State ex rel. Angela M.W. v. Kruzicki, 95-2480-W

CourtCourt of Appeals of Wisconsin
Citation197 Wis.2d 532,541 N.W.2d 482
Docket NumberNo. 95-2480-W,95-2480-W
PartiesSTATE of Wisconsin ex rel. ANGELA M.W., Petitioner, d 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. . Oral Argument
Decision Date20 September 1995

On behalf of the petitioner, there were briefs by Robin Shellow and Angela Conrad of the Law Offices of Robin Shellow volunteer attorneys for the American Civil Liberties Union of Wisconsin Foundation, and Peter Koneasny legal director of the American Civil Liberties Union of Wisconsin Foundation. There was oral argument by Angela Conrad.

On behalf of the respondents, there were briefs by William J. Domina, assistant corporation counsel, and Margaret M. Zimmer, assistant corporation counsel. There was oral argument by William Domina.

There was a brief and oral argument by Guardian ad Litem, Jill C. Vento, of Brenner, Brenner & Wall, of Waukesha.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

NETTESHEIM, Judge.

Angela M.W., the mother of a viable fetus, filed an original action in this court seeking a writ of habeas corpus or, in the alternative, a supervisory writ barring the Waukesha County juvenile court from continuing to exercise jurisdiction in a pending child in need of protection or services (CHIPS) proceeding pursuant to § 48.13, STATS.

The threshold issue is whether Angela's viable fetus is a "child" within the meaning of the juvenile code, § 48.02(2), STATS. We conclude that a viable fetus is a child within the meaning of the statute. As such, we further conclude that the State has a legitimate and compelling interest under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), to provide CHIPS protection to the fetus. We therefore hold that the juvenile court has jurisdiction to adjudicate the pending CHIPS proceeding.

A further issue is whether an order for the protective custody of a viable fetus pursuant to § 48.19(1)(c), STATS., in a CHIPS proceeding is violative of the mother's constitutional due process and equal protection rights since such an order, by necessity, also requires the custody of the mother. We hold that such an order is constitutional. We therefore reject Angela's applications for a writ of habeas corpus or a supervisory writ. 1

FACTS

The facts and history of this case are undisputed. Angela is the adult mother of a viable fetus. Angela has chosen to carry her fetus to full term, and her projected delivery date was October 4, 1995. 2 During her pregnancy, Angela was treated by her obstetrician. Based upon his observations during this treatment, the obstetrician suspected that Angela was using cocaine or other drugs during her pregnancy. As a result, the obstetrician performed drug-screening tests on Angela. These tests confirmed the presence of cocaine or other drugs in Angela's blood on May 31, June 26, July 21 and August 15, 1995. The obstetrician counseled Angela to seek voluntary inpatient treatment. Angela declined.

After Angela failed to keep scheduled appointments with her obstetrician on August 28 and September 1, 1995, the obstetrician reported his concerns to the appropriate authorities pursuant to the mandatory reporting requirements of § 48.981(2), STATS. 3 Based on this report, the Waukesha County Department of Health and Human Services (the County) sought an order from the juvenile court, the Honorable Kathryn W. Foster, directing that Angela's viable fetus be taken into protective custody pursuant to § 48.19(1)(c), STATS. This statute authorizes the juvenile court to order that a child be taken into protective custody upon a satisfactory showing "that the welfare of the child demands that the child be immediately removed from his or her present custody." Id.

On September 5, 1995, the juvenile court granted the County's request and issued the protective custody order. The order reads, in relevant part:

Pursuant to a showing under Section 48.19(1)(c), Wis.Stats., which is satisfactory to this Court, the Circuit Court hereby directs that [the viable fetus], 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. 4 Such detention will by necessity result in the detention of the unborn child's mother, [Angela].

The next day, September 6, 1995, the County filed a CHIPS petition with the juvenile court. The petition alleged that the viable fetus was in need of protection or services because its "parent ... neglects, refuses or is 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." The petition incorporated an attached affidavit of Angela's treating obstetrician which recited his observations, opinions and concerns. The affidavit included the obstetrician's following statements:

10. As a licensed obstetrician, it is my opinion that [Angela's] active cocaine usage presents a real and immediate danger to the health[,] safety and continued viability of her unborn child.

11. It is my opinion that without intervention forcing [Angela] to cease her drug use that she will continue using cocaine and other drugs with the following likely effects on her unborn child: low weight gain, abruptio placentae, increased infectious diseases, hypertension and tachycardia, preterm labor and delivery, possible precipitous delivery, and increased risks for pregnancy loss, including spontaneous abortion and still birth, SIDS, congenital malformations, intraventricular hemorrhage and precipitous labor.

