SALT LAKE CITY — Attorneys for the family of Parker Jensen — who refused a custody order to submit the boy to chemotherapy treatment while they sought further testing — argued before the Utah Supreme Court Wednesday that the case could change family rights under the state constitution.
Daren and Barbara Jensen have spent the past seven years seeking to establish that their rights were violated when the state attempted to remove their son from their custody after they refused to follow the advice of doctors regarding the boy's medical treatments.
Karra Porter, attorney for the Jensens, told the justices that while the case is complex, it comes down to "simple little principles" about the different interpretation of family rights in the Utah Constitution versus the U.S. Constitution.
Porter argued that Article 1 of the Utah Constitution includes "inalienable rights," including the "fundamental right to make decisions regarding one's family, including health matters."
She argued that the trial court was mistaken when it failed to find that the Utah Constitution affords families broader protection than the federal Constitution. She quoted a judge who dismissed the case in federal court but also stated that the case "present(ed) important questions of state law."
Parker Jensen was 12 when a lump on his tongue led to a diagnosis of cancer in 2003, which doctors believed was aggressive enough to kill the boy if he did not undergo chemotherapy. His parents opted against the treatment and decided to seek further tests and an alternate course of action, even though doctors said chemotherapy was imperative. The doctor who provided the diagnosis went to the state Division of Child and Family Services, prompting a custody battle between the state and Jensen's parents.
Numerous hearings were held in juvenile court, but on the day the Jensens were to relinquish custody, investigators learned they had left Utah. In so doing, they defied a custody order, leading to charges of kidnapping and medical neglect, which were eventually reduced to misdemeanors and later expunged. Parker, who never underwent chemotherapy, is serving an LDS Church mission in Chile.
Porter said the case should go before a jury to address what she believes is a broader interpretation of family rights found in the Utah Constitution. But the justices struggled with questions about what standards Porter would have applied and what guidance she would have them give to a trial court.
"If we want to give a trial judge guidance, to define for the trial court how to articulate the protection under the state Constitution, which is more broad than the federal one, how would we do that?" Justice Jill Parrish asked.
Porter said the trial court would be able to figure it out, but Chief Justice Christine Durham said this would be a "very heavy burden for the trial court to undertake."
Andrew M. Morse, an attorney for some of the doctors involved in the case, told the justices that U.S. District Judge Ted Stewart had already issued a summary judgment in which he found that the protection of a family's rights was not broader in the state's constitution. He told the justices that this judgment had been appealed to the 10th Circuit Court of Appeals in January and the justices should wait for that decision before issuing their own, as they relate to the same inherent issue.
"This court should not do anything until the 10th Circuit rules. … If they reverse, your job is done."
He also told justices that those involved in the state's case, both the doctors and those with the family-services division, acted according to law and advised the justices that creating a new standard on how similar cases were handled "might upend the whole medical statute as it now stands."
The justices took the case under advisement and will issue a decision in the coming months.