{concurring).
¶ 54. I join the majority opinion. I write separately, however, to express my concern about the current statutory scheme for involuntary terminations of parental rights. Because there may be situations when one of the grounds for termination is met, but the facts themselves do not indicate parental unfitness, I write separately.
¶ 55. In Sheboygan County Department of Health & Human Services v. Julie A.B., 2002 WI 95, ¶¶ 24-28, 255 Wis. 2d 170, 648 N.W.2d 402, this court clarified that a termination proceeding is a two-step process rather than a three-step process as two prior cases had *33determined.1 Specifically, we concluded that the legislature did not contemplate an intermediate step at which the circuit court decides, after the fact-finder has found that a ground exists, whether the parent's unfitness is egregious enough to warrant termination.2 We explained that " '[i]f grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit.' Wis. Stat. § 48.424(4)."3
¶ 56. Our decision in Julie A.B. was the correct one under the statutory scheme. The problem with the statutory scheme, however, becomes exceedingly clear in the present case. Here, the petition alleged that Kelley had been denied physical placement and visitation by court order for more than one year pursuant to Wis. Stat. § 48.415(4).4 As the dissent recognizes, there may be reasons a court did not modify the order denying placement and visitation, including serious illness, temporary incarceration, or involuntary absence from the jurisdiction, or a judge's illness or death.5 These reasons, however, cannot currently be considered to defeat the determination of unfitness once a ground has been found.6
*34¶ 57. In certain cases, a parent will be able to raise his or her legitimate explanation about why his or her conduct does not constitute unfitness by means of a constitutional challenge. In those cases where the legislative scheme seems to bypass any meaningful determination of unfitness, the petitioner can assert that the statutory ground for unfitness is not sufficiently narrowly tailored to meet the constitutional standards. See Monroe County Dep't of Human Servs. v. Kelli B., 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 831.
¶ 58. Mounting a constitutional challenge is not, however, easily accomplished given the presumption of constitutionality and the burden of proof.7 Other cases, which may not rise to the level of a constitutional challenge, seem to cry out for relief. A parent who has a legitimate explanation about why his or her conduct does not constitute unfitness in fact should be heard before a circuit court declares that parent unfit.
¶ 59. The majority here encourages parents to raise in the dispositional stage their explanations as to why their conduct does not make them in fact unfit. Yet given the fundamental liberty interest involved, I am concerned that raising the legitimate explanation in the dispositional stage provides an inadequate safeguard. At the dispositional stage, the best interests of the child serves as the "polestar" for the court.8 Although a court may consider factors favorable to a parent, it is only required to consider the six factors set forth in Wis. *35Stat. § 48.426(3).9 Significantly, not one of these factors addresses a parent's explanation.
¶ 60. Given the significance of termination proceedings for parents, children, and society, I believe that the legislature should revisit the statutory scheme to ensure the legitimacy and constitutionality of the process. Accordingly, I urge the law revision committee and the revisor of statutes to exercise their statutory duties under Wis. Stat. § 13.83(1) and § 13.93(2)(d) and examine the statutes, as they are, in my opinion, in need of revision.
¶ 61. For the reasons set forth, I write separately.
¶ 62. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.The two prior cases were B.L.J. v. Polk County Department of Social Services, 163 Wis. 2d 90, 470 N.W.2d 914 (1991), and State v. Kelly S., 2001 WI App 193, 247 Wis. 2d 144, 634 N.W.2d 120.
Sheboygan County Dep't of Health and Human Servs. v. Julie A.B., 2002 WI 95, ¶ 36, 255 Wis. 2d 170, 648 N.W.2d 402.
Id., ¶ 26.
Majority op., ¶ 2.
Dissent, ¶ 97.
See Wis. Stat. § 48.424(4).
See Winnebago County Dep't of Social Servs. v. Darrell A., 194 Wis. 2d 627, 637, 534 N.W.2d 907 (Ct. App. 1995); State v. Thiel, 188 Wis. 2d 695, 706, 524 N.W.2d 641 (Ct. App. 1993).
Julie A.B., 255 Wis. 2d 170, ¶ 4.
See id., ¶ 29. Wisconsin Stat. § 48.426(3) states:
(3) FACTORS. In considering the best interests of the child under this section the court shall consider hut not be limited to the following:
(a) The likelihood of the child's adoption after termination.
(b) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home.
(c) Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships.
(d) The wishes of the child.
(e) The duration of the separation of the parent from the child.
(f) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child's current placement, the "likelihood of future placements and the results of prior placements.