This is a confidential case, so we don’t know what the briefs argue or the record shows. However, it seems the circuit court failed to make the findings essential to its order terminating T.R.’s parental rights to her 3 children, and the court of appeals shored up the decision in order to affirm.
T.R.’s appeal centers on the dispositional phase of her TPR proceeding where the circuit court must consider the 6 “best interest of the child” factors in §48.426(3). The circuit court has discretion to determine where those best interests lie, but “the record should reflect adequate consideration of and weight to each factor.” Darryl T-H. v. Margaret H., 2000 WI 42, ¶20, 234 Wis. 2d 606, 610 N.W.2d 475. One of those factors is whether the child has substantial relationships with the parent or other family members and whether it would be harmful to sever those family relationships. §48.426(2)(c).
The circuit court heard evidence that the relationship among the 3 children was substantial even though two biological siblings were placed in a different foster home than their half sibling. But the circuit court did not explicitly address this factor in its decision.
That’s okay, says the court of appeals. It holds that the circuit court “implicitly found that the effect of severing these relationships was not unduly harmful in a way that outweighed other considerations.” Opinion, ¶13. The evidence? The foster parents testified that they were willing to keep the children in contact with each other. Opinion, ¶¶13-14.
T.R. also argued that that the circuit court’s discussion of one factor (the age and health of the children) did not weigh for or against termination. The court of appeals agreed but again gave the circuit court a pass because the circuit court’s “discussion of each other factor clearly supports the court’s ultimate conclusion to terminate T.R.’s rights.” Opinion, ¶18.
So what’s the point of requiring “the record should reflect adequate consideration of and weight to each factor”? Not much. This is recurring problem. When circuit courts fail make fact findings required by statutes or case law, the court of appeals will do it for them and, as in this case, say they are “implied” in the record. See e.g. State v. Pallone, 2000 WI 77, ¶44 n. 13, 236 Wis. 2d 162, 613 N.W.2d 568. In theory this prevents needless remand proceedings. But to an appellant it feels like a thumb on the scales of justice. Plus often the facts actually are in dispute so it also feels like the court of appeals is finding facts contrary to Wurtz v. Fleischman, 97 Wis. 2d 100, 108, 293 N.W.2d 155 (1980). And letting circuit courts escape accountability for failing to make fact findings ensures that the practice will continue.