Portage Cnty. v. D. A. (In re N.A.)

1

In the interest of N.A., a person under the age of 18:

Portage County, Petitioner-Respondent, v. D. A., Respondent-Appellant.

In the interest of D.A., a person under the age of 18:

Portage County, Petitioner-Respondent, v. D. A., Respondent-Appellant.

In the interest of N.A., a person under the age of 18:

Portage County, Petitioner-Respondent, v. D. A., Respondent-Appellant.

Nos. 2023AP1237, 2023AP1255, 2023AP1272

Court of Appeals of Wisconsin, District IV

May 9, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEALS from orders of the circuit court for Portage County Nos. 2021JC1, 2021JC2, 2021JC3 PATRICIA BAKER, Judge. Affirmed.

BLANCHARD, J. ^[1]

¶1 These consolidated appeals involve orders of the Portage County Circuit Court closing CHIPS cases for three minor children of David and Rachel.^[2] David argues that the court was obligated to vacate the closure orders on the ground that the court erroneously assumed jurisdiction over the CHIPS cases. David's jurisdictional challenge rests on the premise that the Waushara County Circuit Court, which presided over David and Rachel's divorce proceedings, was the only proper forum for the CHIPS proceedings, not the Portage County court. I conclude that David forfeited this argument because he waited until after several years of CHIPS proceedings-which included multiple hearings over the course of many months, such as a three-day fact-finding hearing-were closed before first challenging the court's jurisdiction to preside over the CHIPS proceedings. I also conclude that there is not a good reason now to overlook the forfeiture. I further conclude that, even beyond its forfeiture, the jurisdictional argument lacks merit. Accordingly, I affirm.

BACKGROUND

¶2 David and Rachel were married in 2010 and have three minor children. The parents and all three children lived together in Waushara County until an altercation between the parents in November 2019 led to Rachel and the youngest child leaving Wisconsin for a residence that the family owned in California.

¶3 In December 2019, David commenced a family law action in the Waushara County Circuit Court, pursuant to WIS. STAT. § 767.41 and pertinent provisions of WIS. STAT. ch. 822, to obtain a court order that required Rachel to return to Wisconsin with the youngest child. In January 2020, Rachel moved to Portage County, where she continuously resided after that.

¶4 Rachel filed a petition for separation in the Waushara County Circuit Court in June 2020. David filed a counterclaim that turned the Waushara County case into a divorce action.

¶5 In November 2020, the Waushara County Circuit Court in the divorce action accepted Rachel and David's temporary agreement on physical placement of their children, under which they were to share equal time with the children.

¶6 Physical placement of the children did not change until January 2021. That is when Portage County Health and Human Services ("Portage County human services") filed CHIPS petitions and a temporary physical custody request in Portage County Circuit Court. After a hearing under CHIPS procedures, the Portage County court ordered the children held in nonsecure custody at Rachel's Portage County residence. The CHIPS court order suspended physical placement with David and granted him supervised visitation at the discretion of Portage County human services.^[3]

¶7 The January 2021 CHIPS petitions and temporary physical custody request were the result of a social services investigation stemming from an October 2020 Child Protective Services report alleging that David physically abused the children in Waushara County. See WIS. STAT. § 48.24. The investigation was a collaboration between Portage County human services and the Waushara County Health and Human Services Department. The Waushara County department closed its child protection investigation on the ground that it could not substantiate that physical abuse had occurred in David's residence in Waushara County.

¶8 In May 2021, after a three-day fact-finding hearing on the CHIPS petitions, the Portage County court found that each child was in need of protection and services pursuant to some combination of the following grounds: WIS. STAT §48.13(10) (neglect), (10m) (substantial risk of neglect), and (11) (suffering emotional damage).

¶9 In September 2021, after additional hearings, the Portage County court entered a dispositional order. This continued the placement of the children with Rachel, again with David's visitation to be at the discretion of Portage County, and ordered that supervision by Portage County human services continue for one year.^[4]

¶10 In December 2021, the Waushara County court granted the parties a divorce. At that time, Rachel continued to live in Portage County and David lived in Waushara County. The divorce judgment made explicitly clear that its provisions regarding custody and placement of the children were "subordinate to" orders rendered by the Portage County court in the CHIPS proceedings.

