Views from the Bench, 0219 UTBJ, Vol. 32, No. 1. 34

Author:Michael F. Leavitt, Judge.
Position:Vol. 32 1 Pg. 34

Views from the Bench

Vol. 32 No. 1 Pg. 34

Utah Bar Journal

February, 2019

January, 2019.

Protecting Against Child Abuse Through Legal Processes

Michael F. Leavitt, Judge.

Protecting kids against child abuse is an issue that seems to have universal support. How we do so is sometimes up for debate. Juvenile courts are the primary arena where folks try to figure it out. Too often, when seeking the court’s assistance, petitioners use the wrong tool to obtain that protection. When that happens, one of two unfortunate outcomes can result. First, even if the facts do not meet the requirements for the order being sought, the court may be tempted to grant some relief for the sake of protecting a child, even if it is in error. The results can be an unconstitutional imposition on parents’ rights, unnecessary involvement of children in court, and improper judicial activism. Second, and far more likely, the judge will not grant the requested relief. In that case, petitioners may not fully understand why and may conclude that the court is not an adequate forum for protecting children. And a child who needs protection may not get it.

Filing the right petition matters. If done correctly, children are protected and parents’ rights properly respected. Attorneys, particularly those in the domestic arena, and victim’s advocates, need to be able to advise petitioners on the type of relief they seek and how they should best obtain it.

Child Protective Orders

Most often, individuals seek to protect children from abuse through a child protective order. Any interested person may petition the court for a child protective order on behalf of a child “who is being abused or is in imminent danger of being abused,” so long as they make a referral to the Division of Child and Family Services (DCFS) first. See Utah Code Ann. § 78B-7-202(1).

Child protective orders are limited in scope and are intended to provide immediate and urgent relief. They are reserved solely for children who are being physically or sexually abused, or are in imminent danger of such abuse. See id. § 78B-7-201(1). Physical abuse is “non-accidental harm” or “threatened harm” that “results in physical injury or damage to a child.” Id. § 78A-6-105(1), (39). Sexual abuse includes sexual intercourse, sodomy, incest, or molestation by an adult towards a child, or between two children (with limitations), or engaging in conduct that would constitute a criminal sexual offense as defined by statute. See id. § 78A-6-105(47). It expires after only 150 days unless the court finds good cause to extend it. See id. § 78B-7-205(6).

Too often, the facts stated in a petition supporting a child protective order do not meet the limited definitions of the statute. For example, actual abuse in these circumstances must be currently occurring, or the threat imminent, as opposed to past abuse or speculative future abuse. The language of the statute refers to the child “being abused or…in imminent danger of being abused.” Id. § 78B-7-201(1) (emphasis added). This is distinct from language under the Juvenile Court Act where the court may adjudicate a child as “an abused child,” which means a child “who has been subjected to abuse” with no particular reference to timing. See id. § 78A-6-105(2). As...

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