Brown County v. N.H., 2024AP1991-1993, 4/2/25, District III (1-judge decision, ineligible for publication); case activity
Although the County erred by listing the wrong date in a published notice, COA affirms given the court’s factual findings that the respondent was served by mail.
In this TPR, the County was attempting to terminate the rights of a person known to be homeless, a fact which complicated its attempts to achieve service. Following unsuccessful attempts to serve “Nathaniel” personally, the County mailed notice to a homeless shelter he was “last known to be residing.” (¶3). That notice contained the correct date for an upcoming initial hearing. (Id.).
In addition, the County also received an order for publication of the notice. (¶4). As a condition precedent, the circuit court made a finding that service could not be effectuated via mail. (Id.). That notice, however, contained the wrong hearing date. (Id.).
Following Nathaniel’s nonappearance, the County moved for default and his rights were eventually terminated. (¶5). Nathaniel ultimately filed a postdisposition motion asserting “that the court lacked personal jurisdiction over him because he was not properly served with the required pleadings and he did not otherwise submit to the jurisdiction of the court.” (¶8). The court held a hearing, at which time it heard testimony that the case worker received a voicemail from Nathaniel on the date of the hearing (after it occurred) in which Nathaniel confirmed that he was aware a hearing had been conducted. (¶11). Nathaniel, in his testimony, confirmed that his mailing address was a daytime resource center connected to the homeless shelter where the notice had been mailed. (Id.). Following further testimony, the court found it was “likely” Nathaniel received the mailed notice. (¶13). It therefore concluded Nathaniel was properly served. (Id.)
To begin, COA agrees with Nathaniel that the notice statute for a TPR action, § 48.42(4), required the published notice to contain the correct hearing date. (¶21). However, despite this “plain defect,” COA defers to the circuit court’s factual finding that Nathaniel was actually served by mail. (¶22). Under these circumstances, the error is a technical defect which does not impact the court’s jurisdiction. (Id.). Essentially, the circuit court “did not find credible Nathaniel’s statement that he did not receive the mailed notice of hearing.” (¶23). As Nathaniel does not contest these findings or claim they are clearly erroneous, COA therefore affirms. (¶24).
