Md. Court of Appeals to consider whether father administered child abuse or corporal punishment

On Monday, the Court of Appeals will consider whether a father may be held responsible for child abuse for bruising his 6-year-old child with a cowhide belt and metal buckle during the course of corporal punishment. The case comes from Charles County, where the local Department of Social Services, an administrative law judge and the circuit court concluded that he may -- since the child was both harmed and at a substantial risk of additional harm under Maryland law.

But last August, the Court of Special Appeals reversed, holding that because Charles Vann had a common law right to use corporal punishment on his 6-year-old son, he was not responsible for the bruises he inflicted on the child's arm and back as the boy struggled to get away.

There are no criminal charges at issue, but if the top court goes the way of the administrative law judge and the circuit court, the name of Charles Vann will be entered in a central registry of persons responsible for child abuse -- where it will remain for seven years.

Silent statute

Sandra Barnes, who is arguing the case for the Charles County Department of Social Services, says the intermediate appellate court is wrongly reading into the law an exemption to child abuse for injuries occurring when the child is trying to evade corporal punishment. The statute at issue, §5-701 of the Family Law Article, says nothing of the kind, she contends.

"The department's position is that the Legislature intended, for the purposes of providing protective services, that a local department apply the definition in 5-701," she says. "If the parent harms the child or exposes the child to a substantial risk of harm and there is an injury, that constitutes child abuse regardless of the parent's intent."

There are three different definitions of child abuse in Maryland law, each for different purposes, she explained. There is the criminal definition, which Charles Vann was never charged with violating; there is §4-501 of the Family Law Article, which applies to domestic violence protective orders; and there is §5-701, which applies to child protective services. The former contains an exception for reasonable corporal punishment; the latter does not.

In essence, the Court of Special Appeals grafted the exception from the domestic violence statute into the one governing child protective services -- a step the General Assembly has repeatedly declined to take.

"The [definition] the local departments have to apply, the one that governs whether or not local departments can keep their records for future reference, is the one in 5-701," Barnes said. "And there is no reference in that definition to corporal punishment."

The difficulty, she noted, is many administrative law judges believe a parent 's use of corporal punishment is a relevant consideration in their determination of whether abuse has occurred.

"There have also been decisions out of circuit courts to that same effect, that if you're using reasonable corporal punishment, that somehow the standards for determining whether abuse has occurred are different," she said. "There is a patchwork of decisions going both ways." 'Indicated' child abuse

On May 7, 1999, the Charles County Department of Social Services received a report that the child, "V.," had showed up at the KinderCare daycare facility in Waldorf with a scrape on his arm and an inch-long, "half-moon shaped" red mark on his lower back. When social workers interviewed the boy, he told them that he had been punished with a belt by his father for his behavior at day care.

Three days later, social workers interviewed the Vanns, who revealed that they had disciplined their son because he had punched and kicked a teacher at the daycare center in the stomach. Mr. Vann admitted striking his son, but contended it was necessary to use physical discipline to bring his son's increasingly violent behavior under control.

According to the couple, the marks were caused when the child struggled to grab the belt and then tried to run away.

"The client told me they didn't use the buckle," said Riverdale attorney James B. Hopewell, who is representing the Vanns on a partial pro bono basis. "The record doesn't state what part of the belt was used."

The social workers made a finding of "indicated" child abuse, meaning that there was credible evidence that abuse occurred. At a hearing to contest the finding, Administrative Law Judge Mary Seeley Klair affirmed. "While strongly grabbing a young child who is wandering into the street may cause a bruise, such an action is justified to protect the child from the greater imminent harm of being struck by a car," Klair wrote in her Aug. 30, 2000 decision. "Wielding a cowhide belt with a 2-3 [inch] metal buckle at a six-year-old child who is frantically trying to get away and out of reach by twisting, turning, and grabbing the belt is not an equivalent action." Striking "V." hard enough to cause a bruise, she concluded, harmed his health and placed him at a substantial risk of harm. The Circuit Court for Charles County affirmed Klair's decision.

