author: CURLEY, J.

text:
    In re the Termination of Parental Rights to Shawn S., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Frederick H., Respondent-Appellant, Amanda S., Respondent-Co-Appellant. [Case No. 00-3035] In re the Termination of Parental Rights to Joseph S., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Frederick H., Respondent-Appellant, Amanda S., Respondent-Co-Appellant. [Case No. 00-3036]
    Court of Appeals

      Nos. 00-3035, 00-3036.

      Submitted on briefs February 6, 2001.

    Decided May 1, 2001.

    2001 WI App 141
    (Also reported in 630 N.W.2d 734.)

      On behalf of the respondent-appellant Frederick H., the cause was submitted on the briefs of Timothy A Provis of Madison.
    On behalf of the respondent-co-appellant Amanda S., the cause was submitted on the briefs of Ronald J. Sonderhouse of Kay & Kay Law Firm of Brookfield.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Phyllis DeCarvalho, assistant district attorney, Milwaukee.
    A nonparty brief was filed by the guardian ad litem, Cynthia A. Lepkowski of Legal Aid Society of Milwaukee, Inc., Guardian ad Litem Division.

    Before Wedemeyer, P. J., Fine and Curley, JJ.
   CURLEY, J.

¶ 1. Amanda S. and Frederick H. appeal from the trial court's order terminating their parental rights to their children, Joseph S. and Shawn S. The trial court determined that they were unfit based on the grounds found in Wis. Stat. § 48.415(4) — that they had been denied visitation with the children by a court order which remained in effect for more than one year. The trial court later determined that it was in the children's best interests to terminate their parental rights. Amanda S. and Frederick H. argue that the trial court erred in finding § 48.415(4) constitutional. They also submit that the trial court's order should be overturned because they were prevented from presenting a defense. Further, they contend that the trial court failed to exercise its discretion during the dispositional phase of the trial. Because we conclude that the trial court committed reversible error in preventing Amanda S. and Frederick H. from presenting evidence regarding the reasons for their continuing denial of visitation and their efforts at complying with the conditions for re-establishing visitation, we reverse.

I. Background.

¶ 2. In August 1999, a petition was filed seeking the termination of Amanda S.'s and Frederick H.'s parental rights to their children, Shawn S. and Joseph S. The petition indicated that Shawn S. was found to be a child in need of protection or services on August 24,1993, and Joseph S. was found to be a child in need of protection or services on August 23,1994. Originally, both Shawn S. and Joseph S. were placed in Amanda S.'s home under an order of supervision, but they were removed from their mother's care in April 1996, and placed in foster homes.

¶ 3. As grounds for the termination of parental rights action, the petition alleged a continuing denial of visitation pursuant to Wis. Stat. § 48.415(4). The petition alleged that on April 8, 1998, the earlier child in need of protection or services (CHIPS) dispositional orders were extended and a provision was added suspending Amanda S.'s and Frederick H.'s visitation rights to Shawn S. and Joseph S. The provision required that:

Such visitation shall not resume for either parent until the following requirements have been met:
(1) The parent presents to the Bureau [of Milwaukee Child Welfare] worker assigned to the case a written statement from the parent's Bureau-approved therapist indicating that in the therapist's opinion the parent is capable of handling the visitation; and
(2) The parent is in compliance with all of the other conditions of this court order ; and
(3) The guardian ad litem approves the visitation arrangements proposed with respect to the matter and setting of the visits; and
(4) When visits do occur, each visit shall be between one child and one parent, until modified by the worker with the agreement of the guardian ad litem.

The petition further alleged that the order suspending visitation was again extended on October 23,1998, and that the extension suspending visitation was in effect when the petition seeking termination of their parental rights was commenced. The October order slightly amended the conditions for re-establishing visitation;

Such visitation shall not resume for either parent until the following requirements have been met:
(1) The parent presents to the Bureau [of Milwaukee Child Welfare] worker assigned to the case a written statement from the parent's Bureau-approved therapist indicating that in the therapist's opinion, the parent is capable of handling the visitation;
(2) The parent meets with the child's individual therapist and the therapist presents a report indicating that, in the therapist's opinion, the parent understands the child's emotional needs and is willing and able to meet them, within the context of proposed visitation;
(3) ... The visitation arrangements proposed (as to the timing, manner and setting of the visits) shall be approved by . . . the guardian ad litem, as to Shaw or Joseph.
(4) When visits do occur, each visit shall be between on child and one parent, until modified by the worker with the agreement of.. .the guardian ad litem, as to Shawn or Joseph.

The petition also alleged that Amanda S. and Frederick H. both received written notice of the extensions, as well as written notice of the termination of parental rights as required under Wis. Stat. § 48.356(2). Finally, the petition alleged that the circuit court had not modified its orders denying visitation rights to Amanda S. or Frederick H. with Shawn. S. or Joseph S., and that the termination of their parental rights was in the children's best interest.

¶ 4. After commencing the termination of parental rights action, the State then filed a motion for summary judgment, which the trial court denied. However, at the summary judgment hearing, the district attorney requested clarification of the issues to be litigated at trial. The district attorney argued that the only issue to be decided at trial was "whether there is an order and whether visitation was suspended under that order and . . . that [the order] remained in affect [sic] for a year." The prosecutor indicated that the only evidence that need be presented at trial would be a certified copy of the CHIPS order, accompanied by testimony that the order remained in effect. She urged the trial court to rule that it would be inappropriate to litigate the preconditions to visitation. The trial court agreed, determining that in phase one of the trial, the only relevant evidence permitted would be documentation that established that an order suspending visitation had remained in effect for one year or more and that the parents failed to re-establish visitation during that period.

¶ 5. Although objecting to the trial court's ruling, due to the court's curtailing of the evidence that could be submitted, Amanda S. and Frederick H. elected to waive their right to a jury and the fact-finding hearing proceeded to be heard by the court. The only issue addressed at the fact-finding hearing was whether the orders denying visitation had been issued and remained unmodified for at least one year, thus providing grounds for finding Amanda S. and Frederick H. to be unfit under Wis. Stat. § 48.415(4). The State called one witness, the children's caseworker from the Bureau of Milwaukee Child Welfare (BMCW). Referencing the certified documents, the caseworker's testimony established, inter alia, the existence of the orders for extension and revision of the dispositional order suspending visitation; that the revised disposi-tional order contained conditions which were required to be fulfilled before visitation by either parent could resume; and that "[a]t least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit [the parents] periods of physical placement or visitation."

