Jackson Cnty. Dep't of Human Servs. v. J.K. (In re E.A.)

1

In re the termination of parental rights to E.A., a person under the age of 18:

Jackson County Department of Human Services, Petitioner-Respondent, v. J. K., Respondent-Appellant.

In re the termination of parental rights to D.L.A., a person under the age of 18:

Jackson County Department of Human Services, Petitioner-Respondent, v. I. J. R., RESPONDENT-APPELLANT.

Nos. 2023AP1495, 2023AP1496

Court of Appeals of Wisconsin, District IV

April 11, 2024

This opinion will not be published.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

APPEALS from orders of the circuit court for Jackson County Nos. 2022TP1 2022TP2 ANNA L. BECKER, Judge. Affirmed

KLOPPENBURG, P.J. ^[1]

¶1 This is a consolidated appeal of circuit court orders that terminated I.J.R.'s parental rights to her two biological children.^[2]I.J.R. argues that the circuit court erred by denying her request for a continuance of a summary judgment hearing to permit her to appear at the hearing in person. I.J.R. also argues that the court erred by granting partial summary judgment in favor of petitioner Jackson County Department of Human Services (the Department) in the grounds phase of the proceedings. Finally, I.J.R. argues that her trial counsel was ineffective for failing to support her summary judgment response with an affidavit executed by I.J.R. I reject I.J.R.'s arguments and affirm.

BACKGROUND

¶2 The following facts are undisputed for the purposes of this appeal. I.J.R. is the biological mother of two children D.L.A., born in August 2017, and E.A., born in May 2019. I.J.R. has substance abuse issues that have affected her ability to care for her children. The father of both children was M.A., who died in 2020.

¶3 In 2018, the Department initiated child in need of protection or services (CHIPS) proceedings on behalf of D.L.A. related to an incident in which I.J.R. was stopped by police while driving under the influence of methamphetamine with D.L.A. in the vehicle. In January 2019, D.L.A. was placed in the care of M.A. by dispositional order in the CHIPS case. After E.A was born in May 2019, the Department initiated CHIPS proceedings on behalf of E.A., who was ultimately also placed in the care of M.A. by dispositional order.

¶4 According to the Department, I.J.R. did not make progress toward overcoming her substance abuse issues, and she often refused to submit to drug testing and was under the influence of substances during visits with the children.

¶5 After M.A. died in 2020, the circuit court in the CHIPS proceedings placed both children in the care of one of M.A. 's relatives.

¶6 In June 2021, I.J.R. was incarcerated. While incarcerated, she had video visits with the children. On October 4, 2021, I.J.R. was released from incarceration and her whereabouts became unknown to the Department. On December 7, 2021, the circuit court issued revised dispositional orders in the two CHIPS cases suspending I.J.R. 's visits with the children until she met certain conditions, including commencing substance abuse counseling. I.J.R. did not appear at the hearing during which these orders were issued.

¶7 On February 14, 2022, I.J.R. was incarcerated again. During the period in which I.J.R. was out of custody prior to that date, she did not visit with the children.

¶8 In April 2022, the Department filed petitions seeking to terminate I.J.R. 's parental rights to both children. Involuntary termination of parental rights ("TPR") cases follow a "two-part statutory procedure." Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis.2d 1, 678 N.W.2d 856. "In the first, or 'grounds' phase," the petitioner must prove that "one or more of the statutorily enumerated grounds for termination of parental rights exist." Id., WIS. STAT. § 48.415. If so, the circuit court then proceeds to the second, or "dispositional" phase, in which it decides whether it is in the best interests of the child that the parent's rights be terminated. Steven K, 271 Wis.2d 1, ¶27; WIS. STAT. § 48.426(2).

¶9 The Department moved for partial summary judgment in the grounds phase of the TPR cases, arguing that there was no dispute that grounds for termination existed based on abandonment under WIS. STAT. § 48.415(1)(a)2. and on failure to assume parental responsibility under § 48.415(6). I.J.R.'s responsive materials opposing the summary judgment motion included witness deposition testimony transcripts, but did not include an affidavit executed by I.J.R.

