State Ex Rel. Angela M.W. v. Kruzicki

541 N.W.2d 482, 197 Wis. 2d 532, 1995 Wisc. App. LEXIS 1246

• Court: Court of Appeals of Wisconsin
• Decided: October 6, 1995
• Docket: 95-2480-W
• Status: Published

Opinions

NETTESHEIM, J.

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 (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(l)(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(l)(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(l)(c), Wis. Stats., which is satisfactory to this Court, the Circuit Court hereby directs that [the viable fetus], be detained under Section 48.207(l)(g), Wis. Stats., by the Waukesha County Sheriffs 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 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.

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.

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 over her viable fetus, (2) the juvenile court does not have jurisdiction over Angela herself, and (3) the juvenile court's issuance of a protective custody order violates her constitutional rights to due process of law and equal protection under the United States Constitution and the Wisconsin Constitution.

Angela seeks habeas corpus relief or, in the alternative, supervisory relief from this court. However, regardless of the relief she seeks, the gravamen of Angela's argument is that she is illegally detained by the juvenile court's protective custody order. The purpose of the writ of habeas corpus is to protect and vindicate the petitioner's right of personal liberty by releasing the petitioner from illegal restraint. State ex rel. Zdanczewicz v. Snyder, 131 Wis. 2d 147, 151, 388 N.W.2d 612, 614 (1986). Angela's argument presents a classic habeas corpus test. She makes no further or different argument in support of her alternative claim for supervisory writ relief. Thus, we will answer Angela's challenge in the context of her habeas corpus claim, and we will not separately discuss her alternative claim for a supervisory writ.

In a habeas corpus proceeding, the burden is on the petitioner, here Angela, to demonstrate by a preponderance of the evidence that the detention is illegal. See State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 334, 283 N.W.2d 408, 410 (Ct. App. 1979).

We do not read Angela's arguments (at least at this early stage of the pending CHIPS proceedings) to challenge the factual underpinning for the commencement of the CHIPS matter pursuant to § 48.13(10), Stats., or for the issuance of the concurrent protective custody order pursuant to § 48.19(l)(c), STATS. The former statute vests the juvenile court with exclusive original jurisdiction over a child whose parent neglects, refuses or is unable for reasons other than poverty to provide necessary care, including medical care, where such conduct seriously endangers the physical health of the child. The latter statute authorizes the juvenile court to issue an order for the custody of the child upon a satisfactory showing that the welfare of the child demands such action. The affidavit of Angela's obstetrician recites facts clearly sufficient to satisfy both statutes.

Rather, Angela's challenge is legally premised. She contends that the juvenile court does not have CHIPS jurisdiction over her or her viable fetus. And, even if such jurisdiction exists, Angela contends that the juvenile court's issuance of a protective custody order under § 48.19(l)(c), STATS., violates her constitutional rights. We discuss these issues seriatim.

JURISDICTION

In order to exercise its power over a case, a court must have both subject matter jurisdiction and personal jurisdiction. P.C. v. C.C., 161 Wis. 2d 277, 297, 468 N.W.2d 190,198, cert. denied, 502 U.S. 925 (1991). Section 48.13, STATS., vests the juvenile court with "exclusive original jurisdiction over a child alleged to be in need of protection or services." The statute then goes on to set out fourteen specific scenarios in which the juvenile court is empowered to act. In this case, the County relies on subsec. (10), governing those situations in which the child's parent fails to provide requisite care so as to seriously endanger the physical health of the child.

In making her jurisdictional arguments, Angela does not specify whether she is challenging the juvenile court's subject matter or personal jurisdiction. We suspect her challenge is to the juvenile court's subject matter jurisdiction. However, in the interest of completeness, we will discuss both.

1. Subject Matter Jurisdiction

Subject matter jurisdiction requires that the statutes or the constitution confer authority on the court to adjudicate the matter before it. P.C., 161 Wis. 2d at 297-98, 468 N.W.2d at 198. Angela argues that the juvenile court exceeded its jurisdiction in this case because a viable fetus is not a child within the meaning of § 48.02(2), Stats. If that is true, then the juvenile court had no authority to adjudicate this matter, and the court's assumption of jurisdiction was in excess of that conferred by the statute.

Angela's argument requires that we interpret § 48.02(2), Stats., which defines a "child" for purposes of the juvenile code as "a person who is less than 18 years of age." (Emphasis added.) The interpretation of a statute presents a question of law which we review de novo. Brandt v. LIRC, 160 Wis. 2d 353, 361, 466 N.W.2d 673, 676 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992). In construing a statute, we begin with the language of the statute itself, and if the language is clear on its face, we are precluded from referring to extrinsic sources to aid our interpretation. Id. at 362, 466 N.W.2d at 676.

