concurring in part and dissenting in part.
4 55 I concur with the portion of the majority opinion that affirms the termination of mother's parental rights. However, I dissent from the portion of the opinion that remands for further proceedings as to father.
T 56 The majority finds that the premature dismissal of father's counsel during the termination of parental rights hearing constitutes reversible error per se. Although I agree that the trial court committed error by dismissing counsel before the conclusion of the hearing, I would not apply a bright line reversible error per se rule absent a complete deprivation of the statutory right to counsel. Where there is no complete deprivation of counsel, but rather deprivation for only a portion of such a proceeding, I would apply the ordinary harmless error standard of review, and I would conclude on the par*900ticular facts of this case that removal of counsel did not substantially influence the outcome of the case or impair the basic fairness of the trial, and was therefore harmless.
I. Standard of Review
157 Other jurisdictions vary as to their willingness to apply a harmless error review to the denial of counsel in parental termination proceedings. Additionally, those jurisdictions that reject harmless error review differ as to the rationale. In my view, cases that reverse the termination judgment based on the complete absence of counsel during a termination proceeding should be considered internally consistent with the present case, regardless of the rationale they employ.
A. Complete Absence of Counsel During a Termination Proceeding
158 Although the majority observes that "(al majority of other jurisdictions addressing the issue have concluded that the violation of a respondent parent's statutory or constitutional right to counsel ... is either reversible error per se or structural error," it is important to note that most have done so in the context of a complete absence of counsel during the evidentiary portion of a termination proceeding or during an earlier proceeding which was the basis for a termination.5 E.g., In Interest of J.B., 624 So.2d 792 (Fla.Dist.Ct.App.1993) (total denial of counsel at dependency adjudication which was later used as a basis of subsequent termination of parental right); In Interest of J.M.B., 296 Ga.App. 786, 676 S.E.2d 9, 12 (2009) (total deprivation of counsel at termination hearing was not subject to a harmless error analysis); In re Keifer, 159 Mich.App. 288, 406 N.W.2d 217, 219 (1987) (although parent was later appointed counsel, parent was unrepresented during the two hearings at which evidence was presented); In re A.S.A., 258 Mont. 194, 852 P.2d 127, 129-30 (1993) (counsel was not appointed until after evidentiary portion of termination proceeding had concluded); In re Adoption of K.A.S., 499 N.W.2d 558, 567 (N.D.1993) (complete denial of counsel in a stepparent adoption proceeding that would result in termination of parental rights); In re Adoption of R.I., 455 Pa. 29, 312 A.2d 601, 602 (1973) (appointing post-decree counsel for parent after termination of parental rights hearing was insufficient since parent was without representation at the hearing itself); In re Torrance P., 298 Wis.2d 1, 724 N.W.2d 623, 635 (2006) ("structural error" found where counsel was not allowed to participate in any part of termination hearing because of mother's failure to appear).
159 The unifying theme in these cases is that the total absence of counsel mandates reversal, whether it is characterized as "structural error," per se reversible error, or simply not harmless error. Like the majority, I agree with the result in those types of cases under a per se reversible error standard, but not under a "structural error" standard, which should be limited to the criminal law. Neither Colorado courts nor the United States Supreme Court has yet extended the concept of structural error to civil cases. See Black v. Sw. Water Conservation Dist., 74 P.3d 462, 473 (Colo.App.2003);, see also Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ("Only in rare cases has this Court held that an error is structural, and thus requires automatic reversal. In such cases, the error 'necessarily a eriminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.'") (footnote omitted) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
T 60 The concept of "structural error" was first articulated by the United States Supreme Court in a criminal case as a "defect affecting the framework within which the trial proceeds" so that it defies analysis by "harmless-error standards" and thus, can never be harmless. Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (identifying as structural error the total deprivation of the right to *901counsel, denial of the right of self-representation, trial before a judge who is not impartial, unlawful exelusion of members of the defendant's race from a grand jury, and denial of the right to a public trial).
T 61 Characterizing the complete denial of the right to counsel in a eriminal case as structural error makes sense because of the myriad aspects of representation implicit in a criminal proceeding. As the United States Supreme Court explained in United States v. Gongalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), addressing the infringement of the right to counsel of choice:
Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on [the framework of the trial or] on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outeome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.
Id. at 150, 126 S.Ct. 2557.
4 62 In contrast, in a civil parental termination proceeding, the role of counsel is more limited. Plea bargaining and other negotiated dispositions do not play a significant role in a termination proceeding, and there is no right to a jury trial in such a proceeding. § 19-3-602(4), C.R.S.2011. The issues for determination generally do not involve contested issues of historical fact, but rather focus on the parents' willingness and ability to provide appropriate care for the child and the existence and suitability of alternative placements. Finally, the ultimate consideration in a termination hearing is the best interests of the child. Because of differences between criminal cases and parental termination proceedings, the United States Supreme Court has ruled that appointment of counsel in termination proceedings is not necessarily required to satisfy due process. Lassiter v. Dep't of Social Servs., 452 U.S. 18, 31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).
