¶11      The policies underlying the no-contact rule are of sufficient importance in guardianship cases that the right to counsel guaranteed by Wis. Stat. § 54.42(1)(b) includes the ward’s right to have counsel present during an interview with the guardian ad litem for the purpose of making a report to the court.  A ward placed under a guardianship of the person has been found incompetent in that “the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.”  Wis. Stat. § 54.10(3)(a)2.  This fact enhances the disparity in legal skill between the guardian ad litem and the ward.  Additionally, the presence of adversary counsel during an interview with the ward’s guardian ad litem prevents the guardian ad litem from manipulating the distinction between the ward’s best interests and his or her expressed interests, inquiries that may be fraught with tension.  See Knight, 2002 WI 27, ¶¶53-54.  Finally, to the extent such an interview may reveal information protected by the attorney-client relationship, the right to counsel helps prevent the inadvertent disclosure of privileged information.

¶18      The ICWA does not preempt the Wisconsin Children’s Code, and Wisconsin statutes can be harmonized with the federal law by applying any state law safeguards beyond those mandated by the ICWA. I.P. v. State (In re Interest of D.S.P.), 166 Wis. 2d 464, 472-73, 480 N.W.2d 234 (1992). Thus, in a TPR proceeding involving an Indian child, the County must meet the substantive and procedural requirements of the ICWA as well as proving grounds for termination of parental rights as required by state law. See id. at 473-74.

¶19      The parties’ dispute over the application of 25 U.S.C. § 1912(f) arises out of the meaning of the italicized words in the phrase “that the continued custody of the child by the parent … is likely to result in serious emotional or physical damage to the child.” The County, as we understand it, construes “custody” to mean “physical custody” and “continued custody” to mean that the parent must have physical custody when the TPR petition is filed. Luis asserts that the court in In re Interest of D.S.P. approved the application of subsec. (f) in a situation where the child had not been in the care of a parent for a significant amount of time and that the D.S.P. court’s reasoning supports the application of subsec. (f) here.

…

¶23      We agree with Luis that the supreme court in D.S.P. apparently construed “custody” to mean physical custody, while also implicitly construing “continued custody” not to require that the parent have physical custody at the time of the TPR proceeding. We also agree with Luis that we may not modify the supreme court’s analysis on this point by altering the meaning of “custody.” This argument must be addressed to the supreme court.

…

¶29      We conclude that 25 U.S.C. § 1912(f) applies in this case even though Vaughn was placed with a foster family at the time this action was filed and had been living there for at least three years.

¶37      Because in D.S.P. the court affirmed an exercise of the circuit court’s discretion, we do not read D.S.P. to hold that 25 U.S.C. § 1912(f) requires that social workers must have qualifications comparable to those of the two testifying there. However we do read D.S.P. to construe subsec. (f) to mean, consistent with the House Report, that a social worker must have expertise beyond the normal social worker qualifications.  

¶38      Turning to Mahan’s qualifications, we first observe that, while she no doubt has specialized knowledge as a result of her bachelor’s and master’s degrees in criminal justice, that knowledge does not relate to the showing required by 25 U.S.C. § 1912(f)—assessing the likelihood of serious emotional or physical damage to Vaughn if he is returned to his father. Second, while she is an experienced social worker, her experience in monitoring the conditions imposed on parents for the return of their children does not suggest something beyond normal social work qualifications or functions.

¶39      We next consider paragraph D.4(b) of the BIA guidelines recognizing that they are not binding. Mahan’s qualifications do not fall within D.4(b)(i) or (ii). As for D.4(b)(iii), “a professional person having substantial education and experience in the area of his or her specialty,” this is a general description and the intended scope is not clear. However, to read it to include social workers with normal qualifications would be inconsistent with the clear statement of Congressional intent. ^[16] See H.R. Rep. No. 95-1386 at 22.

¶51      We conclude that Congress plainly did not intend to mandate a particular burden of proof for the showing required in 25 U.S.C. § 1912(d). The trial court here instructed the jury that it must be convinced by clear and convincing evidence that the requirements of subsec. (d) were met. That is the burden of proof applied for finding grounds for termination of parental rights under Wisconsin law. See Wis. Stat. §§ 48.31, 48.424(2). Luis does not develop an argument that, if the ICWA does not mandate the beyond a reasonable doubt standard for the § 1912(d) showing in TPR cases, we should nonetheless apply that heightened standard. Accordingly, we conclude the circuit court properly instructed the jury on the burden of proof for special verdict questions 5 and 6, which incorporated the requirements of subsec. (d).

¶16      Thus, at the very least, a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination. Additionally, we conclude that in order for the court’s explanation of potential dispositions to be meaningful to the parent, the parent must be informed of the statutory standard the court will apply at the second stage. That is, the court must inform the parent that “[t]he best interests of the child shall be the prevailing factor considered by the court in determining the disposition ….” Wis. Stat. § 48.426(2).

¶17      We decline, however, to adopt the expansive approach proffered by Therese, requiring courts to inform parents in detail of all potential outcomes, including all alternatives to termination. …

¶8    Regarding the first alleged deficiency, it is undisputed that the circuit court never established on the record whether Therese understood she would be found unfit to parent as a result of her plea. Therese contends the circuit court was required to inform her of this direct consequence because Wis. Stat. § 48.424(4) required the court to find Therese unfit.

¶9        The County responds that, because of the Wis. Stat. § 48.422(7)(c) factual basis requirement, a parental unfitness finding is not automatic and, therefore, not a direct result of the plea. The County is mistaken. Section 48.422(7) requires courts to establish a factual basis “[b]efore accepting an admission ….” Thus, once the court accepts a no contest plea at the grounds stage, the parent must be found unfit. See Sheboygan County v. Julie A.B, 2002 WI 95, ¶26, 255 Wis.  2d 170, 648 N.W.2d 402.

¶10      We conclude that in order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness. …

¶1        Allen J. appeals from orders terminating his parental rights to his children, Brandon ^[1] and Stephanie J. He argues that he was deprived of his right to a jury trial because the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Allen’s counsel had stipulated that the element was satisfied, but Allen argues that he did not personally agree to withdraw his jury demand on the element. We put this appeal on hold pending the supreme court’s resolution of Walworth County DHHS v. Andrea L.O., 2008 WI 46, __ Wis. 2d __, 749 N.W.2d 168. In that case, the supreme court held that the parties’ stipulation to one element of parental unfitness did not constitute a withdrawal of a jury trial demand because the jury, rather than the court, answered the verdict question and there was ample evidence to support the element. Id., ¶3. The court went on to hold that even if the stipulation had been a withdrawal of the jury trial demand on the element, it was not error for the circuit court not to hold a personal colloquy with the defendant where the defendant personally agreed to the stipulation in open court, the stipulation was to a single, undisputed, paper element, and there was ample uncontroverted evidence to support the stipulated element. Id., ¶4.

¶2        We now reverse and remand for a new trial. We conclude that the stark factual differences between this case and Andrea L.O. call for this result. First, here the court, not the jury, answered the verdict question on the stipulated element, and so, as Manitowoc County rightly concedes, Allen did not receive a jury trial on the issue. Thus, the dispositive question becomes whether it was error for the court to withdraw the element from the jury’s consideration. We conclude that it was because the crucial facts relied on by the Andrea L.O. court are missing here. At no time did Allen agree to the stipulation in open court. Second, though the element in consideration is a “paper” element, the required documentary evidence is missing from the record, and the evidence adduced is not so “ample” as to make the element “undisputed and undisputable.” We therefore also conclude that the court’s error was not harmless.

¶6        There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice. Second, the County Department of Social Services must have made a reasonable effort to provide services ordered by the court. Third, the parent must fail to meet the conditions established in the order for the safe return of the child to the parent's home. Fourth, there must be a substantial likelihood that the parent will not meet the conditions of safe return of the child within the 12-month period following the conclusion of the termination hearing. ^[3]

¶34      Although N.E. and S.B. concern withdrawal of the demand for a jury trial, they are distinguishable from the facts presented here. In each of those cases, a party's attorney withdrew a prior demand for a jury trial while the defendant was not present. In N.E., the attorney did not consult with the juvenile before withdrawing the demand, and in S.B., the attorney withdrew the demand without S.B.'s knowledge or consent. Here, however, the stipulation between the parties took place in Andrea's presence. Moreover, Andrea's attorney asked her in open court whether she understood the issue and whether she was willing to stipulate that Junior was adjudged in need of protection or services and that he had been placed out of her home for six months or more. Andrea answered yes.

