author: JON P WILCOX, J.

text:
    In re the Termination of Parental Rights to Chezron M., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. James P., Respondent-Appellant-Petitioner.
    Supreme Court

      No. 2004AP723.

      Oral argument March 2, 2005.

      Decided June 17, 2005.

    2005 WI 80
    (Also reported in 698 N.W.2d 95.)

      For the respondent-appellant-petitioner there were briefs by Carl W. Chesshir, Milwaukee, and oral argument by Carl W. Chesshir.

    For the petitioner-respondent the cause was argued by Thomas C. Binger, assistant district attorney, with whom on the brief was E. Michael McCann, district attorney.
    A guardian ad litem brief was filed by Shelia R. Hill-Roberts and Legal Aid Society of Milwaukee, Inc., Milwaukee, and there was oral argument by Shelia R. Hill-Roberts.

    An amicus curiae brief was filed by Scott A. Suss-man, Madison, on behalf of the Center for Family Policy and Practice.
   JON P WILCOX, J.

¶ 1. This is a review of a published court of appeals decision, State v. James P., 2004 WI App 124, 274 Wis. 2d 494, 684 N.W.2d 164, affirming an order of the Milwaukee County Circuit Court, Joseph R. Wall, Judge, that terminated James P's parental rights to Chezron M.

¶ 2. James P argues that grounds did not exist to terminate his parental rights to Chezron M. under Wis. Stat. § 48.415(l)(a)3. (200l-02)3 because he had not been adjudicated the biological father of Chezron M. prior to the alleged periods of abandonment and thus was not her "parent," as defined in Wis. Stat. § 48.02(13), when the abandonment occurred. We disagree and affirm.

I. FACTUAL BACKGROUND

¶ 3. The following facts were found by the circuit court and are undisputed on appeal. Chezron M. (Chezron) was horn to Judy M. on April 25, 1995. Judy M. was unmarried but was having relations with James E at the time she conceived. Judy M. told James E that the child could be his or that of another man. James E was present at the hospital when Chezron was born. His insurance paid the costs of Chezron's birth, as he had her listed on his medical insurance policy as his daughter.

¶ 4. "James E cared for Chezron and treated her as his biological daughter." He added her to his life insurance policy as his daughter. Chezron called James E " 'dad, and he considered Chezron 'family.'"

¶ 5. In March of 1998, Chezron was found to be in need of protection and services due to Judy M.'s parental failings. In all court records, James E was listed as the alleged father of Chezron. James E attended no less than three Children in Need of Erotective Service (CHIFS) hearings between 1998 and 2001 that were held for Chezron.

¶ 6. The last time James E saw Chezron was during an informal visit in 1999. On two occasions between 2000 and 2001, James E sent presents to Chezron via a case manager from the Milwaukee Child Welfare Bureau. During this period, James E did not visit Chezron or otherwise contact her. James E did not attempt to remove Chezron from foster care or hire an attorney to do so. He did not attempt to contact Chezron, the social workers, or her foster parents, and he failed to respond to inquiries made by Chezron's case manager. James E made no attempt to be legally acknowledged as Chezron's father.

II. PROCEDURAL POSTURE

¶ 7. On May 16, 2002, the State filed a petition to terminate the parental rights of James E to Chezron. The petition listed James E as the "alleged father" of Chezron. As grounds for the termination, the petition listed failure to assume parental responsibility under Wis. Stat. § 48.415(6). Sometime thereafter in early 2002, James E was adjudicated the father of Chezron as a result of DNA testing. The State subsequently amended the petition on June 13, 2002, to list James E as the "adjudicated father" of Chezron. On October 7, 2002, the State filed another amended petition, adding abandonment under § 48.415(l)(a)3. as a ground for termination of James E's parental rights. The State subsequently moved to dismiss the failure to assume parental responsibility ground against James E, and the court granted the motion.

¶ 8. The case was tried to the circuit court, and James E admitted that he had no contact with Chezron between April 25, 2000, and December 25, 2000, and between April 25, 2001, and December 25, 2001. One of James E's defenses was that he did not know Chezron was his child until he was adjudicated her father. The circuit court specifically found that James E was not credible and his assertion that he did not know he was Chezron's father was not believable.

¶ 9. At the close of the evidence, James E moved to dismiss the petition on the basis that the ground of abandonment in § 48.415(1)(a)3. does not apply to someone who is merely an "alleged father," that is, someone who may be the parent of a nonmarital child during the periods of alleged abandonment but has not officially been adjudicated as the child's father. The circuit court denied the motion, reasoning: "[A] man adjudicated as the biological father has always been the biological father and, therefore, that man has always been a 'parent' under § 48.02(13)." The court concluded that "James E was always the father of Chezron." The court also found that James E had failed to establish the affirmative defense of "good cause for failing to communicate with [Chezron]."

¶ 10. As such, the court found the State met its burden of proving the ground of abandonment under § 48.415(l)(a)3. The court therefore found James E unfit pursuant to Wis. Stat. § 48.424(4). At the disposi-tional hearing, the court found that it was in the best interest of Chezron that James E's parental rights be terminated pursuant to Wis. Stat. § 48.427(3). On December 9, 2003, the circuit court entered an order terminating James E's parental rights, which order James E subsequently appealed.

¶ 11. At the court of appeals, James E again argued that § 48.415(l)(a)3. does not apply to him because he was not a "parent," as defined under § 48.02(13), until he was adjudicated Chezron's biological father. The court of appeals noted that among the definitions of "parent" found in § 48.02(13), two were applicable: "a biological parent" and "a person . . . adjudicated to be the biological father." James P., 274 Wis. 2d 494, ¶¶ 4-5. The court of appeals rejected James E's argument, reasoning that under the first definition, the fact of biological parenthood did not depend on official state recognition. Id., ¶ 4. The court of appeals further reasoned that although the law can terminate the parental relationship, it does not"create biological parenthood." Id., ¶ 6.

¶ 12. The court of appeals specifically cautioned that it was not addressing "whether an adjudication subsequent to acts that comprise grounds for the termination of a person's parental rights subjects the adjudicated person to the termination of parental rights based on those acts[.]" Id., ¶ 5. Rather, the court of appeals held that the first definition of "parent" applied to James E because he "was always Chezron's biological father, even before he was formally adjudicated as such." Id. The court of appeals stated that James E "was in fact Chezron's biological parent when she was born and he has never denied that." Id., ¶ 6.

¶ 13. The court of appeals was not persuaded by James E's argument that the first definition applied only to children born to parents who were married because the first definition was not "in haec verba, limited to children of a solemnized marriage." Id. The court of appeals stated that James E's arguments were merely "an attempt to eschew legal responsibility for the periods during which he had no contact with Chezron[.]" Id., ¶ 6. Relying on this court's decision in Wisconsin Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, ¶¶ 19-24, 270 Wis. 2d 318, 677 N.W.2d 612, the court of appeals stated that the fact that individuals falling under the first definition of "parent" may also be included under the last definition of "parent" does not narrow the scope or application of the first definition. James P., 274 Wis. 2d 494, ¶ 6. Therefore, the court of appeals affirmed the circuit court order terminating James E's parental rights to Chezron.

III. ISSUE

¶ 14. The narrow question we address on appeal is whether an individual who is in fact the biological parent of a nonmarital child may have his parental rights to that child terminated based on conduct that occurred before he was officially-adjudicated the biological father based on DNA evidence. In other words, we must determine whether an individual who is in fact the biological parent of a nonmarital child meets the definition of "parent" under § 48.02(13) at a time when he has yet to be officially adjudicated as the biological father. We emphasize that we, like the court of appeals, do not address "whether an adjudication subsequent to acts that comprise grounds for the termination of a person's parental rights subjects the adjudicated person to the termination of parental rights based on those acts[.]" James P., 274 Wis. 2d 494, ¶ 5. That is, we do not decide whether an individual who is legally adjudicated to be the biological parent of a nonmarital child, but is not in fact the biological father, may have his parental rights terminated based on conduct that occurred prior to the adjudication.

¶ 15. We hold that an individual who is in fact the biological father of a nonmarital child satisfies the definition of "parent" in § 48.02(13), as he is a "biological parent," notwithstanding that he has not officially been adjudicated as the child's biological father. Because such an individual satisfies the definition of "parent," he may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child's biological father, assuming he has failed to establish a "good cause" affirmative defense to the ground of abandonment.

IV STANDARD OF REVIEW

¶ 16. This case concerns the meaning of "parent" under § 48.02(13). The interpretation of a statute and its application to a set of facts are issues of law reviewed de novo by this court. Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶ 9, 267 Wis. 2d 59, 671 N.W.2d 633. The rules governing statutory interpretation are well settled:

When interpreting statutes, our goal is to give effect to the language in the statute. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 43, 271 Wis. 2d 633, 681 N.W.2d 110. We begin by looking to the language of the statute because we "assume that the legislature's intent is expressed in the statutory language." Id., ¶ 44. Technical terms or legal terms of art appearing in the statute are given their accepted technical or legal definitions while nontechnical words and phrases are given their common, everyday meaning. Wis. Stat. § 990.01(1). Terms that are specifically defined in a statute are accorded the definition the legislature provided. Wisconsin Citizens Concerned for Cranes and Doves, 270 Wis. 2d 318, ¶ 6. In addition, we read the language of a specific statutory section in the context of the entire statute. Id. Thus, we interpret a statute in light of its textually manifest scope, context, and purpose. Kalal, 271 Wis. 2d 633, ¶ 48 & n.8.

Bosco v. LIRC, 2004 WI 77, ¶ 23, 272 Wis. 2d 586, 681 N.W.2d 157. Therefore, extrinsic sources, such as legislative history, are not consulted unless the statute is ambiguous. Kalal, 271 Wis. 2d 633, ¶ 46. A statute is ambiguous if it is susceptible to more than one reasonable understanding. Id., ¶ 47.

