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Editorial on child-protection bill off-base

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I read with horror the Jan. 5 Deseret News editorial suggesting that Rep. Matt Throckmorton's bill requiring the Division of Child and Family Services to obtain a warrant before disrupting family life is a bad idea. The reasoning of the editorial suffers from several fundamental flaws.

First, the reasoning assumes that what is happening in the home is actually abuse or neglect. Therefore, why inhibit the process of removal of the children. Sometimes what is occurring is not physical abuse but merely a parental choice in how one raises children. To assume the need for removal is circular reasoning and offends the long-held and fundamental belief that individuals and families have the right of self-determination even if their choices are different from the majority "norm."

Our Supreme Court has observed that: "There is no surer way to preserve pluralism than to allow parents maximum latitude in rearing their own children. Much of the rich variety in American culture has been transmitted from generation to generation by determined parents who were acting against the best interest of their children, as defined by official dogma." In re J.P., 648 P.2d 1364, 1376 (Utah 1982)

This is not a question of whose rights trump — the parents' or the child's. Children, parents and society all suffer when families are improperly interfered with by the state.

The second great flaw in the reasoning of the editorial is the preposterous assertion that a judge would rarely disagree with the social worker. This shows an absolute lack of understanding or appreciation for both the separation of powers fundamental to our liberty and the benefits of the process that requires an independent judicial determination before exercising intrusive governmental power.

Due process disciplines the government actors to curb, if not prevent, government abuse and provides some measure of accountability if abuse occurs. The social worker who must apply for a warrant is required to stop and consider whether what she thinks is bad enough to justify family disruption will appear the same way when presented to someone who has not been involved in the sometimes emotionally charged confrontation leading to the worker's decision. That process of articulation may well make for better decisionmaking in the first instance, even if the judge agrees with removal.

If, after the fact, there is some dispute about the propriety of removal, and the warrant was issued on less than accurate information given to the judge, there will be accountability on the part of the abusive social worker. That potential accountability would also promote better decisions in the first instance before removal of children from their homes.

An additional flaw in the editorial is the argument that the state has been doing a good job, and we are not aware of any real abusive social workers. Even if that were true, and there are many who would dispute it, that reasoning misses another fundamental about our system of government. If we depend solely on the good graces of those who govern, then like the ancient Israelites, we will suffer greatly when "there arises a pharaoh who knew not Joseph." It is dangerous to jettison process and checks and balances in government because we are happy with the policies of those currently wielding the reins of government.

I suppose what troubles me most is that a body so prominent in our society as the Deseret News would exhibit such a lack of understanding of the fundamental principles that keep us a free and self-determinant people. I fear it reflects a wider lack of understanding in our community and among our leaders that, if left uncured, virtually guarantees our undoing. I hope I am mistaken in my assessment.

Blake S. Atkin is with the Salt Lake law firm Atkin & Hawkins.