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December 10, 2012

Judge—Case of Seized Newborn May Now Proceed

By James R. Mason, III
HSLDA Director of Litigation

Senior Counsel James R. Mason is a member of HSLDA’s litigation team, which helps homeschool families who are facing legal challenges. He and his wife homeschool. Read more >>

When Jodi Ferris arrived at Hershey Medical Center after giving birth in an ambulance, the last thing she and her husband, Scott, expected was to lose custody of their newborn daughter, forcing them to spend the first night of their daughter’s life sleeping in their car in the parking lot across the street.

But that is exactly what happened after Jodi—like any concerned mom—apparently asked hospital staff too many questions about the care her baby daughter was receiving.

In March we told you about the civil rights case HSLDA filed against the Pennsylvania social worker and Hershey Medical Center staff who seized “Annie” shortly after she was born.

Several months later, in July, the social worker and the medical defendants both asked the federal district court judge to dismiss the lawsuit. If these motions had been granted, the case would have ended.

Now, we’re pleased to report a major victory in this case. Last week the judge denied both motions to dismiss, allowing the Ferrises’ case to proceed.

Case Recap

Scott and Jodi had planned on having a home birth, but when Jodi’s labor progressed too quickly for the midwife to arrive, they called an ambulance. Annie was born on the way to the hospital.

At the hospital, Jodi was met with a flurry of activity. Some of it was what you would expect after delivering a baby in an ambulance. As any concerned mom would do, Jodi asked about the condition of her child and the care she was receiving.

Jodi received conflicting answers, ranging from a statement that Annie was doing fine to one that she would need stay in the hospital for three days. This understandably caused Jodi more concern and prompted her to ask her questions with more urgency.

Not too long after Jodi and Annie arrived, it appeared that the medical staff had had enough of Jodi questioning what they were doing. A government social worker, Angela Lopez-Heagy, entered Jodi’s room and announced that she was there to conduct an investigation of allegations the nature of which she refused to divulge.

When Jodi told Lopez-Heagy that she wasn’t comfortable answering questions without knowing what the allegations were, the social worker told her that if Jodi wasn’t willing to cooperate she would call a police officer to take custody of Annie.

The social worker grilled Jodi about why she had refused to allow the hospital to give Annie the hepatitis B vaccine, and asked other questions about Annie’s care that HSLDA believes fall within routine parental decision making.

From time to time, the social worker would leave the room to confer with hospital staff. A nurse physically blocked the door to prevent Jodi from also leaving.

Eventually the social worker told Jodi that she would need to agree to a “safety plan.’ When Jodi asked to see the plan, Lopez-Heagy told her it wasn”t written down yet, but if she did not consent to the safety plan and agree to “whatever the hospital wanted,” she would lose custody of her newborn child.

Meanwhile, Scott had left to bring the Ferrises’ other children to a friends’ home. Jodi told the social worker that she was not comfortable signing a safety plan before Scott returned.

Lopez-Heagy responded that she was not waiting any longer. If Scott returned by the time the safety plan was prepared, she said, he could review it. Otherwise, if Jodi didn’t sign the safety plan, “I’m calling the police and having them take custody of the baby.”

That is exactly what happened. Jodi was directed by a uniformed police officer to hand her newborn daughter over to a nurse. Although she begged to be allowed to sign the safety plan even though Scott hadn’t returned, she was told, “That window has closed.”

Jodi was then escorted off the hospital premises. On the way out she met Scott, who was just returning from dropping off the other children.

Jodi was allowed to return every three hours to nurse the baby, but she could not remain in the hospital. She and Scott slept in their car in the parking lot across the street.

The next morning, a juvenile-court judge returned Annie to Scott and Jodi. Two weeks later he dismissed the case against them.

Why HSLDA Took This Case

You may be asking yourself what the Ferris case has to do with homeschooling.

Our hard-won homeschooling freedoms depend on parental rights. HSLDA is concerned that those rights are being eroded in many areas of our law and culture. Anytime and anywhere that parental rights are diminished, it ultimately affects homeschooling.

One of the scenarios our lawyers hear about over and over again is similar to Scott and Jodi’s.

A homeschooling mom takes a child to the emergency room after an injury on the soccer field. The admitting nurse asks mom about immunizations and asks the child probing questions about guns in the home and whether the child feels safe with mom and dad.

The homeschool mama-bear instincts kick in and she objects.

All too often, this innocent act of simply questioning medical personnel in a hospital results in a visit from a social worker to “encourage cooperation.”

Hospitals and doctor’s offices should not be hostile environments. And asking doctors questions about the need for various treatments is not abuse or neglect.

Yet, there appears to be a growing trend among doctors and nurses, especially in hospitals, to quickly summon social workers to coerce cooperation with their questions, tests, or recommendations—not to investigate suspected abuse or neglect.

Some of those who read this will be surprised or even offended that we are suing doctors and nurses. We are certainly grateful for the expertise and skill that medical personnel employ to heal us and we are not intending to indict the entire profession.

But many reading this will identify with Scott and Jodi. I know this because I have received dozens of emails from those folks.

One of the most important principles HSLDA is hoping to establish in this case is that hospital staff who collaborate with government social workers in situations like Scott and Jodi’s can be held liable for violating federal constitutional rights to the same extent as a government agent can be.

A favorable outcome in the Ferris case would act as a deterrent to this type of conduct by healthcare workers in the future.

The Decision

When the medical defendants at Hershey Medical Center moved to dismiss our amended complaint, they argued that because they are not state employees, they should not be held liable for violations of the Fourth and Fourteenth Amendments.

In rejecting their argument, the judge held that “[t]he Amended Complaint thus establishes that the H[ershey] M[edical] C[enter] defendants knowingly set into motion and participated in a chain of events intending that a constitutional violation, namely the improper removal of [Annie] from her parents’ custody, would occur.” You may read the full decision here.

The judge’s decision allows HSLDA to proceed to the next phase of the case. Now we will be able to depose all of the defendants and gain access to their notes, records, and policies in preparation for trial.

We will also be engaging experts to testify that Annie faced no immediate threat to her health or safety that would justify what the defendants did here.

We Need Your Help

The homeschooling movement has grown and prospered over the past three decades. At the same time, however, parental rights in other areas of life are being nibbled away almost imperceptibly.

We don’t want to be like the proverbial frog that doesn’t feel the water heating up until it’s too late!

If we are going to stop this trend, we will need more people like Scott and Jodi who are willing to take a stand. And we will need to stand together with them in defense of parental rights as faithfully as we have for homeschooling freedom.

If you are reading this and are not a member of HSLDA, won’t you consider joining today? Your membership dues will help support all the work we do to defend and expand homeschooling freedom and parental rights. And by becoming a member, you will be standing for freedom with tens of thousands of other families.

If you are already a member or would like to help more, please consider making a tax-deductible gift to the Homeschool Freedom Fund. Your generous gift will make it possible for us to pursue this case and others like it to establish precedents that will help protect all of us.

HSLDA is currently considering two new complicated cases involving homeschooled children who were seized by hospitals and a third involving an infant. And we will also be pursuing two other cases involving unconstitutional entry into the home, similar to the Loudermilk case, which is now on appeal to the United States Court of Appeals for the Ninth Circuit.

Please pray that we would have wisdom and discernment and that the cases would protect and expand liberty. We thank you for your support.