T 63 Nevertheless, Colorado has elected to provide a right to counsel in termination proceedings by statute. Certainly, as the United States Supreme Court has recognized, the violation of a statutory right can be deemed reversible error per se as a matter of state law. See Rivera v. Illinois, 556 U.S. 148, 161-62, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) (absent a federal constitutional violation, states retain the prerogative to decide whether errors require automatic reversal or rank as harmless under state law).
1 64 It appears that Colorado has not yet specifically branded any statutory violation "reversible error per se" pursuant to Rivera. Because assessing prejudice resulting from the complete denial of statutory counsel is difficult, if not impossible, a bright line reversible error standard for complete denial of the statutory right may be appropriate. However, the standard of review for a complete denial of the right to counsel need not be decided here, since this case involved partial representation by counsel, and is therefore much more amenable to a determination of harm.
B. Partial Denial of Counsel
T 65 In this case, father was represented by counsel for part of the termination proceedings. Only three of the cases cited by the majority involved counsel's absence for part of a termination hearing-and it is not clear that these three cases precluded a harmless error analysis, even though each ultimately found that reversal was required. First, in State v. Doe, 123 Idaho 562, 850 P.2d 211, 215 (App.1993), the mother was not represented by counsel in what appeared initially to be a voluntary termination of parental rights proceeding. After the mother made statements that indicated that any ter*902mination would not be voluntary, the court heard the testimony of several witnesses and a statement by the mother. Because of concerns about the mother's mental capacity and competence, the court then belatedly appointed counsel for the mother for a final day of testimony. Even though the trial court stated that it based its termination decision only on evidence adduced during the last day of the hearing, the appellate court found that the failure to appoint statutorily required counsel in these cireumstances violated the mother's "due process rights." 6 Finding reversible error in this due process violation, the court did not "decide whether any evidence from the first hearing was improperly admitted or whether the evidence from the second hearing was sufficient to form the basis of the court's order to terminate the mother's parental rights." Id.
T66 Similarly, in A.P. v. Commonwealth, 270 S.W.3d 418, 421 (Ky.Ct.App.2008), the mother's counsel did not appear because of inclement weather and the court proceeded with the first day of a termination hearing. On the second day of the hearing, counsel was present, additional witnesses testified, and counsel was given the opportunity to review videotapes of the witnesses who had testified in his absence. On appeal, the appellate court concluded that denial of the mother's statutory right to counsel violated due process and required reversal. Although the appellate court did not specifically state whether it was applying a harmless error analysis, the court noted the discomfort expressed by the government's counsel and the guardian ad litem about proceeding in the absence of the mother's counsel. It also stated that "[alnother concern seen on the record" was the failure to sequester certain witnesses. Id. The court concluded, "We cannot say that the failure of the mother's counsel to be present on the scheduled day of the trial during the testimony of the first two witnesses made no difference in the family court termination proceeding." 7 Id.
T67 Finally, in In re S.S., 90 P.3d 571 (Okla.Civ.App.2004), because appointed counsel elected not to appear, the mother was required to represent herself for approximately half of the trial, and then proceeded with an unprepared substitute for the remainder of the trial. Although the Oklahoma court stated that the deprivation of court-appointed counsel during a crucial portion of the trial was "presumptively prejudicial," the court also observed that substitute counsel was completely unfamiliar with the case when she arrived and was only allowed a few minutes to prepare. These cireumstances, in effect, amount to total deprivation of counsel rather than representation by counsel for part of the proceedings, and thus, S.S. should not be treated as a partial denial case.
T 68 In some criminal law contexts, denial of counsel for only part of a "critical stage" of a case can require automatic reversal. However, this result is not based on the impossibility of assessing harm due to the pervasiveness of a "structural" error, but rather on the importance of the Sixth Amendment right to a fair trial. See United States v. Cronic, 466 U.S. 648, 659-60, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (a trial court order that prevented a criminal defendant from consulting his attorney during a seventeen-hour overnight recess required reversal without a showing of prejudice because it deprived him of his Sixth Amendment right to counsel).
T69 By its plain language, the Sixth Amendment right to counsel applies only to *903"criminal prosecutions." U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence." (emphasis added)). Because no Sixth Amendment right to counsel is implicated in a parental rights termination proceeding, the criminal law "critical stage" concept should not apply to partial denial of the statutory right to counsel in a parental rights termination proceeding. See In re Welfare of G.L.H., 614 N.W.2d 718, 722 (Minn.2000) (declining to equate statutory right to counsel in termination of parental rights proceeding with constitutional right to counsel in criminal prosecution).
