Tamara M. Loertscher, Plaintiff-Appellee,
Eloise Anderson, et al., Defendants-Appellants.
October 26, 2017
from the United States District Court for the Western
District of Wisconsin. No. 3:14-cv-00870-jdp James D.
Peterson, Chief Judge.
Flaum, Ripple, and Manion, Circuit Judges.
RIPPLE, CIRCUIT JUDGE.
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.
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.
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
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.
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
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
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. 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." 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).
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,  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).
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),
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. 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.
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. 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
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.Clarkson asked Ms. Loertscher to
agree to an inpatient drug treatment facility, but Ms.
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
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
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." She stated that, for those children,
"there is a suggestion of cognitive problems later
on." 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. 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.
state court found probable cause that the statutory standards
had been met. The court ordered Ms. Loertscher to
report to an alcohol and drug abuse treatment center for an
assessment and possible treatment.
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. 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.
Loertscher gave birth to a healthy boy on January 23, 2015.
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.