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Are parental rights abused?

Some say agency goes overboard to protect children

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The preservation of the family is a human right as inalienable as they come in Utah, that is unless the state thinks a child is being harmed, a special review of local and national statutes and court cases has concluded.

At the request of the Legislature's child welfare oversight panel, which is trying to respond to mounting public criticism that government agencies too often abuse family sanctity when handling reported child abuse cases, the Office of Legislative Research and General Counsel reports that the intrinsic rights of children and their parents cause an inherent tension with government child welfare agencies.

"The sharing of the Constitution by parents, children and the state is not easy," says the report, which is to be discussed in detail by the legislative panel July 19.

It's a precarious, even perilous, relationship, according to the report, because while parents have the basic human right to establish a home and bring up children, a state agency has the right to inject itself, often abruptly, into the scene if it thinks a child is in danger.

The report concludes that the state has an interest in protecting and preserving the family, but the state also has an "extraordinarily compelling interest in keeping children free from abuse and neglect. When all of these interests converge or collide, the best interests of the child trump all others."

That is cause for concern to a number of Utahns, 22 of whom — including seven legislators — have signed a letter to Gov. Mike Leavitt asserting that the state is heavily biased against parents and treats them as "criminals and presumed guilty until and unless the parents hire an attorney to prove themselves innocent in a civil court setting."

Rep. James Ferrin, R-Orem, said he and other signers of the letter believe that if "the un-American and sometimes unconstitutional" proceedings were made public and accountable to the citizens, much of the impropriety would cease and the profession of law and the courts would receive the respect they deserve.

The rights of parents and the rights of children may be hard and fast, but the issue remains spongy because neither the U.S. Supreme Court nor the Utah Supreme Court has given a definite ruling on the issue of what standards must be met by a child protection worker in order to remove from a home or to search a child.

However, under the case law of the 10th Circuit Court of Appeals, it appears that a caseworker is not required to first obtain a warrant, nor will the worker have to demonstrate probable cause before removing or searching a child, provided the worker follows acceptable procedures and criteria established by the state Division of Child and Family Services. The state must only ultimately prove its allegations of neglect or abuse by "clear and convincing evidence."

Also rippling the debate is the fact that constitutional protections aren't for adults only.

The U.S. Supreme Court has repeatedly confirmed that fact, and the the legislative counsel's paper points out that children have a right to privacy under the Fourth Amendment to the U.S. Constitution, and that they have a right to be free from unreasonable and unnecessary intrusions on their physical and emotional well-being under the 14th Amendment.

Ferrin and other parents say that the state supersedes those rights and in fact becomes "all-powerful." They assert that confidentiality laws that have been instituted ostensibly to protect the rights of children actually inspire a cloak of secrecy. Children often aren't protected and have their privacy and well-being violated when they are removed from the home, with the state often using them to develop a case against the parents and placing them in what can be a traumatic foster care situation.

Child protection has an insidious side as well, they say, because the system provides the state a financial incentive "to kidnap our children" — the more children taken into state custody, the more federal dollars are appropriated.

Child welfare caseworkers and administrators say the system for the most part works. And they point out that even though the news media highlight problems, the families and children helped by the state far outnumber those who say they've been harmed.

It's society's toughest balancing act, said Lee Teitelbaum, former dean of the University of Utah School of Law and nationally recognized family law expert, now law dean at Cornell. "It is fair to say that children have the same liberty interests as adults but that occasions for legitimate state restriction of the exercise of those liberties are more frequent."

The state clearly exercises those restrictions, but what defines a child being in harm's way is enormously disputed, Teitelbaum said. "To some extent, it becomes an issue of how much latitude we are willing to grant parents in rearing their children."

Airing and working on child welfare problems is a very difficult task in every state, he said. "It's a hard thing to deal with it, but not dealing with it is impossible."

E-MAIL: jthalman@desnews.com