Hitting 12-Year-Old Child with Wooden Spoon Need Not Be “Child Abuse,” Even If It Leaves Bruises

So holds the California Court of Appeal in Gonzalez v. Santa Clara County Dep’t of Social Servs. (Cal. Ct. App. Oct. 8, 2013). The court does not holds that such behavior can never be child abuse, but it concludes that the Department of Social Services and the court below didn’t sufficiently consider the possibility that such behavior was permissible in this case. The key excerpt (some paragraph breaks added):

[A] successful assertion of the parental disciplinary privilege requires three elements: (1) a genuine disciplinary motive; (2) a reasonable occasion for discipline; and (3) a disciplinary measure reasonable in kind and degree.

Here there is no room for serious debate about the first and second elements. The social worker characterized Mother’s actions as born out of “frustrat[ion],” apparently meaning to imply that she was acting irrationally, in desperation. Nothing in the record supports such a view, or otherwise supports a rejection of the parents’ and Daughter’s consistent reports that the spanking was entirely the product of a genuine and deliberate disciplinary purpose, i.e., to arrest troubling behavior patterns exhibited by Daughter. There was no evidence of any other reason for Mother’s actions. The social worker failed to uncover evidence of any more general tendency toward violence in the home. There was no hint of eagerness or self-gratification in the parents’ resort to spanking. On the contrary, Mother testified without contradiction that she acted with great reluctance and regret.

Nor does the record suggest any reason to doubt that the circumstances furnished a reasonable occasion for discipline. All family members reported that Daughter’s conduct gave great cause for concern over the months preceding the spanking. Academically her grades were declining, she was failing to complete her homework, she was failing to arrive in class on time, and she was making false excuses about these failures. Her attention seemed to be shifting away from school toward less salutary objects; she was becoming “boy crazy” and, worst, showing an unhealthy interest in street gang culture.

The parents “had many discussions with [her] about this new crowd, these alarming text messages, and her new lack of responsibility. She would hear us, yet continued to go down this road[.]” They had tried lesser disciplinary measures, but none had produced any lasting effects. After discussing the problem between themselves, the parents concluded that “the only other option out there, would be to try spanking.”

The only question presenting any difficulty is whether the measure actually applied — spanking with a wooden spoon, with resulting bruises — was reasonable in kind and degree. To overlook as harmless the trial court’s failure to entertain the reasonable discipline privilege, it would have to appear as a matter of law either that a wooden spoon was an unreasonable means to administer the spanking, or that it was applied with excessive force.

We cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline. Although no published California decision addresses this issue, the Attorney General has concluded that “[i]t is not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand,” provided that “the punishment [is] necessary and not excessive in relation to the individual circumstances.” Opinions from other jurisdictions preponderate to similar effect.

Nor do we think that the infliction of visible bruises automatically requires a finding that the limits of reasonable discipline were exceeded. Certainly the presence of lasting bruises or other marks may support a finding that a parent crossed the line between permissible discipline and reportable abuse. However, such effects alone do not compel a finding of child abuse.

It has been suggested that 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.” We believe that visible bruising demarcates, or at least very nearly approaches, the outer limit for the quantum of “damage” to be tolerated. However, we do not believe that it necessarily compels a finding of abuse unless there are grounds to find that the parent intended to inflict bruises, knew his or her conduct would do so, or should have known that bruises were likely to result from the amount of force applied and the method of its application.

We see no reason to believe that this test is satisfied here. Nothing in the record suggests that Mother should have known she was inflicting bruises. As one court said, “The laws of physics are such that when even a moderate degree of force is administered through an instrument that makes contact with only a small area of the body, the pressure visited upon that point may be more than will reasonably be anticipated.” The evidence was in conflict as to whether Daughter had ever been spanked with a wooden spoon before, but assuming she had, there was no evidence that she had ever sustained visible bruises from it.

Nor was there any basis to find that Mother would have been aware of any such bruising if it occurred. According to the family, the spankings were always administered on the child’s fully clothed bottom. There was no suggestion of any occasion on which either parent might have observed bruising. It is true that, according to the social worker, Daughter said this particular spanking had been administered on her bare bottom. But even accepting that version of events, it does not follow that Mother knew the spanking was producing, or would produce bruises. Moreover, the family members denied this version of events with such consistency and vehemence that we question whether the social worker’s version would or could be credited in a properly conducted hearing.

Under [the relevant California statute], a report of child abuse is “ ‘[u]nfounded’ ” if it “involve[s] an accidental injury.” “ ‘In its plain and ordinary sense, “accidental” means “arising from extrinsic causes; occurring unexpectedly or by chance[; or] happening without intent or through carelessness.” ’ ” There can be no doubt that Mother’s conduct — striking her Daughter’s buttocks with a wooden spoon — was intentional. The resulting bruises, however — the only “injury” even arguably involved — appear to have been “accidental” in that they “happen[ed] without intent,” and at most “through carelessness.” In such circumstances, at least, the fact that a spanking resulted in bruises cannot be enough by itself to sustain a finding that the spanking amounted to reportable child abuse.

It follows that the trial court erred in categorically rejecting Mother’s assertion that the conduct reported as child abuse constituted a reasonable attempt to discipline her child. The court acted on the ground not that the assertion of a disciplinary right was unsupported by the facts, but that such a purpose was categorically irrelevant. The hearing officer appeared to adopt the same approach, which explains in part his apparent willingness to exclude the testimony of Mother’s most important witness, the victim of the reported child abuse.

If the report before us is to be held substantiated over Mother’s challenge, it must be upon the basis of a reasoned finding, supported by substantial evidence, that the spanking did not constitute reasonable discipline. The matter must therefore be returned to the Department with instructions either to conduct a new hearing at which that issue is addressed, or to modify its decision to find the report unfounded and to notify the Department of Justice that the report must be expunged from CACI.