¶35      A second important difference between the present case and N.E. and S.B. is that this case does not involve a complete withdrawal of the demand for a jury trial. The parties agreed to stipulate to one element of the ground for termination, but the demand for a jury trial on the other three elements was unaffected. Importantly, Andrea's focus in the case was not on the first element. Her attorney admitted that the first element was "not seriously in dispute." Rather, he explained that the focus was on the fourth element, that is, whether there was a substantial likelihood that Andrea would not meet the conditions for return within a year. In contrast, N.E. and S.B. involved the withdrawal of the demand for a jury trial on all elements, rather than a stipulation regarding a single element that was not in dispute.

¶51      We do not decide, however, the effect of Villareal and Hauk beyond the facts presented here. Thus, we do not address how courts should use criminal cases involving stipulations to shape decisions concerning stipulations in TPR proceedings.

...

¶55      Nonetheless, while we do not require it, we urge that circuit courts in TPR proceedings consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury's consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Although no personal colloquy is required here because Andrea received a jury trial, we have not addressed whether it would be required in other contexts.

¶56      Termination of parental rights proceedings are "among the most severe forms of state action" that involve the "'awesome authority of the State to destroy permanently all legal recognition.'" Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246 Wis.  2d 1, 629 N.W.2d 768 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 127-28 (1996). We have previously determined that such proceedings may "require heightened legal safeguards against erroneous decisions." Oneida County Dep't of Soc. Servs. v. Nicole W., 2007 WI 30, ¶32, 299 Wis.  2d 637, 728 N.W.2d 652 (quoting Evelyn C.R., 246 Wis. 2d 1, ¶21)).

¶15      Further, the system that the trial court used here is plainly and significantly different from the simple telephone setup at issue in Lavelle W. One obvious distinction is that Teodoro was able to see both the witness and a wider view of the entire courtroom. Further, Teodoro’s attorney was able to communicate with him privately which, as we noted in Lavelle W., is a key component of meaningful participation. Lavelle W., 288 Wis. 2d 504, ¶8. In fact, in Rhonda R.D., a case unacknowledged by Teodoro, we held that a telephone setup that allowed the parent to consult privately with his lawyer afforded the parent meaningful participation in the termination proceedings. Rhonda, 191 Wis. 2d at 701-03.

¶16      … If the circuit court had insisted on Teodoro’s physical presence, which was apparently impossible, there is no telling how long things would have continued in the posture that they were in: Teodoro in Mexico and the children in foster care and in legal limbo, their future unknown. This would have been grossly unfair to the children, as well as contrary to the legislative directive that TPR cases proceed in a timely fashion. See Rhonda R.D., 191 Wis. 2d at 698-99.

¶19      Just as with Lavelle W., the procedures adopted by the circuit court in this case distinguish it from Deppisch. The record shows that Teodoro could consult privately with his attorney. Moreover, his attorney was physically present in the courtroom. Thus, unlike in Deppisch, there was nothing preventing the court from keeping an eye on either Teodoro or his counsel. ^[4] We reject Teodoro’s ineffective assistance argument.

¶23      But as the circuit court noted, “Mexico is not prison” and Teodoro remained free to work on and meet many of the conditions of return. As an example, the first condition, “Show that you are interested in your child,” includes subparts that deportation should not have prevented Teodoro from meeting, such as “[t]alk to doctors, teachers, therapists and other people who care for your child to learn what your child needs … [and] [p]ay child support on a regular basis.” The trial court found that Teodoro did neither of these things, either in Mexico or earlier when he was in Waukesha; indeed, during the time that his wages were being garnished to pay child support, he sometimes asked for and received the money back from the children’s mother. We affirm the circuit court’s holding that the grounds for Teodoro’s termination were not based solely on impossible conditions and that Jodie W. therefore does not govern this case.

¶25      Teodoro finally argues that at the dispositional stage, the trial court erroneously determined that termination of his parental rights would be in the best interests of the children. This determination is committed to the circuit court’s discretion, and will not be overturned unless that discretion is erroneously exercised. See Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶¶42-43, 255 Wis. 2d 170, 648 N.W.2d 402. Teodoro acknowledges some of the evidence that the court relied on in coming to its decision, including Adrianna’s psychologist’s opinion that there was not a substantial relationship between Teodoro and Adrianna and various indications that the children are doing much better since their separation from Teodoro. Teodoro’s only argument is to say that the court inappropriately “blamed” him for everything and to make the conclusory statement that “Adrianna and Antonio should be allowed to live with their father in Mexico.” He has presented nothing that would cause us to question the circuit court’s discretionary determination that termination is in the children’s best interest. We affirm.

¶5        For the reasons set forth, we hold that in determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under Wis. Stat. § 48.415(6), a circuit court must consider the biological father's efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding. Thus the circuit court in the instant case proceeded under an erroneous interpretation of the statute. Accordingly, the facts were not fully developed; to the extent facts were developed, these facts and their import are in dispute. The parties disputed whether Bobby G. assumed parental responsibility after he learned of his paternity but before adjudication of the grounds for termination. Accordingly, with facts in dispute, the circuit court erred as a matter of law in granting partial summary judgment. Moreover, Bobby G. requested a jury trial, which the circuit court denied because it erroneously found no material facts or inferences therefrom in dispute. Neither the circuit court nor this court can deprive Bobby G. of a jury trial by deciding the factual dispute. ^[6]  

---

 ^[6] A circuit court may direct a verdict in the grounds phase of a termination of parental rights proceeding. Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999).

¶90      Bobby G.'s responses to the State's interrogatories should have alerted the circuit court that Bobby G. was trying to establish a parental relationship with Marquette after he had reason to believe that he was Marquette's father. Summary judgment was inappropriate because material facts were presented disputing the State's claim that Bobby G. never assumed parental responsibility for Marquette.

And very much relatedly: “The legislature expressly intended to protect, whenever appropriate, the biological family unit,” ¶57. If there’s any doubt on these points, chew on the opening lines of the dissent:

¶111    Could a cocaine- pushing, woman-battering man, who does not even know about the existence of his child, have accepted and exercised "significant responsibility for the daily supervision, education, protection and care of the child"? Wis. Stat. § 48.415(6)(b) (2003-04).  

¶112    If that is too close of a call, consider the same question, only the person admitted he never exercised responsibility for the daily supervision of the child, never exercised responsibility for the education of the child, never paid child support, and never met the child. Plus, he has been incarcerated for the vast majority of the child's life.

¶113    The circuit court answered no. Such a person has not assumed parental responsibility pursuant to Wis. Stat. § 48.415(6). The majority concludes the circuit court erred. "[T]he circuit court in the instant case proceeded under an erroneous interpretation of the statute" by failing to "consider the biological father's efforts undertaken after he discover[ed] that he is the father but before the circuit court adjudicate[d] the grounds of the termination proceeding." Majority op., ¶5.

¶114    The plain language of the Children's Code contradicts the majority's interpretation of § 48.415(6).  Accordingly, I respectfully dissent

•         The 30-day time limit for holding an initial hearing. Wis. Stat. § 48.422(1); Brown County v. Shannon R., 2005 WI 160 ¶¶2, 74, 81-82, 286 Wis. 2d 278, 706 N.W.2d 269; April O., 233 Wis. 2d 663, ¶¶1, 4-5, 7-10.
•         The 45-day time limit for holding a fact-finding hearing. Wis. Stat. § 48.422(2); State v. Robert K., 2005 WI 152, ¶¶2, 16-17, 286 Wis. 2d 143, 706 N.W.2d 257; Matthew S., 282 Wis. 2d 150, ¶¶1-2, 13-18.
•         The 45-day time limit for holding a dispositional hearing. Wis. Stat. § 48.424(4); State v. Quinsanna D., 2002 WI App 318, ¶¶2, 34-37, 259 Wis. 2d 429, 655 N.W.2d 752; April O., 233 Wis. 2d 663, ¶¶1, 4-5, 7, 11-12.

¶11      … We conclude, however, that the circuit court here did not lose competency because it fully adjudicated the TPR proceeding and made all the decisions it was required to make in its oral decision and order prior to expiration of the 10-day time limit.

¶12      After hearing evidence at a dispositional hearing, a circuit court must make a number of decisions. The decisions that must be made depend on the circumstances and are set forth in several statutes. …

¶13      … Here, in light of both the court’s decision to terminate Dyanne’s parental rights and Artavia’s custody and adoption needs, three rulings were required … The circuit court’s oral decision contains all three rulings. …

¶14      Having made these rulings, there was nothing left for the circuit court to adjudicate. It follows that the “critical stages within the adjudication process” concluded when the court rendered its oral decision. Moreover, because the 10-day time limit in Wis. Stat. § 48.427(1) had not passed when the circuit court ruled orally, any subsequent failure to comply with that time limit did not deprive the circuit court of competency. The net effect of our holding is that, as long as the required rulings are made within the 10-day time limit, even if they are oral, the court does not lose competency.

