On The Attempt To Use A Child As A Weapon

It was busy in Utah last week. A family court judge named Scott Johansen ordered that a nine-month-old child be removed from her foster home. He issued this order not because the child was in danger – the state’s social services not only reported no problems, but wanted the child to remain in the home, as did the child’s biological mother – but because the foster home was occupied by April Hoagland and Beckie Peirce, two legally married women. This was too much for Johansen, who declared that the child should be removed to another home because she would have a better chance of succeeding if not burdened by being raised by a loving couple who had already spent three months caring for her. This was a widely condemned judicial move and, by the end of the week, Johansen reversed course although he made sure to reserve the right to remove the child at some future point. This too was noted and he has since recused himself from the case entirely.

It is easy to criticize Johansen, even after his reversal and subsequent recusal. What he proposed to do was monstrous and he should be pilloried forever for having even considered it. But to criticize the man broadly does no real good. His machinations deserve to be fully understood. We recognize what happened as an outrageous legal assault upon two adults, and it was, but it was just as much an attack upon the child. It was only the former that got any attention.

Johansen’s loudest critics focused on the injustice being done to the foster child’s parents. This is not unreasonable. Johansen cited Hoagland’s and Peirce’s sexuality – and only their sexuality – as his motivation in removing the child from their home. He referenced social science research which allegedly showed that children raised in homes with a mother and a father did better than children raised in homes consisting of any other combination of parents. Pressed to provide the research, Johansen declined, either because it never existed or because he rightly recognized that it was unlikely to withstand scrutiny. (Here is what happened to another supposed expert when his views were questioned under oath.)

Johansen’s legion of critics understandably viewed Hoagland and Peirce as the child’s parents, even though they had not yet completed the adoption process. They viewed Johansen as wronging other adults. That the child’s biological mother supported Hoagland’s and Peirce’s adoption of her daughter was asserted as further proof. Johansen defense was his alleged concern for the child’s best interests. Neither the child’s three months with Hoagland and Peirce nor the biological mother’s support slowed the judge. He recognized his own superior legal position and apparently saw no reason not to assert himself. He is, after all, a judge specifically empowered to make such decisions, one who apparently regarded his power as infinite and beyond reproach, no matter how outrageous his own justifications. It seems perfectly clear that Johansen attacked this family out of an explicit animus toward homosexuality propped upon the well-being of a child. This is what has been criticized. Everybody from Hillary Clinton to Gary Herbert objected to Johansen’s decision by framing it as an outrageously bigoted legal assault upon the foster child’s parents. Here is Clinton:

Being a good parent has nothing to do with sexual orientation—thousands of families prove that.

Clinton’s was a particularly high-profile comment. She chose to emphasize that Hoagland and Peirce were the ones being victimized. But although it is obviously true that Johansen’s goal was to hurt Hoagland and Peirce, his preferred means of doing so is particularly galling: he used a child against them. He, for lack of a better term, turned a one-year-old into a weapon.

We know very little about the foster child. This is by design. The courts are incredibly protective of children, placing a premium on their privacy. This includes hiding names, details, and other pertinent information from public view. Society has generally agreed to this principle, and it was in play in Utah, as the only details we have about this child are a rough timeline of her life: she was born to a mother who could not raise her, she was eventually placed in Hoagland’s and Peirce’s home, and she spent three months there before Johansen attempted intervention. Various reports suggest that she is roughly a one-year-old.

In other words, Johansen was proposing to move this child to a third home, her second foster home. Johansen had to know that what he was doing guaranteed this girl nothing. Foster care is a notoriously uneven business, as is the reality of offering money in exchange for the care of children. Are most that answer this call the best among us? Indeed. This should not be understood as a critique of foster care generally. It is an attempt to do the best possible thing under often terrible circumstances. That Hoagland and Peirce voluntarily agreed to raise a child who was not their own is itself a minor miracle. But it does nobody any good to pretend as if it is particularly difficult to find nightmare stories of the abuse children endure in foster care, even in Utah. And those stories are relatively-run-of-the-mill. It takes scarcely more effort to find truly disturbing accounts of outright malicious foster care.

All of these are the stories that make it into the public eye. Very few do. The catch-22s of the judicial emphasis on confidentiality is that there are many more cases which get no attention at all. Although this protects child abuse’s victims, it also protectors its committers, individuals who are rarely, if ever, substantively charged for their crimes, much less tried, much less convicted. (Note that in the case of the Gravelles linked above, the parents only did two years apiece for caging their children and depriving them of food. What would the charges be for having done something similar to captive adults?)

Here’s the thing: the system’s emphasis on confidentiality means that only the system’s insiders can know how bad the problems can truly be. Scott Johansen is one of the system’s insiders.