V. ANALYSIS

¶ 17. Section 48.415(l)(a)3. provides that grounds exist to terminate an individual's parental rights if "[t]he 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 longqr." (Emphasis added.) James E does not contest that he did not visit or otherwise communicate with Chezron during the alleged periods of abandonment. In addition, he does not contest the circuit court's ruling that he failed to establish "good cause" for failing to visit or communicate with Chezron during the periods in question. Rather, James E asserts that he was not the "parent" of Chezron during the periods of alleged abandonment.

¶ 18. Section 48.02(13) defines "parent" as follows:

"Parent" means either a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60, "parent" includes a person acknowledged under s. 767.62(1) or a substantially similar law of another state or adjudicated to be the biological father. "Parent" does not include any person whose parental rights have been terminated.

¶ 19. James E does not dispute that he is the biological father of Chezron. Thus, presumably, he would qualify as a "parent" under the first sentence of the definition as a "biological parent."

¶ 20. However, according to James E, the phrase "biological parent" in the first sentence is inapplicable to him because it applies only to children who are born of solemnized marriages. Relying on the legislative history of § 48.02(13), James E argues that the first sentence of § 48.02(13) applies exclusively to married individuals, whereas the second sentence is the exclusive mechanism by which an individual may qualify as a "parent" of a nonmarital child. As Chezron is a nonmarital child and James E never legally acknowledged that he was the father, the only means by which he can satisfy the definition of "parent" under the second sentence is as "a person ... adjudicated to be the biological father." Wis. Stat. § 48.02(13). James E contends that because he was not adjudicated the biological father of Chezron until after the periods of alleged abandonment occurred, he was not her "parent" during this time frame and thus, he had no parental rights to terminate.

¶ 21. In contrast, the State argues that the definition of "parent" in § 48.02(13) is clear and unambiguous and that therefore it is unnecessary to resort to legislative history. The State agrees with the court of appeals that James E clearly satisfies the definition of "parent" set forth in the first sentence of § 48.02(13), which, on its face, is not limited to married individuals. Further, the State argues that James E's interpretation of the statute would render it absurd and would discourage fathers of nonmarital children from coming forward and having courts recognize them as parents.

¶ 22. We agree with the State. We begin our analysis, as we must, by examining the text of § 48.02(13). Kalal, 271 Wis. 2d 633, ¶ 45. James E's argument is based on the premise that the first sentence in the definition of "parent" applies exclusively to children born of legal marriages, whereas an individual may qualify as a "parent" of a nonmarital child only under the second sentence in the definition. However, the text of the statute does not support this assertion.

¶ 23. The first sentence of § 48.02(13) provides: " 'Farent' means either a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40, or a parent by adoption." (Emphasis added.) On its face, the first sentence is not limited to children born of legal marriages.

¶ 24. The second sentence of § 48.02(13) provides: "If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60, 'parent' includes a person acknowledged under s. 767.62(1) or a substantially similar law of another state or adjudicated to be the biological father." (Emphasis added.) Clearly, this sentence applies only if the child in question is a nonmarital child. However, while this sentence is limited in its application to nonmarital children, it does not, on its face, state that it is the exclusive means by which an individual may qualify as the "parent" of a nonmarital child.

¶ 25. Furthermore, it is significant that the first sentence of the definition of "parent" utilizes the word "means," whereas the second sentence utilizes the word "includes." Kalal, 271 Wis. 2d 633, ¶ 46 ("[Statutory language is interpreted in the context in which it is used[.]"). When utilized in statutory definitions, "means" is a term indicating limitation or completeness, whereas "includes" is a term indicating partiality and expansiveness. See Stephen R. Miller, Legislative Reference Bureau, Wisconsin Bill Drafting Manual 2.01(l)(i)(2005-06).

¶ 26. Thus, "[generally, the word 'includes' is to be given an expansive meaning, indicating that which follows is but a part of the whole." Wisconsin Citizens Concerned for Cranes and Doves, 270 Wis. 2d 318, ¶ 17 n.11 (citing Milwaukee Gas & Light Co. v. Dept. of Taxation, 23 Wis. 2d 195, 203 & n.2, 127 N.W.2d 64 (1964)). While courts may sometimes read the word "includes" as a term of limitation or enumeration under the doctrine of expressio unius est exclusio alterius, there must be some textual evidence that the legislature intended this doctrine to apply. Id.

¶ 27. Here, the text of § 48.02(13) contains no indication that the legislature intended the word "includes" in the second sentence to be read as a term of limitation. Indeed, the text indicates the opposite. First and foremost, the word "includes" appears in the sentence immediately following the general definition of "parent," in which the word "means" is utilized. If the legislature had intended the second sentence of §48.02(13) to be one of limitation or exclusivity, it would have used the word "means," as it did in the first sentence.

¶ 28. Moreover, the fact that the first sentence of § 48.02(13) provides a general definition of "parent" that is followed by a sentence listing additional circumstances under which an individual qualifies as a "parent" indicates that the second sentence should not be read as one of limitation or exclusivity. Cf. Wisconsin Citizens Concerned for Cranes and Doves, 270 Wis. 2d 318, ¶ 17 n.11 ("[MJany of the terms contained in Wis. Stat. § 29.001 are not defined by a general definition, but rather are defined by the use of the word 'includes' followed by a list of certain species.").

¶ 29. Furthermore, James E's interpretation simply cannot be squared with the remaining language in § 48.02(13). For instance, if James E is correct that the second sentence lists the exclusive means by which an individual qualifies as a "parent" of a nonmarital child, then an individual who is not married and who adopts a child would not meet the definition of "parent." The first sentence of § 48.02(13), which, according to James E, applies only to married individuals, states that " '[pjarent' means ... a parent by adoption." In contrast, the second sentence of § 48.02(13) states: "If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60, 'parent' includes a person acknowledged under s. 767.62(1) or a substantially similar law of another state or adjudicated to be the biological father." (Emphasis added.) Notably, the second sentence, although referring to adopted children, does not list "a parent by adoption" after the word "includes." If "includes" is to be given a restrictive meaning, as James E suggests, then the second sentence specifically precludes an individual from becoming the "parent" of a nonmarital child through adoption.

¶ 30. While James E asserts that an individual may be the "parent" of a nonmarital child through adoption, the statutory language and his interpretation of the word "includes" cannot support such a conclusion. The plain language in the statute limits the applicability of those items following the word "includes" to circumstances where "the child is a nonmarital child who is not adopted." The same illogical result occurs under James E's interpretation for unmarried individuals who produce children and subsequently intermarry.

¶ 31. In contrast, reading the word "includes" in the second sentence as a term of expansion produces results consistent with all the statutory language and common sense. Under this reading, the first sentence of § 48.02(13) provides a general definition of "parent" that applies to married and unmarried individuals. The second sentence merely provides additional circumstances under which an individual qualifies as a "parent" of "a nonmarital child who is not adopted or whose parents do not subsequently intermarry." Wis. Stat. § 48.02(13).

¶ 32. This interpretation of § 48.02(13) recognizes that an individual who adopts a nonmarital child qualifies as a "parent by adoption" under the general definition of "parent" in the first sentence. Likewise, two unmarried individuals who produce a child and subsequently intermarry appropriately qualify as parents under the first definition as "biological parents." Furthermore, an unmarried individual, like James E, who fathers a nonmarital child, qualifies as a "parent" under the first sentence as a "biological parent."

¶ 33. However, James E argues that if we adopt this interpretation, part of the second sentence will be rendered superfluous. Specifically, he suggests that under our interpretation, the final statutory definition of "parent" — "a person ... adjudicated to be the biological father[]" — will always be subsumed in the first definition — "a biological parent." We disagree that the final definition of "parent" will always be subsumed within the first definition because the final definition covers an individual "adjudicated to be the biological father," and is thus broader than the first definition, which applies only to "a biological parent."

¶ 34. As discussed extensively during oral argument, an adjudication of biological fatherhood is a legal determination, and an individual may be "adjudicated to be the biological father" of a child by default. In contrast, as the court of appeals correctly recognized through its colorful, metaphysical discussion, the phrase "a biological parent" in the first sentence of § 48.02(13) refers to the actual biological parent of a child:

[ T]he fact of biological parenthood does not turn on whether it is recognized, found, or adjudicated, any more than the fact that a tree has fallen in the forest depends on someone's perception of the crashing sound, or, in another context, gravity's existence depended on Sir Isaac Newton's formulation of its principles.
. . . Although the law can terminate a parent-child relationship ... only a power much much higher than law, lawyers, judges, states or nations can, as the State points out, create biological parenthood.

James P., 274 Wis. 2d 494, ¶¶ 4, 6.

¶ 35. In other words, the phrase "adjudicated to be the biological father" in the second sentence of § 48.02(13) refers to someone who is legally determined to be a biological father, who may or may not be an actual biological parent — a de jure biological father. In contrast, the phrase "biological parent" in the first sentence refers to a person who actually is a biological parent — a de facto biological parent. While an individual who is "a biological parent" will always be capable of being "adjudicated to be the biological father[,]" an individual who is "adjudicated to be the biological father" is not necessarily "a biological parent."

¶ 36. As such, the second sentence of § 48.02(13) is not superfluous because although an individual may qualify as a "parent" under both the definition in the first sentence and the definition in the second sentence, the definition in the second sentence is broader than the first, as it applies to a factual scenario to which the first sentence does not — a biological father by default. As the court of appeals correctly recognized, the fact that a given item may fall within a narrow definition and also qualify under a broader definition does not narrow the scope of the broader definition. Id., ¶ 6 (citing Wisconsin Citizens Concerned for Cranes and Doves, 270 Wis. 2d 318, ¶¶ 19-24).