¶19      Dyanne acknowledges that the CHIPS order makes reference to “warnings” and contains the statutory language defining the possible grounds for termination. She also does not dispute that the order contains the conditions that were necessary for Artavia’s return. Dyanne’s argument is limited to an assertion that the order fails to sufficiently connect the warning language to the statutory language. She asserts: “what is missing is relevance of the statutory language at the end of the [CHIPS] dispositional order.” Dyanne states: “There is no bridging language to put the statutory language in context. There is nothing to tell the parent ‘If you fail to do this, your parental rights could be terminated.’”

…

¶21      Dyanne apparently reads M.P. to require an explanatory provision like the one quoted in M.P. Although such a provision may be helpful and advisable, we agree with the department that the CHIPS order in this case is sufficient under Wis. Stat. § 48.356(2).

¶2      We conclude that Wis. Stat. § 48.415(10)(b) does not require proof of which § 48.415 ground was relied upon for a prior termination of parental rights because the phrase, "on one or more of the grounds specified in this section," in § 48.415(10)(b) refers to proving only that the prior termination was an involuntary termination. …

…

¶19      Wisconsin Stat. § 48.415(10)(b) does not require proof of which of the available 12 grounds set out in § 48.415 was the basis for the involuntary termination because the phrase, "on one or more of the grounds specified in this section," is meant as only a general directive that assures the termination of rights was involuntary.  In regard to the sufficiency of a prior order that can be used as grounds under § 48.415(10), there is no need for the order to specify which ground was employed, as any of the grounds set out in § 48.415 is sufficient to satisfy the requirement of paragraph (10)(b). ^[9] …

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 ^[9]  Of course the issue may be different if the termination of Nicole's parental rights to Rockey were being appealed.  In that case, the reviewing court could be asked to ascertain whether sufficient proof was admitted by the circuit court to support the court's determination that a specific ground was proved by clear and convincing evidence.  However, an appeal of the termination of Nicole's parental rights to Rockey is not before us.

¶27      We agree with the court of appeals that to require more evidence than a prior involuntary termination order to satisfy Wis. Stat. § 48.415(10) would be tantamount to permitting a collateral attack on the prior order.  A collateral attack on a judgment is "an attempt to avoid, evade, or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it."  Zrimsek, 8 Wis.  2d 1, 3 (citing 5 Callaghan's, Bryant, Wisconsin Pleading and Practice (3d ed.), p. 373, § 37.97). ^[12]

¶28      In general, "a judgment is binding on the parties and may not be attacked in a collateral action unless it was procured by fraud."  State v. Madison, 120 Wis.  2d 150, 154, 353 N.W.2d 835 (Ct. App. 1984) ….

¶33      … (W)e have applied Sixth Amendment concepts in the context of termination of parental rights proceedings, even though the proceedings are civil in nature and the Sixth Amendment does not apply to civil proceedings.

¶34      When a claim of denial of the right of counsel is made, the claimant has the burden to make a prima facie showing of a violation of the right to counsel. …

¶35      However, we need not determine whether the prior Waukesha County termination of rights order may be collaterally attacked due to a violation of the right to counsel because Nicole made no prima facie showing that she was denied the right of counsel in the termination of rights proceeding regarding Rockey. …

The circuit court did not order a default under Wis. Stat. § 806.02(5). Shirley E. had "appeared" at the hearing by her attorney. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis.  2d 1, 629 N.W.2d 768.

The circuit court found Shirley E. in default as a sanction for failing to comply with its order to attend a hearing in person. Before a circuit court may enter a default on the ground that a party failed to comply with a court order, the party's conduct must be egregious or in bad faith. Evelyn C.R., 2001 WI 110, ¶17, 246 Wis.  2d 1, 629 N.W.2d 768; Johnson v. Allis Chalmers Corp., 162 Wis.  2d 261, 276, 470 N.W.2d 859, 878-79 (1991). The circuit court made no finding that Shirley E.'s conduct was egregious or in bad faith before finding her in default. The circuit court ordered the sanction of default on March 8, 2005 ——the first time Shirley E. failed to appear in person after being ordered to do so on February 14, 2004. Shirley E. ultimately failed to attend personally three other hearings in a five month period; her attorney attended all of them. The circuit court failed to consider Shirley E.'s attorney's explanations about why Shirley E. was not present in person, including difficulty of coming to Wisconsin from out of the state, her status as a parolee, and her lack of funds. A circuit court has discretion in imposing a sanction for noncompliance with an order but must make the appropriate findings to support a sanction of default.

The issue of the egregious nature of Shirley E.'s conduct has not been raised in this court, and we will not address it further.

¶41      We do not accept the State's position for three reasons. First, Wis. Stat. § 48.23 does not provide a right to counsel only to parents who appear in person. Second, case law clearly bars a circuit court from finding a parent in default before taking evidence on the ground alleged for the termination of parental rights. Accordingly, the circuit court’s finding of default in the present case was erroneous, and the circuit court had no power to bar the parent or parent's counsel from participation at the fact-finding stage. Third, in any event, the circuit court erred in barring counsel from the disposition phase.

…

¶46      In sum, the statute directs the right to counsel, and no statutory provision deprives a parent's counsel from presenting evidence and arguing at a termination of parental rights proceeding when the parent has "appeared" but has not appeared in person.

…

¶50      In the present case, as in Evelyn C.R., the circuit court erroneously found the mother in default before taking any evidence on the grounds alleged for termination of her parental rights. Because the circuit court should not have found Shirley E. in default before hearing evidence in the fact-finding phase, Shirley E.'s attorney should not have been barred from participating. Thus, the circuit court violated Shirley E.'s statutory right to counsel in the fact-finding phase.

¶51      In the present case, in contrast to Evelyn C.R., the circuit court heard evidence in the fact-finding phase after it found the mother in default and dismissed the mother's counsel. But the circuit court heard only the State's evidence, having erroneously barred Shirley E. by her attorney from challenging the State's evidence and presenting her evidence at the fact-finding phase. As a result of the circuit court's ruling dismissing Shirley E.'s counsel, the circuit court precluded counsel from participating on Shirley E.'s behalf.

…

¶53      Third, even if we were to view the circuit court's finding of Shirley E. in default as valid, Shirley E. could still appear at the disposition phase in person or by counsel. The circuit court thus erred in dismissing Shirley E.'s counsel from this hearing. 

¶57      The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be knowing and voluntary. As we determined in M.W. v. Monroe County Department of Human Services, it is "the duty of the court to determine by careful questioning that the waiver of counsel[ ]. . . is knowledgeable and voluntary." ^[38] The circuit court conducted no such inquiry here.

¶63      Depriving a parent of the statutory right to counsel in a termination of parental rights proceeding deprives the parent of a basic protection without which, according to our legislature, a termination of a parental rights proceeding cannot reliably serve its function. The fairness and integrity of the judicial proceeding that the legislature has established for termination proceedings has been placed in doubt when the statutory right to counsel is denied a parent. Accordingly, the denial of the statutory right to counsel in the present case constitutes structural error.

¶64      We thus hold that it was prejudicial error per se for the circuit court to dismiss Shirley E.'s attorney from the proceedings and to prevent counsel from participating in the termination of parental rights proceeding.

¶49      Like the Nevada Supreme Court, we similarly conclude that a parent's incarceration does not, in itself, demonstrate that the individual is an unfit parent. See J.L.N., 55 P.3d at 956. We further conclude that a parent's failure to fulfill a condition of return due to his or her incarceration, standing alone, is not a constitutional ground for finding a parent unfit.Id. These conclusions are required by the Wisconsin and United States Constitutions, which preclude a state from terminating a parent's fundamental right without an individualized determination of unfitness. Stanley, 405 at 649.

¶50      Because we interpret statutes to be constitutional if possible, Hezzie, 219 Wis. 2d 848 at 862 (citation omitted), we also conclude that Wis. Stat. § 48.415(2) requires the court to evaluate the particular facts and circumstances relevant to the parent and child involved in the proceeding. Our conclusions do not render a parent's incarceration irrelevant. We simply conclude that a parent's incarceration is not itself a sufficient basis to terminate parental rights. Other factors must also be considered, such as the parent's relationship with the child and any other child both prior to and while the parent is incarcerated, the nature of the crime committed by the parent, the length and type of sentence imposed, the parent's level of cooperation with the responsible agency and the Department of Corrections, and the best interests of the child. See P.P., 279 Wis. 2d 169, ¶30 (recognizing that the termination of parental rights of the incarcerated parent was "grounded in a lack of fitness on the part of [the parent]. . . . [T]he finding was based on [the parent’s] sexual assault and extreme abuse of his own children."). See also J.L.N., 655 P.3d at 960.

