State v. I. B.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 6, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal Nos. 2022AP911 Cir. Ct. Nos. 2020TP82
2020TP83
2022AP912
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
APPEAL NO. 2022AP911
IN RE THE TERMINATION OF PARENTAL RIGHTS TO I.H., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
I.B.,
RESPONDENT-APPELLANT.
APPEAL NO. 2022AP912
IN RE THE TERMINATION OF PARENTAL RIGHTS TO K.H., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
Nos. 2022AP911
2022AP912
V.
I.B.,
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.
¶1 DONALD, P.J.1 I.B. (hereinafter “Ivy”)2 appeals the orders of the
trial court terminating her parental rights to her children, I.H. and K.H. On appeal,
Ivy contends that the State failed to comply with the service requirements
prescribed in WIS. STAT. § 48.42(4), which prevented the trial court from
assuming personal jurisdiction over her and deprived the trial court of
competency. In addition, Ivy contends that trial counsel was ineffective for failing
to seek dismissal of the termination petitions based on the alleged service defect.
For the reasons discussed below, I affirm.
BACKGROUND
¶2 In December 2018, a protective plan was put in place after Ivy was
found to be living with her children, eight-year-old I.H. and four-year-old K.H., in
an abandoned upper flat that had no heat, stove, refrigerator, microwave, or
furniture. The home did not have sufficient food for the children and was
1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-
22). All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
I use a pseudonym for I.B. in accordance with WIS. STAT. § 809.19(1)(g).
2
Nos. 2022AP911
2022AP912
extremely cold given the lack of heat and the time of the year. There were also
concerns about substance abuse.
¶3 On June 12, 2019, a CHIPS dispositional order was put in place for
both children. Subsequently, on April 9, 2020, the State filed substantially
identical petitions to terminate Ivy’s parental rights to I.H. and K.H. The petitions
alleged that grounds existed to terminate her parental rights based on continuing
CHIPS and failure to assume parental responsibility. At the time of the petitions,
there were still safety concerns related to Ivy’s illegal drug use and ability to
parent.
¶4 On May 5, 2020, Ivy appeared at the initial hearing on the petitions
and stated that she had not received a copy of the petitions, but acknowledged that
the petitions had been mailed to the correct address. Ivy further stated that she had
received the hearing notice, or summons, which had been mailed in the same
envelope. In response, the State agreed to email an electronic copy of the petitions
to Ivy.
¶5 Subsequently, an attorney was appointed to represent Ivy, and an
initial appearance took place on September 30, 2020. Ivy confirmed that she had
received the petitions via email.3
¶6 A three-day court trial took place. The trial court found that the
State had met their burden as to both grounds alleged, and that Ivy was an unfit
parent. The court specifically found that any notice and service requirements
I note that the record refers to a copy of “the petition,” not “the petitions.” However,
3
Ivy does not dispute that she received a copy of both petitions by email.
3
Nos. 2022AP911
2022AP912
under WIS. STAT. § 48.42 were complied with, and that the court had competency
and jurisdiction to proceed. After a contested dispositional hearing, the court
found that it was in the best interests of I.H. and K.H. to terminate Ivy’s parental
rights.
¶7 Ivy sought postdisposition relief arguing that the State’s failure to
adhere to the statutory service requirements deprived the court of competency and
prevented the court from assuming personal jurisdiction over Ivy. 4 Ivy further
contended that trial counsel was ineffective for failing to object to and seek
dismissal of the petitions to terminate her parental rights.
¶8 At the postdisposition hearing, the State indicated that during the
COVID-19 pandemic, the State did not personally serve parents in TPR cases and
instead mailed the petitions. The State asserted that regardless, Ivy was not
entitled to relief because she appeared in court. The Guardian ad litem (GAL)
added that if trial counsel had objected and Ivy had not agreed to accept the
petitions by email, the court would have instructed the State to serve her
personally and tolled the time limits.
¶9 The trial court denied Ivy’s motion without an evidentiary hearing.
The court found that it maintained competency and jurisdiction to proceed. The
court further found that trial counsel was not deficient, and even if he was, Ivy was
not prejudiced because she received her right to a trial. This appeal follows.
4
Ivy initially filed a no-merit report. Subsequently, this court, a different judge
presiding, ordered Ivy’s counsel to file a supplemental report addressing whether Ivy was
properly served with the petitions. Ivy then moved to dismiss the no-merit notice of appeal and
file a postdisposition motion, which this court granted.
4
Nos. 2022AP911
2022AP912
DISCUSSION
¶10 WISCONSIN STAT. § 48.42(4) provides that when the State seeks to
terminate a person’s parental rights, it must serve them personally with a summons
and petition. The statute provides in relevant part:
(4) MANNER OF SERVING SUMMONS AND PETITION.