Angela argues that the statute is clear and unambiguous. In support, she reasons that a viable fetus is not a "child" because: (1) a fetus has no age; (2) a CHIPS petition must allege, inter alia, the birth date of the child, § 48.255(l)(a), Stats.; and (3) when the legislature has seen the need to include a fetus in a statutory classification, including the juvenile code, it has expressly done so.⁸

We have no substantial quarrel with Angela's reasoning as far as it goes.⁹ However, it does not go far enough. For even if a statute appears unambiguous on its face, it can be rendered ambiguous as applied. See Brandt, 160 Wis. 2d at 368, 466 N.W.2d at 679. "[E]ven apparently plain words, divorced from the context in which they arise and in which their creators intended them to function, may not accurately convey the meaning the creators intended to impart. It is only, therefore, within a context that a word, any word, can communicate an idea." Leach v. Federal Deposit Ins. Corp., 860 F.2d 1266, 1270 (5th Cir. 1988), cert. denied, 491 U.S. 905 (1989).

We properly bear in mind that the legislature cannot be reasonably expected to address every scenario under which its law anight be applied. "[T]he very nature of today's society makes it impossible for the members of the legislature to forecast the particular condition or set of facts to which someone now suggests applying the statute." State v. Knutson, Inc., 196 Wis. 2d 86, 97, 537 N.W.2d 420, 423 (Ct. App. 1995) (quoted source omitted). When our supreme court spoke to the topic of fetal injury in Puhl v. Milwaukee Auto. Ins. Co., 8 Wis. 2d 343, 357, 99 N.W.2d 163, 171 (1959), overruled on other grounds by Stromsted v. St. Michael Hosp., 99 Wis. 2d 136, 299 N.W.2d 226 (1980), it stated, "If the common law has any vitality, ... it should be elastic enough to adapt itself to current medical and scientific truths so as to function as an efficient rule of conduct in our modern, complex society."

The test for ambiguity of a statute is whether reasonable minds could differ as to its meaning. See E.H. v. Milwaukee County, 151 Wis. 2d 725, 731, 445 N.W.2d 729, 731 (Ct. App. 1989). We conclude that reasonable minds could differ as to whether the statutory definition of a child applies to a viable fetus in a CHIPS proceeding. The sharp conflict in authority among the various jurisdictions and commentators alone bears this out. However, we base our conclusion on three more compelling considerations: (1) our supreme court has already construed a viable fetus as a "person" within the meaning of Wisconsin's wrongful-death statute, Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 19, 148 N.W.2d 107, 110 (1967); (2) the public policy considerations expressed in Kwaterski and those earlier expressed in Puhl; and (3) the admonition in Puhl that the common law should be flexible enough to adopt itself to current medical and scientific truths, Puhl, 8 Wis. 2d at 357, 99 N.W.2d at 171.

On the merits, we conclude that a viable fetus is a "person" within the statutory definition of a child as set out in § 48.02(2), STATS. We base this conclusion on the public policy expressed from three sources: (1) the United States Supreme Court, (2) the Wisconsin legislature, and (3) the Wisconsin Supreme Court.

We begin our discussion with Roe v. Wade. Roe is the landmark case recognizing a woman's constitutional right, within certain constraints, to choose an abortion.¹⁰ Roe, 410 U.S. at 163. We stress that this case is not about Angela's constitutional right to choice under Roe. That right has been honored to the fullest in this case. Instead, this case is about consequences: first, the consequences of Angela's choice under Roe; and second, the consequences of Angela's conduct which has placed her viable fetus at risk of serious physical harm or death.

Often lost in the clamorous and polarized public debate about Roe is another important holding of the case — the recognition of the state's legitimate interest in protecting potential life when that interest becomes "sufficiently compelling." See id. at 154. Thus, under Roe, a woman's right to an abortion is not absolute, see id., and the state may act to promote its interest in the potentiality of human life represented by a viable fetus, id. at 163-64.

This brings us to Wisconsin's CHIPS law. Roe was decided in 1973. Wisconsin's CHIPS statute was created by Laws of 1977, ch. 354, § 24. This legislation replaced the former §48.13, STATS., which applied to "children alleged to be neglected or dependent." See, e.g., § 48.13, STATS., 1973. Included in the new legislation was subsec. (10), the provision relied on by the County in this case. We presume that when the legislature acts, it is aware of the law, including a supreme court's interpretation of the law. See State v. Iglesias, 185 Wis. 2d 117, 140, 517 N.W.2d 175,183, cert. denied, 513 U.S. —, 115 S. Ct. 641 (1994). With Roe on the books, the constitutional way had been cleared for the Wisconsin legislature to enact legislation, should it so choose, to promote and protect the potential life represented by a viable fetus.

It is self-evident from a reading of the CHIPS statute that its purpose is to protect children at risk. In light of Roe, which forbids the abortion of a viable fetus and which empowers the states to protect the potential life of such a fetus, it would be incongruous for us to conclude that the CHIPS statute does not empower the state to take the very steps which Roe expressly envisioned.

For this reason, we reject the reasoning of the dissent and those commentators who interpret Roe and its progeny to allow only state regulation of abortion. The clear purpose of the CHIPS statute is to protect children from the risk of physical harm. That goal can hardly be achieved if the potential life of a viable fetus, a legitimate compelling state interest under Roe, is not provided a safe environment in the womb of its mother and is beyond the reach of the state in a CHIPS proceeding.¹¹

Moreover, our supreme court has already spoken to this matter, albeit in a different context. In State v. Black, 188 Wis. 2d 639, 641, 526 N.W.2d 132, 133 (1994), the defendant had killed his unborn quick child as the result of an assault upon the mother. He was charged with feticide pursuant to § 940.04(2)(a), STATS., which makes it illegal for any person, other than the mother, to intentionally destroy the life of an unborn child. Black, 188 Wis. 2d at 643, 526 N.W.2d at 134.

