Spanking a small child with a hand or sandal need not be child abuse, California court rules

|The Volokh Conspiracy |

From In re D.M. v. Jessica G., decided last week by the California Court of Appeal:

A mother used her hand or a sandal to spank her two children on the buttocks on those "rare" occasions when lesser disciplinary measures proved ineffective, but never hard enough to leave bruises or marks. May a juvenile court conclude mother has inflicted "serious physical harm" within the meaning of Welfare and Institutions Code section 300 without first examining whether her conduct falls outside the right of parents, which exists elsewhere in California civil and criminal law, to discipline their children as long as the discipline is genuinely disciplinary, is warranted by the circumstances, and is reasonable (rather than excessive) in severity?

We conclude that the juvenile court may not. Because the juvenile court's ruling in this case relied on its categorical view that "hitting children with shoes" is "physical abuse" and "not a proper form of discipline," we vacate the court's jurisdictional finding as to mother and remand so that the court may in the first instance apply the reasonable parental discipline doctrine….

In May 2014, the Los Angeles County Department of Children and Family Services (Department) received a report that mother was yelling at and beating the children. When talking to Department investigators, mother admitted that she would discipline her children by making them do chores, by scolding them verbally, by denying them privileges (such as watching television), and by threatening to spank them.

On the "rare" occasions when these techniques did not work, she would spank the children on the buttocks with her bare hand or with a sandal. The children confirmed that mother would occasionally spank them. The spankings were not hard enough to leave marks or bruises: The Department's investigators observed no marks, bruises, welts or scars, and no one the investigator spoke with—from the boys' primary doctor, to their maternal grandmother, babysitter, and school teacher—had ever observed any marks or bruises. Consistent with these reports, D.M. reported that a spanking "[did not] hurt too much." …

The Department … filed a petition asking the juvenile court to assert dependency jurisdiction over D.M. [born 2007] and J.M. [born 2010] pursuant to section 300, subdivisions (a), (b), and (j), on [the grounds that, among other things,] mother had intentionally inflicted serious physical harm on J.M. by spanking him and thereby put D.M. at substantial risk of similar abuse….

The court … sustained the allegation based on mother's discipline, finding that mother had spanked the children "on repeat occasions" and reasoning that "hitting children with shoes is not a proper form of discipline, and it's physical abuse." As pertinent to this appeal, the court's dispositional order required mother to attend a support group for victims of domestic violence, to attend parenting classes, and to attend individual counseling….

The question presented in this case is whether a parent's spanking of her children on the buttocks with her bare hand and with a sandal categorically constitutes "serious physical harm" sufficient to invoke dependency jurisdiction under section 300, subdivisions (a), (b) and (j), irrespective of whether the spankings qualify as reasonable parental discipline. As explained below, we conclude that the answer to this question is "no." …

[T]he text of section 300, subdivision (a), specifically and expressly provides that "'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury." Although this proviso limits itself to the "purposes of [ ] subdivision [ (a) ]," the exception to dependency jurisdiction for reasonable discipline applies across the board to all of section 300's jurisdictional grounds for two reasons. First, the Legislature chose to use the term "serious physical harm" throughout section 300. "'When a word or phrase is repeated in a statute, it is normally presumed to have the same meaning throughout.'"Second, the Legislature provided, in the paragraph of section 300 following the enumeration of the last statutory basis for dependency jurisdiction, that "[i]t is the intent of the Legislature that nothing in this section … prohibit the use of reasonable methods of parental discipline, or prescribe a particular method of parenting."

What is more, these Legislative declarations in section 300 are consistent with the longstanding principle of California law that "'a parent has a right to reasonably discipline his or her child and may administer reasonable punishment….'" A parent acting within the boundaries of this right cannot be found liable for a tort; guilty of a crime; or subject to registration as a child abuser.