¶10 At a status conference in September 2022, the circuit court set a summary judgment hearing date. I.J.R. indicated that she wished to appear at that hearing in person. At the ensuing hearing in November 2022, I.J.R. appeared by video rather than in person because she was incarcerated and no writ for her release had been filed. Trial counsel asked the court for a "short adjournment" to permit I.J.R. to appear in person, contending that summary judgment was an "important decision." The court denied the request, and the parties presented oral argument on the Department's summary judgment motion. At a subsequent hearing, the court granted partial summary judgment to the Department on both the abandonment and the failure to assume parental responsibility grounds for termination.

¶11 The circuit court proceeded to hold a dispositional hearing, at which it determined that termination of I.J.R.'s parental rights was in the children's best interests and terminated I.J.R.'s parental rights to both children.

¶12 I.J.R. moved for postdisposition relief, arguing, among other things, that her trial counsel was ineffective for failing to file an affidavit executed by I.J.R. in opposition to the Department's motion for summary judgment.^[3] After an evidentiary hearing, the circuit court denied I.J.R.'s postdisposition motion.

DISCUSSION

¶13 I.J.R. argues that the circuit court erred in three ways: by denying her request for a continuance of the summary judgment hearing so that she could appear in person, by granting the Department's motion for partial summary judgment, and by denying her motion for postdisposition relief on ineffective assistance of counsel grounds.

I. In-Person Appearance

¶14 As noted above, the circuit court denied I.J.R.'s request for a continuance when, because no writ for her release from custody was filed, she was unable to attend the November 2022 summary judgment hearing in person and instead appeared by video. According to I. J.R., the reason that no writ was filed is because the Department disobeyed an order to file a writ, and the circuit court violated I.J.R.'s due process rights by denying her request for a continuance under the circumstances. I.J.R. argues that she had a due process right to appear in person at the summary judgment hearing under the balancing test articulated in Mathews v. Eldridge, 424 U.S. 319 (1976), which considers the private interest affected by the challenged procedure, the risk of erroneous deprivation of that interest by the challenged procedure, and the countervailing government interest supporting the use of the challenged procedure. See Mathews, 424 U.S. at 335; see also Santosky v. Kramer, 455 U.S. 745, 754 (1982). I.J.R. also argues that she had a right to appear in person under WIS. STAT. § 885.60, which governs the use of videoconferencing technology in certain proceedings, and that, alternatively, the court erroneously exercised its discretion by permitting her appearance by video without considering the factors set forth in WIS. STAT. § 885.56, which sets forth general criteria to guide a court's decision whether to permit the use of videoconferencing technology.

¶15 I.J.R.'s arguments fail for multiple independent reasons. First, I.J.R.'s arguments depend at least in part on a premise without clear record support. As noted above, I.J.R. contends that the Department disobeyed a court order to file a writ for I.J.R.'s release. However, it is not clear from the record that the Department disobeyed any court order. When I.J.R. asked to appear in person at the summary judgment hearing, her trial counsel represented that I.J.R. would probably be in custody at a particular correctional institute on that date. The circuit court said, "[i]f we can confirm" I.J.R.'s custody status as of the hearing date, the Department's attorney should "do a writ" for I.J.R.'s release. To the extent that the court ordered the Department to file a writ, this order appears to be contingent on I.J.R.'s trial counsel following up with the Department to confirm I.J.R.'s custody status. I.J.R. fails to identify anything in the record showing whether her counsel did so; in fact, the record suggests that counsel did not, because counsel said at the subsequent summary judgment hearing that she made "the mistake of not following up" on the issue of the writ.

¶16 Setting aside the question of whether I.J.R.'s constitutional and statutory arguments have record support they are forfeited because they are made for the first time on appeal, and I decline to overlook this forfeiture. Before the circuit court, I.J.R. made none of the constitutional or statutory arguments that she now makes on appeal. Rather, I.J.R. contended only that she should be permitted to appear in person because summary judgment was an "important decision," citing no legal authority. "Arguments raised for the first time on appeal are generally deemed forfeited." Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis.2d 320, 786 N.W.2d 810; see also State v. Eugene W., 2002 WI.App. 54, ¶13, 251 Wis.2d 259, 641 N.W.2d 467 (to avoid forfeiture, "a party must raise an issue with sufficient prominence such that the [circuit] court understands that it is called upon to make a ruling"). More specifically, this court has stated that the arguments I.J.R. now advances may be...