IN 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.
Nos. 03-0060 through 03-0062
Supreme Court of Wisconsin
Oral argument October 20, 2003. Decided April 28, 2004.
2004 WI 48 | 678 N.W.2d 831
ANN WALSH BRADLEY, J.
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
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
¶ 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
¶ 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.
father had begun when she was 17 and that she had wanted the relationship. The circuit court later stated that it did not believe this recantation.
¶ 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,
¶ 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
¶ 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
¶ 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 360. The court recognized that Kelli had a fundamental liberty interest in raising her children. Id., ¶ 14. It also noted that the application of
¶ 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
¶ 16. In this case we address whether
¶ 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 County to show that the statute, as applied, is narrowly tailored to advance a compelling interest that justifies interference with Kelli‘s fundamental liberty interest. See id. If a fundamental liberty interest is not implicated, then we need only review the termination of Kelli‘s parental rights under the standard of rational basis. See Allen M., 214 Wis. 2d at 314, n.12. This is satisfied if the legislative enactment bears a rational relation to some legitimate end. State v. McCaughtry, 2003 WI 80, ¶ 41, 263 Wis. 2d 83, 664 N.W.2d 596.
III
¶ 18. We begin our analysis with an examination of the statute at issue.
48.415 Grounds for involuntary termination of parental rights... Grounds for termination of parental rights shall be one of the following:
...
(7) INCESTUOUS PARENTHOOD. Incestuous parenthood, which shall be established by proving that the person whose parental rights are sought to be terminated is also related, either by blood or adoption, to the child‘s other parent in a degree of kinship closer than 2nd cousin.
¶ 19. Kelli asserts that the statute, as applied to her, violates her constitutional right to substantive due process. This right emanates from the
¶ 20. The threshold inquiry we address is whether Kelli has a fundamental liberty interest in parenting her children. The County contends that she
¶ 21. In Allen M., the court of appeals addressed a constitutional challenge to
¶ 22. The County skews the question before us when it attempts to apply this comment of the Allen M. court to the facts of this case. The question is not, as asserted by the County, whether any court “has ever recognized incestuous parenthood or the act of incest as a fundamental right.” To suggest that anyone here is asserting that the act of incest is a fundamental liberty interest obfuscates the focus.
¶ 24. Here, Kelli established this fundamental liberty interest by living with her children and having custody of them. See In Interest of J.L.W., 102 Wis. 2d 118, 135, 306 N.W.2d 46 (1981). The County has not cited, and we have not discovered, any precedent that would support its position that a parent in Kelli‘s situation, a victim of long-term and continuous incest, is excluded from this constitutional protection. Accordingly, we conclude that Kelli does have a fundamental liberty interest in parenting her children that requires review under the standard of strict scrutiny.
¶ 25. Under that standard, we next consider whether the statute, as applied to Kelli, is narrowly tailored to advance a compelling state interest. “Incestuous parenthood” is one of 11 grounds set forth by
¶ 26. As applied to Kelli, we conclude that the incestuous parenthood ground as set forth in
¶ 27. We agree with the State of Wisconsin, Department of Justice, that filed an amicus curiae brief in support of Kelli. It asserts that it is fundamentally unfair to terminate the parental rights of victims of incest based solely on that status:
In using
Wis. Stat. § 48.415(7) to find a victim unfit to parent her child based solely on the fact of her victimization—without regard for her actual parenting activities and/or the actual condition of her children—Monroe County uses this crime victim‘s plight against her.
In accord with the Wisconsin Department of Justice, we determine that it is fundamentally unfair to terminate Kelli‘s parental rights based solely on her status as a victim of incest.
¶ 28. In addition to the compelling interest underlying the statute, the County asserts two specific compelling state interests that justify the interference with Kelli‘s liberty interest: (1) the deterrence of father-daughter incest; and (2) the protection of children from psychological harm. Although we agree with the County that both interests are compelling, we are not persuaded that the statute, as applied to Kelli, is narrowly tailored to advance either one.
The question put to this Court is whether it would be better to condone the biological realities of these children‘s births or discourage it, and any future incestuous conduct resulting in births between fathers and daughters by refusing to bestow legal protection on the relationship between Kelli and her children.
¶ 30. We conclude that the statute, as applied to Kelli, is not narrowly tailored to advance the compelling interest of deterring father-daughter incest. The concept of deterrence presupposes that Kelli had a meaningful choice in her relationship with her father. Yet the facts here do not support this presupposition. Rather, they support our conclusion as a matter of law that she is a victim.
¶ 31. From the time Kelli was 12 years old, continuing through the birth of her third child nine years later, she was involved in an incestuous relationship with her father. The facts reflect that she was a victim of this long-term and continuous relationship. Her father was convicted of felony incest with a child. The County‘s own petition to terminate Roger‘s parental rights alleged that it was a “substantiated [fact] that all three of Kelli‘s minor children are the products of sexual assault.” At both Roger‘s sentencing and resentencing hearings, the circuit court recognized that Kelli was a victim. Finally, at the dispositional hearing, the circuit court acknowledged, “[a]s to Kelli, it‘s a very sad
¶ 32. Given her status as a victim, the statute is not narrowly tailored to promote the compelling state interest of deterring father-daughter incest. The reason it is not narrowly tailored is because it applies not only to perpetrators who may be amenable to deterrence but also to incest victims, for whom deterrence plays no role.
