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Back to October Ed Reporter
Education Reporter
NUMBER 189 THE NEWSPAPER OF EDUCATION RIGHTS OCTOBER 2001

Are Parents' Rights in Jeopardy?
By Arthur G. Christean, J.D.

In response to what it called "mounting public criticism that government agencies often abuse family sanctity when handling reported child abuse cases," the Utah Office of Legislative Research and General Counsel recently issued a report prepared for the state legislature's child welfare oversight panel. This report concluded that "the best interests of the child trumps all others." Not everyone agrees, and 22 Utah parents, including seven legislators, sent a letter to Governor Mike Leavitt expressing their concern that the right of parents to raise their children as they see fit is routinely being trampled under Utah's child welfare system.

Utah lawmakers reformed the system in 1994 by passing the Child Welfare Reform Act (CWRA). This law was enacted partly to placate child advocacy groups which had challenged the adequacy of the system by filing a lawsuit against the state in the early 1990s. Concerns about the CWRA's potential for abusing parents' rights were raised during debate and summarily dismissed by the bill's proponents as insubstantial. Subsequent events however, have shown that these concerns were indeed well-founded.

The CWRA expanded the criteria for removing "at risk" children from the home and accelerated deadlines for "rehabilitating" parents. It also provided new grounds for terminating the rights of "non-compliant" parents so that their children, once in state custody, could be freed for adoption more quickly to achieve "permanency" in their lives.

Have these measures gone too far? The expanded legal grounds for removing children from their parents has made it easier for the state to take such action. Anxious to secure the return of their children, parents are under great pressure to accommodate or plea bargain the claims made against them. Once parents plea bargain, however, their children are placed in temporary state custody, and the parents are ordered by the courts to submit to "treatment plans." If the parents fail to comply with these plans within strict time limits - typically six to 12 months - the state may begin proceedings for complete termination of their parental rights.

Should the legal standard for determining whether or not parents will permanently lose their children be their compliance with a state "treatment plan"? Should children be removed from their homes based on the opinions of state officials about parents' potential for abuse, or should it be based on whether or not they have done actual harm to their children?

The legal standard established by CWRA influences every aspect of Utah's child welfare policy. In contrast, the state Supreme Court established 20 years ago that the standard must be clear "parental fault"; behavior that could be proven by clear and convincing evidence as "seriously detrimental" to a child. In 1981, the Court struck down a law which attempted to make "the best interests of the child" the standard for permanent termination of parental rights. This standard, the Court pointed out, could shift depending on prevailing opinion and could easily be manipulated for political purposes. The phrase "seriously detrimental" remained part of Utah law until it was removed by the CWRA.

Appropriate safeguards must be put in place to respect the rights of parents and protect the sanctity of family life from unwarranted intrusions. These could include:

  • Careful revision of the law to narrow the specific legal grounds justifying removal of children from their homes. This revision should give state workers guidelines for specific conduct or home conditions that could justify removal of a child. Broad language that may invite removal based on rumor, suspicion, or disapproval of the attitudes, beliefs or educational preferences of parents should be eliminated.

  • A requirement that warrants be obtained prior to the removal of children from the home in non-emergency situations should be added to Utah's child welfare law. Circumstances justifying removal without warrant - cases calling for immediate action in order to protect the lives or safety of children - should be carefully and narrowly defined.

  • State statutes should be amended to insure that parental fault and not "the best interests of the child" is the true legal standard for termination of parental rights. Restoring language to state that parents' conduct or condition must be "seriously detrimental" to the welfare of the child would be an important step.

Our instinctive revulsion to the mistreatment of children has made us understandably reluctant to address the growing intrusion of state power into our family life. Nevertheless, the protection of the family unit is inextricably linked with the constitutional right of parents to rear children as they see fit.

As with the rights of those accused of crimes, we must protect parental rights, not because we condone abusive or neglectful behavior by parents, but because of the higher principles upon which this nation was founded. The Office of the Legislative Counsel's questionable conclusion that "the best interests of the child trumps all" suggests that this important matter should again command the attention of Utah lawmakers.


 
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