On appeal, the defendant argued that the feticide statute could not be enforced against him because it was intended "to apply only in the context of consensual medical abortions." Id. at 644, 526 N.W.2d at 134. The defendant also argued that the feticide statute "was impliedly repealed when the legislature enacted [the abortion statute] §940.15 in response to Roe v. Wade." Black, 188 Wis. 2d at 644-45, 526 N.W.2d at 134. The supreme court rejected this argument, holding that the feticide statute was "not an abortion statute." Id. at 646, 526 N.W.2d at 135. Thus, Black recognizes that the state may enact and enforce laws outside the abortion context which protect a viable fetus. CHIPS is such a law.

We now turn to the Wisconsin case law and the public policy expressed therein which have addressed the status of a fetus as it bears upon standing to assert a claim for fetal injury. In Puhl, the plaintiff was born alive as a "Mongoloid" child, a condition which she alleged was caused by an automobile accident which occurred when she was a nonviable fetus. Puhl, 8 Wis. 2d at 351, 99 N.W.2d at 168. Although the jury returned a favorable verdict, the trial court struck the award based on the prevailing law expressed in Lipps v. Milwaukee Elec. Ry. & Light, 164 Wis. 272, 159 N.W. 916 (1916). That law held that "a child during pregnancy was a part of its mother and, not being a person in esse at the time of injury, had no rights, and no cause of action could accrue for any prenatal injury." Puhl, 8 Wis. 2d at 354, 99 N.W.2d at 169.

Upon review, the supreme court upheld the trial court's ruling on a different ground, holding that the evidence did not sufficiently establish causation. Id. However, the court went on to discuss the then-developing law regarding the right of a person born alive to recover for prenatal injuries. While this discussion did not resolve the issue with finality, the Puhl decision raised serious questions about the continuing vitality of Lipps.

The Puhl court discussed the two developing theories on the question: (1) the "viability theory," which drew the line between an enforceable and nonenforceable claim at the point of viability; and (2) the "biological theory," which made no distinction between viability and nonviability, but instead triggered liability if the fetus was born alive regardless of when the fetal injury occurred. Puhl, 8 Wis. 2d at 356, 99 N.W.2d at 170.

In the course of this discussion, the Puhl court made three observations which we deem important to the issue before us. First, the court noted that "medical knowledge" and "common knowledge" established "that a child in the viable stage can and does live separately in the womb of its mother and can live and exist as an independent person if born in that stage." Id. at 355, 99 N.W.2d at 170 (emphasis added). Thus, for the first time, we see a Wisconsin court favorably considering a legal theory which recognizes the ability of a viable fetus to exist as an independent person and to assert a claim, after birth, based on that status.

Second, referring to the abortion law then on the books, the Puhl court noted that the purpose of the laws against abortion is founded on the public policy that it is wrong to deprive a living fetus of its ability to be born. Id. at 356, 99 N.W.2d at 170. The Puhl court rhetorically inquired, "If an unborn child may not be legally deprived of life, why may that life be impaired by the negligence of another person without responsibility?" Id. at 356-57, 99 N.W.2d at 170. Although that statement was uttered in a pre-Roe v. Wade setting, a variant of that rhetorical question is legitimately posed in this case as to those abortions which remain illegal under Roe. If the viable fetus, within the constraints of Roe, may not be deprived of life, how can it be reasonably said that the state is powerless under the CHIPS law to protect a viable fetus whose physical safety or life is at risk?

Third, the Puhl court observed that "[t]he protection of property rights of an unborn child in the law of real property... and [probate]... raises the question of whether property rights should be more important than the right to be compensated for being born deformed or injured through the negligence of another." Puhl, 8 Wis. 2d at 357, 99 N.W.2d at 171. That same concern applies in this case. The law cannot credibly say that th^ property and inheritance rights of a fetus are more important than the ability of the state to intercede under CHIPS on behalf of a viable fetus to protect the fetus against serious threats to its physical safety or life.

We next turn to Kwaterski. There the issue was "whether an eighth-month, viable unborn child, whose later stillbirth is caused by the wrongful act of another, is a 'person' within the meaning of [the wrongful-death statute] so as to give rise to a wrongful-death action by the parents of the stillborn infant." Kwaterski, 34 Wis. 2d at 15, 148 N.W.2d at 108. In allowing recovery, the supreme court noted that "the weight of authority continues the trend noticed in Puhl, favoring recognition of an unborn child as a person for purposes of recovery under a wrongful-death statute." Kwaterski, 34 Wis. 2d at 19, 148 N.W.2d at 110 (emphasis added).