¶ 33. Additionally, the County asserts that failing to apply the statute to victims like Kelli would be promoting or “admitting a de facto acceptance of incestuous parenthood.” We note that the Wisconsin legislature already discourages incestuous parenthood through several of its statutes. The legislature has criminalized incestuous sex.10 It has also criminalized incest with a child.11 Given the existence of these
¶ 34. As a final compelling state interest, the County maintains that termination is necessary to protect Kelli‘s children from psychological harm encountered by being raised in an incestuous household. Specifically, it cites Allen M. in support of its argument:
A statute that declares incestuous parents unfit acknowledges the fundamentally disordered circumstances in which the child of an incestuous relationship will be raised. Moreover, it recognizes the vulnerability of the child and the compelling interest in protecting children from psychological confusion and emotional damage they likely will suffer as a result of being born to and living within an incestuous family.
¶ 35. The psychological harm described in Allen M. stemmed from the prospect of being raised in a home in which the parents were engaged in a consensual and continuing incestuous relationship. There is no evi-
(a) Has knowledge that another person related to the child by blood or adoption in a degree of kinship closer than 2nd cousin has had or intends to have sexual intercourse or sexual contact with the child; (b) Is physically and emotionally capable of taking action that will prevent the intercourse or contact from occurring or being repeated; (c) Fails to take that action; and (d) The failure to act exposes the child to an unreasonable risk that intercourse or contact may occur between the child and the other person or facilitates the intercourse or contact that does occur between the child and the other person.”
¶ 36. Thus, we conclude that the statute, as applied here, is not narrowly tailored to advance any of the compelling state interests offered by the County. Kelli is a victim of long-term and continuous incest perpetrated by her father.
¶ 37. Perhaps the greatest difficulty we have with the County‘s position is that it elected to prove Kelli‘s parental unfitness solely on the ground of incestuous parenthood, rather than relying on other statutory grounds. It may well be that the County can ultimately prove Kelli‘s unfitness on other grounds. Initially, it alleged that her children were in continuing need of protection or services,
¶ 39. In its defense, the County maintains that the circuit court‘s discretion at the disposition stage to dismiss pursuant to
¶ 40. Again, the County‘s argument misses its mark. Here, Kelli‘s challenge is one of substantive due process, not procedural due process. In such cases, the existence of extra procedural protections cannot cure the substantive due process violation. See Penterman, 211 Wis. 2d at 480.
¶ 41. In addition to constitutional considerations, Kelli‘s position is also supported by strong public policy favoring the protection of crime victims.
¶ 42. We are mindful of this public policy in reaching our decision today. Were we to accept the County‘s position, Wisconsin would become the only state to authorize the termination of parental rights of victims as well as perpetrators of incest.14 Not only would this undermine the state‘s general efforts to support crime
¶ 43. In sum, we determine that Kelli has a fundamental liberty interest in parenting her children.
By the Court.—The decision of the court of appeals is affirmed.
¶ 45. DAVID T. PROSSER, J. (dissenting). This is a sad case, with profound implications for a mother, her three children, and public policy.
¶ 46. The majority asserts that the application of
¶ 47. Upon reflection, this case is more complicated than the majority is prepared to acknowledge. “Incestuous parenthood” is a legitimate ground for termination of parental rights in situations where an incestuous parent was the “perpetrator” of incest, where an incestuous parent capable of consent was a willing participant in incest, and where an incestuous parent‘s inability to provide for the emotional, physical, and developmental needs of the offspring of incest is inextricably linked to the parent‘s victimization from incest. In approving an “as applied” challenge to the constitutionality of the statute, the majority opinion is disturbingly selective in its consideration of facts and curiously unhelpful in explaining how it believes the
I. INCEST STATUTES
¶ 48. There are several Wisconsin statutes that address incest. In the criminal code,
¶ 49. In the chapter on marriage,
No marriage shall be contracted... between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has obtained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile. Relationship under this section shall be computed by the rule of the civil law, whether the parties to the marriage are of the half or of the whole blood.
The rule of the civil law alluded to in
¶ 51. In addition, nonmarital sexual intercourse with a close blood relative may constitute adultery.3 When it does, it is likely to undermine the existing marriage relationship. Incest can also spawn intrafamily rivalry and tension and create psychological confusion in the family about the appropriate roles of family members. Incest is sometimes described as the product of an already dysfunctional family.4 The conception of incestuous children will usually lead either to abortions5 or to the exacerbation of existing problems within the family.
.¶ 52. “Marriage is the foundation of family and society. Its stability is basic to morality and civilization, and of vital interest to society and this state.”
