Parent's Right To Spank Lies At Heart Of Custody Case

SACRAMENTO, Calif. - A woman whose son was erroneously removed by Child Protective Services has filed a civil lawsuit against Sacramento County demanding social workers be barred from taking children from their parents unless they have proof the children are in imminent danger.

Repercussions from the family's case, which was the subject of a separate appeals court decision last year, have prompted the county to re-examine its definition of child abuse and have fanned the debate about a parent's right to spank.

Tricia McLinden's 12-year-old son was placed in protective custody in September 1999, and spent nearly two years living in a series of foster and group homes before a state appellate court threw out the case and ordered the boy returned home.

McLinden's civil lawsuit, filed in Sacramento Superior Court last month, alleges CPS violated her constitutional rights to be free from governmental interference and the unreasonable seizure of her child. It seeks unspecified monetary damages.

The boy was returned home in May 2001, after the state's 3rd District appellate court ruled his mother's attempts to discipline him by spanking him with a belt and confining him to his room did not constitute abuse.

At the time, social workers were asking that McLinden's parental rights be severed permanently.

"We don't sue social workers for making mistakes," said McLinden's attorney, Donnie R. Cox of Oceanside. "What this case is about is making a mistake and then continuing the process when (social workers) knew they should send the kid home."

CPS officials acknowledged that a heavy volume of new cases in 1999, coupled with a critical shortage of social workers, might have hastened the decision to remove the boy and could have resulted in a cursory investigation.

Even so, the director of the county's Department of Health and Human Services, Jim Hunt, said the agency's actions had withstood review by a juvenile court referee and later by a juvenile court judge.

He said the appellate ruling helps clarify how far parents can go in disciplining their children. Using it as a guideline, CPS will reconsider its spanking policy, said Hunt, who first became aware of the unpublished ruling last week.

Until now, Hunt said, CPS considered a permissible spanking one in which a parent struck a child's bottom with an open hand. Using a belt or a switch or producing visible injuries was considered abuse worthy of CPS intervention, though not necessarily removal.

The boy was placed in foster care after telling school officials that his mother beat him, and showing his principal a faded 1-by-3-inch purple bruise on his lower back, according to court records.

McLinden's son told the social worker that his mother often hit him with a belt and locked him in his bedroom for hours at a time. The social worker decided the boy was at imminent risk of harm and placed him in protective custody.

Though some of her son's claims are in dispute, McLinden readily acknowledged she had spanked him with a belt and locked him in his room to control his behavior. She described her son as an angry, aggressive child who hurt other children, assaulted a teacher, stole her money, forged her checks to buy junk food and forged school progress reports.

McLinden's civil suit claims social workers denied her federal right to due process by supporting their case with deliberately fabricated charges, namely that her son could not leave his room to use the bathroom and was not allowed to have friends.

Cox said that because child welfare cases are held to a lesser standard of proof than criminal cases, social workers often don't do as thorough a job investigating cases as their counterparts in law enforcement.

McLinden's suit also claims the county deliberately excluded information from her case that would have provided context for the discipline, specifically that she had sought advice from school officials and tried other methods before resorting to corporal punishment.

Her case in many ways illustrates the conflicting views in America's ongoing debate about corporal punishment. As evidenced by various court rulings in her case, the issue is far from settled at the judicial level, leaving parents and social workers without clear guidelines.

The appellate court overturned both the decisions of a juvenile court referee and a juvenile court judge, quoting state law that specifies "reasonable, age-appropriate spanking ... in the absence of serious physical injury" is not abuse.

Armed with the ruling, McLinden filed a claim against Sacramento County in October, a required step before filing a lawsuit. The claim was denied.

Now, McLinden is seeking a court injunction against CPS removals of children in similar cases. Her claim alleges county authorities routinely act "with deliberate indifference to their duties and obligations" to fully investigate child abuse claims.

"The requested injunctive relief doesn't sound much different from what the law is," Hunt said. "And we follow the law."

can quickly make EVERY home a "potentially dangerous environment".

That's where they're heading with all these "children's" agencies. Why else would they be quizzing children in school about whether their parents have guns in the house, whether they smoke, whether they ever use curse words, etc., etc. Once these little dossiers are in place, don't tell me that CPS (or whatever) won't begin pulling these "school files" to make cases against parents who buck the system. There is simply no other valid reason for the instrusive nature of these type of questions. Add to this the fact that now they're trying to MANDATE pre-school to being no later than age 4!!! The earlier they can get their hands on the children, the faster the indoctrinational, politically correct, nanny state group-think can be instilled.

What is even scarier is that too many people are simply getting used to the concept of punishment without conviction in this country. We see it with DUI cases, minor drug offenses, and especialy with CPS. Obviously, having your children taken away by the state is punishment - a violation of basic human rights. Yet, if the parents are never arrested or prosecuted, what does that tell you? Exactly. No crime.

Punishment without conviction - the new American way.

Too little information in this article. How did the school discipline her son when he assaulted a teacher, hurt other children, and forged school progress reports? What advice did they give her? What other methods did she try? Did his behavior improve when he was placed in foster homes?

Superficially, it appears she has a good case.

Me, personally, no, but I remember hearing her tell my cousins to go pick one. One time she had all of the grandchildren over at once without our parents and I believe she tried "preventative maintanence"...The fruit bowl on top of the refrigerator was already full of switches and she just pointed to the bowl as we entered the kitchen. When our parents returned they were all told how wonderfully we had behaved. LOL!

CPS officials acknowledged that a heavy volume of new cases in 1999....hastened the decision to remove the boy . Even so, the director ..said the agency's actions had withstood review by a juvenile court referee and later by a juvenile court judge.

Corporations get sued for less egregious malfeasance than this. But the worst thing about is they are unrepentant.

And look again.. they say they need more money to hire more social workers, but hey, they also didnt do anything wrong, they were just following the law! In truth, they need to be disciplined, and bad..

you see all we need is some good bureaucratic excuse and we can burn your constitutional rights!

Let me be more clear. If they leave a child in a home where the parents that is unsafe because of abuse, then the child could die. If a child dies from abuse, then CPS catches all kinds of flak. Not an easy job.

Your entire argument stands on the definition and scope of one word: ABUSE.

What is your definition of this word?

Good! The state should wait until the parents starve or beat the kids to death. [/sarcasm]

Not necessarily to death. But they certainly can't go in just because they think a parent may beat their child.

So when do they go in? When would you have them go in. And how can you take children from parents that are not even arrested or booked for alegedly committing a crime?

is lying part of that "difficult job"? don't kid yourself, a friend of mine quit a CPS job because she was instructed to "do whatever it takes" to remove a child from the parents. CPS makes big money from the government for placing kids in foster care, and even bigger money for adopting the kids out. 80 percent of CPS cases are bogus. And why does CPS get to be above the law and the Constitution. Why did judges have to actually rule that CPS workers could not violate constitutional rights in the process of their jobs? And why does CPS get to make up rules in direct conflict with state laws? Guess what? There is NO law against spanking in California.

Hardly indiscriminately.

Read about the Wenatchee Washington case. It is a travesty brought on by CPS and a "poster case" around which most of those that think the CPS should be abolished can rally!

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