The Nebraska Injury Law Report

The case of 6 week-old Joel Anaya being seized from his nursing mother’s arms piqued the interest of “the nation’s most listened to radio host.”

Rush Limbaugh featured the Anaya case on his October 30, 2007 morning update.

Rush’s Morning Update: Seized!
October 30, 2007

Six weeks ago, a Nebraska couple became first-time parents. However, their religious beliefs ran afoul of a Nebraska law requiring all newborn infants to receive a mandatory blood test to screen for several diseases. They refused the test. So sheriff’s deputies seized the newborn, allowed health workers to draw and screen the blood — then placed the infant into foster care for almost a week, waiting for the results.

According to a Department of Health and Human Services spokes-babe, this was the first time in Nebraska that an infant has been seized. While other states have similar laws on the books, four states — South Dakota, Michigan, Montana, and Nebraska — don’t offer religious exemptions.

The baby tested okay, and is now back home with the parents. But the parents’ attorney, Jeff Downing, says it’s “a classic case of the government overreaching and violating a family’s constitutional rights.” Although the family isn’t seeking damages — they want to ensure this won’t happen again.

Put aside for the moment whether you agree or disagree with the parents on blood tests. What oughta chill you to the bone is what this incident represents. If government officials won’t hesitate to seize a newborn — imagine what they’ll do with you … should you make a decision they don’t like.

The more power you cede to the government over your health care, the less freedom you and your family have — over your own health, and your own life.

Keating, O’Gara’s Jeff Downing, attorney for the Anaya family, was then interviewed in depth by Rush during the second hour of his program:

RUSH: To the phones, Lincoln, Nebraska. Jeff, thanks for the call, sir. It’s nice to have you here.

DOWNING: Rush, Cornhusker dittos from the reddest of the red states.

RUSH: Thank you, sir.

DOWNING: It just so happens, Rush, that I heard the Morning Update this morning, and it’s one of my cases that you had an outstanding commentary on.

RUSH: Thank you, sir.

DOWNING: Well, it regards the Nebraska Newborn Screening Program, one of our Nanny State provisions in the law which requires that babies have a heel stick, and five drops of blood are put on some paper, and then the state screens for one of eight inherited metabolic genetic disorders.

RUSH: Such as…?

DOWNING: Such as things like a PKU, cystic fibrosis, hemoglobinopathy, like sickle cell diseases, and so on. These are things which are inherited. They’re incredibly rare, usually one in 10,000, one in 30,000, but nonetheless, our state — along with most other states — have these mandated screening programs. Unfortunately, Nebraska doesn’t have an opt-out provision, and so I, unfortunately, had some clients who, in declining doing the newborn screening after a home birth, were the victim of the Nanny State run amok.

RUSH: Yeah, let me briefly tell the story here because who we’re talking to, you’re Jeff Downing, correct?

DOWNING: Correct.

RUSH: You’re the parents’ attorney.

DOWNING: That’s right.

RUSH: The parents’ — I guess it’s for religious reasons?

DOWNING: Yeah, exactly.

RUSH: Decided that they didn’t want the screening done on their child, and so the state came in and took the kid.

DOWNING: Exactly.

RUSH: The state came in, took the child and tested anyway and put it in foster care, an infant, for a week!
(more…)

Media outlets across the U.S., Canada, and the UK are covering the story of Baby Joel Anaya who was seized from his nursing mother’s arms due to the family’s objections to Nebraska’s Newborn Screening program.

ABC News

Forbes

The Los Angeles Times

The Philadelphia Inquirer

The Miami Herald

Canadian television (CTV)

Canadian Newspapers (Ottawa Recorder)

United Kingdom’s The Guardian

Con M. Keating and Gary J. Nedved Named Super Lawyers**

Con M. Keating and Gary J. Nedved have been listed in the Great Plains Super Lawyers 2007®.  Super Lawyers recognizes outstanding lawyers from more than 60 practice areas who have attained a high degree of peer recognition and professional achievement. Only the top 5% of attorneys in each state are identified, as chosen by their peers and through the independent research of Law & Politics.

