State of Wisconsin ex rel. Angela M.W. v. Kruzicki

Angela M.W. (defendant) was a pregnant Wisconsin resident who did cocaine and other drugs while she was pregnant, including after her fetus was viable. When Angela tested positive for several months in a row, declined drug treatment, and rescheduled and failed to attend a subsequent medical appointment, her obstetrician contacted authorities to report the concerns regarding serious physical harm to Angela’s fetus if Angela did not stop using drugs. The Waukesha County Department of Health and Human Services (the department) filed a motion to take Angela’s unborn baby into custody. In the motion, the department sought an order to remove the unborn baby from the baby’s present custody and place the baby in protective custody. A juvenile court issued an order providing that Angela’s unborn child was to be detained under § 48.207(1)(g) of the Children’s Code, Chapter 48, and be transported to the hospital for treatment and protection. This detention would, of necessity, cause Angela’s detention as well. The department also filed a child-in-need-of-protection-or-services petition under § 48.13(10). Angela filed a writ of habeas corpus and a supervisory writ in an appellate court to stay any further juvenile court proceedings and to dismiss the child-in-need-of-protection-or-services petition because Chapter 48 did not give the juvenile court jurisdiction over Angela or her viable fetus. The appellate court denied both of Angela’s writ petitions. The appellate court affirmed, ruling that a viable fetus was considered a person under § 48.13(10)’s definition of the word child. Under § 48.02(2), a child was defined as a person who had not reached 18 years of age. Angela sought review, asserting that the word child meant a person who was born alive. In contrast, the department asserted that the words child and person were ambiguous. After determining that the terms were ambiguous, the Wisconsin Supreme Court (the court) interpreted the statute to determine whether Wisconsin’s legislature intended a viable fetus to be included in Chapter 48’s definition of a child. The court noted that the legislative history was silent on the issue, and there was no record of debates about the issue in news accounts. Reviewing the relevant statute in context with other parts of Chapter 48 suggested that the word child referred to one who had been born. Additionally, despite recently amending Chapter 48, the legislature did not take any action to directly provide that a fetus was a child.