¶ 53. In the Children‘s Code, “Incestuous parenthood” is one of the grounds for termination of parental rights.6 This ground complements the statutes on incest but also embodies separate and distinct concerns
II. FELONY INCEST
¶ 54. The felony incest statute,
¶ 55. Incest may involve two adults, two minors, or one adult and one minor. If the state chooses to prosecute a person for incest, it will select either
¶ 56. A person charged with incest may also be charged with sexual assault, provided that the state is able to prove the requisite non-consent by the victim of the sexual assault. See State ex rel. Lawrence v. Burke, 253 Wis. 240, 247, 33 N.W.2d 242 (1948); Porath v. State, 90 Wis. 527, 536, 63 N.W. 1061 (1895).
¶ 57. Consent is a defense to a charge of sexual assault but consent is not a defense to a charge of incest. Mutual consent does not validate unlawful incest. This case indirectly raises the question whether a person‘s non-consent to sexual intercourse would be a defense if that person were prosecuted for incest.
¶ 59. If non-consent were recognized as a defense to incest, it would likely be a broader defense than the statutory defense of coercion, which is narrowly defined in
¶ 60. A child involved in sexual contact or sexual intercourse who has not attained the age of 16 years is incapable of consent as a matter of law.
¶ 61. In my view, a person who has engaged in sexual intercourse without consent may not be convicted of felony incest under any statute. This means that I would recognize a non-consent defense to incest
¶ 62. In this case, Roger B. was never convicted of sexual assault. He was convicted of incest under
¶ 63. In fact, Kelli testified under oath that she wanted the relationship with her father. At Roger B.‘s sentencing hearing—which occurred on November 1, 2001, more than seven months before Monroe County moved to terminate Kelli‘s parental rights—Kelli testified that: “Well, I don‘t think [my father] should go to prison because it was just as much my fault as it is his, because I wanted the relationship.” On cross-examination, the following exchange occurred:
Q Wouldn‘t you agree that in a normal parent child relationship that the parent bears some responsibility for the behaviors and activities of the child?
A Well, the thing is is it was my fault just as much as it was his because I wanted it just like he did.
....
A No.
¶ 64. In addition, in response to questions from the court, Kelli denied that her father had been physically abusive to her.
Q In the presentence report it says that there [are] some charges pending.... [A] charge of battery against your father and intimidation of a victim.... [H]e is accused of being physically and verbally abusive to you on two occasions. Are you saying that didn‘t happen?
A The verbal abuse was going on, but the physical abuse was not.
Q And the [PSI] report says that, and again the person who prepared the report didn‘t have the opportunity to talk to you, but said [Roger B.] threatened to kill you, and that if he goes to jail you‘re going to jail?
A That‘s not true.
Q That‘s not true. Okay. And it also says he is accused of strangling you to the point where you could not breathe?
A That‘s not true.
Q Do you know where somebody would come up with this kind of information if it‘s not true?
A I said it to get him away from me, so I lied about it.
Q So you lied to the authorities about what your father did?
A Yes.
¶ 66. In the book On Trial, America‘s Courts and Their Treatment of Sexually Abused Children (2d ed. 1991), Billie Wright Dziech & Judge Charles B. Schudson explain that:
Most [child victims of sexual abuse] disclose the incidents slowly and reluctantly over a period of weeks, months, or even years. Some live all of their lives without admitting to anyone what happened to them. Of former victims responding to the [Los Angeles] Times poll, 42 percent replied they told someone within a year, 21 percent said they waited more than a year, and 36 percent reported that they had told no one until asked by the interviewer. This response is indicative of the process that psychiatrist Roland Summit, after thousands of first-hand observations and consultations with professionals dealing with victims, described as the “child sexual abuse accommodation syndrome.”
Summit noted that sexually abused children generally reveal five characteristics in coping with their dilemmas: secrecy, helplessness, accommodation (seeing oneself as responsible for the victimization), delayed disclosure, and retraction or recantation. Al-
though he originally defined these patterns in terms of incest, increased experience with and understanding of child sexual abuse has led professionals to recognize that the syndrome appears in victims of extrafamilial abuse as well.
Dziech & Schudson, supra at 3-4.
¶ 67. Applying this analysis, a court could find that Kelli B. demonstrated classic symptoms of child sexual abuse, even as an adult, in failing to report incestuous molestation. However, because Kelli gave birth to three incestuous children over a period of several years, her case necessarily represents either extreme victimization or actual consent.9
¶ 68. In drafting the provision on “incestuous parenthood,” the legislature must have considered the parenthood of a father who was the perpetrator of
III. POLICY CONCERNS ABOUT INCESTUOUS PARENTHOOD
¶ 69. The majority appears to have no difficulty with the proposition that incestuous parenthood may be used as a ground to terminate the parental rights of a father who is the perpetrator “of long-term and continuous incest” with his daughter. If the daughter did not consent to incest, the father would be culpable of sexual assault as well as incest and should not be rewarded for his criminality by maintaining his rights to nonmarital offspring. This would be true even if the father had a substantial relationship with his child.
¶ 70. A more difficult question is posed when the state seeks to terminate the parental rights of a daughter who gives consent to sexual intercourse with her father. In this situation, the daughter would argue that she has a fundamental liberty interest in parenting her biological child and that she has a relationship with the child. The state could argue that the daughter is a lawbreaker, that she should not be rewarded for her lawbreaking, and that termination is required as a deterrent to similar lawbreaking. The daughter‘s argument would indirectly implicate the validity and constitutionality of the felony incest statute.
