(dissenting). This appeal presents an important question of first impression: Is an alleged father in a paternity action for whom counsel has been appointed under sec. 767.52(1), Stats., entitled to effec*724tive assistance of counsel?1 I conclude that the right to state-appointed counsel under sec. 767.52(1), includes the right to effective assistance of counsel. Therefore, I respectfully dissent.
Unlike the majority, I do not find a constitutional issue in this case. The legislature has made it unnecessary for us to consider whether J. had a right under the federal or state constitution to assistance of counsel. Therefore, we are presented with a question of statutory construction: When the legislature gave to J. the right to counsel, did it intend to give him the right to effective counsel? I agree with what the court said in In re Smith, 573 A.2d 1077 (Pa. Super. 1990). In Pennsylvania, the right of a juvenile to assistance of counsel has been codified in the state's Juvenile Act. The court said:
To assume that what is meant by assistance of counsel does not include the concept of able, effective representation is to ascribe to the statute a ludicrous result, that is, that such counsel need not be able to perform appropriately, or indeed at all, to fulfill the legislative mandate.
Id. at 1079.
The majority relies on the civil/criminal distinction. This distinction has been characterized as "wooden." *725Banks v. Randle, 486 A.2d 974, 976 (Pa. Super. 1984) (citing In re Gault, 387 U.S. 1 (1967)). The civil/criminal distinction has been abandoned in favor of an emphasis on the nature of the threatened deprivation. Id.
Thus, in a variety of non-criminal contexts, courts have concluded that, where significant rights of the individual are implicated, the right to counsel for otherwise defenseless persons is a firmly established tenet of procedural due process, and that the right to counsel means the right to effective counsel. As far back as In re Gault, the United States Supreme Court recognized that "the guiding hand of counsel" is essential to otherwise defenseless persons whose liberty or property interests may be adversely affected by state action. In re Gault, 387 U.S. 1, 36 (1967). Gault extended the right to assistance of counsel to juveniles in delinquency proceedings. The Court noted the "forceful" statement of the National Crime Commission that constitutional rights have substantial meaning for the overwhelming majority of persons brought before the juvenile court "only if they are provided with competent lawyers who can invoke those rights effectively." Id. at 38 n.65.
In Banks, the court decided that due process entitled a defendant in a paternity action to the effective assistance of counsel. The court said:
Given the recognition of the right to counsel for paternity defendants ... we find it impossible to deny such a defendant the right to effective assistance of counsel. It is axiomatic that the right to the assistance of counsel means the right to the effective assistance of counsel . . .. Indeed, without the guidance of competent counsel, appellant's right to representation would be rendered worthless. Thus, were we to hold that a paternity defendant's right to counsel does not require the effective assistance of coun*726sel, we would be exalting form over content.... To relegate appellant to the civil remedy of a malpractice suit for money damages is no remedy at all for the potential loss of liberty and the seriousness and permanence attached to an adjudication of paternity.
Banks, 486 A.2d at 977 (citations omitted). The theme is consistent regardless of whether the right to counsel is conferred by the legislature, or found in the federal or state constitution: the right to counsel includes the right to effective counsel.
The majority cites In re S.S.K., 143 Wis. 2d 603, 611, 422 N.W.2d 450, 453 (Ct. App. 1988) where we held that a mother did not have a claim for ineffective assistance of counsel in a child-in-need-of-protection-or-services proceeding. We were influenced by the lack of permanency of a CHIPS determination. Id. However, a judgment or order determining paternity "is determinative for all purposes." Sec. 767.51(1), Stats. Further, we did not consider the legislature's intent in mandating counsel for the mother, nor did we analyze the mother's claim under the due process clause.
In In re T.L., 151 Wis. 2d 725, 737, 445 N.W.2d 729, 734 (Ct. App. 1989) we said that counsel appointed under sec. 48.23(2) (a) and (6), Stats., to represent a parent in a CHIPS proceeding had a duty "to provide his client with zealous, competent and independent representation." (Emphasis added.) We pointed out that counsel was bound under Supreme Court Rule 20:1.1 to "provide the client with competent representation." Id. To suggest, as the majority does in footnote 1,-that the indigent client has an adequate malpractice remedy against his or her ineffective counsel is to ignore the reality of poverty.
In providing J. with counsel, the legislature. intended to even the odds when the resources of the *727state are marshalled against an indigent respondent in a paternity action. Our decision today skews the odds in the state's favor. I cannot join it.
Our answer to this question has broader application than paternity actions. Indigent persons subject to emergency detention or involuntary civil commitment under ch. 51, Stats., have the right to have an attorney provided at public expense. Secs. 51.15(9); 51.20(3); 977.05(4) (i)4, Stats. Children subject to proceedings under ch. 48, Stats., shall be provided legal representation as provided in sec. 48.23. The public defender shall provide legal services in cases involving children subject to sec. 48.18 (criminal proceedings for children 14 or older) or to adjudication as delinquent and persons subject to sec. 48.366 (extended court jurisdiction). Section 977.05(4)(i)5, Stats.