Vallejo Times-Herald, Vallejo, California, 7 June 2002

Couple found not guilty of abuse for using belt to discipline child

It was a situation any parent who believes in corporal punishment could find themselves in, said the attorney for a 61-year-old construction worker - who along with his girlfriend - was accused of child abuse after disciplining the woman's son with a belt.

A jury acquitted Ernest Kay and Elizabeth Woods, 49, Wednesday in a case that explored the line between lawful punishment and abuse.

Kay's attorney, Thomas Gill, said the jury agreed Woods and Kay were appropriately disciplining their child - and in a manner the couple had grown up with.

"There but for the grace of God go you and me and anybody who has children and disciplines them by means of corporal punishment," Gill said.

After Woods' 10-year-old son was suspended from school, Kay allegedly struck the boy - who was fully clothed - several times on the buttocks with the belt. The boy also sustained a bruise or welt to the arm, either from an accidental strike from the belt as the boy moved - or, as Kay testified, possibly from Kay trying to adjust his grip on the boy's arm.

Prosecuting attorney Larry Kuo, a deputy district attorney, said he felt he'd had enough evidence for a conviction but does not plan to appeal the decision.

"You have the right to discipline your child. You don't have the right to injure them," Kuo said.

The couple first discussed what the boy did wrong and what the punishment would be before the discipline, Gill said.

A school authority reported the incident to Child Protective Services after reportedly seeing the mark on the boy's arm and hearing the boy say he'd been "whooped."

Kay and Woods were arrested and charged with a misdemeanor count of child abuse before being acquitted after an estimated 35 minutes of jury deliberation in Fairfield.

Sacramento Bee, California, 17 June 2002

Mom suing county over son's removal

Parent's right to spank lies at the heart of the custody case

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 over 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, may 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.

"We're not operating in isolation here," said Hunt, who oversees CPS.

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.

"This court decision says that's not valid," he said. "It says that it's OK to whip your child with a belt and to leave bruises on a child's buttocks. That's different from the way we have viewed it."

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. School officials, required by law to report suspected abuse, called CPS.

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, in his case, foster care.

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. She said he had been in counseling, but that it had not helped him control his aggressiveness.

School officials verified the boy's behavior, and the boy told social workers he had not gone longer than four days without hitting another child.

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.

McLinden declined to comment, but allowed her attorney, Cox, to speak for her.

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.

"This is not an isolated incident," Cox said.

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. Those methods, cited by the appellate court, included timeouts and withholding privileges.

McLinden testified she had been advised not to spank with her hands because "hands are to be for loving."

Her case in many ways illustrates the conflicting views in America's ongoing debate over 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.

In McLinden's case, a juvenile court referee initially decided her son's removal was just, finding it unreasonable to spank a 12-year-old child and noting that the bruise was evidence of abuse. A judge upheld the ruling, saying "to strike a child with a belt so hard as to leave a bruise is the infliction of serious physical harm. In fact, it is a crime."

But the appellate court overturned both decisions, quoting state law that specifies "reasonable, age-appropriate spanking ... in the absence of serious physical injury" is not abuse. The court also quoted a dictionary definition of spanking: a "slap on the buttocks" with a "flat object" or open hand.

"(McLinden's) corporal punishment was not gratuitous violence inflicted to satisfy some perverse personal need," wrote the three-judge panel. "The record explains her desperate efforts to impose restraints on a son whose life seemed perilously close to spinning out of control."

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.

County officials say that isn't true.

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