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Loertscher v. Anderson

United States Court of Appeals, Seventh Circuit

June 18, 2018

Tamara M. Loertscher, Plaintiff-Appellee,
Eloise Anderson, et al., Defendants-Appellants.

          Argued October 26, 2017

          Appeal from the United States District Court for the Western District of Wisconsin. No. 3:14-cv-00870-jdp James D. Peterson, Chief Judge.

          Before Flaum, Ripple, and Manion, Circuit Judges.


         Tamara M. Loertscher brought this action under 42 U.S.C. § 1983 challenging the constitutionality of 1997 Wisconsin Act 292 ("Act 292" or "the Act"), a legislative measure designed to address the effects of prenatal substance abuse. Act 292 brings unborn children and their mothers within the jurisdiction of the juvenile courts if the mothers exhibit a habitual lack of self-control with respect to alcohol or drugs that raises a substantial health risk for their unborn children. Ms. Loertscher was subjected to the provisions of the statute when, after seeking treatment at a county health facility, her caregivers determined that she was pregnant and that she had tested positive for methamphetamine, amphetamines, and tetrahydrocannabinol. Pursuant to the provisions of the Act, the state court ordered Ms. Loertscher to report to an alcohol and drug abuse treatment center for assessment and possible treatment. When she failed to comply with the order, the court found her in contempt and placed her in county detention. She eventually agreed to participate in the program.

         Ms. Loertscher later instituted this federal action against several state and county officials in which she challenged Act 292 on a variety of constitutional grounds. While her action was pending in district court, Ms. Loertscher moved out of Wisconsin. The defendants then filed a motion to dismiss the action on the grounds that the case now was moot; that motion was denied.

         On cross motions for summary judgment, the district court concluded that Act 292 was void for vagueness and, therefore, granted injunctive relief to Ms. Loertscher against the state defendants. The court determined, however, that the county defendants were not personally liable, and, therefore, Ms. Loertscher was not entitled to monetary damages. The state defendants appealed the district court's entry of injunctive relief; Ms. Loertscher did not cross appeal the entry of judgment for the county defendants on her damages claims.

         We conclude that Ms. Loertscher's case is moot. She has moved out of the State of Wisconsin and has no plans to re- turn. Consequently, it is not reasonably likely that she will again be subject to the Act's provisions. Accordingly, we vacate the district court's entry of judgment against the state defendants and remand with instructions to dismiss the action as moot.





         In 1997, the Wisconsin Supreme Court held, as a matter of statutory construction, that the definition of child in Wisconsin's Children's Code did not include unborn children. See Wisconsin ex rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729, 740 (Wis. 1997). In response, the Wisconsin Legislature enacted Act 292 "[t]o ensure that unborn children are protected against the harmful effects resulting from the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree." Wis.Stat. § 48.01(2)(bm). The law effectuates this purpose by bringing within the jurisdiction of the juvenile courts unborn children and their mothers when the mothers' consumption of alcohol or controlled substances places their unborn children at risk. Specifically, Wisconsin Statutes section 48.133 provides:

The court has exclusive original jurisdiction over an unborn child alleged to be in need of protection or services which can be ordered by the court whose expectant mother habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled sub- stance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control. The court also has exclusive original jurisdiction over the expectant mother of an unborn child described in this section.

         The process of bringing an unborn child and the mother within the jurisdiction of the court begins with a report by a person, usually a physician or relative, "who has reason to suspect that an unborn child has been abused or who has reason to believe that an unborn child is at substantial risk of abuse." Wis.Stat. § 48.981(2)(d). Wisconsin Statutes section 48.981 sets forth the process that follows the report, which has been implemented by the Wisconsin Department of Children and Families.[1] Specifically, a case worker must decide if there is reasonable suspicion to believe that the conditions of section 48.133 are met. If there is reasonable suspicion, then the report will be "screened in."[2] At that point, an assessment worker "shall initiate a diligent investigation to determine if the unborn child is in need of protection or services." Wis.Stat. § 48.981(3)(c)(1)(a).

         If the report appears accurate, the worker will "offer to provide appropriate services." Id. § 48.981(3)(c)(3). If the expectant mother refuses, the assessment worker must decide whether to pursue a formal petition for an unborn child in need of protective services ("UCHIPS"). Id. If the case proceeds and the mother is held temporarily, [3] a court intake worker reviews the case to decide if it should go forward. At this point, there are several ways that the case might be re- solved informally; these include the mother's submitting to counseling, alcohol or drug abuse assessment, or outpatient treatment. Wis.Stat. § 48.245(1), (2)(a).

