Where and how to draw the line between reasonable corporal punishment and abuse

Law and Contemporary Problems

Volumn 73, Issue 2, 2010, Pages 107-165

  Coleman, Doriane Lambelet ^a   Dodge, Kenneth A ^a   Campbell, Sarah Keeton ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 78649422767     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (262)

1. As used here and throughout this article, the word "reasonable" is a legal term of art meaning "acceptable.".
2. See infra IIA (setting out examples of corporal punishment legislation using this term). In law more generally, "reasonableness" describes a range of behavior that society or a particular community deems "normal" and thus not an appropriate basis for liability, guilt, or action otherwise. Its corollary in the social sciences is the term "normative," which is used throughout this article in the empirical sense, meaning a behavior that is practiced and accepted by a significant proportion (that is, at least a quarter) of the population or subgroup at issue.
3. See also infra note 8 (explaining the relationship between scientific normativeness and cultural and legal norms, including in particular parental autonomy norms).
4. Scott A. Davidson, When is Parental Discipline Child Abuse? The Vagueness of Child Abuse Laws, 34 U. LOUISVILLE J. FAM. L. 403, 403 (1995-1996).
5. ("[T]he broad language of much of the legislation provides little guidance in situations in which the child's punishment is closer to reasonable parental discipline. As a result, courts apply child abuse laws inconsistently in borderline cases.").
6. The first legal scholar to focus on the vagueness of child-abuse definitions and the extraordinary discretion this affords child-welfare authorities continues to be the most prominent voice on the issue.
7. See Michael Wald, State Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards, 27 STAN. L. REV. 985, 1001 (1975) ("Because the statutes do not reflect a considered analysis of what types of harm justify the risks of intervention, decision-making is left to the ad hoc analysis of social workers and judges.").
8. See also Doriane Lambelet Coleman, The Legal Ethics of Pediatric Research, 57 DUKE L.J. 517, 559 (2007) [hereinafter Coleman, Legal Ethics of Pediatric Research] (discussing the "'know it when you see it' test for child maltreatment").
9. Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment, 47 WM. & MARY L. REV. 413, 428-29 (2005) [hereinafter Coleman, Storming the Castle] (discussing the vagueness of typical statutory definitions of child abuse, including this flexibility rationale, and citing cases that have used this rationale to reject constitutional "void for vagueness" challenges to the definitions).
10. See Alison Dundes Renteln, Corporal Punishment and the Cultural Defense, 73 LAW & CONTEMP. PROBS. 253, 258-61 (Spring 2010) (describing such unconventional disciplinary practices).
11. See Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717, 717-18 (1998) (generally describing this immigration phenomenon).
12. Several legal scholars and student commentators have contributed to this evaluation over the years since states first began enacting mandatory reporting laws. Professor Michael Wald began the process.
13. See also Howard Davidson, The Legal Aspects of Corporal Punishment in the Home: When Does Physical Discipline Cross the Line to Become Child Abuse?, 17 CHILD. LEGAL RTS. J. 18 (1997).
14. Dyanne C. Greer, Child Abuse and Discipline: A Parental and Prosecutorial Dilemma, 17 CHILD. LEGAL RTS. J. 30 (1997).
15. Kandice K. Johnson, Crime or Punishment: The Parental Corporal Punishment Defense-Reasonable and Necessary, or Excused Abuse?, 1998 U. ILL. L. REV. 413 (1998). Social scientists have separately explored the issue of how to define abuse.
16. See generally JEANNE M. GIOVANNONI & ROSINA M. BECERRA, DEFINING CHILD ABUSE (1979).
17. BARBARA LOWENTHAL, ABUSE AND NEGLECT: THE.
18. MARK A. WINTON & BARBARA A. MARA, CHILD ABUSE & NEGLECT: MULTIDISCIPLINARY APPROACHES (2001). And a few scholars have taken a multidisciplinary approach to the problem.
19. See, e.g., Robert E. Larzelere et al., Nonabusive Spanking: Parental Liberty or Child Abuse?, 17 CHILD LEGAL RTS. J. 7 (1997) (proposing a paradigm for determining how and where to draw the line between reasonable corporal punishment and abuse framed according to legal constraints and informed in relevant ways by science).
20. Kimberlie Young, An Examination of Parental Discipline as a Defense of Justification: It's Time for a Kindlier, Gentler Approach, 46 NAVAL L. REV. 1 (1999).
21. Norms are customary or widely held beliefs that may either influence or be influenced by law. Parental autonomy norms, in particular, are widely held beliefs about the primacy of parents and parental decisionmaking as against the state and decisions it might make in regards to the child.
