(concurring).
¶ 36. I substantially agree with the analysis in the majority opinion. I write separately to address the two dissents and to disavow judicial efforts to tamper with the termination of parental rights (TPR) statutes.
I. BACKGROUND
¶ 37. In his brief, the petitioner states the issue as whether Wis. Stat. § 48.415(4) is unconstitutional on its face "because it does not require any evidence of parental unfitness," and this hypothesis attracts the two dissents. In my view, the hypothesis is mistaken because the statutory scheme is designed to expose and establish parental unfitness.
¶ 38. In Wisconsin, the definition of "unfitness" is not up for interpretation on a case-by-case basis. The legislature has defined unfitness by establishing multiple statutory "grounds" for the termination of parental rights. See Wis. Stat. § 48.415. These grounds include abandonment, child abuse, failure to assume parental responsibility, and commission of a serious felony against one of the parent's children. Some of the grounds in the statute, such as child abuse, are self-evident; others require close examination of the requisite elements in the context of the overall statutory scheme.
¶ 39. The termination of EE's parental rights was based on Wis. Stat. § 48.415(4), "Continuing Denial of Periods of Physical Placement or Visitation." The majority opinion carefully explains the basis for this ground and the elements that the government must prove at a fact-finding hearing. The opinion correctly observes that "findings under § 48.415(4) are not possible without significant earlier findings," majority op., *192¶ 22, and it recounts the steps leading up to the fact-finding hearing on that ground. See Wis. Stat. § 48.424.
¶ 40. The record in this case illuminates the basic points of government interaction with a parent prior to a termination proceeding. A TPR case usually unfolds in the following manner.
¶ 41. First, a child is taken into custody under a judicial order made upon a satisfactory showing that "the welfare of the child demands that the child be immediately removed from his or her present custody," Wis. Stat. § 48.19(l)(c), or by a law enforcement officer who "believes on reasonable grounds . . . that [t]he child is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary." Wis. Stat. § 48.19(l)(d)5. The person taking the child into custody "shall immediately attempt to notify the parent," and this effort must be continued by one person or another until the parent is notified. Wis. Stat. § 48.19(2). The parent is told of the reasons for holding the child in custody and informed of the time and place of a detention hearing. Wis. Stat. § 48.20(8). The parent is told of the possible consequences of that hearing and of the right to present and cross-examine witnesses. Id. The purpose of notification is to alert the parent to the forthcoming opportunity to review and dispute government action.
¶ 42. Second, the court conducts a detention hearing for a child in custody. Wis. Stat. § 48.21. This hearing is preceded by a petition that identifies the purpose of the hearing, especially a claim that the child is in need of protection or services. Wis. Stat. § 48.21(3). At the hearing, the court must find probable cause to continue custody on one of the bases listed in Wis. Stat. *193§ 48.205. Wis. Stat. § 48.21(4). "Reasonable restrictions may be placed upon the conduct of the parent... which may be necessary to ensure the safety of the child." Wis. Stat. § 48.21(4)(a). A judicial decision to maintain custody of the child must list the reasons and criteria forming the basis for the decision and a finding "that continued placement of the child in his or her home would be contrary to the welfare of the child." Wis. Stat. § 48.21(5)(a) and (b)l.
¶ 43. Third, the court eventually holds a more complete fact-finding hearing to determine whether the allegations in the petition — that a child is in need of protection or services — are proved by clear and convincing evidence. Wis. Stat. § 48.31(1). The child's parent may demand a jury for this hearing. Wis. Stat. § 48.31(2).
¶ 44. Fourth, if the fact-finder determines by clear and convincing evidence at the fact-finding hearing that the child is in need of protection or services, the court then conducts a "dispositional" hearing to determine disposition. Wis. Stat. § 48.335(1). This hearing follows the preparation of a court-ordered report that provides recommendations to the court from an appropriate agency. Wis. Stat. § 48.33. The report must address, in detail, any recommendation that the child be placed outside the home. Wis. Stat. § 48.33(4). At the dispositional hearing, the parent may present evidence to challenge the recommendation and may make alternative recommendations. Wis. Stat. § 48.335(3).
¶ 45. Fifth, the court makes a disposition. Wis. Stat. § 48.345. If the government shows that the rehabilitation or treatment of the child "cannot be accomplished by means of voluntary consent of the parent," the court may transfer custody of the child to a relative, a county department, or a licensed child welfare agency. *194Wis. Stat. § 48.345(4). "When appropriate . .. the family unit shall be preserved and there shall be a policy of transferring custody of a child from the parent... only where there is no less drastic alternative." Wis. Stat. § 48.355(1).
¶ 46. Sixth, a disposition order shall include written findings of fact and conclusions of law based on the evidence presented to the court. Wis. Stat. § 48.355(2). If the child is placed outside the home, the court shall make a written finding "that continued placement of the child in his or her home would be contrary to the welfare of the child." Wis. Stat. § 48.355(2)(b)6. "The court shall make the findings specified in this subdivision on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the court order." Id.
