Date January 06, 2004

To Attorney Kathleen McConkie; GAL Katharina Christensen; DCFS Cindy Barker

From Lori Trivino for Attorney I. Clifford Petersen

Total No. 9 pages total including cover sheet.
of pages

Message Re: Thaxton case:
Here is a fax copy of the Objection to Motion for Temporary Orders.

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__________________________________________________________________________________________

J. Clifford Petersen, No. 8315
Assistant Attorney General
Mark L. Shurtleff, No. 4666
UTAH ATTORNEY GENERAL
Attorneys for the State of Utah
1350 E. 1450 S.
Clearfield, Utah 84015
Telephone: (801) 776-7304

IN THE SECOND DISTRICT JUVENILE COURT
DAVIS COUNTY, STATE OF UTAH

STATE OF UTAH, in the interest of I OBJECTION TO
I MOTION FOR TEMPORARY
THAXTON, Marylee  DOB: 11/18/1995 ORDERS
THAXTON, Sarah DOB: 03/19/1997 I
THAXTON, Matthew DOB: 05/21/2002 Case Nos. 157257, 157259, 157260

Persons under eighteen years of age. I Judge: Kathleen M. Nelson
 

 STATE OF UTAH, Division of Child and Family Services (“Division”), by and through counsel, J. Clifford Petersen, Assistant Attorney General, hereby files the following objection to the Motion for Temporary Orders filed by counsel for the parents.

1. The Division is opposed to placement of the child with the parents at this time, and believes it is not in the child's interest to be returned to the home at this time, due to the parents’ failure to demonstrate a willingness to cooperate with the Division over the last six months to work towards the prior release conditions agreed upon in mediation on June 25, 2003.

2. Attached to this motion is a Memorandum of Understanding from the mediation which took place in this case nearly six months ago, on June 25, 2003. All parties agreed on the following conditions for prior release for placement of the child with the parents. This agreement was reached as an interim agreement for the minimum conditions under which the Division and Guardian ad Lidem would agree to returning Matthew, pending adjudication.

a. Close monitoring of Matthew as directed by Dr. Lisa Samson-Fang, pediatrician.

b. Parents obtain psychological evaluations. Mr. Hilton will submit a list of possible providers by June 27, 2003, for review and approval by the AAG and GAL.

c. Parents agree to follow medical recommendations.

d. Supervised visitation by kinship, as agreed upon by kinship, GAL, and DCFS, and midweek supervised visit at DCFS.

3. The parents agreed to these conditions. Parents were represented by counsel at the time. Parents and their attorneys initialed the mediation agreement. See attached EXHIBIT 1.

4. Rather than complying with the above agreed upon conditions and working toward returning Matthew to their home, the parents have instead not cooperated with the Division, nor established that they are willing to cooperate. Parents have failed to obtain psychological evaluations. Further, given recent statements of the parents regarding to what cause they attribute Mathew’s life-threatening incident on June 1, 2003, the Division now is unable to fully assess the risks of returning the child to the home without further unequivocal clarification from the parents that they are in fact committed to properly supplement Matthew’s B12 levels and follow up with any medical care and monitoring necessary to ensure that Matthew does not again have a life-threatening incident.

5 At a recent home visit, the parents represented to the Division that they are now living in the home of the paternal grandparents due to a carbon monoxide leak in the exhaust system of their home furnace, to which the parents now apparently attribute Matthew’s illness this past June when he was taken into protective custody. Upon information and belief, the parents also attribute the death of their son, Dan Jr., to this furnace leak. On or about December 24, 2003, counsel for the Thaxtons confirmed to counsel for the Division that the Thaxtons do in fact attribute the carbon monoxide leak to Matthew’s medical condition.

