SPANKING WITH A WOODEN SPOON OR TREE BRANCH – CHILD ABUSE?

Across the Line © 2014

Published in the Washoe County Bar Association’s The Writ

By: Jim Porter of Porter Simon

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As everyone knows, at least anyone in the sports world, star Minnesota Vikings running back Adrian Peterson was recently suspended by the Vikings for spanking his 4-year-old son with a tree branch. Peterson was charged in Texas with reckless or negligent injury to a child, who days later still bore marks from the whipping.

Adrian Peterson/Charles Barkley

Peterson’s explanation was: that was how he was disciplined as a child. Former basketball star Charles Barkley, never short on opinions, weighed in: “Whipping – we do that all the time” explaining corporal punishment is a common practice in the South.

Corporal Punishment in California

Two recent California Court of Appeal cases analyzed the law of corporal punishment of children. In August of this year the Second District dealt with a belt spanking case. (In re A.E., a person coming under the Juvenile Court Law, Los Angeles County Department of Children and Family Services v. Josue E., 2014 DJDAR 10376.)

Acting upon complaints from a neighbor, Los Angeles County Sheriff’s deputies investigated the home of Josue E. (Father) and Karen E. (Mother) and found two-year-old daughter A.E. (names withheld in the Opinion) had two five to six inch long red welts on the back of her leg and more red welts on her buttock (Court of Appeal justices don’t use that other word).

Father was arrested for child abuse, removed from the home and held in custody. A juvenile court judge found Father guilty of child abuse. He appealed.

Danger to Child?

Father’s argument was that the removal of A.E. from his custody was improper because he was not a substantial danger to his daughter.

In fact, as you would expect, it is not easy to remove a child from the custody of his or her parent. Welfare and Institutions Code Section 361(c)(1) limits the ability of a juvenile court to remove a child from the physical custody of the parents. The court must find by “clear and convincing evidence” that “there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well being of the minor.”

“The high standard of proof by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to care for their children.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525; see also In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) “Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 695.)

Belt Discipline Ruling

The Second District overturned the juvenile court decision, finding there was no clear and convincing evidence Father presented a risk of harm to his daughter A.E. Father and Mother were good parents, there was no ongoing domestic violence, no substance abuse problems and no safety issues at the home. A.E. was healthy and comfortable in her parents’ presence.

The Court suggested less drastic alternatives to removal from the home such as “announced visits and public health nursing services [are] potential methods of supervising an in-home placement.” (In re Henry V., supra, at p. 529; see also In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.)

Personal Aside

From personal experience, I can attest that virtually all of the neighbor kids where I grew up in Sacramento were hardily thrashed by their parents with coat hangers, wooden spoons, belts and switches. I suspect that parents who were disciplined with beatings, even severe, may honestly believe that is how they should discipline their children. Not so, not today, not then either. At least this issue is drawing national attention.

Punishment with a Wooden Spoon

Our second case delves more into the criteria of what constitutes child abuse when it comes to parental corporal punishment.

Veronica Gonzales, by all accounts a hard working and loving mother, was exasperated trying to discipline her 12-year-old daughter, whose grades were plummeting, after she started hanging around “wanna-be gangster kids at school.”

After trying every other child discipline trick in the book, like taking away her daughter’s iPad and not allowing her to watch TV, Veronica gave her fully-clothed daughter five or six spanks with a wooden spoon. She didn’t cry or scream. Someone else did.

She was turned into Santa Clara Department of Social Services and found guilty of child abuse. The trial court upheld the charges noting that California’s child abuse statutes do not have a “good intentions” exception. Veronica filed a petition for administrative mandamus under Code Civ. Proc. § 1094.5.

Child Abuse and Neglect Reporting Act (CANRA)

California’s Child Abuse and Neglect Reporting Act (CANRA) recognizes five categories of “child abuse,” two were implicated in Veronica Gonzalez’ wooden` spoon corporal punishment case. The first: “willful harming or injuring of a child” is defined as “willfully causing or permitting any child to suffer, or inflicting thereon, unjustifiable physical pain or mental suffering” (Pen. Code, § 11165.3). The second: “unlawful corporal punishment or injury” is defined as “willfully inflicting upon any child any cruel or inhuman corporal punishment or injury resulting in traumatic condition” (Pen. Code, § 11165.4).

The Sixth District Court of Appeal cited In re Adam D. (2010) 183 Cal.App.4th 1250, 1254, 1257 [trial court found only “age appropriate spanking,” where mother admitted using hand and belt]; cf. In re Jasmine G. (2000) 82 Cal.App.4th 282, 291 [dictum that hitting child with belt and switch “crossed the line over into abuse”].)

The reasonableness of a given instance of corporal punishment “depends on four factors: the age of the child, the part of the body that was struck, the instrument used to strike the child, and the amount of damage inflicted.” Under CANRA, a report of child abuse is “’[u]nfounded’ if it “involve[s] an accidental injury.” (Pen. Code, § 11165.12, subd. (a).)

Court Ruling

The Court reversed Veronica Gonzalez’ conviction of child abuse and remanded, directing the Department of Social Services to conduct a new hearing and issue a decision finding the Department’s report “unfounded.”

In today’s world, California courts are likely to take a less favorable view on corporal punishment of a child than in the past.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or www.portersimon.com.  

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