¶ 72. Therapist E. Sue Blume writes that:
Incest is possibly the most crippling experience that a child can endure. It is a violation of body, boundaries, and trust. Unless identified and dealt with, the emotional and behavioral aftereffects can stay with the victim. The very defenses that initially protect the incest survivor later lock these problems into place, interfering with adult functioning and preventing healing or change.
E. Sue Blume, Secret Survivors, Uncovering Incest and Its Aftereffects in Women xiv (1990).
¶ 73. William Masters and Virginia Johnson report that “[m]ost researchers and clinicians agree that incest is an intensely damaging psychological experience. It can lead to drug abuse, prostitution, suicide attempts, and a host of other problems.” William H. Masters, Virginia E. Johnson, & Robert C. Kolodny, Masters and Johnson on Sex and Human Loving 426 (1988). They continue:
[T]he most striking, but not surprising, finding in incest victims is the long-term persistence of a variety of sexual problems.... In many cases, the woman has been unable to form close, intimate, trusting relationships with men because she expects betrayal, rejection, or punishment.
...
[I]t seems likely that an incestuous relationship between an adult and a child will create major conflicts for the child, even if these are eventually overcome.
Masters, et al., supra, at 427.
- Eating disorders, drug or alcohol abuse (or total abstinence); other addictions; compulsive behaviors
- Self-destructiveness; skin carving, self-abuse
- Phobias
- Suicidal thoughts, attempts, obsession (including “passive suicide“)
- Depression (sometimes paralyzing); seemingly baseless crying
- Anger issues; inability to recognize, own, or express anger; fear of actual or imagined rage; constant anger; intense hostility toward entire gender or ethnic group of the perpetrator
- Trust issues; inability to trust (trust is not safe); total trust; trusting indiscriminately
- High risk taking (“daring the fates“)...
- Guilt, shame; low self-esteem, feeling worthless; high appreciation of small favors by others
- Abandonment issues
- Feeling crazy; feeling different; feeling oneself to be unreal and everyone else to be real, or vice versa; creating fantasy worlds, relationships, or identities...
- Sexual issues:... “promiscuous” sex with strangers... sexual acting out to meet anger or revenge needs...
- Stealing (adults)...
- Multiple personality
....
....
....
....
....
....
Blume, supra, at xviii-xxi. When the most serious indicia of post-incest syndrome appear, the victim of incest is in a psychologically precarious position to effectively parent children.
¶ 75. The incest victim may be vulnerable in other ways. She is precluded from ever marrying the other parent of her child. The parental rights and responsibilities of the other parent, including the support obligation, are normally terminated in order to separate the two parents and discourage contact be-
¶ 76. When an unwed teenager becomes pregnant, she often turns to her parents for this sort of support. But a young woman who is the victim of incest by her father may not be able to turn to other family members. Her mother may not be present or there may be tension between mother and daughter.11
¶ 78. If the mother did not know of the incest, the victim-daughter may still believe that the mother knew and should have intervened.12 Conversely, if the mother did not know, she may resent the daughter‘s relation-
Masters & Johnson comment further:
Wives of husbands who commit incest were often themselves the victims of sexual abuse as children and tend to be dependent, disenchanted women who withdraw from the family either through depression or outside diversions. The mother may actually force the daughter into assuming her role, relieved at having the daughter as a “buffer” between her and her husband and sometimes pleased to have to deal with her husband‘s sexual advances no longer.
William H. Masters, Virginia E. Johnson, & Robert C. Kolodny, Masters and Johnson on Sex and Human Loving 424 (1988).
¶ 79. A mother must provide for the emotional, physical, and developmental needs of her children. Adequate finances are integral to this responsibility. However, financial support for the victim of incest is often uncertain. Inadequate finances are only one reason why an incestuous mother may distance her children.14 These children are the product of criminal acts
Psychiatric work amongst young people offers constant proof of the fact that, among the direct physiological effects of sexual crime on very young girls, pregnancy is the most serious in human and social terms. The damage is less physical—young mothers have no higher rate of birth complications than adults—than psychological as a result of the grave nature of the offence and the discriminatory reactions of people around her which often heighten this.
Herbert Maisch, Incest 210 (1972).
¶ 80. In these circumstances, the state may be required to step in to provide the dysfunctional single parent with financial assistance, medical assistance, and social services. The children born of the victim-mother‘s incest may become locked in a long holding pattern of foster care, awaiting the potential but uncertain rehabilitation of their mother. They cannot be adopted until their mother‘s parental rights have been terminated.