¶ 37. Therefore, we conclude that the only reasonable reading of the text of § 48.02(13) is that the first sentence provides a general definition of "parent" that is applicable to both married and unmarried individuals. The second sentence supplies additional means by which an individual may qualify as the "parent" of "a nonmarital child who is not adopted or whose parents do not subsequently intermarry." The fact that the second sentence supplies additional means by which an individual may qualify as the "parent" of a nonmarital child in certain circumstances in no way means that an individual may not also qualify as the "parent" of a nonmarital child under the general definition provided in the first sentence. Thus, the plain language of § 48.02(13) does not support James E's contention that the first sentence of the statute applies exclusively to married individuals and that individuals may qualify as parents of nonmarital children only under the circumstances set forth in the second sentence.

¶ 38. As we conclude there is but one reasonable reading of the plain text of the statute, there is no need to consult the legislative history of § 48.02(13). Kalal, 271 Wis. 2d 633, ¶ 46. However, we do note that our interpretation is consistent with the legislative purposes of the Children's Code, as. explicitly set forth in the text of the Code. See id., ¶ 49 (noting that the plain meaning of a statute should comport with any textually manifest statutory purpose).

¶ 39. Wisconsin Stat. § 48.01(1) provides, in pertinent part:

In construing this chapter, the best interests of the child or unborn child shall always be of paramount consideration. This chapter shall be liberally construed to effectuate the following express legislative purposes:
(a) While recognizing that the paramount goal of this chapter is to protect children and unborn children, to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents and the expectant mothers of unborn children, whenever appropriate, in fulfilling their responsibilities as parents or expectant mothers... . The courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family.
(gr) To allow for the termination of parental rights at the earliest possible time after rehabilitation and reunification efforts are discontinued in accordance with this chapter and termination of parental rights is in the best interest of the child.

¶ 40. Under James E's interpretation of § 48.02(13), an individual who fathers a nonmarital child is not legally the "parent" of that child (and thus cannot have his parental rights terminated) unless and until he either acknowledges that he is the father of the child or is adjudicated to be the father of the child. This interpretation, in contrast to the express legislative purpose behind the Children's Code, encourages individuals like James E to wait until the last possible moment to acknowledge their fatherhood or have a court adjudicate their parenthood, in order to avoid having their rights terminated. Thus, James E's interpretation provides an incentive for putative fathers to avoid taking legal responsibility for their children and does nothing to preserve family unity and stability.

¶ 41. In addition, James E's interpretation of § 48.02(13) allows an individual who has fathered a nonmarital child to establish a relationship with that child, disappear for unreasonable periods of time, and then seek to have his parental rights validated when it is most convenient for him. This type of ephemeral parenting is precisely the type of "instability and impermanence in family relationships" that the Code seeks to avoid. Wis. Stat. § 48.01(l)(a).

¶ 42. In contrast, our interpretation — which recognizes that an individual who is, in fact, the biological father of a child has always been the child's biological parent — encourages putative fathers to acknowledge their fatherhood or have a court determine their parenthood as soon as possible, encourages such individuals to fulfill their responsibilities as parents, and holds such individuals accountable when they fail to do so. If someone who is the actual biological father of a non-marital child establishes a substantial relationship with that child and thereafter refuses to fulfill his legal duties and responsibilities by abandoning the child, our interpretation protects the child by allowing the State to terminate the father's rights "at the earliest possible time." Wis. Stat. § 48.01(l)(gr).

¶ 43. James E's interpretation, on the other hand, would not only lead to results contrary to the stated purposes of the Children's Code, his interpretation would lead to results that are patently absurd and that endanger child safety. Under James P.'s interpretation, an individual who is, in fact, the biological father of a nonmarital child cannot have his parental rights terminated unless and until he is legally adjudicated the child's biological father or acknowledges his fatherhood. An individual who never formally acknowledges his fatherhood and does not seek a legal determination of his parenthood until long after his child has been removed from his home is therefore free to engage in a variety of reprehensible conduct while living with the child and avoid being subject to a termination of his rights based on such conduct.

¶ 44. For instance, someone like James E could murder the mother of his child and yet avoid having his parental rights terminated under Wis. Stat. § 48.415(8) because he was not the "parent" of the child (as he had yet to be adjudicated the biological father) when the murder took place. An individual could abuse the child and avoid having his parental rights terminated under Wis. Stat. § 48.415(5) because he had yet to be adjudicated the biological father at the time of abuse. In addition, as in the present case, an individual could begin to raise and care for his child and then abandon his child yet avoid having his rights terminated under Wis. Stat. § 48.415(1) because he was not adjudicated the biological father when the periods of abandonment occurred.

¶ 45. Therefore, we can find no support in the statute for James E's assertion that the parental rights of an individual who fathers a child outside a marriage attach and can be terminated only after the State officially recognizes him as the father. Here, it is uncontested that James E is the biological father of Chezron. As such, he meets the definition of "parent" in the first sentence of § 48.02(13) as he is, and always was, Chezron's biological parent.

¶ 46. James E's final argument is that our interpretation raises due process concerns. Although he is not specific, he alludes to the fact that an individual who is the biological parent of a nonmarital child may not be aware of this fact until he is adjudicated as such, and therefore may not be aware of his legal obligations towards the child. However, this argument is a red herring in this case because § 48.415(l)(c) specifically provides an affirmative defense to the abandonment ground if an individual can establish "good cause" why he did not visit or have contact with the child.

¶ 47. Here, the circuit court specifically found, and James E has not challenged on appeal, that he failed to establish a good cause defense. The circuit court explicitly rejected James E's contention that he was unaware that Chezron was his child. The circuit court set forth the following factual findings:

James E was at the hospital when Chezron was born. His insurance paid the costs of her birth and he listed her on his medical insurance policy as his daughter. He also added Chezron to his life insurance policy as his daughter. James E cared for Chezron and treated her as his biological daughter. Chezron called him "dad," and he considered Chezron "family."

Additionally, the circuit court highlighted that James E's testimony had been impeached on a number of issues and that he was not a credible witness. It noted that the testimony at trial contradicted James P.'s assertion that Chezron's mother told him the child was not his. As he does not contest any of these findings on appeal, James E is in no position to now suggest that he was unaware that Chezron was his child.

¶ 48. Because we have concluded that James E meets the definition of "parent" in § 48.02(13), as he is and always was Chezron's "biological parent," and the circuit court concluded that he failed to establish a good cause defense to abandonment under 48.415(l)(c), we affirm the decision of the court of appeals, which affirmed the circuit court order terminating James E's parental rights to Chezron. We emphasize that we do not hold, as did the circuit court, that "a man adjudicated as the biological father has always been the biological father and, therefore, that man has always been a 'parent' under § 48.02(13)." We merely hold that James E satisfies the definition of "parent" in the first sentence of § 48.02(13) because he is and always was, in fact, Chezron's "biological parent."

VI. CONCLUSION.

¶ 49. We hold that an individual who is in fact the biological father of a nonmarital child satisfies the definition of "parent" in § 48.02(13), as he is a "biological parent," notwithstanding that he has not officially been adjudicated as the child's biological father. Because such an individual satisfies the definition of "parent," he may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child's biological father, assuming he has failed to establish a "good cause" affirmative defense to the ground of abandonment.

By the Court. — The decision of the court of appeals is affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       There was evidence presented at trial that Judy M. never suggested to third parties that anyone other than James E was the father of Chezron.

       Despite his involvement in these legal proceedings concerning Chezron, James E did nothing to officially acknowledge his fatherhood because in his view, "the children belonged with the mother."

       James E stated at trial that the only reason he became adjudicated the father of Chezron was so that her mother, who voluntarily consented to have her parental rights terminated, could still see Chezron.

       The statutory ground for abandonment contains a "good cause" affirmative defense that may be established upon proof that the parent had good cause for failing to visit the child, or had good cause for failing to communicate with the child and, if the child is an infant, that the parent communicated about the child with the person having custody of the child or had good cause for failing to communicate about the child with the person having custody of the child. Wis. Stat. § 48.415(l)(c).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John R. Ammerman, Robert L. Klein and Brian G. Sumption, Plaintiffs, ROI Investments, Plaintiff-Appellant-Petitioner, v. Paddy A. Hauden and Susan A. Scholl, Defendants-Respondents-Cross Petitioners.
    Supreme Court

      No. 2003AP2249.

      Oral argument April 26, 2005.

      Decided June 17, 2005.

    2005 WI 79
    (Also reported in 698 N.W.2d 609.)

      For the plaintiff-appellant-petitioner there were briefs by George B. Strother, IV, Kristin J. Sederholm and Krekeler Strother, S.C., Madison, and oral argument by George B. Strother.

    For the defendants-respondents-cross petitioners there were briefs by Andrew W. Erlandson and Hurley, Burish & Milliken, S.C., Madison, and oral argument by Andrew W. Erlandson.

   PER CURIAM.

¶ 1. We dismiss the petition and cross-petition for review as improvidently granted.

¶ 2. Plaintiff, ROI Investments, petitioned, and defendants, Paddy Hauden and Susan Scholl, cross-petitioned this court for review of an unpublished decision of the court of appeals which affirmed in part and reversed in part the circuit court's judgment of $303,523.15 on counterclaims related to a failed real estate transaction.

¶ 3. The following issues were presented by the petition and cross-petition:

1. Did the circuit court properly award default judgment against the plaintiff, a partnership, because the partnership did not appear at trial with counsel even though two of the three partners appeared individually?
2. Did the circuit court properly award defendants damages based on loss-of-bargain?
3. Were defendants entitled to pre-judgment interest?

¶ 4. We accepted review primarily to address the issue of what constitutes an appearance in partnership law. After examination of the record and the briefs of the parties, and after hearing oral argument, we conclude that the record does not adequately present the principal question for which we took the case. Rather, the record demonstrates that the partners present at trial did not object to the numerous statements made by the circuit court indicating that there was no appearance on behalf of the partnership. Therefore, a default judgment was properly entered.

