Should Josh Powell have had the right to be with his children at home?

SALT LAKE CITY — The plot Josh Powell used to kill himself and his children was so off the charts that players in Utah's child-protection arena had to recover from their own state of shock before thinking clinically about what happened or what could have been done to protect the children.

"I've dealt with hundreds of cases of (child) abuse and neglect, but this was just completely a shock," said Jini Roby, a lawyer and associate professor in Brigham Young University's Social Work department.

The shock and anger felt Sunday continued to resonate throughout Utah and Washington a day later as the same question kept being asked in homes and offices: Why did Josh Powell, a person suspected in the disappearance of his wife, facing a pyschosexual evaluation, have rights to be with his children at home?

The answer: Josh Powell did not fit easily into any legal box that would have kept him away from his children.

In the Powell case, "I'm not sure anything would have made a difference," psychologist and clinical director Carol Gageshe said. "There just isn't a law that can second-guess every human behavior."

Roby said the legal pendulum is continually in motion when it comes to the balance between parents' rights and the court's ability to intervene. "It's just a very, very delicate balance," she said.

In the Powell case, Josh Powell was a "person of interest" in the criminal investigation into the disappearance of his wife, Susan Cox Powell, who vanished more than two years ago. He was neither charged in the case nor publicly named a suspect.

Josh Powell lost custody of his two boys, Charlie and Braden, ages 7 and 5, because of child pornography found in his father's house, where Josh Powell and the boys were living. Father Steven Powell remains in jail facing charges, but Josh Powell was not implicated in that case.

"The judge was already on the verge of imposing on the rights of the parent" when Josh Powell lost custody of his children, who were temporarily placed in the custody of their mother's parents, Chuck and Judy Cox, Roby said. Such a decision is "a function of the court. It's not something we can establish through a scientific test or some kind of factual quantification."

There has been no legal argument that Josh Powell had neglected or abused the children, so his parental rights were firmly intact, Roby said.

There is usually a significant track record of neglect or abuse when the courts weigh in to strip a parent of the custody of their children.

"We have about half a million children in foster care on any given day. Of all of those cases, most of them have had some time period of concern, some indications of harm," Roby said. "For this to happen absolutely out of the blue like this is very, very unusual."

Salt Lake City-based Renaissance Child Visitation Services has facilitated court-ordered visits with non-custodial parents. Psychologist and clinical director Carol Gage said parents are usually on their best behavior during supervised visits because they know the supervisor's notes will get back to a judge overseeing custody issues.

"It's kind of like the way you drive when a policeman is behind you. You're extra cautious," Gage said, adding that the only harm that has come to any of her supervisors over the past 15 years was a broken tail bone when a supervisor fell while accompanying a child to a roller skating rink. "It had nothing to do with a threat or the parent."

Gage said court protective orders are in place in 80 percent to 90 percent of the visitation cases that come to her.

Sherry Hill, a spokeswoman for Washington's Child Visitation Services Seattle at the Department of Social and Health Services, said state authorities work closely with courts to determine whether supervised visits should be allowed and whether they should be held at a parent's home or at a neutral site.

"If there had been any indication of suicidal thoughts, or anything that we would have thought there was an intent to harm the children, we would have taken immediate action," she said. "If we had thought that, we would have done what we could. I don't think there's anything else we could have done."

Elisabeth Sollis, spokeswoman for the Utah Department of Human Services, said, "We all end up with some sort of emotional attachment," in cases. She said judges, the attorney general's office, guardian ad litem, law enforcement, mental health officials and education officials are drawn into cases that involve children and issues that arise within their family circles.

"You've got a lot of people" weighing into an arena where decisions are made regarding children's interests and safety, she said.