Trial Court: Santa Clara County Superior Court No.: CV204141, The Honorable Mark H. Pierce.
Attorneys for Plaintiff and Appellant Law Office of Gradstein & Gorman Veronica Gonzalez: Seth F. Gorman.
Attorneys for Defendants and Respondents Lori E. Pegg, Santa Clara County Department of Social Acting County Counsel Services et al. Harrison D. Taylor, Deputy County Counsel
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. 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.”
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.” 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. 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.”
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.” 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 when receiving the spanking, “she had to remove her clothes and bend over the bed.” Daughter reportedly “stated she is scared of [Mother and Father] and knows she needs to be good to avoid getting a smack, but sometimes she has a hard time.” The social worker also reported that Daughter “asked if she could stay [with] her paternal grandmother tonight because she was scared to go home, ” and that Daughter “ha[d] thought about staying with her paternal grandmother because she seems to get along better with her and things are not so scary.”
The parents “came to the school, ” where they were questioned by the social worker, as well as by police, whom the social worker had summoned. Mother told the social worker that Daughter “ha[d] been lying to her about doing her homework and her grades have been declining. [Mother] ha[d] been taking [Daughter’s] phone away and grounding her but nothing seem [sic] to work. [Mother] stated she talked to [Daughter] and warned her that she would begin to use smack and stated that she just started smacking [Daughter] with a wooden spoon last week and has been spanking her almost every day.” Asked whether she thought this was effective, Mother reportedly stated that “she believes it was working and she is doing the best she can to raise [Daughter] right and [that she] did not want [Daughter] to end up like her with a limited education. [Mother] stated that she did not mean to leave marks but stated she had to use to a wooden spoon because she is so small her hand would not even be felt if she tried to smack [Daughter] with her hand.”
After Daughter and both parents had been questioned by a police officer, the anonymous reporter told the officer “she did not believe this case needed to go further.” Daughter “was reunited with her parents.”
About two weeks later, the social worker visited the family home. Both Mother and Daughter told her that things seemed better between them, that Mother had administered no further physical discipline, and that they did not need counseling or other resources. Mother stated “she can’t believe that the report was done and that everyone thinks she is a bad parent. [She] stated she loves kids and it would be a great disservice if she would not be able to work with children. [She] is thinking about becoming a physical education teacher someday. [She] reports that she had confronted difficult kids and feels she has been successful in changing things around for them.”
Nothing in the social worker’s report suggested that there was any violence in the home apart from disciplinary spankings. Daughter reported that her parents often disagreed, but she “d[id] not remember things ever getting physical.” Sister, when questioned by the social worker, confirmed Daughter’s report that Sister “did not have concerned [sic] at home or school, and is not scared of [the parents] and stated that she manages to stay out of trouble unlike [Daughter].”
The social worker nonetheless concluded that there was “still some risk” to Daughter because Mother had resorted to spanking with a wooden spoon when frustrated, had persisted in this practice “even though the behaviors were not changing, ” and had declined to pursue counseling when it was suggested earlier. The social worker concluded her report as follows: “The allegation of physical abuse is substantiated against [Mother]. [She] reported hitting [Daughter] with a wooden spoon after making other attempts to address [Daughter’s] behaviors. [Mother] decline services [sic] and need for resources for counseling [sic]. The undersigned did report [Mother] to the department of justice.”
On or about July 14, 2010, the social worker prepared a “child abuse summary report” for submission to the state Department of Justice. (Capitalization removed.) It described the abuse as “physical” and under “nature of injuries” listed “bruises on botom [sic].” Also prepared on that day was a “notice of child abuse central index listing, ” (capitalization removed) addressed to Mother, stating that Department had “completed an investigation of alleged child abuse or neglect, ” and had found the allegations “substantiated.” Daughter was named as the “alleged victim.” In a space for “the specific act(s) of abuse or neglect alleged against you, ” the only entry was “physical abuse.” The notice indicated that if Mother “want[ed] to challenge [her] listing on the CACI, ” she must submit a request for a “[g]rievance” hearing within 30 days.
On a date not disclosed by the record, Mother submitted the required request for a hearing. After a number of continuances, the matter was heard on February 24, 2011. Early in the hearing, Mother informed the hearing officer that her attorney had “abandoned” her without notice a week earlier. She did not request a continuance, however, and the hearing officer began taking testimony. He first asked the social worker to “tell me exactly what [you] did in her investigation, just kind of give me an overview of what happened from the time you received the referral.” The ensuing narrative largely conformed to the written report. At its conclusion, the hearing officer may have attempted to convey to Mother that she was entitled to question the social worker. Possibly misunderstanding his rather vague remarks, Mother indicated that she wished to present her own testimony. She then gave her narrative of events, consisting largely of a reading of her declaration. The hearing officer refused to permit Daughter to testify. (See pt. II, post.) Father then testified, taking particular issue with the social worker’s claim “about bending [Daughter] over the bed and spanking her on her bare butt, which has never happen and I do not know where that came from.” After Father concluded his testimony the hearing officer asked an additional question of the social worker, and counsel for the Department asked a question of Father. The transcript then abruptly ends. It appears from the declaration of the custodian of records, which accompanied the administrative record, that further proceedings took place, the record of which was lost. (See pt. IV, post.)
