State v. J. S.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 16, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2024AP180 Cir. Ct. Nos. 2022TP64
2022TP65
2024AP181
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

APPEAL NO. 2024AP180

IN RE THE TERMINATION OF PARENTAL RIGHTS TO N.M.S., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

J.S.,

RESPONDENT-APPELLANT.
Nos. 2024AP180
2024AP181

APPEAL NO. 2024AP181

IN RE THE TERMINATION OF PARENTAL RIGHTS TO N.S., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

J.S.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.

¶1 DONALD, P.J.1 Julia appeals from circuit court orders terminating
her parental rights to her children, Nathan and Neil.2 Julia argues the circuit court
lacked personal jurisdiction over herself because she was not personally served the
summons and petitions for the termination of her parental rights. Julia also
contends the circuit court erred by accepting the substitution request of Judge
Joseph R. Wall made by the children’s guardian ad litem (GAL) because the GAL
had previously waived the right to substitution and failed to comply with the

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
For ease of reading, the family in this confidential matter is referred to using
pseudonyms. See WIS. STAT. RULE 809.19(1)(g).

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requirements for substitution laid out in WIS. STAT. § 48.29(1). For the following
reasons, we affirm the circuit court’s orders.

BACKGROUND

¶2 On April 1, 2022, the State filed petitions to terminate Julia’s
parental rights to Nathan and Neil. The State made three unsuccessful attempts to
personally serve Julia and filed an affidavit of non-service. The State also mailed
a copy of the summons and the petitions to Julia.

¶3 On April 13, 2022, the parties attended an initial appearance before
Judge Ellen R. Brostrom. Julia and her attorney were present. The circuit court
asked Julia if she had received a copy of the petitions and Julia replied that she had
just obtained a copy that morning from the State Public Defender’s Office. As a
result, Julia explained that she had not had enough time to fully discuss all of the
issues regarding her right of substitution with her attorney and requested an
adjournment to do so. The circuit court granted her request. At the adjourned
initial appearance on April 25, 2022, the GAL waived the right of substitution.

¶4 On June 10, 2022, the circuit court held a scheduling conference to
schedule a final pretrial and jury trial. The circuit court and the parties were
unable to schedule a date through October of 2022. At that point, the GAL stated
that she wanted to ask for a substitution in order to find an earlier date. The circuit
court notified the parties that this case would be transferred to Judge Wall at the
beginning of August.3 Since the circuit court was unable to find a trial date on

3
Milwaukee County circuit court judges are periodically rotated among different circuit
court divisions. In 2022, judicial rotation occurred on August 1.

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Judge Wall’s calendar and the GAL exercised her right of substitution, the circuit
court scheduled a scheduling conference on Judge Marshall B. Murray’s calendar
for July 1, 2022, to find a trial date. Julia noted and the circuit court
acknowledged that Julia was not waiving her ten days to object to the substitution
of Judge Wall. However, Julia never objected.

¶5 On August 29, 2022, the State filed amended petitions to terminate
Julia’s parental rights for Nathan and Neil. The State served the amended
petitions on Julia’s attorney and mailed them to Julia. The State did not attempt to
personally serve Julia. In the amended petitions, the State added commission of a
serious felony against one of the person’s children under WIS. STAT.
§ 48.415(9m)(b)2. as a ground for the petitions after Julia was convicted of first-
degree child sexual assault, as a party to a crime, of Neil under WIS. STAT.
§ 948.02(1)(e).

¶6 At the hearing on the amended petitions on November 21, 2022,
Julia noted that she believed that personal service of the amended petitions was
required. The circuit court considered that Julia’s attorney had received the
amended petitions and that Julia had discussed them with her attorney, and found
service on Julia’s attorney sufficient. The circuit court then granted the State’s
motion for partial summary judgment on the commission of a serious felony
against one of the person’s children ground and found Julia unfit. At the
dispositional hearing on March 23, 2023, after considering all of the evidence
presented, the circuit court concluded that termination of Julia’s parental rights
was in the best interests of Nathan and Neil.

¶7 Julia now appeals the circuit court’s orders.

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DISCUSSION

¶8 The questions on appeal are whether the circuit court erred by
accepting the GAL’s substitution of Judge Wall and whether the circuit court had
personal jurisdiction over Julia. Julia argues that the circuit court erred by
accepting the GAL’s substitution request because the GAL had previously waived
the right to substitution and the GAL’s request did not comply with the
requirements set out in WIS. STAT. § 48.29(1). Julia also argues that the circuit
court lacked personal jurisdiction because Julia was never personally served a
summons, the petitions, and the amended petitions.4 We take each argument in
turn.

¶9 The GAL contends that Julia forfeited her argument regarding the
circuit court’s decision to accept the GAL’s substitution of Judge Wall because
Julia never raised any objections to the substitution before the circuit court. We
agree with the GAL.

¶10 “It is a fundamental principle of appellate review that issues must be
preserved at the circuit court. Issues that are not preserved at the circuit court,
even alleged constitutional errors, generally will not be considered on appeal.”
State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. This
principle serves a number of important objectives that promote efficiency and
fairness. Id., ¶¶11-12. It spurs attorneys to raise issues before the circuit court

4
Additionally, Julia argues for the first time in her reply brief that the circuit court erred
by not deciding whether it had personal jurisdiction over Julia sua sponte at the April 13, 2022
hearing. In support of her argument, Julia points to case law discussing subject matter
jurisdiction. We decline to address this argument. See Bilda v. County of Milwaukee, 2006 WI
App 57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661 (“It is a well-established rule that we do not
consider arguments raised for the first time in a reply brief.”).