¶ 47. Seventh, in most circumstances, the court must make a finding that the government agency responsible for providing services under a court order "has made reasonable efforts to prevent the removal of the child from his or her home, while assuring . .. the child's health and safety," or has made reasonable efforts to achieve the goal of the child's permanency plan. That goal may be to return the child to the home. Id.; Wis. Stat. § 48.355(2c).
¶ 48. Eighth, when a child is placed outside the home, the court may deny or limit visitation. Wis. Stat. § 48.355(2c)(b), and § 48.356(1). The basis for this determination must be explained.
¶ 49. Ninth, the court has a duty to warn the parent of a child placed outside the home of any potential grounds for termination of parental rights under Wis. Stat. § 48.415 "and of the conditions neces*195sary for the child ... to be returned to the home or for the parent to be granted visitation." Wis. Stat. § 48.356(1).
II. APPLICATION
¶ 50. In this case, the county settled on "Continuing Denial of Periods of Physical Placement or Visitation" as the ground on which it sought termination of PR's parental rights. Wis. Stat. § 48.415(4).1 This statute provides that a parent is unfit (1) if the parent has been denied physical placement of the child or visitation with the child by court order; (2) at least one year has elapsed since the court issued the order; and (3) the court has not modified the order so as to permit periods of physical placement or visitation. Wis. Stat. § 48.415(4).
¶ 51. As noted in ¶¶ 41-49, the steps leading up to a petition under § 48.415(4) are elaborate. RP does not contend that these steps were not followed in his case. All steps outlined above preceded the petition to terminate PR's parental rights, and all steps would *196have preceded a fact-finding hearing on the termination petition under Wis. Stat. § 48.424, if EE had not entered a no contest plea and admitted the asserted ground.
¶ 52. It should be obvious that the statutes entitle a parent to notice of virtually every step in the lengthy proceedings. The statutes also afford a parent the right to challenge in court a child's continued custody, a child's placement outside the home, and any restrictions on the parent's visitation. EE does not allege that the government failed to inform him of any step in the proceedings, or prevented him from challenging government action at any point. He did not invoke his right to a jury trial when that right was afforded; he failed to ask for reconsideration or modification of any judicial order; and he did not seek judicial review.
¶ 53. If a parent fails to exercise his or her rights to challenge government action, how can the parent complain that an unchallenged court-ordered separation of parent and child for at least a year does not provide evidence of the parent's unfitness? The reasons for the separation are in the record, and the failure to seek a change in circumstances is proof of the parent's unfitness.2 The parent has no legitimate complaint unless the parent can point to some specific procedural deficiency such as a failure to provide timely notice, *197some fundamental unfairness in a condition set by the court, or some excusable error, explainable inadvertence, or impossibility in making a timely challenge or in meeting the conditions for placement or visitation. A year is a long time for a fit parent to do nothing.
¶ 54. If a parent has in fact exercised his or her right to challenge one or more of the prior judicial determinations, then the record will show why those efforts did not succeed.
¶ 55. The statutory scheme is replete with procedural safeguards. As the majority opinion explains, a child is entitled to parental involvement and support. The legislature has determined that a parent's unwillingness or inability to be involved with a child, after a necessity-based court order to separate the child from the parent, is compelling evidence of the parent's unfitness.
III. STATUTORY INTERPRETATION
¶ 56. The statutory scheme is sound. What is troublesome are judicial interpretations that (1) deprive a parent of the right to a jury trial in circumstances where a circuit judge determines that no material facts are in dispute; or (2) preclude the parent from ever offering any factual defense at the fact-finding hearing on a § 48.415(4) ground.
¶ 57. The first concern was discussed in my dissent in Steven V. v. Kelley H., 2004 WI 47, ¶¶ 63-100, 271 Wis. 2d 1, 678 N.W.2d 856 (Prosser, J., dissenting). My view was that a parent had the right to a jury trial at the hearing to establish grounds for termination of parental rights, not because the constitution requires it but because the legislature had always made the right to trial by jury in termination cases a fundamental part *198of the prescribed procedure. To conclude otherwise, this court disregarded more than a century of statutory law and overruled Walworth County Department of Human Services v. Elizabeth W., 189 Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994).
¶ 58. The second concern was also discussed in my Steven V. dissent at ¶¶ 93-98. The majority concluded that unfitness determinations could conclusively flow from "certain existing court orders." Steven V., 271 Wis. 2d 1, ¶ 39. The Chief Justice added in her concurrence that the termination court could not consider reasons why the disposition court did not modify an order denying placement or visitation. Steven V., 271 Wis. 2d 1, ¶ 56 (Abrahamson, C.J., concurring).
