Questions DCFS' Power to Seize Children
James Madison once opined: "It is proper to take alarm at the first experiment on our liberties."
Having been given the green light by Mr. Madison, therefore, let me sound the alarm: the fundamental right of parents to rear their children in freedom is under attack.
You may be shocked by my statement, but it is sadly all too real. Utah's Division of Child and Family Services (DCFS) regularly takes children from parents without a court order and without even having filed a petition.
According to one assistant attorney general, DCFS employees have never obtained a court order for the purpose of removing children and have no procedures in place to do so.
If you are likewise tempted to assume that only parents who abuse their children or cruelly neglect the youngsters are subject to the treatment, you would be sadly mistaken in that belief as well
As an attorney who spends too much time in juvenile court - for many lawyers one juvenile court hearing can be too much and many vow never to return - I have heard appalling weak justifications for traumatizing children from DCFS.
One 9-year-old boy was taken from his mother because the social worker mistakenly thought his mosquito bites were cigarette burns.
Another 12-year-old was taken by force from his home because the social worker wanted to see if the child's health would improve once separated from his mother.
Recently, two young children, ages 2 and 9 months, were taken from their mother because the social worker thought they might be evicted from a homeless shelter and end up on the street.
Although the two children were subsequently returned to their parents after a hearing, the social workers again threatened to take them by force, without a hearing, if they didn't find a "permanent and stable" residence within a few days. The DCFS employees vetoed the family's plan to stay at a grandparent's house.
Readers who have never experienced the system may be surprised by its procedures.
DCFS may seize children and place the youth in a foster home based on the belief that abuse may be taking place, but the social workers do not need evidence of abuse. After the seizure, the state workers meet to figure out what accusations to file against the parents.
Child neglect in Utah is currently defined as failure to provide "proper care," a meaninglessly broad definition.
One of my clients was actually accused of having a cluttered kitchen table.
Prior to 1994 in Utah, a parent's conduct had to result in "serious detriment" to a child before the state would consider taking custody.
Now, a child can be taken on a suspicion and found neglected for failure to provide "proper care."
Should the judge find parents neglectful based on the criteria, the court requires the parents to complete a treatment plan prepared by DCFS.
Most parents mired in the system are evaluated by the same experts and required to take the same classes.
The Utah Supreme Court once considered "diversity," pluralism" and "maximum latitude in rearing" children to be essential "characteristics of a free society." However, the characteristics are not respected in the juvenile court system today.
If the parents fails to complete their treatment plan, they are presumed unfit and their parental rights may be terminated.
At the subsequent trial to terminate their rights, the burden shifts to the parents to prove their fitness.
Under current Utah law, the state is no longer required to prove parents have substantially abused, neglected or abandoned their children. Instead, the parents must present evidence as to why their rights should not be terminated.
Current state law also requires that we report on one another: doctors are required to report on patients, clergy on parishioners, teachers on parents and parents on one another. Under Utah statute, failure to report our suspicions is a criminal act. Welcome to the brave new world.
The assault on parental rights is driven by the zeal to feel secure in the knowledge that we are preventing child abuse, an unattainable goal, which requires early intervention. Early intervention by the state requires the surrender of our liberty.
According to Benjamin Franklin: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Parents in Utah need to know that their children may be seized for actions they would never have dreamed could be considered abusive or neglectful.
Utahns also need to know that they are not required to allow DCFS workers into their homes, absent an emergency.
I once heard an assistant attorney general who represents DCFS indicate that, if a social worker ever came to his door, he would tell the individual to get of his property and slam the door in the state employee's face.
I consider that to be sound advice from someone who should know.