In re Interest of Anaya

• Decision Date: 05 December 2008
• Docket Number: No. S-07-1136.,S-07-1136.
• Parties: In re INTEREST OF Joel ANAYA, a child under 18 years of age. State of Nebraska, Appellee, v. Josue Anaya and Mary Anaya, Appellants.
• Court: Nebraska Supreme Court

758 N.W.2d 10

276 Neb. 825

In re INTEREST OF Joel ANAYA, a child under 18 years of age.

State of Nebraska, Appellee, v. Josue Anaya and Mary Anaya, Appellants.

No. S-07-1136.

Supreme Court of Nebraska.

December 5, 2008.

Jefferson Downing and Joel Bacon, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., Lincoln, for appellants.

Donald W. Kleine, Douglas County Attorney, and Nicole Brundo Goaley, for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and SIEVERS, Judge.

MILLER-LERMAN, J.

NATURE OF CASE

In this appeal, appellants Josue Anaya and Mary Anaya claim that the newborn screening statutes, Neb.Rev.Stat. §§ 71-519 to 71-524 (Supp.2007), violate the free exercise of religion provisions found at article I, § 4, of the Nebraska Constitution. The Anayas also assert that the separate juvenile court of Douglas County erred in ordering that their son, Joel Anaya, be tested pursuant to those statutes and remain in the custody of the State of Nebraska pending the results of the testing. We conclude that the screening statutes are constitutional, and we further conclude that due to insufficient proof, the separate juvenile court did not have jurisdiction under Neb.Rev.Stat. § 43-247(3)(a) (Cum. Supp. 2006) and its orders were a nullity. However, because we conclude that the instant appeal is moot and because the above-stated determination is based on the public interest exception to the mootness doctrine, we dismiss the present appeal.

STATEMENT OF FACTS

The Anayas object to the State's enforcement of the newborn screening statutes with respect to their son, Joel. The newborn screening statutes require that every newborn in Nebraska have a blood test. See §§ 71-519 to 71-524. The screening test is administered to advise parents and physicians whether an infant suffers from any of the following eight metabolic and genetic disorders: congenital primary hypothyroidism, hemoglobinopathies, biotinidase deficiency, congenital adrenal hyperplasia, cystic fibrosis, phenylketonuria, medium-chain acyl co-a dehydrogenase (MCAD) deficiency, and galactosemia. 181 Neb. Admin. Code, ch. 2, § 003 (2005). The conditions are serious and, if untreated, could lead to mental disabilities, loss of hearing, loss of vision, irreversible brain damage, or death. The test involves obtaining a specimen of the infant's blood via a prick to the heel. Pursuant to the regulations established by the Department of Health and Human Services (DHHS), the test is to be performed within 24 to 48 hours of the infant's birth. 181 Neb. Admin. Code. ch. 2, §§ 005.04 and 008 (2005). The evidence indicates that the goal of the screening program is to have every child tested and treated within the first week of his or her life.

Joel was born at home on September 2, 2007. DHHS' newborn screening program staff was alerted to Joel's birth by reviewing registered birth certificates. Once alerted to an out-of-hospital birth, it is the practice of the newborn screening program staff to check the newborn screening data system to determine whether the child has been screened. Although it is not clear from the record when the newborn screening program staff learned of Joel's birth, the record shows that Krystal Baumert, a member of that staff, did such a check on Joel. When she determined that Joel had not been screened, she sent the Anayas a certified letter on September 18 notifying them of the requirement to have Joel submit to the newborn screening test. The letter stated that if the newborn screening program staff did not hear from the Anayas by September 21, it "[would] presume the screening has not been done, and must notify the County Attorney to initiate action pursuant to Nebraska Revised Statute § 71-524." Also on September 18, Baumert followed up the mailing with a telephone call to Mary inquiring whether the Anayas planned to have the screening test performed. Mary informed Baumert that they would not have Joel tested.

