Jackson County DHS v. I. J. R.

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 11, 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.
2023AP1495 Cir. Ct. Nos. 2022TP1
2022TP2
2023AP1496
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

NO. 2023AP1495

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.

I. J. R.,

RESPONDENT-APPELLANT.

NO. 2023AP1496

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,
Nos. 2023AP1495
2023AP1496

V.

I. J. R.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Jackson County:
ANNA L. BECKER, Judge. Affirmed.

¶1 KLOPPENBURG, P.J.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

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
These appeals were consolidated for briefing and disposition by an order dated
September 6, 2023, pursuant to WIS. STAT. RULE 809.10(3).

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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.

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¶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 V., 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

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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.

3
I.J.R. also argued in her postdisposition motion that her trial counsel was ineffective for
failing to move to dismiss the TPR petitions on untimely service grounds. The circuit court
rejected this argument, and I.J.R. does not renew it on appeal. Accordingly, I address it no
further.

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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

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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 forfeited if not preserved. See State v.
Klapps, 2021 WI App 5, ¶29, 395 Wis. 2d 743, 954 N.W.2d 38 (forfeiture may
apply to “a claimed structural constitutional violation”); State v. Atwater, 2021 WI
App 16, ¶23, 396 Wis. 2d 535, 958 N.W.2d 533 (forfeiture may apply to a claimed
violation of the videoconferencing rules set forth in WIS. STAT. ch. 885).

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¶17 The forfeiture rule is meant to encourage diligence by attorneys and
to ensure that “both parties and the circuit court” are given “notice of the issue and
a fair opportunity to address the objection.” State v. Ndina, 2009 WI 21, ¶30, 315
Wis. 2d 653, 761 N.W.2d 612. I.J.R.’s cursory argument in support of her
continuance request gave no notice to the circuit court or to the Department of the
constitutional and statutory issues she now raises on appeal, and accordingly those
issues were not addressed in the circuit court. Generally, this court does not
“blindside [circuit] courts with reversals based on theories which did not originate
in their forum.” State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App.
1995).

¶18 Forfeiture is a rule of judicial administration, and this court has
discretion to overlook forfeiture in appropriate cases. See State v. Kaczmarski,
2009 WI App 117, ¶9, 320 Wis. 2d 811, 772 N.W.2d 702. I.J.R. offers no reason
why I should do so here. I.J.R. contends that her trial counsel was “surprised” by
I.J.R.’s absence at the summary judgment hearing, perhaps suggesting that counsel
learned that no writ had been filed too late to prepare an argument in favor of a
continuance and cannot be faulted for any lack of diligence. However, trial
counsel represented at the summary judgment hearing that she had learned “a
couple days ago” that no writ had been filed. I.J.R. does not explain why a legal
argument could not have been prepared in that time.

¶19 Having concluded that I.J.R.’s constitutional and statutory
arguments fail on forfeiture grounds, I now address her argument that the circuit
court erroneously exercised its discretion by denying her continuance request. “A
circuit court properly exercises its discretion when it considers the relevant facts,
applies the correct law, and articulates a reasonable basis for its decision.”
National Auto Truckstops, Inc. v. DOT, 2003 WI 95, ¶12, 263 Wis. 2d 649, 665

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N.W.2d 198. This court “will search the record for reasons to sustain the [circuit]
court’s exercise of discretion.” Lofthus v. Lofthus, 2004 WI App 65, ¶21, 270
Wis. 2d 515, 678 N.W.2d 393.

¶20 According to I.J.R., the circuit court erroneously exercised its
discretion under WIS. STAT. § 885.56, which provides a list of factors that the
circuit court “may consider” when determining “whether to permit the use of
videoconferencing technology.”4 Sec. 885.56(1). While I.J.R. did not raise these
statutory factors in the circuit court, I assume without deciding that § 885.56
applies and conclude that I.J.R. has not shown that the court erroneously exercised
its discretion.5 The circuit court articulated a reasonable basis for its decision, and,
even though I.J.R. did not cite § 885.56, the court addressed factors listed in that
statute.

