No constitutional violation in Parker Jensen case federal appeals court rules

Published May 5, 2010 8:59 pm
Court ruling » Attorney for parents say the case is not over.
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A federal appeals court ruled Wednesday that Utah doctors and child-protection workers did not violate the constitutional rights of Daren and Barbara Jensen when they pushed to have the Sandy couple's son undergo chemotherapy.

Noting that "the intersection of individual freedom and state authority is always difficult to traverse when a child's life is at stake," a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver said the state workers' good-faith actions were protected under law.

The case began when then-12-year-old Parker Jensen was diagnosed in 2003 with Ewing's sarcoma, a rare and aggressive form of cancer.

The disease most commonly develops in children between the ages of 4 and 20. If treated with a combination of chemotherapy, radiation and surgery, the survival rate is about 70 percent, according to doctors.

His parents' resistance to chemotherapy, based on their belief that Parker did not have Ewing's sarcoma, led to a medical-neglect complaint being filed against them and a judge ordering the state to take custody of the boy.

The state eventually abandoned the fight for chemotherapy. Daren and Barbara Jensen, who had briefly removed their son from the state, pleaded guilty to a misdemeanor custodial interference charge. Those convictions were eventually wiped off their records.

Daren Jensen said Wednesday that all parents should be frightened by the 10th Circuit ruling.

"It's troubling that the state can exercise their will without any regard for parental decision," he said. "It puts our children in danger."

Jensen said his son, now 19 and serving a mission for the LDS Church in Concepcion, Chile, never had the treatment suggested by the state but is healthy. The family opted to treat the boy with antioxidants and vitamins.

"It's hard to get over the fact that we were right and the state was wrong and he didn't have two weeks to live like they said," the father said.

He said no decision has been made on an appeal. Attorney Kara Porter, who represents the Jensens, said they could seek a hearing before all nine of the 10th Circuit judges.

"It's an important enough issue that it might warrant that," Porter said. "According to the 10th Circuit Court, there are no federal constitutional protections for what happened [to Parker]. And what would prevent this from happening to someone else?"

She added that the Utah Supreme Court has yet to decide if the state constitution offers protections to parents who reject medical intervention on behalf of their children. "The case is not over at this point," she said.

Porter said Parker's excellent health proves he did not need chemotherapy.

"He is fantastic," Porter said. "He was in Chile when the earthquake hit, so there was some excitement there. But he is just loving it! He's thriving on his mission."

Parker's parents, meanwhile, are "still feeling the financial devastation of what the state did to them," she said. Daren Jensen lost his job and was out of work for two years because of making court appearances and "what happened to his reputation," Porter said.

"He was a hot button," she said. "People wouldn't touch him. Either you understood what the Jensens were doing, or understood what the media was saying. Meanwhile they had to hire attorneys."

In 2005, the parents filed suit against two physicians, Lars Wagner and Karen Albritton, who were then working at the University of Utah; Richard Anderson, the then-director of the Division of Child and Family Services; Kari Cunningham, a DCFS social worker; and Susan Eisenman, an assistant Utah attorney general.

U.S. District Judge Ted Stewart threw out the federal claims in the suit in September 2008. Then, in February 2009 in Utah's 3rd District Court, Judge Joseph Fratto Jr. dismissed the remaining claims, saying they are barred under the state constitution. The Jensens appealed Stewart's ruling to the 10th Circuit and Fratto's ruling to the Utah Supreme Court.

"We're quite happy," said Utah Assistant Attorney General Bridget Romano, who represented Anderson, Cunningham and Eisenman in the case. "This puts at least an end in the federal court to a very lengthy proceeding."

Romano noted the defendants "have been dealing with this case and living with the issues since 2003."

Christopher Nelson, a spokesperson for the University of Utah, said, "We are pleased that the court ruled in support of our position that the care rendered by our physicians was appropriate."

Nelson pointed to a portion of the ruling that says, "the state afforded the Jensens numerous opportunities to obtain treatment for [Parker Jensen] . . . and "[t]he record demonstrates that no less than seven qualified and competent doctors evaluated P.J., diagnosed him with life-threatening cancer, and recommended that he immediately undergo chemotherapy in order to save his life."

Nelson said that although physicians Wagner and Albritton no longer work for the university, their leaving had nothing to do with the Parker Jensen case.


Scott Sherman contributed to this article.



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