With his children now in the custody of their maternal grandparents, there is only one way for Josh Powell to get them back, says one national child welfare expert: Law enforcement must clear him as a person of interest in the disappearance of his wife, Susan, and of any participation in his father's alleged illegal activities.
"I can't think of anything that would prompt the court to give the children back to him while that exists," said Richard Wexler, executive director of the National Coalition for Child Protection Reform based in Alexandria, Va.
A Pierce County Superior Court judge decided Wednesday that the boys, ages 6 and 4, will remain temporarily with Chuck and Judy Cox, parents of missing Utah mom Susan Cox Powell.
The children had been living with Josh Powell, Susan's husband, since her disappearance on Dec. 7, 2009. Police have so far named only Josh Powell as a person of interest in his wife's case, though they say others are being considered.
The children moved with their father in January 2010 to the Puyallup, Wash., home owned by their paternal grandfather, Steve Powell.
But Steve Powell was arrested Sept. 22 on allegations of voyeurism and child pornography. Police found thousands of images of girls and women, some unclothed, after a search of the home in August. They allege Steve Powell filmed his victims without their knowledge, in some instances using a telephoto lens to peep through windows and gain a view inside their homes.
Police are now looking at who else living in the home one of Josh Powell's brothers and a sister also resided with Steve Powell may have known about or participated in the alleged illegal activities.
The same night police arrested Steve Powell, they removed the two children and placed them in foster care. The Coxes, who believe Josh Powell is "directly responsible" for their daughter's disappearance, immediately filed what's called a third-party custody petition for the children, whom they have been able to see only sporadically over the past 21 months. That petition was stayed when the state moved the children to the Coxes' home on Tuesday and subsequently initiated a dependency action.
Judge Kathryn J. Nelson approved the temporary placement on Wednesday, saying it was unsafe for the boys to be returned to their father given the pending law enforcement investigations and the state's concerns about the environment in the home.
In the meantime, the judge granted Josh Powell weekly three-hour visits with his sons.
While Josh Powell said he had expected the boys to be returned to him, other child welfare and father's rights experts said the judge's decision was reasonable.
"The judge is going to err on the side of caution," said Doug Clark, executive director of The National Fathers' Resource Center in Dallas, Texas. "This is not an uncommon situation. It's so far following the way they do things."
Wexler said there were no good options, but the "least bad option" would have been to leave the children with Josh Powell while the investigations continue and "keep a close eye on him, which presumably law enforcement is already doing."
Josh Powell asked the judge to return the children to him or leave them in the foster home where they were initially taken. But once the state and judge ruled that out, a kinship placement even in an emotionally charged family dispute like this one would be preferred, experts said.
"Although it's a much more sensational case, kids getting caught in adult custody fights is not that unusual," Wexler said. Both sides need to now keep their feelings about each other to themselves, he said.
Todd DeVallance, a Seattle family law attorney who has handled high-profile cases, reviewed the case file at the request of The Salt Lake Tribune and noted the placement is temporary.
"That is subject to change and could change at any time," said DeVallance, of Tsai Law Co. A guardian ad litem, who represents the children's interests in such cases, will "recommend where they should be ultimately placed."
"In my professional opinion, I do think the judge did the right thing," he said. "It is always always the right decision to err on side of caution and do what's best to protect the children, subject to review."
And "in this particular case, one would assume and most would agree with the court that it would be better for the children to be with family members than in foster care," he said. If Josh Powell is cleared and "establishes a suitable environment for those children, there is no reason they shouldn't be placed with that father."
Clark said that Josh Powell's decision to represent himself in the dependency proceeding was a "huge mistake" and one he should fix. Now, Josh Powell needs to push the court to act with "lightning speed" to evaluate his parental fitness.
"If he is a good dad, he needs to get the court to turn the spotlight back on him," Clark said.
Josh Powell agreed last week to do whatever was necessary to get his sons back, including a psychological evaluation and a parenting competency review.
Sherry Hill, spokeswoman for the state's Children's Administration, said such evaluations are done "quite often" in child welfare cases and are aimed at measuring attachment bonds, ability to cope with stress and to parent effectively, as well as any propensity for violence in a home.
A statutory clock also has begun ticking. Washington, like Utah and most other states, sets a deadline for making a permanent custody decision once children are removed from their homes and parents' care. If the case is not resolved within the next nine months, a permanency hearing must take place within 12 months.
And Wexler said that while Josh Powell should take every step necessary to meet the state's demands and be ready for his children's return, none of that really matters as long as police are investigating him.
"There is nothing he can do to get the kids back unless he's found not to have been involved," he said. "At a minimum, for him to get the children back, police will have to decide he is no longer a person of interest."
Josh Powell returns to court next month
Pierce County Superior Court Judge Kathryn J. Nelson has set a status hearing for Nov. 15 in the custody case of Josh and Susan Powell's two young boys.