¶51      We therefore conclude that in cases where a parent is incarcerated and the only ground for parental termination is that the child continues to be in need of protection or services solely because of the parent’s incarceration, Wis. Stat. § 48.415(2) requires that the court-ordered conditions of return are tailored to the particular needs of the parent and child. A contrary interpretation would render the statute unconstitutional. Compare Hezzie, 219 Wis. 2d at 862 (citation omitted).

¶2        Birth-parents “have constitutionally protected rights to raise their children as they see fit, and these rights may only be circumscribed if the government proves that there is a ‘powerful countervailing interest.’” Richard D. v. Rebecca G., 228 Wis. 2d 658, 661, 599 N.W.2d 90, 92 (Ct. App. 1999) (quoted sources and one internal quotation mark omitted). Thus, “unless the birth-parent has either done something, or failed to do something, to trigger erosion of the constitutional wall that prevents the State from intruding on the birth-parent’s constitutionally protected rights, the fact that the child might be better off somewhere else is an insufficient reason to breach that wall.” Id., 228 Wis. 2d at 663 n.4, 599 N.W.2d at 93 n.4. Accordingly, “a proceeding to terminate parental rights addresses a fundamental right which requires judicial protection.” D.G. v. F.C., 152 Wis. 2d 159, 166, 448 N.W.2d 239, 242 (Ct. App. 1989). But “judicial protection” is meaningless unless a person whose fundamental rights may be abridged has an “opportunity to be heard at a meaningful time and in a meaningful manner.” Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530 N.W.2d 34, 42 (Ct. App. 1995); see also D.G., 152 Wis. 2d at 167, 448 N.W.2d at 243 (“We view the ability of a respondent in a termination of parental rights proceeding to meaningfully participate as a right which requires similar protection by the court.”). Whether participation has been “meaningful” is a constitutional fact subject to our independent review. Rhonda R.D., 191 Wis. 2d at 700, 530 N.W.2d at 42. The trial court, however, has discretion on how to guarantee that a birth parent’s participation in proceedings to terminate his or her parental rights is meaningful. See D.G., 152 Wis. 2d at 162–163, 448 N.W.2d at 240–241.

¶7        There is nothing in the Record that indicates that any of these procedures, either under the applicable statutes or under the regulations, were explored before resorting to what Lavelle W.’s lawyer called the “last resort”—the telephone. Moreover, because the State is the petitioner, D.G. recognizes that the trial court would have been within its discretion to order the State to absorb the costs of producing Lavelle W. for the hearings. D.G., 152 Wis. 2d at 168–169, 448 N.W.2d at 243.

¶8        Our discussion so far would be academic if the telephone solution allowed Lavelle W. to meaningfully participate in the termination-of-parental- rights proceedings. See Rhonda R.D., 191 Wis. 2d at 701–702, 530 N.W.2d at 42–43 (whether ability to participate is “meaningful” must be determined case-by-case). Although the trial court concluded that Lavelle W. was able to meaningfully participate, that is a matter, that, as noted, we review de novo. In our view, any alternative to a parent’s personal presence at a proceeding to terminate his or her parental rights must, unless either the parent knowingly waives this right or the ministerial nature of the proceedings make personal-presence unnecessary, be functionally equivalent to personal presence: the parent must be able to assess the witnesses, confer with his or her lawyer, and, of course, hear everything that is going on. The Record here reveals that at times Lavelle W.’s ability to hear the proceedings faded in and out, and, at least at one point, was temporarily interrupted by static.

¶9        Although it may very well be that Lavelle W. was able to hear significantly more than he was unable to hear, that is not sufficient because periodic or sporadic inaudibility, both of which marred Lavelle W.’s connection to the proceedings, significantly truncates a party’s ability to fully comprehend what is going on, and thus hinders the ability to get a feel for the proceedings—a mix of spoken words and body language—and, therefore, meaningfully consult with his or her lawyer concerning not only the testimony but also what everyone else may be doing in court. In sum, we conclude that Lavelle W. was not able to meaningfully participate in the proceedings, and, accordingly, we must vacate the orders terminating his parental rights and remand to the trial court for further proceedings consistent with this opinion.

Lamont argues that this court does not have jurisdiction over this matter because the guardian ad litem filed the notice of appeal and the State simply joined in the appeal instead of the other way around. We reject Lamont’s contention.  WISCONSIN STAT. § 48.235(7) plainly states that the guardian ad litem “may appeal, may participate in an appeal or may do neither.” This clearly authorizes the guardian ad litem to file a notice of appeal. When the guardian ad litem has appealed, the State is obligated to participate as a representative of the public interest in certain circumstances. Lamont has not provided, nor can we find, anything which requires the State to file a separate notice of appeal, when the guardian ad litem has already done so, and the State’s interests are aligned with those of the guardian ad litem.

¶19      We are not oblivious to the many contradictions in Lamont’s testimony, and we observe that the jury’s verdict might not have been our verdict. However, the first step in a termination of parental rights proceeding is the fact-finding hearing “to determine whether grounds exist for the termination of parental rights….” Wis. Stat. § 48.424(1). “During this step, the parent’s rights are paramount.” Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 N.W.2d 402 (citation omitted). “During this step, the burden is on the government, and the parent enjoys a full complement of procedural rights.” Id.

¶20      In reaching our conclusion that the trial court’s holding should be affirmed, we note that the consequences of termination are profound, id., ¶23, as“‘[t]ermination of parental rights’ means that, pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed,” Wis. Stat. § 48.40(2). Additionally, “[b]ecause termination of parental rights interferes with a fundamental liberty interest, we apply strict scrutiny and require the state to show that termination is narrowly tailored to serve a compelling state interest.” Monroe County DHS v. Kelli B., 2003 WI App 88 , ¶8, 263 Wis. 2d 413, 662 N.W.2d 360, aff’d, 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 831. As required, we give the trial court’s decision substantial deference and conclude the trial court was not “clearly wrong” in refusing the State’s and the guardian ad litem’s requests. See Helmbrecht, 122 Wis. 2d at 110. Therefore, we affirm.

¶71      The State's interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.'s constitutionally protected due process right to be heard in a meaningful manner. It would have imposed no burden on the State to allow Shannon R. to present her qualified expert witnesses.

¶72      In light of the important constitutional right at stake, the State's interest in an accurate decision, the fundamental fairness of giving a party the opportunity to defend, and Shannon R.'s inability to present evidence on an issue central to the outcome of the case, we hold that the circuit court's erroneous preclusion of Dr. Wellens's expert opinion testimony (the only expert opinion testimony Shannon R. proffered on an issue central to her defense) denied her the due process right to present a defense and goes to the fundamental fairness of the proceeding. We therefore hold that the circuit court committed prejudicial, reversible error.

¶40      In deciding the issue of foundation, the circuit court seemed fixated on the psychological tests that Dr. Wellens administered and did not consider the psychologist's experience, training, interview with Shannon R., and review of the voluminous case history. Thus the circuit court did not consider all the relevant facts.

¶41      Dr. Wellens could address Shannon R.'s abilities and her future behavior based not only on his training and review of her voluminous case history but also on his personal interview with and testing of Shannon R. and from listening to the opinions of others. …

¶42      The circuit court erred by not applying the proper legal standard.  It failed to recognize that courts ordinarily allow psychologists to opine about the future behavior of an individual. …

¶43      … The circuit court seemed to be saying that only those experienced or trained in social work have the expertise to testify in termination of parental rights cases about the substantial likelihood of a parent's meeting the conditions for return of a child within the 12-month time period. Such a ruling is an error of law. Thus the circuit court erred as a matter of law in declaring that Dr. Wellens, a psychologist, would know so little about the subject that he should not be permitted to give his opinion. …

¶2        We conclude such a competency challenge based on the violation of the statutory time limitation of Wis. Stat. § 48.422(2) cannot be waived, even though it was not raised in the circuit court.  The court of appeals erred in extending the holding in Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, to violations of such a mandatory statutory time limitation under Wis. Stat. ch. 48. The circuit court did not hold the fact-finding hearing within the time limits established by § 48.422(2), and never granted a proper extension or continuance pursuant to Wis. Stat. §§ 48.315(1)(a) and (2), ^[2] and thus it lost competency to proceed before it ordered the termination of Rachel B.'s parental rights. Accordingly, we reverse the decision of the court of appeals, which had affirmed the order of the circuit court.

