(concurring).
¶ 66. There is no dispute about the importance of parental rights. When the state or a private individual petitions to terminate a parent's interest in her child, the court must follow proper procedures so that the parent's rights are fully protected.
¶ 67. At the same time, however, every case involving a proposed termination of parental rights affects the interests of at least one other person — the child. A rational legal system must not become so fixated on a parent's procedural rights that it forgets that a child's life may be at stake. In criminal law, we are familiar with Blackstone's maxim that "It is better that ten guilty persons escape than one innocent suffer." In termination cases, we should question whether it is better that ten innocent children suffer than that one irresponsible parent forfeit her procedural rights.
¶ 68. I concede that Shirley E. was not accorded her full procedural rights. Her attorney should have been permitted to participate in the disposition hearing because, under the statute, any party may present evidence relevant to the issue of disposition and make alternative dispositional recommendations to the court. Wis. Stat. § 48.427(1). The court may receive testimony *31from diverse witnesses, and it should welcome input on the best interests of the child.
¶ 69. However, requiring that Shirley E.'s attorney participate — fully—in a fact-finding hearing on grounds for unfitness presents a different question. In this case, the circuit court was confronted with a mother's protracted indifference to the welfare of her child. The record is devoid of evidence that the mother made any real effort to preserve the companionship, care, custody, or management of her child, and the most compelling proof of this is her consistent failure to show up for hearings. In the absence of any sensible explanation or excuse for the mother's repeated nonappearance, the circuit court found default. The court clearly indicated that it would entertain a motion to vacate the default if the mother appeared. On these facts, the circuit court cannot be said to have unfairly disregarded the mother's interests.
¶ 70. Hence, this court's decision to protect a parent who did not care enough to appear and defend herself, seriously undercuts the authority of circuit judges to enforce their orders. In remanding the case for new hearings on both disposition and grounds, the court is emphasizing form over substance. I write separately to record my dissatisfaction with the state of the law and with the result in this case.
ANALYSIS
¶ 71. In 2001 this court heard and decided Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768. The case is cited as controlling authority in the majority opinion, and thus it invites reexamination.
¶ 72. In Evelyn C.R., a paternal grandmother sought to terminate the biological mother's rights to her son. The child had lived with the grandmother for *32virtually his entire life; the grandmother had been appointed as his guardian when the boy was five. When the boy was seven, the grandmother filed a petition to terminate the mother's parental rights so that she could adopt the child. Id., ¶¶ 4, 5.
¶ 73. At the time of the petition, the mother (Tykila) had not been in contact with her son for five years. The grandmother alleged that the mother had "abandoned" the child, under Wis. Stat. § 48.415(l)(a)3. (1997-98). The court ordered the parties to obtain counsel and scheduled a fact-finding hearing before a 12-person jury. Id., ¶¶ 6, 7.
¶ 74. The mother failed to appear at the hearing. "The court did manage to reach Tykila by phone, but, in light of the fact that the jury would be required to determine whether Tykila had abandoned [the child], the court expressed great apprehension about holding the hearing without Tykila's physical presence." Id., ¶ 8.
¶ 75. The mother's attorney objected to going forward in the absence of the mother. The court offered to hold a court trial rather than a jury trial, but "Tykila refused the court's offers and insisted that the hearing be held before a jury." Id., ¶ 8. The grandmother then moved for a default judgment. The court denied that motion and released the jury but issued a stern oral and written order that Tykila must appear in person at 9:00 a.m. on April 3, 2000, and at "all subsequent proceedings held in this case" or face a potential default judgment. Id.
¶ 76. On April 3 Tykila failed to appear as required by the order. The grandmother moved for default judgment, the child's guardian ad litem voiced no objection, and Tykila's attorney stated: "I would object and waive argument." Id., ¶ 9. Thereafter, the court *33granted the motion for default judgment and found, based on the allegations in the petition, that the mother had abandoned the child and was unfit. Id.
