### COURT OF APPEALS DECISION DATED AND FILED June 6, 2023

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No s . 2022AP911

2022AP912 Cir. Ct. No s . 2020TP82 2020TP83

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

A PPEAL N O . 2022AP911

I N RE THE TERMI NATION OF PARENTAL R IGHTS TO I. H., A PERSON UNDER THE AGE OF 18:

S TATE OF W ISCONSIN ,

P ETITIONER - R ESPONDENT ,

V .
I. B.,

R ESPONDENT - A PPELLANT .

A PPEAL N O . 2022AP912

I N RE THE TERMI NATION OF PARENTAL R IGHTS TO K. H., A PERSON UNDER THE AGE OF 18:

S TATE OF W ISCONSIN ,

P ETITIONER - R ESPONDENT ,Nos. 2022AP911 2022AP912

2 V . I.B.,

R ESPONDENT - A PPELLANT .

APPEAL S 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 W IS

. S TAT

. § 48.42(4) , which prevent ed the trial court from assuming persona l jurisdiction over her and depriv ed 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 bel ow, I affirm.

BACKGROUND

¶ 2 In December 201 8, 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, refriger ator, 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 W IS

. S TAT

. § 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 W IS

. S TAT

. § 809.19(1 )(g).Nos. 2022AP911 2022AP912

3 extremely cold given the lack of heat and the time of the year. There were also
concerns about substance abuse.

¶ 3 O n June 12, 2019, a CHIPS dispositional order was put in place for both children. Subsequently, o n April 9, 2020, the State filed substantially
identical petition s t o terminate Ivy’s parental rights to I.H. and K.H. The petition s alleged th at grounds existed to terminate her pare ntal rights based on continuing CHIPS and failure to assume parental responsibility. At the time of the petition s , 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 petition s , but acknowledged that the petitions had been mailed to the correct address. Ivy further stated that she had
received the hea ring notice, or summons, which had been mailed in the same envelope. In response, the State agreed to email a n electronic copy of the petitions to Ivy.

¶ 5 Subsequently, an attorney was appointed to represent Ivy , and an initial appearan ce 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 fo u nd that the State had met their burden as to both grounds alleged , and that I vy was an unfit parent

. The court specifically found that any notice and service requirements

3 I note that the record refers to a copy of “the petition,” not “the petitions.” However, Ivy does not dispute that she received a copy of both petitions by email.Nos. 2022AP911 2022AP912

4 under W IS

. S TAT

. § 48.42 were complied with, and that the court had competency
and jurisdi ction to proceed. After a contes ted dispositional hearing, the c ourt 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 se rvice 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 s he 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 prejudic ed 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 pos tdisposition motion, w hich this court grant ed.Nos. 2022AP911 2022AP912

5 DISCUSSION

¶ 10 W ISCONSIN S TAT

. § 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) M ANNER OF SERVING SUM MONS 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 r equired 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 petition s by relying on two un authorized methods of service: mail and email. Thus, according to Ivy , the trial court was prevented from assuming personal j urisdiction 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 record s , I conclude that Ivy forfeited her challenges to personal jurisdiction and competency. Both pers onal jurisdiction and competency can be forfeited. See generally , Studelska v.Nos. 2022AP911 2022AP912

6 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 Trempealea u 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 jurisdi ction and competency. See
W IS

. S TAT

. § 48.42(4)(a) (stating that “[s]ervice of summons is not required if the party submits to the jurisdiction of the court”); W IS

. S TAT

. § 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 w as 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 C n ty. D SS 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 Am erican Fam ily 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 preservin g the issue

. Id. at 528.Nos. 2022AP911 2022AP912

7 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. I d. at 697.

¶ 16 When a motion is denied without an evidentiary hearing, this court
review s de novo “whether the motion on its face alleges sufficient material and

non

- conclusory facts that, if true, would entitle the [parent] to relief” a nd “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 t he trial court would have been able to find good cause to toll any applicable time limits and grant a
continuance under W IS

. S TAT

. § 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 f athers 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 evi dentiary hearing. As a result, I affirm.

By the Court.

— Orders affirmed

.Nos. 2022AP911 2022AP912

8 This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)4.