If anybody properly understood the risk being taken in transferring a child from a supportive home approved by the state’s social services agency to any other home, it should have been Johansen, and yet he still charged forward. Maybe he already had a specific family in mind when he issued his now rescinded order.  Maybe, in his mind, having already selected a family took the edge off. But even if that is the case, he was mandating incredible upheaval in the girl’s life. Already in a situation where she no longer saw her biological mother, she would now be forced to no longer see the two mothers she had spent three months becoming accustomed to, not because her two mothers had done anything wrong, but because one of them was not a man. Johansen cared more about this last part than he did about that child and what was best for her. The judge was more than willing to demand that this child endure significant change – in the form of different faces, altered diet, changed schedules, varied responses, and in all actuality, an entirely transformed life –  if it meant accomplishing his preferred outcome: hurting a married gay couple.

Had he not issued his order with all of the tact of a hippopotamus in a kiddie pool, he likely would have gotten away with it. Nothing required him to cite Hoagland’s and Peirce’s sexuality, nor was it necessarily to be as utterly brazen as he chose to be. Shielded by the law’s emphasis on confidentiality, he likely could have mumbled his way through a reason to place the child elsewhere, giving Hoagland and Peirce no options to appeal. It was only because he chose so outlandish a method to punish these two that he ended falling under such an intense spotlight. In this regard, it is inexplicably true that this child was lucky to have so bullish a judge.

So is it the case that April Hoagland and Beckie Peirce were victimized last week, specifically because they had the audacity to be legally married women willing to open their home to a foster child in the legal proximity of Scott Johansen? It is indeed. But it is also true that Johansen was willing to risk a child’s well-being to victimize this couple. It is this second part that should never be forgotten, although like so much violence waged against children, it will be. By design.


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19 thoughts on “On The Attempt To Use A Child As A Weapon

  1. If anyone is ever feeling a little too chipper about humanity, please spend a few days in Juvenile Court. The utter ruin of young people’s lives is there for all to see.

    On a regular basis the public defender to whom I am married would come home with stories to the effect that the mother would ask the court to take her child off her hands because she couldn’t do anything with him. It was the State’s turn to teach him respect.

    Good parenting is the single most important job in the world.


  2. My son’s legal guardians (should my wife & I be killed) are my wife’s aunt & her partner. We made it very clear in our wills that this is to be so.

    It chills me that a judge could possibly do something like this, although the fact that we all live in WA makes it less likely, but still.


  3. Some random thoughts — which are in no way apologies for Judge Johansen’s obviously biased ruling.

    1. In Johansen’s mind, he may well have thought he was ruling in the child’s best interests. Within living memory, LGBTQ people were defined as “deviants,” “freaks,” and by definition mentally ill. There was little distinguishing between same-sex attraction and attraction to children. To be homosexual was to be the survivor of some childhood trauma so awful as to distort the natural order of things within the mind, and therefore likely to abuse a child in turn. Johansen seems likely to have come from that generation. Now, he ought not embrace such obviously false notions, particularly with such relish, in light of everything that’s happened between 1950 and today. That said, if you really thought a person was mentally ill and unusually likely to sexually abuse a child, you’d be inclined to not award them custody of a child too. The error is in equating homosexuality with these unrelated undesirable characteristics, and Johansen may be, at least emotionally, not willing to reject the linking of the two that he was socialized into believing as true.

    2. Johansen is a judge and we are criticizing a decision he has made while discharging his judicial office. Judges enjoy civil immunity for even the worst sorts of decisions that they make while discharging their offices. Decisions like this are almost certainly not likely to be reviewed by any other judge or appealed to any higher court; when they are, they come cloaked in presumptions of correctness. The sanction against them is typically that they must explain themselves to the voters when they stand for re-election. Johansen is therefore an elected official who may feel political pressure to make decisions in a way that reflects the political will of his constituency. If you think that in the task of making legal decisions that must vindicate the rights of sometimes unpopular people is inherently inconsistent with making political overtures that please the majority of voters, well, I agree with you.

    3. An important part of being a judge is not just being free from bias, but appearing free from bias. The reason for that is not only to have decisions made which are fair and just, but to encourage the public to trust the judicial system, so as to make the judicial function of the government work better on its own and in a way that the public accepts as legitimate. Johansen’s greatest sin may well have been not only issuing an biased and prejudiced decision, but doing so in an overt fashion, then pulling it back and pushing the case away to someone else. This reflects badly not just on Johansen but on the judiciary in general: some other judge is going to have to labor much harder than she otherwise should have had to, in order to re-inspire the trust of the public.


    • Burt,
      Reports from Utah say the bastard does this sort of thing (arbitrary rulemaking, reducing sentences for letting mum give the kid a haircut…) all the time.

      Is he actually elected? Because he sounds like someone who shouldn’t be a judge. Too much grandstanding.


      • I looked up the process. To get to be a judge in Utah, there is a three-step process.

        First, you meet five objective criteria: you must be a) a citizen of the United States; b) a resident of Utah for at least three years; c) admitted to practice law Utah; d) More than 25 years old; and e) not be older than 75 years. Second, you submit your name in an application to a nomination commission, which investigates and evaluates your suitability to serve as a judge. Third, when a vacancy in the judiciary opens up, the commission selects five to seven potential nominees depending on the type of judicial office in question (Johansen is a juvenile court judge), and the Governor selects from among those.

