Monroe County Department of Human Services v. Kelli B.

2004 WI 48, 678 N.W.2d 831, 271 Wis. 2d 51, 2004 Wisc. LEXIS 248

• Court: Wisconsin Supreme Court
• Decided: April 28, 2004
• Docket: 03-0060 through 03-0062
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. 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

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¶ 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 disposi-tional 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.

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¶ 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 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.

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¶ 18. We begin our analysis with an examination of the statute at issue. Wisconsin Stat. § 48.415(7) provides for the termination of parental rights based on the ground of incestuous parenthood:

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 Fourteenth Amendment of the Constitution.⁷ In essence, it protects against governmental actions that are arbitrary and wrong "regardless of the fairness of the procedures used to implement them." Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 480, 565 N.W.2d 521 (1997) (citations omitted). Substantive due process has been traditionally afforded to fundamental liberty interests, such as marriage, family, procreation, and bodily integrity. Id. at 480-81, n. 10. Its analysis balances the state's compelling interests with its chosen method of protecting those interests.

¶ 20. The threshold inquiry we address is whether Kelli has a fundamental liberty interest in parenting her children. The County contends that she does not.⁸ It cites Allen M. for the proposition that "no court has ever recognized incestuous parenthood or the act of incest as a fundamental right." 214 Wis. 2d 302, 314, n. 12. Furthermore, it argues that Kelli did not have a substantial relationship with her children, despite the fact that she had custody and lived with them until September 9, 2001, when they were three years old, two years old, and nearly seven months old respectively.

¶ 21. In Allen M., the court of appeals addressed a constitutional challenge to Wis. Stat. § 48.415(7) in a different factual setting. There, two biological siblings, engaged in a consensual and continuing incestuous relationship, maintained that the termination of their parental rights violated due process and equal protection. Id. at 306. Although the court ultimately reviewed the statute under strict scrutiny, it stated in a footnote that it was "intrigued" by the State and guardian ad litem's assertion that rational basis review was appropriate because the siblings did not have a fundamental right to raise a child born of an incestuous relationship. Id. at 314, n. 12.

¶ 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.

¶ 23. Rather, the question is whether a parent who has a substantial relationship with his or her child has a fundamental liberty interest in parenting the child. Our case law recognizes this fundamental liberty interest. See Parental Rights to SueAnn A.M., 176 Wis. 2d 673, 686, 500 N.W.2d 649 (1993); In Interest of Baby Girl K., 113 Wis. 2d 429, 446-47, 335 N.W.2d 846 (1983).

¶ 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 Wis. Stat. § 48.415. The compelling interest underlying the statute is to protect children from unfit parents. See Wis. Stat. § 48.01.

¶ 26. As applied to Kelli, we conclude that the incestuous parenthood ground as set forth in Wis. Stat. § 48.415(7) is not narrowly tailored to advance the compelling state interest underlying the statute. The reason it is not narrowly tailored is that it renders people like Kelli per se unfit solely by virtue of their status as victims. While we recognize a correlation between perpetrators of incest and unfit parents, we fail to see how being victimized by one's parent or relative necessarily warrants the same conclusion. The fact of incestuous parenthood does not, in itself, demonstrate that victims like Kelli are unfit parents.

¶ 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.

¶ 29. In its first argument, the County contends that the application of Wis. Stat. § 48.415(7) to Kelli serves to deter "future incestuous conduct resulting in birth between fathers and daughters." It asserts:

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 resen-tencing 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 story. There is no question about it. And she has been a victim, and she has been damaged . . . ."⁹

¶ 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 á 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 provisions, we are not persuaded that failing to apply the statute to victims like Kelli is tantamount to a "de facto acceptance of incestuous parenthood."

¶ 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.

214 Wis. 2d at 320.

¶ 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 evidence that Kelli intended to subject her children to such an environment. Indeed, by reporting her father to the proper authorities, Kelli demonstrated an intent to end the incestuous relationship. As a result we determine that the statute, as applied to Kelli, does not meet the standard of strict scrutiny.

¶ 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. Wisconsin Stat. § 48.415(7), applied to a victim like Kelli, is not narrowly tailored to protect children from unfit parents, does not promote deterrence, and does not protect children from the psychological harm of being raised in an incestuous family.

