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When
does corporal punishment constitute child abuse for purposes of
placement on the child abuse and neglect registry? That is the tricky
question that the appellate court tackled in its controversial decision
in Lovan C. The court, on its own volition, broke new ground
by determining that administrative hearing officers in substantiation
hearings (of abuse and neglect for purposes of inclusion on the
registry) must determine whether parental corporal
punishment was reasonable and whether the parent "believed the punishment
was necessary to maintain discipline or to promote the child's welfare."
The case
arose out of an incident that occurred in September 1999, when Lovan
C., spying her five year old daughter caroming off her canopy bed,
picked up her child’s belt and struck her three times – leaving
a one-inch bruise on her thigh. A police officer (contacted by the
child’s father) found no evidence of child abuse, but the Department
of Children and Families ("Department"), acting on a court referral
(in a domestic relations context) later placed the mother on the
child abuse and neglect registry. Lovan lost her administrative
appeal, and subsequently the Superior Court dismissed her court
challenge.
The appellate
court immediately took the Department's hearing officer to task
for not interpreting the reasonableness of the corporal punishment
meted out by the mother. While admitting that the hearing officer
followed statutory procedure by finding abuse pursuant to Conn.
Gen. Stat. §46b-120 (abuse constitutes injury other than by accidental
means ...), the court departed from the hearing officer's view that
law, regulations and Department policy (e.g. Department policy manual
§ 34-2-7) afford no discretion or determination of intent when substantiating
abuse for registry purposes. Even in this case, where the facts
indicated that the child's father made the initial referral out
of "spite" (and all other indications were that the mother was not
abusive in any regard), the statutory framework mandated a finding
of abuse as a non-accidental physical injury.
In a
creative, though somewhat curious endeavor, the court, sua sponte,
brought to light Conn. Gen. Stat. § 53a-18, Connecticut's criminal
statute governing corporal punishment. Borrowing from that statute's
language (and citing criminal cases interpreting the "reasonableness"
of exercising parental control such as State v. Leavitt,
8 Conn. App. 517 [1986]), the court determined that prior to issuing
a substantiation finding in a corporal punishment matter, a determination
of the "reasonableness" of the discipline must be undertaken. Raising
the always provocative legislative intent factor, the court inferred
the legislature's intent to protect parents from reprisals for physically
disciplining their children. Borrowing from § 53a-18, the court
reasoned that corporal punishment analyses must be factual in nature
and must examine what is "reasonable" under the circumstances. The
court then went on to analyze the reasonableness of the conduct
in this case, and finding no malice or ill motive behind Lovan's
actions, concluded that the substantiation must be reversed for
lack of substantial evidence that the discipline was unreasonable.
The court then ordered the department to remove her name from the
registry.
This
case may be found on the Judicial Branch’s web site by going to
http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP86/86ap47.pdf
(JES)
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