The Kwaterski court cited various reasons in support of its ruling allowing recovery. Many are relevant to this case and support our holding. First, echoing Puhl, the court said that a viable child "is capable of independent existence and therefore should be recognized as a separate entity entitled to the protection of the law of torts." Kwaterski, 34 Wis. 2d at 19, 148 N.W.2d at 110. In fact, the court said that Puhl recognized an unborn child as a separate legal entity. Kwaterski, 34 Wis. 2d at 19, 148 N.W.2d at 110. While we are not so sure that Puhl made such an unequivocal statement, it is clear that Kwaterski does for purposes of the wrongful-death statute.¹²

Angela necessarily concedes that under Kwaterski, a viable fetus is a person for purposes of the wrongful-death statute. Yet, she would deny that same status to a viable fetus under the CHIPS statute so as to preclude the state from taking protective steps on behalf of a viable fetus at risk. This reasoning is illogical. It holds that the survivors of a fetus may be compensated for the fetus' death, but the state may not intercede under CHIPS to preserve the life or safety of the fetus in the first instance. This reasoning produces an unreasonable interpretation of the CHIPS statute in light of Kwaterski. We must look to the commonsense meaning of a statute to avoid unreasonable results. Turner v. City of Milwaukee, 193 Wis. 2d 412, 420, 535 N.W.2d 15, 17 (Ct. App. 1995).

Second, the Kwaterski court, again echoing Puhl, noted that the law already protected the unborn against the crimes of others and the property rights of the unborn. Kwaterski, 34 Wis. 2d at 19, 148 N.W.2d at 110. We have previously addressed these considerations and noted the incongruity of recognizing those rights but not according the state its authority under Roe to intercede via CHIPS on behalf of a viable fetus.

Third, the Kwaterski court observed that "[i]f no right of action is allowed, there is a wrong inflicted for which there is no remedy." Kwaterski, 34 Wis. 2d at 20, 148 N.W.2d at 110. Our failure to recognize the viable fetus as a person under the CHIPS statute effectively deprives the state of its remedy, recognized by Roe and codified by the CHIPS law, to pursue its legitimate and compelling interest in protecting the potential life represented by a viable fetus. See Roe, 410 U.S. at 154; see also § 48.13, Stats.

Fourth, the Kwaterski court cited equitable grounds in support of its holding. The court concluded that it would be unfair to deny the surviving family members the right to recover monetary damages for the loss of a child before it is born. See Kwaterski, 34 Wis. 2d at 20, 148 N.W.2d at 111. If equity requires that a viable fetus be accorded status as a "person" so that third parties might be compensated, it surely follows that the viable fetus bé accorded similar status under the CHIPS statute to allow the state to pursue its legitimate interest in protecting the physical safety or life of a viable fetus.

Fifth, in terse but clear language, Kwaterski rejected the argument that any judicial declaration that a viable fetus is a "person" within the meaning of the wrongful-death statute was a matter for the legislature, not the courts. Angela mounts the same argument here as to the CHIPS statute. The Kwaterski court stated, "[Wrongful-death statutes] are remedial statutes and should be broadly construed to effect their purpose." Id. at 21, 148 N.W.2d at 111.

A remedial statute is one which affords a remedy, or improves or facilitates remedies already existing for the enforcement of rights and redress of injuries. Chappy v. LIRC, 128 Wis. 2d 318, 324, 381 N.W.2d 552, 556 (Ct. App. 1985), aff'd, 136 Wis. 2d 172, 401 N.W.2d 568 (1987). Clearly, the purpose of the CHIPS statute is to allow the state to intervene on behalf of children at risk. As such, the statute is remedial. Following Kwaterski's directive, we construe the statute in a fashion to serve those goals.

Kwaterski recognizes the parental choice to conceive and bear a child. The purpose of the wrongful-death statute is to compensate for the in útero loss of such child which is caused by the wrongful act of another. To achieve the remedial goal of the statute, the supreme court read the term "person" broadly to include a viable fetus. In this case, the purpose of the CHIPS statute is to vest the state with the authority to promote the health and welfare of children, a goal which includes a viable fetus under Roe. To achieve this remedial goal, we properly construe a viable fetus as a "person" under the juvenile code.

We conclude this phase of our discussion by returning to Roe. We have already noted that defining a viable fetus as a "person" for purposes of § 48.02(2), STATS., does no violence to the choice holding of Roe. Neither does our conclusion offend Roe's further holding that a fetus is not a "person" within the meaning of the Fourteenth Amendment. See Roe, 410 U.S. at 158. We are not declaring Angela's viable fetus a person under the Constitution. Rather, we are holding that the viable fetus qualifies as a person under the statutory definition of child set out in § 48.02(2), STATS.¹³

In summary, we conclude that Angela's viable fetus is a "person who is less than 18 years of age" pursuant to § 48.02(2), Stats. As such, the viable fetus is a child entitled to the protections and services of § 48.13(10), Stats., and the juvenile court has subject matter jurisdiction to adjudicate the pending CHIPS proceeding.

2. Personal Jurisdiction over the Viable Fetus

Next, Angela contends that the juvenile court does not have personal jurisdiction over her viable fetus.¹⁴ Personal jurisdiction inquires whether a party has a sufficient relationship to the jurisdiction exercising authority and whether the party has notice of the charges. State v. Smith, 131 Wis. 2d 220, 239, 388 N.W.2d 601, 609 (1986).