¶ 6. On cross-examination, counsel for Amanda S. asked the caseworker whether she was "prepared... to testify as to whether or not the [BMCW] did in fact fulfill their requirements" for re-establishing visitation. The State objected to the question as being irrelevant, and the trial court sustained the objection. Counsel objected to the trial court's ruling, asserting: "I understand the Court's ruling is the same ruling that the Court made as a preliminary matter in February, that it would not hear testimony about whether the [BMCW] complied." The trial court replied, "There were lengthy contested hearings on the extension in both those years, and the parents were represented by Counsel, and I believe that any challenge to those proceedings should have been made by taking a direct appeal at that time." Following the caseworker's testimony, the State rested and, based on the trial court's pretrial ruling, neither Amanda S. nor Frederick H. called any witnesses. Based upon the caseworker's testimony and the certified documents, the trial court found that both Amanda S. and Frederick H. had been denied visitation under an order pursuant to Wis. Stat. § 48.356, that at least one year had passed since the order denying visitation had been issued, and that the order remained unmodified regarding visitation. Therefore, the trial court concluded that grounds for terminating the parental rights of Amanda S. and Frederick H. existed, and under Wis. STAT. § 48.424, found them to be unfit parents.

¶ 7. At the dispositional phase, the children's individual therapists testified that it would be in the children's best interests for Amanda S.'s and Frederick H.'s parental rights to be terminated. The caseworker again testified, stating that the children washed to be adopted. The trial court precluded any evidence from Amanda S. and Frederick H. regarding their efforts to re-establish visitation and refused to entertain any testimony as to why they were unable to meet the conditions which would have allowed visitation. Following the presentation of the evidence, the trial court found that it was in the best interests of Shawn S. and Joseph S. to terminate the parental rights of Amanda S. and Frederick H., and ordered their parental rights to their children terminated. Amanda S. and Frederick H. appeal.

II. Analysis.

¶ 8. Because we find this issue dispositive, we first address Amanda S.'s and Frederick H.'s argument that the trial court erred in denying them the opportunity to present evidence. Specifically, Amanda S. and Frederick H. assert that the trial court's ruling erroneously precluded them from presenting any testimony regarding their efforts to fulfill the conditions set forth in the order to re-establish visitation with the children. Therefore, they conclude that they were "effectively precluded from meaningfully participating in the fact-finding hearing," in violation of their due process rights.

¶ 9. The State counters that the trial court properly precluded the attempts by Amanda S. and Frederick H. "to relitigate in the TPR proceedings the issues surrounding the original suspension of visitation." The State asserts that, "[t]he proper vehicle for challenging the trial court's rulings regarding the suspension of visitation was through an appeal from the CHIPS order granting the suspension of visitation." Therefore, the State concludes that the trial court properly determined that these issues could not be relitigated in the TPR case.

¶ 10. The State and the trial court have misconstrued the evidence Amanda S. and Frederick H. sought to introduce. While at first blush, Amanda S. and Frederick H. appear to have argued that they should have been allowed to challenge the original CHIPS dispositional orders suspending visitation and imposing the conditions to re-establish visitation, they actually sought to introduce evidence explaining the reasons they were unable to meet the conditions for reestablishing visitation. As Amanda S. asserts in her brief, she and Frederick H. attempted to elicit testimony "showing what steps and actions that they undertook in order to regain visitation rights." It is apparent from the record that their trial strategy was not simply to challenge the initial order or the conditions placed on them, but rather to place evidence before the court showing their attempts at meeting the conditions for visitation and the reasons why their attempts were unsuccessful. Thus, we determine that the trial court erred in precluding Amanda S. and Frederick H. from presenting evidence of mitigating circumstances surrounding their inability to re-establish visitation.

¶ 11. A trial court's ruling admitting evidence is discretionary, and we will uphold the ruling if we can find a reasonable basis for it. State v. Plymesser, 172 Wis. 2d 583, 591, 493 N.W.2d 367 (1992). We can find no reasonable basis to uphold the trial court's ruling that the testimony Amanda S. and Frederick H. sought to elicit from the caseworker regarding their efforts to re-establish visitation was irrelevant. We conclude that the testimony was relevant and, therefore, should have been admitted.

¶ 12. "All relevant evidence is admissible . . . ." Wis. Stat. § 904.02. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." WlS. STAT. § 904.01. " 'The criterion of relevancy is whether the evidence sought to be introduced would shed any light on the subject of inquiry.'" State v. Lindh, 161 Wis. 2d 324, 348, 468 N.W.2d 168 (1991) (quoting Rogers v. State, 93 Wis. 2d 682, 688, 287 N.W.2d 774 (1980). Clearly, the testimony Amanda S. and Frederick H. sought to elicit from the BMCW caseworker regarding the efforts they made to comply with the conditions for re-establishing visitation would have "shed some light" on the issue of Amanda S.'s and Frederick H.'s alleged unfitness. Although neither party has indicated what the substance of the caseworker's testimony would have been, it is obvious that her testimony would have made it either more probable or less probable that grounds for termination of parental rights existed. Therefore, her testimony was relevant, and the trial court erroneously exercised its discretion in precluding it. See Plymesser, 172 Wis. 2d at 591.

¶ 13. Moreover, this court has expressly recognized a parent's right to meaningfully participate in a termination of parental rights proceeding. D.G. and R.G. v. F.C., 152 Wis. 2d 159, 167, 448 N.W.2d 239 (Ct. App. 1989). We conclude that here, the right to meaningfully participate in the termination proceedings included the right to present evidence at the fact-finding hearing regarding the efforts made to comply with the conditions for re-establishing visitation. Cf. Olmsted v. Circuit Court for Dane County, 2000 WI App 261, ¶ 11, 240 Wis. 2d 197, 622 N.W.2d 29 ("We conclude that the order infringes on Olmsted's due process right of access to the courts, and thus constitutes an erroneous exercise of discretion.").

¶ 14. In arriving at this conclusion, we look to B.L.J. v. Polk County Department of Social Services, 163 Wis. 2d 90, 470 N.W.2d 914 (1991), for guidance. In that case, our supreme court considered the constitutionality of Wis. Stat. § 48.424(4), which provides, in pertinent part: "If grounds for the termination of parental rights are found by the court or jury, the court shall find the parents unfit. A finding of unfitness shall not preclude a dismissal of a petition under [WlS. STAT. § 48.427(2)]." In finding the statute constitutional, the supreme court analyzed the statutory language of both § 48.424(4) and § 48.427(2), and held:

Thus, even if the court accepts the fact finder's "findings," it is not bound to terminate parental rights. "Warrant" [as used in § 48.427(2)] is a very broad word. There are obviously degrees of unfitness and some "unfit" parents may be more or less unfit than others. It is the fact of degrees of unfitness that has caused the legislature to allow the [trial] court, in the exercise of discretion, to evaluate a "finding" of "unfitness" even though the grounds of termination may be found by a jury or the court itself.

