Sheboygan County DH & HS v. S.K.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 12, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP158 Cir. Ct. No. 2019TP48
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN THE INTEREST OF K.S-S., A PERSON UNDER THE AGE OF 18:
SHEBOYGAN COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
S.K.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Sheboygan County:
REBECCA L. PERSICK, Judge. Affirmed.
No. 2021AP158
¶1 REILLY, P.J.1 S.K. appeals from the circuit court’s order
involuntarily terminating his parental rights (TPR) to K.S-S. The circuit court
granted partial summary judgment at the grounds phase based on abandonment,
pursuant to WIS. STAT. § 48.415(1)(a)2. S.K. argues that the circuit court failed to
explicitly state that it was finding him unfit, and, therefore, the court failed to
comply with the statutory scheme and the order terminating his parental rights
should be vacated. He also argues that the court failed to consider the court report
at the dispositional phase and that the Sheboygan County Department of Health &
Human Services (the Department) failed to comply with WIS. STAT. § 48.834, as it
failed to contact any relatives of S.K. regarding placement and adoption of K.S-S.
For the reasons that follow, we reject S.K.’s arguments and affirm.
¶2 S.K. was adjudicated the father of K.S-S. on February 6, 2019.2 On
November 6, 2019, the Department filed a TPR petition against S.K., and later
amended the petition, claiming abandonment, pursuant to WIS. STAT.
§ 48.415(1)(a)2.; child abuse, pursuant to § 48.415(5)(a); and failure to assume
parental responsibility, pursuant to § 48.415(6). On July 30, 2020, the Department
filed its motion for partial summary judgment on the ground of abandonment,
alleging that S.K. failed to contact or communicate with K.S-S.—or anyone
regarding K.S-S.—from December 21, 2019, to the motion date. The circuit court
granted summary judgment to the Department at the grounds phase, and,
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
K.S-S. was first placed outside his parent’s home in July 2016, when he was eight
months old, and a child in need of protection or services (CHIPS) petition was granted in
November 2016. K.S-S.’s birth mother voluntarily terminated her parental rights and is not a
party to this appeal. S.K. was incarcerated at the time the TPR petition was filed and for the
majority of K.S-S.’s life.
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following a dispositional hearing, the court terminated S.K.’s rights to K.S-S.
S.K. appeals.
¶3 Under Wisconsin law, TPR proceedings involve a two-part statutory
procedure: the “grounds” phase and the “dispositional” phase. Steven V. v. Kelley
H., 2004 WI 47, ¶¶24, 26, 271 Wis. 2d 1, 678 N.W.2d 856. “In the first, or
‘grounds’ phase of the proceeding, the petitioner must prove by clear and
convincing evidence that one or more of the statutorily enumerated grounds for
termination of parental rights exist.” Id., ¶24; see also WIS. STAT. § 48.31(1). If
the court or a jury finds one of the twelve grounds under WIS. STAT. § 48.415, “the
court shall find the parent unfit.” Steven V., 271 Wis. 2d 1, ¶25 (quoting WIS.
STAT. § 48.424(4)). In the second, dispositional phase, the court must determine
what is in the “best interest of the child,” considering, at a minimum, the “best
interests” factors enumerated in WIS. STAT. § 48.426(3). Steven V., 271 Wis. 2d
1, ¶27 (citation omitted).
¶4 S.K. argues that the circuit court “failed to make a finding of
unfitness as required by the statute and therefore failed to comply with” WIS.
STAT. § 48.424(4).3 Significantly, S.K. does not argue that the court erred in
granting the Department’s motion for partial summary judgment at the grounds
phase, as he makes no argument that there remained issues of material fact
concerning his abandonment of K.S-S. The Department admits that the court
“failed to explicitly state that it was finding S.K. unfit,” but argues that the court
3
A circuit court’s statutory obligations in a TPR case are questions of law for our
independent review. See Steven V. v. Kelley H., 2004 WI 47, ¶20, 271 Wis. 2d 1, 678 N.W.2d
856.
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made an implicit finding of unfitness. We agree that the court’s implicit finding
was sufficient under the statute.