¶ 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, Wis. Stat. § 48.415(2). However, the County dismissed that ground because it thought it more expedient to pursue only the incestuous parenthood ground.¹²

¶ 38. There can be little doubt that the County's objective was to do what was best for Kelli's children. But in taking the route thought to be the easiest, the County attempted to demonstrate Kelli's unfitness as a parent solely on her status — a victim of incest when her children were conceived. Accordingly, we agree with Kelli that the County's actions have implicated her constitutional right to substantive due process.

¶ 39. In its defense, the County maintains that the circuit court's discretion at the disposition stage to dismiss pursuant to Wis. Stat. § 48.427(2)¹³ is sufficient to satisfy Kelli's right to substantive due process. The circuit court cited this discretion as part of its rationale in denying Kelli's motion to dismiss. It explained that it had authority 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.

¶ 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. Therefore, it is irrelevant to inquire into the adequacy of the termination procedure, or, more specifically, whether the procedure applicable at the dispositional phase satisfies Kelli's constitutional rights.

¶ 41. In addition to constitutional considerations, Kelli's position is also supported by strong public policy favoring the protection of crime victims. Article I, § 9m of the Wisconsin Constitution provides, "[t]his state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy." Furthermore, the Wisconsin legislature enacted Wis. Stat. ch. 950 to ensure that victims have access to, and involvement with, the criminal justice system. See Wis. Stat. § 950.01. Taken together, these provisions send a strong message concerning the state's interest in the treatment 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 victims, but it would also create a powerful disincentive for victims like Kelli to come forward in the first place.

¶ 43. In sum, we determine that Kelli has a fundamental liberty interest in parenting her children. Wisconsin Stat. § 48.415(7), as applied to Kelli, a victim of long-term and continuous incest perpetrated by her father, is not narrowly tailored to advance a compelling state interest. Therefore, like the court of appeals, we determine that the application of the statute to Kelli violated her right to substantive due process. Accordingly, we affirm the court of appeals.¹⁵

By the Court. — The decision of the court of appeals is affirmed.

¶ 44. PATIENCE D. ROGGENSACK, J., did not participate.

1 Monroe County Department of Human Services v. Kelli B., 2003 WI App 88, 263 Wis. 2d 413, 662 N.W.2d 360 (reversing a decision of the circuit court for Monroe County, Steven L. Abbott, Judge).

2 All statutory references are to the 2001-02 version of the Wisconsin Statutes unless otherwise noted.

3 During the pendency of this appeal, Kelli filed a motion to strike the County's brief or, in the alternative, for an extension of time to file her brief. The court granted the motion for an extension of time, but held in abeyance the motion to strike. Subsequently, Kelli filed a motion to withdraw her motion to strike. That motion was also held in abeyance pending our decision on the merits of the case. The court now grants Kelli's motion to withdraw her motion to strike the County's brief.

4 According to the court report, Kelli initially told the intake worker as well as the ongoing social worker that sexual abuse from her father began when she was approximately age 12. This is consistent with her testimony at the jury trial of her termination proceedings where she indicated that she was "under the age of twelve" when the sexual intercourse first started. At her father's sentencing hearing, however, Kelli recanted, maintaining that her incestuous relationship with her 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.

5 Kelli also contended that application of this ground violated her right to equal protection. Because she did not pursue this issue on appeal, however, we do not address it here.

6 Wisconsin Stat. § 48.424(4) provides in part, "If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. ..."

7 The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving "any person of life, liberty, or property, without due process of law[.]" See also Wis. Const, art. I, §§ 1 and 8.

8 In the court of appeals, the County apparently conceded that Kelli has a fundamental liberty interest in parenting her children. Kelli B., 263 Wis. 2d 413, ¶ 14. However, it now maintains that she does not. Although this issue has arguably been waived, we nevertheless address it here.

9 Despite these facts, the dissent questions Kelli's status as a victim and asserts that her non-consent should be established at trial by a jury. Dissent, ¶ 90. Because we determine as a matter of law that Kelli was a victim, we need not address how the issue of non-consent should be raised and decided in future cases.

10 Wisconsin Stat. § 944.06 states, "Whoever marries or has nonmarital sexual intercourse with a person he or she knows is a blood relative and such relative is in fact related in a degree within which the marriage of the parties is prohibited by the law of this state is guilty of a Class F felony."

