Monroe County DHS v. Kelli B.

Citation2004 WI 48,678 N.W.2d 831,271 Wis.2d 51
Decision Date28 April 2004
Docket Number No. 03-0060 through 03-0062.
PartiesIN RE the TERMINATION OF PARENTAL RIGHTS TO ZACHARY B., a Person Under the Age of 18: MONROE COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent-Petitioner, v. KELLI B., Respondent-Appellant. IN RE the TERMINATION OF PARENTAL RIGHTS TO NATHANIEL B., a Person Under the Age of 18: MONROE COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent-Petitioner, v. KELLI B., Respondent-Appellant. IN RE the TERMINATION OF PARENTAL RIGHTS TO MICHAEL B., a Person Under the Age of 18: MONROE COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent-Petitioner, v. KELLI B., Respondent-Appellant.
CourtUnited States State Supreme Court of Wisconsin

For the petitioner-respondent-petitioner there were briefs by Kerry Sullivan-Flock, corporation counsel, and Ellen M. Thorn, guardian ad litem, and Arndt, Buswell & Thorn, S.C., Sparta, and oral argument by Ellen M. Thorn.

For the respondent-appellant there were briefs and oral argument by Timothy Provis, Madison.

A joint amicus curiae brief was filed by Cynthia L. Buchko, and Whyte Hirschboeck Dudek S.C., Madison, on behalf of Wisconsin Coalition Against Domestic Violence; Eva Shiffrin, Madison, on behalf of Wisconsin Coalition Against Sexual Assault; and Carol Medaris, Madison, on behalf of Wisconsin Council on Children and Families.

An amicus curiae brief was filed by Sandra L. Nowack, assistant attorney general, and Peggy A. Lautenschlager, attorney general, on behalf of the Wisconsin Department of Justice.

¶ 1. ANN WALSH BRADLEY, J.

The Monroe County Department of Human Services ("County") seeks review of a published court of appeals' decision that reversed the orders of the circuit court terminating Kelli B.'s parental rights to her three sons.1 The County contends that the court of appeals erred in holding that Wis. Stat. § 48.415(7) (2001-02) could not constitutionally be applied to Kelli, a victim of long-term and continuous incest perpetrated by her father.2 Because we determine that the statute, as applied, is not narrowly tailored to advance a compelling state interest, we conclude that it violates Kelli's right to substantive due process. Accordingly, we affirm the court of appeals.3

I

¶ 2. Kelli was born on January 17, 1980. Her first son, Zachary, was conceived and born when she was 17 years of age. Her second son, Nathaniel, was conceived when she was 18, and her third son, Michael, was conceived when she was 20. It is undisputed that Kelli's father, Roger, is the father of her children.

¶ 3. By most accounts, Kelli's incestuous relationship with Roger began about the time she was 12.4 She did not disclose the identity of her children's father until after the birth of her third son, Michael. Kelli testified that she kept this secret because she feared for her life and the lives of her children. Kelli finally broke her silence on May 30, 2001, and informed a child support specialist that her father, Roger, was also the father of her children.

¶ 4. After Kelli's disclosure, Roger was charged with first-degree sexual assault of a child for having sexual contact with Kelli when she was younger than 13, in violation of Wis. Stat. § 948.02(1), and second-degree sexual assault of a child for having intercourse with Kelli before the age of 16 in violation of Wis. Stat. § 948.02(2). The State later dropped the first-degree sexual assault charge and added the charge of incest with a child in violation of Wis. Stat. § 948.06(1).

¶ 5. Pursuant to an agreement, Roger entered a plea of guilty to the incest charge and a felony bail jumping charge, and the sexual assault charge was dismissed. Eventually, Roger was given a sentence of ten years for the incest charge and one year, consecutive, for the bail jumping charge. At both his sentencing and resentencing hearings, the court referred to Kelli as a "victim."

¶ 6. Subsequently, on September 9, 2001, the Monroe County Police Department notified the County that Kelli had been arrested on unrelated charges and that no one was available to care for her minor children. Two caseworkers responded to the call and found the children to be living in unsafe and unsanitary conditions. The children were taken into custody by the County, and it was soon determined that at that time all three were developmentally delayed. ¶ 7. After Kelli admitted that her children were in need of protection and services, a dispositional order was entered under Wis. Stat. § 48.13(10) on November 19, 2001. During the course of the next several months, the County attempted to work with Kelli to get her into a position where she might be able to care for her children. From the beginning, the County's plan was focused on reunifying the children with Kelli.