¶21 For example, one of the factors considers whether the use of
videoconferencing would “undermine the integrity, fairness, and effectiveness of
the proceeding.” WIS. STAT. § 885.56(1)(i). The circuit court said that I.J.R.’s
physical presence was not crucial because the summary judgment hearing would
involve no witness testimony and would instead be a “paper review” of the

4
As noted above, I.J.R. also argues that she was entitled to be physically present under
WIS. STAT. § 885.60(2)(a), which provides that a parent in a TPR proceeding “is entitled to be
physically present in the courtroom at all trials and sentencing or dispositional hearings.”
Sec 885.60(2)(a). I.J.R. asserts that this statute applies because summary judgment “replaces a
trial.” Although I reject this statutory argument for other reasons explained in the text, I also
reject it because I.J.R. fails to explain, with citation to supporting legal authority, her assertion
that the reference in § 885.60(2)(a) to “all trials and sentencing or dispositional hearings” applies
to summary judgment hearings.
5
The Department argues that WIS. STAT. § 885.56 does not apply, and instead the circuit
court’s decision should be evaluated under WIS. STAT. § 807.13(1), which provides that “[t]he
court may permit any oral argument by telephone” in civil proceedings. Because I assume
without deciding that § 885.56 applies, I do not address this dispute.

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parties’ submissions; essentially, the court determined that, because the hearing
involved only legal arguments, it could still be fair and effective if I.J.R. appeared
by video. I.J.R. appears to challenge this determination, arguing that the
circumstances “deterred attorney-client interaction” because I.J.R.’s only option
for communicating with her attorney during the proceeding was “to bring the
hearing to a halt by calling aloud or motioning her arms.” However, these
communication concerns were never brought to the court’s attention, and I.J.R.
cites nothing in the record to show that she had no other method of communicating
with her attorney during the hearing. In any event, the fact that I.J.R. disagrees
that the proceedings could be fair and effective without her physical presence does
not mean that the court erroneously exercised its discretion.

¶22 Other factors listed in WIS. STAT. § 885.56 include “[t]he
convenience of the parties” and “[a]ny other factors” that may be relevant.
Sec. 885.56(1)(c), (L). The record shows that all parties were present and ready to
proceed with the summary judgment hearing at the time that I.J.R. made her
continuance request; accordingly, granting the request would have resulted in lost
time and resources of the parties and the circuit court. Moreover, granting the
continuance would have delayed the TPR proceedings, contrary to the strong
policy interest in “timely decisions about the fitness of parents” in such cases.
Waukesha Cnty. v. Steven H., 2000 WI 28, ¶5, 233 Wis. 2d 344, 607 N.W.2d 607,
modified on other grounds by St. Croix Cnty. DHHS v. Michael D., 2016 WI 35,
368 Wis. 2d 170, 880 N.W.2d 107.

¶23 In sum, I.J.R. fails to show that the circuit court erred by denying her
request for a continuance to appear in person at the summary judgment hearing.

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II. Summary Judgment

¶24 In TPR proceedings, partial summary judgment may be granted to
resolve the grounds phase. See Steven V., 271 Wis. 2d 1, ¶¶32, 44. Summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶25 An appellate court reviews the circuit court’s grant of summary
judgment de novo, applying the same methodology as the circuit court. State v.
Bobby G., 2007 WI 77, ¶36, 301 Wis. 2d 531, 734 N.W.2d 81. In evaluating a
motion for summary judgment, a court “examine[s] the moving party’s
submissions to determine whether they establish a prima facie case for summary
judgment.” Gemini Cap. Grp., LLC v. Jones, 2017 WI App 77, ¶12, 378 Wis. 2d
614, 904 N.W.2d 131. If so, the court then examines the opposing party’s
submissions “to determine whether a genuine issue exists as to any material fact.”
Id.

