COURT OF APPEALS DECISION DATED AND RELEASED November 16, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-3207
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE INTEREST OF
MEGHAN O.,
A Child Under the Age
of 18:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GEORGE C.,
Respondent-Appellant-Cross-Respondent,
MEGHAN O.,
Cross-Appellant.
APPEAL and CROSS-APPEAL
from orders of the circuit court for Dane County: SARAH B. O'BRIEN, Judge.
Affirmed.
Before Eich, C.J., Gartzke,
P.J., and Vergeront, J.
PER CURIAM. George C. appeals from an order finding his
daughter, Meghan O., to be a child in need of protection and services and from
an order denying his motion for postdispositional relief. Meghan cross-appeals. The issues on appeal are whether the trial
court lacked jurisdiction to hear the matter and whether George received
effective assistance from his trial counsel.
We conclude that he has waived the first issue and that he was not
entitled to pursue his ineffective assistance of counsel claim. Our conclusions make it unnecessary to
address the cross-appeal. We therefore
affirm.
Meghan was born to
George and Donna K. in California in 1988.
In April 1992, Donna brought Meghan to Wisconsin. In June 1992, the State filed a CHIPS
petition alleging that George had sexually assaulted Meghan in California.
George moved to dismiss,
arguing that Wisconsin lacked jurisdiction.
The trial court held otherwise, concluding that § 822.03(1)(b), Stats., conferred jurisdiction. That section of the Uniform Child Custody
Jurisdiction Act, as adopted in Wisconsin, provides that a Wisconsin court may
take jurisdiction of a child custody matter if it is in the best interest of
the child because the child and at least one contestant have a significant
connection with Wisconsin, and "there is available in this state
substantial evidence concerning the child's present or future care, protection,
training and personal relationships[.]"
George had counsel and
subsequently pled no contest to the petition.
The dispositional issues were then litigated and a dispositional order
entered. The child was placed with
Donna, subject to supervision, services and restrictions on George's access to
Meghan. George moved for
postdispositional relief, alleging ineffective assistance of counsel. The trial court denied relief and this
appeal ensued.
George waived his
jurisdictional challenge by pleading no contest to the petition. Section 822.03(1), Stats., establishes the grounds for personal as opposed to
subject matter jurisdiction. In
the Interest of A.E.H., 161 Wis.2d 277, 298, 468 N.W.2d 190, 198-99
(1991). Only the latter issue survives
a no contest plea. All others are
waived. See County of
Racine v. Smith, 122 Wis.2d 431, 434, 362 N.W.2d 439, 441 (Ct. App.
1984).[1] The trial court had subject matter
jurisdiction by virtue of the Wisconsin Constitution. A.E.H., 161 Wis.2d at 298, 468 N.W.2d at 198.[2]
George did not have the
right to pursue an ineffective assistance of counsel claim. There must first be a constitutional or
statutory right to counsel before there is a right to effective counsel. In the Interest of M.D.(S),
168 Wis.2d 995, 1004-05, 485 N.W.2d 52, 55 (1992). George does not claim a constitutional right to counsel. He claims the right to counsel under
§ 48.23(2)(b), Stats. In CHIPS proceedings a nonpetitioning parent
has the right to counsel only if the court places the child outside the
home. Section 48.23(2)(b). That did not occur here.[3] The right to counsel, and therefore to
effective counsel, never attached. We
therefore need not address whether George waived the issue when he stipulated
to an extension of the original disposition order.
By the Court.—
Orders affirmed. No costs to either
party.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Although Smith states without distinction that a plea waives all nonjurisdictional issues, earlier cases establish that only subject matter jurisdictional issues survive a plea. See Godard v. State, 55 Wis.2d 189, 190, 197 N.W.2d 811, 812-13 (1972).