¶ 5. Accordingly, we determine that review in this case was improvidently granted, and we dismiss the petition and cross-petition for review.

By the Court. — Review of the decision of the court of appeals is dismissed.

¶ 6.

PATIENCE DRAKE ROGGENSACK, J., withdrew from participation.


author: CURLEY, J.

text:
    Thor C. Mikula and West Bend Mutual Insurance Company, Plaintiffs, v. Miller Brewing Company, Defendant-Third-Party Plaintiff-Appellant, Acuity, A Mutual Insurance Company, Defendant-Respondent, v. J.F. Cook, Inc., Third-Party Defendant-Respondent, Unitrin Preferred Insurance Company, Third-Party Defendant, Milwaukee Mutual Insurance Company, Third-Party Defendant-Respondent.
    Court of Appeals

      No. 2004AP498.

      Submitted on briefs January 4, 2005.

      Decided April 12, 2005.

    2005 WI App 92
    (Also reported in 701 N.W.2d 613.)

      On behalf of the defendant-third-party plaintiff-appellant, the cause was submitted on the briefs of Jeffrey O. Davis and Patrick S. Nolan of Quarles & Brady, LLP, of Milwaukee.
    On behalf of the defendant-respondent Acuity, the cause was submitted on the brief of Arthur P. Simpson of Simpson & Deardorff, S.C., of Milwaukee.
    On behalf of the respondents J.F. Cook Co., Inc. and Milwaukee Mutual Insurance Company, the cause was submitted on the brief of Susan R. Tyndall of CMT Legal Group, Ltd., of Waukesha.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition for review denied 9-8-05.

   CURLEY, J.

¶ 1. Miller Brewing Company appeals from the trial court's grant of summary judgment, holding that Miller has no coverage under the insurance policy issued by Acuity, a mutual insurance company, to Selzer-Ornst Company, a general contractor hired by Miller, to which Miller was added as an "additional insured." Miller also appeals from the trial court's grant of declaratory judgment holding that neither J.F. Cook & Company, Inc., a subcontractor hired by Selzer-Ornst, nor its insurer, Milwaukee Mutual Insurance Company, is obligated to defend or indemnify Miller, also added as an "additional insured" to the Milwaukee Mutual policy, for the claims alleged in Thor C. Mikula's complaint against Miller, or any judgment resulting therefrom.

. ¶ 2. Miller contends that: (1) Acuity's additional insured endorsement covers Miller for liability arising out of Selzer-Ornst's ongoing operations; (2) the Mikula complaint triggered Milwaukee Mutual's defense obligations to Miller under its additional insured endorsement in two different ways; and (3) J.F. Cook is contractually obligated to defend and indemnify Miller for the Mikula claim. Because we conclude that Miller is covered as an additional insured under both policies, and J.F. Cook has a duty to indemnify Miller for the Mikula claim, we reverse.

I. Background.

¶ 3. Miller contracted with Selzer-Ornst, a general contractor, for the installation of new windows and the performance of other improvements at Miller's Milwaukee brewery facility. As a condition of the construction contract, Selzer-Ornst was to have Miller added as an "additional insured" on its general liability insurance policy, which was issued by Acuity. It did so, and provided Miller with a Certificate of Insurance listing Miller as an additional insured on the policy. The policy provides, in .relevant part, as follows:

Who Is an Insured is amended to include as an insured any person or organization for whom you [Selzer-Ornst] are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization [Miller] is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured. A person's or organization's status as an insured under this endorsement ends when your operations for that insured are completed.

¶ 4. Selzer-Ornst subcontracted with J.F. Cook to replace the windows at the brewery. They similarly added Miller, pursuant to a contract, as an additional insured on their policy. J.F. Cook's Milwaukee Mutual policy provides, in relevant part, as follows:

Each of the following is also an insured:
a. Any person or organization you [J.F. Cook] are required by a written contract, agreement, or permit to name as an insured, but only with respect to liability arising out of:
1. "your ongoing operations" performed for that insured at the location designated in the contract, agreement, or permit; or
2. premises owned or used by you.

J.F. Cook's contract with Selzer-Ornst also included the following indemnity clause:

The Sub-Contractor [J.F. Cook] shall indemnify and save harmless the Owner [Miller], the Architect, the Contractor [Selzer-Ornst] and their respective agents from any and all liability, payments and expenses of any nature for injury or death to any person, or persons, or for damage to any property, caused or alleged-t-o-have been caused by the Sub-Contractor, or incidental to the execution of work under this contract by the SubContractor, his agents or employees; and the SubContractor shall maintain from the beginning until the completion of his work policies of insurance satisfactory to the Contractor, covering the liabilities above mentioned, such as employers' liability insurance, public insurance, contingent insurance, etc.

(Strikethrough in original.)

¶ 5. On December 17, 2002, Mikula, an employee of J.F. Cook, was injured "while carrying out his job duties to replace industrial windows at [the] Miller [brewery,]" when the doors of a cargo elevator slammed together and crushed his left hand. On May 6, 2003, Mikula filed a complaint against Miller and ABC Insur-anee Companies alleging that Miller was negligent in failing to maintain the condition of its premises, to warn frequenters that a hazardous condition existed, and to take precautions or make provisions to protect against the hazard. The complaint also alleged that Miller violated Wisconsin's safe place statute, Wis. Stat. § 101.11, in that Miller failed to provide for the safety of the premises; the "premises were not as safe as its nature reasonably permitted" because of a condition for which Miller was responsible; and Miller had complete control over the premises, with actual or constructive knowledge of their "unsafe nature." Mikula alleged that this negligence and carelessness in maintaining the property were the direct and proximate causes of his injury.

¶ 6. Miller tendered its defense to Acuity, seeking coverage as an additional insured under Selzer-Ornst's general liability policy. Acuity agreed to defend Miller, and also retained separate counsel to challenge coverage. Acuity moved for summary judgment, "seeking a ruling that it does not provide free liability insurance coverage to Miller ... when an employee of a subcontractor[,] J.F. Cook[,] is injured by a negligent condition left by an additional insured (Miller) absent any negligence of the general contractor (the insured, Selzer-Ornst)." Acuity also filed a counterclaim against Mikula and a cross claim against Miller "on the basis that Miller is not an additional insured on Selzer-Ornst's CGL policy." (Emphasis in original.) Thus, Acuity sought the "dismissal of all claims against it on the grounds that it does not provide coverage for Miller."

¶ 7. Before Acuity's motion for summary judgment was decided, Miller filed a third party complaint against Milwaukee Mutual and J.E Cook. First, Miller claimed that, based on the indemnity language in the subcontract between J.F. Cook and Selzer-Ornst, J.F. Cook has a contractual obligation to indemnify and hold Miller harmless for Mikula's injuries arising out of his work on Miller's premises. Second, Miller claimed that, pursuant to the insurance policy issued to J.F. Cook, Milwaukee Mutual must defend and indemnify Miller as an additional insured for the claims asserted by Mikula.

¶ 8. Shortly thereafter, the trial court granted Acuity's motion for summary judgment, concluding that the Acuity policy provides no coverage for Miller, and dismissing all claims against Acuity with prejudice. The trial court reasoned:

The injuries to the Plaintiff are not attributable to any negligence arising out of Selzer-Ornst's replacement of windows or other work at the Miller Brewing facility. The Plaintiff was injured by an elevator door at Miller's facility. Under this circumstance, Miller is not entitled to coverage under the additional. .. insured clause of the CGL policy issued to Selzer-Ornst. Miller has argued that it expected it would be protected from personal injury claims that arose out of the work it contracted for with Selzer-Ornst. However, the injury to the Plaintiff did not arise out of Selzer-Ornst's on-going operations performed for Miller. It did not arise out of something Selzer-Ornst did or did not do or one of its subcontractors did or did not do. Rather, something happened ... with the elevator door at the Miller Brewing facility. For some reason the elevator door allegedly was not properly functioning. Selzer-Ornst had no control or responsibility for the maintenance of the elevator door. It is not reasonable to expect coverage when the injury was because of a malfunctioning elevator door on the property of the Miller facility, the additional insured. The complaint does not allege that Selzer-Ornst somehow created the hazard. The Court cannot find that there was a reasonable expectation of coverage under the facts presented in this case.

¶ 9. A couple of months later, J.F. Cook and Milwaukee Mutual filed a motion for declaratory judgment. In the motion, they argued that Miller is not an additional insured with regard to Mikula's allegations: "Mikula's injuries were not caused by his work or J.F. Cook's operations at the Miller Brewing site, but rather by a condition of the Miller Brewing premises. The fact that Mikula's work happened to be sited at Miller Park [sic] was not causally connected to the injury, or to Miller's maintenance of its premises[.]" Thus, they sought a declaration from the court indicating that Milwaukee Mutual has no obligation to defend or to indemnity Miller.

¶ 10. They also argued that J.F. Cook's indemnity agreement does not require it to defend Miller. They insisted that the indemnity agreement requires J.F. Cook to indemnify Miller and Selzer-Ornst for liability arising out of J.F. Cook's "actual fault" and for matters " 'incidental to the execution of...' its work at Miller Brewing[,]" and that neither applies here. They also asserted that since the indemnity agreement "does not specifically or unequivocally express any intent that J.F. Cook indemnify Miller for its own negligence [,]" Miller's claim for indemnity should be denied for that reason alone.

