Appellant forfeited right to challenge circuit court exercising concurrent jurisdiction with tribal court over guardianship proceeding because objection to jurisdiction not raised in circuit court.
Monroe County v. G.L.B., 2025AP2239, 9/24/26, District IV (ineligible for publication); case activity
The COA held that the appellant forfeited his right to appeal the circuit court exercising concurrent jurisdiction with the Ho-Chunk Nation tribal court on Monroe County’s guardianship petition because he did not raise his arguments in the circuit court.
G.L.W., born in 2021, was removed from the custody of his parents – T.L.B. and G.L.B. – and placed with his maternal aunt and uncle. Because G.L.W. was eligible to enroll in the Ho-Chunk Nation, the Wisconsin and federal versions of the Indian Child Welfare Act applied to his child custody proceedings. (¶ 4).
In September 2022, Monroe County filed a guardianship proceeding for G.L.W. in the circuit court. In February 2023, the circuit court transferred the case to the Ho Chunk Nation tribal court. While the tribal court case was pending, the County filed a second guardianship petition in the circuit court in September 2024. (¶¶ 5-6). The Ho Chunk Nation moved to intervene in the second case and, at the hearing on the intervention motion in October 2024, the County advised that the first case was delayed and that G.L.W.’s aunt and uncle, who were nominated to become guardians, requested that the tribal court dismiss the first case and sought a subsidized guardianship under Wisconsin law, which was not available in tribal court. (¶ 7). The circuit court determined it had concurrent jurisdiction with the tribal court and would defer to the tribal court’s determination if it occurred. (¶ 8). Counsel for G.L.B. proposed that the circuit court proceed with the second case while G.L.B. reserved the right to raise jurisdiction at a later date. The circuit court agreed and said it would temporarily suspend the proceedings in the second case if any party objected to its jurisdiction. The parties did not object to the circuit court’s course of action. (¶ 9).
Two months later, the circuit court learned that a tribal court judge had been assigned to the first case, but no hearing had been held. The circuit court advised the parties by letter regarding the status of the tribal court case, but that it intended to proceed with the trial in the second case because it had concurrent jurisdiction and noted that the parties did not object to the circuit court exercising its jurisdiction. (¶ 11).
G.L.B. subsequently filed a discovery motion, which was “subject to the parent[s’] challenges, if any, to the Court’s jurisdiction.” (¶ 12). At a pretrial conference, the County noted G.L.B.’s statement in his discovery motion regarding jurisdiction and asked the court if an additional record needed to be made. The court asked the parties if there were any issues to address before trial; the Ho Chunk Nation said the circuit court adequately addressed jurisdiction in its letter to the parties and counsel for the other parties did not raise any issues. The court adjourned the hearing without addressing jurisdiction, which the COA found left “the strong impression that the failure of any party to question the circuit court’s jurisdiction settled the issue for the reasons explained in the court’s letter.” (¶ 13).
Shortly before trial, the tribal court dismissed the first guardianship case, which reflected that all parties except the parents supported dismissal. (¶ 14). At trial on the County’s second guardianship petition, the circuit court appointed G.L.W.’s aunt and uncle as guardians. (¶ 15).
G.L.B. argued on appeal that the circuit court should have dismissed the second case or transferred it to the tribal court. However, the COA found that G.L.B. did not raise any of the arguments he made for tribal court jurisdiction during the circuit court proceedings and therefore forfeited them. (¶ 18). The COA determined G.L.B.’s suggestion that he might raise jurisdiction at a later date, “without also presenting any of the arguments now presented on appeal, was insufficient to preserve the appellate arguments.” (¶ 19). Further, the COA declined to exercise its discretion to disregard forfeiture because, had G.L.B. initially raised the arguments he made on appeal, the circuit court and the parties “would have had opportunities to more thoroughly develop the record regarding relevant factual considerations or refine pertinent legal points.” (¶ 23).