¶26 As a preliminary matter, I.J.R. notes that partial summary judgment
is generally disfavored in TPR cases where, as here, the asserted grounds are fact
intensive. See Steven V., 271 Wis. 2d 1, ¶36 (“Summary judgment will ordinarily
be inappropriate in TPR cases premised on … fact-intensive grounds” such as
abandonment and failure to assume parental responsibility). However, our
supreme court has stated that summary judgment on such grounds is not
categorically inappropriate, and that the propriety of summary judgment is
determined on a case-by-case basis under the applicable summary judgment

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methodology. See Bobby G., 301 Wis. 2d 531, ¶40; Steven V., 271 Wis. 2d 1,
¶37 n.4.

¶27 I.J.R. argues that the circuit court erroneously granted summary
judgment to the Department on both the abandonment ground under WIS. STAT.
§ 48.415(1)(a)2. and the failure to assume parental responsibility ground under
WIS. STAT. § 48.415(6). Because I conclude that summary judgment on the
abandonment ground was appropriate, I do not address the failure to assume
parental responsibility ground. See Steven V., 271 Wis. 2d 1, ¶24 (only one
statutory ground for termination need be proven); Barrows v. American Fam. Ins.
Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An
appellate court need not address every issue raised by the parties when one issue is
dispositive.”).

¶28 The ground of abandonment under WIS. STAT. § 48.415(1)(a)2.
requires the Department to show that “the child has been placed, or continued in a
placement, outside the parent’s home by a court order containing the notice
required by [WIS. STAT. §] 48.356(2) or [WIS. STAT. §] 938.356(2) and the parent
has failed to visit or communicate with the child for a period of 3 months or
longer.” See § 48.415(1)(a)2. “Abandonment is not established” if I.J.R. proves
the affirmative defense of good cause. See § 48.415(1)(c); State v. James P., 2005
WI 80, ¶46, 281 Wis. 2d 685, 698 N.W.2d 95. I.J.R. argues that there are genuine
issues of material fact as to the Department’s prima facie case and as to her good-
cause defense.

The Department’s Prima Facie Case

¶29 The Department alleges an abandonment period of approximately
four and a half months, between October 4, 2021 (when I.J.R. was released from

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incarceration) and February 14, 2022 (when I.J.R. was taken back into custody).
According to the Department’s affidavits in support of summary judgment and
I.J.R.’s concessions during the summary judgment hearing, during that period, the
children were placed outside of I.J.R.’s home by court orders containing the
required statutory notices, and I.J.R. failed to visit or communicate with the
children.6

¶30 I.J.R. argues that there is a genuine issue of material fact as to
whether the Department has shown an abandonment period of three months or
longer, pointing to WIS. STAT. § 48.415(1)(b). Under that statute, an abandonment
period “shall not include any periods during which the parent has been prohibited
by judicial order from visiting or communicating with the child.”
Sec. 48.415(1)(b). As noted above, the December 7, 2021 dispositional orders in
the CHIPS cases suspended I.J.R.’s visits until she met certain conditions,
including commencing substance abuse counseling. I.J.R. contends that, under
§ 48.415(1)(b), the time while the December 7, 2021 orders were in effect cannot
count toward the abandonment period, and so the Department cannot show an
abandonment period of three months or longer between October 4, 2021, and
February 14, 2022.

¶31 I.J.R.’s argument fails under Carla B. v. Timothy N., 228 Wis. 2d
695, 705, 598 N.W.2d 924 (Ct. App. 1999), in which this court determined that the

6
I.J.R. argues that there are factual disputes concerning a separate purported
abandonment period between December 22, 2020, and June 9, 2021. I.J.R.’s arguments are in
response to the circuit court’s determination that an additional abandonment period occurred
between those dates. The Department did not argue in support of this additional abandonment
period before the court during summary judgment proceedings, nor does the Department do so on
appeal. Because my review of a grant of summary judgment is de novo, I address only the
abandonment period that the Department identifies on appeal.

