Kate' School v. Department of Health

• Decision Date: 28 June 1979
• Citation: 94 Cal.App.3d 606,156 Cal.Rptr. 529
• Court: California Court of Appeals Court of Appeals
• Parties: KATE' SCHOOL, Plaintiff and Respondent, v. DEPARTMENT OF HEALTH, Defendant and Appellant. Civ. 3973.

Page 529

156 Cal.Rptr. 529

94 Cal.App.3d 606

KATE' SCHOOL, Plaintiff and Respondent, v. DEPARTMENT OF HEALTH, Defendant and Appellant.

Civ. 3973.

Court of Appeal, Fifth District, California.

June 28, 1979.

Evelle J. Younger and George Deukmejian, Attys. Gen., Thomas E. Warriner and Elisabeth C. Brandt, Deputy Attys. Gen., Sacramento, for defendant and appellant.

Jones, Day, Reavis & Pogue and Gerald W. Palmer, Los Angeles, as amici curiae on behalf of plaintiff and respondent.

Crossland, Crossland, Caswell & Bell and James M. Bell, Fresno, for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Kate' School, a California nonprofit corporation (the School) ¹ is licensed by the State Department of Social Services ² (the Department) as a community care facility (Health & Saf. Code, ³ §§ 1502, 1503, 1508, 1525) ⁴ for developmentally disabled children whose primary mental disorders are autism or childhood schizophrenia. In requiring the licensure of community care facilities it is the intent of the Legislature to "develop policies and programs designed to: . . . (3) protect the legal and human rights of a person in or receiving services from a community care facility . . .." ( § 1501, subd. (b)(3).)

This case brings into question the validity and effectiveness of certain regulations of the Department prohibiting certain behavioral modification techniques involving the infliction of corporal punishment. We hold that the regulations are valid and effective and that the superior court's findings of fact show a violation of them.

The School holds three community care facility licenses one for a day care center for 48 emotionally disturbed children, one for a small family home and one for a small group home. ⁵

In addition the School has pending applications for five additional small group licenses.

Most of the children enrolled at the School suffer autism and a few from childhood schizophrenia. The behavior of these children is bizarre. They are withdrawn in their personalities, out of touch with reality and unable to relate to their environment or to other children and often to their own parents. ⁶ In May 1976 the Department filed an administrative pleading against the School seeking to revoke the School's three licenses and to sustain the denial of its five additional license applications. The principal grounds alleged were a long series of instances of corporal punishment, humiliation and the abuse of children at the School. ⁷

After a 14-day hearing the administrative law judge filed findings of fact and conclusions of law setting forth in detail enumerated instances of corporal punishment and recommended the revocation of the School's existing licenses and the denial of the additional applications. The proposed decision was adopted by the Department.

Pursuant to Code of Civil Procedure section 1094.5, the School petitioned the superior court for a writ of administrative mandamus. A group of parents were granted amici curiae status.

After a hearing the superior court made findings of fact and conclusions of law and directed the issuance of a peremptory writ ordering the Department to set aside its revocations and to reconsider the denial of the applications for additional licenses. The Department appealed.

DISCUSSION

Section 1525 ⁸ governs the issuance or renewal of permits. Section 1550 ⁹ sets forth the standards by which the Department is permitted to revoke or suspend existing licenses. Both sections are part of the Community Care Facilities Act.

The pertinent regulations of the Department are section 80341 of title 22 of the California Administrative Code and section 152 of title 9 of that code. ¹⁰ Section 80341 provides:

"Each person receiving services from a community care facility shall have rights which include, but are not limited to, the following:

"(1) To be accorded dignity in his personal relationship with staff and other persons.

". . .

"(3) Not to be subjected to corporal or unusual punishment, humiliation, mental abuse, withholding of monetary allowances or punitive interference connected with the daily functions of living, such as eating or sleeping."

Section 152 states:

"Patients shall not be subjected to verbal or physical abuse of any kind. Corporal punishment of both minor and adult patients is prohibited."

Set forth in Appendix 1 are the acts found by the superior court to have been committed by the School. They constitute many but not all of the acts found to have been committed by the administrative decision.

