Concerns over protecting children stall legislation
 Lawyer says bill would invite suits and threaten kids
 
By Amy Joi Bryson
Deseret Morning News
 
Although one of the most far-reaching legislative proposals to revamp Utah's child welfare system stalled this week in committee, its sponsor is determined to bring it back.

"I am going to continue to work with people on their concerns, but I think this bill will help families and achieve balance," said Rep. Wayne Harper, R-West Jordan.

But Alain Balmanno, the lead attorney for Utah in litigation brought against the state 10 years ago by a national children's advocacy group, said Harper's HB266 would "absolutely" invite more lawsuits and also present serious threats to the well-being of children.

"You are making it impossible to protect children," Balmanno said. "If you pass Rep. Harper's bill I will have to defend this and I will lose," adding that the proposed changes would set the state back years.

Balmanno said many of the provisions in the bill would violate agreements the state made when it entered into a consent decree in the suit settlement that requires certain performance standards.

And Barbara Feaster, a child abuse victim who now heads U Foster Success, passionately told lawmakers children can't be ignored. She was in tears when it appeared lawmakers were poised to pass out the bill.

The measure, by Rep. Wayne Harper, R-West Jordan, is not dead. The lawmaker vowed to continue to address agency concerns and come to some sort of acceptable compromise.

Harper was urged by committee members to do some retooling. They said the state needed to shift the balance so the system will not overrun families but more adequately address parental rights.

"I don't see this as a step in the wrong direction," said Rep. Eric Hutchings, R-Kearns. "They are . . . strip mining a whole area to make sure we get the bad ones. We need to weed out the ones we don't necessarily need to catch."

Among other things, Harper's measure proposes to:
  • Elevate the legal burden of proof to "beyond a reasonable doubt" in child welfare hearings to determine termination of parental rights or determine if state custody of a child should continue.

  • Restrict removal to those cases where a child is in imminent risk of injury.

  • Outline the right for parents to "reasonably" discipline a child.

  • Streamline definitions of abuse and neglect.
"Is this bill perfect? No," Harper said. "Is this a child abuser bill? No. This bill supports families and I believe it protects children." Hutchings said he believes the state should have to meet a higher standard when it seeks to remove children from families.

"Taking away a child is a serious thing, and the state should have to really, really prove why."

But some lawmakers stumbled on the definitions in Harper's bill.

"This is full of nebulous definitions," said Rep. Susan Lawrence, R-East Millcreek. "I don't know what they mean. I don't know how you would ever prove them beyond a reasonable doubt. What is the hard definition of 'serious'?"

If the proposal forbids reasonable discipline that results in serious abuse or serious neglect, Lawrence questioned, does that mean "regular" abuse and "regular" neglect would be permissible?

But Dr. Lori Frasier, director of the medical assessment team at Primary Children's Medical Center, said the bill would effectively preclude doctors and DCFS workers from spotting early signs of abuse — abuse that often grows more severe with time. "You will prevent us from intervening at an early level in child abuse or neglect," she said. The bill would also forbid the state from forcing any medical treatment if it poses risks or side effects, she said.

Noting that the first documented case of child abuse in the United States was prosecuted in 1874 under animal cruelty laws, Frasier said Harper's bill repeals or amends 50 sections of the Utah code. "Let's not go back to 1874."
 
deseretnews.com
Originally published Thursday, February 19, 2004
 
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