J. Traynor, The Riddle of Harmless Error 35, 49-51 (1970). 18 See Roger J. Traynor, The Riddle of Harmless Error 64-66 (1970) (noting that a defendant challenging, for example, the denial of the right to peremptory challenges could not possibly show prejudice, and that the appellant "should not be called upon to do the impossible at the appellate stage"). 19 See Roger J. Traynor, The Riddle of Harmless Error 58-64 (1970). 4 No. 00-1739.ssa doctrine. Appellate counsel should continue to brief the issue of harmless error in requests for new trials. ¶42 Although I join the majority opinion, for the reasons set forth, I write separately. 5 No. ¶43 N. PATRICK CROOKS, J. the majority's decision today (concurring). and write 00-1739.npc I agree with separately only to remark upon the harmless error test utilized by the majority. See majority op. at ¶27. The majority's standard is whether there is "a reasonable possibility that the error contributed to the outcome," "sufficient and to that a 'undermine "reasonable confidence in possibility" the is outcome.'" one Id. (quoting State v. Dyess, 124 Wis. 2d 525, 544-45, 370 N.W.2d 222 (1985)). Since the standard for harmless error is the same for civil, as well as criminal, cases (Town of Geneva v. Tills, 129 Wis. 2d 167, 184-85, 384 N.W.2d 701 (1986)), it is imperative that the standard be accurately conveyed. ¶44 For at least the past 35 years, this court wrestled with formulating a standard for harmless error. has See, e.g., Pulaski v. State, 24 Wis. 2d 450, 456-57, 129 N.W.2d 204 (1964); State v. Spring, 48 Wis. 2d 333, 339-40, 179 N.W.2d 841 (1970); Wold v. State, 57 Wis. 2d 344, 356-57, 204 N.W.2d 482 (1973); State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987). In an attempt to formulate a single, uniform test for harmless error, Dyess "conclude[d] that the test of prejudice as formulated in Strickland subsumes the various statements of the harmless error test that this court has used over the years." 1 No. Dyess, 124 Wis. 2d at 545.20 00-1739.npc The Strickland case referred to is Strickland v. Washington, 466 U.S. 668, 693 (1984), and the test is whether "there is a reasonable probability" that "but for" the error, different. to "the of the proceeding would have been A reasonable probability is a probability sufficient undermine (emphasis result confidence added). in Dyess the outcome." obviously 466 adopted U.S. that at 694 test, but incorrectly assumed that there was no real difference between using "reasonable possibility" probability." 124 Wis. 2d at 544. instead of "reasonable Granted, Dyess applied its test by stating that "[i]n the present case, the probability to be weighed is whether the defendant would have been acquitted." Id. at 546 (emphasis added). However, as evident in the majority's opinion here today,21 Wisconsin courts have frequently 20 Dyess' single test for harmless error standard has not been without controversy. State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985). In addition to the majority opinion's discussion of Dyess' harmless error standard, authored by Justice Day, in State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987), Chief Justice Heffernan, Justice Day, Justice Abrahamson, and Justice Callow separately concurred on the Dyess issue. The controversy has continued. See State v. Dodson, 219 Wis. 2d 65, 92-98, 580 N.W.2d 181 (1998) (Crooks, J., concurring, joined by Justice Steinmetz and Justice Wilcox). 21 See also, Koffman v. Leichtfuss, 2001 WI 111, ___ Wis. 2d ___, ___ N.W.2d ___; Martindale v. Ripp, 2001 WI 113, ___ Wis. 2d ___, ___ N.W.2d ___; Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ___ Wis. 2d ___, ___ N.W.2d ___; and Nommensen v. American Cont l Ins. Co., 2001 WI 112, ___ Wis. 2d ___, ___ N.W.2d ___. (I have written dissents or concurrences in these cases.) But see State v. Lindell, 2001 WI 108, ___ Wis. 2d ___, ___ N.W.2d ___ (Strickland's probability sufficient to undermine the confidence in the outcome test used to determine ineffective assistance of counsel claim). 