¶ 11. The trial court granted J.F. Cook and Milwaukee Mutual's motion for declaratory judgment, concluding:

It is not alleged that plaintiffs injuries resulted from any negligence by J.F. Cook. Plaintiffs injuries are not attributable to any negligence arising out of J.F. Cook's ongoing operations performed for Miller. The Plaintiff was injured by an elevator door at Miller's facility.
This Court has reviewed the cases cited by each party in support of its interpretation of this policy clause under this fact situation, and I am persuaded by the cases cited by J.F. Cook that hold that there must be some causal connection to the injury before there will be coverage under the provision. Such an interpretation would appear to focus on the risk for which coverage had been afforded... .
Within the four corners of the complaint, liability is alleged to have arisen solely by Miller's negligence, not J.F. Cook's. The injuries to plaintiff occurred while he was performing duties for J.F. Cook, but did not arise out of the operation of J.F. Cook.
Regarding the indemnification issue, I understand that the subcontract contained several provision[s] regarding Miller's defense and indemnityL] . . .
... It is clear from case law that J[.]F. Cook could contract to indemnify Miller for its own negligence. However, in order to do so, there must be [a] clear and unequivocal statement to that effect in the agreement. ... In the present contract there is no such clear and unequivocal statement of intent. J.F. Cook has no duty to indemnify Miller for injury alleged from its own negligence.

Miller now appeals.

II. Analysis.

¶ 12. In an appeal from the entry of summary judgment, this court reviews the record de novo, applying the same standard and following the same methodology required of the trial court under Wis. Stat. 802.08. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well known, and need not be repeated here. See § 802.08; Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).

¶ 13. "A decision to grant or deny declaratory relief falls within the discretion of the circuit court." Milwaukee Dist. Council 48 v. Milwaukee County, 2001 WI 65, 36, 244 Wis. 2d 333, 627 N.W.2d 866. "However, when the exercise of such discretion turns upon a question of law, we review the question de novo, benefiting from the trial courts analysis." Gulmire v. St. Paul Fire Marine Ins. Co., 2004 WI App 18, 10, 269 Wis. 2d 501, 674 N.W.2d 629 (emphasis added).

¶ 14. Indeed, the construction or interpretation of an insurance policy presents a question of law to which we apply de novo review. Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 636, 586 N.W.2d 863 (1998). The same rules of construction that govern general contracts are applied to the language in insurance policies. "Judicial interpretation of a contract, including an insurance policy, seeks to determine and give effect to the intent of the contracting parties." American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, 23, 268 Wis. 2d 16, 673 N.W.2d 65. As such, insurance policies "are construed as they would be understood by a reasonable person in the position of the insured." Id.

¶ 15. "The words of an insurance policy are to be given their common and ordinary meaning." Danbeck v. American Family Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150. When the language of the policy is plain and unambiguous, it is enforced as written, without resorting to rules of construction or principles in case law. Hull, 222 Wis. 2d at 637. "Contract language is considered ambiguous if it is susceptible to more than one reasonable interpretation[, and i]f the language is ambiguous, it is construed in favor of coverage." Danbeck, 245 Wis. 2d 186, ¶ 10 (citation omitted).

A. Miller is covered by the additional insured endorsement of the Acuity policy.

¶ 16. Miller contends that the additional insured endorsement extends liability coverage to Miller without regard to "fault." It argues that the phrase "arising out of' is generally considered to be "broad, general and comprehensive," and requires only "some causal relationship" between the injury and the risk for which coverage is provided. "Ongoing operations," on the other hand, has not been defined by Wisconsin case law, but Miller argues that its common dictionary definition is appropriate — "ongoing" means "being actually in process" or "continuing," and "operations" refer to "the act, process, or method of operating" or "a process of actions that is part of a series in some work." (Citations in brief omitted.) Thus, Miller contends that the question becomes "whether Miller's liability for Mikula's claim arises out of Selzer-Ornst's ongoing operations."

¶ 17. As such, Miller insists that" [f] or purposes of Acuity's endorsement language, Mikula's injury 'grows out of and 'flows from' the window replacement project Selzer-Ornst did for Miller, during which it hired J.E Cook." J.F. Cook's work, and specifically Mikula's activities, Miller argues, was integral to Selzer-Ornst's work for Miller. Therefore, Miller contends that the additional insured endorsement covers Mikula's claim against Miller.

¶ 18. Miller goes on to argue that, at a minimum, the policy is reasonably susceptible to Miller's interpretation, and even if Acuity presents an equally plausible interpretation, the policy would be ambiguous and should be construed in favor of coverage. Furthermore, as there is no Wisconsin law on point, Miller contends that the overwhelming majority of courts from other jurisdictions have found coverage under additional insured provisions without regard to fault.

¶ 19. Acuity argues that the legal issue is: "absent (a) any negligence or (b) even a presence by Selzer-Ornst at the area of the accident, whether 'liability arising our of your [Selzer-Ornst's] ongoing operations performed for that [additional] insured' exists when an employee (Mikula) of a subcontractor (J.F. Cook) is injured by a negligent condition left by Miller." Acuity contends that it does not. It argues that "Selzer-Ornst's .. . 'ongoing operations' were not being performed when J.F. Cook's... employee was walking through Miller's facility[,]" and absent any negligence on Selzer-Ornst's behalf, the additional insured endorsement does not apply.

¶ 20. Acuity argues that several cases from other jurisdictions have concluded that the purpose of an additional insured endorsement is to protect the additional insured from being liable for the negligence of the named insured. It essentially asserts that the "connection" between the injury and Selzer-Ornst's "ongoing operations" is too tenuous, that adopting "but for" causation is unreasonable, and that no reasonable person would expect coverage under these circumstances. Moreover, Acuity contends that "Miller should not be allowed to escape responsibility for a condition Miller solely created and controlled. Miller should not be allowed to pass off its responsibility to innocent contractors who have no ability to control every negligent condition Miller fails to maintain on its premises." Acuity insists that it is not objectively reasonable to expect the policy to provide coverage for "anything and everything" that happened on Miller's premises. We disagree with Acuity's underlying premise. The question here is whether Miller is covered as an additional insured under Selzer-Ornst's policy for claims resulting from a J.F. Cook employee's injury that occurred while the employee was performing the work J.F. Cook was hired by Selzer-Ornst to do in furtherance of its contract with Miller. We conclude that it is.

¶ 21. The phrase "arising out of' has been construed broadly — "commonly understood to mean originating from, growing out of, or flowing from, and require [s] only that there be some causal relationship between the injury and the risk for which coverage is provided[,]" Lawver v. Boling, 71 Wis. 2d 408, 415, 238 N.W.2d 514 (1976) (footnote omitted) — but "ongoing operations" is not defined by the policy and has not been defined by Wisconsin case law. As words in a policy should be given their common, everyday meaning, Paape v. Northern Assurance Co. of America, 142 Wis. 2d 45, 51, 416 N.W.2d 665 (Ct. App. 1987), "[r]esort to a recognized dictionary may be had in order to discern the plain meaningt,]" Holsum Foods Division of Harvest States Cooperatives v. Home Insurance Co., 162 Wis. 2d 563, 569, 469 N.W.2d 918 (Ct. App. 1991). "Ongoing operations," then, can be understood to mean the "doing or performing of a practical work or of something involving practical application of principles or processes ... as a part of a series of actions," Webster's Third New World Dictionary 1581 (1993), "that is actually in process," id. at 1576, or that is "making progress," id. In other words, Selzer-Ornst's "ongoing operations" could reasonably be interpreted to refer to the ongoing performance of the work that Selzer-Ornst undertook to complete for Miller, pursuant to their contract — that is, the ongoing process of work performed for the additional insured. However, it is the interpretation of the entire relevant provision with which we are concerned.

¶ 22. With these definitions in mind, a common sense reading of the relevant language in the additional insured endorsement — "[s]uch person or organization [Miller] is an additional insured only with respect to liability arising out of your [Selzer-Ornst's] ongoing operations performed for that insured" — indicates that Miller is an additional insured with regard to Mikula's claims. That is, Selzer-Ornst hired J.F. Cook to perform certain tasks as part of the ongoing operations Selzer-Ornst was performing for Miller. It was alleged in the complaint and, in fact, it was stipulated, that Mikula, a J.F. Cook employee, was in the course of his work when injured. Thus, Miller's liability "arose out" of Selzer-Ornst's ongoing operations. Nothing in the language of the policy indicates that Miller's coverage as an additional insured with respect to "liability arising out of [Selzer-Ornst's] ongoing operations" is limited solely to the liability Miller might be exposed to as a result of Selzer-Ornst's negligence. The language is very broad.

¶ 23. Acuity argues that the connection between Mikula's injuries and Selzer-Ornst's ongoing operations is too tenuous, citing Pro Con Construction, Inc. v. Acadia Insurance Co., 794 A.2d 108 (N.H. 2002). In that case, Oracle Corporation hired Pro Con to manage the construction of a facility. Pro Con hired several subcontractors, including Decorative Concepts (DC), for the project. DC carried a general liability policy that included an additional insured endorsement with language identical to that in dispute here. A DC employee fell on an icy sidewalk while walking from his work area to a coffee truck, and brought suit against Pro Con. Pro Con sought coverage as an additional insured under DC's policy. The Supreme Court of New Hampshire rejected Pro Con's argument that "the policy language can be reasonably interpreted to include all claims that would not have arisen 'but for' the employee's presence on the general contractor's premisest,]" id. at 473, concluding that that interpretation was inconsistent with its longstanding interpretation of the phrase "arising out of," which requires more than a tenuous causal connection. Id. The court concluded that the injuries did not occur while the employee was engaged in any task related to DC's ongoing operations, and as such, the requisite causal connection did not exist. Id. Here, however, Mikula was injured while in the course of his work — he was allegedly using the cargo elevator to haul materials — for J.F. Cook, which was, as discussed above, part of Selzer-Ornst's ongoing operations. The cases are distinguishable.