Con Keating was selected in the “Alternative Dispute Resolution” category for his outstanding work in the areas of mediation and arbitration. After trying cases on behalf of plaintiffs and the defense for 30 years, Con is now one of the most seasoned and respected mediators in Nebraska. 

Gary Nedved was selected as a Super Lawyer in the “Plaintiff Personal Injury” category. Mr. Nedved has tried more than 100 jury trials and helped hundreds of injured people find justice. As a result of his vast trial experience, Gary has been inducted into a number of prestigous organizations including the American College of Trial Attorneys and the American Board of Trial Advocates.

The objective of Super Lawyers 2007®is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource to assist attorneys and sophisticated consumers in the search for legal counsel.

Super Lawyers are evaluated on 12 indicators of peer recognition and professional achievement. Lawyers are not allowed to pay a fee to be listed.

**Disclaimer: the designation of “Super Lawyer” is not meant to be a representation of ability nor a guarantor of results. This website is an advertisement of Keating, O’Gara, Nedved & Peter, P.C., L.L.O.

The Lincoln Journal Star has editorialized on Keating O’Gara’s most recent victory against the City of Lincoln on behalf of homeowners who, due to the city’s negligence, built homes in a flood plain.

From the October 26th Lincoln Journal Star editorial page:

City foul-up on flood plain is inexcusable
Friday, Oct 26, 2007 - 12:13:51 am CDT

The case of the Lincoln homeowners who unknowingly built in a flood plain is alarming.

The findings in the case erode public confidence in the basic competence of Lincoln city government.

As disclosed in court, the homeowners in the Cardwell Woods subdivision relied on information supplied by city officials that their lots were above the flood plain.

It turned out that city officials had misplaced a flood plain map, according to court testimony. “… no one in the Building and Safety Department has been able to explain where it went or why it was removed,” wrote Lancaster County District Judge Steven Burns.

Burns ruled that the city was negligent for not accurately informing homeowners about the flood plain when building permits were issued.

A two-day trial is set for January to determine monetary damages. They could run into millions.

Any homeowner can easily empathize with Troy Stonacek, who learned in May 2005 that the lowest floor of his home was seven feet below the flood plain. Only the top floor and the garage were above it. “I was furious,” Stonacek said.

In granting the building permits, officials in city government’s Building and Safety Department used an old Federal Emergency Mangement Agency map. They should have used a state Natural Resources study of the area that was completed and submitted to the city in January 1997.

The new map showed a flood plain elevation seven feet higher than the old map.

Its accuracy was demonstrated in May, when a downpour left four inches of water in homeowner George Bristol’s basement and a pond more than three feet deep lapping at the patio door.

The city mounted a defense against the lawsuit filed by the unhappy homeowners but lost in what appears to be an open-and-shut case.

Now the city should let the public know what steps it has taken to avoid repeating this dreadful error. An elementary mistake like this should never happen again.

Keating, O’Gara has filed a federal civil rights lawsuit (viewable here: amended-complaint.pdf) to vindicate the rights of the Anaya family of Omaha.

On October 11, 2007 without warning or notice, the State of Nebraska removed baby Joel Anaya, then just 5 weeks and 4 days old, from the family home even though there were no emergent medical circumstances.

From The Guardian:

Suit Says Baby’s Seizure Violated Rights
By ANNA JO BRATTON
Associated Press Writer

OMAHA, Neb. (AP) - A Nebraska couple sued state health officials Thursday, arguing their rights were violated when their newborn baby was seized by sheriff’s deputies so a mandatory blood test could be performed.

Joel Anaya, who was almost 6 weeks old, was kept in foster care for six days until the tests came back negative earlier this month.