11 Wisconsin Stat. § 948.06 states, "Whoever does any of the following is guilty of a Class C felony:

(1) Marries or has sexual intercourse or sexual contact with a child he or she knows is related, either by blood or adoption, and the child is related in a degree of kinship closer than 2nd cousin; or

(2) Is a person responsible for the child's welfare and:

(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."

12 Contrary to the dissent's assertion, we are not refusing "to recognize that the state has a compelling interest in terminating the parental rights of a parent who shows serious deficiencies in the ability to raise her children as a result of her victimization from incest." Dissent, ¶ 81, n. 15. In making such a statement, the dissent conflates the grounds for unfitness and reads something into Wis. Stat. § 48.415(7) that is not there.

Of course we recognize that the state has a compelling interest in terminating the rights of a parent who shows serious deficiencies in the ability to raise her children. A ground that would address those deficiencies, however, is not before us. Rather, the only ground before us is incestuous parenthood, which defines unfitness based on a status determination. Accordingly, all that the County had to prove was that Kelli and Roger were related by blood in a degree of kinship closer than second cousin.

13 Wisconsin Stat. § 48.427(2) states, "The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights."

14 See, Ala. Code § 26-18-7 (2003); Alaska Stat. § 25.23.180 (Michie 2002); Ariz. Rev. Stat. § 8-533 (2003); Ark. Code Ann. § 9-9-220 (Michie 2003); Cal. Welf. & Inst. Code § 366.26 (West 2003); Colo. Rev. Stat. § 19-3-604 (2003); Conn. Gen. Stat. § 45a-717 (2003); Del. Code Ann. tit. 13 § 1103 (2003); Fla. Stat. ch. § 39.806 (2002); Ga. Code Ann. § 15-11-94 (2003); Haw. Rev. Stat. § 571-61 (2003); Idaho Code § 16-2005 (Michie 2003); 705 Ill. Comp. Stat. 405/2-13 (2003); Ind. Code § 31-35-3-4 (2003); Iowa Code § 232.116 (2003); Kan. Stat. Ann. § 38-1583 (2002); Ky. Rev. Stat. Ann. § 625.090 (Michie 2003); La. Children's Code art. 1015 (West 2002); Me. Rev. Stat. Ann. tit. 22 § 4055 (West 2003); Md. Code Ann., Fam. Law § 5-313 (2003); Mass. Ann. Laws ch. 210, § 3(Law. Co-op 2003); Mich. Comp. Laws Ann. § 712A.19b (West 2003); Minn. Stat. § 260C.301 (2003); Miss. Code Ann. § 93-15-103 (2003); Mo. Rev. Stat. § 211.447 (2003); Mont. Code Ann. § 41-3-609 (2003); Neb. Rev. Stat. § 43-292 (2003); Nev. Rev. Stat. Ann. §§ 128.105 (Michie 2002); N.H. Rev Stat. Ann. § 170-C:5 (2002); N.J. Stat. Ann. § 9:2-19 (West 2003); N.M. Stat. Ann. § 32A-4-28 (Michie 2003); N.Y. Soc. Serv. Law § 384-b(4) (McKinney 2003); N.C. Gen. Stat. § 7B-1111 (2003); N.D. Cent. Code § 27-20-44 (2003); Ohio Rev. Code Ann. § 2151.414 (2003); Okla. Stat. tit. 10, § 7006-1.1 (2002); Or. Rev. Stat. § 419B.502 (2003); 23 Pa. Cons. Stat. § 2511 (2003); R.I. Gen. Laws § 15-7-7 (2002); S.C. Code Ann. § 20-7-763 (Law. Co-op. 2003); S.D. Codified Laws § 26-8A-26.1 (Michie 2003); Tenn. Code Ann. § 36-1-113 (2003); Tex. Fam. Code Ann. § 161.001 (Vernon 2003); Utah Code Ann. § 78-3a-407 (2003); Vt. Stat. Ann. tit. 15A, § 3-504 (2003); Va. Code Ann. § 16.1-283 (Michie 2003); Wash. Rev Code § 13.34.180 (2003); W Va. Code § 49-6-5b (2003); Wyo. Stat. Ann. § 14-2-309 (Michie 2002).

15 When a statute is held to be unconstitutional as applied to particular facts of a given case, it may be applied in other contexts. State v. Konrath, 218 Wis. 2d 290, 304, n. 13, 577 N.W.2d 601 (1998).