6. The parents have apparently leaked or allowed to be leaked confidential
information regarding this case, as evidenced by the fact that their story now
appears on the following websites:

a. http://www.lifesave.orgIFamilyVsState.htm

b. http //ww’.v ernediawire,corm/releases/2003/ I 2/prweb9443 8 .php

c. http://www.patriotsaints.coxulMyChildMyChoice/cases/MatthewThaxtonli
ndex html

d. http://www.accountabilityutah.org/IssuesAlerts/LegAlerts/2003/VeggieAtt
ack120903.htm

e. http://www.petitiononline.com/thaxton/petition.html

7. The Division notes that the first of these websites, www.lifesave.org, has posted on its site a confidential settlement negotiation memo written from counsel for the Division to counsel for the parents, back on August 13, 2003, as the parties attempted to negotiate a resolution. This memorandum is a confidential communication generated in a settlement negotiation which would be inadmissible under the rules of evidence, yet the memorandum now appears on a website. In addition, all of the websites include pictures of the family and several of the websites also include pictures and video clips purporting to be pictures of the Thaxton’s furnace system taken at the family home. Even if any or all of these websites are not directly endorsed or created by the Thaxtons, it is clear that the Thaxtons were the source of much of the confidential information therein.

8. Given the parents’ failure to demonstrate a willingness to cooperate with the Division over the last six months to work towards the prior release conditions agreed upon in mediation, the Division believes that it is not in the child’s best interest to be returned at this time. Further, the Division now questions the Thaxtons committed to properly supplement Matthew upon his return home, due to their recent representations that a B12 deficiency may not be to blame after all. Given all this, there is no reasonable indication that the parents would properly supplement the child with B12 in a manner consistent with the trial evidence and consistent with the testimony from the mouths of the parents themselves, nor is there any reasonable indication that the parents would cooperate with orders of protective supervision services, including follow-up medical monitoring of the child. To the contrary, it appears that the parents would instead blame carbon monoxide poisoning for Matthew’s illness and not take the necessary dietary supplementation precautions which they testified at trial that they would take.

9. The parents’ motion for temporary custody states that the delay in disposition of this matter was “due in part to the Thaxton’s substitution of counsel.” This is not true. The entire delay has been caused by the parents’ substitution of not one but two attorneys, and by the parents’ failure to submit proposed findings and conclusions. At the conclusion of trial (held August 5th and 8th 2003) in this matter, the court took the matter under advisement and gave the parties 30 days to submit proposed findings of fact and conclusions of law. The State and the Guardian ad Litern each submitted proposed findings and conclusions on or about September 5, 2003. On the 8 day of September, 2003, the State sent the parents a NOTICE TO APPEAR IN COURT OR APPOINT COUNSEL. The deadline for the parents to submit proposed findings and conclusions has been extended, each time at the request of the parents or their counsel. The delay in disposition has been entirely the fault of the parents. The State is in no way responsible for the delay. The State has neither sought nor obtained any extensions of time to submit proposed findings and conclusions to the court.

10. The State also notes that Utah Code Annotated § 78-.3a-310(2) has been complied with in this matter. The statute states that “the final adjudication hearing shall be held no later than 60 calendar days from the date of the shelter hearing or the
filing of the petition, whichever is later.” The shelter hearing was held on June 17, 2003. The adjudication hearing was held August 5, and 8, 2003, less than 60 days from June 17, 2003. The statute does not require the court to actually render a decision with 60 days of shelter.

II. The parents’ motion for temporary orders also does not indicate why the placement issues has suddenly become an emergency matter, when the parents have had six months to work toward prior release and have failed to do so.

12. The parents’ motion for temporary orders also incorrectly states that “All parties anticipate that Matthew  Thaxton will be returned to the custody of his parents subject to the terms of this Court's final order.” To the contrary, the Division expects the parents to first unequivocally establish that they are committed to the health, safety and well-being of Matthew before he is returned to their custody.

13. Rather than returning the child now, the Division believes the safest course of action which would prevent Matthew from becoming malnourished again to within two hours of death, is for the court to set an evidentiary hearing to ascertain what exactly the parents’ believe with respect to the B-l2 deficiency, the furnace exhaust, and their children's well-being. Only then can this court fully assess the risk of harm to the child posed by outright returning him to the home at this time. The Division does note, however, that it approved an unsupervised Christmas visit last week, and has approved an extended visit for the New Years’ Holiday. The Division also notes that it is not absolutely opposed to returning Matthew to the home at some point in time, nor opposed to expanding visitation further as the parents establish a track record of trust and cooperation, but that it simply opposes returning Matthew at this time without answers to the serious questions raised above.
 DATED this 6th day of January 2004
 MARK SHURTLEFF
 ATTORNEY GENERAL

J liffo
Assistant Attorney General