¶ 81. To sum up, incestuous parenthood is a legitimate ground for termination of parental rights in situations where an incestuous parent shows serious deficiencies in the ability to raise her children as a result of her victimization from incest. The parent‘s status as a victim should not be permitted to excuse the failure to perform as a responsible parent, sacrificing
IV. STRICT SCRUTINY
¶ 82. The majority concludes that Kelli B. has a fundamental liberty interest in parenting her children. Majority op., ¶¶ 23-24. As a general proposition, biological parents do have this fundamental liberty interest. A parent‘s desire for and right to the companionship, care, custody, and management of the parent‘s child is an important interest that warrants deference and, absent a powerful countervailing interest, protection. Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶ 22, 255 Wis. 2d 170, 648 N.W.2d 402. “This fundamental liberty interest of parents ‘does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.‘” Id. (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
¶ 83. United States Supreme Court decisions and our own cases suggest that the following classes of parents have a fundamental liberty interest: the bio
¶ 84. The possession of a fundamental liberty interest in parenting a child does not mean that a parent‘s rights may not be terminated. It means that the state‘s action in the termination is subject to strict scrutiny. “[W]hen the state moves to terminate parental rights, ‘it must provide the parents with fundamentally fair procedures,‘” Id. (quoting Santosky, 455 U.S. at 754), and must assert an interest in termination that is more compelling than the interest of the parent.
¶ 85. Most often a party whose fundamental liberty interest is at stake attacks the statute that authorizes government action, arguing that the statute is not narrowly tailored to advance a compelling state interest. A facial challenge to the statute attempts to invalidate the statute so that it may not be applied to anyone. An “as applied” challenge to the statute seeks to preclude application of the statute in particular circumstances.
¶ 86. In this case, the majority has not ruled that “incestuous parenthood” is a wholly improper ground upon which to base the termination of a parent‘s rights. In fact, the majority recognizes “a correlation between perpetrators of incest and unfit parents.” Majority op., ¶ 26. In addition, the majority has not overruled State v. Allen M., 214 Wis. 2d 302, 571 N.W.2d 872 (Ct. App. 1997), a case in which the court of appeals upheld
¶ 87. The majority does not demand that the statute be rewritten. Rather, it appears to find that Kelli B. was a “victim” of incest in each of her three pregnancies and concludes that because she was a “victim,” Monroe County could not constitutionally apply the incestuous parenthood ground to her.
¶ 88. This appellate conclusion raises questions. The majority goes through the ritual of saying: “We begin with the presumption that the statute is constitutional and resolve any doubt in upholding its constitutionality.” Majority op., ¶ 16 (emphasis added). By invalidating the statute, as applied, however, the majority indicates either that there is no doubt about Kelli‘s non-consent to incest or that her non-consent does not matter, and that, in any event, the state has no compelling interest grounded in incestuous parenthood to terminate her parental rights.
¶ 89. First, we must ask how the majority can say there is no doubt about Kelli‘s non-consent. Kelli B. was an adult in two of her three pregnancies, she was legally capable of giving consent to sexual intercourse in all three of her pregnancies, and she testified under oath that she “wanted it just like [her father] did.” Admittedly, she recanted this testimony months later in the termination proceeding when she had a motive to do so. But Kelli‘s state of mind could be a disputed fact. The issue here is not whether Kelli actually gave consent to incest. The issue is how the possibility of her consent was ruled out. In short, how did Kelli meet her burden
¶ 90. An adult biological mother‘s non-consent to incest is a question of fact. When she puts the constitutionality of the statute at stake, the adult mother has the burden of proving this pivotal fact beyond a reasonable doubt. Is this element established at the fact-finding trial or at the dispositional hearing? I believe it should be established at the fact-finding trial.
¶ 91. The truth is that Kelli‘s non-consent was not proved at the fact-finding trial. The evidence tending to establish that Kelli was a victim who did not fully consent to incest came in at the dispositional hearing, at the same time the County presented evidence about the consequences of the incest to Kelli and to her children.
¶ 92. The critical evidence in the Allen M. case also came in at the dispositional stage, 214 Wis. 2d at 308, and this appears to be the direction provided in Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856. The majority ought to provide clear guidance on how a person is to satisfy the burden of showing that a statute is unconstitutional “as applied.”
¶ 93. Second, assuming that non-consent to incest is a pivotal element in a termination proceeding, that it is a question of fact, and, for the sake of argument, that the circuit court found that Kelli did not consent to incest, why has this court excluded the circuit court‘s findings of fact related to the consequences of Kelli‘s incest victimization? In this “as applied” challenge, why isn‘t the court bound to consider all the facts? The record in this case is overflowing with evidence that
¶ 94. Some of the facts are as follows:
¶ 95. Kelli B.‘s third child was born in mid-February 2001. Her father was charged with incest on June 12, 2001, and convicted August 29, 2001. When Roger B. was incarcerated in June 2001, he left Kelli largely on her own.
¶ 96. The Monroe County Department of Human Services became involved with Kelli and her three children on August 20, 2001, upon receiving a referral that the children were living in an unclean environment and Kelli needed assistance in providing for their care. Several weeks later, on September 9, the Department was advised by law enforcement that Kelli had been arrested and that no one was available to care for her children. When they entered Kelli‘s residence, County social workers discovered that conditions had deteriorated. They were overwhelmed by a foul smell in the residence. They found “an extremely filthy, dirty, unsanitary and unsafe living condition in the residence,” including puddles of urine on the floor, smeared feces on the wall, garbage throughout the residence, overturned furniture, old spoiled stale food, and a multitude of flies. The social workers were unable to locate more than one clean diaper. The other diapers were completely filthy and soiled. The baby was laying in a urine-soaked baby seat or car seat. Food was matted in his hair. The social workers could find no clean clothing for the three children. They also noticed that the two older children were non-verbal and appeared to have communication difficulties. Because all three children were having respiratory problems, the
¶ 97. The children were taken into temporary custody because they needed protection or services. The court held a follow-up dispositional hearing on November 19. The court ordered the continuation of services as well as additional services for Kelli to assist her in reunification with her children. The court established multiple conditions in its dispositional order that were designed to help Kelli get back on her feet and resume the custody and parenting of her boys.