¶11 In July 2022, Portage County human services filed in the Portage County court a request for closure of the CHIPS case pursuant to WIS. STAT. § 48.355(4g), which the circuit court granted in September 2022. The order granted Rachel sole legal custody and physical placement of the children and placed under Rachel's discretion David's supervised visitation with the children at a supervised visitation facility. The case closure order resulted in a modification to the court order entered in the Waushara County divorce action regarding custody and placement of the children. See § 48.355(4g)(e) (case closure orders "may modify a preexisting order of a court exercising jurisdiction in an action affecting the family and shall remain in effect until modified or terminated by a court exercising that jurisdiction").

¶12 In February 2023, seven months after the case closings, David filed the motion for postdisposition relief, pursuant to WIS. STAT. § 809.30(2)(i), that is at issue in this appeal. He argued that "the case closing orders in these CHIPS cases must be vacated for lack of jurisdiction and the matter [must be] transferred to" the Waushara County court in the divorce action. After five months of no action on the motion by the circuit court, an order denying the motion was entered. See § 809.30(2)(i) (if a circuit court does not rule on a motion for postdisposition relief within 60 days of its filing, "the motion is considered to be denied"). David appeals.

DISCUSSION

I. Forfeiture

¶13 David has forfeited his jurisdictional argument because he failed to timely raise it, and there appear to be no sound reasons to overlook the extreme forfeiture. The record reflects that David first raised the jurisdictional argument in his February 2023 postdisposition motion, more than two years after the CHIPS petitions were filed and after many hearings. This came far too late to preserve the issue. See Tina B. v. Richard H., 2014 WI.App. 123, ¶38, 359 Wis.2d 204, 857 N.W.2d 432 (certain arguments are not preserved when raised for the first time in a postdisposition motion); State v. Huebner, 2000 WI 59, ¶10, 235 Wis.2d 486, 611 N.W.2d 727 (arguments not preserved in the circuit court generally not considered on appeal).

¶14 I discuss separately below the nature of the jurisdictional argument, which is purportedly based on State ex rel. Rickli v. County Ct. for Dane Cnty., 21 Wis.2d 89, 123 N.W.2d 908 (1963), and a "judge shopping" concept. At no point prior to his motion for postdisposition relief did David present such an argument to the Portage County Circuit Court or purport to connect such an argument to the court's exercise of discretion in assuming jurisdiction over the CHIPS cases.^[5] The Portage County court presided over CHIPS proceedings and issued multiple final orders from January 2021 through September 2022 without being presented with David's current jurisdictional challenge. A potential challenge to the jurisdiction of the court over the matter at issue is of course a critical threshold concept for a party to raise in any litigation-not least in litigation that directly affects the lives of children.

¶15 The rule of forfeiture is "a rule of judicial administration" and "a reviewing court has the inherent authority to disregard" a forfeiture and "address the merits of an unpreserved issue in exceptional cases." Village of Trempealeau v. Mikrut, 2004 WI 79, ¶17, 273 Wis.2d 76, 681 N.W.2d 190. It is true that neither party in this appeal recognizes the extreme forfeiture here. But nothing in David's current arguments, nor that I discern from the record, would support the contention that this court should exercise its discretion to disregard the forfeiture, and numerous factors weigh against it. See Town of Mentor v. State, 2021 WI.App. 85, ¶48, 400 Wis.2d 138, 968 N.W.2d 716. It is sufficient to point out three. First, the children here have already been the subject of voluminous litigation in two protracted legal actions. Second, David fails to identify any reason that he could not have raised the same challenge to the court's jurisdiction at the outset of the CHIPS proceedings, and no reason is evident from the briefs on appeal or the record. Third, as I now explain, the jurisdictional argument has no merit.

II. Assumption of Jurisdiction by Portage County CHIPS Court

¶16 The parties do not dispute that both the Portage County court in the CHIPS actions and the Waushara County court in the divorce action had the statutory authority to exercise concurrent jurisdiction over the custody and placement of the children. See WIS. STAT. §48.13 (jurisdiction over children allegedly in need of protection or services); WIS. STAT. §48.15 (permitting...