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 Using it as a guideline, CPS will reconsider its spanking policy, said Hunt, who first became aware of the unpublished ruling last week.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

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.

Sounds as though this agency is grasping at straws and has too much time on their hands. You would think they have competent lawyers who could advise them that before taking a case to court, you have to have evidence. Or perhaps there are other motives involved, like maybe trying to justify their existence and their budget by finding as many cases as they can come up with no matter how bogus instead of focusing on only those where it can be proven a crime has been committed.

Actually, if my memory serves in this particular case. Even the prosecuting attorneys office knew this case was a loser. The prosecuting attorney was a woman who had just won election on a platform of "family values" tough on "domestic violence" issues, so she felt obligated to prosecute EVERY abuse or neglect case given to her. At the end of the hearing the Circuit Judge berated the prosecuting attorney and the CPS Attorney for wasting the courts time.

The issue basically boiled down to a young boy had fallen off his tricycle and bumped his head. His parents took him to the emergency room were he was treated and released. They boy had been to the emergency room twice before in about a two year period of time for similar injuries. The first instance actually occured when the child was in day care, the second occured when the child was in the care of his grandparents, none were serious or required hospitalization.

Basically CPS'S case boiled down to "Well he's been to the emergency room three times it MUST be abuse" When the lawyer I worked for showed that during the first two cases the parents were hundreds of miles a way on business CPS'S case quickly fell apart.

If a procecuting attorney came after me like that, knowing that there wasn't a case but trying to destroy my family to pursue his/her career, it would become mano e mano to me.

It's personal at that point. And the police aren't gonna help you. You have to do it yourself.

The prosecuting attorney was a woman who had just won election on a platform of "family values" tough on "domestic violence" issues, so she felt obligated to prosecute EVERY abuse or neglect case given to her.

She must have taken a page out of Janet Reno's book who made a career down in Florida doing the same thing.

Yeah I don't know how many times as a kid I fell off my bike or did something to injure myself. It happens, and the prosecuting attorney didn't bother to look at the facts and drop the case.

This reminds me of the "War on Drugs" being raged by the government. Instead of concentrating on the real cases, they go after those that have nothing to do with it like businesses who sell hemp products. This despite Congress's clear mandate that hemp was not included as being illegal. Not only are zealots like this wasting the courts time, they are wasting taxpayers money and abusing and harassing innocent people.

How would you reform the system?

No removal of the child from a family without a criminal investigation and due process. If "social workers" are incapable of this, then maybe we should have more police assigned to these cases and less of these "politicized", "low level" beauracrats. If the charge is specious, it will be dropped earlier if the financial and other stakes ( to the gov't) are higher (one would hope).. The mantra of "civil rights" should also extend to parents, dont you think?

My cousin in Alabama had her 13 and 10 years old sons removed by the DHR for spanking them for being on the top of a school building. She gave them 6 licks each on the buttocks. Her ex-husband took them to the emergency room and complained and the boys were kept away from her for six weeks. He was also seven months behind in his child support, which by the way was $200 per month. The DHR has custody right now but the boys live with their father until October when a decision is to be made. They were pulled out of their school and told they were being taken because of their mothers abuse. My cousin is under court order to never spank the boys again. There is another case here in Texas with very similar details but involves a very rich man who is taking on the CPS.

Actually, as an interesting sidenote, her campaign promise to prosecute every charge of domestic violence or abuse/neglect lasted about a year. She finally realized that her office (it was a relativly small rural county) simple didn't have the resources to prosecute every case no matter how weak the merits. She was also getting hammered by the judges and magistrates as well as her own staff for backlogging the court dockets with junk cases. From what I've heard she has become much more selective in the cases she prosecutes.

He was also seven months behind in his child support, which by the way was $200 per month.

That's chump change. Wonder if he was fighting back the only way he knew how (not that he was right). If my child support was that low I'd put a lump sum in a trust and have the trustee pay for me. Then I could forget about it.

Wallace, I think Livelarge is sincere. You don't have to be a CBS lackie to want to protect children. The problem is that some focus more on the protection of children, while others focus more on the protection of the family as a viable unit.

I once was given the example of two men who lived life based on the same three high values. That is, family, career and health. However, if man #1 put them in this order: family, health, career, and man #2 put them in this order: Career, health, family, they would live completely different lives. One would be a workoholic who never saw his family, while the other would have a hard time keeping his job, but would be around the kids constantly.

I think that is the difference between us and Livelarge. Same values just in a different order. Like in my post about Patrick Henry. I'm sure he valued life. He just put something else above it. We Christians value life, but we value the soul much more.

The effects of some decisions are detrimental to life but nurish the soul. In an abstract sence, this issue involves that kind of dynamic.

Very true...

I know many of the clients we dealt with left with a deep mistrust and fear of Government officials. I can't say I blame them.
Even though I've been happily married for six years now and have two wonderful kids, I still lay in bed at night afraid, knowing from my experiences working at the law offices how easy it is for CPS to make someones life a living hell. An jealous neigbor, an vengeful business rival, anybody can make an anonomous call to CPS and start the process.

In fact it was the experience I went through that summer seeing how the process worked, that turned me away from law and I ended up becoming an Accountant. I couldn't stand the emotional pain I felt for these families, I knew I could never develop the detachment to be able to do this type of legal work for a living.

I am sure that you are not suggesting otherwise, but I am a Christian.

Not only am I not, but I had a suspicion that you were, I mean are.

I disagree with other Christians from time to time on specifics even though we may agree on some principles. After all, not one thing you have said in any post that I can remember sounds like it comes from any position other than to want to help children. That is a good thing, at least to me 8^>

And you don't think that a parent guilty of abuse might try to coerce his or her children into changing their testimony and that the coercion could escalate to murder.

Possible, but I have two replies. First, since I said they should be kept from the child until a verdict is reached on their innocence or guilt, I don't see how your question relates to my comment.

Second, life is risk. There is even a risk that a parent that has never laid a hand on her children could one day go berzerk and kill them all. Come to think of it, it seems to be happening a lot lately.

You can only do so much before the protection becomes more harmfull (to the psyche of EVERYONE involved) than the actual thing we are trying to keep from potentially happening.

CPS is seriously evil. The evidence, albeit anecdotal, is overwhelming. But then, who keeps track of "non-anecdotal" evidence?

BTW, I should point out, while I am talking about "relative" values, that I value an adult exactly as much as a child. I do not hold a child up as more valuable than an adult.

That is part of the problem I see in a lot of this stuff. The adults are treated like they are irrelevant and they resent it, whether they consciously know it or not. It is very harmfull to them. They feel as though they are the enemy of the (infinitely powerful) government when this stuff happens to them. This country was founded on principles that were meant to communicate the exact opposite. It is what made this country great.

Our country will be brought down over this stuff. And I believe it will happen very soon. I would be quite distraught over it if it weren't for what I heard a pastor say over 20 years ago: "where would the early church have been if they had put their faith in Rome?"

Democracies (which is what this country has become, sad to say) run their course. This one has just about run its course to the end to which all the worlds great democracies share - dictatorship.

Don't believe they control you? Take a quick car trip to the market with your toddler strapped in only a seat belt. Hope no cops see you because you've broken yet another law that was created for your own protection. Some would literally call violation of the car-seat law child abuse, BTW.

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