¶ 98. Ann Garrity, a social worker with the Monroe County Department of Human Services, was Kelli‘s case manager beginning in December 2001. Ten months later, she prepared a 21-page Court Report and was Monroe County‘s only witness at the October 9, 2002, dispositional hearing. In her report and in her testimony, Garrity recounted in meticulous detail how Kelli had failed to satisfy the conditions in the November 19, 2001, court order, thus demonstrating her unfitness as a parent.
¶ 99. The picture that emerges from this evidence is of an immature young woman with all the earmarks of post-incest syndrome. Kelli failed to complete required psychological evaluation, failed to show up for appointments, switched doctors, then failed to consistently meet with the new doctors. Kelli had depression problems and post-traumatic stress disorder. She herself testified that she had a nervous breakdown.
¶ 100. Kelli acknowledged having three different “significant others,” all women, during the period of the court order. She moved to northern Wisconsin against the advice of her social worker to live with one of these women. This made it very difficult for Kelli to visit her children on a regular basis, and she missed many
¶ 101. Another reason for missed visitations and appointments was that Kelli spent 22 days in jail in February and March 2002, and was jailed again in August and September.
¶ 102. During the court order, Kelli was unable to settle on consistent living arrangements or employment. She provided no verification of income. She did not demonstrate any stability or ability to manage money effectively as she had little or no money to manage. She was not helped in this by the fact that she left high school before graduation.
¶ 103. Kelli reported that her family turned their backs on her once her father was sent to prison. She felt she was blamed by family members for tearing the family apart. She told her social worker that both her mother and her brother knew about the incest. At the dispositional hearing she was critical of both of them. “Obviously,” Garrity wrote in her report, “given the significant dysfunction, Kelli does not have a strong support network in place with her extended family.”
¶ 104. Garrity described the cool relations between Kelli and her children during her sporadic visitations. She reported that a family support worker noted that early on, when Kelli was visiting her children with her second significant other, the woman “was doing the majority of parenting during the visitation.” Garrity wrote that “Kelli is unable to manage all three children effectively at the same time. She appears to focus all of her energy on one of the children, usually... the youngest of the three.” In her last visit
¶ 105. In concluding her written report, Garrity wrote:
Although[] there is no doubt that Kelli herself has been significantly victimized throughout her life at the hands of her father, she chose to defend his actions and continued a sexual relationship with him in her adulthood. Kelli is in need of significant mental health treatment to address these issues within her own life and she has not demonstrated a readiness to do that, much to the further victimization of her children. Kelli fails to see the ongoing cycle of abuse within her family and therefore has demonstrated no ability to provide a safe and stable home environment for these children.
¶ 106. Circuit Judge Steven Luse Abbott adopted Ann Garrity‘s report and made his own observations. He said that Kelli had been a victim but so had her children:
[W]hen something happens to you, what you do about what happens to you counts more than what happened to you.
.... I have seen improvements... at least the way [Kelli] conducts herself. But how much time do we have to wait when we‘re also dealing with kids who are growing up... The time is now we have to move on this. There is no question that we cannot spread this out any longer than we have.
.... We have to look at what has happened, not what we think may happen in the future.... I think in time [Kelli] is going to mature, and she is going to develop and be a real good person, but we can‘t make these kids wait until that happens.
¶ 108. If a biological mother‘s non-consent to incest is a question of fact that must be established, it is inexplicable why evidence of that fact may be considered but evidence of the direct consequences of that fact upon the fitness of the victim as a parent are excluded.
¶ 109. Third, if the court were to take the position that a biological mother‘s consent to incest does not matter in a termination proceeding, it would open the door to incestuous relationships and undermine part of the basis for the felony incest and marriage limitation statutes.
¶ 110. There are, of course, theorists who contend that substantive due process sweepingly protects a person‘s freedom of choice in marriage, family, and procreation. For instance, Professor Carolyn S. Bratt writes that the Supreme Court “has found that the right to marry is a constitutionally protected right. That right is restricted... by state incest statutes which impede marriage between adults by making some choices of a marriage partner illegal.” Carolyn S. Bratt, Incest Statutes and the Fundamental Right of Marriage: Is Oedipus Free to Marry? 18 Fam.L.Q. 257 (1984).
Because incest statutes make certain adult choices of a marriage partner illegal, they are direct, substantial, and intentional state intrusions upon the individual‘s constitutionally protected right to marry. The Supreme Court‘s marriage cases mandate close scrutiny of such statutes in order to determine if they serve a substan
tial and important state interest and whether they are discriminately tailored to accomplish such a purpose.
Bratt, supra at 296.