22. See infra III.A (describing parental-autonomy norms and how these have influenced the development of both federal constitutional and state laws governing decisionmaking about and on behalf of the child). Individual parenting practices may or may not be normative in the empirical sense, see supra note 1. Furthermore, nonnormative practices may or may not trigger state interference with parental autonomy. Formally, the trigger for state action is a sense that serious harm is being caused or risked by parental behavior. Although normativeness often properly influences that sense, it is not and should not always be dispositive.
23. Not everyone is implicated in this process, however. For example, some parents beat their children for reasons unrelated to discipline, some neighbors report parents who use corporal punishment not because they believe they are abusing their children but because they dislike them, and some social workers and judges discriminate against families based simply on their race or cultural background.
24. See SAMUEL M. DAVIS ET AL., CHILDREN IN THE LEGAL SYSTEM: CASES AND MATERIALS 1-2 (4th ed. 2009) (describing parents' constitutional authority and their status in this context as "first best" caretakers).
25. E. Jane Costello et al., The Great Smoky Mountains Study of Youth Functional Impairment and Serious Emotional Disturbance, 12 ARCHIVES GEN. PSYCHIATRY 1137, 1137 (1996).
26. See generally, AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV).
27. Bedirhan Ustun & Cille Kennedy, What Is "Functional Impairment"? Disentangling Disability From Clinical Significance, 8 WORLD PSYCHIATRY 82, 82 (2009) ("Functional impairment refers to limitations due to the illness, as people with a disease may not carry out certain functions in their daily lives.").
28. Consistent with this definition, "harm" throughout this article is thus defined as serious immediate or delayed impairment in functioning, including physical injury, emotional injury, and behavioral maladjustment.
29. 80 Op. Cal. Att'y Gen. No. 97-416 (1997). California law permits reasonable corporal punishment but defines this narrowly as "age-appropriate spanking to the buttocks." CAL. WELF. & INST. CODE § 300 (2006).
30. Because it is beyond the scope of this article to consider how children and parents are treated once maltreatment has been found, we do not discuss actors such as therapists and family counselors, who are also important but who are involved only after this point.
31. CHILDREN'S BUREAU, U.S. DEP'T HEALTH & HUMAN SERV., DEFINITIONS OF CHILD ABUSE AND NEGLECT 2 (2007), available at http://www.childwelfare.gov/systemwide/laws_policies/statutes/define.pdf .
32. Medical models focus on the child, specifically on the physical consequences of the parental conduct for the child, rather than on the motivation of the parent.
33. See CLIFFORD K. DORNE, AN INTRODUCTION TO CHILD MALTREATMENT IN THE UNITED STATES: HISTORY, PUBLIC POLICY AND RESEARCH 89-110 (Willow Tree Press 3d ed. 2002) (1962) (describing the emergence of the medical model of child abuse in the United States).
34. See Child Welfare Information Gateway, Definitions of Child Abuse and Neglect (2010), http://www.childwelfare.gov/can/defining/state.cfm. This website provides definitions applicable in the civil law context.
35. E.g., IOWA CODE ANN. § 232.68(2)(a) (West 2006) ("[a]ny nonaccidental physical injury").
36. E.g., 325 ILL. COMP. STAT. ANN. 5/3(a) (West 2001 & Supp. 2007) (defining an abused child as "a child whose parent or [other responsible party] inflicts. .. physical injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function").
37. MD. CODE ANN., FAM. LAW § 5-701(b)(1) (LexisNexis 2006) (defining abuse as "the physical. .. injury of a child. .. under circumstances that indicate that the child's health or welfare is harmed or at substantial risk of being harmed").
38. ARK. CODE ANN. §§ 12-18-103(2)(A)(vii)(a), 12-18-103(2)(A)(vii)(c) (2009).
39. PA. CONS. STAT. ANN. §§ 6303(b)(1)(i), 6303(b)(1)(iii) (West 2001) (emphasis added).
40. § 6303(a)(1)-(2).
41. N.C. GEN. STAT. ANN. § 7B-101(1)(a) (West 2004 & Supp. 2006).
42. IOWA CODE ANN. § 232.68 (West 2006). Likewise, North Carolina defines an "abused juvenile" as "[a]ny juvenile less than 18 years of age whose parent, guardian, custodian, or caretaker inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means; creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means, [or] uses or allows to be used upon the juvenile cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior." N.C. GEN. STAT. ANN. § 7B-101 (West 2004 & Supp. 2006).
43. ARK. CODE ANN. §§ 12-18-103(2)(A)(vi) (2009).
44. ARK. CODE ANN. §§ 12-18-103(2)(A)(vii)(a)-(d) (2009).
45. FLA. STAT. ANN. § 39.01(2) (West 2003 & Supp. 2008).
46. Illinois defines physical abuse as the infliction of nonaccidental physical injury that causes "death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function." 325 ILL. COMP. STAT. ANN. § 5/3(a) (West 2001 & Supp. 2007).