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which “allows the [circuit] court to correct or avoid the alleged error in the first
place,” “encourages attorneys to diligently prepare for and conduct trials,” and
“prevents attorneys from … failing to object to an error for strategic reasons and
later claim[] that the error is grounds for reversal.” Id., ¶12. “The party who
raises an issue on appeal bears the burden of showing that the issue was raised
before the circuit court.” Id., ¶10.

¶11 Julia never objected to the GAL’s substitution of Judge Wall before
the circuit court despite confirming with the circuit court that she had the
opportunity to do so if she wished to.5 Julia also does not provide an explanation
for why this court should consider her argument despite her failure to preserve it.
We conclude that Julia forfeited her right to raise this argument on appeal.

¶12 Julia also argues that the circuit court lacked personal jurisdiction
over herself because the State failed to personally serve the summons and original
petitions on her. The State and the GAL maintain that the circuit court had
personal jurisdiction because Julia submitted to the circuit court’s jurisdiction. See
WIS. STAT. § 48.42(4)(a) (stating “a copy of the summons and petition shall be
served personally upon the parties …. Service of summons is not required if the
party submits to the jurisdiction of the court.”).

¶13 “Parental rights termination proceedings under Chapter 48 are civil
proceedings,” so the code of civil procedure applies “unless a ‘different procedure
is prescribed by statute or rule.’” Steven V. v. Kelley H., 2004 WI 47, ¶32, 271
Wis. 2d 1, 678 N.W.2d 856 (quoting WIS. STAT. § 801.01(2)). Challenges to a

5
Julia concedes in her brief that she neither objected to the GAL’s substitution request
nor requested a substitution herself.

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court’s personal jurisdiction can be forfeited. Studelska v. Avercamp, 178 Wis. 2d
457, 462, 504 N.W.2d 125 (Ct. App. 1993). See also WIS. STAT. § 48.297(2)
(“Defenses and objections based on defects in the institution of proceedings …
shall be raised not later than [ten] days after the plea hearing or be deemed
waived.”).

¶14 Julia claims that, at the November 21, 2022 hearing, she preserved
her argument that the circuit court lacked personal jurisdiction over her because
the summons and original petitions were not served on her. However, after
reviewing the record, we find that Julia never objected to the service of the
summons and petitions.

¶15 At the November 21, 2022 hearing, Julia’s attorney raised the issue
that Julia had not received the amended petitions. Counsel for the State responded
that the amended petitions were mailed but personal service was not attempted.
The GAL noted that the State’s service of the amended petitions on Julia’s
attorney was sufficient because she was the attorney of record in an ongoing civil
case. The circuit court then asked if anyone else wished to be heard on this issue.
Julia’s attorney responded with the following: “[f]or the record, I would just note
that [Julia] has not been served and I believe that service of the amended petition
is required.” Thus, it is clear that Julia preserved her argument regarding the
service of the amended petitions. However, she never raised any issues with the
service of the summons and original petitions at this hearing or at any prior or
subsequent hearings.

¶16 Julia fully participated in the circuit court proceedings by attending
the hearings with her attorney and by following the circuit court’s orders.
Additionally, Julia never objected to the service of the summons and original

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petitions. Therefore, Julia forfeited this argument on appeal. See Huebner, 235
Wis. 2d 486, ¶10.

¶17 Finally, Julia argues that the service of the amended petitions on
Julia’s attorney was improper service depriving the circuit court of personal
jurisdiction. The State and GAL argue that the service of the amended petitions
on Julia’s attorney sufficed under WIS. STAT. § 801.14(2).

¶18 Jurisdiction is determined at the time an action is commenced, so “it
is not necessary that an amended [petition] comply with subsequently imposed
jurisdictional requirements.” J.F. Ahern Co. v. Wisconsin State Bldg. Comm’n,
114 Wis. 2d 69, 80, 336 N.W.2d 679 (Ct. App. 1983). There is no requirement
that personal jurisdiction must be re-conferred when an amended petition is filed.
Bell v. Employers Mut. Cas. Co. of Des Moines, Iowa, 198 Wis. 2d 347, 362-63,
541 N.W.2d 824 (Ct. App. 1995) (“[T]here [is] no need to re-confer personal
jurisdiction … via the service of an amended summons upon the person[.]”).
Therefore, the State was not required to personally serve Julia the amended
petitions.

¶19 Furthermore, service of the amended petitions on Julia’s attorney
was appropriate. Under WIS. STAT. § 801.14(2), “[w]henever … service of
pleadings and other papers is required or permitted to be made upon a party
represented by an attorney, the service shall be made upon the attorney unless
service upon the party in person is ordered by the court.” (Emphasis added.)
“[T]he black-letter law is that once an action has begun and the attorney has
appeared in the action on behalf of a party, service of papers may be upon the
attorney.” Gangler v. Wisconsin Electric Power Company, 110 Wis. 2d 649, 657,
329 N.W.2d 186 (1983). Therefore, service of the amended petitions on Julia’s

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attorney instead of on Julia did not deprive the circuit court of personal
jurisdiction.

CONCLUSION

¶20 For the foregoing reasons, we conclude that Julia forfeited her
arguments regarding the GAL’s substitution of Judge Wall and the service of the
summons and original petitions. Additionally, we conclude that service of the
amended petitions on Julia’s attorney did not deprive the circuit court of personal
jurisdiction over Julia. Therefore, we affirm the orders of the circuit court.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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