Paved with good intentions: the Utah Supreme Court’s flawed analysis in Jensen v. Cunningham

 

On April 30, 2003, 12-year-old Parker Jensen was taken to a doctor to have a small growth under his tongue removed. A long nightmare for the Parker family had begun, culminating in a recent legal decision by the Utah Supreme Court.1 Facts summarized in each paragraph are taken exclusively from the court’s opinion as cited, except where otherwise stated, even though some might argue the court omitted discussion of additional information favorable to the Jensens.

Parker’s growth was referred for study to Dr. Lars Wagner at Primary Children’s Medical Center. Wagner diagnosed Ewing’s sarcoma and told the Jensens that Parker would die unless treatments in addition to surgery were utilized.2

On May 28, 2003, the Jensens consulted with Dr. Judith Moore, a family doctor in Bountiful. Barbara Jensen’s father had received treatment from Moore for prostate cancer and the family had confidence in her expertise. Moore questioned Wagner’s diagnosis because “all the evidence except for the [Primary Children’s pathology testing] were negative for cancer.”3

Wagner asserted his approach was superior to Moore’s approach because of his consistency with federal regulations. Wagner refused to conduct additional medical tests. After the Jensens indicated they no longer wished to use Wagner or Primary Children’s Medical Center, Wagner said he would report them to the Division of Child and Family Services (DCFS).4

Based upon Wagner’s opinion and referral, Kari Cunningham, a DCFS social worker, filed a court petition indicating “Parker’s case was a medical emergency and that something needed to be done within a matter of hours or days” to save his life. Cunningham alleged the Jensens “were committing medical neglect by refusing to treat Parker with chemotherapy.” “Cunningham did not conduct an independent investigation into the claims, nor did she meet with the Jensens to get their side of the story.” She did not obtain any second opinion from a separate medical institution. She filed a “misleading” affidavit to the court under oath, which had the effect of representing to the court that a medical second opinion had been obtained and, separately, that CT and bone scan results had yielded something other than a normal result.

Later, when this was uncovered, the DCFS, law enforcement, and the court system chose not to sanction or criminally prosecute Cunningham for her actions – or investigate in any serious way – because “the Jensens have offered no evidence to suggest Ms. Cunningham was motivated by anything other than a desire to further the best interests of Parker.”5

The Jensens attempted to obtain opinions from doctors with a variety of specialties. However, at the urging of doctors from Primary Children’s Medical Center, the court insisted that the Jensens could only consult with a “board certified pediatric oncologist.” But when the Jensens did contact several oncologists, the doctors would not conduct blind testing or independently develop treatment options. Instead, the other oncologists simply deferred to Primary Children’s diagnosis and wanted to begin Wagner’s treatment without first conducting their own testing or genetic testing as requested by the Jensens. When the Jensens attempted to contact other types of specialists, the doctors declined to examine or treat Parker for fear of retaliation by legal professionals, medical professionals, and law enforcement.6

When the Jensens took Parker on a boating trip in Idaho, DCFS persuaded the court to issue a bench warrant for their arrest. The DCFS also persuaded the Salt Lake County District Attorney’s Office to charge the Jensens with criminal “custodial interference” and “kidnapping” of their son Parker. Daren Jensen was arrested in Idaho and spent four days in jail. The Jensens had restrictions put on their travel and were forced to surrender their passports. They were also forced to enter a plea to custodial interference to avoid extended imprisonment for the kidnapping charge.7

“DCFS ultimately conceded that the Jensens would not submit to chemotherapy and that it was unreasonable to force an unwilling 13-year-old boy to undergo chemotherapy.” As the political scrutiny mounted, the DCFS ultimately dismissed its verified petition against the Jensens.8 Parker is alive and healthy today, serving an LDS mission in Chile, despite predictions of imminent death from DCFS and the media. Fortunately, Parker has not been permanently sterilized by unnecessary chemotherapy.9

The Jensens filed suit to recover damages for the harm they suffered. DCFS had interfered with their right to choose their own medical care, to travel interstate, and to be free from seizure and imprisonment. The family was traumatized by public ridicule caused by DCFS’ false claims that the Jensens were killing their son. Daren Jensen lost his job.10 The family lost their home.

The Utah Supreme Court ruled “[t]his court has never recognized that our Constitution guarantees a right to be free from unreasonable noncustodial seizure.”11 “[W]hen a child’s life or health is endangered by his or her parents’ decisions regarding the child’s medical care, the state may, in some circumstances, temporarily intervene without violating the parents’ constitutional rights.”12 The court said no flagrant violation of rights occurred because “the defendants’ conduct was motivated by a legitimate concern for Parker’s life.”13

But if the Jensens were ultimately correct about Parker’s prognosis, wasn’t it the DCFS who was endangering his health, including possible sterilization? And if the test is whether “conduct was motivated by a legitimate concern for Parker’s life,” why shouldn’t the Jensens get the benefit of that same standard? Most importantly, exactly what “circumstances” would allow Utah officials to impose ill-conceived seizures and forced medical treatments on the rest of us?

Government paternalism and incompetence is a danger to children. Governor Gary Herbert should pardon the Jensens for the “crime” of saving their son.


1 Jensen v. Cunningham, 2011 UT 17, ¶ 5.
2 Ibid. at ¶¶ 5-7, 9.
3 Ibid. at ¶ 12.
4 Ibid. at ¶¶ 16-17.
5 Ibid. at ¶¶ 21, 88-89.
6 Ibid. at ¶¶ 25, 27-28, 30, 91.
7 Ibid. at ¶¶ 26, 28-29, 31.
8 Ibid. at ¶ 31.
9 Ruth Westheimer, The Family Encyclopedia of Sex. The court opinion did not acknowledge that the DCFS attempted to unnecessarily sterilize Parker, that the Jensens lost their home, or that Parker is currently healthy and serving an LDS mission because of his parents.
10 Jensen at ¶ 102.
11 Ibid. at ¶ 101.
12 Ibid. at ¶ 78.
13 Ibid. at ¶103.

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