47. E.g., Stella M. v. Daniel T.-W., 1997 WL 634580, at *4 (Wis. Ct. App. Oct. 16, 1997) (failing to find abuse because "red marks on a child's buttocks are [not] in the same category as burns and severe or frequent bruising" when "physical injury" was defined to include lacerations, fractured bones, burns, internal injuries, severe or frequent bruising, or great bodily harm).
48. E.g., FLA. STAT. ANN. § 39.01(31)(a) (West 2003 & Supp. 2008) (explaining that the list of injuries to follow is not all-inclusive).
49. § 371(4-a)(i)(B).
50. N.Y. SOC. SERV. LAW § 371(4-b)(i) (McKinney 2003 & Supp. 2007) (emphasis added).
51. § 371(4-a)(i).
52. See N.C. GEN. STAT. ANN. § 7B-101(15) (West 2004 & Supp. 2006) (defining neglect to include inappropriate discipline).
53. see also § 7B-101(11a) (West 2004 & Supp. 2006) (defining the familyassessment response). In January 2006, all North Carolina counties adopted a version of the Multiple Response System, which separately provides that CPS must track less-severe instances of inappropriate discipline or unreasonable corporal punishment onto a nonadversarial "family assessment" track. This move reinforces North Carolina's commitment to distinguishing instances of corporal punishment that are properly classified as abuse (and tracked accordingly, onto the adversarial-investigative track) from those that are to be classified as neglect.
54. Several other states have a version of the MRS, including Missouri, Michigan, and Washington, see http://www.ncsl.org/default.aspx?TabId=17800, but their neglect definitions do not explicitly include inappropriate discipline.
55. In Michigan, for example, CPS workers can classify cases into five categories, depending on the sufficiency of the evidence and risk level. Michigan Dep't of Human Serv, Children's Protective Services Investigation Process, http://www.michigan.gov/dhs/0,1607,7-124-5452_7119_7194-159484--,00.html (last visited Nov. 6, 2009).
56. If evidence indicating low-risk abuse or neglect is sufficient, CPS officials can require community-based services without listing the perpetrator in an abuse or neglect registry. Even if the evidence is insufficient, CPS officials can still offer services on a voluntary basis.
57. Even in states that lack physical-discipline exceptions within their family or juvenile-court codes, courts have recognized a parent's physical-discipline privilege based on a statutory privilege found in the criminal code or a common-law privilege. For example, the Connecticut Court of Appeals recognized that a criminal statute granting parents a privilege to use reasonable physical force to correct their child "demonstrate[d] the public recognition of the parental right to punish children for their own welfare" and thus expressed the "state's policy of allowing reasonable corporal punishment." Lovan C. v. Dep't of Children and Families, 860 A.2d 1283, 1288 (Conn. App. Ct. 2004). Likewise, despite Iowa's lack of a statutory exception for reasonable physical discipline, the state's Supreme Court recognized that "[t]he law clearly gives parents who are so inclined the right to inflict reasonable corporal punishment in connection with the rearing of their children." In re W.G., 349 N.W.2d 487, 487 (Iowa 1984). In sum, parents in all states may physically discipline their children provided that such discipline does not cross the line to become physical abuse.
58. RESTATEMENT (SECOND) OF TORTS § 147 (1965).
59. see also MODEL PENAL CODE § 3.08 (2001).
60. State common law is law as it has evolved and continues to evolve in the state courts. For examples of judicial decisions reflecting the traditional common-law corporal-punishment privilege.
61. see State v. Lefevre, 117 P.3d 980, 984 (N.M. Ct. App. 2005) ("[A] parent has a privilege to use moderate or reasonable physical force, without criminal liability, when engaged in the discipline of his or her child .... [but] [t]he physical force cannot be cruel or excessive if it is to be justified.").
62. Anderson v. State, 487 A.2d 294, 297 (Md. Ct. Spec. App. 1985) ("As a defense ... to what would otherwise be an assault and battery, an individual in loco parentis may sometimes, but not always, establish that the force used upon the child was privileged as necessary and proper to the exercise of domestic authority.").
63. Fourteen states and the District of Columbia provide that reasonable physical discipline is not abuse.
64. The fourteen states are Arkansas, Colorado, Florida, Georgia, Indiana, Minnesota, Mississippi, Missouri, Ohio, Oklahoma, Oregon, South Carolina, Texas, and Washington.
65. D.C. CODE § 16-2301(23)(B)(1) (2001 & Supp. 2007).
66. §§ 16-2301(23)(B)(1)(I), 16-2301(23)(B)(1)(IV).
67. FLA. STAT. ANN. § 39.01(4)(k) (West 2003 & Supp. 2008).
68. The requirement of a disciplinary motive is inherent in the allowance, see infra notes 44-46 and 129-145 and accompanying text; the text of most exceptions and an apparent deference to parents' sense of the circumstances leads decisionmakers generally to focus only on the reasonableness of the nature and degree of force used.