His parents, Mary and Josue Anaya, believe that the Bible instructs against deliberately drawing blood and that ignoring that directive may shorten a person’s life. State health officials “conspired to deny the Anayas their rights of due process, and to seize and test baby Joel without notice or a hearing in district court,” according to the filed in U.S. District Court in Omaha.

“This is a classic case of the government overreaching and violating a family’s constitutional rights,” said Jeff Downing, the couple’s attorney.

The Anaya family is not seeking damages, but they want to ensure that this won’t happen again if they have more children.

It’s the first time in Nebraska a child was taken from parents to draw the drops of blood from the baby’s heel for the screening, said Marla Augustine, spokeswoman for the state Department of Health and Human Services. Nebraska is one of four states - South Dakota, Michigan and Montana are the others - that doesn’t offer a religious exemption for parents who don’t want the test performed.

Health officials say the newborn screening program is one of the state’s most cost-effective public health programs. The newborn blood test - usually performed within 48 hours of birth - screens for dozens of rare diseases, some of which can cause severe mental retardation or death if left undetected.

Last year, out of 26,819 babies tested, 537 tested positive for one of the dozens of diseases, and 43 of those results were confirmed, according to the state’s Newborn Screening Program.

Augustine said Thursday that state officials had not seen the lawsuit and would have no comment.

The decision to seize Joel Anaya and test him was made by Douglas County prosecutors who have said they only did what was necessary to protect the baby’s health.

When the Anayas’ daughter Rosa was born in 2003, a hearing was held in Douglas County District Court and the couple voiced their objections. The state Supreme Court eventually turned down their arguments, but Rosa never was tested.

This time, the county wanted to make sure the testing was completed, said Nicole Brundo Goaley, a deputy Douglas County Attorney. So the county got an order from a juvenile court judge to test the baby.

Sheriff’s deputies came Oct. 11 to take the child, who remained in foster care until tests came back Oct. 16. During that period, social workers let Mary Anaya nurse her son several times a day.

Scott Voorhees of KFAB Radio interviews Mary Anaya and attorney Jeff Downing here.

Keating, O’Gara attorney Gary J. Nedved’s latest court victory was featured prominently in this week’s Sunday Journal Star:

Lost flood map could cost city millions
By CLARENCE MABIN / Lincoln Journal Star
Sunday, Oct 21, 2007 - 12:06:30 am CDT

For Brad and Jennifer Sheaff, it once was the home of their dreams.

A spacious, four-bedroom, ranch in the peaceful, secluded Cardwell Woods subdivision, where many of the houses top $500,000 in value. What more could a couple with two young children want?

“You can walk into a house and say, ‘This just feels right,’” said Jennifer Sheaff. “Well, that’s the way it was for us. It just felt right. It was our dream house.” .

But no more.

For the Sheaffs, who bought a one-acre lot eight years ago, and at least two other couples in the development near a tributary of the Cardwell Branch Stream, the dream was shattered in May 2005.

That’s when government officials told the families at a meeting that their homes were in a flood plain.

“I was furious,” recalled Troy Stonacek, a neighbor who also attended the meeting.

The lowest floor of his home, he learned later, was some seven feet below the flood level. Only the top floor and garage were above it.

“I was thinking there was no way this could be happening,” Stonacek said. “We would not have built here had we known about a flood plain.”

The revelation prompted the Stonaceks, the Sheaffs and George and Lori Bristol to sue the city in Lancaster County District Court.

After a bench trial last summer, Lancaster County District Judge Steven Burns ruled last month that the city was negligent for not informing the families about the flood plain when it issued building permits.

A two-day trial before Burns is set to begin in January to determine monetary damages.

If the homeowners get all they want — the replacement value of their houses — damages could easily top $1 million.

“I don’t think I’m too far off to say my home is worth basically zero,” said George Bristol.

“Who would buy a home in a flood plain? And even if you could find such a person, no lending institution would give them the money.”