But last August, the Court of Special Appeals reversed, ordering the department to remove Vann's name from every child abuse registry in which it was entered.

While §5-701 is silent with respect to corporal punishment, the intermediate appellate court looked to §4-501 -- and the specific exemption it contains.

"The language of this statute cannot be ignored," Chief Judge Joseph F. Murphy Jr. wrote of §4-501. "The Maryland General Assembly has expressly codified the parent's common law right to impose 'reasonable corporal punishment.'"

A parent has a right to use corporal punishment, the court reasoned -- as long as that punishment is objectively reasonable in light of the child's misbehavior and does not harm the child's health or welfare, or place that health or welfare at substantial risk of being harmed.

The court rejected the administrative judge's conclusions that V.'s health was at a substantial risk of harm because he was struggling to get away; and that there was a substantial risk of harm that V. might have been hit in the face by the belt.

"The child's physical resistance to permissible corporal punishment does not justify the conclusion that the permissible punishment constitutes 'indicated child abuse,'" Murphy wrote. Judge Deborah S. Eyler dissented, however.

"The majority holds that " given the child's misbehavior " the use of a leather belt with a 2 to 3 inch metal buckle to 'spank' the child's buttocks was objectively reasonable and would not have caused him harm or placed him at substantial risk of harm but for his own failure to obediently submit," she noted. "[I]t is clear he did not have the intellectual or emotional maturity to understand that the beating would be physically safer if he stoically submitted. " The discipline meted out to V., she said, was carried out in circumstances where the child was likely to be harmed and met the definition of "indicated child abuse." Restating what's there

Legislation that might have alleviated disputes such as these has been killed by the House Judiciary Committee several times, most recently on Feb. 12. Sponsored by Del. Donald B. Elliott, R-Frederick and Carroll, the bill would have added to §5-701 the same corporal punishment exception that is contained in §4-501. "'Nothing in this subtitle shall be construed to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child,'" Elliott said, quoting §4-501. "I just wanted to restate it in another section of [the Family Law Article] where it's more appropriate for use." Ellen Mugmon, representing the Coalition to Protect Maryland's Children, was one of those who opposed Elliott's bill.

"Two-thirds of what's considered child abuse starts out as 'reasonable' corporal punishment," she said. "It's ironic to punish hitting with hitting. [And] it's quite foreseeable that the child will squirm." Karalyn Mulligan, the executive director of the Maryland chapter of Prevent Child Abuse, says corporal punishment is likely to increase a person's aggressive behavior instead of deterring it.

"Corporal punishment goes far beyond the physical injury," Mulligan said. "They don't learn right from wrong; you're not giving them skills to figure things out."

Elliott, however, says that the child advocates are clouding the issue.

"It is our law that reasonable corporal punishment is not child abuse," he says. (Corporal punishment by parents is, in fact, permitted in all 50 states.) "I'm just trying to clarify that law, to make it so the case workers have all the tools they need to make those judgments." No basis

Barnes, representing the Charles County Department of Social Services, says the department is not contending that it is illegal to use corporal punishment -- only that the parent's intent in disciplining the child should not prevent a finding of abuse.

"There are a number of decisions that have concluded, as the Court of Special Appeals did in this case, that if a parent is using corporal punishment, then the definition of child abuse that the local department [uses] has to be adjusted or modified," Barnes said. "There's no basis for that in the law. "Hopewell contends that social service agencies are not treating parents faily. In his brief, he suggests that they may in fact be pushing hard for findings of indicated child abuse simply to keep a record of the case.

"Parents are faced with so many difficulties -- they have no ability to control the socializing, the information that kids are exposed to," he said. "There are a lot of solid arguments for ending corporal punishment [but] people do have a constitutional right to raise their children. You have parents who are doing everything they can."