¶ 8. On June 27, 2002, after months of inconsistent visitation, failure to cooperate with the court order, and an inability to achieve a stable lifestyle, the County petitioned to terminate both Kelli and Roger's parental rights. For Kelli, the petition alleged two separate grounds: (1) that the children were in continuing need of protection or services, Wis. Stat. § 48.415(2); and (2) the ground of incestuous parenthood, Wis. Stat. § 48.415(7). For Roger, the petition alleged (1) incestuous parenthood; and (2) that his parenthood was a result of sexual assault, Wis. Stat. § 48.415(9). Roger has since voluntarily agreed to terminate his parental rights, and his rights are not at issue in this case.

¶ 9. Kelli moved to dismiss the incestuous parenthood ground. She contended that, as the victim of incest, application of this provision violated her right to substantive due process.5 On August 6, 2002, the circuit court denied her motion, stating that a parent did not have a fundamental right to raise a child born of an incestuous relationship. The court further noted that it had discretion at the disposition stage not to terminate parental rights if the parent was providing good care to the child born of an incestuous relationship and the incest was not voluntary.

¶ 10. After the circuit court denied Kelli's motion, the County moved for partial summary judgment on the incest ground. The circuit court granted the motion. At that time, the County requested to dismiss without prejudice the remaining ground that the children were in continuing need of protection, and the court granted the motion.

¶ 11. On September 26, 2002, the guardian ad litem brought a motion for reconsideration of the circuit court's partial summary judgment. The guardian argued that summary judgment was inappropriate for such proceedings and that due process required that the court reverse its decision. The court agreed and reversed its partial summary judgment.

¶ 12. The circuit court then held a jury trial to determine whether there was a basis for termination of parental rights on the sole ground of incestuous parenthood. Immediately before trial, Kelli renewed her constitutional challenge to the statute as it applied to her, a victim of long-term and continuous incest perpetrated by her father. The circuit court again denied her motion. The jury returned a verdict with the necessary finding to establish the ground of incestuous parenthood, that is, a finding that Kelli and Roger were related by blood in a degree of kinship closer than second cousin. Accordingly, pursuant to Wis. Stat. § 48.424(4), the circuit court found her to be an unfit parent.6 ¶ 13. After trial, the circuit court held a dispositional hearing to determine whether termination of Kelli's parental rights was in her children's best interests. The court determined that it was. Although it acknowledged that "[Kelli] has been a victim, and she has been damaged . . ." the court concluded that it was not in the children's best interests to wait and see if Kelli was able to make sufficient progress to become a good parent. The court explained that at the disposition stage of a termination of parental rights proceeding, it was required to determine what was in the best interests of the children.

¶ 14. The court of appeals reversed the circuit court's orders terminating Kelli's parental rights. It concluded that the fact of incestuous parenthood in itself did not demonstrate that Kelli was an unfit parent. Monroe County Department of Human Services v. Kelli B., 2003 WI App 88, ¶ 17, 263 Wis. 2d 413, 662 N.W.2d 36. The court recognized that Kelli had a fundamental liberty interest in raising her children. Id., ¶ 14. It also noted that the application of Wis. Stat. § 48.415(7) to Kelli was not narrowly tailored to advance a compelling state interest. See id., ¶¶ 16, 17. Finally, the court rejected the County's argument that the circuit court's discretionary authority at the disposition stage was sufficient to satisfy the requirements of substantive due process. Id., ¶ 20.

¶ 15. Ultimately, the court of appeals held that the ground of incestuous parenthood was unconstitutional as applied to Kelli because she was a victim of her father's incestuous relationship with her. Id., ¶ 21. Specifically, the court concluded that the application of Wis. Stat. § 48.415(7) to Kelli violated her right to substantive due process. Id.

II

¶ 16. In this case we address whether Wis. Stat. § 48.415(7), as applied, violates the constitutional right to substantive due process. Such an issue presents a question of law subject to independent appellate review. See State v. Allen M., 214 Wis. 2d 302, 313, 571 N.W.2d 872 (Ct. App. 1997)

. We begin with the presumption that the statute is constitutional and resolve any doubt in upholding its constitutionality. See id.

¶ 17. Here the parties disagree as to whether the termination of Kelli's parental rights implicates a fundamental liberty interest. If it does, we review the question while employing a standard of strict scrutiny. Winnebago County DSS v. Darrel A., 194 Wis. 2d 627, 639, 534 N.W.2d 907 (Ct. App. 1995). This requires the...

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