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Loertscher v. Anderson

United States District Court, W.D. Wisconsin

April 28, 2017


          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Under 1997 Wisconsin Act 292, Wisconsin's juvenile courts may treat an unborn child of any gestational age as a child in need of protection or services if the “expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk” of harm to the unborn child. Wis.Stat. § 48.193.

         Plaintiff Tamara M. Loertscher filed this case when she was an expectant mother subject to a state-court child in need of protection or services order issued under the authority of Wisconsin's Children's Code, as amended by Act 292. Following a report of unborn child abuse, Loertscher was detained for several days in a hospital, and later incarcerated for contempt of the juvenile court for 18 days, until she signed a consent decree requiring her to submit to drug monitoring and treatment by county authorities. She gave birth in January 2015. Her consent decree has since expired, and all proceedings against her have terminated. But Loertscher persists in her challenge to Act 292, which she contends is unconstitutional both facially and as applied to her.

         Loertscher brings this case under 42 U.S.C. § 1983, which authorizes suits in federal court to redress violations of federal constitutional rights by state actors. Loertscher contends that the Act is void for vagueness and that it violates her substantive due process rights, procedural due process rights, First Amendment rights, Fourth Amendment rights, and right to equal protection. She asks this court to declare Act 292 unconstitutional and to enjoin its enforcement. Loertscher also seeks money damages from Taylor County for its hand in enforcing Act 292 against her.

         Now before the court are the parties' motions for summary judgment, which address each of the constitutional issues in the case. But the court will decide only two of these issues, which will dispose of this case.

         First, the court concludes that the Act is void for vagueness, and it will grant Loertscher's motion for summary judgment on that basis. At the heart of the Act are two concepts: “habitual lack of self-control” and “substantial risk to the physical health of the unborn child.” Both concepts are essential components of the jurisdictional and substantive standards in the Act. But, for reasons explained in this opinion, neither of these concepts is amenable to reasonably precise interpretation. Thus, the Act affords neither fair warning as to the conduct it prohibits nor reasonably precise standards for its enforcement. The court will enjoin enforcement of the Act statewide. Because Loertscher will get the injunctive relief she requests as a result of this ruling, the court need not reach the other difficult constitutional questions raised by the parties' motions. The Act's other potential constitutional problems may be ameliorated if its jurisdictional and substantive standards are drawn with adequate clarity.

         Second, the court will grant summary judgment in favor of the County as to Loertscher's claim against it under Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). Loertscher has failed to show that the manner in which the Act was enforced against her can be traced to decisions by the County itself. As a consequence of this decision, Loertscher is not entitled to monetary damages.


         Except where noted, the following facts are undisputed.

         A. The Act

         Under Wisconsin's Children's Code, the Department of Children and Families and county social service departments are responsible for protecting children who are being abused or neglected. If the county social service department deems it necessary, such a child may be the subject of a petition concerning a child in need of protection or services- commonly known as a CHIPS petition-filed with the juvenile court of that county. If the court grants the CHIPS petition, protective services may be ordered for the child. In severe cases, the child may be removed from the parents' home and placed in protective custody.

         In 1997, the Wisconsin Supreme Court held that Wisconsin's Children's Code did not authorize a juvenile court to exercise jurisdiction over an adult pregnant woman in connection with a CHIPS proceeding. See State ex rel. Angela M.W. v. Kruzicki, 209 Wis.2d 112, 561 N.W.2d 729 (1997). And so the legislature set out to change that, by passing 1997 Wisconsin Act 292 (the Act).

         1. Early reactions

         Before the legislature passed the Act, the Wisconsin Legislative Council warned the legislature that extending the Act to “all stages of pregnancy” would render its constitutionality “highly doubtful.” Dkt. 179-2, at 2 (emphasis in original). And the Wisconsin Division of Children and Family Services (now the Department of Children and Families), the Division of Public Health's substance abuse bureau, and the City of Milwaukee Health Department opposed the Act. Specifically, the DCFS feared that the Act would scare women away from treatment and vital prenatal care, and the City of Milwaukee Health Department opposed the Act in light of “the serious potential [the Act] has for reducing the length and quality of prenatal care in this state, thereby negatively affecting the health of mothers and children.” Dkt. 179-3, at 2. Both organizations were concerned that “a criminal justice approach to maternal and child health is not the best alternative, that it is destructive, and that readily available drug and alcohol treatment for expectant mothers would be preferable to threatening mothers with incarceration and loss of paternal rights.” Dkt. 218, ¶ 35.

         Regardless of the foregoing, the legislature passed the Act, and it went into effect in June 1998.

