The girl’s mother secretly recorded the incident at Central Elementary School in Clewiston, Florida, on April 13 after the school phoned her to say her daughter had damaged computer equipment. The family’s attorney, Brent Probinsky, said the woman was told to bring $50 to the school to pay for damages and that sometimes children were paddled.
In cellphone video sent to CNN by Probinsky, an adult staff member can be seen paddling the 6-year-old girl as another adult holds her in place. In the video, after the first strike, the child starts to cry and tries to move away from the adults, but the adult yells at the child to get back in position and hits her twice more.
CNN is not naming the mother and child because of their concerns about their safety.
The Florida State Attorney conducted a review and found no evidence school Principal Melissa Carter had committed a crime, according to a memo to Clewiston Police Department dated May 7.
However, Probinsky argues that the State Attorney’s office used flawed legal analysis to reach its decision.
In his memo, Deputy Chief Assistant State Attorney Abraham R. Thornburg said school staff member Celia Self had called the child’s mother to inform her she would be charged after her daughter apparently intentionally damaged computer equipment.
The phone call appeared to have been conducted in Spanish, he said. According to Self’s statement, the mother said that her daughter had also been damaging things at home and that she was “afraid to discipline her by spanking, because her daughter threatens to call the police and DCF.”
“Ms. Self further stated that (the mother) then requested that the school spank the child for her, to which Ms. Self replied that she would have to physically come to the school, specifically request such discipline, and be present during the spanking if she wished school staff to do it for her. According to both Ms. Carter and Ms. Self, (the mother) then arrived at the school and made that request,” Thornbury wrote.
Thornbury said the video showed Carter explaining to the child what was going to happen and why.
“Ms. Self and Ms. Carter then appear to make efforts to position the child so that she can be safely spanked without injury. Ms. Carter then strikes the child with a wooden paddle three times in succession on the buttocks. After the spanking, both staff members ask the child to apologize to her mother, and again explain the reason for the spanking and that it may occur again if she continues misbehaving. Both staff members appear to treat the child and her mother with respect throughout this process.”
Thornbury said in the mother’s initial account of the incident to HCSO on April 14 she indicated she understood that she was going to the school to be present for school staff to spank her daughter.
“She further indicated to HCSO that there was a language barrier and that she was ‘confused’ and ‘did not understand the process correctly.’ CPD made several attempts to obtain a more specific and detailed statement from (the mother) but she did not return phone calls from the agency,” he said.
“It is of note that despite refusing to give a sworn statement to law enforcement, (the mother) has made several statements to the media during the pendency of the investigation — one of them indicating that she intentionally ‘sacrificed’ her daughter because no one would believe her about what was happening at the school unless she video recorded it. Such a statement that she knew all along that the paddling was going to occur is wholly inconsistent with her initial statement to law enforcement that she was confused and did not consent,” he said.
Thornbury said the evidence suggested “the child’s mother sanctioned and consented to the spanking of her daughter as discipline for misbehavior.” The mother’s secretly-recorded video did not show her objecting to the paddling and she could be heard thanking staff afterwards, he said.
“A parent has the right to use corporal punishment to discipline their children, and similarly has the right to consent that others do so on their behalf,” he said. Thornbury said the evidence suggested “that any reasonable person in Ms. Carter’s position would have believe that (the mother) consented to the spanking in the manner it was performed.”
Thornbury said that similarly there was no evidence of the offense of aggravated battery as alleged by Probinsky. “Here, there is no evidence or indication of great bodily harm, permanent disability, or permanent disfigurement,” he said and that “using a paddle to spank a child is not likely to cause death of great bodily harm.”
“Similarly, the law in Florida is clear that spanking a child does not amount to child abuse,” Thornbury wrote.
Thornbury said he reviewed evidence from the Hendry County Sheriff’s Office (HCSO), the Cledwiston Police Department as well as speaking with Probinsky for his review of the case.
‘Illegal and a criminal battery’
In a statement issued Saturday, Probinsky said Florida State Attorney Amira Fox’s decision not to file criminal charges against Carter and Self “relied on a flawed legal analysis.”
“Most of us have seen the video of the horrific beating with a large wooden paddle of this little six-year-old girl who stood three feet tall and weighed forty pounds. Fox’s decision not to criminally charge these women relied on a flawed legal analysis and she applied the wrong law to decide if a criminal act was committed,” he said.
Probinsky said Hendry County School District, where the school is located, had a written rule prohibiting any corporal punishment of students and that state law requires that principals and teachers must follow the rules of the local school district.
“The principal, Melissa Carter, and her assistant, Celia Self, who held down and severely paddled this six-year-old first grader, violated the clearly written rule of the Hendry County School District and the laws of the State of Florida,” Probinsky said.
Some other Florida counties allowed corporal punishment, he said, and in cases in those areas the state attorney would need to decide whether punishment was reasonable and not excessive. But that should not have been the measure in this case, as Probinsky argues the punishment was not legally permitted.
“The paddling was illegal and a criminal battery,” he said.
“What message are we sending to other teachers who now believe they will suffer no criminal consequences if they paddle our elementary school children, some severely, even for the smallest of infractions?” he said.
Probinsky added that corporal punishment was “a brutal relic of the past and should be banned in all of our schools.”
CNN is reaching out to the State Attorney’s Office for additional comment.
Probinsky previously told CNN that the girl’s mother had been confused as to whether paddling was allowed. She had been “frightened and confused” when she came to the school and started secretly recording, Probinsky said.
The Clewiston Police Department received a request from Hendry Regional Medical Center staff at 1:31 p.m. the following day, April 14, after “a complaint of a child with injuries accompanied by the child’s mother who requested a police report,” the department said in a May 2 release sent to CNN.
The mother went to the Hendry County Sheriff’s Office on April 14 to file a report, Probinsky told CNN. The HCSO has not responded to multiple requests from CNN for comment. CNN has not been able to obtain a copy of the report.
Probinsky told CNN he was representing the mother and child at their request and had taken the case pro bono. When asked if there were plans to pursue civil action, Probinsky said they were waiting to see what the school board and state attorney’s office did.
In a statement to CNN, the Department of Children and Families said it is investigating the “concerning incident that happened at Central Elementary School in Clewiston.”
Hendry County District Schools Superintendent Michael Swindle declined to comment when reached by CNN, but confirmed the district was also investigating.
“The situation is under investigation, at this time we have been advised to not give any statements.” Beverly Thompson, Administrative Secretary of Hendry County School Board, said in an email Tuesday.
CNN has reached out to the Florida Department of Education which, per its policy, would not confirm or deny an investigation into staff at the school.
“The department has a robust system for investigating allegations of educator misconduct and taking disciplinary action when allowable by law,” Cheryl Etters, a spokesperson for FDOE said in a statement to CNN. “While educators are entitled to due process rights, the department is committed to making sure the appropriate disciplinary action is taken on the educator’s certificate.”
At this time, no charges have been filed in the case.
CNN’s Gregory Lemos and Jamiel Lynch contributed to this report.
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