On the next day the hearing officer issued his “recommendation and summary of findings.” (Capitalization removed.) He acknowledged the presence of “several points of contention in the case, ” including the question whether the spanking was administered with pants down: “[Mother] is emphatic that she did not ask [Daughter] to pull down her pants before she spanked her and [Daughter]’s declaration supports this statement. However, the [social worker’s investigative narrative] states that [Daughter] told her that she had her pants down.” There is no indication of how the hearing officer resolved this or the numerous other conflicts between the social worker’s testimony and that of the family members. (But see pt. III, post.) He attributed a number of contentions to Mother, including that (1) Daughter’s bruising “is not a traumatic condition and does not meet the criteria in the Penal Code for Physical Abuse”; (2) the bruises “were not major, not intended...[, ] not known during the spanking[, ] and were an accident”; (3) the spanking did not “constitute Child Abuse”; and (4) it was not “unlawful corporal punishment or injury” as defined by statute. In apparent response to these contentions, he wrote, “The spanking administered by [Mother] was not an accident and was willful, and the fact that she did not intend to cause harm to her daughter does not make the bruise an accident. The evidence shows that [Mother] did spank her daughter with a wooden spoon, causing bruising to her daughter’s buttocks. Bruising is an injury and can be considered a traumatic condition. [Mother]’s actions meet the definition of physical abuse and unlawful corporal punishment as defined in the penal codes. [¶] Therefore I am recommending that this referral continue to be classified as substantiated and that there be no change in the CACI.”
On March 18, 2011, the then-director of the Department issued a concurrence in the hearing officer’s decision.
On June 30, 2011, Mother filed a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) asking the superior court to command the Department “to set aside and revoke” the hearing officer’s order and the director’s concurrence. She filed an amended petition on November 29, 2011. Among the arguments set out in her supporting memorandum was that the “discipline of her daughter was a lawful form of corporal punishment [that] does not rise to the level of child abuse under Penal Code § 11165.6.” (Capitalization removed.)
At the hearing on the petition, the court expressed its view that the case presented no factual issues for resolution, and that the court was not empowered to determine whether the record established a case of child abuse. The court ultimately ruled from the bench as follows: “[A]s I have already indicated my position here is not to agree or disagree with the findings of the administrative hearing. My job, I believe, is to determine whether or not there was a proper administrative hearing and or whether this was abuse of discretion. [¶]... I can’t look to the consequences then look back and try to make a decision about whether or not the administrative hearing was correct. [¶] It’s an unfortunate situation, but in my role here I believe that there has not been sufficient basis set forth to grant the writ. So, based upon that I am going to [deny the writ].”
Counsel for Mother requested a statement of decision. The court expressed doubt that she was entitled to one, but invited counsel to “submit something to me and I will consider it.” On the next day the court issued an order stating that Mother had made a timely request to a statement of decision, and directing counsel for the Department to prepare and submit a tentative statement of decision. Slightly over a month later, the court executed a 12-page statement of decision prepared by county counsel. The statement included factual recitals drawn largely from statements attributed to Daughter by the social worker. It did not mention conflicting evidence, including Daughter’s own contrary averments. For example, the statement recited as a fact that “[t]he child said that the mother told her that she used the wooden spoon because it would hurt more, ” despite testimony and declarations from family members to the effect that Mother used the spoon because her hands were sensitive and she was unable to use strike hard enough to make an impression. (See fn. 8, ante.) The statement recited that Daughter “let the school nurse check her behind and take a picture of it, ” disregarding Daughter’s unequivocal averment that she was coerced into exposing her buttocks. The statement also adopted the social worker’s report that Daughter had told her “that the mother made her remove her clothes and bend over the bed when she hit her, ” without acknowledging Daughter’s vehement denial that she had made any such assertion and all four family members’ strenuous contradiction of the assertion itself. The statement recited that Daughter had said she “is afraid of her parents, ” without noting the qualification—reflected in the social worker’s own live testimony—that Daughter had said she was afraid she had gotten into more trouble because of the classes missed due to her lengthy interrogations over this incident.
In its recital of background facts the statement of decision acknowledged Mother’s assertions that she “had not abused the child but had only attempted to discipline her.” The statement addressed that issue as follows: “The mother attempts to avoid the import of Sections 11165.4 and 11165.5 by arguing that she was only a concerned parent who was at her wits end trying to get her child’s attention when all previous disciplinary measures had failed. But the legislature, in its wisdom, has elected not to include a ‘good intentions’ exception to these statutes, which are designed to prevent child abuse. This Court finds that ...