City Attorney Dana Roper declined comment last week because of the pending damages trial.

The families’ attorney, Gary Nedved of Lincoln, said officials at the May 2005 meeting included representatives from the state Department of Natural Resources and the city of Lincoln.

“That was the first time my clients learned they were below the flood plain,” he said. “We believe there’s been a significant devaluation of their homes.”

Nedved argued — and Burns, in his September written judgment, agreed — that the city knew well before 2005, indeed before the families purchased the lots, that the area was in a flood plain.

A state Natural Resources study of the area, completed and submitted to the city in January 1997, showed a flood-elevation level of 1,208 feet, Burns wrote.

Nedved said the level is some seven feet higher than the estimated flood elevation for the area described in an older Federal Emergency Management Agency map used by the city’s Building and Safety office.

He said trial testimony showed city employees put the Natural Resources map in the Cardwell Woods file at the Building and Safety office.

Nevertheless, Nedved said, when the families received building permits from the office — between 1998 and 2003, according to Burns’ written judgment — each was given a flood plain elevation based on the older, and inaccurate, FEMA map.

Nedved did not claim at trial that Building and Safety employees intentionally misled the families. Rather, he said, the Natural Resources map had somehow gotten lost at the office.

“I can’t speculate,” he said. “I can say it was lost. I can’t say who lost it, or how.”

At trial, the city argued — among other things — that it had no legal obligation to the families. It also contended it was immune from the claims because whether or not its employees disclosed the Natural Resources map to the plaintiffs was a “discretionary act” and, thus, protected by tort law.

Burns rejected both arguments.

He said the city’s own ordinances require the Building and Safety office to get flood plain information from the state Natural Resources Department and “reasonably utilize” the data.

And, he said, the city presented no evidence that nondisclosure of the Natural Resources data was a discretionary act.

“There is simply no evidence to suggest there was any policy decision made in this regard,” he wrote. “Quite the contrary is true.

“At some point the (Natural Resources) Map was removed from the Cardwell Woods Subdivision file,” he continued, “but no one in the Building and Safety Department of the City has been able to explain where it went or why it was removed.”

Burns also dismissed the city’s assertion that the statute of limitations barred the plaintiffs’ claim.

He said the clock started to tick in December 2004, when the U.S. Geological Survey began remapping the area. The plaintiffs had to file suit within two years of the date, and they did, Burns wrote.

Stonacek said the statute of limitations will probably keep others in the area from filing similar lawsuits. The flood plain contains the seven houses — including the homes of the three plaintiff families — in the Bobcat Circle cul-de-sac, one of four that make up Cardwell Woods.

According to Stonacek, at least one other area resident — not a Bobcat Circle homeowner — is considering a lawsuit arguing a diminished property value because of the city’s negligence. That resident could not be reached for comment.

For Stonacek and the other plaintiffs, the flood plain poses a grim reality.

“It means there’s a 95 percent chance of being flooding out over the life of a 30-year mortgage,” said Stonacek, who, like George Bristol, has all but immersed himself in the science of hydrology in the past couple of years.

“It’s been frustrating dealing with the city,” said Stonacek, who valued his home at about $600,000. “It leaves a real sour taste in our mouths.”

On May 5 of this year, the families got a taste of how bad things could get.

A little more than three inches of rain fell in about an hour, leaving four inches of muddy water in the Bristols’ basement and a pond some 40 inches deep at the family’s patio door, he said.

“Short of spending millions and millions of dollars to build a levee, which the city is not going to do, the only way to help us out is to get us out of the flood plain,” said George Bristol, who said he paid $317,000 for his home in 2003.

Brad Sheaff said the city’s mishandling of the flood plain maps has made him a skeptic.

He said the Lancaster County assessor’s office recently appraised his house at about $509,605. Sheaf said he protested the valuation and his home was revalued at $430,330. But, he said, it would cost more than even the higher value to build the same home elsewhere.