The fetus appeared in this action through its guardian ad litem, and in response to the CHIPS petition and the protective custody order. The guardian ad litem has not objected to the court's personal jurisdiction over the fetus. Nor has the guardian ad litem claimed that the fetus has a relationship to any jurisdiction other than Wisconsin or that there is any defect regarding notice of the proceedings. Thus, all the requisites for personal jurisdiction have been satisfied as to the viable fetus.

3. Personal Jurisdiction over Angela

Next, Angela challenges the juvenile court's personal jurisdiction over her.

We stress at the outset of this discussion that the jurisdictional issue presented by this case is the juvenile court's original jurisdiction pursuant to the CHIPS statute, § 48.13, Stats. "The court has exclusive original jurisdiction over a child alleged to be in need of protection or services_" Id. The statute then goes on to recite the fourteen various scenarios under which the court may exercise its jurisdiction to provide protection and services. Thus, the statute states a threshold jurisdictional requirement before the juvenile court may act in a CHIPS matter.

It is critical to note that the statute neither confers nor requires original jurisdiction over a parent as a prerequisite to a CHIPS proceeding. This is a subtle, but important, distinction which Angela has failed to grasp. As a result, she rests her argument on the incorrect premise that the juvenile court has exercised its original jurisdiction over her. This is not so. Section 48.13, Stats., which vests the juvenile court with original jurisdiction to act in a CHIPS case, does not require original jurisdiction over a parent, and the juvenile court has not asserted any original jurisdiction over Angela.

The same is true as to the protective custody order. Like the CHIPS statute, § 48.19, Stats., which authorizes protective custody orders, neither requires nor confers original jurisdiction over a parent. Under the facts of this case, the jurisdictional requirement for issuance of the protective custody order was a showing that the welfare of the viable fetus demanded immediate removal of its custody to a safer environment. See § 48.19(l)(c). This threshold showing was made to the satisfaction of the juvenile court.

The protective custody order also recognized that the custody of Angela's viable fetus would, of necessity, require the concurrent custody of Angela herself. The order worked its custodial effect on Angela not because the juvenile court has asserted jurisdiction over her, but because Angela and her fetus are physically and biologically one. While the law has recognized the separate and sometimes competing legal interests of a fetus and its mother, this inexorable law of nature cannot be overlooked in this jurisdictional context.

This does not mean that parents are not interested parties in CHIPS and protective custody proceedings. To the contrary, they are vital and important participants with vital and important rights, interests and responsibilities. And, the juvenile code involves the parents in such proceedings after original jurisdiction has been established and after the child has been taken into custody. However, the bottom line for purposes of this jurisdictional discussion is that neither the juvenile court's original exclusive CHIPS jurisdiction nor the court's authority to issue a protective custody order requires prior original jurisdiction over a parent.

This same reasoning governs Angela's further argument that our holding runs afoul of this court's decision in C.S. v. Racine County, 137 Wis. 2d 217, 404 N.W.2d 79 (Ct. App. 1987). There we held that a juvenile court could not order a parent of a born child into involuntary inpatient substance abuse treatment pursuant to § 48.45, STATS. C.S., 137 Wis. 2d at 223-24, 404 N.W.2d at 82-83. Instead, we held that the state was obligated to follow the commitment proceedings of ch. 51, STATS., governing alcohol and substance abuse commitments. C.S., Wis. 2d at 224, 404 N.W.2d at 82-83.

This is not a C.S. case because just as the juvenile court has not asserted any jurisdiction over Angela, neither has it ordered Angela into any involuntary inpatient treatment program or facility. As we have noted, both the original and amended protective custody orders directed that the viable fetus, not Angela, be taken into nonsecure custody.

The fact that Angela and her viable fetus are physically and biologically one triggers the legal dilemma posed by this case, and it runs through all of the issues before us. This fact requires this court to squarely decide whose interests shall prevail. However, we conclude that the answer to this delicate question does not lie in any inquiry as to the juvenile court's purported personal jurisdiction over Angela. Rather, we properly address this question in the context of Angela's constitutional arguments — a matter to which we now turn.¹⁵

DUE PROCESS/EQUAL PROTECTION

Assuming that the juvenile court had jurisdiction to act, Angela next contends that the custodial effect worked by the protective custody order violates her due process liberty rights under the United States and Wisconsin constitutions.¹⁶ Specifically, Angela contends that the County has failed to demonstrate a sufficient compelling interest on which to restrain her liberty.

On this issue, Roe v. Wade and its progeny again play an important role. As we have previously observed, Roe not only recognized a woman's right to choose an abortion, but also the state's compelling interest in promoting and protecting the potential life of a viable fetus. Roe, 410 U.S. at 154; see also Planned Parenthood v. Casey, 505 U.S. 833, 869 (1992). As Casey later stated, "it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's 'important and legitimate interest in potential life.' That portion of the decision in Roe has been given too little acknowledgement and implementation by the Court in its subsequent cases." Casey, 505 U.S. at 891 (citation omitted). Thus, a woman's constitutional right to choose an abortion is not absolute. See Roe, 410 U.S. at 154.

We also note that the state interest recognized by Roe and later cases is not of constitutional proportion since the state possesses no such interests or rights. Nor is the state's interest recognized by Roe predicated on any constitutional right of the fetus, since Roe held that the fetus was not a person within the meaning of the Fourteenth Amendment. Roe, 410 U.S. at 158. Nonetheless, the Supreme Court concluded that these nonconstitutional interests were sufficient, after viability, to override the constitutional right to choice. See id. at 158-59.