         2. The specifics

         The Act grants juvenile courts jurisdiction over “an unborn child” and the “expectant mother” when the 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 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.” Wis.Stat. § 48.133. The Act extends various aspects of the Children's Code to unborn children in need of protection or services; the court will highlight a few. The Act allows those who enforce it to take a pregnant woman into custody. § 48.193. The Act allows those who enforce it to hold a pregnant woman in custody if there is “probable cause to believe that the adult expectant mother is within the jurisdiction of the court, ” and to believe that the woman “is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.” § 48.205(1m). The court may appoint a guardian ad litem to “advocate for the best interests of” the unborn child and “[m]ake clear and specific recommendations to the court concerning the best interest of the . . . unborn child at every stage of the proceeding.” § 48.235(3). The court may order a pregnant woman to submit to inpatient alcohol or drug treatment. § 48.347.

         The Child Protective Services Access and Initial Assessment Standards (CPS Standards), drafted by the Department of Children and Families, guide child protective services caseworkers when they screen, investigate, and assess reports of child abuse. The standards provide that an agency that receives a report of unborn child abuse must document the report and make a screening decision-i.e., whether to dismiss the report or pursue it. The screening standard is whether there is reasonable suspicion that the woman is pregnant, that her behavior indicates “a habitual lack of self-control . . . in the use of alcohol, controlled substances or controlled substance analogs to a severe degree, ” and that the abuse could cause physical harm to the unborn child or a risk of serious harm to the child when born. Dkt. 169-1, at 23.

         After a report is screened in, the case is assigned to a county initial assessment worker for investigation and assessment. The individual will gather the following information from the reporter:

Verification of pregnancy or information to support that the woman or girl is pregnant and, if possible, what month of the pregnancy she is in.
A description of the substances and quantity of substances she is alleged to be using.
A description of the behaviors that lead the reporter to believe that the expectant mother is demonstrating a habitual lack of control or that her substance abuse is exhibited to a severe degree.
The history of her substance abuse, treatment received and previous children who were born with the effects of alcohol or other drugs used during pregnancy.
A description of the prenatal care the expectant mother is receiving, if any, and the name of the doctor and medical clinic where she receives services.
A description of the expectant mother, highlighting individual functioning and her parenting practices, if other children are residing in the household.

Id. at 16.

         B. County enforcement of the Act

         The CPS program is state supervised and county administered in 71 counties, including Taylor County. The CPS Standards are designed to control county-level decisions as employees navigate unborn CHIPS (UCHIPS) reports from beginning to end. Between 2005 and 2014, 3, 326 reports of unborn child abuse were “screened-in” under the Act, and 467 of those reports were substantiated.

         C. Loertscher's experience

         In 2014, Loertscher was 29 years old and living in Taylor County, Wisconsin. Loertscher had radiation treatment in her teens that left her without a functioning thyroid: she suffers from hypothyroidism and cannot produce thyroid hormones without medication. When she does not take her thyroid medication, Loertscher experiences severe depression and fatigue. Loertscher believed that her hypothyroidism would make it difficult, if not impossible, for her to get pregnant.

         Loertscher was unemployed in February 2014, which left her unable to pay for her thyroid medication. And so she sank into depression. In late February or early March 2014, Loertscher began using methamphetamine two to three times per week to “help her get out of bed in the morning.” Dkt. 218, ¶ 74. Loertscher was also using marijuana at that time.

         1. Loertscher's pregnancy

         In early July 2014, Loertscher suspected that she might be pregnant, took a home pregnancy test, and received what appeared to be a positive result. Yet Loertscher continued to use methamphetamine. Loertscher took a second pregnancy test on July 30, received a positive result, and “believed for the first time that she might actually be pregnant.” Id. ¶ 84. (Defendants dispute that Loertscher did not believe that she was pregnant until then, pointing to Loertscher's admissions to medical staff that she had “cut back” her drug use after taking the first pregnancy test and that she knew that she was taking illicit drugs while pregnant.)

         Two days later, Loertscher went to the Taylor County Department of Human Services (TCDHS) to confirm her pregnancy and to receive treatment for her thyroid condition. TCDHS personnel told Loertscher to go to the Eau Claire Mayo Clinic Hospital emergency room, and she did. When she arrived, Loertscher explained that she needed medical and psychiatric care, that she believed that she was pregnant but wanted confirmation, and that she wanted to make sure that her baby was healthy. Loertscher provided a urine sample, and testing revealed a positive pregnancy and “unconfirmed positives” for methamphetamine, amphetamine, and THC (marijuana). The emergency room doctor told Loertscher that drug use is bad for a baby, and Loertscher indicated that she wanted to stop. Loertscher wanted to have a healthy baby and to take care of herself.

