The Parker Jensen Case - Similar to Katie's - Did the State Go Too Far?
Constitutional conservatives in Utah immediately organized a huge outpouring of sympathy for the Jensens, simultaneously heaping wrath upon Utah Governor/EPA designate Michael Leavitt and Utah Attorney General Mark Shurtleff, who should have called off the State authorities, but did not.
Daniel Newby of AccountabilityUtah.org summed up the state's position when he outlined the full implications of the present legal powers claimed by DCFS: [my comments in brackets]
* Does not include the right to a trial by a jury of your peers before your children are permanently separated from you. [One man, a judge, has all power to decide the fate child and family].
* Does not require the state to find the parent or parents guilty of any actual wrongdoing or criminal behavior prior to terminating their parental rights (see, for example, 78-3a-407(1)(f)). Simply not complying with every jot and tittle of the 'permanency plan' is evidence enough that you did something wrong in the first place, yes?
* Grants DCFS and its agents near complete governmental financial and criminal immunity (save in cases of fraud and perjury that have been proven in court) when they do destroy innocent families. Apparently, government is beyond accountability and families who can't afford to defend themselves are just out of luck. Or is it that our public defenders are so good, poor families should completely rely on them to fight the combined forces of the Utah Attorney General's Office, the Guardian Ad-Litem's Office, DCFS, CPS, and loose statutes that can mean just about anything? Of course, your statistics do not account for many poor families who accept horrible plea bargains because they have no financial alternative to defend themselves
* Allows judges to continue to garnish the almost non-existent wages of families to continue to pay for their children in foster care (Utah statute 78-3a-906) and the cost of counsel appointed by the court (78-3a-913(6)).
* Allows courts to be held in complete secrecy, eliminating the chance for families to expose the behavior of errant judges." [end of Newby quote]
Has Utah gone too far? According to legal precedents, no, but according to higher legal principles, yes. All state children's services rely heavily upon the legal clout of the all-pervasive "State Interest Doctrine" which allows the state to intrude in family affairs ranging from education to health and welfare - all excessively general terms that defy limitations on intrusion. A more appropriate legal doctrine would limit State intrusion into family affairs only when there is an imminent and dangerous threat to life.
Advocates of state intervention on medical grounds feel they are justified when cancer is involved because it is a life threatening disease. While this is true in the long-term, it doesn't meet the test of immanency, especially when there is time to experiment with a variety of treatments, and no single treatment (especially chemo and radiation) has a proven track record of success. The problem with all state employees, including judges, is that they work under the presumption that only if they side with the medical establishment will they be above criticism. The bottom line is, they choose to prosecute families for preferring alternative medicine simply because it serves their aversion to professional criticism. These people already enjoy near total legal immunity, so it is hard to see how their selfish personal preferences stack up against the damage they do to non-mainstream families.
As a matter of higher legal principles, I believe there is also room for taking into consideration the wishes of a child, especially when they are of the age of Parker (12). He is certainly old enough to understand the issues and declare his own wishes, whether to follow the counsel of his parents or declare his independence from them and ask for outside assistance. Only in the case where a child of this age requests protection of the state should the state be allowed to intervene. A simple allowance in law for the wishes of the child over the age of eight, for example, to have priority over state mandates would avoid most tragic "takings" where children are removed from the homes of loving parents in the growing dispute over who has the ultimate authority, the parents or the state.
There is a certain arrogance in the medical and mental health professionals who file claims of child neglect on parents who resist their demands. After this particular case winds down, parents in the future will think twice about taking their children to the establishment medical community for advice. Wise parents will seek alternative therapies first.
In another sense, both the State of Utah and the medical professionals have gone too far. By opening up a hornet's nest of protest, legislators may well have to heed the call to reign in the power of the state to intrude upon families in the name of "the state has an interest" in your child. As I have said before, I don't care who has an interest in my child. I want to know who has the ultimate interest - meaning, authority. It used to be that the State of Utah was openly hostile to home schooling outside the direct control of public schools. It was only after killing a home schooling father, John Singer, who resisted state powers that Utah changed the law - out of embarrassment, not principle. Perhaps the same thing will happen here.