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South Dakota Midwife Charged with Manslaughter in Death of Nebraska Baby

By Territory Media

South Dakota Midwife Charged with Manslaughter in Death of Nebraska Baby

Judy Kay Jones, 65 of Irene South Dakota, was arrested on a Custer County Nebraska Warrant practicing medicine without a license and a warrant for manslaughter.

Jones is being charged with a Class III Felony for Manslaughter in the death of a Custer County infant in 2011 and practicing medicine without a license. It is alleged that in 2011 Jones presented herself to a Custer County, Nebraska couple as a midwife and assisted in the delivery of their infant child (Eli Fenske) in September of 2011; the child later died. The child, Eli Fenske, started having medical problems shortly after he was born, but investigators say Jones failed to perform follow-up tests and did not contact a doctor when the child stopped breathing. 

Jones was charged following the death of Eli Fenske, who was born in his family's rural Custer County home on Sept. 24, 2011. The boy developed medical problems shortly after birth, according to a sworn statement by a Nebraska State Patrol investigator.

An emergency room doctor who examined the infant told investigators Eli's condition was grave when he arrived at the hospital in Broken Bow, according to court records. The baby was transferred to Kearney and then Omaha. The first doctor told investigators Jones never consulted with her.

A second doctor in Omaha told investigators he looked into Jones' history after examining the child and discovered Jones she was not licensed as a nurse in Nebraska. The Omaha doctor told investigators the child had suffered brain damage and was partially brain dead because of a lack of post-birth care.

Investigators also found that Jones failed to perform blood tests before the birth or any follow-up exams to ensure the child was healthy, according to court records.

The infant's parents, Jeff and Whitney Fenske, told an investigator Jones failed to contact a doctor after the delivery when the child stopped breathing. The parents said Jones massaged the infant to restart his breathing, and when the baby quit breathing a second time, she hit him on the back. The infant later died.

Jones has paid 10% ($50,000) of a $500,000 bond and is expected back for a preliminary hearing scheduled for March 21, 2013.

According to 2009 Nebraska Code for Crimes and Punishment: 28-305. Manslaughter; penalty, (1) A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act. (2) Manslaughter is a Class III felony.

This isn't the first time the 65 year old unlicensed midwife has been before the courts.  A permanent injunction was issued against Judy K. Jones (Jones), enjoining her from the practice of midwifery without a license in Union County of South Dakota in January of 1993.

The South Dakota Board of Nursing and the South Dakota Board of Medical and Osteopathic Examiners (collectively referred to as Board) brought an order to show cause requesting Jones be held in contempt for violating the injunction.

After a hearing, the trial court found Jones in contempt

In 1995, Jones was indicted on a charge of practicing as a nurse midwife without a license during the birth of a baby in Yankton County, South Dakota, in violation of SDCL 36-9A-35.  The Yankton County State’s Attorney brought the charge against Jones. She was ultimately acquitted of the charge.

On May 26, 1995, Board brought an order to show cause requesting Jones be held in contempt for violating the injunction. Jones was alleged to have acted as a midwife during the birth of a baby in Clay County, South Dakota, in direct violation of the 1993 permanent injunction. Jones filed a motion for appropriate relief by requesting the permanent injunction be dissolved. After a hearing was held on July 15, 1996, the trial court found Jones in contempt. Next, the court imposed a sixty-day jail sentence for contempt, but suspended the execution of the sentence on the condition that Jones not violate the injunction in the future and file a bond of $5,000, which was "conditioned upon the condition that she no longer engages in practicing as an unlicensed midwife in violation of the permanent injunction and commits no further violations of the permanent injunction.

On July 26, 1996, Jones filed a motion for reconsideration, which was summarily denied.

While Jones attempted to distinguish between “direct-entry midwife” and “certified nurse midwife,” neither SDCL 36-9A-1 (referring to other statute for definition) nor SDCL 36-9A-13 (defining nurse midwife) makes such a distinction. Furthermore, the order of permanent injunction prohibited Jones from “practicing any acts or medical functions of a nurse midwife” (emphasis added).

In 2003 Minnehaha County, South Dakota a jury took one hour to find Judy Jones guilty of breaking the law or acting as a "Nurse Midwife" without a license during a delivery of a baby who later died in the hospital in 2001. States Attorney Dave Nelson said all she needed to do was get a license like the other midwifes in the state of South Dakota, but she repeatedly refused to do that.

Jone's cases also made it to the South Dakota Supreme Court in 2002 where her 4 counts of unlicensed practice of midwifery connection with her involvement in at-home births of two children.  In court documents found online the Supreme Court did everything they could to support and side with Jones, but in the end concluded that her conduct was a willful violation of the prohibition against practicing midwifery without a license. Ms. Jones served 30 days in prison for her sentence.

As of 2011, Jones is noted online and other places of saying she continues to practice by crossing over the South Dakota boarder and attending home births in Iowa, Nebraska and Minnesota.

Judy Jones' trouble has created a following of homebirth mothers and concerned citizens who believe Jones is somehow being treated unfairly.  Jones, an original founder and board member of South Dakota Safe Child Birth Options (an organization to help make lay midwifery legal in South Dakota), has failed for over 15 years to convince South Dakota legislators that lay midwifery is safe for South Dakota women and babies.

South Dakota Safe Child Birth Options in an apparent move to distance itself from Jones has renamed and re-branded their organization as South Dakota Birth Matters.

Currently there are over 15 certified nurse midwives licensed in South Dakota working in homebirth, hospitals and a birth center.

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