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Failure to raise defense of lack of personal jurisdiction in TPR case waived the issue

Portage County DHHS v. A.K., 2022AP30, District 4, 8/11/22 (one-judge decision; ineligible for publication); case activity

A parent’s failure to raise the issue of the circuit court’s personal jurisdiction as a defense during the TPR proceeding means the issue was waived.

The attorney representing A.K. in a pending CHIPS proceeding accepted service on A.K.’s behalf of a petition to terminate A.K.’s parental rights to the child. A new lawyer was appointed to represent A.K. in the TPR proceeding, and A.K. participated in the proceeding and appeared at various hearings. The circuit court ultimately terminated A.K.’s parental rights. (¶¶2-3).

A.K. now argues the circuit court lacked personal jurisdiction over her because her CHIPS lawyer could not legally accept service of the petition on A.K.’s behalf. (¶4). Maybe so, but this claim was waived because it wasn’t raised during the TPR proceeding:

¶6     ….  Pursuant to [§ 801.06], a court having subject-matter jurisdiction may exercise personal jurisdiction “without a summons having been served … over any person who appears in the action and waives the defense of lack of [personal] jurisdiction … as provided in [Wis. Stat. §] 802.06(8).” See § 801.06; see also [City of Milwaukee v.] Glass, [2001 WI 61,] 243 Wis. 2d 636, ¶25[, 628 N.W.2d 343]. Section 802.06(8), in turn, provides that the personal jurisdiction defense is waived “only if”: (1) “[t]he defense is omitted from a motion [consolidating defenses]”; or (2) “[t]he defense is neither made by motion under [§ 802.06] nor included in a responsive pleading.” See § 802.06(8)(a); see also Artis-Wergin v. Artis-Wergin, 151 Wis. 2d 445, 452-53, 444 N.W.2d 750 (Ct. App. 1989) (discussing the operation of §§ 801.06 and 802.06(8)(a)).


¶8     A.K. never raised the defense of lack of personal jurisdiction in a motion or responsive pleading under Wis. Stat. § 802.06. See § 802.06(8)(a). A.K., moreover, does not dispute that she “appeared” in this action within the meaning of Wis. Stat. § 801.06. A.K. nonetheless argues that § 801.06 does not confer personal jurisdiction because her “participation in the proceedings was based on the mistaken belief that she was properly served.” But A.K. cites no legal authority supporting her assumption that the personal jurisdiction defense cannot be mistakenly waived, or that § 801.06 cannot apply where the defendant’s appearance hinges on a mistake. …. I do not further address a position that is unsupported by the text of §§ 801.06 and 802.06(8)(a) and that does not rely on any relevant case law. ….

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