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Utah's 'victory' pleases Jensens

Ruling lets state off hook but allows suits against individuals

Published: Monday, June 19 2006 2:02 p.m. MDT

A federal judge's ruling that appears on its face to strike a blow to the case against Utah brought by the parents of Parker Jensen instead was greeted by enthusiasm Friday by the Jensen family and their attorneys.

While the decision let the state off the hook, it left individual defendants, including some state employees, still named in claims.

Last February, U.S. District Judge Paul Cassell indicated he planned to dismiss most claims against Utah by the parents of Parker Jensen. On Friday, he made good on his word, dismissing all claims against the state, as well as claims against doctors and state child welfare workers in their official capacities.

But in their individual capacities, those state employees are still named and the claims are still there, said Karra Porter, an attorney representing the Jensens.

The Jensens had claimed that employees of the Division of Child and Family Services worked with the Utah Attorney General's Office and physicians to deprive them of legal custody of their son, Parker, who doctors said was suffering from a rare form of cancer and was in need of chemotherapy. The controversy developed into a battle of parents' rights vs. what was perceived to be in the best interests of the child.

Parker now shows no signs of having cancer, Daren Jensen said.

"Parker's great. We've always known it."

"I just can't decide whether the word is thrilled or delighted," said Karra Porter, an attorney for the Jensens, of Cassell's decision. "It's terrific for us. It doesn't make a whole lot of difference if the state of Utah is named as a defendant or not."

In a complex 47-page legal ruling, Cassell outlined a long list of motions filed by the state to dismiss the claims filed by Barbara and Daren Jensen, who sued the state on behalf of their son.

"The guts of the case are still there," Porter said.

In his ruling, Cassell found the state was immune from liability under government immunity and that the Jensens had failed to show specific "constitutional and statutory authority" that would waive that immunity and permit their claim.

Richard Anderson, DCFS director, said the case has been a difficult one.

Some days during the 2003 saga, he received phone calls from people who were upset that the Jensens weren't being forced to get Parker treatment. Those phone calls were often followed by other calls from people outraged that the state didn't leave the Jensens alone.

"My concern has been, 'Are we doing the right thing for this boy?' " Anderson said. "That's been my intention all along."

He hadn't heard about Cassell's ruling until contacted by a reporter Friday.

Cassell also dismissed claims against two physicians who testified before a juvenile court hearing, which led to the revocation of the Jensens' parental rights. The Jensens claimed that some physicians had misled the court on certain facts and at one point had threatened to take their son away.

As to two physicians who allegedly misled and made threats, Cassell found that was beyond their scope as physicians. The judge has allowed the Jensens to sue them for those claims. Cassell pointed out that for the purpose of his ruling, he had to take the Jensens' claims as fact. Those claims would still have to be determined by a jury.

"There's no compelling state interest in falsifying or misrepresenting evidence to a juvenile court. But it should go without saying that this holding assumes the doctors actually did what plaintiffs allege; to survive summary judgment, the Jensens must put forth evidence in support of their claims," Cassell wrote.

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