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limitation set forth in WIS. STAT. § 48.415(1)(b) does not apply if the court order
“prohibits visitation but does not prohibit communication.” I.J.R. acknowledges
that her argument is in conflict with Carla B., and she attempts to overcome that
case in two ways.

¶32 First, I.J.R. contends that Carla B.’s interpretation of WIS. STAT.
§ 48.415(1)(b) is “contrary to the plain language of the statute.” This argument is
unavailing because this court is bound by its published precedents. See In re
Court of Appeals of Wis., 82 Wis. 2d 369, 371, 263 N.W.2d 149 (1978).

¶33 Second, I.J.R. contends that there is a factual dispute as to whether
the December 7, 2021 orders prohibited not only visits, but also communication.
I.J.R. argues that she believed that these orders barred her from “communicating
with her children,” and this belief “is reasonable given that a parent in [her] shoes
would likely respond cautiously to it, fearing that a misstep would risk further
repercussions.”

¶34 This argument fails for at least the following reasons. First, I.J.R.
cites nothing in the record to support her assertion that she believed that the orders
barred both visits and communication. Setting aside this lack of record support,
I.J.R.’s argument also fails because I.J.R.’s purported subjective interpretation of
the orders is not legally significant. This court interprets court orders as it does
“other written instruments.” Walt v. City of Brookfield, 2015 WI App 3, ¶19, 359
Wis. 2d 541, 859 N.W.2d 115. The inquiry begins with the plain language of the
order, and only considers extrinsic evidence if that language is ambiguous. Id.
(citing BV/B1, LLC v. InvestorsBank, 2010 WI App 152, ¶25, 330 Wis. 2d 462,
792 N.W.2d 622). The December 7, 2021 orders state that “[v]isits between
[I.J.R.] and her child shall be suspended” until certain conditions are met, and they

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place no express restrictions on communication. I.J.R. contends that these orders
are “reasonably susceptible to multiple meanings,” but she fails to identify any
language in the orders that could be reasonably construed to restrict
communication.

¶35 In sum, I.J.R. fails to show that there is a genuine issue of material
fact as to whether the Department proved a prima facie case of abandonment
under WIS. STAT. § 48.415(1)(a)2.

I.J.R.’s Good-Cause Defense

¶36 I.J.R.’s affirmative defense of good cause requires her to show “all
of the following”: (1) that she had “good cause for having failed to visit” the
children during the alleged abandonment period; (2) that she had “good cause for
having failed to communicate with” the children during that period; and (3) if she
proves good cause for failing to communicate with the children during that period,
that she either communicated about the children with their foster custodian or the
Department, or had good cause for failing to do so. WIS. STAT. § 48.415(1)(c).

¶37 I.J.R. bears the overall burden of proof on her good-cause defense,
and so bears the initial burden to identify evidence in the summary judgment
materials sufficient to support it. See Transportation Ins. Co. v. Hunzinger
Const. Co., 179 Wis. 2d 281, 290, 507 N.W.2d 136 (Ct. App. 1993) (“The
ultimate burden … of demonstrating that there is sufficient evidence … to go to
trial at all (in the case of a motion for summary judgment) is on the party that has
the burden of proof on the issue that is the object of the motion.”).

¶38 As to the first element, whether I.J.R. had good cause for failing to
visit the children, I.J.R. fails to make any argument that she presented evidence

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showing that there is a genuine dispute of material fact. Although, as discussed
above, the December 7, 2021 orders suspended her visits with the children, I.J.R.
does not argue that these orders—or any other evidence in the summary judgment
materials—supports a defense that she had good cause for failing to visit the
children.7

¶39 I.J.R. also fails to show that there is a genuine dispute of material
fact as to the second element, whether I.J.R. had good cause for failing to
communicate with the children. The children were two and four years old during
the abandonment period. I.J.R. contends that whether they were “too young to
meaningfully communicate with” her during the alleged abandonment period is a
“debatable point that should have been submitted to a factfinder.” But I.J.R. does
not offer any argument in support of the premise that the children were too young
to communicate with her meaningfully during the alleged abandonment period,
nor does she support this undeveloped argument by reference to any specific
evidence regarding either child’s communication skills during that time.

