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Parent forfeited challenges to competency and jurisdiction in TPR appeal by not objecting to defective service

State v. I.B., 2022AP911 & 2022AP912, District I, 6/6/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

Although the State appears to have conceded it did not follow the statutory requirements for proper service of the petition(s) in this TPR, Ivy’s appeal fails because she did not object below. And, because the error could have been cured if counsel had objected, her ineffectiveness claim also fails.

In April of 2020, the State filed petitions to terminate Ivy’s parental rights with respect to two of her children. Although § 48.42(4)(a) requires personal service of the summons and petition, Milwaukee County departed from that statutory mandate. As the State disclosed during postdisposition proceedings, “during the COVID-19 pandemic, the State did not personally serve parents in TPR cases and instead mailed the petitions.” (¶8). Despite this defect in service, however, Ivy appeared at the initial appearance and acknowledged receipt of the summons, but not the accompanying petition(s). (¶4) Ivy’s attorney later acknowledged receiving a copy of the petition(s) via email. (¶5). On appeal, Ivy argued that this defect in service “deprived the court of competency and prevented the court from assuming personal jurisdiction over Ivy.” (¶7). She also claimed counsel was ineffective for not objecting to the lack of service and for not seeking dismissal based on this error. (Id.)

The court of appeals makes short work of these arguments and affirms, holding that Ivy forfeited her legal challenges by “appearing in court multiple times and failing to object.” (¶14). Ivy’s ineffectiveness claim fares no better. The court of appeals agrees that the circuit court correctly denied the postdisposition motion without a hearing as “the record conclusively demonstrates that Ivy was not prejudiced.” (¶17).

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).


This unpublished decision is notable in one respect for appellate practitioners. As a footnote makes clear, this issue was first raised in a court order in response to appointed counsel’s no-merit report. Given Milwaukee County’s admission that it departed from statutory service requirements during the COVID-19 pandemic, attorneys taking TPR appeals in District 1 will need to keep an eye out and at the very least be prepared to address the issue in a no-merit report.


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