State ex rel. Angela M.W. v. Kruzicki

Decision Date22 April 1997
Docket NumberNo. 95-2480-W,95-2480-W
Citation209 Wis.2d 112,561 N.W.2d 729
PartiesSTATE of Wisconsin ex rel. ANGELA M.W., Petitioner-Petitioner, v. William KRUZICKI, Sheriff of Waukesha County, Rexford W. Titus, III, President, Waukesha Memorial Hospital, Fred Syrjanen, Director, Lawrence Center & Director of Chemical Dependency at Waukesha Memorial Hospital, Circuit Court for Waukesha County, The Honorable Kathryn W. Foster, Waukesha County Corporation Counsel, Thomas Farley and Assistant Corporation Counsel William Domina, Respondents-Respondents. d
CourtWisconsin Supreme Court

For the petitioner-petitioner there were briefs by Robin Shellow, Angela Conrad Kachelski and Law Offices of Robin Shellow, Peter Koneazny and American Civil Liberties Union of Wisconsin Foundation, both of Milwaukee and Mary Wyckoff and American Civil Liberties Union, New York City and oral argument by Angela Conrad Kachelski and Sara Mandelbaum of the ACLU's Womens Rights Project.

For the respondents-respondents there was a brief by William J. Domina, Margaret M. Zimmer and Waukesha County Assistant Corporation Counsel, Waukesha and oral argument by William J. Domina and Jill C. Vento.

Guardian ad Litem brief was filed by Jill C. Vento and Brenner, Brenner & Wall, Waukesha.

Amicus curiae was filed by Carol E. Stauder, John M. Stoiber, Thomas L. Potter, Assistant District Attorneys and E. Michael McCann, District Attorney, Milwaukee.

Amicus curiae was filed by Stephen W. Hayes, Timothy W. Feeley, Susan E. Lovern and Von Briesen, Purtell & Roper, S.C., Milwaukee for the National Association of Counsel for Children.

Amicus curiae was filed by Keith A. Fournier, Jeffrey A. Brauch and The American Center for Law & Justice, Virginia Beach, VA and Thomas Patrick Monaghan and New Hope Life Center /The American Center for Law & Justice, New Hope, KY, for the New Hope Life Center and The American Center for Law & Justice.

Amicus curiae was filed by Michael H. Schaalman and Quarles & Brady, Milwaukee, Carol Tracy, Susan Frietsche and Women's Law Project, Philadelphia, PA, Lynn Paltrow, Nancy Stearns and Center for Reproductive Law & Policy, New York, NY, Nadine Taub and Women's Rights Litigation Clinic, Newark, NJ, for the American Public Health Association, The Drug Policy Foundation, The National Black Women's Health Project, The National Center for Youth Law, The National Latina Health Project, The National Women's Health Network, The Northwest Women's Law Center, The NOW Legal Defense and Education Fund, Planned Parenthood of Wisconsin, Inc., The Wisconsin Council on Children and Families and The Wisconsin Women's Network.


The petitioner, Angela M.W., seeks review of a court of appeals' decision 1 denying her request for either a writ of habeas corpus or a supervisory writ to prohibit the Waukesha County Circuit Court, Kathryn W. Foster, Judge, from continuing to exercise jurisdiction in a CHIPS (child alleged to be in need of protection or services) proceeding. She maintains that the CHIPS statute does not confer jurisdiction over her or her viable fetus. In the alternative, if the CHIPS statute does confer such jurisdiction, the petitioner contends that as applied to her, it violates her equal protection and due process rights. Because we determine that the legislature did not intend to include a fetus within the Children's Code definition of "child," we reverse the decision of the court of appeals.

¶2 Although we visit in the facts of this case the daunting social problem of drug use during pregnancy, the essence of this case is one of statutory construction. The relevant facts are undisputed.

¶3 The petitioner was an adult carrying a viable fetus with a projected delivery date of October 4, 1995. Based upon observations made while providing the petitioner with prenatal care, her obstetrician suspected that she was using cocaine or other drugs. Blood tests performed on May 31, June 26, and July 21, 1995, confirmed the obstetrician's suspicion that the petitioner was using cocaine or other drugs.

¶4 On July 21, 1995, the obstetrician confronted the petitioner about her drug use and its effect on her viable fetus. The petitioner expressed remorse, but declined the obstetrician's advice to seek treatment. On August 15, 1995, a blood test again confirmed that the petitioner was ingesting cocaine or other drugs. Afterward, the petitioner canceled a scheduled August 28, 1995, appointment, and rescheduled the appointment for September 1, 1995. When she failed to keep the September 1 appointment, her obstetrician reported his concerns to Waukesha County authorities.