¶ 59. There appears to be a relationship between summary judgment replacing trial by jury and the court-created barrier to offering a factual defense to a § 48.415(4) ground. It is much easier to deny a jury trial on the basis that no material facts are in dispute when one first concludes that the legislature has insisted that a court may not consider any facts, explanations, or defenses to a § 48.415(4) ground "to defeat the determination of unfitness once [that] ground has been found." Id. Of course, I disagree with this interpretation of the legislature's intent.
¶ 60. As I see it, if a parent is able to show a fundamental flaw in the procedure leading up to a termination petition under § 48.415(4), the parent must have an opportunity to bring that flaw to the attention of the termination court before the court or jury makes a finding on this ground for unfitness. If a parent is able to show that it was impossible or completely unreasonable to comply with the court order, the parent must have an opportunity to present that evidence. Failure to provide such an opportunity is not *199only unfair but also implicates the parent's due process right to present a defense. Washington v. Texas, 388 U.S. 14, 19 (1967); see also State v. Heft, 185 Wis. 2d 288, 303, 517 N.W.2d 494 (1994). While it is true that the "strict constitutional safeguards afforded to criminal defendants are not applicable to civil cases," basic due process rights often apply in civil proceedings. BMW of N. Am. v. Gore, 517 U.S. 559, 574-75 n.22 (1996) (protection against judgment without notice applies in civil proceedings); Reed v. Cleveland Bd. of Educ., 607 F.2d 749, 750 (6th Cir. 1979). The Supreme Court has also characterized the due process right as "an opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The fact-finding hearing on unfitness is certainly a "meaningful time."
¶ 61. The majority apparently recognizes that a parent with a factual defense must be heard in some way because it allows the parent to bring an as-applied constitutional challenge to the statute. Majority op., ¶ 25 n.6. But an as-applied challenge is an inadequate remedy. At the termination proceeding, the county must prove unfitness by clear and convincing evidence. Wis. Stat. § 48.415; see also Santosky v. Kramer, 455 U.S. 745, 769-70 (1982). By contrast, in an as-applied constitutional challenge, this court "begin[s] with the presumption that the statute is constitutional and resolve [s] any doubt [in favor] of upholding its constitutionality." Monroe County Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶ 16, 271 Wis. 2d 51, 678 N.W.2d 831. This shift in the burden of proof is not fair to the parent.3
*200¶ 62. The court's continued insistence on denying the parent an opportunity to present a factual defense to a § 48.415(4) petition is also bad policy. It is not good practice to invite as-applied constitutional challenges. Writing in another context, Justice Blackmun once criticized the Supreme Court's characterization of an attack on a statute as an "as-applied challenge" because, he said, "the Court risks misdirecting the litigants and the lower courts toward piecemeal litigation continuing indefinitely throughout the life of the [statute]." Bowen v. Kendrick, 487 U.S. 589, 627-28 (1988) (Blackmun, J., dissenting). I fear a similar outcome here. This court should not encourage satellite litigation. It could avoid doing so by allowing a parent to present at the termination hearing factual evidence relevant to the parent's prior failure to challenge an order denying placement or visitation rights. This evidence could be tightly screened rather than absolutely excluded.
¶ 63. In addition, reasonable people agree that "persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Santosky, 455 U.S. at 753-54. The inconvenience — if such it is — of allowing the parent to present evidence why he or she could not *201challenge or comply with the court order pales in comparison to this fundamental right.
¶ 64. My interest in writing is to protect parents and to sustain the TPR statutes. Interpretations that curtail parental protections can only hurt the statutes in the long run. I therefore respectfully concur.
Wisconsin Stat. § 48.415(4) provides:
(4) Continuing Denial of Periods of Physical Placement or Visitation. Continuing denial of periods of physical placement or visitation, which shall be established by proving all of the following:
(a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356(2) or 938.356(2).
(b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.
Chief Justice Abrahamson's dissent states that this concurrence "infers" a finding of unfitness. Chief Justice Abrahamson's dissent, ¶ 73. This is not correct. In Wis. Stat. § 48.415 the legislature has explicitly defined the grounds meriting a finding of unfitness, and the circuit court explicitly found EE unfit under § 48.415(4) after he pled no contest. Having made a finding in line with the statute, the circuit court had no obligation to make a duplicative finding of unfitness apart from the statute.
In Monroe County Department of Human Services v. Kelli B., 2004 WI 48, ¶ 1, 271 Wis. 2d 51, 678 N.W.2d 831, the court *200held Wis. Stat. § 48.415(7) unconstitutional as applied. Part of my concern in that case was that this court made certain assumptions about the facts, relieving the parent challenging the statute of her burden of proof and disregarding the facts in the record, including the circuit court's findings. Compare the procedure outlined in State v. Hamdan, 2003 WI 113, ¶¶ 86-88, 264 Wis. 2d 433, 665 N.W.2d 785.