¶ 24. We have also reviewed the other cases cited by Acuity from foreign jurisdictions concluding that the purpose of an additional insured endorsement is to protect the additional insured from the negligence of the named insured, not its own. See, e.g., Davis v. LTV Steel Co., 716 N.E.2d 766, 769 (Ohio Ct. App. 1998) (stating that "[t]he phrase 'arising out of your operations' in the endorsement was intended to protect the [additional insured] from any liability for the negligence of [the named insured's] employees who would be performing the industrial cleaning at the [additional insured's] plant. In other words, the purpose of the additional-insured endorsement was to protect the additional insured . . . from being vicariously liable for the tortious acts of the named insured ....") (citation omitted); G.E. Tignall & Co. v. Reliance Nat'l Ins. Co., 102 F. Supp. 2d 300, 306 (D. Md. 2000) (determining that the "policy limiting additional insured coverage to liability arising out of the named insured's work does not cover [the additional insured] for its own negligent acts").

¶ 25. However, it appears that the majority of cases conclude otherwise. While the language found in all of these policies may not be verbatim — they may use the words "your work" instead of "your ongoing operations," for example — those differences are fairly immaterial to the overall question at hand. On the point of contention, whether coverage is intended and should be provided when there is no negligence alleged on behalf of the named insured, the cases, reach the same conclusion — there need not be negligence alleged against the named insured for the additional insured to be covered.

¶ 26. In Marathon Ashland Pipe Line LLC v. Maryland Casualty Co., 243 F.3d 1232, 1237 (10th Cir. 2001), for example, the policy at issue contained language identical to that in question here — "liability arising out of your ongoing operations performed for that insured." The United States Court of Appeals for the Tenth Circuit held that the additional insured endorsement provided coverage for the additional insured's liability arising out of its own negligence. Id. at 1240 (citing McIntosh v. Scottsdale Ins. Co., 992 F.2d 251 (10th Cir. 1993)). It also noted that "[t]his appears to be the majority rule." Id.; see also Acceptance Ins. Co. v. Syufy Enters., 81 Cal. Rptr. 2d 557, 561-62 (Cal. Ct. App. 1999); see, e.g., Mid-Continent Cas. Co. v. Swift Energy Co., 206 F.3d 487, 499 (5th Cir. 2000) (rejecting insurance company's argument that identical policy language limited endorsement's coverage to liability resulting from named insured's negligence and excludes liability arising out of the independent negligence of the additional insured); McCarthy Bros. Co. v. Continental Lloyds Ins. Co., 7 S.W.3d 725, 730-31 (Tex. App. 1999) (interpreting similar language — "liability arising out of... '[y]our work' for that additional insured by or for you" — and rejecting insurance company's argument that "the liability must stem directly from [named insured's] negligence and cannot extend to negligence caused solely by [additional insured]"); Syufy Enters., 81 Cal. Rptr. 2d at 561 (interpreting similar language —"liability arising out of 'your work' for that insured" —concluding "[t]he fact that the defect [that caused the injury] was attributable to [the additional insured's] negligence is irrelevant, since the policy language does not purport to allocate coverage according to fault").

¶ 27. If the Acuity policy intended to exclude coverage for liability arising from the additional insured's own negligence, it should and could have spelled out as much. See Swift Energy, 206 F.3d at 499 ("Mid-Continent could have expressly stated in the Policy that liability not resulting from [the named insured's] sole negligence was not covered by the additional insured endorsement. It did not do so."); Syufy Enters., 81 Cal. Rptr. 2d at 562 ("Insurance companies are free to, and commonly have, issued additional insured endorsements that specifically limit coverage to situations in which the additional insured is faced with vicarious liability for negligent conduct by the named insured."). Other policies have. See, e.g., Baltimore Gas & Elec. Co. v. Commercial Union Ins. Co., 688 A.2d 496, 504-05 (Md. Ct. Spec. App. 1997).

¶ 28. Moreover, we observe, without deciding, that should the endorsement cover only the additional insured's vicarious liability for the tortious acts of the named insured, one could argue that that coverage would be essentially illusory. That is, should the additional insured be held vicariously liable, it would presumably have an action for indemnity against the tortfeasor regardless of whether it was "covered" as an additional insured, thus rendering the additional insurance coverage essentially illusory. See, e.g., Marathon Ashland Pipe Line, 243 F.3d at 1240 n.5 (noting that the court was rejecting the "argument that the intent of an additional insured endorsement is to 'provide protection where the named insured, performing a job for the additional insured, blunders'"). The court went on to explain:

Where the additional insured is held no more than vicariously liable for the acts of the named insured, the additional insured would have an action for indemnity against the primary wrongdoer. ’Thus, an endorsement that provides coverage only for the additional insured's vicarious liability may be illusory and provide no coverage at all.' In this light, it is obvious that additional insureds expect more from an endorsement clause than mere protection from vicarious liability.

Id. (citation omitted).

¶ 29. Thus, regardless of how other jurisdictions have interpreted policy language identical or similar to that of Acuity's policy, though the majority of the cases tend to support our analysis, the essential inquiry boils down to what the reasonable entity in the position of the insured understands the language to mean. The reasonable interpretation of this broad language indicates that the additional insured is covered for liability flowing from the named insured's ongoing process of work performed for the additional insured. Here, it would be reasonable for the additional insured to expect coverage for Mikula's injury arising out of Selzer-Ornst's ongoing operations for Miller Brewing pursuant to its contract.

B. Miller is covered by the additional insured endorsement of the Milwaukee Mutual policy.

¶ 30. The Milwaukee Mutual policy, to which Miller was added as an additional insured, utilizes almost identical language as that of the Acuity policy: "liability arising out of. . . 'your [J.F. Cook's] ongoing operations' performed for that insured [Miller] at the location designated in the contract, agreement, or per-mite.]" We are satisfied that the interpretation of this language leads to the same result as the Acuity policy language. J.F. Cook, Mikula's employer, was a subcontractor of Selzer-Ornst performing work for Miller at the Miller Brewery facility. Mikula was injured in the course of his work for J.F. Cook. Miller's liability, therefore, arose of out of J.F. Cook's ongoing operations.

¶ 31. Milwaukee Mutual and J.F. Cook similarly argue, however, that there is no causal relationship between J.F. Cook's operations and Mikula's injury. They insist that "Mikula's injuries were not caused by his work or J.F. Cook's operations at the Miller Brewing site, but rather by a condition of the Miller Brewing premises." However, as Milwaukee Mutual and J.F. Cook acknowledge, proximate cause is not necessary here. What is required is "some causal relationship between the injury and the risk for which coverage is provided." See Lawver, 71 Wis. 2d at 415 (footnote omitted). As discussed above, there is a causal relationship between the injury and J.F. Cook's ongoing operations — Mikula was injured at the brewery in the course of his work for J.F. Cook. Miller's liability thus arose from J.F. Cook's ongoing operations.

¶ 32. Because we conclude that Miller is covered as an additional insured under this prong of the endorsement, we need not address the second prong, which covers the additional insured for "liability arising out of premises owned or used by you [J.F. Cook]."

C. J.F. Cook has a duty to indemnify Miller.

¶ 33. As noted, J.F. Cook's subcontract with Selzer-Ornst also included the following indemnity provision:

The Sub-Contractor [J.F. Cook] shall indemnify and save harmless the Owner [Miller], the Architect, the Contractor [Selzer-Ornst] and their respective agents from any and all liability, payments and expenses of any nature for injury or death to any person, or persons, or for damage to any property, caused or allegedrto-have been- caused by the Sub-Contractor, or incidental to the execution of work under this contract by the Sub-Contractor, his agents or employees; and the Sub-Contractor shall maintain from the beginning until the completion of his work policies of insurance satisfactory to the Contractor, covering the liabilities above mentioned, such as employers' liability insurance, public insurance, contingent insurance, etc.

(Emphasis added; strikethrough in original.) On the basis of this language, Miller asserts that J.F. Cook is contractually obligated to defend and indemnify Miller for the Mikula claim. Miller argues that although the general rule is that indemnity agreements are to be strictly construed, one exception to that general rule applies here, yielding the result that J.F. Cook shall indemnify Miller for its own alleged negligence.

¶ 34. "Generally, contracts providing for indemnification in the case of the indemnitee's negligence are considered valid and not contrary to public policy." Herchelroth v. Mahar, 36 Wis. 2d 140, 145, 153 N.W.2d 6 (1967). Yet, "[t]he general rule accepted in this state and elsewhere is that an indemnification agreement will not be construed to cover an indemnitee for his own negligent acts absent a specific and express statement in the agreement to that effect." Spivey v. Great Atl. & Pac. Tea Co., 79 Wis. 2d 58, 63, 255 N.W.2d 469 (1977). That is, indemnity agreements will be liberally construed when dealing with liability based on the negligence of the indemnitor, but " 'strictly construed when the indemnitee seeks to be indemnified for his own negligence.'" Id. (citation omitted).

¶ 35. There are exceptions, however, to this general rule. One such exception provides that absent clear and unequivocal language indicating as much, "if it is clear that the purpose and unmistakable intent of the parties in entering into the contract was for no other reason than to cover losses occasioned by the indemnitee's own negligence, indemnification may be afforded." Id. at 63-64; see also Herchelroth, 36 Wis. 2d at 146-47. In Hastreiter v. Karau Buildings, Inc., 57 Wis. 2d 746, 205 N.W.2d 162 (1973), the supreme court, citing Herchelroth, concluded that even in the absence of clear and unequivocal language, the agreement to purchase liability insurance in addition to the provision holding the indemnitee harmless from any liability evidenced the clear intent of the parties — that the contract intended to provide for the indemnification of the indemnitee from the effects of his own negligence. Hastreiter, 57 Wis. 2d at 748-49. It held that "[t]o construe the indemnification provision [otherwise] would be to make the hold harmless clause surplusage." Id. at 749.