B.L.J., 163 Wis. 2d at 104. The supreme court further asserted that:

The [trial] court evaluates not just the fact that "grounds" for termination have been found but the court evaluates the quantity, quality, and persuasiveness of the evidence. The court may conclude
the evidence does not warrant termination of parental rights. One cannot imagine a more definitive rejection of a statutory label of unfitness than dismissal of a termination petition. But that is the authority the legislature has given the court in its recognition that technical findings of grounds for termination do not necessarily add up to termination.

Id. at 104-105. Thus, the legislature has granted the trial court broad discretionary power to dismiss a TPR petition "even if grounds for termination are found by the factfinder." Id. at 105. Here, the trial court's ruling effectively foreclosed Amanda S. and Frederick H. from stating their reasons for failing to meet the conditions to re-establish visitation at both the fact finding hearing and the dispositional hearing.

¶ 15. In order to properly exercise its broad discretionary power, we conclude that the trial court was obligated to consider evidence Amanda S. and Frederick H. could have provided regarding any mitigating circumstances surrounding their efforts to satisfy the conditions for re-establishing visitation. "An appellate court will sustain a discretionary act if it finds that the trial court (1) examined the relevant facts, (2) applied a proper standard of law, and (3) using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995). This means that the trial court in the instant case was required to make more than an antiseptic finding that the State had established grounds for termination. Here, "[examining] the relevant facts" and "[applying] the proper standard of law," see id., means that the trial court was required to "evaluate[ ] the quantity, quality, and persuasiveness of the evidence," see B.L.J. 163 Wis. 2d at 104-05; which means all the evidence, including the testimony Amanda S. and Frederick H. sought to elicit from the caseworker.

¶ 16. Again, we conclude B.L.J. supports our view. There, the trial court arrived at its finding of unfitness based, in part, on "the mother's unwillingness or inability to sufficiently respond to court orders and social service agency efforts to help her overcome her alcohol problem." Id. at 105. In that case, the factfinder heard from five witnesses for the Department of Social Services and five witnesses for the mother, including her own testimony. Id. at 99. The court noted that the mother acknowledged her alcoholism, but asserted that there were times when she stopped drinking for extended periods. Id. at 97. The supreme court determined that the trial court's findings of fact were "amply supported by the evidence." Id. There, the mother was allowed to present evidence of her efforts to comply with the court orders, whereas here, the parents were precluded from presenting similar evidence. We are satisfied that this preclusion constitutes error.

¶ 17. Finally, "[t]he Wisconsin Supreme Court has stated that the state's power to terminate the parental relationship is 'an awesome one, which can only be exercised under proved facts and procedures which assure that the power is justly exercised.'" D.G. and R.G., 152 Wis. 2d at 167 (citation omitted). Further,

"It is apparent that the Wisconsin legislature has recognized the importance of parental rights by setting up a panoply of substantive rights and procedures to assure that the parental rights will not be terminated precipitously, arbitrarily, or capriciously, but only after a deliberative, well considered, fact-finding process utilizing all the protections afforded by the statutes unless there is a specific, knowledgeable, and voluntary waiver."

Id. (citation omitted). "A parent's interest in the companionship, care, custody, and management of his or her child is cognizable and substantial, and the integrity of the family is subject to constitutional protections through the due process clause of the state and federal constitutions." Id. This protection includes the parents' right to meaningfully participate in the termination proceedings. Id. Given the discretionary power granted to the trial court by the legislature to dismiss a termination petition even though the grounds for termination exist, the trial court is required to consider the "quantity, quality, and persuasiveness of the evidence." B.L.J., 163 Wis. 2d at 104-05. Here, we conclude that the right to meaningfully participate in the termination proceedings placed a concurrent obligation on the trial court to allow Amanda S. and Frederick H. to present evidence of their efforts, and the department's efforts, to comply with the order suspending visitation and the conditions for reestablishing visitation. Therefore, we reverse.

¶ 18. We remand this matter for a new trial, at which time both Amanda S. and Frederick H. may present evidence of the circumstances which prevented them from meeting the conditions for re-establishing visitation and other relevant evidence.

By the Court. — Orders reversed and cause remanded with directions.

       A11 references to the Wisconsin Statutes are to the (1997 — 98) version unless otherwise indicated.

       Because we decide the appeal on this issue, we will not consider the remaining issues. Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (if decision on one point disposes of appeal, appellate court need not decide other issues raised); see also Miesen v. DOT, 226 Wis. 2d 298, 309, 594 N.W.2d 821 (Ct. App. 1999) ("[W]e should decide cases on the narrowest possible grounds and should not reach constitutional issues if we can dispose of the appeal on other grounds."). For the purpose of this opinion, we will assume, without deciding, that WIS. Stat. § 48.415(4) is constitutional.

       The original petition for the termination of parental rights was filed on or about August 6, 1999, and sought the termination of parental rights as to the minor children Mary S., Shawn S. and Joseph S. The petition was subsequently amended, on or about January 25, 2000, removing Mary S. from the proceedings.

       Wisconsin Stat. § 48.415(4) provides:
      Continuing denial of periods of physical placement or visitation. Continuing denial of periods of physical placement or visitation, which shall be established by proving all of the following:
      (a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order ... containing the notice required by s. 48.356 (2) or 938.356 (2).
      (b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its orders so as to permit periods of physical placement or visitation.

       The "other conditions" in the court order did not apply to re-establishing visitation and are not at issue here.

       The Guardian ad litem aligns herself with the State in arguing that, "[tjhis appeal is an improper legal forum for litigating issues which solely relate to [the] CHIPS extension proceedings." The Guardian ad litem further asserts that, while Amanda S. and Frederick H. were free to argue that the proof was insufficient to support a finding that visitation had been denied by court order and that at least one year had elapsed since the order was issued without modification of the order, ”[e]vidence unrelated to [these] elements of proof was irrelevant," and, therefore, inadmissible. She maintains that the trial court properly precluded the testimony Amanda S. and Frederick H. sought to elicit, because the testimony was unrelated to the elements of proof.