“I’m concerned about the integrity of the city,” Sheaff said. “The city provided us with information about the flood plain. It turned out to be wrong.”

Sheaff’s home escaped damage from the May 5 rain, but he worried he might not be so fortunate next time.

“This is our house, our dream home,” he said. “We trusted the city, and we were wrong to do so.”

If you have been injured due to the negligence of another, call Keating, O’Gara, Nedved, & Peter at 888/234-0621 or fill out the “Contact Us” form in the upper left-hand portion of this page. Your first consultation is free.

This beautiful family, the Anayas of Omaha, was torn apart October 11th when baby Joel, age 6 weeks, was removed from the family home by the Department of Health and Human Services with the assistance of three armed deputies.

The officers were acting on an ex parte court order because baby Joel’s parents, Josue and Mary Anaya, have faith-based objections to Nebraska’s Newborn Screening program which requires that blood be drawn for testing.

Jefferson Downing of Keating, O’Gara, Nedved & Peter is representing the Anaya family.

Nebraska’s program screens for nine very rare genetic diseases. The presumptive positive rate for the newborn screens in 2006 was less than 1/4 of 1 percent. The percentage of confirmed positive cases was even lower.

Baby Joel is back home now but only after going through six days of traumatic separation from his family and the blood draw procedure which deeply offended the parents’ faith and conscience.

From the Omaha World Herald:

Baby is now home from foster care
BY JENNIFER PALMER
WORLD-HERALD STAFF WRITER
October 17, 2007

Baby Joel Anaya was welcomed home Tuesday into his mother’s arms. And his father’s arms. And his sister’s. And his brother’s. And another sister’s. And another brother’s.

In fact, all nine of Joel’s siblings held, kissed or otherwise fawned over the 6-week-old brother they hadn’t seen since he was whisked into foster care last week.

“Finally, he’s home,” said older brother John Anaya. “He should have never left.”

The family of 12 piled onto a small couch for a photograph of the happy moment, with the baby in the center. Not having Joel “has been very stressful for the family,” said Josue Anaya, their father.

Despite the objections of Josue Anaya and his wife, Mary, Joel’s blood was drawn Friday and screened for medical conditions, as required by state law. The tests screen for a variety of conditions, including cystic fibrosis and sickle cell disease, which could lead to mental retardation or death.

Joel had been in state custody since Oct. 10 when a petition was filed in Douglas County Juvenile Court, alleging the Anayas put their son at risk by not having him screened.

Following a court order, Joel remained in foster care until the preliminary test results were received Tuesday. The Anayas were then reunited with their son, and prosecutors dismissed the case.

Joel’s parents say they object to the testing because of their religious beliefs and conscience. They believe in certain Scriptures that say life is in the blood.

Attorney Jeff Downing, who represents the Anayas, said it was appalling that Joel’s blood was drawn before the Anayas had an opportunity to appeal the judge’s decision.

“We can’t undo what was done,” Downing said. “But from a legal standpoint, we have a right to appeal.”

They are considering filing an appeal, either in Douglas County District Court or the Nebraska Court of Appeals, he said.

Judge Elizabeth Crnkovich was not looking out for the child’s best interests in Friday’s court hearing, Downing said, criticizing her comment that it was inappropriate to allow Mary Anaya the frequent visits needed to breastfeed Joel at every meal.

Not allowing Mary Anaya to consistently breastfeed Joel during the critical first few weeks of attachment put him at greater risk than the chance that he had one of the diseases being screened for, Downing said.

Mary Anaya, 40, said she will keep pushing for Nebraska to adopt an exception to the state-mandated testing, for the sake of her children and the grandchildren she hopes to have in the future.

Most states provide some sort of exception for people who object to the blood tests based on “religious” or “sincerely held” beliefs. Nebraska has no such provision.

Joel was born at home. Workers with the Nebraska Health and Human Services Department routinely cross-check a database of newborns who have had the screening with birth certificates issued. In Joel’s case, a worker noticed the boy had a birth certificate but had not been screened.

