This opinion should get a lot of play from the social conservative crowd. If anyone notices it, anyway.
It's a classic childrearing problem. At least in the modern era. What do you do with your kid if she starts going down the wrong path?
Let's hear from the parents. Here's how they describe the problem:
"Mother and her husband (Father) had become gravely concerned about Daughter’s declining academic performance and alarming social tendencies. As Father put it, Daughter 'had decided that she did not have
to do her school or home work, repeatedly lied to both of us, [and] started showing interest in gang culture.' Mother declared that Daughter had become 'boy crazy and started to mingle with a new type of crowd,' and that they had found pictures and text messages on her mobile phone 'in reference to gangs.' They 'had many discussions' with Daughter about these developments, but to no avail: 'She would hear us yet continued to go down this road . . . . [S]he began saying that her favorite color is red . . . . [S]he was not doing many of her school and homework assignments and even her teachers expressed . . . annoyance with her disregard for her work. We also discovered that [Daughter] had been lying to us about completing assignments and had been hiding test[s] with low scores that were supposed to have gotten signed by us.' Daughter’s older sister (Sister) also declared that Daughter’s 'interest in gangs seemed to be growing.' She 'started to become very irresponsible in school by being late to classes, having really bad grades because she was doing hardly any of her school and homework, was lying to my parents about lots of things, and started hanging around wanna-be gangster kids at school."
The daughter doesn't seem to disagree. She testified: “I have to admit, for a long time, starting in 6th grade, I was always getting to class late, not doing my school assignments, and lying to my parents.”
So, as a parent, what do you do?
You try the usual stuff, of course. Let's see how that works out. As Mother explained:
“[A]fter a few weeks of grounding when [Daughter] would get off of restriction she would do better for a short time, but then revert back to the same behavior, over and over. We would go through several sessions of groundings over several months, hoping it would finally make the difference, but grounding proved to be ineffective at setting [Daughter] back on the right path. At this point, we did not know what else to do
to help [Daughter]."
Even Daughter seems to have agreed. Her words: “When I first started doing all this, my parents grounded me many times, by taking away all my fun stuff like my iPod, my T.V., my cell phone, and I was not allowed to hang out with friends. I don’t know why that stuff didn’t work on me, but I continued to not do what I was supposed to.”
Geeze. What to do?
So in this case, here's what the parents did:
"We talked again, and felt that the only other option out there, would be to try spanking. So the weekend before the incident in question, my husband and I sat [Daughter] down and explained to her that, since she kept lying to us repeatedly about completing assignments, she now needed to get her agenda signed by each teacher so we could be sure she was really doing all of her work. We also informed her that if she continued with this irresponsible behavior, [such as] not doing her assignments, being late to class and lying to us, she would start to receive one spank on the bottom for each thing not done."
Oh boy. Spanking. A hot button topic. Particularly in California.
So here's what happens next:
"According to the Mother, on each of the first three days of the new regime Daughter came home without having 'complet[ed] her tasks.' This resulting in her being spanked by Father 'with his hand, only on the buttocks, fully clothed, and in a calm manner.'"
Okay. That's the familiar form of spanking. You can agree with it. You can disagree with it. But it's surely within what existing law reflects -- rightly or wrongly -- as a parent's right.
So then what happens?
"When Mother picked Daughter up at school on Thursday, April 29, 2010, she had again failed to comply with her parents’ directives. She gave implausible excuses, a further violation of parental orders. Mother called Father 'and told him that [Daughter] still wasn’t doing her work and was late again, and that he needed to come home and deal with this. He told me he wouldn’t be home until late that evening and that I needed to handle it, or else [Daughter] would not respect me or take me seriously as a parent. Because of my hand condition, he said I should just use a wooden spoon. I told him that I’d rather he just spank her when he gets home from work, but he insisted that I should handle it. I finally agreed and told [Daughter] that I would have to be the one to spank her this day and that I was going to use a wooden spoon because my hands hurt.' Father also declared that the idea of using a spoon had been his, and had arisen from the exigency of his not coming home until 'very late that evening.'
Mother declared that upon arriving home, she retrieved a wooden spoon and 'gave [Daughter] around five or six spanks on the bottom, one for each thing not done and for making excuses. [Daughter] was fully clothed during the spanking. She was not crying or screaming during the spanking.' Family members declared unanimously that spankings had been a rarity in the family, that they had only been given in response to misbehavior, that they were never given in the heat of anger, and that they were almost always given by Father, and always with an open hand."
Can you figure out what transpired next? Of course you can:
"On the next day Daughter disclosed to some friends that she had been spanked with a wooden spoon. One of them reported, or 'tricked' Daughter into reporting, the matter to school authorities. [Footnote 2: Daughter declared without contradiction, 'I did tell one of my classmates, J[.], that I got spanked . . . . She tried to convince me to tell the office, but I told her that I didn’t need to or want to. J[.] took me to the school office to tell them that I got spanked, but I didn’t know she was going to do that. She tricked me into going with her by saying she needed to pick up her sweater because she was cold.''] An unnamed 'mandated child abuse reporter'—manifestly a school employee—filled out a 'suspected child abuse report.' Under '[i]ncident [i]nformation,' the reporter wrote, 'Victim says she gets ‘smack’ by parents when she is not doing what parents are expecting from her. She said Mom hits her with a wooden spoon and Dad hits her with his hand. Last time she was hit was on 4/29/10 on her botto[m] / picture was taken.'"
Social worker comes to school. Daughter tells spanking stuff about parents, and it sounds bad. Police get called. Social worker fills out child abuse reporting form, and concludes that child abuse was substantiated, so parents get placed on the state Child Abuse list. Parents appeal, hearing officer affirms, commissioner affirms, then parents file a writ in court.
So if I were writing an inflammatory headline: "California Holds Spanking Child Is Child Abuse!!"
Of course the actual facts are slightly different. Plus there's the fact that the Court of Appeal reverses. Holding that the discipline here was not "child abuse" under the relevant Act, but was instead part of a parental privilege. Or at least could have been parental privilege: "We cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline." Even if, as here, it leaves a bruise. ("Nor do we think that the infliction of visible bruises automatically requires a
finding that the limits of reasonable discipline were exceeded. . . . However, such effects alone do not compel a finding of child abuse.") Though the Court of Appeal thinks that's pretty darn close to the line. ("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.")
But here, since there was no alleged bruising previously, nor any evidence of an intent to bruise, there's no ability to put the parents on the CACI. Not child abuse.
This opinion would have looked markedly different 100 years ago. I wonder what it would look like 100 years hence?
In the meantime, a very neat little case.