69. HAW. REV. STAT. ANN. § 703-309 (1) (West 2009). Other states have similar statutes. E.g., DEL. CODE ANN. tit. 11, §468(1) (2009) (Delaware); MO. ANN. STAT. § 563.061(1) (West 2009) (Missouri); S.C. CODE ANN. § 20-7-490(2)(ii) (2006) (South Carolina).
70. OHIO REV. CODE ANN. § 2919.22(B)(3) (West 2006). Section 2919 is part of Ohio's penal code. It is included here because the definition of physical abuse for purposes of juvenile-court jurisdiction defines an abused child as one endangered as defined in section 2919.22.
71. See § 2151.031(B).
72. § 2151.031(D). Thus, physical discipline must seriously harm the child-not just harm the child-before it rises to the level of abuse. "Serious physical harm" is defined in the statute to include physical harm involving the following: a substantial risk of death, some permanent or temporary substantial incapacity, permanent or temporary substantial disfigurement, or acute pain. § 2901.01(5)(a)-(e).
73. This law is effectively dispositive because CPS decisions in individual cases mostly go uncontested.
74. All interviewees remain anonymous, at their request. Telephone interview by Erin Vernon, Duke University School of Law, with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with Law and Contemporary Problems, hereinafter, L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
75. See American Academy of Pediatrics, Committee on Child Abuse and Neglect, When Inflicted Skin Injuries Constitute Child Abuse, 110 PEDIATRICS 644, 644 (2002), available at http://aappolicy.aappublications.org/cgi/reprint/pediatrics;110/3/644.pd f.
76. ("One practical criterion often used is that any inflicted injury that lasts more than twenty-four hours constitutes significant injury (i.e., physical abuse).") (citing IOWA DEPARTMENT OF HUMAN SERVICES, EMPLOYEES' MANUAL (1997), available at http://www.extension.iastate.edu/Publications/PM1810.pdf (listing "[r]eddening of surface tissue lasting more than 24 hours" as a "[p]hysical sign of possible child abuse")).
77. The relevance of a bruise lasting for more than twenty-four hours varies across jurisdictions and agencies and there may even be an equivocal standard within a single agency. For instance, in one county in North Carolina, bruises lasting for longer than twenty-four hours were described as both sufficient and insufficient on their own to justify a finding of maltreatment.
78. See interview by Kenneth Dodge and Doriane Coleman with a county CPS supervisor, Durham County, N.C. (February 13, 2009) (on file with L & CP). In Nebraska, the existence of a bruise for more than twenty-four hours is enough to ensure an investigation but is not enough on its own to result in an abuse or neglect finding.
79. See telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP). Moreover, in Oregon, a bruise lasting more than twenty-four hours prioritizes the investigation, but in some cases a bruise that lasts less than twenty-four hours may be enough to substantiate abuse.
80. See telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP).
81. See interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP) (listing risk as the second most important factor); see telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP) (most important factor in safety analysis); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP).
82. See interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon, with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
83. See interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); see telephone interview by Erin Vernon with County CPS Director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
84. See telephone interview by Erin Vernon, with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
85. See telephone interview by Erin Vernon, with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon, with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP).
86. See telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
87. See telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); telephone interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
88. See, e.g., telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP).
89. See, e.g., interview by Kenneth Dodge and Doriane Coleman with a county CPS supervisor, Durham County, N.C. (February 16, 2009) (on file with L & CP).
90. See interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
91. See telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP).
92. See interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
93. See, e.g., interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
94. See telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP). The phrase "uncertain and wavering line" comes from Justice William S. Andrews' famous dissent in Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 104 (N.Y. 1928), in which he describes the trouble judges have deciding whether a defendant was a proximate cause of an accident. He explains that this decision sometimes involves imprecise line-drawing because [t]here are no fixed rules to govern our judgment. There are simply matters of which we can take account. ... Many things contribute to the spread of the conflagration-the force of the wind, the direction and width of the streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can.
95. See, e.g., interview by Kenneth Dodge and Doriane Coleman with a CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP) (expressing disagreement with the idea that a continuum spans reasonable corporal punishment and abuse because this suggests, erroneously, that there is a single place where professionals draw the line; explaining that a complicated set of factors must be considered instead and that even using these factors, "rough cuts" still need to be made in certain cases; and noting that these involve subjectivity and common sense on the part of the professionals involved).
96. See generally MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY: DILEMMAS OF THE INDIVIDUAL IN PUBLIC SERVICES (1980).
97. ("Because the statutes do not reflect a considered analysis of what types of harm justify the risks of intervention, decisionmaking is left to the ad hoc analysis of social workers and judges.").
