Hearing, SLC, Thursday at about 10 am or so.

Dear family, friends, and other interested parties,

Like you, we don’t like being pushed around.

We didn’t like it early last year when our city proposed a daytime curfew law.  We helped raise the alarm, and we helped out as we could when others better placed to do so led the charge.  And we all won---our elder children can go still walk to the library during the day without risk of being picked up by the police. 

As many of you already know, not long after the win on daytime curfew, we entered into a dispute with DCFS, Utah’s child welfare people.  We’re homeschoolers, and spend more time and attention on our children than all other interests put together.

Nevertheless, on the report of a secret informant, followed by a cursory investigation which was evidently only conducted to find evidence of a decision already reached, we have been found guilty of an administrative offense known in Utah as ‘non-supervision.’  This marks our befuddling entry into the alternate reality of child welfare law.  We plan subsequently to put the details of our own case on this blog.

On the one hand, we are relatively unscathed.  Our children remain with us, and the last DCFS workers to visit us were those who wrote us up.

On the other hand, we have been studying this, and are aghast at what we find.

• Their caseworkers can issue a finding against you if ”there is a reasonable basis to conclude,” which in practice means more or less on suspicion.  If you appeal, the standard goes up a little, to “on the preponderance of the evidence” - which means if they find it 51% likely, they issue the finding. 
• Administrative judges are supposed to be neutral between the parties.  But one of the full-time judges is a former child protection attorney who worked as counsel for DCFS, and the other is a former state Guardian Ad Litem.  All of the judges are paid from the same purse as the workers at DCFS, under the Department of Human Services.
• Most civil servants have a common law privilege known as qualified immunity from suit, which means that if they were trying to follow the law as they reasonably understood it, in good faith, then you can’t sue them.  For what they do in administrative court, the caseworkers, their lawyers, and the administrative judges get something much more powerful---absolute immunity from suit. 
• They can, quite literally, lie freely in a way that results in horrendous damage to your children and you cannot sue them for this.  I know that sounds like crazy talk.  But look up how Ms. Eisenman defends herself, successfully, from allegations that she made material misrepresentations in court: PJ v. Wagner in the Utah Supreme Court and Jensen ex rel:Jensen v. Cunningham, in the Federal Court of Appeals for the Tenth Circuit.   Ms. Eisenman is the lawyer representing the other parties in this action.

• Unless you can prove their malfeasance beyond reasonable doubt (and legal people are good at covering themselves from that) and you have a prosecutor who is prepared to prosecute the malfeasance criminally, all these people are legally untouchable.

• Their rules for what parents must and must not do are usually so sketchy that, for all but the most obvious cases, you cannot tell what is permitted and what is prohibited.

• You are not told what the elements of the administrative offence are, or what affirmative defences you may offer.

• If you show concern about the vagueness of their rules, their adjudicators say that they don’t have the authority to hear constitutional challenges.  This is actually not true.

• They claim the power to close all their hearings, simply ignoring the Declaration of Rights in the state constitution of Utah which tells us that “All courts shall be open...”  

• They claim control over the entire record of the hearing and most or all of the records used in it, so that you cannot easily take their wrongheaded actions to the media.

• Legal aid is essentially nonexistent, so you only get a lawyer if you can afford one.  You can’t tell if that lawyer is going to be any good, however, because the records are all closed.

• And finally, in talking to fellow homeschoolers and homeschool organizations, we hear that indirect attacks on homeschoolers through child welfare are common.  After talking with friends and neighbors (especially those who aren’t white) we’ve started to think that it’s a very convenient (anonymous) way to express racial/class/culture prejudice. 

I am taking some of Utah’s child welfare authorities to an administrative court called the State Records Committee, to try to open up the system a bit.  Every parent in the State of Utah has a need to know what those judgements are, because without them there is no way to know what the law is that we are being held to.  Every person in the State of Utah needs to know how those judgements are reached, to see clearly if justice is, indeed, being done.  

What I am actually doing is putting DHS (Utah’s Department of Human Services, the parent entity of the Division of Child and Family Services, DCFS) and OAH (the Office of Administrative Hearing, the quasi-judicial appendage of DHS, an administrative tribunal that hears DCFS accusations) before Utah’s State Records Committee.

The State Records Committee is the state administrative tribunal that administers Utah’s freedom of information law, GRAMA, so recently and successfully defended by rapid public objection, from those legislators who wanted to gut it.  I want to get DHS to cough up the records of their judgements that they should have been supplying for years.

This meeting is open to the public.

The committee session is this Thursday, April 12, in the Courtyard Meeting Room, State Archives Building, 346 South Rio Grande Street (450 West), Salt Lake City, Utah, beginning at 9 a.m.  My hearing is the last item on the agenda, so I don't anticipate it starting until at least 10 a.m., but there are no guarantees in either direction.  

If anyone is interested in attending some of the prior hearings, the meeting notice is at http://www.utah.gov/pmn/sitemap/notice/109357.html .

Please come along and see that this is done right.

Sincerely, 

Alma and Nancy Wilson