       However, we point out that under slightly different circumstances in S.D.S. and K.A.S. v. Rock County Department of Social Services, 152 Wis. 2d 345, 448 N.W.2d 282 (Ct. App. 1989), this court concluded that, "[t]he trial court... erred when it directed that the findings supporting the CHIPS dispositional orders must be accepted as true and cannot be contradicted at the fact-finding hearing in the termination proceeding." Id. at 355. We concluded that, "the department has a significantly heavier burden of proof at the factfinding hearing in the termination proceedings than it had at the CHIPS dispositional proceedings." Id. at 357. Therefore, we reversed a pretrial order in so far as it "require[d] the jury to consider as true the findings of fact in the dispositional orders . . . and prevents the parents from introducing evidence in the termination fact-finding hearing contesting the earlier findings, including the finding that the department had made a diligent effort to provide court-ordered services." Id. at 357-58.

       In Rogers v. State, 93 Wis. 2d 682, 287 N.W.2d 774 (1980), the supreme court also asserted that:
      The proper standard for the test of relevancy on cross-examination is not whether the answer sought will elucidate any of the main issues in the case but whether it will be useful to the trier of fact in appraising the credibility of the witness and evaluating the probative value of the direct testimony.

        Id. at 689.

       Wisconsin Stat. § 48.427(2) (provides; "the court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights."


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    In re the Commitment of David J. Wolfe: State of Wisconsin, Petitioner-Respondent, v. David J. Wolfe, Respondent-Appellant.

    Court of Appeals

      Nos. 99-2145, 00-1959.

      Submitted on briefs March 9, 2001.

    Decided May 2, 2001.

    2001 WI App 136
    (Also reported in 631 N.W.2d 240.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Ann T. Bowe of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and James E. Doyle, attorney general.

      Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   SNYDER, J.

¶ 1. David J. Wolfe appeals from the trial court order committing him to institutional care in a secure mental health facility as a sexually violent person pursuant to Wis. Stat. ch. 980. He also appeals from the order denying his motions after verdict. Wolfe argues that his trial counsel's ineffective performance requires the vacation and dismissal of the commitment order or, in the alternative, a new commitment trial. Wolfe also contends that the trial court lacked both competency to proceed and personal jurisdiction over him. We disagree with Wolfe's contentions and affirm the orders of the trial court.

FACTS

¶ 2. Wolfe was adjudicated delinquent for a sexually violent offense and placed at the Norris Adolescent Treatment Center on February 27, 1996, for an initial period of one year. Wolfe was treated at Norris from February 1996 until July 1997. In June 1997, Wolfe was removed from the sexuality program at Norris and placed in Norris's intensive supervision unit due to lack of progress in addressing treatment issues. On July 3, 1997, Wolfe started a fire in his room at Norris and was subsequently charged with arson of a building. His placement disposition on the sexual offense was then amended to placement at Lincoln Hills School, a secure correctional facility, where he was received on July 22,1997.

¶ 3. On September 9, 1997, Wolfe was adjudicated delinquent of arson and was placed in the Serious Juvenile Offender Program (SJOP) for five years; he was again placed at Lincoln Hills. While Wolfe's placement in SJOP will not expire until September 9, 2002, the dispositional order on his sexual offense charge was set to expire on October 24, 1998. The State filed its Wis. Stat. ch. 980 petition on October 22, 1998, two days before the expiration of the sexual offense disposi-tional order, and one week before Wolfe's eighteenth birthday. Wolfe is currently being held at the Wisconsin Resource Center for an indefinite time as a sexually violent person under ch. 980.

DISCUSSION

¶ 4. Wolfe argues that his Wis. Stat. ch. 980 commitment order should be vacated because his trial counsel provided ineffective assistance of counsel. Specifically, Wolfe argues that his trial counsel was ineffective for failing to move to dismiss the ch. 980 petition because Wolfe was not within ninety days of discharge or release as required by WlS. Stat. § 980.02(2)(ag) (1999 — 2000); for failing to move to strike for cause two prospective jurors on the grounds of objective bias and equivocal statements of impartiality; and for failing to object to the introduction of "other acts" evidence unrelated to sexual behavior. Furthermore, Wolfe argues that the trial court lacked competency to proceed because the commitment petition was untimely filed, and lacked personal jurisdiction over him because of the lack of personal service. We reject each of these arguments. While each claim will be addressed in turn, we will first set forth the applicable standards and evaluate the claims of ineffective assistance of counsel.

Ineffective Assistance of Counsel

¶ 5. There are two components of an ineffective assistance of counsel claim: a demonstration that counsel's performance was deficient and a demonstration that such deficient performance prejudiced the defendant. State v. Smith, 207 Wis. 2d 258, 273, 558 N.W.2d 379 (1997). Wolfe has the burden to establish both components. Id.

¶ 6. An attorney's performance is not deficient unless "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." State v. Oswald (Theodore), 2000 WI App 2, ¶ 49, 232 Wis. 2d 62, 606 N.W.2d 207, review denied, 2000 WI 21, 233 Wis. 2d 84, 609 N.W.2d 473 (Wis. Feb. 22,2000) (No. 97-1026-CR) (citations omitted). Consequently, we gauge whether such performance was reasonable under the circumstances of the particular case. Id. Deficient performance is limited to situations where the law or duty is so clear that reasonable counsel should know enough to raise the issue. Id.

¶ 7. Even if deficient performance is present, we will not reverse unless Wolfe also establishes that trial counsel's deficiency in fact prejudiced his defense; counsel's errors must be so grave as to deprive him of a fair trial, a trial whose result is reliable. Id. at ¶ 50. In essence, counsel's errors must actually have an adverse effect on the defense; not every error that possibly could have influenced the outcome undercuts the reliability of the result of the proceeding. Id. There must be a reasonable probability that but for counsel's errors, the result of the proceeding would be different. Id.

¶ 8. Whether counsel's actions constitute ineffective assistance is a mixed question of law and fact. Id. at ¶ 51. We will not overturn a trial court's findings of fact, including those regarding the circumstances of the case and counsel's conduct and trial strategy, unless the findings are clearly erroneous. Id. However, the final determinations of whether counsel's performance was deficient and prejudiced the defense are questions of law which we decide without deference to the trial court. Id.

Petition Untimely

¶ 9. Wolfe argues that his trial counsel was ineffective for his failure to move to dismiss the WlS. STAT. ch. 980 petition as untimely pursuant to Wis. Stat. § 980.02(2)(ag). Wolfe argues that while his adjudication for a sexually violent offense was set to expire on October 24,1998, he was also subject to an SJOP adjudication until September 9, 2002. Because § 980.02(2)(ag) requires that a ch. 980 petition be filed within ninety days of discharge or release, Wolfe argues that the petition was filed too early and thus his trial counsel was ineffective for failing to so argue. We disagree.