Before the protective custody order was executed, Angela presented herself for voluntary inpatient drug treatment at a treatment facility. As a result, the juvenile court Thereafter, on September 7 and 8, 1995, the juvenile court conducted a detention hearing pursuant to § 48.21(1), STATS. 6 At the first hearing, Angela appeared telephonically, but without counsel. At the second hearing, Angela again appeared telephonically, but with counsel. At this hearing, Angela's counsel objected to the jurisdiction of the juvenile court. The court rejected Angela's jurisdictional challenge, but indicated that it would continue to review the matter. The court also scheduled a plea hearing for September 13.

amended the order to provide that the viable fetus was to be held in protective custody at the treatment facility selected by Angela. 5 However, the amended order further provided that if Angela left the treatment facility, the fetus was to be held in protective custody at Waukesha Memorial Hospital.

Angela responded with this original action in the court of appeals, asking that we issue a writ of habeas corpus releasing her from the constraints of the protective custody order or, in the alternative, that we issue a supervisory writ barring the juvenile court from exercising jurisdiction in the pending CHIPS action. 7 The County and the fetus' guardian ad litem have responded to Angela's petition, and all of the parties have provided us with legal memoranda in support of their respective positions. In addition, this court heard oral arguments from the parties on September 20, 1995.

INTRODUCTION

We begin with some preliminary observations. This case presents important issues of first impression in Wisconsin. In addition to our consideration of the parties' briefs and the oral argument, this court has engaged in lengthy and intense internal discussions regarding the matter. The limited authority from other jurisdictions and from the various commentators reveals a divergence of opinion on the issues before us. That same difference of opinion exists within this court, as borne out by our colleague's dissenting opinion. Our differing opinions each find support in these conflicting authorities. Although we ultimately disagree with the position of our dissenting colleague, his contributions to our deliberations have been positive and thought provoking, as is his separate opinion.

Although the authority cited to us from other states and sources is informative, we do not find it necessary to dwell at length on those statements. Nor do we find it necessary to squarely address many of the positions asserted by the dissent which looks to certain of this authority for support. This is because our decision is based on the public policy which we discern from existing Wisconsin cases, from the Wisconsin juvenile code and from decisions of the United States Supreme Court.

Finally, we observe that our positions as judges do not insulate us from the highly personal and sometimes emotionally charged nature of the issues present in these kinds of cases. See L.K. v. B.B., 113 Wis.2d 429, 464, 335 N.W.2d 846, 863 (1983) (Abrahamson, J., dissenting). Nonetheless, our obligation is to decide this case on the basis of the applicable facts and law, free of the heightened rhetoric which often accompanies the public debate about these kinds of issues. Most importantly, we are ethically bound to follow the law, and we may not allow our personal concepts of justice to override that law. See SCR 60.01(1) (West 1995). This court, both majority and dissent, has striven to keep the discussion on this level.

STANDARDS AND BURDEN OF PROOF

Angela raises three issues. She claims: (1) the juvenile court does not have jurisdiction Angela seeks habeas corpus relief or, in the alternative, supervisory relief from this court. However, regardless of the relief she seeks, the...

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6 cases
  • State ex rel. Angela M.W. v. Kruzicki
    • United States
    • Wisconsin Supreme Court
    • 22 Abril 1997
    ...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 ea......
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    ...C. v. William C., 476 N.Y.S.2d 991, 124 Misc.2d 313. The Court of Appeals of the state of Wisconsin in State of Wisconsin ex. rel. Angela M.W. v. Kruzicki, 197 Wis.2d 532, 541 N.W.2d 482, (Rvs'd. Supreme Court of Wisconsin, No. 95-2480-W--other grounds-legislative acquiescence could not be ......
  • State ex rel. Hager v. Marten
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    ...courts have addressed questions of statutory construction on a writ of habeas corpus. See e.g., State ex rel. Angela M.W. v. Kruzicki, 197 Wis.2d 532, 545-47, 541 N.W.2d 482 (Ct.App.1995), rev'd by 209 Wis.2d 112, 121, 561 N.W.2d 729 (1997)(issue presented in habeas corpus petition was whet......
  • Lord v. Hubbell, Inc.
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    • 10 Abril 1997
    ...court lacked the legal power to decide the merits of other issues Hubbell placed before it. See State ex rel. Angela M.W. v. Kruzicki, 197 Wis.2d 532, 546, 541 N.W.2d 482, 487 (Ct.App.1995). Therefore, it is not appropriate for this court to decide whether the statute of limitations has run......
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1 books & journal articles
  • Prosecuting Pregnant Women: Should Washington Take the Next Step?
    • United States
    • Seattle University School of Law Seattle University Law Review No. 21-04, June 1998
    • Invalid date
    ...supra note 28, at 5-6; WIS. STAT. § 939.32 (1996). 45. State v. Black, 526 N.W.2d 132 (Wis. 1994); State ex rel. Angela M.W. v. Kruzicki, 541 N.W.2d 482 (Wis. Ct. App. 46. See Defendant's Brief, supra note 28, at 6. 47. Black, 526 N.W.2d at 132. 48. See id.; see WIS. STAT. § 940.04 (1996). ......

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