98. Research in the social sciences also supports the influence of personal and professional orientations on social workers' maltreatment classifications.
99. See Vicki Ashton, The Effect of Personal Characteristics on Reporting Child Maltreatment, 28 CHILD ABUSE & NEGLECT 985, 986 (2004).
100. See telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
101. See telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); see telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP).
102. See telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP) (both Nebraska interviewees said they do not use the child's emotional development in their maltreatment assessment); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP) (according to interviewee, Georgia does not consider a child's ability to be successful at school as a factor in maltreatment investigations); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP) (both Oregon interviewees said they "sort of" considered a child's emotional development, but emphasized they really consider that factor in neglect cases as opposed to physical maltreatment cases).
103. See telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP).
104. See telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP).
105. See interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
106. See telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP).
107. See interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon, with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP). Risk is considered relevant to the determination of maltreatment not only because abuse is expressly defined to include both harm and a risk of harm, but also because, as a practical matter, a finding of significant risk permits CPS to intervene in the family to protect the child from future harm.
108. See telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP).
109. See telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP).
110. See telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP).
111. See interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
112. See telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP).
113. See interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP).
114. See interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP).
115. For example, in one North Carolina county, the CPS supervisor believed parental motivation did not matter when investigating an incident, whereas the frontline worker in the same county thought it was significant.
116. See interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP). In contrast, in a county in Oregon, the director thought parental motivation was a "very important" factor while the frontline investigator placed far less importance upon that particular factor.
117. See interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP). Social workers in rural counties are often personally familiar with the families in the community and thus may have preconceived notions about a particular family which can affect how the investigation proceeds.
118. See telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP).
119. See interview by Erin Vernon with a county CPS supervisor, Duplin County, N.C. (June 26, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Johnson County, Kan. (June 18, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Fulton County, Ga. (June 25, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS director, Adams County, Neb. (June 16, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Adams County, Neb. (June 17, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS frontline investigator, Dallas County, Or. (June 23, 2009) (on file with L & CP); telephone interview by Erin Vernon with a county CPS supervisor, Dallas County, Or. (June 22, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
120. Because CPS professionals often have long-term working relationships with the particular trialcourt judges assigned to review their maltreatment decisions, accommodations may be made on both sides, but especially by CPS.
121. CPS may also be inhibited by states' sometimes-stingy procedural requirements for appeals.
122. See, e.g., In re interest of J.P., 692 N.E.2d 338, 346 (Ill. App. Ct. 1998) ("We are guided by the Illinois Administrative Rules. .. [which suggest] considering such factors as the child's age, the severity of the injury, the location of the injury, whether an instrument was used, and the pattern and chronicity of similar incidents of harm to the child.").
123. 2 AM. JUR. 2D Administrative Law § 77 (2007).
124. see also Sokol v. Kansas Dep't of Soc. & Rehab. Serv., 981 P.2d 1172, 1177 (Kan. 1999) ("[I]n reviewing questions of law, the trial court may substitute its judgment for that of the administrative agency, although ordinarily the court will give great deference to the interpretation of statutes and regulations of the enforcing agency.").
125. See, e.g., T.G. v. Dep't of Children and Families, 927 So. 2d 104 (Fla. Dist. Ct. App. 2006) (holding that evidence was insufficient to establish abuse when physical discipline resulted in bruising but the agency failed to produce evidence that the bruises required medical attention).
126. In re Miles, 2002 WL 1065704, at *1 (Ohio Ct. App. May 22, 2002) (per curiam) (holding that evidence was insufficient to establish abuse when a mother's fiancé bit her nine-year-old child because there was no evidence "that acute pain resulted of any lasting duration to result in substantial suffering, or that [the pain] lasted for an extended period of time or was intractable").
127. But see In re F.S., 806 N.E.2d 1087, 1094-95 (Ill. App. Ct. 2004) (explaining that there is no requirement that injuries necessitate medical treatment in order to constitute abuse).
128. See, e.g., Ark. Dep't of Human Serv. v. Caldwell, 832 S.W.2d 510, 513 (Ark. Ct. App. 1992) (explaining that evidence of bruising as a single factor "standing alone and applied as a litmus test, without consideration of all the attendant circumstances, is [not] an appropriate measure to be used in all cases for determining whether an allegation of abuse is to be sustained").
129. For example, the Iowa Supreme Court rejected a CPS rule that reddening of the skin lasting for twenty-four hours or more is a physical injury per se. Hildreth v. Iowa Dep't of Human Serv., 550 N.W.2d 157, 158-60 (Iowa 1996) (explaining that "welts, bruises, or similar markings are not physical injuries per se but may be and frequently are evidence from which the existence of physical injury can be found"). Florida courts have also rejected an agency policy requiring investigators to confirm reports of abuse when bruises are visible twenty-four hours after the discipline is administered. B.R. v. Dep't of Health and Rehab. Serv., 558 So. 2d 1027, 1028 (Fla. Dist. Ct. App. 1989).
