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Plants asserts parental rights, seeks dismissal of battery charge

CHIP ELLIS | Gazette
Kanawha County Prosecuting Attorney Mark Plants talks to reporters March 31 after he was arraigned on a misdemeanor domestic battery charge of striking his son with a belt.

CHARLESTON, W.Va. — Kanawha County Prosecuting Attorney Mark Plants says he has a constitutional right to discipline his son and is asking a magistrate to dismiss a domestic battery charge filed against him.

Plants was charged last month with the misdemeanor after State Police said he struck his son with a leather belt more than 10 times, leaving a 6- to 7-inch bruise.

The motion to dismiss, filed Monday by Plants’ attorney, Jim Cagle, says the allegations in the criminal complaint don’t allege a criminal act.

“The intent here was to discipline a child out of love and guidance, not to injure the child,” the motion states. “That is what is alleged and that is all that can be established under the evidence from Mr. Plants and his son.

“It is earnestly hoped that this child will not be used as a witness against his father. That would be a travesty,” Cagle wrote.

In the criminal complaint, police say Plants went to his 11-year-old son’s room after the boy shoved his stepbrother off a scooter.

The boy told police that Plants “held him by his arm” and struck him more than 10 times with a leather belt.

Plants then took the boy upstairs and “stood him in front of his stepbrother.”

“Do you think I whipped him enough?” the complaint says Plants asked the boy’s stepbrother.

Police photographed a “dark purple to brown in color” bruise shaped like a “U” on the boy’s thigh four days after the incident, the complaint states.

Cagle’s motion Monday says there isn’t any evidence that proves Plants meant to strike his son with the edge of the belt — “which is what undisputedly caused the bruise.”

“In fact, the single, U-shaped bruise suggests that the injury was unintentional,” Cagle wrote. “After all, there were allegedly multiple spanks, but only one bruise.”

At first, Plants told police he struck his son twice. He later admitted, the complaint states, to striking him “maybe three or four times.” Plants told police the incident lasted “no more than 20 seconds,” the complaint states. Plants’ ex-wife, Allison, reported the Feb. 22 incident to police on Feb. 26. She found out about it after overhearing her younger son ask about his brother’s injury, the complaint states.

Plants, 37, a Republican, was first elected Kanawha prosecutor in 2008 and was re-elected in 2012. According to court documents, Plants is 6 feet 2 inches tall and weighs 280 pounds. He was a fullback on the football team at West Virginia University.

After the child-abuse allegation arose, Plants said during a news conference that he and his ex-wife agreed that spanking on occasion is an appropriate form of discipline.

The allegations “state that Mr. Plants was acting as a parent to discipline his child, therefore he was acting within a constitutionally protected right to control his child; and under West Virginia law there is no liability from the reasonable use of corporal punishment for disciplinary purposes,” the motion to dismiss states.

Allison Plants filed for divorce in June 2012. Mark Plants has since married Sarah Foster, his former secretary.

Plants has two sons with Allison Plants and a child with his new wife, the motion filed Monday states.

Allison Plants was granted an emergency domestic-violence protection order by Kanawha Family Court Judge Mike Kelly in February.

Plants was charged in March with violating the DVP order. Both misdemeanor charges he faces carry a penalty of up to a year in prison.

All Kanawha judges recused themselves from the case, and the West Virginia Supreme Court appointed Cabell County Family Court Judge Patricia Keller to hear the case over the domestic violence petition. At a hearing last month, Keller said Plants could have supervised visitation with his boys, and Plants agreed to undergo counseling to have the DVP order dismissed.

Mercer Circuit Judge Derek Swope and Mercer Magistrate Michael Flanigan were appointed to hear any criminal case against Plants. Swope appointed former McDowell County Prosecuting Attorney Sid Bell to prosecute Plants.

State Police Sgt. M.S. Adams, of the Crimes Against Children Unit in Wheeling, conducted the investigation into the allegations against Plants. Bell reviewed Adams’ investigation before the battery charge was filed.

Cagle cited previous state Supreme Court cases over child abuse and wrote Monday that Plants’ actions are “firmly within the heartland of cases upholding the ‘broad authority in child rearing.’”

In a 2003 case, West Virginia Supreme Court justices found that the due process clauses in the state and federal constitutions protect the “fundamental right of parents to make decisions concerning the care, custody, and control of their children,” Cagle wrote in his motion.

“The primary take away from the aforementioned authorities is that a parent enjoys a constitutionally-recognized right to control his child. That right is protected when he disciplines the child through the use of corporal punishment for disciplinary purposes so long as the punishment is reasonable,” Cagle wrote.

The American Academy of Pediatrics strongly opposes physical punishment to discipline children. Spanking, and other physical punishment, can lead to increased mood disorders, anxiety disorders, drug abuse and is said to make children more aggressive later in life, according to the organization made up of medical doctors.

Flanigan will hold a hearing Friday in Charleston to hear Plants’ motion to modify the conditions of his bond, which prevent him from seeing his son. Kanawha County Magistrate Kim Aaron had previously said Plants’ bond could mirror the family court’s order, but Flanigan said last week that wasn’t her decision to make.

Reach Kate White at or 304-348-1723.

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