¶ 111. If the state loses its ability to set orderly limits to marriage and sexual intercourse, it may be required to shift its focus to the consequences of these activities instead of the activities themselves. To illustrate, in the Allen M. case, the court terminated the parental rights of a woman who engaged in incest with her brother and produced a daughter. The court considered additional evidence that the mother substantially abandoned her daughter. In the future, such a case might have to be decided differently unless the state relied on grounds other than incestuous parenthood. The mother might be able to keep her child.16
¶ 112. Fourth, accepting the premise that Kelli B. was a “victim” and that she satisfied any test that could be devised for non-consent to incest, the State still had compelling reasons to terminate her parental rights on incestuous parenthood grounds because she evinced many disabling symptoms of post-incest syndrome. Kelli was psychologically damaged by her victimization. She had not recovered at the time the court made its decision and had a long way to go. When Monroe County authorities intervened to take custody of the children, Kelli was in a meltdown and the safety of her children was at risk. All three children were developmentally delayed and needed to participate in early childhood remedial programs.
Q Okay. And Kelli‘s intellectual capacity is not high functioning, is it?
A I would say not by my assessment. We don‘t have an IQ report as one was never completed.
Q But her education level is, in fact, her father Roger took her out of school at a very early age, didn‘t he?
A I believe high school, yes.
Q Now, when you first came into this... Kelli was quite dependent on Roger, wasn‘t she?
A Yes.
Q In fact, Roger pretty much did everything for her?
A Well, when we first came into the situation on this specific incident, Roger was already out of the house.
A Yes.
Q And... basically the family turned their back on her, didn‘t they?
A By her report, yes.
....
Q So to a great extent Kelli was, after Roger was taken away, she was left without much support?
A Correct....
Q And the boys were very young at the time?
A Yes.
Q Three children under the age of three?
A Right.
Q So she needed a lot of support?
A Yes.
Q And probably more support than someone older? She is young, she has been kept very isolated?
A Correct.
Q She has been kept dependent?
A Yes.
Q And rather dysfunctional at that point?
A Yes.
This dialogue reinforced Ann Garrity‘s direct testimony and written report.
¶ 114. Turning to the boys, the children of incest face special challenges, even in the absence of genetic problems. Corporation counsel Kerry Sullivan-Flock explained to the court that “the family issues here cannot be ignored. Any family placement option is going to have that issue to deal with. The parentage of these children, the incest that happened in this family. That is a huge, huge issue for any relative placement to have to tackle.” Guardian ad Litem Ellen M. Thorn added that the children had been “born into a house where they have a huge genetic question mark where we don‘t know what problems they will face medically.... They were also born into a house that was so environmentally dysfunctional that they had significant delays.... [The children] were noticeably unable to do the things that other children their age were... [W]e need to give these kids a better chance than their mother ever had.”
¶ 115. The legislature was entitled to find a link between incestuous parenthood and deficiencies in the ability to raise the children of incest. When these deficiencies are serious and clearly established by the evidence, the state has a compelling interest to move for termination on incestuous parenthood grounds.
¶ 116. It must be emphasized that under Wisconsin‘s statutory scheme, a finding of unfitness does not terminate parental rights. A finding of unfitness is separate from the subsequent judicial decision to
V. VICTIMS OF CRIME AMENDMENT
¶ 117. The majority‘s opinion invokes Article I, Section 9m of the
¶ 118. The majority opinion overlooks the fact that Kelli‘s three boys are also victims of crime. “The compelling interest underlying the [termination] statute is to protect children from unfit parents.” Majority op., ¶ 25.
VI. CONCLUSION
¶ 119. This is a sad case. But, objectively, there is only one reasonable result: the termination of the mother‘s parental rights. The court is conflicted about this outcome, but ultimately it is struggling over means, not ends. Monroe County authorities have acted with professionalism and compassion. Incestuous parenthood per se was not the basis of their petition for termination. See ¶ 69, supra. Chastising them and
¶ 120. The majority has permitted heartfelt sympathy for Kelli B. to displace orderly analysis. After studying the majority opinion, I do not know (1) how a person establishes that he or she is a “victim” of incest so that the state may not constitutionally apply “incestuous parenthood” as a grounds for unfitness; (2) when a person must establish that he or she is a “victim” of incest; and (3) what a compelling state interest is. In addition, I believe the majority has misused
¶ 121. I am authorized to state that Justice JON P. WILCOX joins this dissent.
Notes
The genetic concern about incestuous offspring is under attack. See, e.g., Carolyn S. Bratt, Incest Statutes and the Fundamental Right of Marriage: Is Oedipus Free to Marry? 18 Fam. L.Q. 257, 267-81 (1984). Professor Bratt contends that “[t]he primary misconception underlaying the asserted hereditary-biological function of incest statutes is the belief that consanguineous matings cause genetically defective offspring. A cursory examination of Mendelian, autosomal, dominant and recessive inheritance reveals that such a belief is simply inaccurate.” Bratt, supra, at 267-68.
