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A lack of legal advice decried

Parents could get help in child custody fights

SHARE A lack of legal advice decried

Lawmakers who oversee Utah's child welfare system say parents who have had children taken into state custody have a right to proper, state-funded legal help.

The general lack of legal counsel to parents is a "paramount" issue for the Child Welfare Legislative Oversight Panel, which decided Thursday to send a "heads-up" letter to political leaders that it is taking a serious look at the problem as it heads toward the 2002 session of the Legislature.

About 95 percent of parents whose children become wards of the state are poor to begin with and therefore have no hope of hiring legal counsel to negotiate what is a very complicated system, said Rep. Matt Throckmorton, R-Springville, a co-chairman of the panel.

The panel also wants to review the state's family reunification policies. If 80 to 90 percent of the children who are taken into custody are returned home in eight to 12 weeks, as the state reports, "we have to question whether they should have been taken into custody in the first place," Throckmorton said.

"In criminal justice, people expect due process where they present facts and get their day in court," Throckmorton said. "Attorneys who do get involved (in child custody) have told me that they tell their clients to save their money, go buy a really good set of Sunday clothes and do everything the state tells you. If you fight, you'll lose your kid."

Attorneys appointed by a court for indigent parents involved in custody cases usually aren't well-versed in family law and are often unavailable for consultation, said Judge Pamela Greenwood of the Utah Court of Appeals. The quantity and quality of defense available to the parents is hit and miss at best, she said.

Greenwood added that she doesn't see a perfect solution to the problem but suggested the state consider establishing a state office of parent defense and set standards for competency.

The letter is a first step, Throckmorton said, noting that no one is ready to talk about how much money it would take to provide the service, although a rough estimate is about $2 million a year.

The vote to send a letter to the governor and legislative leadership came after another in a series of ongoing parental-rights discussions by the panel and the Legislature's Health and Human Services Interim Committee.

Panel members on Thursday received a primer on the complicated and often conflicting laws and rights involved in balancing the rights of parents and children with the constitution.

When there is conflict, as there often is in child custody and abuse cases, "children will always be the trump card," Hess told the lawmakers in presenting a detailed review of cases and statutes nationwide.

Parent groups and advocates have been telling legislators lately that parts of the state's statutory scheme of things isn't right, might not be constitutional and isn't in line with recent rulings by the U.S. Supreme Court.

Although no court has ever ruled that a state's child protection policies are unconstitutional, these cases can often be at odds with the accused's protection under the 4th, 9th and 14th amendments to the U.S. Constitution, Hess said.

Neither the state nor the U.S. Supreme Court nor the 10th Circuit Court of Appeals offer much clear direction, he said, other than generally finding that parents facing termination of their parental rights are not entitled to the same level of due process afforded criminal defendants.

Child-abuse and neglect cases present complications that can fracture or at least implicate constitutional and human rights in a number of ways, Hess said. Utah's Child Welfare Services statutes state that when family circumstances "pose a threat to the child's safety or welfare, the state's interest in the child's welfare is paramount to the rights of a parent."

The state doesn't have to help families get back together if it chooses not to, he said. "As you can see, we're kind of in a quagmire here." Sen. Dan Eastman, R-Bountiful and panel co-chairman, said there are so many laws and so many opportunities to interpret them "according to our own devices that almost everything amounts to a matter of opinion. I'm not so sure that no parent is better than an edgy parent. You take a parent away and you tear down a huge bond and it's gone. How do we make sure we're doing the right thing?"

Panel member Rep. Trisha Beck, D-Sandy, said that many adults she talks to who were abused as children say the best thing that could have happened to them was being pulled out of the threatening situation.

The state in recent years has had about 2,000 children in custody at any one time. It provides legal services to them through its guardian ad litem office.

E-MAIL: jthalman@desnews.com