…

¶31      We also conclude that recent changes to the Children's Code do not affect our decision in this case, nor did the changes overrule B.J.N. and April O. sub silentio....

…

¶36     Because of the clear statutory language and legislative intent behind these statutes, we must emphasize the importance of strictly following the provisions of Wis. Stat. ch. 48. While we recognize the need for flexibility in the Children's Code, we believe the legislature addressed this problem with the enactment of Wis. Stat. § 48.315. In this case, for example, the court perhaps could have granted a continuance if it had recognized good cause for the delay in open court or during a telephone conference on the record. Without such action, however, there is no choice for us but to follow the plain language of the statutes, and to hold that the court lost competency to proceed before it ordered the termination of Rachel B.'s parental rights. …

---

      ^[2] "The general requirements of § 48.315(2) control all extensions of time deadlines under the Children's Code." State v. April O., 2000 WI App 70, ¶5, 233 Wis.  2d 663, 607 N.W.2d 927. 

     Wisconsin Stat. § 48.315(2) states: "A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases."

¶15 We hold that an individual who is in fact the biological father of a nonmarital child satisfies the definition of "parent" in § 48.02(13), as he is a "biological parent," notwithstanding that he has not officially been adjudicated as the child's biological father. Because such an individual satisfies the definition of "parent," he may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child's biological father, assuming he has failed to establish a "good cause" affirmative defense to the ground of abandonment.

¶7. The plain language of Wis. Stat. § 48.415(4) requires proof that the notices in Wis. Stat. § 48.356(2) were provided only when the underlying order was issued in juvenile court. We agree with Kimberly that the first usage of "or" in § 48.415(4)(a) separates the paragraph into two self-contained clauses, one pertaining to family court orders and the other applicable to juvenile court orders. Thus, we read the notice requirement provision to be a part of the clause pertaining to juvenile court orders, and as inapplicable to the clause pertaining to family court orders. …

¶32. Only after all the above described steps took place, was P.P. faced with a fact-finding hearing on whether a ground for terminating his parental rights existed under Wis. Stat. § 48.415(4). The findings that are required for a court to proceed against a parent at each of the steps prior to the final step under § 48.415(4) involve an evaluation of a parent's fitness. It is the cumulative effect of the determinations made at each of the previous steps that causes the finding made under § 48.415(4) to amount to unfitness. Looked at another way, this series of steps acts as a funnel, making smaller and smaller the group of parents whose relationships with their children are affected at each step, until only a very small number of parents would be affected by § 48.415(4). Accordingly, § 48.415(4) cannot be evaluated for a claimed constitutional infirmity in isolation. The full statutory scheme that precedes the implementation of § 48.415(4) must be evaluated as well. Therefore, it is with consideration of this statutory scheme underlying the ground stated in § 48.415(4), that we conclude that on its face § 48.415(4) is narrowly tailored to serve the State's compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children's welfare through stability and permanency in their lives. In our view, P.P. has not proved beyond a reasonable doubt that the statutory scheme either shocks the conscience or interferes with a right implicit in the concept of ordered liberty.

¶11. The trial court ruled and the County now argues that Terrance's substitution request was untimely because it was not filed before "hearing of any preliminary contested matters" under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request "either before or during the plea hearing ...." We agree with Terrance.

¶3 WISCONSIN STAT. § 48.415(1)(a)3 provides that among the grounds “for the termination of parental rights” is that “[t]he child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of 6 months or longer.” James P. contends that although, as found by the trial court in its extensive and well-reasoned written decision, “[i]n early 2002, as a result of DNA testing, James P. was adjudicated the father of Chezron,” he was not Chezron’s “parent” as that term is used in § 48.415(1)(a)3 when he “failed to visit or communicate with” her. Thus, as noted, he argues that § 48.415(1)(a)3 does not apply.

¶4 As material here, WIS. STAT. § 48.02(13) defines “parent” for the purposes of WIS. STAT. ch. 48 as:

...

• “a biological parent” or

• “a husband who has consented to the artificial insemination of his wife” or

• “a parent by adoption” or

• “a person acknowledged under s. 767.62 (1) or a substantially similar law of another state” “[i]f the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60” or

• a person “adjudicated to be the biological father” “[i]f the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60.”

… We agree that the fact of biological parenthood does not turn on whether it is recognized, found, or adjudicated, any more than the fact that a tree has fallen in the forest depends on someone’s perception of the crashing sound, or, in another context, gravity’s existence depended on Sir Isaac Newton’s formulation of its principles.

¶5 … [A]s the trial court recognized, James P. was always Chezron’s biological father, even before he was formally adjudicated as such.

¶6 … Although James P. interposes law-school-question- type analyses in an attempt to eschew legal responsibility for the periods during which he had no contact with Chezron, he was in fact Chezron’s biological parent when she was born and he has never denied that. We affirm.

¶5. We conclude that partial summary judgment in the unfitness phase of a TPR case is available where the requirements of the summary judgment statute and the applicable legal standards in Wis. Stat. §§ 48.415 and 48.31 have been met. An order granting partial summary judgment on the issue of parental unfitness where there are no facts in dispute and the applicable legal standards have been satisfied does not violate the parent's statutory right to a jury trial under Wis. Stat. §§ 48.422(4) and 48.31(2), or the parent's constitutional right to procedural due process. 6. Accordingly, partial summary judgment may be granted in the unfitness phase of a TPR case where the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness under Wis. Stat. § 48.415, and, taking into consideration the heightened burden of proof specified in Wis. Stat. § 48.31(1) and required by due process, the moving party is entitled to judgment as a matter of law. We overrule Walworth County Dep't of Human Servs. v. Elizabeth W., 189 Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994), to the extent that it outright prohibited summary judgment in TPR proceedings. The circuit court's use of summary judgment procedure was not error.

…

¶31. The principles underlying the decision in Elizabeth W. were unquestionably sound and well-established; we conclude, however, that the court's holding was overbroad. Neither due process nor the TPR statutes require an absolute prohibition on summary judgment in the grounds or unfitness phase of a TPR proceeding. That a parent has contested the termination of his or her parental rights does not automatically mean there are material facts in dispute regarding the grounds for unfitness.

¶32. The code of civil procedure applies to "all civil actions and special proceedings" unless a "different procedure is prescribed by statute or rule." Wis. Stat. § 801.01(2). Parental rights termination proceedings under Chapter 48 are civil proceedings, and this general rule of civil procedure applicability has been cited in the context of TPR cases on numerous occasions….

¶33. There is nothing in the TPR statutes that explicitly or implicitly prohibits the use of summary judgment procedure under Wis. Stat. § 802.08 in the unfitness phase of a TPR case. Nor do the TPR statutes prescribe a procedure different from Wis. Stat. § 802.08 for TPR cases in which there is no genuine dispute of fact on the issue of unfitness under Wis. Stat. § 48.415. Kelley argues that a court order granting partial summary judgment on parental unfitness conflicts with the right to a jury trial at the fact-finding hearing, which she contends is an absolute right under the statutes, Wis. Stat. §§ 48.422(3), (4), and 48.31(2), and as a matter of due process. We disagree.

¶50. Parties to TPR proceedings may request a continuance of the initial hearing to consult with counsel about judicial substitution. Wis. Stat. § 48.422(5). However, the circuit court does not have an affirmative duty to advise parties of this right. Wis. Stat. § 48.422(1).

¶7. Petersen argues that the trial court erred when it dismissed the termination ground based on Wis. Stat. § 48.415(9m). Christal responds that the trial court's interpretation of the statute was correct--that anytime a parent's direct appeal of a conviction is pending, there is no final judgment to form the basis for grounds to terminate under § 48.415(9m). Christal's argument was premised on the holding in Jennifer V., wherein this court interpreted the term "conviction" as used in Wis. Stat. § 48.415(5) to mean a conviction after the right of direct appeal had been exhausted. Jennifer V., 200 Wis. 2d at 681. The trial court agreed that this holding created a "bright line" rule, which prohibited a termination based on a conviction if the parent's direct appeal was still pending. Based on the reasoning that follows, we clarify the holding in Jennifer V. to prohibit termination based on a conviction when a direct appeal is still pending only if the pending appeal has raised issues challenging the parent's guilt. Accordingly, we reverse the trial court's order and remand for a new trial.