¶ 10. To show deficient performance, Wolfe must show that his counsel's representation was objectively unreasonable. Oswald (Theodore), 2000 WI App 2 at ¶ 63. Wisconsin Stat. § 980.02(2)(ag) requires that a petition filed under Wis. Stat. ch. 980 must allege that

[t]he person is within 90 days of discharge or release ... from a secured correctional facility, as defined in s. 938.02(15m) ... if the person was placed in the facility for being adjudicated delinquent under s. 938.183 or 938.34 on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense.

We read § 980.02(2)(ag) to say that a ch. 980 petition should be filed within ninety days of discharge from a sexually violent offense delinquency adjudication if the person was placed in a secure correctional facility on the basis of that offense.

¶ 11. Wolfe was adjudicated delinquent of first-degree sexual assault of a child. His placement disposition on the sexual offense was originally to Norris Adolescent Treatment Center but was later amended and he was transferred to Lincoln Hills, a secure correctional facility, on July 22, 1997, before he was adjudicated delinquent of arson and placed in SJOP. Wolfe was scheduled to be discharged from the sexual offense disposition on October 24, 1998; the Wis. Stat. ch. 980 petition was filed on October 22,1998, two days before his scheduled release from the sexual offense disposition. The ch. 980 petition was filed within ninety days of discharge from a delinquency adjudication based upon first-degree sexual assault, in compliance with Wis. Stat. § 980.02(2)(ag).

¶ 12. Wolfe argues that State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997), necessitates the conclusion that the petition was filed too early. Keith was an adult sentenced to prison after conviction of both first- and second-degree sexual assault; Keith was later convicted of fourth-degree sexual assault and sentenced to six months consecutive to the second-degree' sexual assault count. Id. at 66. While first- and second-degree sexual assault are defined as sexually violent offenses by Wis. Stat. § 980.01(6), fourth-degree sexual assault is not. Keith, 216 Wis. 2d at 70. One day before his scheduled release from the fourth-degree sexual assault charge, the State filed a Wis. Stat. ch. 980 petition alleging that Keith was a sexually violent person. Keith, 216 Wis. 2d at 67.

¶ 13. Keith argued that his Wis. STAT. ch. 980 petition was untimely filed because it was filed more than ninety days after he had begun to serve a consecutive sentence on a nonviolent offense. Keith, 216 Wis. 2d at 66. We disagreed and held that consecutive sentences constituted one continuous term of incarceration for the purpose of determining when a respondent was eligible for parole. Id. at 71. We concluded that a commitment petition must be filed within ninety days of release from a continuous term of incarceration, any part of which was imposed for a sexually violent offense. Id.

¶ 14. Wolfe argues that the same principles governing Keith apply here. We disagree. Keith addressed the issue of consecutive adult prison sentences. Here, we are dealing with juvenile adjudications and dispositions. While Wis. Stat. § 302.11(3) allows for the treatment of consecutive adult prison sentences as one continuous sentence, there is no equivalent provision for dispositions in Wis. Stat. ch. 938, the Juvenile Justice Code.

¶ 15. The Wisconsin Supreme Court has specifically rejected the "exact equation of institutional placement of a juvenile with the incarceration of an adult." K.C. v. DHSS, 142 Wis. 2d 906, 918, 420 N.W.2d 37 (1988). Wisconsin Stat. § 973.15(2)(a) allows a trial court to impose "as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously." "Sentence" is not statutorily defined but § 973.15 indicates that a "sentence" may be imposed only for a "conviction." State v. Woods, 173 Wis. 2d 129, 137, 496 N.W.2d 144 (Ct. App. 1992). A "conviction" does not include a juvenile delinquency adjudication; the Juvenile Justice Code includes explicit language that the legislature did not intend that an adjudication of delinquency be treated as a criminal conviction:

A judgment in a [juvenile delinquency] proceeding on a petition under this chapter is not a conviction of a crime, does not impose any civil disabilities ordinarily resulting from the conviction of a crime and does not operate to disqualify the juvenile in any civil service application or appointment.

Wis. Stat. § 938.35(1). Generally, juvenile delinquency proceedings are not criminal proceedings, State v. Hezzie, 219 Wis. 2d 848, 867, 580 N.W.2d 660 (1998), and a juvenile disposition is not a sentence. Woods, 173 Wis. 2d at 137. Hence, the concept of consecutive sentences is foreign in the context of juvenile adjudications and dispositions.

¶ 16. Wisconsin Stat. § 980,02(2)(ag) states that a Wis. Stat. ch. 980 petition should be filed within ninety days of discharge from a delinquency adjudication based upon a sexually violent offense if the person was placed in a secure correctional facility on the basis of that offense. Wolfe was scheduled to be discharged from the sexual offense disposition on October 24, 1998; the ch. 980 petition was filed on October 22,1998, two days before his scheduled release from the sexual offense disposition. The ch. 980 petition was filed within ninety days of discharge from a delinquency adjudication based upon a sexually violent offense, in compliance with § 980.02(2)(ag). Trial counsel cannot be found delinquent for failure to move for dismissal on these grounds.

Jurors

¶ 17. Wolfe argues that trial counsel was ineffective for failing to move to strike for cause two prospective jurors on the grounds of objective bias and equivocal statements of impartiality. We disagree.

Juror G.

¶ 18. Wolfe argues that trial counsel should have moved to strike juror G. for cause because she "exhibited objective bias that could be inferred." During voir dire, G. revealed that she had been sexually assaulted as a young girl and, according to Wolfe, there were "striking similarities between the sexual assaults allegedly committed by... Wolfe and the assailant who sexually assaulted" juror G. Wolfe argues that G.'s bias could have been inferred based on the similarity of the sexual assaults and from "her curt answers throughout the record." Thus, Wolfe contends, trial counsel erred in failing to realize this inferred bias and in failing to move to strike G.

¶ 19. In July 1999, the Wisconsin Supreme Court released four opinions in which the court clarified the murky waters of juror bias jurisprudence in Wisconsin, adopting the terms "statutory," "subjective" and "objective" bias to replace the misused "implied," "actual" and "inferred" terminology. See State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999); State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999); State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), cert. denied, 528 U.S. 1140 (2000) (No. 99-6572); State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d 736 (1999). A prospective juror is biased and should be removed for cause only if the prospective juror is (1) statutorily biased, (2) subjectively biased or (3) objectively biased. Oswald (Theodore), 2000 WI App 2 at ¶ 17.