(a) Personal service. Except as provided in this paragraph,
par. (b), and sub. (2g) (ag), a copy of the summons and
petition shall be served personally upon the parties
specified in sub. (2), if known, at least 7 days before the
date of the hearing. Service of summons is not required if
the party submits to the jurisdiction of the court….
(b) Constructive notice.
1. If with reasonable diligence a party specified in
sub. (2) cannot be served under par. (a), service shall be
made by publication of the notice under subd. 4.
Sec. 48.42(4)(a), (b)1.
¶11 Ivy contends that the State failed to properly serve the petitions by
relying on two unauthorized methods of service: mail and email. Thus, according
to Ivy, the trial court was prevented from assuming personal jurisdiction over Ivy
and was deprived of competency to preside over Ivy’s case.
¶12 The State and GAL respond that Ivy submitted to the trial court’s
jurisdiction when she appeared in court. In addition, they contend that Ivy
forfeited her challenge to the court’s competency to act by failing to object in the
trial court.
¶13 Based on my review of the briefs and the records, I conclude that Ivy
forfeited her challenges to personal jurisdiction and competency. Both personal
jurisdiction and competency can be forfeited. See generally, Studelska v.
5
Nos. 2022AP911
2022AP912
Avercamp, 178 Wis. 2d 457, 462, 504 N.W.2d 125 (Ct. App. 1993) (holding that
challenges to personal jurisdiction could be forfeited); Village of Trempealeau v.
Mikrut, 2004 WI 79, ¶38, 273 Wis. 2d 76, 681 N.W.2d 190 (holding that
challenges to competency are forfeited if not raised in the trial court).
¶14 Here, it is undisputed that Ivy appeared in court multiple times on
this case, including participating in a court trial and a contested dispositional
hearing. Not until postdisposition proceedings did Ivy object to personal
jurisdiction and competency. By appearing in court multiple times and failing to
object, Ivy forfeited any challenge to personal jurisdiction and competency. See
WIS. STAT. § 48.42(4)(a) (stating that “[s]ervice of summons is not required if the
party submits to the jurisdiction of the court”); WIS. STAT. § 48.297(2) (stating
that “[d]efenses and objections based on defects in the institution of proceedings
… shall be raised not later than 10 days after the plea hearing or be deemed
waived” and “[o]ther motions capable of determination without trial may be
brought any time before trial”). Accordingly, I address whether Ivy was deprived
of effective assistance of counsel.5
¶15 To obtain relief based on ineffective assistance of counsel, Ivy has
the burden to prove both deficient performance and prejudice under Strickland v.
Washington, 466 U.S. 668, 687 (1984). See Oneida Cnty. DSS v. Nicole W., 299
Wis. 2d 637, 659-60, 728 N.W.2d 652. Performance is deficient if it falls below
an objective standard of reasonableness. Strickland, 466 U.S. at 688. To show
prejudice, Ivy must show a reasonable probability that, but for counsel’s
5
In her argument, Ivy relies on American Family Mut. Ins. Co. v. Royal Ins. Co. of
Am., 167 Wis. 2d 524, 481 N.W.2d 629 (1992). However, in that case, unlike here, there was a
motion in the trial court to dismiss for lack of jurisdiction preserving the issue. Id. at 528.
6
Nos. 2022AP911
2022AP912
unprofessional conduct, the result of the proceedings would have been different.
See id. at 694. If a parent fails to satisfy one component of the analysis, a court
need not address the other. Id. at 697.
¶16 When a motion is denied without an evidentiary hearing, this court
reviews de novo “whether the motion on its face alleges sufficient material and
non-conclusory facts that, if true, would entitle the [parent] to relief” and “whether
the record conclusively demonstrates that the [parent] is not entitled to relief.”
State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d 458, 983 N.W.2d 608. “[I]f the
motion does not raise facts sufficient to entitle the movant to relief, or presents
only conclusory allegations, or if the record conclusively demonstrates that the
[parent] is not entitled to relief, the [trial] court has the discretion to grant or deny
a hearing.” State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.
¶17 Even if I assume that trial counsel performed deficiently, the record
conclusively demonstrates that Ivy was not prejudiced. As the State and GAL
explain, if Ivy had objected, the State would have requested an adjournment to
personally serve the petition or seek publication and the trial court would have
been able to find good cause to toll any applicable time limits and grant a
continuance under WIS. STAT. § 48.315(2). In fact, the trial court granted an
adjournment and tolled the time limits for the State to complete service on the
alleged fathers who did not appear.
¶18 Thus, the record conclusively demonstrates that Ivy was not
prejudiced, and the trial court properly denied the postdisposition motion without
an evidentiary hearing. As a result, I affirm.
By the Court.—Orders affirmed.
7
Nos. 2022AP911
2022AP912
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
8