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State child welfare officials and a set of same-sex foster parents have launched a legal push against a judge's order to remove an infant from the couple's Carbon County home because they are lesbians.
The Utah Division of Child and Family Services (DCFS) on Thursday filed a petition for a stay of the order from 7th District Juvenile Judge Scott Johansen, while an attorney for the women April Hoagland and Beckie Peirce filed a separate petition asking the judge to reverse his own ruling.
Both came hours after Utah Gov. Gary Herbert said he was "puzzled" by Johansen's ruling and expected state agencies to investigate the matter.
Under the order issued Tuesday, Johansen gave state officials until Nov. 17 to remove the child. In his ruling, Johansen said research showed that children do better in homes with heterosexual parents.
The order has not been made public, but The Salt Lake Tribune filed a motion with the court Wednesday, seeking its release.
"It is our position that this removal is not in the best interests of the child," DCFS officials said in a statement. "Unless Judge Johansen vacates his order, DCFS will proceed with our petition to the [Utah] Court of Appeals."
Hoagland and Peirce, who have been married for a year and are licensed foster parents, have cared for the girl since August, as the state has moved through the legal process of terminating the parental rights of the child's biological mother.
The couple, who are also raising Peirce's biological children, ages 12 and 14, intend to adopt the girl and have said the child's mother told Johansen on Tuesday she wants her daughter raised by the couple. On Thursday, DCFS said the girl is 9 months old, not 1 year old, as they originally reported.
Court papers filed on behalf of the couple are not public, but they ask the court to reverse the order and prevent the child from being removed on Tuesday, said their attorney, James Hunnicutt.
"What [Johansen] did was obviously just unconstitutional and against the law," Hunnicutt said.
It was not clear Thursday how Johansen might address either of the filed petitions.
"I don't care if there is [a] hearing, or if the system corrects this on its own," Hunnicutt said. "I just want this mistake remedied as soon as possible for the benefit of the child and the benefit of my clients," he said.
State law formerly prohibited gay and lesbian couples from adopting or fostering children, but that changed when the U.S. Supreme Court upheld the right of same-sex couples to marry.
Herbert addressed the issue during his monthly KUED news conference on Thursday.
"I'm a little puzzled by the action down there, personally," Herbert said. "[The judge] may not like the law, but he should follow the law. … We don't want to have activism on the bench in any way, shape or form."
Karen McCreary, executive director for the ACLU of Utah, issued a statement Thursday, saying, "No child should be denied stability and separated from a loving family because of a judge's baseless beliefs about lesbian and gay parents.
"There is a clear scientific consensus that children of same-sex parents fare no differently than their peers. Claims to the contrary have been consistently rejected by courts."
McCreary said the ACLU of Utah will continue to monitor the situation, adding: "We affirm that decisions about the best interest of a child should not be based on discredited and damaging assumptions. That kind of reasoning serves no one's best interests and directly works against the interests of foster children, the state's most vulnerable children."
Johansen has been a lightning rod in the past. In 1997, he was reprimanded for slapping a 16-year-old boy who became belligerent during a meeting.
And he was criticized in 2012 for ordering a woman to cut off her 13-year-old daughter's ponytail as punishment for the teen cutting hair off a 3-year-old.
The judge, former Emery County attorney, was appointed to the bench in 1992 by then-Gov. Norm Bangerter.
A 1977 graduate of the J. Reuben Clark College of Law at Brigham Young University, he is a former chairman of the state Board of Juvenile Court Judges and of the Judicial Council's Policy and Planning Committee.