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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal Nos. 2022AP911

2022AP912

Cir. Ct. Nos. 2020TP82

2020TP83

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

2

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”)2appeals 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). 
Nos. 2022AP911

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3

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 

 

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

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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. 
Nos. 2022AP911

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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. 
Nos. 2022AP911

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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. 
Nos. 2022AP911

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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.
Nos. 2022AP911

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This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.