(dissenting). I dissent for two reasons. First, I do not think the legislature intended sec. 48.42(2m), Stats. 1991-92, to apply to a fact situation such as the one presented in this case. Second, I conclude that the majority's interpretation of sec. 48.42(2m) contravenes the statutory procedure for terminating parental rights and denies the father a fair hearing, thus violating his constitutional rights to procedural due process.
I — I
Under sec. 48.42(2m), Stats. 1991-92, if a physician attests to a belief that a child has been conceived as a result of a sexual assault, notice of the proceedings to terminate parental rights need not be given to the person who may be the father of the child.1 The legislature apparently intended that a physician would have *689examined the woman after the assault or would have examined her medical records and would attest to his or her belief that a sexual assault occurred.
In this case the 21-year-old father of the child was convicted of having sexual intercourse with the 14-year-old mother of the child, contrary to sec. 948.02(2). The relevant facts indicating a sexual assault were that a 15-year-old gave birth to a child; conception therefore occurred before the young woman attained the age of 16. These facts could be proved without a physician. Indeed in this case no physician testified, because the circuit court properly concluded that "one does not need a physician to testify or to attest to the fact that this sexual assault took place_" (R. 35:14)
Because, as the circuit court acknowledged, the physician's testimony was superfluous in this kind of case, I conclude that this statute was not intended to apply to the fact situation presented here.
I — 1 I — l
The majority concedes, as it must, that when a man is adjudicated the father of a child (as Rob S. was in this case), the state grants him parental rights and imposes upon him parental responsibilities, such as child support.
The statutes require that before terminating a father's rights, a circuit court must conduct a fact-finding hearing, secs. 48.422 and 48.424, and must find that at least one of the statutorily specified grounds for termination of parental rights has been proved by clear and convincing evidence. Section 48.415, Stats. 1991-92.
*690The majority opinion concludes that grounds for termination exist in this case. On the basis of the evidence presented to the circuit court, the majority affirms the circuit court's finding that the father did not establish a substantial parental relationship with the child, a ground for terminating parental rights set forth in sec. 48.415(6). Yet the circuit court heard only from the mother and her family; the father had no opportunity to present his side of the story.
The majority concludes that sec. 48.42(2m) denies the adjudicated father any opportunity to participate in the proceedings terminating his parental rights. According to the majority opinion, the father is not entitled to notice of the proceeding and, should he somehow learn about the proceeding (as he did in this case), he cannot appear, make a statement or produce evidence on his own behalf.
The court of appeals concluded that refusing to give the father an opportunity to be heard on termination of his parental rights is inconsistent with the statutory scheme for termination of parental rights. I agree with the court of appeals.2
*691Further, the majority opinion violates the basic concepts of fair play which require that a person be given the opportunity to be heard before a court makes a decision affecting that person's rights. I therefore conclude that this court's upholding the termination of parental rights while denying the father an opportunity to appear and present evidence is a clear denial of procedural due process.3
Finally, the majority's holding that the "fathers of children bom out of wedlock do not acquire constitutional protection under the due process clause until the unwed father establishes a significant relationship with the child," maj. op. at 686, puts the father in a catch-22 situation: He has no rights unless he has established a significant relationship with the child, but the court will not allow him an opportunity to introduce evidence of the relationship.
hH HH HH
In sec. 48.42(2m) the legislature apparently was attempting to facilitate the prompt termination of a father's parental rights to free the mother of any connection with the person who assaulted her, regardless of whether the mother chooses to keep the child or seeks to place the child for adoption.
The statute presents several difficulties. One is that sec. 48.42(2m), Stats. 1991-92, does not distin*692guish among various types of sexual assaults and the relationship of the parties.4
Another problem, as I have discussed previously, is that the statutes send conflicting signals: On the one hand, the father's parental rights are terminated without notice. On the other hand, the biological father is given parental rights that can only be terminated for specified reasons upon a court hearing.
The questions raised by this case are important to the mother, the father, the child and the public. I suggest that the legislature might want to give further consideration to the issues it sought to address in sec. 48.42(2m), Stats. 1991-92.5
*693I am authorized to state that Chief Justice Nathan S. Heffernan and Justice William A. Bablitch join this opinion.
Section 48.42(2m) provides:
(2m) Notice not required. Notice is not required to be given to a person who may be the father of a child conceived as a result of a *689sexual assault if a physician attests to his or her belief that a sexual assault has occurred.
The parties do not argue that fathering a child as a result of a sexual assault is a ground for termination of parental rights. The mother's brief in this case expressly states that she does not assert that conception as a result of a sexual assault is a ground for involuntary termination of parental rights. Petitioner's Brief, p. 10. The parties accept that the statutes require the same grounds for terminating the rights of a man who has fathered a child as a result of sexual assault as for terminating the rights of other fathers.
The statute provides a separate statutory grounds for termination of parental rights in incest cases. Section 48.415(7), Stats. 1991-92.
The father also makes an equal protection argument. The statute applies only to males, not females. An 18-year-old woman could become pregnant as a result of intercourse with a 15-year-old male. Although she may be guilty of sexual assault, she is apparently still entitled to notice of a termination of her parental rights and may appear and present evidence.
Many sexual assaults are committed by persons known to the victim — a date, a relative, a family friend, or a spouse. The policy considerations which resulted in the adoption of sec. 48.42(2m) may not be present in all of these fact situations.
The circuit court stated this idea as follows: "I find it difficult ... to take (2m) as it is written to become all encompassing in such a manner that it would permit the termination of parental rights of every putative father under any circumstances where one might argue a sexual assault took place.... I can see a sexual assault taking place under the definitions of sexual assault in the criminal code, but involving two individuals who otherwise have a significant and long-lasting relationship, and I can't imagine the legislature would intend under that kind of situation to not provide notice to the putative father." R. 35:14-15.
Two bills presently before the legislature add as a ground for involuntary termination of parental rights "parenthood as a result of a sexual assault [which] may be established by a showing that the child was conceived as a result of sexual assault in violation of s.940.225 (1), (2) or (3) or 948.02 (1) or (2) and that the person whose parental rights are sought to be terminated has been convicted of that sexual assault." 1993 Sen. Bill 77; 1993 Assembly Bill 101.