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Court’s failure to expressly find parent “unfit” didn’t invalidate TPR order

Sheboygan County DH&HS v. S.K., 2021AP158, District 2, 5/12/21 (one-judge decision; ineligible for publication); case activity

Though § 48.424(4) says that if grounds for termination of parental rights are found, “the court shall find the parent unfit,” the circuit court’s failure to utter those words doesn’t make the TPR order invalid.

S.K. doesn’t argue the circuit court erred in granting summary judgment on the grounds for TPR, just that the court didn’t explicitly make a finding S.K. was unfit. (¶4). The court of appeals holds the finding was implicit and that’s good enough:

¶5     …. Our supreme court explained in Steven V.:

There are 12 statutory grounds of unfitness for termination of parental rights, see Wis. Stat. § 48.415(1)-(10), and if a petitioner proves one or more of the grounds for termination by clear and convincing evidence, “the court shall find the parent unfit.” There are no “degrees of unfitness” under the statutory scheme; a court has no discretion to refrain from finding a parent unfit after all the elements of a statutory ground have been established.

Steven V. [v. Kelley H., 2004 WI 47], 271 Wis. 2d 1, ¶25[, 678 N.W.2d 856] (citations omitted). Accordingly, a finding that a parent is unfit is the direct and necessary result of a conclusion that sufficient grounds for termination exist. Once the court concluded that the Department had established the ground of abandonment against S.K., the court had no discretion to make any other finding except that S.K. is unfit. This is why courts in this state refer to this phase as “the ‘grounds’ or ‘unfitness’ phase of a TPR case,” see, e.g., Steven V., 271 Wis. 2d 1, ¶28, because the findings are synonymous, see A.N. v. F.S., Nos. 2015AP1405 and 2015AP1406, unpublished slip op. ¶7 (WI App Oct. 2, 2015) (“[T]here is no practical difference between the fact-finder’s conclusion that grounds for termination have been established, and a circuit court’s finding that a parent is unfit.”).

S.K. also faults the circuit court for not considering the § 48.425 court report because it didn’t refer to the report in its oral ruling, and criticizes the report itself for not referring to efforts to contact relatives regarding placement or adoption as required by § 48.834(1). The court finds indications in the record the circuit court considered the court report, and S.K. identifies no relatives that should have been contacted. (¶¶7-9).

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