¶ 20. In reviewing a trial court's determination of subjective and objective bias, we give two different levels of deference to the trial court's conclusions. State v. Oswald (James), 2000 WI App 3, ¶ 5, 232 Wis. 2d 103, 606 N.W.2d 238, review denied, 2000 WI 21, 233 Wis. 2d 84, 609 N.W.2d 473 (Wis. Feb. 22, 2000) (Nos. 97-1219-CR, 97-1899-CR), cert. denied, 520 U.S. 1282 (2000) (No. 99-9696). First, the trial court's determination of subjective bias will be upheld unless clearly erroneous. Id. Second, the trial court's determination of objective bias will be reversed only if, as a matter of law, a reasonable judge could not have reached the same conclusion. Id. Thus, our review of a trial court's determination of both subjective and objective bias is deferential, though less so for objective bias. Id.

¶ 21. In the instant case, Wolfe argues that trial counsel was ineffective for failing to strike G. because "she exhibited objective bias that could be inferred." Wolfe erroneously mixes current juror bias terminology ("objective bias") with old terminology ("inferred bias"); the old terminology has outlived its usefulness and is no longer relevant. Faucher, 227 Wis. 2d at 706. We therefore assume that Wolfe argues that G. should have been stricken for objective bias.

¶ 22. A prospective juror is objectively biased only if a reasonable person in the prospective juror's position could not objectively judge the case in a fair and impartial manner. Oswald (Theodore), 2000 WI App 2 at ¶ 25. When determining if a juror is objectively biased, all the facts involved in the case and the facts and circumstances surrounding the voir dire must be considered. Id. A court's conclusion on whether a prospective juror is objectively biased is a mixed question of law and fact. Id. We will give weight to this conclusion during our review and will reverse it only if a reasonable judge could not have reached it as a matter of law. Id.

¶ 23. For example, courts have found objective bias when a prospective juror is related to a State's witness by blood or marriage to the third degree or if the prospective juror has a recent and continuous contact with the criminal justice system. Id. at ¶ 26. The prospective juror must demonstrate an ingrained attitude about the particular subject of the case and there must be a connection between the prospective juror's bias and the issues or theory of the case. Id. These attitudes or opinions must be strongly held but are not expected to be unequivocal. Id.

¶ 24. Counsel's performance was ineffective, Wolfe argues, because G. "exhibited objective bias" and counsel failed to move the court to strike her for cause. Wolfe also contends that G.'s "curt answers" implied a bias and inability to remain fair and impartial. To the contrary, after reviewing the record of voir dire and counsel's posttrial testimony, we conclude that counsel's conduct was not deficient.

¶ 25. An examination of Faucher, Kiernan, Erickson and Mendoza in conjunction with one another reveals that exclusion of a juror for objective bias necessitates "a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case to be tried or the juror's intractable negative attitude toward the justice system in general." Oswald (James), 2000 WI App 3 at ¶ 8. The Wisconsin Supreme Court has held that a prior sexual assault does not categorically preclude the victim from serving on a jury. Erickson, 227 Wis. 2d at 777.

¶ 26. During voir dire in open court, the trial court asked the jurors if they or anyone they knew had been the victim of a sexual assault. Several jurors answered in the affirmative and thus more specific voir dire of each individual juror who answered affirmatively took place in camera. Upon questioning by the court, G. indicated that three and one-half years earlier she had been the victim of a sexual assault. The court asked G.:

THE COURT: Okay. Now, you understand that this is a hearing on a commitment, and there is going to be evidence presented that [Wolfe] was found to be delinquent for an offense that we refer to as first-degree sexual assault. Would the mere fact that he has been found delinquent of that type of an offense affect you in such a way as you cannot be fair and impartial?
PROSPECTIVE JUROR: No.
THE COURT: You could put aside your own circumstances and listen to the evidence in this case? Could you do that?
PROSPECTIVE JUROR: Yeah, I could.
THE COURT: Okay. Because of being a victim of that type of thing, you wouldn't be just inclined to automatically determine that someone would do something like that?
PROSPECTIVE JUROR: No.
THE COURT: In terms of the first-degree sexual assault ought to be committed?
PROSPECTIVE JUROR: No.
THE COURT: Okay. Do you have any reservations about that at all.
PROSPECTIVE JUROR: No.

G. was asked specific details about her sexual assault and asked whether she felt that she was treated fairly during the prosecution of her assailant. While G. stated that she was "not really" satisfied with the outcome of her case, she agreed that she had been treated fairly and stated that her experience would not affect her ability to be fair and impartial. G. also affirmatively stated that the age similarity of Wolfe and her assailant would not affect her in any way.

¶ 27. Assistant Attorney General Thomas Fallon then asked G. some follow-up questions about her dissatisfaction with the outcome of her case. G. stated that her dissatisfaction stemmed from the feeling that her assailant was not sufficiently punished:

PROSPECTIVE JUROR: I think he should have been in jail longer. And when he turned seventeen, the Courts said that he was an adult now, so he came to visit me again.
MR. FALLON: He did?
PROSPECTIVE JUROR: So I didn't like that.

However, G. affirmatively stated that she would not hold this dissatisfaction against either Wolfe or the State.

¶ 28. Wolfe's trial counsel did in fact then ask G. follow-up questions:

MR. VAN SKIKE: ... If I were to tell that you [sic] David had more than one victim of sexual assault, in fact, he had lots of victims sexual assault [sic], would that change your feelings at all about this?
PROSPECTIVE JUROR: Maybe.
MR. VAN SKIKE: [If] I told you it was more than a hundred, would that change your feelings about this?
THE COURT: Well, maybe we ought to clarify? Say, for example, you do hear evidence that there were other victims of Mr. Wolfe, would that cause you to have other feelings based on your experience?
PROSPECTIVE JUROR: Not, not upon myself but just towards me?
MR. FALLON: I asked that question before.
THE COURT: It was my concern. Thank you.
MR. VAN SKIKE: Also Mr. Wolfe’s victims were all the age. You would have been or younger?
PROSPECTIVE JUROR: Uh-hum.
MR. VAN SKIKE: Would this type of evidence give you concern as far as your ability to be fair and impartial?
PROSPECTIVE JUROR: No.
THE COURT: You're satisfied then you could be fair and impartial?
PROSPECTIVE JUROR: Yeah.

