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 Using it as a guideline, CPS will reconsider its spanking policy, said Hunt, who first became aware of the unpublished ruling last week.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."

One case that is not representative of the larger population

Yes, it is.

I cited only this one case because it makes the point most saliently. There are lots, I mean LOTS of other examples out there. No, I'm not going to cite them all. This evidence cannot be ignored, however.

And it is evidence.

Permanent damage or the live of the child is in jeopardy

I agree with your first point. I disagree with the second simply because it is a subjective call. If someone is enough of a threat to another person (or their own children) that their children can be taken away, there had better be enough evidence to put them in prison as well, or there is no case.

This makes it very objective, and with the disruption of families and lives, this is the standard that should - no, MUST - apply.

You know, the "jury of their peers" thing 8^>

"Hardly indiscriminately."

Absolutely indiscriminately. Remember the CPS, or here in Pittsburgh CYS, is a bureaucracy and the only way a bureaucrat can be fired is by making a decision, hence common sense plays no role whatsoever. What are zero tolerance policies except a bureaucrat protection act?

I have had the misfortune of dealing w/ the "family" bureaucracy and so I do speak w/ some experience. IMO they have far too much authority to interfere in private matters.

With a country as large as the United States you are going to be able to cite examples of incompetence. How would you reform the system?

You must not know of this case. It is much larger than that. Did you know that people were put in prison? Did you know that lawsuits were brought and won by the plaintiffs, to the tune of approximately $38,000 for every man, woman and child in the city of Wenatchee (about 40,000 people - do the math)? Did you know that it started a shakeup in the whole CPS system of this state. The shakeup became more accute as more and more cases with similar problems, albeit on a smaller scale, were exposed to public scrutiny. CPS literally does more harm than good. Yes, it may save lives - making it illegal to drive would save about 50,000 lives a year. But sometimes saving a physical life is not the higher principal.

After all, as Patrick Henry said, "give me LIBERTY or give me death!"

Seems there are some things more valuable than even saving lives, especially if one professes to be a Christian.

Oh, and how would I reform the system? Simple. Abolish it. It is none of the governments business at the scale it is perpetrated on this countries families. Someone kills or beats their kid? I guess that would be a matter for the police, wouldn't it?

Back when I was in college in the mid 90's I worked during the summer as an office temp in a law office. The old lawyer that owned the office was by far the shrewdest lawyer I have ever met in college or out.

He claimed to have never lost a case against CPS ...IF... the client came to him a soon as they received notice that they were being investigated. His first advice he would give to a client was to NOT cooperate, speak with or sign ANYTHING from anyone with CPS, any contact with CPS was to go through him.

If he consented to a CPS interview with the client, the interview took place in his office with him present and he would videotape the interview.

Of the three cases that his office defended the summer I worked there two were dropped by CPS. In the third case, CPS tried for permanent custody of the children. the case was dismissed in circuit court for lack of evidence and the children were returned too their parents.

This lawyer told me the worst mistake people make is being cooperative and passive with CPS. He would often say you would be a fool if a detective came to your door and said, "We are trying to build a case against you, we don't have enough evidence to arrest you or even get a warrant, but can we search your home and question you anyway and by the way, can you give us the names of potential witnesses that we can interview." Yet people will readily do exactly the same thing with CPS bacause they don't want to labled a bad parent.

Too bad for the kid that is tortured for years before he dies. Oh, well. You would not want to infringe on the rights of the parents.

Two things: First, how did they get away with it without a police investigation? Once someone notices the damage, the police should be called. An investigation would be done and if enough evidence is found, criminal charges are brought against a suspect. Sounds pretty simple and the way things should work. Again, it would end up with a "jury of thier peers" and all that that implies.

Second, I was in a 7-11 once, on a bike ride pit stop with a friend and a woman came in with her five year old son. She never laid a hand on him, but the entire time they were there she never stopped belittling him. He was worthless, he was stupid... It went on and on. After my friend and I left we commented that what she was doing was far worse than even crippling your child, but nothing would ever be done.

Nor should it. Because that child is her responsibility and my children are mine.

It is a travesty, but life is not, in fact, fair. That kid was dealt different cards with which to live his life than my children are. It is a hard fact to accept, especially for those who think the government has unlimited resources to cure all the evils, real or imagined, that man perpetrates on man.

I like to keep it simple: We have laws. You break one and are found guilty by a jury of your peers, and action is taken against you.

But not until then. Remember the supreme value: innocent until proven guilty. Sure, if you are being accused of a crime involving the safety of your children, they should be protected from you for the duration of the trial. But that's it.

Sadly the court system moves so slow that this could be up to two years before you could get a conviction. By that time the child could be dead.

Using your standards you have this scenario. See if you are comfortable with it.

A parent sticks the child's hand in the lit bar-b-que grill for snatching a pickle slice.

The police are called, the parent is arrested. Released on bail. Close ties to the community, no flight risk. Moves back in to the home with the child.

If there is evidence of chronic abuse the child should not be given back to the remaining parent if they were living with the abusive parent at the time the abuse occurred. Why? Because they made no move to protect the child. The right of the child to live free from abuse trumps the rights of the parents.

Your right to swing your arm ends…. Well, you know the rest.

If you want to argue that a child should not be removed without an arrest I would agree. If it is not serious enough for arrest then it is not serious enough for the child to be removed. And that the case should be brought to trial within a month. The investigation should not take longer then that.

a.cricket

Patrick Henry was not talking about an abused toddler.

No, he was making the simple point that preserving life is not the highest value by which he lived.

Nor is it mine...

Saving a life is not the end-all, be-all litmus test of the validity of a law or action.

That is the only point I was trying to make.

Funny thing about what you said is it reminds me of some other web pages I've been reading (for fun).

There are people out there who write "Without Prejudice UCC 1207" or something to that effect on every official document. Reason is they believe that the common law under which this country was founded (and requires an injured party for a case) has been subverted and replaced with something called statutory law, that resembles admiralty law, but no one will ever call admiralty law (because it sounds ridiculous - admirialty law on land).

Theory goes that by paying debts with Federal Reserve Notes, you think it ends there. But really instead of paying a debt with substance, gold or silver coin at common law, you have discharged a debt with limited liability. The OFFER is by the government to allow that by use of the FRN. The ACCEPTANCE is by you using FRN. The effect is now you are in a contract (unwittingly and unknowingly) that requires you to obey ALL the laws and statutes that fall under the umbrella of this jurisdiction. Demanding your Constitutional rights in court will get you in trouble.

Folks who write or have a stamp "without prejudice UCC 1207" are saying that this is a way of reserving some of their rights.

What relates to your post is all the abuses of government seem to come from an authority using laws to tell everyone what to do. This didn't happen under common law.

Later on tonight I'll find and post a link to the web page that addresses this. I don't know if there's anything to it or if it is a buch of hooey dreamed up by men with incredible imaginations. Either way, I'll post, you decide.

Later.

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