Gonzalez v. Santa Clara Cnty. Dep't of Soc. Servs.

• Decision Date: 23 April 2014
• Docket Number: H038241
• Citation: 223 Cal.App.4th 72,167 Cal.Rptr.3d 148
• Court: California Court of Appeals Court of Appeals
• Parties: Veronica GONZALEZ, Plaintiff and Appellant, v. SANTA CLARA COUNTY DEPARTMENT OF SOCIAL SERVICES et al., Defendants and Respondents.

223 Cal.App.4th 72

167 Cal.Rptr.3d 148

Veronica GONZALEZ, Plaintiff and Appellant,

v.SANTA CLARA COUNTY DEPARTMENT OF SOCIAL SERVICES et al., Defendants and Respondents.

H038241

Court of Appeal, Sixth District, California.

Filed January 21, 2014

Review Denied April 23, 2014 ^*

CERTIFIED FOR PUBLICATION

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 398.

Santa Clara County Superior Court, Superior Court No. CV204141, The Honorable Mark H. Pierce, Trial Judge. (Santa Clara County Super. Ct. No. CV204141)

Seth F. Gorman, Law Office of Gradstein & Gorman, Half Moon Bay, for Veronica Gonzalez: Plaintiff and Appellant.

Lori E. Pegg, Acting County Counsel, Harrison D. Taylor, Deputy County Counsel, for Santa Clara County Department of Social Services et al.: Defendants and Respondents.

RUSHING, P.J.

Appellant Veronica Gonzalez (Mother) was reported for child abuse after she spanked her 12–year old daughter, A.P. (Daughter), using a wooden spoon with enough force to produce visible bruises. The Santa Clara Department of Social Services (Department) concluded that the report was “substantiated,” and submitted it to the state Department of Justice for inclusion in the Child Abuse Central Index (CACI) under the Child Abuse and Neglect Reporting Act, Penal Code sections 11164 through 11174.3 (CANRA or Act). Mother unsuccessfully sought relief by administrative appeal and by petition for administrative mandamus in the superior court. On appeal to this court, she contends that neither the Department nor the superior court gave sufficient weight, or any weight, to the right of a parent to impose reasonable discipline on his or her child. We will sustain this contention. We also sustain Mother's contention that the hearing officer committed a palpable and prejudicial abuse of discretion by refusing to permit Daughter to testify, citing the rationale—which flew in the face of the only evidence before him—that she would be traumatized by the experience.

In reaching these conclusions we neither consider nor decide whether spanking is a sound form of discipline. That is a question entrusted not to this court, but to the people's representatives in the Legislature. We hold only that the Legislature has recognized the right of parents to impose reasonable corporate punishment on their children as a legitimate disciplinary measure. If the Legislature wishes to prohibit spanking, or to impose strict liability on parents where otherwise reasonable discipline causes bruising, it is more than competent to do so. Here the record does not show that any consideration whatever was given to the parents' right to impose reasonable discipline on their children or to basic principles of fair procedure. We will therefore reverse the judgment of the superior court with directions to order the Department to either conduct a new hearing or set aside its finding that the report is “substantiated” and to inform the Department of Justice that the report is “unfounded.”

Background

Prior to the events giving rise to this matter, 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.” ¹ 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.” Daughter herself declared, “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.” She acknowledged that milder disciplinary measures had failed to influence her: “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.”

Mother described in more detail the failure of these less stringent methods of discipline: “[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]. 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. She understood the new consequences. but still chose to continue the bad behavior.”

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.” (Capitalization removed.) 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.” (Capitalization removed.) 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.

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.² An unnamed “mandated child abuse reporter[ ]”—manifestly a school employee—filled out a “suspected child abuse report.” (Emphasis omitted.) 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.” ³

A social worker from the Department was summoned to the school. Daughter told the social worker that she had “not been getting along” with her mother due to declining grades. As reported by the social worker, Mother had “told [Daughter] if she does not get her planner signed by all her teachers to prove she complete [ sic ] her work or wrote [ sic ] down her assignment she would get hit with a wooden spoon.” ⁴ Daughter supposedly told the social worker that on the previous day, “she was not feeling too well and did forget to get one of her teacher's signatures and so when she got home [Mother] told her she was going to get four smacks on the butt with a wooden spoon for no signature and for making excuses. [Daughter] stated that her butt is very sore today and her friends asked what was wrong and she talked to them what happen [ sic ], even though her parents told her to never tell anyone about the spanking. [Daughter] started to cry and said she was scared of causing more trouble for herself.” According to the social worker, Daughter attributed statements to Mother that “she needs to smack her with a spoon so it will hurt more.” Daughter also supposedly reported that...