¶5 WISCONSIN STAT. § 48.424(4) provides in part: “If grounds for the
termination of parental rights are found by the court or jury, the court shall find the
parent unfit.” 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., 271 Wis. 2d 1, ¶25 (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.”).4
4
We may cite an unpublished decision “for its persuasive value.” WIS. STAT.
RULE 809.23(3)(b).
4
No. 2021AP158
¶6 We conclude that although the court did not explicitly state that it
was finding S.K. unfit, the court’s implicit conclusion based on its finding of
abandonment—a statutory ground of unfitness for termination of parental rights—
was sufficient. We agree with the Department that “[t]here would be no point in
sending this case back to the circuit court for a specific declaration to that effect,”
as “directing the [circuit] court to make an explicit finding where it has already
made unmistakable but implicit findings to the same effect would be both
superfluous and a waste of judicial resources.” See B.L.J. v. Polk Cnty. DSS, 163
Wis. 2d 90, 109, 470 N.W.2d 914 (1991) (citation omitted), modified on other
grounds by Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, 255 Wis. 2d 170,
648 N.W.2d 402.
¶7 S.K. also argues that the circuit court failed to consider the WIS.
STAT. § 48.425 court report during the dispositional phase, which is a violation of
WIS. STAT. § 48.426.5 Again, S.K. does not challenge the court’s determination at
the dispositional hearing that termination was in K.S-S.’s best interests, only that it
failed to consider the court report.
¶8 S.K. cites no evidence in the record proving or even indicating that
the court did not consider the court report; he notes only that “there is no reference
to the court report” in the court’s oral decision. The Department filed the required
court report on November 27, 2019, and filed an update on March 27, 2020. At
the dispositional hearing, the social worker testified regarding the contents of the
report, addressing the factors that the court must consider pursuant to WIS. STAT.
5
WISCONSIN STAT. § 48.426(1) provides: “In making a decision about the appropriate
disposition under [WIS. STAT. §] 48.427, the court shall consider the standard and factors
enumerated in this section and any report submitted by an agency under [WIS. STAT. §] 48.425.”
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No. 2021AP158
§ 48.426, which the court then recounted in its decision that termination of S.K.’s
parental rights would be in K.S-S.’s best interests. Further, as the Department
notes, the court addressed K.S-S.’s hospitalization at the hearing, which was not
mentioned in the testimony, but was mentioned in the court report, indicating that
the court did in fact review the report. We see no error.
¶9 Finally, S.K. argues that the Department failed to comply with WIS.
STAT. § 48.834(1) as its report “made no reference to any efforts … to contact
relatives of S.K.” regarding placement and adoption of K.S-S. Section 48.834(1)
provides:
Before placing a child for adoption under [WIS. STAT.
§] 48.833, the department, county department under [WIS.
STAT. §] 48.57(1)(e) or (hm), or child welfare agency
making the placement shall consider the availability of a
placement for adoption with a relative of the child who is
identified in the child’s permanency plan under [WIS. STAT.
§§] 48.38 or 938.38 or who is otherwise known by the
department, county department, or child welfare agency.
As is clear from the language, the Department was under no statutory obligation
“to contact relatives of S.K.” The Department is required only to consider those
relatives “who [are] identified in the child’s permanency plan” or “who [are]
otherwise known by the department.” Id. The Department explains that S.K.’s
paternity was not established until years into the CHIPS case, and “S.K. did not
communicate with the Department after paternity was established.” According to
the Department, S.K. failed to identify any available relatives that would be
available for placement of K.S-S., citing WIS. STAT. § 48.21(3)(f) (noting that in
proceedings concerning CHIPS where a child is in custody, “the parent shall be
requested to provide the names and other identifying information of 3 relatives of
the child … whose homes the parent requests the court to consider as placements
for the child”), and S.K. does not suggest that he ever made any relatives known to
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No. 2021AP158
the Department that it then failed to consider. We agree with the Department that
it complied with the terms of § 48.834(1).
¶10 Accordingly, based on the foregoing, we affirm the order
terminating S.K.’s parental rights to K.S-S.6
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
6
The guardian ad litem filed a response brief in this case, agreeing with the arguments
made by the Department in all respects, but also argued in the alternative that any errors alleged
by S.K. were harmless. As we found no errors, we will not reach the harmless error issue. S.K.
did not file a reply brief.
7