2 No. 00-1739.npc used the term "reasonable possibility," and have not indicated that, in the context of a harmless error standard, possibility means probability.22 ¶45 There can be no difference between what doubt is that there reasonably is a probable significant and what is reasonably possible. "A possibility test is the next thing to automatic reversal." Wold v. State, 57 Wis. 2d 344, 356-57, 204 N.W.2d 482 (1973).23 While I agree that the focus should be "on whether the error 'undermine[s] (Dyess, 124 Wis. 2d at 545 confidence (quoting in the Strickland, outcome,'" 466 U.S. at 694)), if that error need only possibly undermine the confidence in the outcome, circuit courts rather than considering probably, motions appellate after verdict courts, and and post- convictions motions, will find themselves invading the purview of the jury. A cornerstone of the common law is deference to the jury, which is diluted by determining whether the alleged error possibly, and only possibly, may have affected the jury's decision. 22 According to my research, on few occasions since Dyess has this court, in a majority opinion, noted that reasonable possibility means reasonable probability. See State v. Armstrong, 223 Wis. 2d 331, 372 n.40, 588 N.W.2d 606 (1999); see also State v. Huntington, 216 Wis. 2d 671, 695-96, 575 N.W.2d 268 (1998). However, several court of appeals opinions have applied the Dyess harmless error test using the correct "reasonable probability" standard. See, e.g., State v. A.H., 211 Wis. 2d 561, 569, 566 N.W.2d 858 (Ct. App. 1997); State v. Joseph P., 200 Wis. 2d 227, 237, 546 N.W.2d 494 (Ct. App. 1996). 23 Wold's "reasonable probability" test for harmless error was replaced by Dyess' "reasonable possibility" test. 3 No. ¶46 I do not take issue with the term 00-1739.npc "reasonable possibility," so long as it is made clear that this term means reasonable probability, and probability is the standard to be applied. Accordingly, I offer the following test for harmless error, which makes clear that Dyess' use of the term "reasonable possibility" is intended to require "reasonable probability": Wisconsin Stat. § 805.18(2) provides that an error requires reversal only where it has "affected the substantial rights of the party" claiming error. We have long recognized that the focus of a court's analysis under this statute is whether, in light of the applicable burden of proof, the error is significant enough to "undermine confidence in the outcome" of the trial. Dyess, 124 Wis. 2d at 544-45. An error is significant enough to undermine confidence in the outcome if there is a reasonable probability of a different outcome without the error. made it clear that "probability" is Dyess substantially the same as "possibility" under Wisconsin law. Id. at 544. ¶47 Even though the majority used a "reasonable possibility" test, the error at issue here that the circuit court erroneously exercised its discretion in entering a default judgment against Tykila S. would be harmless under the more stringent "reasonable probability" test. I joined the unanimous majority opinion in a similar case decided last term, Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607, wherein we concluded that the circuit court's error there its failure to hear testimony in support of the allegations in the petition to terminate parental rights was harmless because it did not prejudice the parent, Steven H. 4 Id. at ¶¶53-57. I No. find no substantive distinction between Steven 00-1739.npc H. and the instant case. ¶48 That possibility" Wisconsin rather than courts have "reasonable often used probability" "reasonable should dissuade the court from correcting such missteps today. not See, e.g., State v. Sullivan 216 Wis. 2d 768, 792, 576 N.W.2d 30 (1998); State v. Alexander, 214 Wis. 2d 628, 653, 571 N.W.2d 662 (1997). There is no time like the present dum fervet opus24 when the court has before it five cases wherein it discusses the harmless error standard, to clarify Dyess. ¶49 For the reasons stated herein, I respectfully concur. ¶50 I am authorized to state that Justice JON P. WILCOX joins this opinion. 24 "While the action is fresh; in the Black's Law Dictionary 518 (7th ed. 1999). 5 heat of action."

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