N. C. v. R. G.

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.
November 20, 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 No. 2024AP996 Cir. Ct. No. 2023TP17

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

N.C.,

PLAINTIFF-APPELLANT,

V.

R.G.,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
BRAD SCHIMEL, Judge. Affirmed.
No. 2024AP996

¶1 GROGAN, J.1 N.C. appeals pro se from an order dismissing her
petition seeking to terminate the parental rights of R.G., the biological father of
N.C.’s child. The circuit court dismissed the petition after a jury found grounds
did not exist to terminate R.G.’s parental rights. N.C. contends her appointed trial
counsel provided ineffective assistance and requests a new grounds trial. This
court affirms.

I. BACKGROUND

¶2 In February 2019, N.C. and R.G. had a nonmarital child, Elle. 2 In
July 2023, N.C., pro se, filed a petition seeking to terminate R.G.’s parental rights,
alleging he abandoned Elle. N.C. also alleged that Elle witnessed domestic abuse
incidents by R.G. toward N.C. After the circuit court appointed an attorney to
represent N.C., an amended termination of parental rights (TPR) petition was filed
alleging R.G. abandoned Elle, failed to assume parental responsibility, and did not
have a substantial relationship with Elle. The petition also advised that R.G. was
incarcerated.

¶3 R.G. contested the petition and requested a jury trial on the grounds
phase. At the jury trial,3 N.C. argued two grounds existed to terminate R.G.’s
parental rights: (1) abandonment; and (2) failure to assume parental responsibility.
On abandonment, the jury found R.G. had “good cause” both for not

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
Elle is a pseudonym. See WIS. STAT. RULE 809.81(8).
3
This information is gleaned from the two verdict forms in the Record. There are no
transcripts in the Record for this court to review.

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No. 2024AP996

communicating directly with Elle and for not communicating with N.C. about
Elle, and on failure to assume parental responsibility, the jury found R.G. did not
do so. As a result, the circuit court dismissed the petition.

¶4 After N.C. filed her notice of appeal, she did not file a motion
requesting we remand to the circuit court to address her claim that she received
ineffective assistance of counsel. See WIS. STAT. § 809.107(6)(am).4

II. DISCUSSION

¶5 In her appellate brief, N.C. argues that her appointed trial counsel
was ineffective because he failed to call her husband as a witness and failed to
present evidence from domestic violence police reports to the jury.5 She believes
she would have won her case if her counsel had done so. R.G. asserts that N.C.’s
claims lack merit, she failed to cite legal authority, and she failed to preserve her

4
WISCONSIN STAT. § 809.107(6)(am), as relevant, provides:

Motion for remand. If the appellant intends to appeal on any
ground that may require postjudgment fact-finding, the appellant
shall file a motion in the court of appeals, within 15 days after
the filing of the record on appeal, raising the issue and requesting
that the court of appeals retain jurisdiction over the appeal and
remand to the circuit court to hear and decide the issue. If the
appellant is not represented by counsel, the appellant shall file
any motion under this paragraph within 45 days after the filing
of the record on appeal. The appellant’s counsel or, if the
appellant is not represented by counsel, the appellant, shall file
an affidavit in support of the motion stating with specificity the
reasons that postjudgment fact-finding is necessary.
5
Her pro se brief argues first that her appointed trial counsel was “negligent” and next
that he was ineffective.

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No. 2024AP996

claims by “bypass[ing]” the circuit court, which is where an ineffective assistance
claim must be litigated.6

¶6 An appellant cannot raise an ineffective assistance of trial counsel
claim for the first time on appeal. See State ex rel. Rothering v. McCaughtry, 205
Wis. 2d 675, 677-78, 556 N.W.2d 136 (Ct. App. 1996) (“Claims of ineffective
trial counsel … cannot be reviewed on appeal absent a postconviction motion in
the trial court.”); State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct.
App. 1979) (“it is a prerequisite to a claim of ineffective representation on appeal
to preserve the testimony of trial counsel”). “A Machner hearing is a prerequisite
for consideration of an ineffective assistance claim.” State v. Sholar, 2018 WI 53,
¶50, 381 Wis. 2d 560, 912 N.W.2d 89.

¶7 In a TPR appeal, WIS. STAT. § 809.107 sets forth the specific
procedure governing claims such as ineffective assistance of counsel that require
postjudgment factfinding. Specifically, it requires the appellant to file a motion
with this court asking that we remand for factfinding. Sec. 809.107(6)(am).
N.C.’s ineffective assistance claim requires factfinding by the circuit court, and
therefore, N.C.’s claim fails because she did not comply with this statutory
requirement.

¶8 Because N.C. failed to file a motion for remand so that her
ineffective assistance claim could be addressed in the circuit court, this court

6
R.G. also argues that because N.C. was not the “at-risk” parent in the TPR proceedings,
she has no ineffective assistance claim at all. It is not necessary for this court to address this
because N.C.’s failure to raise her claim in the circuit court disposes of this appeal. See State v.
Lickes, 2021 WI 60, ¶33 n.10, 397 Wis. 2d 586, 960 N.W.2d 855 (“Issues that are not dispositive
need not be addressed.” (quoted source omitted)); Martinez v. Rullman, 2023 WI App 30, ¶5,
408 Wis. 2d 503, 992 N.W.2d 853 (this court decides cases on the narrowest possible grounds).

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No. 2024AP996

cannot address it. Accordingly, this court cannot grant the relief she requests and
affirms the order dismissing the petition.7

By the Court.—Order affirmed.

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

7
This court also notes that N.C. failed to file a Reply brief, which this court treats as a
concession to the arguments made in Respondent’s brief. See Apple Hill Farms Dev., LLP v.
Price, 2012 WI App 69, ¶14, 342 Wis. 2d 162, 816 N.W.2d 914 (failure to file a reply brief
deemed a concession to respondent’s argument).

5