¶40 Finally, I.J.R. fails to show that there is a genuine dispute of material
fact as to the third element, whether she either communicated about the children
with their foster custodian or the Department or had good cause for failing to do
so. I.J.R. points to deposition testimony by I.J.R.’s social worker that I.J.R.
“would ask questions about her children’s health, doctor’s visits, and schooling.”
However, the social worker’s testimony was that she discussed these topics with

7
In I.J.R.’s affidavit in support of her postdisposition motion, she avers that she was
unaware of the December 7, 2021 orders, presumably because she failed to appear at the hearing
during which these orders were issued. She does not rely on this averment to support her good-
cause defense. Moreover, because I.J.R.’s postdisposition affidavit is not part of the summary
judgment materials, I do not consider it in my review of the summary judgment motion.

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I.J.R. “[w]hen meeting with [I.J.R.] at the jail.” I.J.R. was out of custody during
the alleged abandonment period. I.J.R. identifies no evidence that she
communicated with the social worker “about the children” during the alleged
abandonment period, nor does she identify any other evidence that would establish
a fact question as to the third good-cause element.

¶41 In sum, I.J.R. fails to show that there is a genuine issue of material
fact as to the good cause elements that she must prove. Accordingly, summary
judgment in favor of the Department on the abandonment ground was appropriate.

III. Ineffective Assistance of Counsel

¶42 A parent in a TPR proceeding has the right to effective assistance of
counsel. Oneida Cnty. DSS v. Nicole W., 2007 WI 30, ¶33, 299 Wis. 2d 637, 728
N.W.2d 652. A parent’s ineffective assistance of counsel claim is analyzed under
the test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Nicole W.,
299 Wis. 2d 637, ¶33. Under that test, to establish ineffective assistance, a
defendant must prove both “that counsel’s performance was deficient,” and that
“the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
To show prejudice, the defendant must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id.

¶43 “A claim of ineffective assistance is reviewed under a mixed
standard: the circuit court’s findings of facts will not be overturned unless clearly
erroneous, but considerations of whether counsel provided deficient performance
and whether the defendant suffered prejudice as a result are questions of law”
reviewed de novo. State v. Quigley, 2016 WI App 53, ¶35, 370 Wis. 2d 702, 883
N.W.2d 139.

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¶44 As noted above, I.J.R. argued in her motion for postdisposition relief
that her trial counsel was ineffective for failing to support her summary judgment
response with an affidavit executed by I.J.R. She filed such an affidavit in support
of her postdisposition motion. Many of the averments in this affidavit relate to
times other than the alleged abandonment period, and others are general and
undated; for example, I.J.R. avers that she “had phone conversations with her
children “during 2021 and 2022 … although I cannot recall the exact dates,” and
that “I tried many times to call” the social worker “to arrange services and visits”
but “[s]ome of my calls were not returned.”

¶45 At the hearing on I.J.R.’s postdisposition motion, I.J.R.’s trial
counsel testified that she was “not sure” why she did not prepare an affidavit for
I.J.R., but that she believed she “had really strong” deposition testimony from
other witnesses, which she instead used as evidence to support I.J.R.’s summary
judgment response. Counsel testified that, in hindsight, she should have supported
I.J.R.’s summary judgment response with an affidavit executed by I.J.R., and the
lack of such an affidavit failed to give I.J.R. “a chance to have her words made
part of the record.” When asked what specific facts were missing from the
summary judgment response due to the lack of an affidavit from I.J.R., counsel
testified that she was “not sure.”