…

¶13. Here, it is undisputed that Christal was found guilty of serious battery of one of her children. A judgment of conviction was entered. She filed a direct appeal challenging solely the length of her sentence. There is no possibility that the appeal will result in an innocent parent losing rights to her child. Christal's guilt has been finally determined. Thus, Jennifer V. does not apply to this case. Jennifer V.'s holding is limited to appeals based on guilt or innocence. We hold that when a parent's pending appeal does not raise issues of guilt or innocence, the term "final judgment of conviction" used in Wis. Stat. § 48.415(9m) means the judgment of conviction entered by the trial court, either after "a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest." Wis. Stat. § 972.13(1).

¶15. Petersen also argues that the trial court erroneously exercised its discretion when it excluded all evidence related to the existence of the life and death of Reynaldo's twin brother, Raymon. Christal responds that it was reasonable for the trial court to exclude this evidence. We conclude that the trial court's decision constituted an erroneous exercise of discretion.

…

¶19. We conclude that the story is incomplete without the evidence related to Raymon. Reynaldo was the second baby thrown. The facts demonstrate that Christal first threw Raymon and then buckled Raymon into his car seat. She then picked Reynaldo up and threw him toward his car seat. Because the trial court excluded all evidence of Raymon, Christal's counsel was able to present disingenuous arguments to the jury, including the argument that what occurred to Reynaldo was the result of a "split second of bad judgment." In reality, Christal had a chance to reconsider her behavior before throwing the second baby.

¶20. Further, prior convictions of a parent are not so prejudicial as to outweigh their probative value where the information would lead the jury to an understanding of why children are removed from the parent's home. State v. Quinsanna D., 2002 WI App 318, ¶20, 259 Wis. 2d 429, 655 N.W.2d 752. …

…

¶22. The facts involving these twin boys were so interconnected that excluding the existence and death of one resulted in an untrue and incomplete story being presented to the jury. Although we agree with the trial court that the homicide of Raymon may be prejudicial, we disagree that it was so unduly prejudicial as to substantially outweigh the probative value of the existence and death of Raymon. …

¶26 As applied to Kelli, we conclude that the incestuous parenthood ground as set forth in Wis. Stat. § 48.415(7) is not narrowly tailored to advance the compelling state interest underlying the statute. The reason it is not narrowly tailored is that it renders people like Kelli per se unfit solely by virtue of their status as victims. While we recognize a correlation between perpetrators of incest and unfit parents, we fail to see how being victimized by one's parent or relative necessarily warrants the same conclusion. The fact of incestuous parenthood does not, in itself, demonstrate that victims like Kelli are unfit parents.

…

¶36 Thus, we conclude that the statute, as applied here, is not narrowly tailored to advance any of the compelling state interests offered by the County. Kelli is a victim of long-term and continuous incest perpetrated by her father. Wisconsin Stat. § 48.415(7), applied to a victim like Kelli, is not narrowly tailored to protect children from unfit parents, does not promote deterrence, and does not protect children from the psychological harm of being raised in an incestuous family.

¶37 Perhaps the greatest difficulty we have with the County's position is that it elected to prove Kelli's parental unfitness solely on the ground of incestuous parenthood, rather than relying on other statutory grounds. It may well be that the County can ultimately prove Kelli's unfitness on other grounds. Initially, it alleged that her children were in continuing need of protection or services, Wis. Stat. § 48.415(2). However, the County dismissed that ground because it thought it more expedient to pursue only the incestuous parenthood ground.

¶39 In its defense, the County maintains that the circuit court's discretion at the disposition stage to dismiss pursuant to Wis. Stat. § 48.427(2). … 40 Again, the County's argument misses its mark. Here, Kelli's challenge is one of substantive due process, not procedural due process. In such cases, the existence of extra procedural protections cannot cure the substantive due process violation. See Penterman, 211 Wis. 2d at 480. Therefore, it is irrelevant to inquire into the adequacy of the termination procedure, or, more specifically, whether the procedure applicable at the dispositional phase satisfies Kelli's constitutional rights.

¶22 … The question is not, as asserted by the County, whether any court "has ever recognized incestuous parenthood or the act of incest as a fundamental right." To suggest that anyone here is asserting that the act of incest is a fundamental liberty interest obfuscates the focus.

¶23 Rather, the question is whether a parent who has a substantial relationship with his or her child has a fundamental liberty interest in parenting the child. Our case law recognizes this fundamental liberty interest. See Parental Rights to SueAnn A.M., 176 Wis. 2d 673, 686, 500 N.W.2d 649 (1993); In Interest of Baby Girl K., 113 Wis. 2d 429, 446-47, 335 N.W.2d 846 (1983).

¶24 Here, Kelli established this fundamental liberty interest by living with her children and having custody of them. See In Interest of J.L.W., 102 Wis. 2d 118, 135, 306 N.W.2d 46 (1981). The County has not cited, and we have not discovered, any precedent that would support its position that a parent in Kelli's situation, a victim of long-term and continuous incest, is excluded from this constitutional protection. Accordingly, we conclude that Kelli does have a fundamental liberty interest in parenting her children that requires review under the standard of strict scrutiny.

¶1. This action involves the involuntary termination of the parental rights (TPR) of sixteen-year-old Ramiro M.C. to his alleged child, Caleb J.F. The issue is whether the juvenile court erred by releasing Ramiro's juvenile and Department of Health and Human Services records to Caleb's guardian ad litem (GAL) for use in the TPR proceeding without first conducting an in camera review of those records to determine their relevance to the TPR proceeding.

¶2. We conclude that the statutory procedures set forth in Wis. Stat. ch. 48 required the juvenile court to determine the relevance of Ramiro's records to the TPR proceeding by an in camera examination prior to disclosure. Because the juvenile court did not conduct such an in camera examination, we reverse the order releasing Ramiro's records, and we remand for the juvenile court to conduct an in camera examination to determine the relevance, if any, of the records to the TPR proceeding.

…

¶21. Reading the discovery statute in pari materia with the statutes barring inspection or disclosure of juvenile court or agency records, we conclude that the legislature intended that the juvenile court must make a threshold relevancy determination by an in camera review when confronted with: (1) a discovery request under Wis. Stat. § 48.293(2); (2) an inspection request of juvenile records under Wis. Stat. §§ 48.396(2)(a) and 938.396(2)(a); or (3) an inspection request of agency records under Wis. Stat. §§ 48.78(2)(a) and 938.78(2)(a).

…

¶39. … (W)e further conclude that the juvenile court must provide notice of such a request to the juvenile and provide an opportunity to be heard.

In re the Termination of Parental Rights to Thomas J.R.:  Tammie J. C. v. Robert T. R., 2003 WI 61, reversing unpublished decision of court of appeals
For Robert T.R.: Duane M. Jorgenson
Issue/Holding: Wisconsin courts may terminate the parental rights of someone who has no contacts with Wisconsin, under the “status exception” to personal jurisdiction requirements afforded by the Uniform Child Custody Jurisdiction Act (UCCJA), Wis. Ch. 822:

¶37. We agree with the majority of the courts and many of the commentators that have considered the validity of jurisdiction under the UCCJA, that traditional personal jurisdiction is not required in child custody proceedings. We find persuasive the cases and commentary concluding that child custody proceedings under the UCCJA are valid even in the absence of minimum contacts over an out-of-state parent. A contrary determination fails to acknowledge the interests and rights of the child. We also note that while child custody proceedings determine the "status" of children, they also implicate "the right and obligation of the state in its parens patriae role to consider the welfare of the child subject to its jurisdiction and to make a determination that is in the best interests of the child." Leonard, 122 Cal. App. 3d at 454. …

¶51. We conclude that in this case Robert received notice and an opportunity to be heard as required by Wis. Stat. § 822.12. Statutory compliance alone, however, does not render an exercise of jurisdiction constitutional. By requiring an opportunity to be heard, in addition to the notice requirement under § 822.05, section 822.12 codifies a recognition that child custody determinations, especially those involving parents or guardians in different states, involve important rights and require additional procedural protections. Safeguards must be in place to protect against potential abuses.…

¶58. We conclude after considering all of the factors that the UCCJA generally provides sufficient due process protections to make reasonable an exercise of jurisdiction over an out-of-state parent. Our conclusion does not end our analysis. We must also consider whether on the facts of this case, the exercise of jurisdiction over Robert complied with traditional notions of fair play and substantial justice, and was reasonable in terms of the five Asahi factors.

(Robert, the court goes on to say was treated fairly: an extension request was granted; he appeared by phone and by counsel, etc. ¶¶59-64. But other issues, including absence of warning of ground for termination and equal protection, ¶¶65-66, are held open for remand.)