After stating her premise, Professor Bratt writes:
Genetic research has identified many genetically linked disorders and has determined the probability of their occurrence. Research has also established that recessive autosomal traits are more severe in their manifestation than are dominant autosomal traits. On the average each human carries between one and five deleterious recessive genes. However, these deleterious genes usually do not result in offspring who exhibit the trait associated with the gene because there is only a very small likelihood of mating with a person who carries the same recessive gene at the same locus on the same chromosome in the same pair. The danger in consanguineous matings is not, as commonly believed, that such unions cause or increase the number of deleterious recessive genes in the offspring. Rather, such matings increase the probability that the spouses both carry an identical recessive gene which will be passed to the offspring in the double dose necessary for the expression of the trait associated with that recessive gene.
For example, if a particular individual is heterozygous for a recessive gene trait, there is a 0.5 probability that the individual‘s parent, child or sibling is also heterozygous for the trait. If the heterozygous individual has offspring by her or his parent, child, or sibling, the probability that the offspring will be homozygous for the recessive gene trait is 0.125. Assuming the mean number of harmful recessive gene traits carried per person is one and there is no history of deleterious gene traits in the pedigree, the risk of homozygosity, i.e., expression of the recessive gene trait, in the offspring of selected consanguineous matings is [0.1250 for 1 Lineals (parent, child) and 2 Collaterals (siblings)].
The probabilities of offspring who are homozygous for a deleterious recessive gene appear low, but they are higher than the 0.001 probability of homozygosity for a deleterious recessive gene in nonconsanguineous matings when there is no family history of such recessive gene traits. Some empirical data suggest that consanguineous matings lead to an increase in infant mortality, congenital birth defects and anthropometric changes.
Bratt, supra, at 271-73.
Professor Bratt‘s own calculations indicate that the probability that a single deleterious recessive gene will appear in the offspring of first degree lineals or second degree collaterals is 125 times greater than in a nonconsanguineous mating. The probability of genetic problems is bound to go up if consanguineous mates are carrying more than one deleterious recessive gene or if there is a history of deleterious gene traits in the family. It is the duty of legislators to decide whether these probabilities warrant statutory attention. See also Patricia A. Baird & Barbara McGillivray, Children of Incest, 101 Journal of Pediatrics 854-58 (Nov. 1982); Children born as a result of incest, 282 Brit. Med. J. 250 (Jan. 24, 1981); Alvin A. Rosenfeld, Incidence of a History of Incest Among 18 Female Psychiatric Patients, 136:6 Am. J. Psychiatry 791 (June 1979); Incest, Inbreeding, and Mental Abilities, Brit. Med. J. 4, 336-37 (Nov. 11, 1967); Morton S. Adams & James V. Neel, Children of Incest, 40 Pediatrics 55-62 (July 1967).
Patricia A. Harrington, The Disposition of Father-Daughter Incestuous Assault Cases: An Overview 21 New Eng. L. Rev. 399, 415 (1985–86).
The financial impact of removing the breadwinner from the family is obvious. In addition, “many of the fathers who commit incest at least occasionally provide some form of positive reinforcement to the child they are victimizing, such as gifts, monetary rewards, or special privileges.” Masters, et al., supra, at 425. The abusive father may also provide emotional support to the victim. Both forms of support are likely ended by the father‘s forced separation from his daughter.
In her book Treating Child Sex Offenders and Victims, Anna C. Salter observed that:
The literature on the subject of the mother‘s responsibility for father-daughter incest is quite sizable and can be divided according to the authors’ views of the nature of the mother‘s culpability. Authors differ as to whether the mother (1) actively encourages the incest to occur, (2) is indirectly responsible, (3) fails to set appropriate limits to prevent the incest, and/or (4) is aware of the incest but does not allow herself to acknowledge it.
Anna C. Salter, Treating Child Sex Offenders and Victims 35 (1988). After describing these theories, Salter concludes:
The most objectionable part of this literature is not that which implies some mothers actively collude with incest; some mothers clearly do. Of more concern is the implication that all mothers know... and the assumption that a lack of knowledge would not render them blameless in any case.
Salter, supra, at 40 (emphasis added).
In Adult Children of Abusive Parents, Steven Farmer quotes a case study in which a young woman tried to tell her mother of sexual abuse by her stepfather:
When I was about thirteen, I couldn‘t take it anymore—my stepdad always touching me, molesting me whenever my mom wasn‘t around. He had threatened that he would beat the living daylights out of me if I told her, so for three years I didn‘t say anything. But finally I figured that anything would be better than having to live with this kind of fear. So one day, I took a deep breath and told my mom—right in front of him—what had been going on. She slapped me—I couldn‘t believe it—she slapped me, and they both told me I was a liar.
Steven Farmer, Adult Children of Abusive Parents 19–20 (1989).
Six of the ten girls adopted an absolutely positive attitude, did not want to be parted from their baby in any way, and tried to cope with their maternal duties as best they could. All the same, one of these girls... made a serious attempt at suicide in a situation of social and emotional pressure, almost two years after the birth of her child. Two further juveniles gave up their children and had them put in a home and made available for adoption, and the very young mother, whose childish and artless pregnancy was mentioned above, did not want to see her baby at all.... Situations of emotional stress, often serious, also arose after the birth from the jealousy, envy and hatred of their own mother (especially in the cases of love relationships with the stepfather), and the negative reactions and actions of the male partner as well as discrimination from people around her.
Maisch, supra, at 213.