        The initial appointment is for a term of up to three years. Thereafter, there are up-and-down retention elections: voters are asked, “Should so-and-so be retained as a judge for a term of six more years?”

        Johansen was initially appointed to the bench in 1992. In 2014, just like every other judge in the State, he won his retention election by a margin of 76.2% and therefore will hold office through January of 2021 unless he is removed from office by the Utah Supreme Court (typically after an investigation and a hearing with full due process rights before the Utah Judicial Conduct Commission). Johansen’s margin of victory in his retention election was about middle of the road for all the judges on the ballot. Readily-available data goes back only to 2010, and in that time I can find no instance of either the Utah Judicial Conduct Commission recommending anything other than minor discipline for any judge nor any instance of any judge winning retention by less than a 70% margin.


    • With regard to maintaining office while in “good conduct,” it occurs to me that, in consideration of everything that constitutes “good conduct” for a judge,” most people incarcerated have been imprisoned for “good conduct.”


    • Burt, can you explain how this case works? As a layperson, I’m confused as to why a judge would be in a position to rule this. I thought things only went to the courts when someone (an individual, an organization, the state) brought a case before them. If no one but the judge objected to this adoption, why was he in a position to make a ruling on it?


      • It is almost certainly because the child was in foster care. Children in foster care are in the custody of the state due to the parents being unable, for many possible reasons, to safely care for the child. The state will try to find an adoptive home for the child and if there is an adoption legal responsibility will transfer to the adoptive parents. But until then the CPS has to justify and explain what they are doing to a judge since the state has the ultimate responsibility to further the chlids best interests.


  4. I recall a case in Florida, some time ago now, where a judge granted the petition of a woman to take custody of her granddaughter away from the child’s mother (her daughter), because the mother was a lesbian and this was an unhealthy environment for the child.

    It was noted at the time that he was, by his own logic, putting the child into an environment proven to produce lesbians.


  5. He referenced social science research which allegedly showed that children raised in homes with a mother and a father did better than children raised in homes consisting of any other combination of parents.

    I get tired of hearing this offered as if it meant anything, even if true. For a very long time now, our society has held up the two-opposite sex-biological parent version of the family as the ideal type. Many formal institutions and informal customs heavily favor that sort of set-up. We are used to it. Nobody thinks it strange or in need of justification. It offers genuine conveniences if you can pull it off. Under the circumstances, it would be astonishing if that family structure didn’t have some child-rearing advantage.But I am unaware of any study that shows a large difference when you control for certain obvious variables, or shows that other types of family structures don’t also produce reasonably good results. There is no more “best interest of the child” justification for taking a child from one set of adequate parents to a different type of presumably adequate parents than there would be for taking just about any child from its family to be raised by Bill and Melinda Gates. And probably less.


    • There is actually pretty serious factor that determines how well a child does in life, and it’s nothing to do with who is raising them, but how much time and money can get spent on the child.

      That’s…it. That’s the difference. More money and/or more time. Everything really boils down to that.

      Considering that out gays couples are *still* slightly wealthier on average than straight couples (Which is probably more to do with who can *afford* to be out, but whatever.), logically, children raised by gay couples do *better* than those raised by straight couples, in terms of absolute outcomes.

      In fact, couples who *adopt* children tend to be wealthier than those who just *have* them, also. Likewise, couples that do not ‘automatically’ get pregnant but have to do something to end up that way (like lesbian couples) *also* tend to be wealthier.

      This is less because of them being ‘responsible’ per se, and more because a lot of parents are *very* irresponsible and can’t possibly raise a child on their current funds, but, uh, oops. If someone *chooses* to have a kid, they are, statistically, more likely to be prepared for one than J. Random Parent, who has something like a 20% chance of *not* being prepared.

      So by the logic who ‘who does better at raising children’, *logically*, we should take children away from poor straight couples and give them to rich gay couples. Or away from poor straight couples to poor gay couples, or to rich straight couples. Or, hell, we should take them away from poor straight couples that *didn’t* plan for a child (We could make them declare this in advance.) and give them to infertile poor straight couples that have asked to adopt.

      Or we could, you know, not do that, considering it would be insane. Almost as insane as thinking a moderately wealthy lesbian couple can’t raise a child.


      • I agree with all this, but I still wouldn’t be surprised to see a small edge for the traditional family structure, all other things being equal, simply because the playing field is largely designed with that structure in mind. And if there isn’t more than a small difference, even with this natural advantage, then that isn’t enough to drive either policy or individual decisions.


  6. These days, appended to every search warrant issued, in the invisible ink of caselaw, is written:
    . . . and kill all the house pets right in front of the children.

    Of course, were this to happen to the child of a gay couple, this would be a cause for concern.


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