T70 In parental rights termination proceedings, the liberty of a criminal defendant is not at stake; instead, these proceedings place primary importance on the best interests of the child. See § 19-8-604(8), C.R.S. 2011 (court must give primary consideration to the physical, mental, and emotional conditions and needs of the child in deciding whether to terminate parental rights). Because of this different balance of interests, the statutory right to counsel in a parental termination case, while deserving of protection, does not require that partial denial of that right should be reversible error per se. Instead, error short of a complete denial of counsel should be subject to a harmless error analysis to determine if, in the context of the individual case, the outcome of the proceeding would have been different, absent the error. See Manuel M. v. Arizona Dep't of Econ. See., 218 Ariz. 205, 181 P.3d 1126, 1137 (App.2008) (harmless error where attorney represented father, who was absent without explanation, in parental termination proceedings, but court denied right to assistance by counsel when it would not allow counsel to cross-examine a witness about the sufficiency of the evidence to support grounds for the termination of parental rights); In re Nalani C., 199 Cal.App.3d 1017, 245 Cal.Rptr. 264 (1988) (harmless error by trial court in parental termination proceeding in dismissing mother's attorney when mother failed to appear on first day of termination hearing). Indeed, some jurisdictions engage in a harmless error analysis in parental rights termination proceedings, even when a complete denial of the statutory right to counsel occurred. See In Interest of J.R.G.F., 250 P.3d 1016, 1018 (Utah Ct.App.2011) (error in failing to inform parents of their statutory right to appointed counsel in a parental termination case and denial of their mid-trial request for appointed counsel was deemed harmless where parents failed to show that outcome would have been different); In re P.D.L., 324 Mont. 327, 102 P.3d 1225, 1229 (2004) (although court erred by failing to advise father of right to counsel in termination of parental rights proceeding, error was harmless where outcome would have remained the same).
T71 The majority rejects harmless error analysis in favor of a reversible error per se standard for two reasons that appear to import the criminal law concepts discussed above: (1) the importance of the right to counsel; and (2) the difficulty (or impossibility) of assessing the effect of the lack of the assistance of counsel on the fairness of the trial.
T 72 Significantly, although relying on the importance of counsel, the majority is unwilling to deem every absence of counsel from a termination hearing reversible error per se. Instead, the majority limits automatic reversible error to cases where counsel has been absent for "a substantial part" of a termination hearing, but does not define what constitutes a "substantial part." I agree that the amount of time counsel was absent here was not "minimal." My position is simply that the amount of time that counsel was absent from a hearing and the substance of the testimony that was elicited during the absence should be relevant considerations in a harmless error analysis, but are too amorphous to trigger a bright line rule. Instead, in the statutory context, the importance of the right to counsel should be the basis for bright line per se reversible error only where counsel has been totally denied during the relevant proceeding. In other situations, it may be possible to determine the absence of prejudice from the content of the existing record and totality of cireumstances in the case.
*904ILI - Harmless Error Analysis
173 Under Colorado law, error in a civil case is harmless if it did not affect a substantial right of a party. C.R.C.P. 61. "An error affects a substantial right only if 'it can be said with fair assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself"" Bly v. Story, 241 P.3d 529, 535 (Colo.2010) (quoting Banek v. Thomas, 733 P.2d 1171, 1178 (Colo.1986)).
T74 Here, father's right to due process and a fair proceeding under the standards set out in Lassiter was not violated by the premature dismissal of his attorney. See Lassiter, 452 U.S. at 32, 101 S.Ct. 2153 (parental termination proceedings were not fundamentally unfair where petition contained no allegations upon which criminal charges could be based, no expert witnesses testified, case presented no specially troublesome points of law, and presence of counsel could not have made a determinative difference for parent). The petition for termination did not allege abuse or neglect that would support criminal charges. Father was represented by counsel during the presentation of a police officer's testimony about the unsanitary condition of the home where the children had lived, and expert testimony about the trauma of the older of the two daughters, which had been caused by "severe neglect and abuse by the bio{logical] parents." Also, it does not appear that the case presented any particularly troublesome points of law. Finally, father was permitted to participate in the portions of the hearing he chose to attend, albeit without the guidance of counsel at that point.
175 Although the majority contends that the absence of counsel in this case is not susceptible to harmless error analysis, I believe that the record in this particular case can be reviewed for harmless error. That review does not rest on any requirement that self-represented parents must make an offer of proof explaining what evidence or testimony would have been presented had the attorney been there.
T76 While the majority asserts that it is "impossible to know" what testimony an attorney would have presented on father's behalf, the record contains a list of witnesses filed by father's attorney prior to the termination hearing. The list included the names of witnesses that father anticipated calling at the termination hearing and a brief synopsis of their expected testimony.8 Four of the five witnesses listed were called by the guardian ad litem in the case-in-chief. Father's attorney cross-examined two of these four witnesses before she was dismissed, and mother's attorney cross-examined all four on behalf of mother.9 Neither attorney's cross-examination provided any challenge to the grounds for termination that were later articulated by the trial court.
