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.