¶46 In the circuit court’s oral ruling denying the postdisposition motion,
the court determined that trial counsel did not perform deficiently by failing to file
an affidavit executed by I.J.R., saying that counsel “put forth the same
information” that an affidavit from I.J.R. would have included, but in the
“different format” of deposition testimony from other witnesses. The court also
determined that I.J.R. was not prejudiced by any alleged deficiency, because the
averments in I.J.R.’s postdisposition affidavit were “vague,” did not raise any

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genuine issue of material fact, and would not have helped I.J.R. to survive
summary judgment.

¶47 On appeal, I.J.R. renews her arguments. I do not address whether
trial counsel’s performance was deficient, because I conclude that I.J.R. has failed
to show prejudice.8 See State v. Elm, 201 Wis. 2d 452, 462, 549 N.W.2d 471 (Ct.
App. 1996) (“If the defendant fails to adequately show one prong of the Strickland
test, we need not address the second.”). To show prejudice, I.J.R. must show that
there is a reasonable probability that the circuit court would not have granted the
summary judgment motion had trial counsel filed a responsive affidavit executed
by I.J.R. I need not address I.J.R.’s arguments pertaining to the failure to assume
parental responsibility ground because I.J.R. fails to prove that there is a
reasonable probability that her affidavit would have helped her survive summary
judgment on the abandonment ground.

¶48 In I.J.R.’s appellant’s brief, she asserts that her “affidavit raises
genuine factual issues,” and proceeds to list many of the averments in her
affidavit. However, I.J.R.’s brief fails to explain how any of these averments raise
a genuine dispute as to any element of the Department’s prima facie case for
abandonment, or I.J.R.’s good-cause defense, as to the alleged abandonment
period at issue. Moreover, it not immediately apparent how these averments might

8
I nevertheless briefly address one of I.J.R.’s arguments as to deficiency. I.J.R.
contends that whether I.J.R.’s trial counsel was deficient depends on whether “a reasonable
probability exists that filing an affidavit would have defeated the motion.” This argument
conflates the two Strickland prongs. Strickland v. Washington, 466 U.S. 668 (1984).
Demonstrating deficient performance does not depend on whether the performance resulted in
prejudice; rather, it depends on whether “counsel’s representation fell below an objective
standard of reasonableness considering all the circumstances.” State v. Dalton, 2018 WI 85, ¶34,
383 Wis. 2d 147, 914 N.W.2d 120.

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Nos. 2023AP1495
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have helped her survive summary judgment. For example, as noted above, I.J.R.
avers that she had phone conversations with the children “during 2021 and 2022”
although she “cannot recall the exact dates.” But this is not evidence that I.J.R.
communicated with the children during the alleged abandonment period of
October 4, 2021, through February 14, 2022, particularly in light of I.J.R.’s
concession during summary judgment oral arguments that she did not
communicate with the children during that time.

¶49 In I.J.R.’s reply brief, she makes arguments to explain how her
affidavit supports her good-cause defense. This court generally does not address
arguments made for the first time in a reply brief, because the opposing party has
no opportunity to respond. See A.O. Smith Corp. v. Allstate Ins. Cos., 222
Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). Even had I.J.R.’s arguments
been timely made, they fail to clarify how the averments in I.J.R.’s affidavit could
raise a genuine issue of material fact. For example, I.J.R. contends that her
averment that “some of her calls” to the social worker “were not returned” creates
a genuine dispute regarding “whether good cause exists for her failure to visit with
her children.” However, I.J.R. fails to point to any evidence that I.J.R. made any
unreturned calls to the social worker during the alleged abandonment period.

¶50 Because I.J.R. has failed to prove that she was prejudiced by trial
counsel’s allegedly deficient performance, I reject her ineffective assistance of
counsel claim.

CONCLUSION

¶51 For all of these reasons, I affirm the circuit court’s orders
terminating I.J.R.’s parental rights.

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Nos. 2023AP1495
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By the Court.—Orders affirmed.

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

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