In order to deprive a person of the fundamental right to physical liberty, the state must show a compelling interest and that the means to carry it out is narrowly drawn. See Zablocki v. Redhail, 434 U.S. 374, 388 (1978). Roe has already recognized this "compelling interest" in situations involving the potential life of a viable fetus. The substantial number of children who are born drug addicted or drug exposed is well documented. See, e.g., Lisa Janovy Keyes, Comment, Rethinking the Aim of the "War on Drugs States' Roles in Preventing Substance Abuse by Pregnant Women, 1992 WlS. L. Rev. 197, 201. ("A recent nationwide study revealed that an average of 11% of all babies born tested positive for illicit drugs .... Wisconsin's perinatal substance abuse problem mirrors the national experience. In Milwaukee County, 10% to 15% of babies are born to mothers who used cocaine during pregnancy.") These statistics factually establish the compelling need for state intervention, and Roe legally establishes the state's right to do so.

Angela further argues that the state's interest is not compelling because it might be asserted in instances where the risk to the fetus is minimal or perhaps nonexistent. As examples, she cites to a pregnant woman who smokes tobacco or consumes nominal amounts of alcoholic beverages while pregnant.

In a different setting, this court once rejected an argument based upon our speculation about the possible mischief which that argument, if adopted, would work in future hypothetical cases. Manitowoc County v. Local 986B, 163 Wis. 2d 911, 918, 472 N.W.2d 600, 602 (Ct. App. 1991) (Local 986B I), rev'd, 168 Wis. 2d 819, 484 N.W.2d 534 (1992) (Local 986B II). In reversing our decision, the supreme court labelled our concerns "hyperbolic." Local 986B II, 168 Wis. 2d at 831, 484 N.W.2d at 538-39. Although Angela presents many compelling arguments in this case, her argument on this issue borders on the hyperbolic.

An objective and fair reading of the CHIPS statute reveals why this is so. The fourteen scenarios in which the CHIPS statute authorizes the juvenile court to exercise its original jurisdiction represent egregious situations in which a child is at substantial or serious risk either because of its own actions or those of others. These include a child without a parent; an abandoned child; a child who has been the victim of sexual abuse or who is at such risk; a child who has needs for special treatment or care; a child who is receiving inadequate care during a time when a parent is absent or unavailable; a child whose parent is neglecting, or is at substantial risk of neglecting, to provide necessary-care; a child who is suffering from emotional damage, alcohol or other drug abuse impairment for which the parent is unwilling to provide treatment; and a delinquent child found not responsible because of mental disease or defect. Section 48.13, Stats.

This litany hardly suggests the lesser kinds of risk situations about which Angela hypothesizes. Instead, these statutory scenarios represent those extreme and critical situations in which the juvenile court may intercede to protect a child and to provide services to the child and the family. No parent is perfect. All parents, at one time or another, have probably acted in a careless or negligent fashion as to their children. All parents could probably do better. But the CHIPS statute does not exist to allow the state to meddle with the family unit in those instances in which the parental conduct represents expected and routine human failings. Rather, the statute is reserved for extreme situations in which the child faces serious or substantial risk.

Moreover, the juvenile court may not invoke its jurisdiction on a mere hunch or suspicion. Section 48.255(l)(e), STATS., provides that a CHIPS petition must recite "reliable and credible information which forms the basis of the allegations necessary to invoke the jurisdiction of the court." The test for the sufficiency of a CHIPS petition is the same as that governing the sufficiency of criminal complaints — probable cause. State v. Courtney E., 184 Wis. 2d 592, 601, 516 N.W.2d 422, 425 (1994).

In addition, § 48.13(10), STATS., the subsection upon which the County relies in this case, requires not only that the parent neglect to provide the child with the requisite care, but also that such neglect seriously endanger the physical health of the child.

We also note that in a case in which a protective custody order is sought, the law accords additional protections besides the foregoing jurisdictional requirements. Before the juvenile court may issue a custodial order, it must be persuaded "upon a showing satisfactory to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody." Section 48.19(l)(c), Stats. (emphasis added). Webster's Third New International Dictionary 598 (1976), defines the verb "demand[s]," in part, as "necessary, or requisite: make imperative." This same authority likens the term to a "fact of necessity or compulsiveness." Id. Thus, a protective custody order is properly reserved for situations of urgency or exigency.

Finally, we observe that following the execution of a protective custody order, § 48.205, Stats., requires a further probable cause determination as to whether the child may continue to be held in custody, and the statute sets out various criteria for the juvenile court or the intake worker to consider on this question.

From this analysis of the applicable CHIPS and protective custody statutes, it is apparent that the law provides numerous procedures, standards and protections which guard against the hypothetical abuses which Angela envisions.¹⁷

Angela further argues that the confinement of pregnant women is too extreme a means by which the state may accomplish its compelling interest. As such, she contends that the statute is not constitutionally tailored to serve the state's objective. See Zablocki, 434 U.S. at 388. Angela argues that confinement will be counterproductive, forcing some women to avoid prenatal medical care, to opt for delivery outside of a medical setting, or to avoid substance abuse treatment. She contends that other less coercive alternatives, such as treatment and counseling, should be explored and employed.