130. see also, e.g., In re O.C., 934 So. 2d 623, 627-28 (Fla. Dist. Ct. App. 2006) (finding that a four-inch bruise on a child's buttocks was insufficient to support a finding of physical abuse and noting that "case law has established. .. that a single incident of a serious bruise on the buttock of a child, perhaps caused by corporal punishment, will not support a finding of dependency" and that "some evidence of a pattern of excessive corporal punishment or a single punishment resulting in a more serious injury is required").
131. Compare Cobble v. Comm'r of Dep't of Social Serv., 719 N.E.2d 500, 503, 508 (Mass. 1999) (finding evidence insufficient to establish abuse when a father disciplined his son by striking him on the buttocks with a belt resulting in temporary red marks that lasted approximately ten minutes), with In re L.T.R., 639 S.E.2d 122, 126 (finding physical abuse when stepfather hit his four-year-old stepson with a brush causing a "dark, six-inch bruise, which lasted well over one week, on his right thigh" which caused visible discomfort several days later), and J.S. v. Dep't of Pub. Welfare, 565 A.2d 862, 864 (Pa. Commw. Ct. 1989) (finding abuse of a five-year-old child when spanking caused "black and blue marks over her entire buttocks area causing severe pain"), and S.C. Dep't of Social Serv. v. Father and Mother, 366 S.E.2d 40, 41 (S.C. Ct. App. 1988) (finding abuse when a thirteen-year-old child sustained "purple bruises covering almost the entire back of her left thigh and a part of the back of her right leg, extending to her knee").
132. In re C.B., J.B., Th.B., & Ti.B., 636 S.E.2d 336, 338 (N.C. Ct. App. 2006).
133. This inclination is consistent with recent moves in some jurisdictions to classify all physical discipline of children under a certain age as per se unreasonable. In 2004, the Canadian Supreme Court prohibited corporal punishment for children under the age of two or over the age of twelve. Canandian Found. for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, 2004 SCC 4 (Can.). Additionally, a California legislator sponsored a bill that would have made spanking a child under the age of three a misdemeanor but abandoned it due to a lack of political support. Jesse McKinley, Lawmaker Ends Effort to Make Spanking a Crime, N.Y. TIMES, Feb. 23, 2007, at A15.
134. See, e.g., In re Rogers, 1989 WL 98423, at *2 (Ohio Ct. App. Aug. 24, 1989) (emphasizing that paddling with a board could "create pain that would be unbearable or nearly so to a two-year-old child").
135. See Dep't of Health and Human Serv. v. R.C., 2007 S.W.3d WL 416776, at *7 (Ark. Feb. 8, 2007) (finding abuse when a four-year-old child suffering from cerebral palsy received a spanking causing eight to ten bruises).
136. Lovan C. v. Dep't of Children and Families, 860 A.2d 1283, 1290 (Conn. Ct. App. 2004) (relevant factors include "the amount of force used and the child's age, size and ability to understand the punishment").
137. See, e.g., In re Mercer, 2005 WL 914671, at *4 (Ohio Ct. App. Apr. 21, 2005) (considering the "[n]ature of manner of the discipline administered, and the measure of discipline").
138. See In re F.W., 634 N.E.2d 1123, 1129 (Ill. App. Ct. 1994) (urging parents to "understand that a swat on a child's buttocks with an open hand and the 'paddling' of a child with belts, cords, or ropes are intrinsically distinct exercises of corporal punishment" and warning that "parents using boards, belts, cords, or ropes as weapons to inflict corporal punishment may encounter an unwillingness on the part of DCFS and the courts to regard their conduct as reasonable"). But see In re J.P., 692 N.E.2d 338, 346 (Ill. App. Ct. 1998) ("[T]he use of an object, especially when the court finds that the object was not 'terribly offensive' or 'heinous' should not blind a court to the many other factors which should and must be considered when weighing the evidence.").
139. Hildreth v. Iowa Dep't of Human Serv., 550 N.W.2d 157, 160 (Iowa 1996) ("The laws of physics are such that when even a moderate degree of force is administered through an instrument that makes contact with only a small area of the body, the pressure visited upon that point may be more than will reasonably be anticipated.").
140. See City of Philadelphia v. Dep't of Pub. Welfare, 767 A.2d 10, 11 (Pa. Commw. Ct. 2001) (A mother bruised her son's forearm and back with a pool stick when he tried to shield himself from her strikes to the buttocks).