¶ 36. Similarly, here, when the two provisions are taken together, J.F. Cook's agreement to purchase additional insurance and to

indemnify and save harmless the Owner [Miller]... from any and all liability, payments and expenses of any nature for injury or death to any person, or persons, or for damage to any property, caused by the SubContractor, or incidental to the execution of work under this contract by the Sub-Contractor, his agents or employees!,]

evidences J.F. Cook's intent to indemnify and hold Miller harmless even though Miller may be negligent. An agreement to purchase insurance indicates an intention to affect the burden of covering the cost of liability that may arise, and considered in combination with an agreement to "indemnify and save harmless" a party from "any and all liability" for injury or death or "for damage to any property" "caused by the Subcontractor" or "incidental to the execution of work," evidences a clear intent to indemnify the party for all liability, including that resulting from the indemnitee's own alleged negligence. The contract evinces no other purpose for the inclusion of both agreements. Thus, as Mikula's injury was, at the very least, "incident to the execution of work," J.F. Cook must indemnify Miller. Accordingly, we reverse.

By the Court. — Judgments reversed.

       Mikula used the "ABC Insurance Companies" moniker to designate, pursuant to Wis. Stat. § 807.12 (2003-04), the unknown insurance companies that issued policies to Miller for claims such as those set forth in his complaint.
      Moreover, West Bend Mutual Insurance Company was also a plaintiff in the case, insofar as they paid worker's compensation benefits for the injuries sustained that are the subject of this lawsuit. For simplicity, as neither Mikula nor West Bend are parties to this appeal, we will refer to the plaintiffs as "Mikula" only.
      All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       It appears that Miller mistakenly named Unitrin Preferred Insurance Company, instead of Milwaukee Mutual, as J.F. Cook's insurer in this matter, but it was presumably corrected at some point later in the proceedings.

       Moreover, the Supreme Court of New Hampshire court did not refer to the general contractor's own alleged negligence as a basis for concluding that it was not covered as an additional insured with regard to claims of the injured employee.

       Interestingly, G.E. Tignall & Co. v. Reliance National Insurance Co., 102 F. Supp. 2d 300, 306 (D. Md. 2000), cited Baltimore Gas & Electric Co. v. Commercial Union Insurance Co., 688 A.2d 496 (Md. Ct. Spec. App. 1997), in support of its conclusion. However, in Baltimore Gas & Electric, the policy also included an exclusion indicating "[t]his insurance does not apply to: ... '[b]odily injury' or 'property damage' arising out of any act or omission of the additional insured(s) or any of their employees, other than the general supervision of work performed for the additional insured(s) by you." 688 A.2d at 504-05. The policy in G.E. Tignall did not include such an exclusion. Nor does Acuity's policy.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Harry L. Seymer, Defendant-Appellant.
    Court of Appeals

      No. 2004AP552-CR.

      Submitted on briefs February 2, 2005.

      Decided April 12, 2005.

    2005 WI App 93
    (Also reported in 699 N.W.2d 628.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrea Taylor Cornwall, assistant state public defender, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Wedemeyer, EJ., Fine and Curley, JJ.
   CURLEY, J.

¶ 1. Harry L. Seymer appeals the judgment, entered following a court trial, convicting him of first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1) (1997-98). He also appeals from the order denying his postconviction motion. Seymer argues that the trial court violated his Sixth Amendment right to confrontation when it terminated his cross-examination of the victim, A.S., in his court trial. Because the trial court erred in foreclosing Seymer, then acting pro se, from fully cross-examining the victim, A.S., and the error was not harmless, this court reverses the judgment of conviction and remands for a new trial.

I. Background.

¶ 2. Seymer was charged on July 24, 2002, with one count of first-degree sexual assault of a child following an investigation triggered by his ex-girlfriend's call to the police. She called after she witnessed inappropriate sexual conduct between her five-year-old daughter and A.S., her twelve-year-old daughter. After the incident, the ex-girlfriend told A.S. to leave the room, but instead, the girl left the house. She was eventually picked up by the police and returned to her home. The police questioned her about her behavior with her sister, and in response to police questions concerning whether anyone had touched A.S. inappropriately, A.S. told the police that while Seymer lived with her family several years earlier, he touched her inappropriately. A.S. was then interviewed by a social worker. According to the criminal complaint, during this videotaped interview, because she was reluctant to talk to a social worker, A.S. wrote down that once, when she was sick and at home alone with Seymer, he would "touch me in places I don't like to be touch[ed]." A.S. was then shown a drawing of a female child, and asked to mark the areas on the drawing where Seymer touched her. She marked the following areas: cheek, breast, arm, privates, leg, knee, neck, shoulder, back, back of arm, wrist, bottom, and back of leg. The victim indicated to the social worker that Seymer rubbed these areas with his hand on top of and under her pajamas, and that this occurred on severed different occasions.

¶ 3. After his arrest, Seymer hired a lawyer and subsequently waived his right to a preliminary hearing. Later, his privately retained attorney asked to withdraw due to Seymer's lack of funds. This request was granted and Seymer was appointed an attorney by the public defender's office. Several months later, Seymer's new attorney asked to withdraw due to the attorney's failing health and Seymer's unhappiness with his representation. This motion was also granted. Seymer was then appointed another attorney by the public defender's office. Shortly thereafter, Seymer sought to represent himself. While the trial court initially denied Seymer's request, on March 17, 2003, the trial court granted Seymer's request to represent himself and Seymer waived his right to a jury trial.

¶ 4. A court trial commenced on April 9, 2003. The State first called the social worker who initially interviewed A.S., and played the videotape of that interview. The State then called A.S. to the stand, only asking her to confirm her name, birth date, and that everything she said or wrote in the videotape was true. Seymer began his cross-examination and asked numerous questions, but his questioning was halted by the trial court. This occurred after the prosecutor objected to a question posed by Seymer. The following exchange explains the trial court's decision:

THE COURT: Mr. Seymer, where are we going with this?
MR. SEYMER: I - If you want to know where I'm going, in all things she has told me on the telephone before and I was hoping maybe she would finally confess to speaking with me on the phone.
THE COURT: Okay. That's the end of this examination. That's the last of those comments.

Shortly thereafter, the trial court justified its decision:

THE COURT: Mr. Seymer, I gave you several opportunities to understand what I made clear about the way I expected you to comport yourself in the courtroom and you constantly made editorial comments and that last one was the straw that broke the camel's back.
I don't think a witness should be subjected to that. I don't think the Court should be subjected to that and so you're done.
MR. SEYMER: I thought you wanted a truthful answer. I apologize, Your Honor. That's where I was going with that.
THE COURT: You know what, Mr. Seymer, sometimes our feelings about others are truthful and yet decorum requires that we keep them to ourselves.
Certainly when we express those feelings there's a respectful way to express them. You have chosen other ways than respect to express yourself.
This courtroom is a place where I demand that. You . lost your privilege to continue that examination because you abused it.

¶ 5. The State then called A.S.'s mother and, after Seymer requested that portions of a police report containing information transmitted to the police by A.S.'s counselor be admitted, the evidentiary portion of the trial ended. After closing arguments were held, the trial court summarized the evidence and found Seymer guilty of the charge. Sentencing was held approximately one week later. The trial court sentenced Seymer to twelve years' incarceration. Seymer, now represented by a lawyer, brought a postconviction motion seeking a new trial. In a lengthy decision, the trial court denied his request. This appeal follows.

II. Analysis.

¶ 6. Seymer submits that the trial court violated his constitutional right to confrontation when it terminated his cross-examination of the victim. Seymer claims that his behavior was not so disrespectful or disruptive that it necessitated the extreme measure of terminating his cross-examination, as the trial court later represented, and, as such, the trial court's action was both unreasonable and unnecessary. Seymer argues that even if his cross-examination was, at times, improper, he was given no notice that his conduct would result in the termination of his cross-examination. Finally, he argues that this error was not harmless, as he was prevented from fully exploring the motivations of the victim and testing her credibility and the truth of her allegations. We agree that Seymer's constitutional rights were infringed upon when the trial court prevented him from completing his cross-examination of the victim.

¶ 7. A Wisconsin criminal defendants right to confront witnesses is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Wisconsin Constitution. The confrontation rights under both constitutions are the same. State v. Burns, 112 Wis. 2d 131, 144, 332 N.W.2d 757 (1983). "The purpose of confrontation and cross-examination is to test both the witnesss memory and credibility in the presence of the fact finder." State v. Norman, 2003 WI 72, 36, 262 Wis. 2d 506, 664 N.W.2d 97 (footnote omitted). The right of confrontation includes the right to cross-examine adverse witnesses to expose the witnesss motivation in testifying and any potential bias. See Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). However, "[i]nthe exercise of this right, the accused must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." State v. Smith, 2002 WI App 118, 6, 254 Wis. 2d 654, 648 N.W.2d 15 (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). Moreover, although a court may not prohibit all inquiry into the possibility of bias, reasonable limitation on "interrogation that is repetitive or only marginally relevant" is appropriate. Van Arsdall, 475 U.S. at 679. The fundamental inquiry in deciding whether the right of confrontation was violated is whether the defendant had the opportunity for effective cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985) (per curiam); State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325 (1990).

¶ 8. Generally, the decision whether to admit or exclude evidence is within the circuit courts discretion. See State v. Williams, 2002 WI 58, 7, 253 Wis. 2d 99, 644 N.W.2d 919. However, this discretion may not be exercised until the court has accommodated the defendants right of confrontation. See State v. St. George, 2002 WI 50, 16 n.17, 252 Wis. 2d 499, 643 N.W.2d 777. Whether the limitation of cross-examination violates a defendants right of confrontation is a question of law that we review de novo. See Williams, 253 Wis. 2d 99, 7.