Steven H. v. Kelley H., 2003 WI App 110, PFR granted 6/12/03
For Kelley H.: Phillip J. Brehm
Issue/Holding: Summary judgment is not appropriate on the grounds for a TPR even where there is no factual dispute, Walworth Co. DHS v. Elizabeth W., 189 Wis. 2d 432 (Ct. App. 1995), and the trial court therefore erred in entering summary judgment on the ground. ¶¶13-22. However, the use of an improper procedure in a TPR is subject to harmless error analysis under § 805.18(2):

¶28. Applying the harmless error analysis as articulated Evelyn C.R., we conclude the procedure used by the trial court to establish a ground for termination under Wis. Stat. § 48.415(4) was harmless error because there is no reasonable possibility that, had the court empanelled a jury to hear the evidence on the two elements, there would have been a different outcome.

(Ground for TPR was a prior order denying physical placement/visitation that went unmodified at least one year. Harmless error appears to follow from the undisputed nature of this basis along with its automatic provision for a ground for TPR. Nonetheless, the continued viability of Elizabeth W. is ratified, ¶16, though harmless error adds a rather large loophole.)

Issue/Holding:  The trial court has the duty to inform a TPR party of his/her right to a continuance and substitution of judge, ¶¶31-35, but the failure to perform this duty is subject to harmless error analysis, ¶41. Because it is undisputed that Kelley H. knew of her right to substitution, the question becomes whether her lack of knowledge that she could request continuance to further discuss substitution was prejudicial. It was not, given support in the record for the idea that she did not in fact want to substitute the trial court: thus, “there is not a reasonable possibility that the court’s failure to advise Kelley of her right to a continuance affected her decision not to request substitution.” ¶42.
(The court, it should be noted, questions whether the trial court is indeed obliged to give this advice, and indeed “invite(s) the supreme court to clarify” the issue. ¶35. (And, as the recent grant of review shows, the supreme court indeed took up this invitation.) A lengthy concurrence comes down against such a mandatory duty. ¶¶43-55. For whatever reason – probably because this appeal was expedited; the decision was released less than one month after the reply brief – there are some typos. For one thing, the child’s d/o/b is said to be 3/28/83, ¶3, which would make him over 18 at the time of the petition (8/8/01) and therefore can’t be right. For another, the cite to Evelyn C.R. is given initially and correctly (¶24) as 2001 WI 110, though it is later cited incorrectly as 2001 WI 18 (¶27). Little things, to be sure, but it’s unusual for the court to be sloppy like this. Not to mention the need for the concurrence to undertake its own substitution – “advice” for the term “advisement,” ¶¶44, 45, 54.)

¶8. A parent who has a substantial relationship with his or her child has a fundamental liberty interest in parenting the child, and that interest is protected by the substantive due process clause of the Fourteenth Amendment to the United States Constitution. Mrs. R. v. Mr. and Mrs. B., 102 Wis, 2d 118, 136, 306 N.W.2d 46 (1981); L.K. v. B.B., 113 Wis. 2d 429, 447-48, 335 N.W.2d 846 (1983). Because termination of parental rights interferes with a fundamental liberty interest, we apply strict scrutiny and require the state to show that termination is narrowly tailored to serve a compelling state interest. Winnebago County DSS v. Darrell A., 194 Wis. 2d 627, 639, 534 N.W.2d 907 (Ct. App. 1995). This standard is satisfied by the requirement that the state establish a parent's unfitness in order to justify termination of parental rights. Mrs. R., 102 Wis. 2d at 136.3 If a parent is unfit, the state's compelling interest in protecting children from unfit parents warrants termination of parental rights.

¶2. We conclude that the information before the circuit court was too vague for the court to have reason to know that each of Neal's children met the definition of "Indian child" under the ICWA. Because the information was insufficient to show that the ICWA applied in this case, no notice was required....

¶4. We conclude that the standards applied by the circuit court and court of appeals were not correct because a portion of our B.L.J. [163 Wis. 2d 90, 103, 470 N.W.2d 914 (1991)] opinion was not correct. The statutes governing petitions for termination of parental rights require the court, in the exercise of its discretion, to consider the best interests of the child as the prevailing factor in a disposition under Wis. Stat. § 48.427. After a jury or the court has found one of the grounds for termination listed in the statute and the court has found the parent unfit, the focus shifts to the child's best interests. At the dispositional hearing, the court must consider any agency report submitted and the six factors enumerated in § 48.426(3) in determining the best interests of the child. The court may also consider other factors, including factors favorable to the parent; but all factors relied upon must be calibrated to the prevailing standard: the best interests of the child. The best interests of the child is the polestar for the court in a dispositional hearing, and a failure to apply that standard is an error of law.

¶5. Because the circuit court understandably applied incorrect legal standards, it erroneously exercised its discretion. Accordingly, we reverse the decision of the court of appeals and remand the case to the circuit court. Because the disposition standards set forth in B.L.J. and Kelly S.  [2001 WI App 193, 247 Wis. 2d 144, 634 N.W.2d 120] are inconsistent with this opinion, we modify B.L.J. and overrule Kelly S. ...

¶42. No inference should be drawn from this opinion that, at a dispositional hearing, dismissal is the exception and termination is the rule. The best interests of the child will always drive the court's inquiry. The facts of record should influence the result. Ultimately, however, the wise and compassionate discretion of the court will determine whether termination will "promote the best interests of the child." Mrs. R. v. Mr. and Mrs. B., 102 Wis. 2d 118, 131, 306 N.W.2d 46 (1981) (quoting In re Johnson, 9 Wis. 2d 65, 75, 100 N.W.2d 383 (1960); Termination of Parental Rights of Kegal, 85 Wis. 2d 574, 271 N.W.2d 114 (1978)).

¶33. This case is remarkably like the facts in B.L.J. in that here, like the mother in B.L.J., the county tried to help Kelly with her chemical abuse, but to no avail. Meanwhile, like the child in B.L.J., Erin was bounced in and out of foster care such that there was no permanency in Erin's life. The trial court here alluded to the same concerns that the trial court alluded to in B.L.J. Basically, it came down to Kelly's failure to come to grips with her substance abuse problem. The trial court was concerned about Kelly's refusal to cooperate in a sustained and meaningful way despite attempts to help her cope. It was concerned about the instability existing in Erin's life as she bounced in and out of foster care. The trial court was obviously convinced that this evidence spoke to Kelly's inability to function as a parent. Thus, the trial court made implied findings consistent with the first test in the egregious analysis.

¶34. As to the second test, our supreme court said in B.L.J., "To condemn this child to go from foster home to foster home, waiting for a parental relationship to come into existence for which the mother seems unwilling to take steps to make possible, is, it seems to us, 'seriously detrimental to the child.'" Id. at 113 (citation omitted). The trial court made similar observations here. Thus, the second part of the test is met. We see no need to remand.

¶10. The State and the trial court have misconstrued the evidence Amanda S. and Frederick H. sought to introduce. While at first blush, Amanda S. and Frederick H. appear to have argued that they should have been allowed to challenge the original CHIPS dispositional orders suspending visitation and imposing the conditions to re-establish visitation, they actually sought to introduce evidence explaining the reasons they were unable to meet the conditions for re-establishing visitation. As Amanda S. asserts in her brief, she and Frederick H. attempted to elicit testimony 'showing what steps and actions that they undertook in order to regain visitation rights.' It is apparent from the record that their trial strategy was not simply to challenge the initial order or the conditions placed on them, but rather to place evidence before the court showing their attempts at meeting the conditions for visitation and the reasons why their attempts were unsuccessful. Thus, we determine that the trial court erred in precluding Amanda S. and Frederick H. from presenting evidence of mitigating circumstances surrounding their inability to re-establish visitation.…

¶15. In order to properly exercise its broad discretionary power, we conclude that the trial court was obligated to consider evidence Amanda S. and Frederick H. could have provided regarding any mitigating circumstances surrounding their efforts to satisfy the conditions for re-establishing visitation. 'An appellate court will sustain a discretionary act if it finds that the trial court (1) examined the relevant facts, (2) applied a proper standard of law, and (3) using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.' State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995). This means that the trial court in the instant case was required to make more than an antiseptic finding that the State had established grounds for termination. Here, '[examining] the relevant facts' and '[applying] the proper standard of law,' see id., means that the trial court was required to 'evaluate[] the quantity, quality, and persuasiveness of the evidence,' see B.L.J., 163 Wis. 2d at 104-05; which means all the evidence, including the testimony Amanda S. and Frederick H. sought to elicit from the caseworker.