141. One mother told a child-services caseworker that she used a wooden spoon to discipline her child because she believed it was wrong to hit with the hand, which should represent love. In re J.P., 692 N.E.2d 338, 339 (Ill. App. Ct. 1998). Another parent explained that he preferred to use an object instead of his hand because he did not want to teach his children that "the way to solve things is by hitting with the hand." In re B.B., 598 N.W.2d 312, 316 (Iowa Ct. App. 1999).
142. See, e.g., P.R. v. Dep't of Pub. Welfare, 801 A.2d 478, 487 (Pa. 2002) (holding that an agency must show that a parent's conduct in administering corporal punishment was a "gross deviation from the standard of care that a reasonable person would observe in the same situation" to establish that injuries inflicted as a result of corporal punishment constitute abuse; the court found that the decision to use a belt with a buckle was not such a gross deviation). In an earlier case, however, a Pennsylvania court held that a mother abused her daughter when she continued to strike her daughter with a belt as her daughter ran up the stairs. B.J.K. v. Dep't of Pub. Welfare, 773 A.2d 1271 (Pa. Commw. Ct. 2001).
143. See also In re Peter G., 6 A.D.3d 201, 206 (N.Y. App. Div. 2004) (finding physical discipline reasonable absent a "showing that the father's actions were extreme or unnecessarily degrading or prompted by rage or administered solely for self-gratification").
144. See, e.g., In re O.C., 934 So. 2d 623, 627-28 (Fla. Dist. Ct. App. 2006) (requiring either "evidence of a pattern of excessive punishment" or a more-serious single incident to constitute abuse).
145. Only a handful of the cases reviewed contained any references to emotional or developmental effects. See, e.g., In re D.C., 596 P.2d 22 (Alaska 1979) (per curiam) (recounting testimony from a psychiatric social worker indicating that the home situation was causing major psychological problems for the child).
146. In re T.F., 2005 WL 288996, at *4 (Cal. Ct. App. Feb. 7, 2005) (recounting testimony from a counselor indicating that "children appeared to be happy with the mother").
147. In re S.K., 564 A.2d 1382 (D.C. Ct. App. 1989) (per curiam) (recounting expert testimony that the child's mental illness was exacerbated by physical discipline).
148. O.S. v. Dep't of Children and Families, 821 So. 2d 1145 (Fla. Dist. Ct. App. 2002) (recounting evidence that child was self-mutilated). Illinois courts appear to consider the emotional and psychological effects more frequently than do courts in other states.
149. See In re F.W., 634 N.E.2d 1123, 1129 (Ill. Ct. App. 1994) (noting that it is appropriate for the court to consider the "psychological effects of the discipline on the child"). It is impossible without doing a thorough search of case files to determine the information lower courts had at their disposal. These files are difficult to locate and, depending on the case, may be sealed. A review of appellate decisions is a good substitute for this search because they are based on evidence included in the record below. The experience of parties to and judges sitting on cases in the lower courts is consistent with our reading of these appellate decisions.
150. In re BB, 598 N.W. 2d 312, 318 (Iowa Ct. App. 1999) (Sackett, C.J., concurring specially) (departing from the majority's conclusion that excessive corporal punishment caused a child to adopt his parents' aggressive approach to problem-solving because "this is not a conclusion to reach without any statistical evidence" and "experience ha[d] shown [the judge] that even young men who are not spanked at home fight at school").
151. Cindy S. Lederman, Healing in the Place of Last Resort: The Role of the Dependency Court Within Community-Based Efforts to Prevent Child Maltreatment, in PREVENTING CHILD MALTREATMENT: COMMUNITY APPROACHES 172, 173 (Kenneth A. Dodge & Doriane Lambelet Coleman eds., 2009).
152. Interviews by Kenneth A. Dodge and Doriane Lambelet Coleman with county CPS frontline investigator and director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP).
153. People ex rel. C.F., 708 N.W.2d 313, 317 (S.D. 2005). South Dakota employs a two-pronged analysis to determine whether an act of discipline is unlawful or reasonable. The first prong asks whether the "corrective measure utilized was 'rendered necessary' by the child's actions," while the second prong asks "whether the force used was 'reasonable in manner and moderate in degree.'".
154. See Lovan C. v. Dep't of Children and Families, 86 Conn. App. 290, 299 (Conn. App. Ct. 2004) ("In a substantiation of abuse hearing, if it is shown that a child has sustained a non-accidental injury as a result of parent administered corporal punishment, the hearing officer must determine whether the punishment was reasonable and whether the parent believed the punishment was necessary to maintain discipline or to promote the child's welfare.").
155. In re Horton, 2004 WL 2674562, at *7 (Ohio Ct. App. Nov. 23, 2004) (determining whether a child is abused requires an inquiry into "(1) the excessiveness (or lack thereof) and necessity (or lack thereof) of the corporal punishment appellant inflicted, and (2) whether the punishment created a substantial risk of serious physical harm"). An opinion issued by the California Attorney General also suggested that this is the proper analysis. 80 Op. Cal. Att'y Gen. No. 97-416 (1997) ("[T]he punishment must be necessary and not excessive in relation to the individual circumstances.").
