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Utah Supreme Court rules no 'flagrant violation' of family's rights in Parker Jensen case

Published: Tuesday, March 29 2011 4:03 p.m. MDT

Parker Jensen riding ATVs in April 2008.

, Provided by Jensen Family

SALT LAKE CITY — The Utah Supreme Court ruled Tuesday that state action to make Parker Jensen's parents relinquish custody of the boy so he could undergo chemotherapy was not a "flagrant violation" of the parents' rights under the Utah Constitution.

The ruling written by Utah Supreme Court Justice Jill Parrish noted that the state trial court made a mistake in halting the case after a ruling in federal court, but said the high court affirms the lower court's decision to dismiss the case.

"Monetary damages are not an appropriate remedy for the alleged constitutional violations because, as a matter of law, the conduct of these defendants does not constitute a 'flagrant violation' of the Jensens’ state constitutional rights," Parrish wrote.

The 10th Circuit Court of Appeals handed down a similar ruling in May 2010. That ruling upheld U.S. District Judge Ted Stewart, who found that the family's rights under the U.S. Constitution had not been violated. Stewart did note, however, that the case involved "important issues of Utah law."

Parker Jensen and his parents filed separate lawsuits against Utah doctors and family-services workers who years ago attempted to seize custody of the boy and submit him to chemotherapy treatment.

Parker Jensen was 12 in 2003 when a lump on his tongue led to a diagnosis of cancer, 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 multiple doctors said chemotherapy was imperative.

The doctor who provided the diagnosis eventually went to the state Division of Child and Family Services alleging medical neglect, prompting a custody battle between the state and the boy'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. The charges were later reduced to misdemeanors and expunged.

Parker Jensen is alive today, though he never underwent chemotherapy. He is currently serving an LDS Church mission in Chile and is expected to return in January 2012.

In 2005, the Jensens filed a lawsuit in 3rd District Court against the state of Utah and seven defendants, only five of whom are still involved in the case — two doctors who worked at the University of Utah, a former director of the Utah Division of Child and Family Services, a DCFS social worker who initiated the custody petition, and a prosecutor with the Utah Attorney General's Office who represented DCFS in juvenile dourt.

Parrish wrote that two of the defendants — the DCFS attorney and the doctor asked to give an opinion in juvenile court proceedings — were immune because they were simply fulfilling their role in the judicial process. The case against the other three was dismissed because a "flagrant violation" had not been proven.

Karra Porter, attorney for the Jensen family, said Tuesday that what the family really wanted was for their story to be heard by a jury. She said she hopes the Utah Supreme Court's ruling does not mean something similar could happen to other families in the future.

"We hope the state does not take this as a green light to put others through the same thing," Porter said. "This may be something that our Legislature needs to look at.”

The University of Utah issued a response to the high court's ruling, stating that they felt "gratified" by the decision.

"The decision establishes that University of Utah physicians had Parker Jensen’s best interests in mind in the care they recommended and provided," spokeswoman Kathy Wilets said.

Assistant attorney general Bridget Romano, who represented the defendants connected to DCFS, lauded the work of those on the Utah Supreme Court.

"My clients and I could not be more thrilled with the outcome," she said. "We feel the Supreme Court did a great job of analyzing all the issues very thoroughly, but also listening to all of the parties and understanding all of the issues that were raised."

She said the ruling is also significant in that it clearly established that monetary damages can be sought in cases involving clear violations of constitutional rights, but that this was not such a case. She said they also clarified that under the Utah Constitution there is a parental right to direct medical treatment, which had long been assumed.

"The court found clearly that this right exists and that we didn't violate those rights," she said. "It's a very good outcome for us. The most important thing was, that it underscored the role that DCFS has in protecting the health, safety and welfare of Utah's children. What it underscores was my clients were doing their job and they were doing it very well." 

E-mail: emorgan@desnews.com Twitter: DNewsCrimeTeam

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