¶ 29. After reviewing the voir dire record, two things are apparent. First, G. expressed numerous times that she would not let her past experience affect her ability to remain fair and impartial. Second, the record reveals substantial questioning and dialogue between G., the court, the prosecution and defense counsel. Wolfe's trial counsel sought clarification of G.'s opinions by asking follow-up questions. He conducted careful questioning about G.'s past experience; his performance cannot be categorized as deficient in this respect. As for G.'s alleged "curt" responses, the trial court is in "a far superior position to ascertain bias than is an appellate court whose only link to the voir dire is through the 'bare words on a transcript' of the proceedings." Erickson, 227 Wis. 2d at 775 (citation omitted). The trial court is better equipped to determine if a juror's response is sincere. Oswald (James), 2000 WI App 3 at ¶ 19.

¶ 30. At the posttrial evidentiary hearing on the issue of trial counsel's performance, Wolfe asked trial counsel Russell Van Skike why he did not move to strike G. for cause; Van Skike stated, "I didn't feel there was any reason to believe that she was an inappropriate juror. As far as Ms. G[.] goes, the reality of that situation is [Wolfe] asked that she be allowed to stay on the jury." Van Skike stated that Wolfe had informed co-defense counsel June Spoerl that he liked G. "or some words similar to that, so at that point we left her on the panel." Van Skike stated that he was not concerned about the impact of her prior sexual assault because

I think she answered the questions candidly. She was very alert. She did indicate, obviously, quite bluntly that she had been the victim; that there were things in her past that could have been a problem, but she thought she could put all of those aside and make a fair decision in this case.
She kept eye contact with David. She was very appropriate I guess is the right word in her body language and motions. At that point there wasn't any reason to doubt that she couldn't set these feelings aside, and with David's indication at that point that he wanted her on the panel, at least at that stage, we left it at that.

Whether trial counsel should move the court to strike a juror for cause is his or her tactical decision to make. Oswald (Theodore), 2000 WI App 2 at ¶ 63. We conclude that defense counsel's decision not to move to strike G. was a reasonable, tactical decision and does not constitute deficient performance, particularly in light of Wolfe's desire that she remain on the jury.

JurorB,

¶ 31. Wolfe argues that trial counsel should have moved to strike juror B. "who made equivocal statements of impartiality." B.'s fourteen-year-old daughter had been sexually assaulted two years earlier and Wolfe maintains that she gave "equivocal answers to many voir dire questions" when asked if she could set aside that prior incident. According to Wolfe, trial counsel's failure to strike B. for cause constituted ineffective assistance of counsel and thus deprived him of a fair and impartial jury.

¶ 32. Wolfe does not specify if B. should have been stricken for objective or subjective bias. We need not consider an argument that is inadequately developed. Vesely v. Sec. First Nat'l Bank of Sheboygan Trust Dep't, 128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593 (Ct. App. 1985). However, we will note that it would be inappropriate to strike B. simply because she provided equivocal answers. We have repeatedly stated that a prospective juror need not give "unequivocal assur-anees" of his or her ability to remain completely impartial. Oswald (James), 2000 WI App 3 at ¶ 19.

¶ 33. B. stated that she was satisfied with the prosecution of her daughter's assailant and that her experience would not affect her ability to be fair and impartial. B. admitted some trepidation:

I'm trying to decide. I mean I do believe everybody, you know, is different, and I'm a pretty, you know, impartial person. I usually like to see everybody's side of it, but I don't know, you know. I mean if something is said, I don't think so. I think I would be. I don't know.

But again, a prospective juror need not respond to voir dire questions with "unequivocal declarations of impartiality." Erickson, 227 Wis. 2d at 776. In fact, we expect a juror's honest answers to be, at times, less than unequivocal. Id.

¶ 34. Wolfe's trial counsel stated that he did not move to strike B. for cause because

[a]t the point that we stopped the voir dire with her, I also thought that she had been quite candid or open with the Court and with us about her feelings; that at least at that point she was still appropriate to leave on the panel. I think sometimes too many jurors respond routinely and raise their hand and say, yes, I can do this, yes, I can do this, but at least this juror took the time to reflect and think about those things. I understand it put her in an awkward position of having to deal with some past memories or family experiences, but, on the other hand, she responded to the Court's questioning saying that she believed she could put those things aside and make a fair decision.

We cannot state that trial counsel's decision not to request that the court strike B. for cause was deficient.

"Other Acts" Evidence

¶ 35. Wolfe argues that trial counsel was ineffective in failing to object to the introduction of "other acts" evidence, evidence unrelated to his sexual behavior. During Wolfe's Wis. Stat. ch. 980 commitment trial, the State introduced evidence of his arson adjudication and his misconduct while at Norris Adolescent Treatment Center. Wolfe argues that this "other acts" evidence was prohibited by Wis. Stat. §§ 904.03 and 904.04. We disagree.

¶ 36. Again, Wolfe must establish that trial counsel's failure to object to what he characterizes as "other acts" evidence was objectively unreasonable. See Oswald (Theodore), 2000 WI App 2 at ¶ 63. Wolfe offers no argument as to why the Wis. Stat. § 904.04 analysis should apply. Here, the arson and institutional misconduct were not offered to show that Wolfe had a bad character and acted in conformity with that bad character. The State was obligated to establish that Wolfe suffered from a mental disorder, as defined in Wis. Stat. ch. 980, and that he was dangerous because it was substantially probable that he would engage in acts of sexual violence. Wis. Stat. § 980.01(7).

¶ 37. Diagnoses of a mental disorder and dangerousness are directly foretold through past conduct. The jury needed to consider evidence of relevant past conduct to determine whether Wolfe had a mental disorder which predisposed him to commit acts of sexual violence and whether there was a substantial probability that he would commit acts of sexual violence in the future. "[P]revious instances of violent behavior are an important indicator of future violent tendencies." Kan sas v. Hendricks, 521 U.S. 346, 358 (1997) (citation omitted).

¶ 38. The use of an individual's conduct and behavioral history and their effect on treatment is suitable in a Wis. Stat. ch. 980 commitment case. See State v. Adams, 223 Wis. 2d 60, 73, 588 N.W.2d 336 (Ct. App. 1998), review denied, 225 Wis. 2d 488, 594 N.W.2d 382 (Wis. Apr. 6, 1999) (No. 96-3136). As trial counsel testified at the posttrial hearing:

For the most part, the [§ ] 904.04 analysis applies more appropriately to a strictly criminal situation. It's designed to prevent convictions based on past behavior and the identity of the current offense to that past behavior. That [ch.] 980 trial is a different situation than civil. It's not looking at a particular specific behavior at that moment in trying to decide if somebody did it or didn't. It's a forward looking, is he likely to offend in the future type situation, and that — and when you get reports from the experts that, unfortunately, open the door to that type of evidence, it's likely that you're going to have to deal with it in some fashion. The probative, prejudicial cumulative waste of time analysis is the appropriate I think.