¶ 77. On appeal here, the issue presented was whether the circuit court erred in entering a default judgment on the issue of abandonment without first taking evidence sufficient to support a finding of abandonment by clear and convincing evidence. This court concluded that the circuit court erred. The court stated:
Tykila concedes that the circuit court had the authority to enter a default judgment against her as a sanction for failing to comply with the court order for personal appearance. However, Tykila contends that this authority did not relieve the circuit court of its constitutional and statutory duty to find by clear and convincing evidence — prior to finding her to be an unfit parent —that she had abandoned [the child].
Id., ¶ 16.
¶ 78. In adopting this analysis, our opinion embraced an obvious inconsistency. On the one hand, the opinion trumpets a court's discretion to enter a default judgment as a sanction, stating:
[A] circuit court has both inherent authority and statutory authority under Wis. Stat. §§ 802.10(7), 804.12(2)(a), and 805.03 to sanction parties for failing to obey court orders. Pursuant to this authority, a circuit court may enter a default judgment against a party that fails to comply with a court order.
Id., ¶ 17 (citation omitted). See Wis. Stat. §§ 802.10(7), 804.12(2)(a), 805.03.
¶ 79. On the other hand, the opinion concludes that a court simply has no discretion to enter a default judgment on grounds to terminate parental rights *34"without first taking evidence sufficient to support such a finding." Evelyn C.R., 246 Wis. 2d 1, ¶ 19.
¶ 80. In short, this court made it clear that the circuit court could not enter a default judgment as a sanction without a fact-finding hearing as well as clear and convincing evidence to support its decision. Id., ¶ 24. The court said:
[T]he circuit court may.. . 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.
Id., ¶ 25.
¶ 81. In Evelyn C.R., the circuit court took testimony on the fitness of the parent at a later dispositional hearing and made findings at that hearing to support grounds for termination. Thus, the circuit court corrected its alleged error, and this court upheld the termination of parental rights. Because we unanimously agreed to the termination, we failed to confront the inconsistency in an analysis that authorizes a court to enter a default judgment but only after it hears testimony and finds clear and convincing evidence to support the judgment. The present case accentuates this inconsistency.
¶ 82. The respondent here, Shirley E., never came to court. On November 23, 2004, the State filed a Petition for Termination of Parental Rights. Shirley E. acknowledged receipt of a certified mailing conveying the petition and notice of hearing. A legal notice of hearing was also published in a Michigan newspaper on December 1, 2004. Shirley E. did not appear at the December 13 hearing or at subsequent court hearings *35on February 14, March 8, April 1, May 6, and August 1, 2005. The court did reach Shirley E. by telephone on February 14 and strongly admonished her that "failure to personally appear at the next scheduled court date and all subsequent scheduled court dates WILL result in a default finding." Thus, when Shirley E. failed to appear on March 8, she violated the appearance order. The court sanctioned Shirley E. by finding her in default.
¶ 83. The gist of the majority opinion is to reaffirm the decision in Evelyn C.R. that a circuit court has no inherent or statutory authority to enter a true default judgment as a sanction in a termination of parental rights case. It must always take evidence to support the judgment and make findings on the requisite burden of proof. But more important, the decision determines that the failure of a parent to appear in person may not be sanctioned to limit the role of the parent's attorney in the fact-finding proceedings. The attorney may challenge the state's evidence by motion, objection, or cross-examination, or present alternative evidence, and even demand a jury trial.1 A parent's defiance or indifference, as reflected in the parent's consistent non-appearance in court, does not work any forfeiture of the parent's rights.
¶ 84. This regimen effectively denies the circuit court authority to sanction an uncooperative parent. It may create an incentive in some cases for the parent not to appear. In my view, this is not satisfactory for the child, the prospective adoptive parent or parents, the *36circuit court, the state, or the taxpaying public. For the sake of the affected children, we must do better.
¶ 85. I am authorized to state that Justices JON E WILCOX and PATIENCE DRAKE ROGGENSACK join this opinion.