         If the UCHIPS petition actually is filed, procedural protections come into play, including a plea hearing, a factfinding hearing before a judge or jury, and a final dispositional hearing. See Wis. Stat. §§ 48.30, 48.31. At this stage, the mother is entitled to counsel regardless of ability to pay. See Wis. Stat. §§ 48.27(4)(b)(2), 48.243(1)(e). If the court finds that the unborn child is in need of protection or service, it must order the least restrictive care and treatment plan sufficient to protect the well-being of the child. See Wis. Stat. §§ 48.347, 48.355(1). Among the options are counseling, treatment, supervision, placement at the home of an adult relative or friend, or, at most, inpatient alcohol or drug treatment. See Wis. Stat. § 48.347. Inpatient treatment can be ordered only if an assessment has been conducted by an approved treatment facility. See Wis. Stat. §§ 48.31(4), 48.547(4).


         In the summer of 2014, Ms. Loertscher went to Taylor County Human Services Department ("the County") to deter- mine if she was pregnant and to seek treatment for her hypothyroidism, which had gone untreated due to her inability to afford her medication. She was referred to the Eau Claire Mayo Clinic Hospital. There her caregivers confirmed her pregnancy, and she also tested positive for methamphetamine, amphetamines, and tetrahydrocannabinol.[4] Ms. Loertscher told the treating physician that she intended not to use drugs during her pregnancy so that she could have a healthy child. That evening, Ms. Loertscher was voluntarily admitted to the Mayo Clinic Behavioral Health Unit.

         The following morning, Ms. Loertscher received her thyroid medication. A psychiatrist spoke with her about her thyroid condition and also inquired about her past drug use. Ms. Loertscher stated that she had been self-medicating with marijuana and methamphetamine. Later that evening, Ms. Loertscher met with an obstetrician, Dr. Jennifer Bantz, and admitted to smoking methamphetamine daily, but stated that she had cut back to "two to three times a week" after dis- covering that she was pregnant.[5] Ms. Loertscher also reported that she had used marijuana throughout her pregnancy and had consumed alcohol "a few times, " but could not provide Dr. Bantz with "a specific amount."[6]

         Ms. Loertscher's condition and drug use was reported to a social worker at the hospital, Corey Everson, who then reported to the County that Ms. Loertscher's behavior was put- ting her baby in serious danger. Subsequently, a County access worker "screened in" the case. Later, an assessment worker, Julie Clarkson, requested Ms. Loertscher's medical records and also notified her that there was an open investigation. When Clarkson spoke to Ms. Loertscher, she denied recent drug use or any use of alcohol in the prior year. Clark- son informed Ms. Loertscher that the tests indicated drug use within the last few days; at that point, Ms. Loertscher told Clarkson that she did not want to work with the County.[7]Clarkson asked Ms. Loertscher to agree to an inpatient drug treatment facility, but Ms. Loertscher refused.[8]

         A formal UCHIPS petition was filed, and the County held Ms. Loertscher at the Mayo Clinic Hospital to allow for a temporary custody hearing the following day. The County also appointed a guardian ad litem for Ms. Loertscher's unborn child.

         On August 5, the guardian ad litem and county personnel attended a confidential hearing in juvenile court. Hospital staff arranged for Ms. Loertscher to participate in the hearing by phone; Ms. Loertscher stated, however, that she would not continue with the call in the absence of counsel and left the room.[9]

         At the hearing, Dr. Bantz testified regarding the consequences of Ms. Loertscher's drug use. She stated that mothers on methamphetamine "tend to be underweight, and [their] babies tend to be smaller at the gestational age."[10] She stated that, for those children, "there is a suggestion of cognitive problems later on."[11] Dr. Bantz also stated that Ms. Loertscher's continued use of methamphetamine could put her child at risk for cognitive problems and would "directly affect her ability to … make good decisions" related to nutrition and prenatal care.[12] Finally, she testified that she did not believe Ms. Loertscher would avail herself of voluntary treatment options because Ms. Loertscher had refused prior offers of treatment.[13]

         The state court found probable cause that the statutory standards had been met.[14] The court ordered Ms. Loertscher to report to an alcohol and drug abuse treatment center for an assessment and possible treatment.[15]

         Two weeks after the hearing, Ms. Loertscher still had not complied with the order. As a result, she was held in con- tempt and placed in county detention.[16] Ms. Loertscher eventually agreed to participate in a drug assessment and was re- leased. After the assessment, her treatment plan involved at- tending prenatal appointments and submitting to random drug tests one to three times per week.

         Ms. Loertscher gave birth to a healthy boy on January 23, 2015.


         On December 15, 2014, Ms. Loertscher filed this action against the Wisconsin Attorney General and the Secretary of the Department of Children and Families for the State of Wisconsin. She alleged that Act 292 violated her rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. ...

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