The court further found that the School generally forbade those acts when visitors were present, that the acts were not done with evil motive and that the School was denied a fair hearing before the administrative law judge because sections 152 and 80341 are "so vague when considered in the light of extrinsic evidence of the meaning of the section, including proposed guidelines of the (Department), that (the School) was without prior notice of what conduct was proscribed thereby."

The School denied that it used acts of corporal punishment. It admitted, however, that there were infrequent and mild hand and calf slappings, restraining the movement of the head by holding the chin and a lock of hair for the purpose of establishing eye contact, cool showers to cleanse and to avert toilet accidents, and withdrawal of food. The School urges that the behavioral modification techniques it used were part of a confrontation treatment program which had resulted in improvement in the behavioral patterns of a number of the children to the delight of the parents. The Department does not contend that the School acted out of evil or sadistic motives.

This type of behavior modification technique was variously referred to by the experts during the hearing as "negative reinforcement" or "aversive therapy." ¹¹

The parents urge that if sections 152 and 80341 of the Department's regulations are construed to prohibit behavior modification through use of physical aversives, they violate the constitutional right of the parents to prescribe effective care for their mentally disordered children and the constitutional right to access to their treatment of choice, and further, that the regulations conflict with the legislative intent that all developmentally disabled persons receive appropriate treatment. We shall discuss the various contentions in order.

Adverting first to the contention that the term corporal punishment as used in sections 152 and 80341 is vague and unenforceable, we note that the School has cited no authority which suggests that that term does not have a well recognized and plain meaning.

"A statute should be construed where possible in favor of its validity and is to be given a reasonable and practical construction in accordance with the probable intent of the Legislature; it is not to be declared void for vagueness or uncertainty if any reasonable and practical construction can be given its language." (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574, 146 Cal.Rptr. 653, 660.)

Lexicographers' definitions comport with the common understanding of the term. The term "corporal" is defined as "affecting, related to, or belonging to the body." (Webster's New Internat. Dict. (3d ed. 1961) p. 510.) The term "punishment" is defined as "the act of punishing . . . retributive suffering, pain, or loss . . . severe rough, or disastrous treatment. . . ." (Webster's New Internat. Dict. (3d ed. 1961) p. 1843.) Together, these words mean, "any kind of punishment of or inflicted on the body. . . ." (Black's Law Dict. (4th ed. 1968) p. 408.)

The cases generally accept the term or its equivalent as having a clear meaning without discussion. In People v. Cameron (1975) 53 Cal.App.3d 786, 797, 126 Cal.Rptr. 44, 51, this court held the term "corporal injury resulting in a traumatic condition" used in Penal Code section 273d (child abuse) "appears to pose no difficulty of interpretation. The language, particularly in the context of this case is crystal clear." In that case this court rejected the defendant's argument that the section was unconstitutionally vague. (See also Ingraham v. Wright (1977) 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711; Tarquin v. Commission on Professional Competence (1978) 84 Cal.App.3d 251, 148 Cal.Rptr. 522; Burton v. Board of Education (1977) 71 Cal.App.3d 52, 139 Cal.Rptr. 383; People v. Thomas (1976) 65 Cal.App.3d 854, 135 Cal.Rptr. 644; Harris v. Commonwealth Secretary of Ed. (1977) 29 Pa.Cmwlth. 625, 372 A.2d 953.)

It is apparent that the trial court considered the meaning of the term corporal punishment clear enough but was persuaded to hold it unclear and vague in the context of this case primarily because of a certain 61-page first draft of a document entitled "Guidelines for the Use of Behavioral Procedures in Community Care and Health Facilities for Developmentally and Mentally Disabled Children" which had been prepared by the Department and circulated for comment between the date of the hearing before the administrative law judge and the hearing before the superior court. ¹² The guidelines were admitted into evidence at the trial court level over objection of the Department's counsel.

The draft guidelines were in the initial stage of development and were being prepared pursuant to SECTION 80147, TITLE 22, OF THE CALIFORNIA ADMINISTRATIVE CODE¹³ (hereinafter section 80147) and set forth the standards to be applied by the Department in evaluating an application for an exception to sections 152 and 80341 as to when limited and restricted forms of corporal punishment may be used. ¹⁴

The Department's argument is two-pronged. First, it contends that the draft guidelines were not admissible at the superior court level because they were not in existence at the time of the administrative hearing and, secondly, if admissible at the superior court hearing the court used them for an improper purpose in concluding they...