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Win for Utah Families

An innocuous looking Senate bill, SB-99-Child Welfare Amendments, contained hidden language. The Department of Child and Family Services (DCFS) and Utah Attorney General’s Office added five lines to SB-99.

This language allowed the current practice of “withholding information from a petitioning parent to protect the privacy interest of the other parent or any caregiver who may also be a subject of their child’s records.”

Attorney Jane Tippets

Thanks to Jane’s eagle eyed husband Crossroads Urban Center advocate/associate director advocate, noticing the bill’s changes to the DCFS GRAMA statute. Attorney Greg Ferbrache wrote a letter testifying against the language in SB-99. After significant controversy, SB-99 was sent to the Utah House. It took three substitution and amendment, removing the problematic language.

The pro transparency/pro family bill version of SB-99 passed the House unanimously and unopposed! An impressive feat. This is a victory for the survivors of domestic abuse. Greg was proud to submit his testimony to the Stop of Fix SB-99 movement, resulting in DCFS having accountability to parents, especially low income parents so heavily impacted by these provisions.

Ferbrache Law is proud to serve it’s clients working to lobby for responsible laws and public policy. Helping Utah families, parents and individuals is a rewarding pursuit for Greg. A special thanks to the volunteers of the Conference Committee who worked very hard to get SB-99 fixed:

Sponsor Senator Harper wharper@le.utah.gov 801-566-5466

Senator Todd Weiler  tweiler@le.utah.gov 801-599-9823

Senator Luz Escamilla  lescamilla@le.utah.gov

Representative Paul Ray pray@le.utah.gov 801-550-6434

Representative Ashlee Matthews amatthews@le.utah.gov 801-725-2719

Representative Casey Snider cnider@le.utah.gov 435-890-3383

Feel free to call them and thank them for their work on this. It made a difference. If you’d like to know more about SB-99 Check out these useful documents:

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Utah SB 99 Proposed Revision

I submitted this testimony to help not only my clients but all families facing challenges with DCFS. Ensuring Utah’s laws serve it’s citizens. Representing my clients isn’t limited to the courtroom. It extends to the legislature and how laws are made.

“During my past three years in private practice, I have experienced the importance of transparency and access to government records and have seen the harm caused when essential records are not fully produced in a timely manner.”

Greeting to Committee Chair Representative Nelson, House Health & Human Services Committee Members, SB99 Sponsor Paul Ray, SB99 Senate Sponsor Wayne Harper, and my District Representatives and Senators:

I am requesting this House Health and Human Services Committee remove from SB 99 its proposed revisions to §62A-4a-412, the statute DCFS turns to when making disclosures in response to GRAMA requests.

I am corresponding to each of you as a prior prosecutor with the Salt Lake County District Attorney’s Office, a prior prosecutor and Division Director of the Justice Division within the Utah Attorney General’s Office and currently a private attorney. As of 2018, my practice involves advocating for victims and defending those charged within the criminal justice system. I reside in House District 28 and Senate District 4, and my firm is located in House District 25 and Senate District 3.

During my past three years in private practice, I have experienced the importance of transparency and access to government records and have seen the harm caused when essential records are not fully produced in a timely manner.  In particular to DCFS, access to DCFS records is essential to properly advocate for victims, defend against false accusations, to protect the child, to better understand the allegation and/or to ensure the decisions made by a DCFS worker is sound and based in fact, and that it adheres to policy and best practice. 

Under the current version of §412(3)(b), DCFS has almost no discretion to withhold/redact information when providing a record to a parent as it is “only” permitted to withhold/redact the specific information referred to in the statute.  On the other hand, SB 99 lines 522-23 and 527 remove the word “only” as well as the language establishing that §412(3)(b) preempts GRAMA.  These seemingly minor changes would give DCFS broad discretion to withhold information, such as its communications with the other parent and other parties, that it currently has no option but to disclose under existing law.  

In addition to further restricting access to some records, the changes would make the process for obtaining DCFS records much more arduous and expensive.  Broadening DCFS’s discretion in determining what to withhold from and what to provide to a parent would inevitably lead to more appeals and delay in disclosure of important records through the lengthy appeal process.   I do not see a fiscal note on the Bill and I am concerned that with the volume of cases there would be a substantial fiscal impact not currently recognized in the fiscal note.

Part of my concern with SB 99 is that by making the process to obtain records more arduous and expensive it would be also be restricting the right of access in the same way charging parents for their records would.  SB 99 would also disparately impact those families with limited time and money and especially disadvantage those dealing with financial and other types of abuse in the context of litigation. 

It is with great respect to the legislative process that I inform you of my concern with SB99.  I have reviewed the Senate committee testimony relating to SB99. I have conferred with informed colleagues. The consensus is that there is a disagreement with DCFS as to the application of the referred to revisions in SB99.

It is for this reason that I respectfully ask this Committee remove them.  These lines are not material to the overall policy of the Bill. If passed, and the above unintended consequence be true, the overall negative impact and unintended harm to the families will never be restored. Let’s agree to get it right before enactment rather than fix it after passage. 

Thank you for your time.  

Be well, 

Gregory Ferbrache

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When The Victim Is Charged

Victims charged with Domestic Violence Offense

Too often, victims of domestic violence are mistakenly arrested and criminally charged for protecting themselves from the violence committed against them by the perpetrator who has long been the abuser in a relationship. Unfortunately, these victims feel trapped in the abusive relationship are now more restrained within the criminal system. Rather than fight, many choose to accept a plea deal, and not allow the truth to prevail.

In Utah, even accepting a plea in abeyance to a domestic violence offense can have significant ramifications. A plea in abeyance, although not a conviction, requires you to pay a fine, to be supervised by either the court or probation, to undergo domestic violence treatment, and to risk a conviction if you are unable to complete the ordered terms. Also, a plea in abeyance to domestic violence is enhanceable, meaning that if you are accused of committing domestic violence in the next five years, the government can increase the penalty by one degree, which is significant.

Simply put, the abuser can use protections meant for victims as a sword against the victim and not as a shield as it was intended.

More importantly, the abuser can use the allegation against the victim in many ways. Knowing that a violation of the agreement will result in conviction, the abuser gains even more power and control over the victim. The abuser can also use the allegation to bolster a Department of Child and Family Services (DCFS) action, gaining the upper hand for custody in a divorce proceeding, and to obtain a protective order against the victim. Simply put, the abuser can now use the protections that were meant for victims as a sword against the victim and not as a shield as it was intended.

All hope is not lost. Having a defense attorney experienced in the dynamics of domestic violence will provide you the ability to tell your side of the story. Greg Ferbrache has over 14 years as a prosecutor working with victims of domestic violence and other serious victim crimes, and has been recognized for his work in the domestic violence field. As a criminal defense attorney, Greg has successfully obtained justice for victims who have been mistakenly charged. If you have been falsely accused of a crime you did not commit, give Ferbrache Law a call
(801) 440-7476.