We do not disagree with Angela that the pursuit of alternatives short of a protective custody order would be prudent in many cases. However, in her zeal to invalidate the statute, Angela has failed to recognize that the juvenile code already promotes and allows the exploration of these lesser options. Section 48.01(1), STATS., which recites the legislative purposes of the juvenile code, provides, in part:

This chapter shall be interpreted to effectuate the following express legislative purposes:

(b) To provide for the care, protection and wholesome mental and physical development of children, preserving the unity of the family whenever possible.

(g) To provide children in the state with permanent and stable family relationships. The courts and agencies responsible for child welfare should assist parents in changing any circumstances in the

home which might harm the child or which may require the child to he placed outside the home. [Emphasis added.]

The goal of preserving the family unit clearly conveys that protective custody orders should be used sparingly. That goal also conveys that the option of voluntary drug treatment for pregnant women should be explored. And, the juvenile code has provisions incidental to the intake process where options short of formal juvenile court intervention and a protective custody order can be explored. See, e.g., §§ 48.067, 48.069, 48.24, 48.243, 48.245, Stats. Thus, the position which Angela advocates is already accommodated by the juvenile code.

While the limited record before us in this original action does not reveal whether lesser options were explored on the juvenile court level, the record does establish that they were explored and recommended to Angela by her treating obstetrician. It was Angela's failure to heed this advice — not any surreptitious act of the juvenile court — which triggered the need for judicial intervention by means of a CHIPS petition and a protective custody order.

This analysis establishes that the CHIPS statute is not an enactment which has "no other purpose . . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them." See United States v. Jackson, 390 U.S. 570, 581 (1968). To the contrary, the CHIPS statute represents the state's recognized interest in promoting and protecting the safety and well-being of children.

We recognize that the means by which the state interest is served cannot be justified merely because there is a rational relationship between the means and the interest; rather, the state interest must be compelling. See Reno v. Flores, 507 U.S. 292, —, 113 S. Ct. 1439, 1447 (1993). However, Roe has already decided that the state's interest in promoting the life of a viable fetus is compelling, and we have already held that our CHIPS statute represents the choice of the state to promote that interest as to a viable fetus. We therefore conclude that §§ 48.13 and 48.19, STATS., the means by which the state's interest is served, are properly tailored to satisfy constitutional requirements.¹⁸

CONCLUSION

We hold that Angela's viable fetus is a "person" as that term is used in the statutory definition of a "child" set out in § 48.02(2), Stats. We further hold that all components of the juvenile court's exclusive original jurisdiction have been satisfied in this case. Therefore, the juvenile court was authorized to adjudicate the CHIPS matter and to issue a protective order for the custody of the viable fetus pursuant to § 48.19(l)(c), STATS. Finally, we hold that the CHIPS statute and the protective custody provisions of § 48.19(1) represent a proper and tailored means by which the State may exercise its compelling interest in promoting the health, safety and welfare of Angela's viable fetus.

By the Court. — Writ of habeas corpus denied. Supervisory writ denied.

1 0n September 25, 1995, we issued an order denying Angela's requested relief from this court. In that order, we indicated that this written decision would follow. We employed this procedure so that Angela would immediately know her status under the juvenile court's custodial order and because the birth of her child was imminent.

2 Our order deciding this case was issued while Angela was still pregnant. This decision is released after Angela's projected delivery date and we are informed that Angela has now given birth to a baby boy.

3 Section 48.981(2), Stats., generally requires a physician and certain other persons to report instances of suspected child abuse or neglect when such suspicion is based on reasonable cause.

4 Section 48.207(l)(g), Stats., authorizes nonsecure protective custody in a hospital.

5 This amended order was entered by Judicial Court Commissioner Linda Georgeson.

6 Section 48.21(l)(a), STATS., provides, in relevant part:

If a child who has been taken into custody is not released under s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss. 48.205 to 48.209 shall be conducted by the judge or juvenile court commissioner within 24 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays and legal holidays.

7 Angela also asked that we temporarily stay the plea hearing scheduled for September 13, 1995. We denied this request. At the initial hearing, the juvenile court entered a denial on Angela's behalf and scheduled the matter for a jury trial on October 4,1995.

8 See, e.g., § 20.927(4), STATS., pertaining to the prohibited subsidy of abortions; § 46.03(34), Stats., addressing the powers and duties of the Department of Health and Social Services; §§ 48.257(l)(b) and 48.375(2)(a), Stats., covering parental consent to a minor's abortion; § 69.01(13m), Stats., defining "induced abortion"; § 146.817, Stats., defining "fetal monitor tracing"; § 253.09, Stats., addressing a hospital's refusal to honor a patient's request for an abortion; § 253.10(l)(a)2 and (1) (c), STATS., dealing with informed consent for abortions; and §§ 441.06(6) and 448.03(5), STATS., granting civil immunity to certain licensed medical personnel who refuse to perform an abortion or sterilization procedure on religious or moral grounds.