¶ 39. We agree. The appropriate inquiry is whether the evidence is relevant and whether its probative value is outweighed by the risk of undue prejudice. See Wis. Stat. §§ 904.01, 904.03.

¶ 40. At trial, evidence was presented regarding Wolfe's arson adjudication, his institutional rule violations and misconduct while at Norris, and his inability to participate in treatment programs. Clinical psychologist Michael Caldwell testified that Wolfe suffers from pedophilia and a personality disorder with antisocial features. A personality disorder is exhibited by a pervasive pattern of disregard for the rights of others, failure to comply with rules, irresponsibility and lack of remorse. The arson adjudication and institutional misconduct were presented to establish Wolfe's diagnosed mental disorder, his dangerousness, and his risk of reoffending. This evidence had the tendency to make the statutory elements of a Wis. Stat. ch. 980 commitment more probable than not, see State v. Sullivan, 216 Wis. 2d 768, 786, 576 N.W.2d 30 (1998), and thus was relevant. See Wis. Stat. § 904.01.

¶ 41. Moreover, the probative value of this evidence was not substantially outweighed by the risk of unfair prejudice. The evidence was highly probative of the elements of a mental disorder and dangerousness, the establishment of which are required for a Wis. Stat. ch. 980 commitment. Wis. STAT. § 980.02(2)(b), (c). To be unfairly prejudicial, this evidence must have the tendency to influence the result by improper means, appeal to the jury's sympathies, arouse a sense of horror, or provoke the jury to punish or otherwise base its decision on something other than the established propositions of the case. State v. Davidson, 2000 WI 91, ¶ 73, 236 Wis. 2d 537, 613 N.W.2d 606. The arson adjudication and institutional misconduct evidence does none of these, especially compared to Wolfe's lengthy sexual offense history.

¶ 42. Wolfe's arson adjudication and his misconduct while institutionalized were relevant to establish that he suffers from a personality disorder, a qualifying mental disorder under Wis. Stat. § 980.01(2), see Adams, 223 Wis. 2d at 64, and their probative value outweighed any risk of unfair prejudice. Trial counsel's approach was entirely reasonable and does not constitute deficient performance.

Judicial Competency

¶43. Wolfe argues that the trial court lacked competency to hear the Wis. Stat. ch. 980 commitment proceeding because the petition was not timely filed in compliance with Wis. Stat. § 980.02(2)(ag). As Wolfe admits, this is the same argument that was made earlier when he alleged ineffective assistance of counsel for failure to object to the timeliness of the petition. As such, our response is the same. The ch. 980 petition was filed within ninety days of discharge from a delinquency adjudication based upon a sexually violent offense, in compliance with § 980.02(2)(ag). The trial court therefore had competency to proceed.

Personal Service

¶ 44. Wolfe argues that WlS. STAT. ch. 980 is a civil commitment procedure and ch. 980 proceedings are subject to the provisions of Wis. Stat. chs. 801 through 847. According to Wolfe, the State failed to comply with the personal service requirements of ch. 801 and thus the trial court lacked personal jurisdiction over him.

¶ 45. Wisconsin Stat. ch. 980 commitment proceedings are civil proceedings. State v. Brown, 215 Wis. 2d 716, 721-22, 573 N.W.2d 884 (Ct. App. 1997). Wisconsin Stat. § 801.01(2) mandates that Wis. Stat. chs. 801 through 847 govern the practice and procedure of all civil actions and special proceedings unless a "different procedure is prescribed by a statute or rule." Brown, 215 Wis. 2d at 723. Here, a different procedure is prescribed by ch. 980.

¶ 46. Wisconsin Stat. § 980.02 sets forth the required contents of a Wis. Stat. ch. 980 petition and states where the action may be filed. WISCONSIN Stat. § 980.04(1) states that upon the filing of the petition, the trial court shall review the petition to determine whether to issue an order to detain the person named in the petition; the person may be detained only if the court finds that there is cause to believe that the person is eligible for commitment as a sexually violent person. Id.

¶47. Within seventy-two hours of the filing of the petition, the trial court must hold a probable cause hearing to determine whether there is probable cause to believe that the person is a sexually violent person. Wis. Stat. § 980.04(2). The trial court must give reasonable notice of the time and place of the hearing to the person named in the petition. WlS. STAT. § 980.03(1). At the hearing and all other Wis. Stat. ch. 980 hearings, the person named in the petition is entitled to counsel. Sec. 980.03(2)(a). A trial to determine whether the person is sexually violent must be held within forty-five days of the probable cause hearing. Wis. Stat. § 980.05(1).

¶48. Wisconsin Stat. ch. 980 provides its own procedures for commencing a ch. 980 action; thus, the provisions of Wis. Stat. chs. 801 and 802 are inapplicable. In fact, as the State notes in its brief, to apply the provisions of chs. 801 and 802 would lead to absurd results. For example, Wis. Stat. § 801.02(1) mandates that a plaintiff personally serve an authenticated copy of the summons and complaint upon the defendant within ninety days following the filing of said documents with the court. But in a ch. 980 proceeding, the probable cause hearing and the trial must be held before that ninety days would expire.

¶ 49. Furthermore, the Wisconsin Supreme Court has stated that "[a] ch. 980 proceeding affords the subject of a commitment petition neither the opportunity nor the obligation to file an answer or raise affirmative defenses to the allegations contained in the petition." State v. Thiel, 2000 WI 67, ¶ 28, 235 Wis. 2d 823, 612 N.W.2d 94, on remand, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, review denied, 241 Wis. 2d 439, 625 N.W.2d 321 (Wis. May 8, 2001) (No. 99-0316). If the answer provisions of Wis. Stat. § 802.06 are inapplicable to Wis. Stat. ch. 980, it would be illogical to apply the commencement of action and service provisions of Wis. Stat. ch. 801. We will not construe statutes to work an absurd result. State v. Clausen, 105 Wis. 2d 231, 245, 313 N.W.2d 819 (1982). This argument is without merit.

CONCLUSION

¶ 50. We reject Wolfe's assertions regarding the effectiveness of his trial counsel, as counsel's performance was not deficient. In addition, the trial court did have competency to proceed because the Wis. Stat. ch. 980 petition was timely filed. Finally, the trial court had personal jurisdiction over Wolfe because statutory personal service provisions do not apply here. We therefore affirm the orders of the trial court.

By the Court. — Orders affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       Wolfe makes no argument that any juror was statutorily biased.