Wednesday, August 6, 2014
Spanking Did Not Justify Barring Father From Family Home—C.A.
By a MetNews Staff Writer
The Court of Appeal for this district has ruled that a Los Angeles Superior Court commissioner went too far in banishing a father from the family home because, on a single occasion, he spanked his misbehaving child with a belt.
Presiding Justice Tricia Bigelow of Div. Eight wrote the opinion, filed on July 9 and certified for publication Monday.
The decision reverses an order by Los Angeles Superior Court Commissioner Stephen Marpet “to the extent it requires Father to remain outside of the family home.”
Marpet had barred the father from the family abode, occupied by his wife and child, based on the reaction by the father, identified in the opinion as Josue E., to his 3-year-old daughter’s unruliness on Aug. 3, 2013.
The father, according to his admissions, heard his daughter back-talking her mother and sent to the child to her room. There, she was crying; he went to check on her; he saw that she had pushed the window screen out of its frame. She went into the living room, still crying; the father told her to behave or he would spank her; she declared “no” and kicked his leg, retreating to the bedroom.
The father entered the room; she threw a belt at him; he used the belt, striking her two times on her bare buttocks. She was unclothed because she was being potty trained.
The father ordered his daughter to pick up her toys in the living room. She refused.
He attempted to strike her again on the buttocks; she turned, and he inadvertently hit her on the leg.
Cites Parental Duty
In a written statement to police, after he received a Miranda warning, the father said:
“My child was misbehaving….I, as a father, had to discipline her after talking to her making her understand that such actions are not going to be tolerated, I disciplined my daughter not for sport or fun but so that one day just as I thank my parents for their care for me, she will do the same.”
A petition was brought by the county Department of Children and Family Services under Welfare and Institutions Code §300 to have the girl declared a dependent child.
In the course of the proceedings, the father admitted, based on what he had learned from parenting materials, that he took the wrong approach to discipline in employing corporal punishment, and vowed that in the future, he would adopt such techniques as denying his daughter use of his iPhone.
Marpet sustained the petition with respect to the father, finding the mother blameless.
In his dispositional order, Marpet required him to undergo 52 weeks of parenting classes. He was to have at least two monitored visits with his daughter each week and the DCFS was ordered to look into the feasibility of allowing the mother to do the monitoring.
If it approved that, it was to be with the proviso that the father could not stay overnight.
Finds Order Drastic
Bigelow said that ejectment of the father from the family dwelling based on “a single occasion of disciplining [the daughter] by spanking her with a belt on her legs and buttocks” was excessive.
“Father is remorseful and is committed to learning better child-rearing techniques. There is no prior history with the [DCFS], no domestic violence, no criminal record, no substance abuse, and no medical or mental illness in the family. Father contends there is insufficient evidence to support the juvenile court’s decision to keep him from the family home. We agree.”
“[W]e find the juvenile court’s order removing A. from Father’s physical custody is not supported by substantial evidence. The record does not support findings that there would be a substantial danger to A. if he returned home. Instead, it is clear that this was an isolated incident that is unlikely to recur. Evidence of past abuse, standing alone, does not meet the clear and convincing standard of proof required to justify her removal from Father’s physical custody.”
The case is In re A.E., 14 MetNews S.O.S. 3253.
Marsha F. Levine, serving under appointment by the Court of Appeal, represented the father. Deputy Los Angeles County Counsel Tracey F. Dodds acted for the DCFS.
Levine said yesterday that she was “not at all surprised” by the reversal of the dispositional order.
She pointed to language in Marpet’s order saying that the father needs parenting classes where “he’ll get some education, not just out of a book, but in classes with other young parents who are trying to discipline their children appropriately and learn how to do it at all stages.”
Levine remarked that to follow that “flawed reasoning” would “require every newborn baby to reside elsewhere while his or her parents learned how to be parents.”
The opinion notes that the father was arrested for “child cruelty” on Aug. 4, 2013 (one year to the day before the opinion was certified for publication).
Levine related that the criminal matter remains pending.
“I am informed that another hearing is scheduled in a few months, but that it is likely the charges will be dismissed when that court sees the Court of Appeal’s opinion.”
The Irvine attorney noted that “after the briefing was completed and before the opinion was filed, my client was permitted to return home.”
Request for Publication
It was Levine who made the request that the opinion be certified for publication. In a July 24 letter to Div. Eight, she observed that the opinion “addresses facts and circumstances not previously addressed in published opinions in which an appellate court has reversed a dispositional order,” differentiating the case from previous ones. She wrote:
“[P]ublication is appropriate because this case presents an issue of continuing public interest. Physical abuse is a serious problem, but not all physical abuse is the same. Indeed, physical abuse which is ongoing clearly falls within a different category than abuse which occurs, such as in the instant case, on an isolated occasion. This opinion clearly demonstrates that a finding under section 300, subdivision (a) does not necessarily require removing the child from the custody of the parent who inflicted the physical abuse. It is indeed alarming to think there may be other cases in which a parent has been separated from his or her child as a result of conduct, such as father’s, even if it is contemplated that the separation is only temporary, where the parent can easily participate in appropriate services while remaining in the family home with the child. Publication of this opinion will advance this important issue of public interest.”
Dodd was unavailable for comment.
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