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TPR – Motion to Reopen, § 806.07

Shelly J. v. Leslie W., 2011AP753, District 4, 7/28/11

court of appeals decision (1-judge, not for publication); for Shelly J.:  Amy J. Lamerand Zott; case activity

Shelly’s motion to reopen her TPR judgment, 7 years after she successfully petitioned for voluntary termination, was untimely under the 1-year deadline imposed by § 806.07(1)(a) and (c), nor did she show “extraordinary circumstances” under subs. (h). As to her claim that the judgment was void under subs. (d), which contains no deadline: her claim is that the trial court lost competency to proceed when it failed to conduct the initial hearing within 30 days, § 48.422(1), but loss of “competency” doesn’t render an ensuing judgment “void”:

¶43      Therefore, a judgment or order “rendered by a court lacking competency is ‘not void for the lack of subject matter jurisdiction, but invalid for the lack of competency to proceed to judgment.’” Mikrut, 273 Wis. 2d 76, ¶14 (citation omitted). As such, when a motion for relief from an order is based on a circuit court’s alleged lack of competency, the challenged judgment is not a void judgment, and therefore the motion cannot be brought at any time, but is subject to the “reasonable” time requirement of Wis. Stat. § 806.07(2).  Mikrut, 273 Wis. 2d 76, ¶¶32-34. Consequently, because she challenges only the court’s competency to proceed and not the court’s subject matter jurisdiction, Shelly fails to meet her burden that the orders are void for lack of subject matter jurisdiction.

(Similarly: defect in venue, which Shelly also asserts, wouldn’t amount to jurisdictional defect, hence wouldn’t render the TPR order void for lack of jurisdiction, ¶45.)

The operative facts fall a bit outside the usual. Shelley petitioned for voluntary TPR, so that she and Leslie could then both adopt the children. In other words, Shelly remained their parent after the dust settled. In effect, she’s trying to turn back the clock so that not only do her parental rights remain intact, but Leslie’s adoption necessarily falls.

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