9 However, we see no reason why a CHIPS petition could not satisfy the birth date requirement by alleging that the child does not yet have a birth date because it has not yet been born.

10 Roe v. Wade, 410 U.S. 113 (1973), constructed a trimester framework within which the competing interests of a woman's right to choose an abortion and the state's interest in promoting the potential life of a fetus were balanced. Later, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Supreme Court altered Roe's trimester framework and instead drew the line for permissible state regulation at viability. Casey, 505 U.S. at 872-73, 879.

11 The position of the commentators representing this narrow view of Roe is represented by the following: "[Roe] placed an essential limit on the exercise of [the state's] interest by expressly permitting a woman to obtain an abortion even after fetal viability if 'it is necessary to preserve (her) life or health.' Thus, it is incorrect to assert that Roe grants the state unrestricted authority to protect the viable fetus or to prohibit abortions after viability." Lawrence J. Nelson & Nancy Milli-ken, Compelled Treatment of Pregnant Women; Life, Liberty, and Law in Conflict, 259 JAMA 1060,1062 (1988).

The obvious result of this interpretation of Roe is that the mother is free to do what she wants irrespective of the health or safety of the fetus. This position is refuted by the words of Justice Harry A. Blackmun in Roe itself: "[I]t is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past." Roe, 410 U.S. at 154. In his separate opinion in Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), Justice Blackmun again spoke to this matter: "[T]he Roe framework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State's interest in potential human life. . . . [T]he viability standard takes account of the undeniable fact that as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling." Webster, 492 U.S. at 553 (Blackmun, J., concurring in part and dissenting in part).

We are thus satisfied that the state's interest in the health and welfare of the fetus after it attains viability is recognized under Roe and that state intervention on behalf of such a fetus is allowed under Roe where such interest is shown to be compelling. As we have indicated, our legislature has exercised its privileges under Roe through the CHIPS statute.

The commentators who espouse this narrow reading of Roe fail to recognize the incongruity of their position — a matter which we have already noted in the body of this opinion. By recognizing that a state may intervene in an abortion decision after viability, Roe necessarily recognizes the right of the state to protect the potential life of the fetus over the wishes of the mother to terminate the pregnancy. Why then cannot the state also protect the viable fetus from maternal conduct which functionally presents the same risk and portends the same result — the death of the viable fetus? Absent a logical answer to this question, the logic of the commentators' premise is also suspect.

12 The wrongful-death statute under inquiry in Kwaterski v. State Farm Mut. Auto Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967), read, in part, as follows:

Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who . . . would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured.

Section 331.03, Stats., 1963 (emphasis added).

With minor variances, Wisconsin's current wrongful-death statute, § 895.031, Stats., mirrors the statute examined by the Kwaterski court.

13 On this point, one commentator has offered the following thoughts:

In Roe v. Wade, the Supreme Court stated "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." This statement must be placed in context, however, because its seeming clarity has caused serious confusion. The statement is narrow. It pertains only to the word "person" as it appears in the fourteenth amendment. It does not imply that the unborn are non-persons in other legal contexts. For example, Roe does nothing to weaken the large body of existing law protecting the unborn, and denial of fourteenth amendment personhood does not deprive the states of power to grant legal recognition to the unborn in non-fourteenth amendment situations. Unfortunately,

Roe is sometimes misunderstood as an all-pervasive statement of "non-personhood" of the unborn. This misunderstanding leads some to conclude that states are powerless to protect the fetus. [Emphasis in original; footnote omitted.]

John E.B. Myers, Abuse and Neglect of the Unborn: Can the State Intervene? 23 DUQ. L. Rev. 1,15 (1984).

14 In addressing this issue, we are assuming that Angela has standing to object to the juvenile court's personal jurisdiction over her viable fetus.

15 Because we hold that the juvenile court did not exercise any original jurisdiction over Angela, we need not address with finality the County and guardian ad litem's further argument that § 48.45, STATS., may serve as a basis for the juvenile court's jurisdiction over Angela.

Nonetheless, we make some observations, admittedly dicta, about § 48.45, Stats. The statute is entitled "Orders applicable to adults." It authorizes the juvenile court "in the hearing of a [CHIPS] case" to "make orders with respect to the conduct of such person in his or her relationship to the child." Subsection (l)(a). However, this statute does not address the juvenile court's original jurisdiction, which is the issue before us. If the viable fetus was a born child, and Angela was engaging in conduct detrimental to the child's safety, we doubt that a juvenile court could issue a detention order against Angela pursuant to this statute. Moreover, the statute appears to envision the custody of an adult only after a contempt proceeding has occurred. Subsection (2).

16 Despite her invocation of the Wisconsin Constitution, all of Angela's arguments rest on cases which have considered the federal Constitution. Angela makes no separate argument under the Wisconsin Constitution. Therefore, we will not separately address any possible different implications of the Wisconsin Constitution on the issue.

17 In addition, we are entitled to presume that those lawyers and judges charged with administering a law will do so with discretion, good judgment and prudence. Even when that presumption is not borne out in a given case, such does not render the law unwise or unconstitutional.

18 Angela also argues that our holding violates her equal protection rights. However, she bases this on the same arguments in support of her due process claim. Since we have rejected those due process arguments, we do not further address the equal protection issue.