SUMMARY: The statutory requirement of newborn blood-testing does not violate the free exercise of religion provisions under the Nebraska Constitution; however, the juvenile court did not have jurisdiction because evidence of the lack of blood testing alone is not sufficient to find the child within the meaning of 43-247(3)(a).
Joel Anaya, DOB 9/2/07, is the child of Josue Anaya and Mary Anaya. On September 18, 2007, DHHS sent a letter to the parents informing them of the statutory requirement of newborn screening under Neb. Rev. Stat. 71-519 to 71-524. The screening test is given to all infants within 48 hours and tests for 8 metabolic and genetic disorders. DHHS also phoned the mother, who informed them that she would not have the newborn screening completed for Joel. On October 10, 2007, a petition was filed under 43-247(3)(a) alleging Joel lacked proper parental care due to the refusal to submit Joel for the newborn screening test. The court issued an ex parte order for immediate custody of Joel. The child was taken into custody on October 11, 2007. At the protective custody hearing on October 12, 2007, evidence was received from Dr. Richard Lutz who testified that although the child was now 6 weeks of age and most conditions would be apparent by that age, the blood test was still relevant because some ailments do not present for months or years after birth. DHHS had no other safety concerns about Joel’s care by the parents. The court adjudicated Joel under 43-247(3)(a). The newborn screening test returned negative on October 16, 2007, and Joel was returned home on October 17, 2007. The Supreme Court accepted the case under the public policy exception to the mootness doctrine, but ultimately dismissed the appeal.
The Nebraska Supreme Court affirmed the juvenile court’s rejection of the claim of the statute’s infringement of the free exercise of religion under the Nebraska Constitution. The Court determined the proper scrutiny of the statute to be the rational basis standard. Under this standard, the Court found that the statute to be neutral with general applicability, and that there was a rational basis for it, namely to protect the health and welfare of all Nebraska children.
Regarding jurisdiction of the juvenile court, the Nebraska Supreme Court held that although refusal to allow a child to get the newborn screening could be a factor in proving the child falls within 43-247(3)(a), “the fact of failure to test under the newborn screening statutes, standing alone, does not establish neglect.” 276 Neb. at 838. It noted that “[w]hile the State need not prove that the juvenile has actually suffered physical harm, our cases make clear that at a minimum, the State must establish that without intervention, there is a definite risk of future harm.” Id. In this case, the Court held that the State failed to prove that imminent harm existed to warrant removal from the home or to adjudicate the child under 43-247(3)(a) as there were no other safety concerns and the only testimony received as to the newborn screening was that some conditions could still be detected at 6 weeks.