¶5 On September 5, 1995, the Waukesha County Department of Health and Human Services (the County) filed a "MOTION TO TAKE AN UNBORN CHILD INTO CUSTODY," pursuant to Wis.Stat. § 48.19(1)(c) (1993-94). 2 The caption read "In the Matter of: JOHN OR JANE DOE, A 36 Week Old Unborn Child." In its motion, the County requested an order "removing the above-named unborn child from his or her present custody, and placing the unborn child" in protective custody. The motion was supported by the affidavit of the petitioner's obstetrician, which set out the obstetrician's observations and medical opinion that "without intervention forcing [the petitioner] to cease her drug use," her fetus would suffer serious physical harm.

¶6 In an order filed on September 6, 1995, the juvenile court directed that:

the [petitioner's] unborn child ... be detained under Section 48.207(1)(g), Wis.Stats., by the Waukesha County Sheriff's Department and transported to Waukesha Memorial Hospital for inpatient treatment and protection. Such detention will by necessity result in the detention of the unborn child's mother....

¶7 Later that same day, before the protective custody order was executed, the petitioner presented herself voluntarily at an inpatient drug treatment facility. As a result, the juvenile court amended its order to provide that detention would be at the inpatient facility. The court further ordered that if the petitioner attempted to leave the inpatient facility or did not participate in the facility's drug treatment program, then both she and the fetus were to be detained and transported to Waukesha Memorial Hospital.

¶8 Also on September 6, 1995, the County filed a CHIPS petition in the juvenile court, alleging that the petitioner's viable fetus was in need of protection or services because the petitioner "neglect[ed], refuse[d] or [was] unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child, pursuant to Section 48.13(10) of the Wisconsin Statutes." 3 The County alleged that the petitioner's 36-week-old viable fetus had been exposed to drugs prenatally through the mother's drug use. Instead of a birth date, the petition stated "Due Date 10/4/95." In the space designated for indicating the sex of the subject child, the petition stated "Unknown."

¶9 On September 7 and 8, 1995, the juvenile court held detention hearings pursuant to § 48.21(1). 4 At the first hearing, the petitioner appeared by telephone, but without counsel. At the second hearing, now represented by counsel, she appeared again by telephone, and objected to the juvenile court's exercise of jurisdiction. The juvenile court rejected her jurisdictional challenge, and scheduled a plea hearing on the CHIPS petition for September 13, 1995.

¶10 On September 13, 1995, the petitioner commenced an original action in the court of appeals, seeking a writ of habeas corpus, or, in the alternative, a supervisory writ staying all proceedings in the juvenile court and dismissing the CHIPS petition. In support of her request, the petitioner asserted that Chapter 48 does not vest the juvenile court with jurisdiction over her or her viable fetus. Alternatively, if the statute does grant such authority, the petitioner argued that it violates the constitutional guarantees of procedural and substantive due process, as well as equal protection of the laws.

¶11 The court of appeals declined to stay the juvenile court proceedings, and issued an order on September 21, 1995, denying both writ petitions. The petitioner gave birth to a baby boy on September 28, 1995. Subsequently, the court of appeals issued an opinion supplementing its earlier order.

¶12 A divided court of appeals determined that the juvenile court did not exceed its jurisdiction in this case. State ex rel. Angela M.W. v. Kruzicki, 197 Wis.2d 532, 541 N.W.2d 482 (Ct.App.1995). 5 The court reasoned that the United States Supreme Court, the Wisconsin legislature, and this court have each articulated public policy considerations supporting the conclusion that a viable fetus is a "person" within the meaning of the CHIPS statute's definition of "child." The court also held that application of the CHIPS statute to the petitioner did not deprive her of equal protection or due process, since the statute was a properly tailored means of vindicating the State's compelling interest in the health, safety, and welfare of a viable fetus. The petitioner then sought review in this court, raising substantially the same arguments she raised before the court of appeals. 6 ¶13 We stress at the outset of our analysis that this case is not about the propriety or morality of the petitioner's conduct. It is also not about her constitutional right to reproductive choice guaranteed underRoe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Rather, this case is one of statutory construction. The issue presented is whether a viable fetus is included in the definition of "child" provided in Wis.Stat. § 48.02(2).

¶14 The interpretation of a statute presents a question of law which this court reviews under a de novo standard. Stockbridge School Dist. v. DPI, 202 Wis.2d 214, 219, 550 N.W.2d 96 (1996). Our primary...

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