Loertscher v. Anderson

893 F.3d 386
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 18, 2018
DocketNo. 17-1936
StatusPublished
Cited by15 cases

This text of 893 F.3d 386 (Loertscher v. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loertscher v. Anderson, 893 F.3d 386 (7th Cir. 2018).

Opinion

Ripple, Circuit Judge.

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 *388the 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 return. 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.

I

BACKGROUND

A.

1.

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 , 209 Wis.2d 112, 561 N.W.2d 729, 740 (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 substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical *389health 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 resolved 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.

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Bluebook (online)
893 F.3d 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loertscher-v-anderson-ca7-2018.