         That evening, Loertscher was voluntarily admitted to the Mayo Clinic Behavioral Health Unit. The next morning, Mayo Clinic personnel gave Loertscher the thyroid medication she needed. A psychiatrist informed her that her thyroid stimulating hormone levels were very high and that healthy thyroid function was important to ensure a healthy pregnancy. The psychiatrist asked Loertscher about her past drug use, and Loertscher stated that she had been self-medicating with marijuana and, primarily, methamphetamine. Loertscher emphasized that she had been using the drugs before she knew that she was pregnant. (Again, defendants dispute this point, pointing to medical records from that time that indicate that Loertscher knew she was pregnant as she continued to use drugs.)

         Later that evening, Loertscher met with Jennifer Bantz, an obstetrician at Mayo. Bantz showed Loertscher ultrasound images of her fetus and told her that the baby looked fine. Bantz asked Loertscher about her alcohol use, and Loertscher explained that she drank a small amount of alcohol during her pregnancy, before she knew she was pregnant.

         Loertscher's medical records from that time indicate that she “has polysubstance abuse, ” that she cut back her methamphetamine use to “perhaps once or two times a week” after “she found out that she was pregnant, ” and that she suffers from methamphetamine dependence, marijuana dependence, and alcohol abuse. Dkt. 184-7, at 36-37, 39.

         2. Mayo reports Loertscher to the County

         Two days later, on August 4, while Loertscher was still in the hospital, Corinna Everson, a Mayo social worker, contacted the TCDHS to report that Loertscher was three months pregnant, had tested positive for methamphetamine, amphetamine, and THC, had “used alcohol during her pregnancy as well, to the point of blacking out, ” and had confirmed that she had used drugs while pregnant. Dkt. 169-4, at 6. Everson reported that a Mayo physician had stated that Loertscher's behavior was putting her fetus in serious danger of harm.

         TCDHS employees “screened” the Mayo report that day. An intake worker screened in Loertscher's case and assigned it to TCDHS social worker Julie Clarkson. The intake worker did not contact a physician or review Loertscher's medical records when she decided that the County would investigate and assess the report.

         Clarkson began her investigation by contacting Everson to gather more information. Clarkson's notes indicate that Loertscher had been diagnosed with “Major Depressive Disorder with Recurrent psychosis-NOS, meth dependence, marijuana dependence and alcohol abuse, ” although it is unclear where Clarkson got that information. Id. at 12. At 12:30 that afternoon-August 4, 2014-Clarkson, TCDHS Deputy Director Liza Daleiden, and Mike Sanderson (an Alcohol and Other Drug Abuse counselor) decided to recommend that Loertscher be placed in an inpatient treatment facility.

         Clarkson continued her investigation to substantiate the alleged abuse. Applicable state guidelines from the Department of Children and Families instruct child protective services caseworkers to gather information regarding (1) “[t]he unborn child's fetal development as reported by a physician”; (2) “[t]he expectant mother's current use of substances and the impact it is having on her, the unborn child and, when applicable, other children in her care”; and (3) “[a]ny substance abuse history and treatment, criminal history, and, when applicable, any history of other children born with the effects of alcohol or other drugs used during pregnancy.” Dkt. 179-8, at 5-6. Clarkson requested Loertscher's medical records from Mayo, which stated that she had “polysubstance abuse, ” that she used methamphetamine daily but decreased her use to “perhaps once or two times a week” after she “found out that she was pregnant, ” and that she knew she was pregnant when she continued to use methamphetamine. Dkt. 184-7, at 36-37, 42. (Loertscher disputes this and maintains that she did not know, for sure, that she was pregnant when she was using.)

         At 3:20 p.m., Clarkson called Loertscher and informed her of the open investigation. Clarkson told Loertscher that if she did not agree to voluntarily receive AODA treatment, the TCDHS may request to take Loertscher into temporary physical custody. Around 40 minutes later, County personnel had completed a temporary physical custody request.

         That same day, Loertscher met with a hospital social worker. After, Loertscher told hospital staff that she did not want to speak with the social worker again, “because the social worker had been judgmental and unhelpful.” Dkt. 218, ¶ 128. Loertscher then told staff that she wanted to leave. But a nursing manager told Loertscher that she could not leave because there was a “hold” on her. In the meantime, the County had appointed a guardian ad litem (GAL) to act on behalf of Loertscher's fetus.

         3. Temporary ...

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