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.
The judge also ruled that Parker Jensen, as a 12-year-old at the time, did not have the constitutional right to refuse medical attention. The Jensen suit claimed that he did. However, Cassell ruled that the decision would rest in the hands of Parker's parents, and, citing a highly technical legal argument, dismissed that claim, as well.
Cassell did leave room for the Jensens to sue certain state officials, such as the assistant attorney general who filed kidnapping charges after the Jensens left the state with Parker, having been ordered to provide him with treatment. But the judge added they could not be sued in their official capacity, thus limiting any claim to very narrow personal claims against them as individuals.
Porter said she expects to move forward with the complaint and said she hopes a jury will get to hear the case sometime in 2007.
In the meantime, she, co-counsel Roger Christensen and the Jensens will prepare for further discovery in the case.
"Their main goal is to be made whole," Porter said. "Try losing your job. Try having to pay attorney's fees."
The family was nearly bankrupted, Porter said.
Daren Jensen lost his job, and warrants were issued for his and his wife's arrests after they fled to Idaho with Parker, because they wanted a second opinion on Parker's condition. Daren was eventually arrested and charged with kidnapping his son.
"That's an outrage," Porter said. "The only reason he was arrested is because incorrect information was given to the (Idaho) county."
The Jensen case sparked a flurry of bills in recent legislative sessions, and legislators succeeded in clarifying the roles of parents and the state in child-welfare cases.Comment on this story
In 2005, Rep. LaVar Christensen, R-Draper, was behind a change in the statute, which now declares that there is a "fundamental liberty interest of a parent" concerning the care, custody and management of children and that the interest does not cease to exist if the child is placed in state custody.
It also states that until the state proves parental unfitness, the child and the child's parents share a "vital" interest in preventing an erroneous termination of the parent/child relationship.Another bill, sponsored by Sen. David Thomas, R-South Weber, relates to medical neglect cases and grants parents the right to a second medical opinion, provides that the state must prove the decision by the parent is not reasonable or prudent and allows parents to pursue alternative treatment options that are reasonable and in the best interest of the child.