One of the conditions the CHIPS court placed on Scott was that he participate in a sex offender self-help group. Sayers testified: "I would have to say that I do have concerns about his potential for reoffending, [sic] based on what appears to me to be a history of inadequate treatment for these issues." (Emphasis added.) In order to terminate parental rights, § 48.415(2)(a)3, STATS., requires the following element to be proved: "the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following the fact-finding hearing under § 48.424." Sayers' testimony strikes at the heart of the issue; the department must show that Scott has failed to complete the sex offender self-help therapy condition of the CHIPS order or that there is a substantial likelihood he will not satisfy the conditions within twelve months of the hearing. See § 48.415(2)(a)3, STATS.

¶3. We conclude that the circuit court did err in entering the default judgment against Tykila on the issue of abandonment without first taking evidence sufficient to support a finding of abandonment by clear and convincing evidence. However, upon review of the entire record in this case, we further conclude that the circuit court remedied this error at the dispositional hearing when, prior to reaffirming the default judgment and entering the order terminating Tykila's parental rights to Jayton, the court took evidence sufficient to support by clear and convincing evidence a finding that Tykila had abandoned Jayton. As such, the error was harmless. Accordingly, we affirm the decision of the court of appeals.…

¶18. The decision whether to enter a default judgment is a matter within the sound discretion of the circuit court. Shirk v. Bowling, Inc., 2001 WI 36, ¶9, 242 Wis. 2d 153, 624 N.W.2d 375. But where a circuit court has applied an incorrect legal standard in deciding whether to enter judgment, the court has erroneously exercised its discretion. Oostburg State Bank v. United Sav. & Loan Ass'n, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53 (1986). In such a circumstance, this court may reverse the circuit court's discretionary decision. Id. at 11.

¶19. In the case at hand, by entering a default judgment against Tykila on the issue of abandonment without first taking evidence sufficient to support such a finding, the circuit court failed to comply with the constitutional and statutory requirements for termination of parental rights. We therefore hold that the court erroneously exercised it discretion.…

¶25. Where, as in the present case, the constitution and statutory code require a showing of proof before the circuit court can enter a particular judgment or order, the circuit court cannot enter the judgment or order without the appropriate showing. To be sure, the circuit court may, as it did here, determine that a party's action or inaction provides adequate cause for sanctions against that party. But such cause does not allow the court to dispense with any independent constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order.…

¶33. In the present case, the circuit court did not enter its order terminating Tykila's parental rights until after taking Evelyn's testimony and, based on this testimony, reaffirming its finding of abandonment.…

¶35. With these considerations in mind, we hold that the circuit court's failure to take evidence prior to entering the default judgment against Tykila fails to undermine our confidence in the outcome of the termination proceeding. Accordingly, while this case again raises the concerns that we expressed in Steven H. about the circuit court failing to follow the procedures delineated in Chapter 48, we conclude that the circuit court's procedural error was harmless.”

¶1        This is an original action for a supervisory writ in which the parent of a child who is the subject of a CHIPS petition seeks an order directing the circuit court, the Honorable Shelley Gaylord, to enter an order dismissing the CHIPS action pursuant to a stipulation between the parties. ^[1] The parent contends that, because all parties stipulated to dismissal under Wis. Stat. § 805.04(1), the voluntary dismissal statute, the circuit court has no authority to reject a dismissal. The circuit court responds that § 805.04(1) does not apply in a CHIPS proceeding under Wis. Stat. ch. 48. ^[2]   

¶2        We conclude Wis. Stat. § 805.04(1) does not apply in a CHIPS proceeding because it is different from and inconsistent with Wis. Stat. § 48.24(4), which we construe to provide that a district attorney may withdraw a CHIPS petition only with the approval of the court. Accordingly, the circuit court did not have a plain duty to sign the order, nor did the clerk of court have a plain duty to dismiss the action. We therefore deny the petition for a supervisory writ.

¶2. Gregory presents two issues on appeal: (1) whether children can be adjudicated in need of protection or services when the divorced parents have joint custody, the mother committed acts proscribed by Wis. Stat. § 48.13(10), and the father can provide the necessary care for his children; and (2) even if a CHIPS adjudication is permissible in this situation, whether the adjudication can be made without providing the non-neglectful parent a jury trial or an evidentiary hearing.
¶3. We conclude that as a matter of law, a court is not precluded from finding a child in need of protection or services even when only one parent has neglected the child. Where there is clear and convincing evidence to support a CHIPS petition, a court can properly enter a CHIPS order. Although one parent may be fit, there are times when the facts support a CHIPS order that can protect the best interests of the child.
¶4. Further, we conclude that when a court considers the child's need for protection or services that the court can order, as required by Wis. Stat. § 48.31(2), the determination should be made based on the facts in existence on the date the petition was filed. In doing so, we reject Gregory's argument that the court should consider conditions as they exist on the date of the fact-finding hearing, as this would allow the court's jurisdiction over the child to change daily, depending on the circumstances in the home on a particular day. Instead, we conclude that the court should consider changes subsequent to the petition's filing at the dispositional hearing.

¶1. This case involves the intersection of the federal Individuals with Disabilities Education Act (IDEA) and state statutes governing children in need of protection or services (CHIPS). The issue is whether the parent of a disabled child placed in a residential treatment facility pursuant to a circuit court's CHIPS order is exempt from the court's child support order if the child's individualized education program (IEP), mandated by the IDEA, subsequently specifies that the child's educational program be implemented at the residential treatment facility. We conclude that the parent is not relieved of the obligation to contribute to the child's support under these circumstances....

¶4. We do not view this case as presenting a preemption question. The federal and state statutory schemes at issue here do not conflict, at least not under the circumstances of this case. Robert was placed in the residential treatment facility for mental health care pursuant to a CHIPS order of the circuit court. The IEP specifying that his educational program be implemented at the facility while he resided there did not constitute a residential placement necessary for educational purposes under the IDEA. Accordingly, the IDEA does not provide grounds for relief from the child support obligation in the CHIPS order. We affirm the circuit court's order denying relief....

¶30. Accordingly, because Robert's placement in the residential program at Lakeview was necessitated not by his educational needs, but, rather, his mental illness, and was brought about by the circuit court's CHIPS order rather than Robert's IEP, it was not an educational placement for purposes of the IDEA. Therefore, the IDEA does not provide a basis for relief from the child support obligation under the CHIPS order. Nor does Wis. Stat. § 115.81 provide a basis for lifting that obligation. We affirm the circuit court's denial of Randall's motion for relief from the child support order.

¶16. A parent has a constitutionally protected liberty interest in the "companionship, care, custody, and management of his or her children." Stanley v. Illinois, 405 U.S. 645, 651 (1972). However, parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependant upon an actual relationship with the child where the parent assumes responsibility for the child's emotional and financial needs. See W.W.W., 161 Wis. 2d at 1031-32. As the Supreme Court has explained, the "paramount interest" is in the welfare of children so that the "rights of the parents are a counterpart of the responsibilities they have assumed." Lehr v. Robertson, 463 U.S. 248, 257 (1983). As Justice Stewart observed in Caban v. Mohammed, 441 U.S. 380 (1979): "Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." Id. at 397 (J. Stewart, dissenting).⁴

...

 ¶19. Therefore, in order for Brendan to have the necessary foundation for a constitutionally protected liberty interest in his putative paternity, he would have to have taken affirmative steps to assume his parental responsibilities for Selena. …

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⁴  Even though this quote is from the dissent in Caban v. Mohammed, 441 U.S. 380 (1979), it is a principle we have adopted. See W.W.W. v. M.C.S., 161 Wis. 2d 1015, 1031-32 (1991).

¶31. In contrast, Norma and Brendan have asserted nothing to counter the findings of the circuit court or Selena and Randy's arguments, except for the presumption under Wis. Stat. § 767.48(1m) that Brendan is Selena's biological father based on genetic tests. However, in addition to the reliance that Selena and Randy have shown on the actions and inactions of Norma and Brendan and the unfairness that Norma and Brendan are seeking to repeat here, the circuit court determined that it is in Selena's best interest to adjudicate Randy as Selena's father. We deem the circuit court's determination very significant, and we note that neither Norma nor Brendan contests its accuracy. Furthermore, Wisconsin favors preserving the status of marital children, even when it can be positively shown that the husband of the mother could not have been the father of the child.¹⁴ Therefore, we conclude that Norma and Brendan's actions and lack of action, which were relied on by both Selena and Randy, are so unfair, that when combined with the state's interest in preserving Selena's status as a marital child, they outbalance the public's interest in a purely biological approach to parenthood. Accordingly, we conclude that Norma and Brendan are equitably estopped from rebutting the marital presumption of Wis. Stat. § 891.41 in regard to Randy's paternity of Selena.¹⁵

Shanee Y v. Ronnie J., 2004 WI App 58

For Ronnie J.: Hazel Washington