T 77 Additionally, it appears that no basis for challenge existed since the failure of mother and father to obtain housing was admitted by mother in her testimony, assisted by counsel. Although unassisted by counsel, father also admitted that he had failed to complete the treatment plan requirement of parenting classes and had not obtained suitable housing.
T78 Specifically, father frankly admitted that he had not fully complied with the treatment plan. He acknowledged that his employment had been "sporadic at best, until recently." He also admitted that, although he had attended group and individual therapy, his attendance at the parenting classes had been "sporadic, at best." Finally, father agreed that in the eighteen months the case had been pending, he only had a home that was suitable for the children during a brief period around October 2010. For the majority of the time the case had been pending, he had been living either in his car or with a friend, and at the time of the May 2011 *905termination hearing, he was living with a friend.
T 79 These admitted facts were the specific basis for the trial court's decision to terminate father's parental rights. Initially, the court noted that because the children had been in out-of-home placement for fifteen of the last twenty-two months, it was presumed that termination was the appropriate outcome. See § 19-3-604(@2)(k), C.R.S.2011. However, apart from the presumption in favor of termination, the court found that the inability of the parents to provide a safe home was the "bottom line." In addition to the failure to provide safe and stable housing for the children, the trial court found that neither parent had complied with the treatment plan:
[Wlhile the parties have testified that in the hopefully near future they will have an environment which would allow them to parent these children, there is certainly no evidence before the Court that the Court deems reliable that, in fact, that is true or can overcome the many other difficulties which exist in this case. [Father] has been sporadie in his participation in this case by his own words, and has been sporadic in his attendance to the court. [Mother], I think, has been attempting to be in compliance, but for whatever reasons and I have not heard any evidence that she is not capable of obtaining full-time employment to add to the financial ability of this family to support these children, instead appears to work when it suits her.
1 80 The court stated that it considered the evidence that termination is the appropriate outcome "overwhelming."
81 In a case remarkably similar to the instant case, In re Nalani C., the California Court of Appeal found harmless error in the dismissal of a mother's attorney in violation of the mother's statutory right to counsel when the mother failed to appear for a termination of parental rights proceeding. Nalani C., 245 Cal.Rptr. at 272. The California court concluded that "the proper procedure would have been for the court not to have relieved [the attorney] and to have conducted the trial with the attorney representing [the mother] to the best of his ability under the cireumstances," but found that there was no prejudice since no errors were committed in the attorney's absence and sufficient evidence supported the judgment. Id.
182 The factors supporting a finding of "no prejudice" in Noloni C. are present in the instant case, as well as the additional factors discussed above: (1) the assistance of father's counsel during the testimony of the initial three witnesses; (2) the representation of mother by mother's counsel during the entirety of the proceedings; and (8) the opportunity for father to testify on the second day of the hearing. These cireumstances present an even stronger basis than that in Nalani C. for concluding that the error in prematurely dismissing father's attorney was harmless here.
1 83 Thus, I would conclude that, although the trial court committed error by dismissing counsel before the conclusion of the termination hearing, the error did not affect the outcome of the case and thus, does not require reversal.
. Included in the list of "majority jurisdictions" is Williams v. Bentley, 26 A.D.3d 441, 809 N.Y.S.2d 205, 206-07 (N.Y.App.Div.2006), which appears to involve the absence of mother's counsel in a child custody dispute between two parents, rather than the termination of parental rights.
. Lack of mental capacity of an unrepresented parent may be sufficient to require appointment of counsel as a matter of due process. Lassiter, 452 U.S. at 31, 101 S.Ct. 2153 ("complexity of the proceeding and the incapacity of the uncoun-seled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent's rights insupportably high").
. The AP. court cited an earlier case that appears to acknowledge the possibility of harmless error review for a violation of the Kentucky statutory right to counsel in parental termination proceedings, R.V. v. Commonwealth, 242 S.W.3d 669, 673 (Ky.Ct.App.2007) ("[The parental rights of a child may not be terminated unless that parent has been represented by counsel at every critical stage of the proceedings. This includes all critical stages of an underlying dependency proceeding in district court, unless it can be shown that such proceeding had no effect on the subsequent circuit court termination case.").
. Father's attorney stated at the start of the hearing that although she had included father's court-appointed expert on a supplemental witness list, she did not intend to call this witness, who was "only here as advisory."
. Although mother's counsel did not represent father, mother and father did not appear to have substantially conflicting interests. Mother and father were still married at the time of the termination hearing, with no plans to separate. They shared housing, so that the failure to obtain suitable housing was attributable to both.