The HHS worker first sent the Anayas a certified letter informing them that their baby needed to be screened in accordance with state law. She also called Mary Anaya, congratulated her on her new baby and asked if she planned to have the baby screened, according to court testimony.

Mary Anaya said she did not. Then the worker asked Mary if she knew what would happen next. Mary said, yes, we’ve been through this before.

The Anayas previously fought a court order that required that the testing be done on their daughter Rosa. But in 2005, the Nebraska Supreme Court upheld the order to have the testing performed. In that case, Rosa remained in the Anayas’ custody while the case was being argued.

So when sheriff’s deputies arrived Oct. 10 to take Joel into state custody, it was a complete shock, Mary Anaya said. She expected to be summoned to court, but she didn’t expect her child to be placed in foster care.

In court Friday, Mary Anaya explained that part of her objection to the blood screening is she doesn’t believe in inflicting pain on a healthy infant. She also said the Bible talks about how life is in the blood. “To me, the blood is something important and not to be tampered with lightly,” she told the court.

Mary Anaya declined to discuss her religious beliefs in detail Tuesday because she said she feared others might mock them. Anaya and her husband are ordained ministers. They also are administrators of the Mission for All Nations food and clothing pantry in Omaha.

They have avoided having the metabolic screening done on most of their 10 children, who now are ages 21 years to 6 weeks.

Every parent chooses the risks they are or are not willing to take with their own children, she said, adding that she won’t allow her son to play football because of the risk he could be injured.

In an earlier proceeding the Court not only ordered the blood draw but placed restrictions on Joel’s ability to be nursed by his mother–the only form of hydration and nutrition he has known in his young life:

Omaha court case widens from screening test to baby’s meals
BY JENNIFER PALMER
WORLD-HERALD STAFF WRITER
October 13, 2007

A judge ordered that 6-week-old Joel Anaya, whose hungry cries interrupted Friday’s court hearing, be administered the state-mandated newborn screening test his parents object to and remain in foster care until the test results are received, despite the mother’s wishes to continue nursing the boy.

. . . Earlier in the hearing, Mary Anaya, who has been visiting her son several times a day in foster care to breastfeed, cringed when she heard him crying from outside the courtroom.

Dressed in a conservative black suit, she told the judge her convictions prevented her from swearing, so instead she “affirmed” to tell the truth before taking the stand. During her testimony, she answered questions about her son’s feeding habits. “Do you nurse your baby?” her attorney, Jeff Downing, asked.

“Yes,” she replied.

“How many times per day?”

“Eight or nine times,” she said.

“If I said someone came in and said the baby needs nursed, this would be about the right time, wouldn’t it?”

Interrupting, Crnkovich said the line of questioning was inappropriate and briefly talked to the attorneys in private.

She then left the courtroom, and when she returned, she quipped, “It has come to the court’s attention . . . that the child is hungry and needs to be fed.”

She ordered workers with the Nebraska Health and Human Services Department to take the baby out of the courthouse, feed him, and not bring him back.

She later added, “I don’t approve of Mom popping in (to the foster home) nine times a day to nurse.”

The hearing continued with Mary Anaya on the stand.

When asked what her objection to the testing was, Anaya said the Bible states that life is in the blood. “To me, the blood is something important and not to be tampered with,” she said.

Anaya and her husband are ordained ministers and administrators of the Mission for All Nations food and clothing pantry in Omaha. They take their faith very seriously and are raising their children according to those beliefs, Anaya told the court.

But after the hearing, crying in a courtroom hallway, Mary Anaya seemed more concerned about her son being fed than the testing being done.

“This is inhumane — to deny my right to feed my baby,” she said, distraught over where her baby had been taken.

The Anayas have 10 children aged 21 years to 6 weeks. They have avoided having the metabolic screening done on most of their 10 children.