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Parental unfitness finding “necessarily flows” from finding there are grounds to terminate parental rights

A.N. v. F.S., 2015AP1405 & 2015AP1406, District 3, 10/2/15 (one-judge decision; ineligible for publication); case activity

A circuit court handling a TPR case is not required to make an explicit finding that a parent is unfit before proceeding to the dispositional phase because a finding of unfitness automatically follows from a finding there are grounds to terminate the parent’s rights.

¶6     The applicable case law makes clear that the required finding of unfitness in the grounds phase flows directly from the finding that one or more grounds for termination have been established. The supreme court at one time understood the termination statutes to confer upon circuit courts discretionary authority to dismiss a petition if, despite a finding that grounds for termination had been established, “the evidence of unfitness [was] not so egregious as to warrant termination of parental rights.” See B.L.J. v. Polk Cty. Dep’t of Soc. Servs., 163 Wis. 2d 90, 103, 470 N.W.2d 914 (1991), overruled by Sheboygan Cty. Dep’t of Health & Human Servs. v. Julie A.B., 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d 402. In Julie A.B., a unanimous supreme court concluded this interpretation was erroneous and held the termination statutes do not establish “an intermediate step between fact-finding by the jury and disposition by the court, in which the court must decide whether the parent’s already established unfitness is ‘egregious’ enough to warrant considering termination as a disposition.” Julie A.B., 255 Wis.2d 170, ¶36. Similarly, the circuit court is not required to make an independent finding of parental unfitness once grounds for termination are established. B.L.J., 163 Wis. 2d at 109.

¶7     As a result, there 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. Once the circuit court in this case determined the petitioner was entitled to partial summary judgment on the three grounds alleged for termination, it had no discretion to do anything other than find F.S. unfit. ….

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