Whether a parent's use of discipline on a particular occasion falls within (or instead exceeds) the scope of this parental right to discipline turns on three considerations: (1) whether the parent's conduct is genuinely disciplinary; (2) whether the punishment is "necess[ary]" (that is, whether the discipline was "warranted by the circumstances"); and (3) "whether the amount of punishment was reasonable or excessive." …

The juvenile court asserted dependency jurisdiction in this case on the ground that "hitting children with shoes" on "repeat occasions" "is not a proper form of discipline, and it's physical abuse." Because the court did not consider the genuineness, necessity or reasonableness of mother's use of spanking as a disciplinary measure, the juvenile court's seemingly blanket rule is inconsistent with the law described above. It also treats the implement of punishment (a sandal rather than a hand) as dispositive, which is also not consistent with the law. (Accord, 80 Ops.Cal.Atty.Gen. 203 (1997) ["It is not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand"]; Gonzalez, supra, 223 Cal.App.4th at p. 92 ["We cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline"].)

The Department defends the juvenile court's categorical ruling. The Department first contends that some of the authority we cite involved the parental right to physically discipline children in the context of child abuse registration (as Gonzalez does) or criminal law (as the Attorney General's opinion does), and thereby suggests that this right does not apply in the context of juvenile dependency proceedings.

But, as we explained above, the text of section 300 explicitly preserves the right of parents to administer "reasonable" and "reasonable and age-appropriate" discipline. What is more, we adopt for section 300 the same three-part definition of "reasonable" parental discipline that courts have been consistently applying for decades in every other context in which it arises. Dependency law undoubtedly rests on a unique cluster of policy concerns, but the policy that prompts courts to balance a parent's right in deciding how to raise his or her child against the child's right not to be subjected to unreasonable discipline is not unique to the dependency system.

Relatedly, the Department notes that dependency courts "need not wait until a child is seriously abused or injured to assume jurisdiction," and reasons that the juvenile courts should be empowered to exercise dependency jurisdiction, even when parental discipline is reasonable, because it might later become unreasonable. However, because this reasoning would apply in every case of parental discipline, reasonable or not, it would effectively write the language preserving the right to engage in reasonable discipline right out of section 300. Rewriting statutes is beyond our purview.

Where, as here, the juvenile court applies the incorrect legal standard, we may decline to engage in substantial evidence review and instead remand to allow the juvenile court to apply the correct legal standard. Such a remand is appropriate in this case, where the parties did not adduce—and the juvenile court did not consider—evidence relevant to the genuineness of mother's disciplinary motive, the necessity of her punishment or the reasonableness of its severity. These issues likely turn on questions of credibility (of both mother and Guillermo) and competency to testify (as to the children), and these are questions the juvenile court is in a far better position to assess in the first instance….

Justice Victoria M. Chavez dissented:

Under the substantial evidence standard of review we review the entire record, drawing all reasonable inferences in favor of the trial court ruling. … When viewed in [this light], … the evidence support[s] the conclusion that repeated striking of a child three years old and younger, with a shoe, while screaming and yelling at the child, is not reasonable or age-appropriate? …

The evidence before the juvenile court from Guillermo, D.M., J.M. and mother herself, was that mother on repeated occasions over a period of years, used a shoe to strike her young children as a form of discipline. It is axiomatic that small children should not be hit with hard objects, especially to the point of bruising. While there was no evidence of bruising or other physical injury, D.M. did express fear of mother when she hit him. It is also clear that "[t]he court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child."

I further dissent from the majority's effort to create a new standard for asserting jurisdiction (§ 300) over a child in the juvenile court by grafting onto dependency proceedings considerations applicable elsewhere in the law. "The goal of dependency proceedings, both trial and appellate, is to safeguard the welfare of California's children. … These proceedings are '"designed not to prosecute a parent, but to protect the child."' …"

The cases relied on by the majority are distinguishable in that they involve not issues of dependency, but the proper recordation of information in the state's Child Abuse Central Index or the duty to instruct a jury of the standard of justifiable force as a defense to a criminal defendant-parent claiming the right to physically punish a child. It is my position that the focus of these cases is far removed from the concerns of safeguarding a child at risk of potential harm, and should not be used as a means of adding another evaluation to the many tasks required of the dependency courts.

The juvenile court was in the best position to evaluate the parties who were present in court with their counsel and to make findings of fact based on that assessment. The weight that the juvenile court gave to Guillermo's statement and to the statements of all the others is entitled to deference and respect.

The juvenile court, in what can fairly be described as a close case, reached the conclusion that these young children were at risk of serious physical harm at the hands of their overworked, single mother who had demonstrated a lengthy pattern of inappropriate discipline of them. Substantial evidence supports that conclusion whether or not it is one that we might have reached if we were deciding the case at the trial court level.