(Ohio) Bite not abuse, appeals court rules --
Child's punishment only inappropriate, court says. Carr dissents
By Phil Trexler
Beacon Journal , May 23, 2002

When a 9-year-old Wayne County boy bit his little brother last summer, he was given a choice of punishment: be paddled or be bitten himself.

The boy, who had a history of biting, chose the latter and was bitten on the face by his mother's fiance, a punishment that left a mark on the boy's cheek.

His mother claimed it was a form of corporal punishment, just like the type used on her as a child.

But when the Wayne County Children Services Board workers got wind of the bite, they brought charges, alleging the punishment constituted child abuse.

The boy's mother, Chestin Wengerd, fought the charge, claiming corporal punishment was a last resort for a boy who had a history of biting not only his infant brother but classmates as well.

At trial, Juvenile Judge K. William Bailey Jr. sided with CSB, finding that ``a bite to the face is not a reasonable act of corporal punishment.''

He allowed the boy to remain with his mother but placed him under supervised protection.

Wengerd appealed, and yesterday the 9th District Court of Appeals sided with her.

In a 2-1 ruling, the court said that while the punishment may have been inappropriate, the return bite did not constitute child abuse.

The split decision included a scathing dissent by Judge Donna Carr, who wrote that the punishment ``transcends the boundaries of acceptable corporal punishment.''

Wengerd could not be reached for comment. Lisa A. Brown, a Wooster attorney appointed the child's special guardian, did not return a message left at her office.

A CSB attorney said yesterday that the agency may appeal the decision to the Ohio Supreme Court.

``We're disappointed with the ruling, to say the least. Our position was that this was abuse. If you physically discipline a child and leave a mark, it's abuse,'' said Paula M. Sawyers, CSB's chief legal counsel.

Wengerd's trial attorney, V. Lee Winchell of Rittman, applauded the court's findings. He said he argued at trial that the boy chose the punishment and that the bite was delivered with thoughtful compassion to show the boy how painful biting can be.

``Our position all along was that this was a simple form of corporal punishment that was administered without anger or malice and that the parents explained to the child exactly what he was being punished for,'' he said. ``In our opinion, it did not rise to child abuse under the statute.''

According to court records, the boy bit his 4-month-old brother on the face last June, leaving a mark. At trial, the mother testified that previous groundings, timeouts, a spanking and cleaning chores had failed to corral her older son's biting propensity.

So the next day, the mother and her fiance, the infant's father, talked about the incident and offered the boy a choice of punishment.

The boy chose the bite over a paddling and the fiance, Norman Baldwin, bit the 9-year-old on the face, leaving upper and lower marks on the boy's cheek.

Wengerd, 30, testified that the child was upset, embarrassed and cried after being bitten. She also testified that she herself was a biter as a child and that she was disciplined in the same manner ``and I never bit again.''

That evening, the boy went to stay with his father, who noticed the mark and contacted authorities. Within a week, CSB officials filed child abuse charges.

In reversing the juvenile court's decision, appellate judges Lynn Slaby and Beth Whitmore ruled that ``although this act may be inappropriate and unwarranted, it did not rise to the level of being an offense of child abuse.''

The judges found that there was no evidence ``that acute pain resulted of any lasting duration'' and thus did not meet the legal standard of child abuse.

Carr disagreed.

``Biting someone on the face, especially a child, is a feral, painful and dehumanizing assault that leaves a brand for all to see,'' Carr wrote. ``While the bite appears to have been intended to reform (the boy's) propensity for biting other children, I cannot disregard the extent and mechanism of injury upon the child's face.''

Phil Trexler can be reached at 330-996-3717 or ptrexler@thebeaconjournal.com

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