The newborn screening program staff notified the State that the Anayas refused to have Joel tested. On October 10, 2007, the State filed a petition for adjudication in the separate juvenile court of Douglas County under § 43-247(3)(a), alleging that Joel lacked proper parental care by reason of the faults or habits of his parents, the Anayas. The petition alleged that the Anayas' failure to submit Joel for the newborn screening test placed him at risk for harm. On that same date, the State also filed a motion for temporary custody pending a hearing on the petition and asked that Joel be placed in the custody of DHHS. Also on that same date, the court issued an ex parte order for immediate custody, finding that there was an immediate and urgent need for out-of-home placement of Joel for his protection and that DHHS had made reasonable efforts to prevent his removal from the family home. On October 11, when Joel was about 5 weeks old, he was removed from the family home and taken into the custody of DHHS.

The court held a formal hearing on October 12, 2007. At the hearing, the court received into evidence, inter alia, an affidavit in support of temporary custody of Joel sworn to by an employee of DHHS, the September 18 letter sent to the Anayas by Baumert, and a report from two DHHS employees to a deputy Douglas County Attorney; the report stated that after observing the Anayas' home environment, the DHHS employees had concluded that Joel appeared to be a healthy 6-week-old infant, and it recommended that Joel be returned to the Anayas' care pending the resolution of the newborn screening issue. The court also heard testimony from Dr. Richard E. Lutz, former chairman of the State of Nebraska Newborn Screening Advisory Committee; one of the DHHS employees who wrote the above-mentioned report; and the Anayas. Dr. Lutz testified that the testing of a child could still be relevant at 6 weeks of age because "[s]ome of these ailments don't become clinically relevant for weeks or months." Dr. Lutz cited MCAD deficiency as an example, stating that a patient may not "present" with that disease until he or she is 2, 6, or 9 months or 2 or 4 years of age. During the hearing, the Anayas stated that the taking of a blood sample from Joel was contrary to their sincerely held religious beliefs, and they unsuccessfully challenged the newborn screening statutes as violative of their right to the free exercise of religion under Neb. Const. art. I, § 4.

At the conclusion of the October 12, 2007, hearing, the court effectively found that Joel was a child as described under § 43-247(3)(a) and determined that Joel was at risk of harm and that it was necessary the newborn screening test be administered immediately. The court directed that Joel be tested and further directed that he remain in the custody of DHHS until the results of the blood test were known. The court later entered a written order memorializing its October 12 oral rulings.

There seems to be no dispute that on October 16, 2007, the results of the test came back negative and that Joel was returned to the Anayas' custody on that same day. The State moved to dismiss the case. On October 17, the court filed an order dismissing the case. The Anayas appeal.

ASSIGNMENTS OF ERROR

The Anayas assign numerous errors. Our disposition of the following two claimed errors resolves the case. The Anayas claim that the separate juvenile court erred when it (1) rejected their claim that the newborn screening statutes infringed upon their rights to the free exercise of religion under Neb. Const. art. I, § 4, and (2) found that the evidence was sufficient to adjudicate Joel as a child under § 43-247(3)(a) and ordered his continued detention after the blood specimen had been obtained.

STANDARDS OF REVIEW

Mootness does not prevent appellate jurisdiction. BryanLGH v. Nebraska Dept. of Health & Human Servs., 276 Neb. 596, 755 N.W.2d 807 (2008). But, because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, we have reviewed mootness determinations under the same standard of review as other jurisdictional questions. Id. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts. In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).

Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. Stenger v. Department of Motor Vehicles, 274 Neb. 819, 743 N.W.2d 758 (2008).

ANALYSIS

This Appeal Will Be Considered Under the Public Interest Exception to the Mootness Doctrine.

Before reaching the legal issues presented, we address the justiciability issue raised by the State. Prior to oral argument, the State moved for summary dismissal of this case on the basis that the case is moot. The State contended that because the screening testing had been accomplished and the separate juvenile court had dismissed the petition, there was no longer a case or controversy for this court to review. The Anayas opposed the State's motion and claimed that the matter remained reviewable because it fell within the public interest exception to the mootness doctrine. We agreed with the Anayas, and we denied the motion.

Although not a constitutional prerequisite for jurisdiction, an actual case or controversy is necessary for the exercise of judicial power. BryanLGH v. Nebraska Dept. of Health & Human Servs., supra. A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive. Orchard Hill...