¶ 9. We first examine the trial court's findings concerning Seymer's conduct. During the trial, the trial court sustained several of the prosecutor's objections to Seymer's questions and urged Seymer to ask relevant questions of the witnesses, as his questioning tended to wander off into areas unrelated to the allegations. The trial court also cautioned him against "editorializing." However, despite these problems, nowhere in the transcript does the trial court make mention of Seymer's tone being improper or his questions sarcastic, or advise him that his conduct was egregiously out of bounds.

¶ 10. After the postconviction motion was heard, the trial court supplemented its terse trial remarks with a fifteen-page decision in which it explained its earlier decision and claimed that Seymer was, among other things: insolent, disrespectful, flippant, and uncivil. In addition, the trial court wrote that, in its opinion, Seymer had exhibited "derisive behavior," showed "disdain for the prosecution" and "scorn for the rules," used a "mocking tone," "spit back ... gratuitous comment[s]," "taunted the [court]," and "los[t] his composure." Despite our exhaustive review of the record, we can find little support for the trial court's subjective impressions. Instead, our read of the cold record reveals an unsophisticated, often awkward, and untrained litigant who was attempting, within the context of a long-standing family dispute, to prove his innocence of a sexual assault charge brought by his ex-girlfriend's daughter several years after the alleged events. The record reflects that while Seymer had a trial strategy and numerous pages of questions to be asked, his trial skills were poor and time consuming, and the wording of his questions was often unclear, sometimes to the point of being incomprehensible. His demeanor and speech were informal, and he was generally at a loss to understand courtroom procedure. However, despite these infirmities, we could glean no evidence from the record that Seymer exhibited disrespect for the court, opposing counsel or the witnesses, nor did he appear to engage in derisive behavior or attempt to taunt the judge. On the contrary, the record is sprinkled with Seymer's numerous apologies to the court and counsel when his questions were objected to or when the trial court would chide him to remain on track. In its order, the trial court complained that Seymer often repeated the answers given by the witnesses; however, this is a tactic also employed by neophyte lawyers. Moreover, inasmuch as this was a court trial and not a jury trial, we think many of these shortcomings could have been overlooked.

¶ 11. Our review suggests that early on in the litigation, problems were brewing between Seymer and the trial court. At the second motion to withdraw brought by Seymer's counsel, the following exchange occurred:

THE DEFENDANT: That's why I prepared five items of why I wanted him dismissed today. So, I was hoping for a chance to talk about it.
THE COURT: Well, like I said, I can't even - that is a non-starter. It's not your turn. Your turn to present issues while [sic] you are innocent is at trial.
THE DEFENDANT: No, for dismissal, not for - you said that we weren't going to argue relevancy and you wanted an example. I guess that is where I'm really confused.
THE COURT: Mr. Seymer, there is no reason to be confused. Listen. Stop looking at the papers you're looking at and look at me. Your reasons for dismissing the case have to do with what the truth of this case is. Judges don't decide that, the jury does. So I can't dismiss the case for those reasons that you give me.
THE DEFENDANT: How do you know if I haven't read the five reasons to you yet?
[DEFENSE COUNSEL]: .1 think he has got five reasons why I should be dismissed.
THE COURT: Is that what you thought? I thought he meant for dismissal of the case.
THE COURT: If you can state those briefly, I will let you state them.
THE DEFENDANT: The fact that I thought [first attorney] and I asked for a speedy trial. That is something I hadn't agreed upon and insofar as the three weeks that he's come on with the case wants to push it back.
THE COURT: I think I've answered that, Mr. Seymer. I already answered that. Mr. Seymer, are you going to let me talk? It's my courtroom.
THE DEFENDANT: Oh, well, I thought you said proceed with my reasons.
THE COURT: Okay. I'm done then. I'm not playing a game with you. You ignored what I was saying. Obviously when I start talking after I've given you permission to start is because I have something important to say.

¶ 12. Later, at the beginning of the trial, during Seymer's cross-examination of the social worker, the trial court was offended by one of Seymer's comments:

THE COURT: Is there some factual basis for that in this case?
MR. SEYMER: I'm just -1 guess I'm just trying to find out what exactly - some things, too, myself. She's already formed her opinion.
THE COURT: Wait, Mr. Seymer.
MR. SEYMER: No, I - I didn't mean like that. I meant just as far as certain issues dealing with children that she's answered.
THE COURT: You're directing that comment to me or [the witness]?
MR. SEYMER: I meant I - I didn't mean it to be offensive to you, Your Honor.
THE COURT: It certainly came off that way so I'd be more guarded about the things that you say in the midst of a trial.

Thus, it appears that the trial court, for whatever reason, found Seymer exasperating and gave him little leeway during the trial, as we could find almost no other support in the record for the trial court's termination of Seymer's cross-examination. As a result, we find the underpinnings of the trial court's decision to terminate cross-examination to be unavailing, and Seymer's opportunity for effective cross-examination to have been violated.

¶ 13. Consequently, we next explore whether the trial court's error was harmless. The test for harmless error is whether it is clear, beyond a reasonable doubt, that a rational fact finder would have found the defendant guilty absent the error. State v. Harvey, 2002 WI 93, 49, 254 Wis. 2d 442, 647 N.W.2d 189. The trial court reasoned, in its order denying Seymers request for a new trial, that even if the termination was an error, it was harmless because Seymer failed to show what additional facts he would have presented. We disagree.

¶ 14. First, we observe that Seymer was under a no contact order with the victim and had no opportunity to question her before or after the trial, so any requirement that he state what additional relevant information may have been elicited during cross-examination was an impossibility. The State concedes that this is not the proper standard. Second, after reviewing the record and the trial courts rationale for its finding of guilt, we are satisfied that the error here was not harmless.

¶ 15. Although the State charged Seymer with only one count, it was alleged that Seymer molested A.S. on several occasions. During Seymers cross-examination of A.S., she denied any knowledge of the incident with her sister that precipitated her revelation about Seymers assaults, she claimed never to have told the police about being touched inappropriately, and asserted that she never rode in a police car. She could neither remember what time of year it was when she was first touched inappropriately, nor remember whether the person who touched her wore clothes. In response to many other questions, A.S. simply answered: "I dont know." Even the trial court was apparently unimpressed with the victims testimony. In its decision finding Seymer guilty, the trial court wrote:

There are other factors that weigh against it. I believe that [A.S.] was evasive on the stand. I think that she told untruths when she said she didnt remember things that I think she could be expected to remember. At the very least that shows that she has a memory lapse and a persons lapse of memory is something that counts against their credibility. But worse than that I think more probable is that there were parts of the truth that she was aware of and was unwilling to discuss and that is evasive.

¶ 16. In its order denying Seymers motion seeking a new trial, the trial court reflected on Seymers cross-examination of A.S. The trial court wrote:

First I review[ed] the questions Mr. Seymer did ask [A.S.]: He covered a wide variety of subjects and landed hard blows on [A.S.]s credibility. He exposed her bias toward him, her evasiveness, her reluctance to testify to her allegations, the lack of detail in her allegations, the possible bias of [A.S.]s mother, [A.S.]s yearning for attention from her mother, inconsistencies in statements [A.S.] made previously, inconsistencies between her previous statements and her conduct (in particular her willingness to play outside despite her statement that she was afraid to go outside because the defendant might be there) and inconsistencies between her testimony and matters of incontrovertible fact (such as the presence or absence of a television in a certain room at a certain time). I acknowledged these issues in the findings I made at the conclusion of the trial.

¶ 17. Given that Seymers abbreviated cross-examination began to raise serious questions concerning A.S.s credibility and the veracity of her account, we are not convinced that it is clear, beyond a reasonable doubt, that a rational fact-finder would have found Seymer guilty had he been able to complete his cross-examination. In the short cross-examination of A.S., Seymer, in the words of the trial court, "landed hard blows on her credibility." Thus, it is within the realm of reasonable possibility that the completed cross-examination would have produced evidence that seriously undermined the credibility and recollections of the victim, resulting in a not guilty finding. Consequently, having concluded that Seymers right to confrontation was violated and that the error was not harmless, we are obligated to overturn the judgment of conviction and remand this matter for a new trial.

By the Court. — Judgment and order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The five-year-old daughter is also Seymer's daughter.

         The Sixth Amendment to the United States Constitution provides in part: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him[.]" U.S. Const, amend. VI. The Sixth Amendment applies to the states by virtue of the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 406 (1965).

       Article I, section 7 of the Wisconsin Constitution provides in part: "In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face[.]" Wis. Const. art. I, § 7.

       The State maintains that the trial court's "historical facts" cannot be reversed unless they are clearly erroneous. That is generally the proper standard of review. Wisconsin Stat. § 805.17(2) directs that in court trials:
      (2) Effect. In all actions tried upon the facts without a jury..., the court shall find the ultimate facts and state separately its conclusions of law thereon. The court shall either file its findings and conclusions prior to or concurrent with rendering judgment, state them orally on the record following the close of evidence or set them forth in an opinion or memorandum of decision filed by the court. ... Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. ... The findings and conclusions or memorandum of decision shall be made as soon as practicable and in no event more than 60 days after the cause has been submitted in final form.
      Here, the trial court's findings made following the close of evidence do not mention Seymer's allegedly contumacious conduct. It was only after Seymer moved for a new trial based upon the constitutional violation caused by the abbreviated cross-examination of the star witness that the trial court, some eight months later, elaborated on Seymer's conduct. Moreover, the trial court admitted in its postconviction order that it failed to make a record contemporaneously with Seymer's decorum lapses and failed to mention them in his factual findings made at the end of trial. Thus, while we give deference to the trial court's findings made at trial, we do so mindful of this chronology.

       We are sympathetic to the problems that unrepresented litigants cause trial courts. However, given the constitutional rights in play during criminal trials, trial judges would be well advised to dig into their reserves of patience and understanding when dealing with pro se litigants.