156. See In re T.A., 663 N.W.2d 225, 230 (S.D. 2003) (finding physical discipline unnecessary because the boy's "parents failed to intervene in any manner before resorting to spanking" and did not attempt alternative forms of discipline).
157. See M.O. v. Dep't of Health and Rehab. Serv., 575 So. 2d 1352 (Fla. Dist. Ct. App. 1991) (per curiam) (emphasizing that the discipline employed by parents was part of a therapeutic plan developed with the help of an outside expert).
158. See, e.g., In re Maurice S., 1994 WL 149549, at *3 (Neb. Ct. App. Apr. 26, 1994) (finding abuse when father was angry at his son and "specifically ordered [him] to remove his sweater to ensure the punishments were painful" and when nothing suggested that the child was "defiant or otherwise uncontrollable or incorrigible").
159. See, e.g., Raboin v. N.D. Dep't of Human Serv., 552 N.W.2d 329 (N.D. 1996) (noting that parents only used corporal punishment as a last resort and in a structured manner).
160. State ex rel. L.P., 981 P.2d 848 (Utah Ct. App. 1999) (considering whether parent's action was a good faith effort to maintain discipline or, rather, a malicious intent to cause harm); Ables v. Rivero, 2003 WL 356446, at *6 (Va. Ct. App. Feb. 19, 2003) (explaining that it is unreasonable to use physical discipline for the "exhibition of uncontrolled passion").
161. See, e.g., In re J.P., 692 N.E.2d 338, 345 (Ill. Ct. App. 1998) ("It is clear that a parent has the 'right' to corporally discipline his or her child, a right derived from our constitutional right to privacy. But this right, like any other, must be exercised in a 'reasonable' manner.") (citations omitted).
162. Interview by Kenneth A. Dodge and Doriane Lambelet Coleman, with a county frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP) (describing the goal as helping families and explaining that classifying an injury as maltreatment provides the basis to accomplish this goal; emphasizing that CPS exists to protect children, not parents' rights).
163. Doriane Lambelet Coleman, Innovations in Child Maltreatment Prevention: Resolving the Tension Between Effective Assistance and Violations of Privacy, in PREVENTING CHILD MALTREATMENT.
164. Appellate court judges in particular seem to be inclined toward privileging parents' rights above harm to the child, as they are more likely, certainly more so than CPS professionals, to interpret a statutory requirement of physical injury or serious physical injury to require egregious harm or damage to the child. See, e.g., In re C.B., J.B., Th.B., & Ti.B., 636 S.E.2d 336, 338 (N.C. Ct. App. 2006) (providing as illustrations of incidents and outcomes meeting the definition a parent who chokes, punches, and burns a child and who pulls out her hair, and rejecting as insufficient CPS's evidence of beatings
165. "Together, the social welfare agencies and legal system constituted a curious commingling of the exercise of legal authority and the rendering of social service, with much overlap and blurring of roles. That tensions should arise in any system with such unclear role definitions is inevitable.".
166. James G. Dwyer, Parental Entitlement and Corporal Punishment, 73 LAW & CONTEMP. PROBS. 189, 194-206 (Spring 2010).
167. Martha Albertson Fineman, What Place for Family Privacy?, 67 GEO. WASH. L. REV. 1207, 1210-11 (1999) (family privacy means the right to freedom from state interference that belongs to the family as a unit or entity, rather than to its included individuals).
168. Barbara Bennett Woodhouse, The Dark Side of Family Privacy, 67 GEO. WASH. L. REV. 1247, 1254 (1999) (family privacy is essentially the same thing as parental autonomy since, "[w]hen we adopt a theoretical framework that endows any 'unit' of persons with 'autonomy,' or a 'right' to be free of state intervention, in practice, we are conferring unregulated authority on the dominant member within this closed community of persons").
169. Lee E. Teitelbaum, The Family as a System: A Preliminary Sketch, 1996 UTAH L. REV. 537, 541-42 (1996) (recalling colonial history that described the family as "distinct from that other entity, the state, ... [which] must be given some decisional space," and describing a married couple as "form[ing] a precinct that stands apart from and is ordinarily closed to state authority").
170. See Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN. L. REV. 1193, 1202-05 (1998) (describing the constitutional concept of decisional privacy).
171. Borst v. Borst, 41 Wash. 2d 642, 656 (Wash. 1952)(en banc.).
172. In other words, even though the Supreme Court has not decided the question, given long-standing state-law tradition, it is generally assumed that if the Court did have occasion to do so, it would rule that corporal punishment is within the bounds of parental autonomy.
173. (quoting Parham v. J.R., 442 U.S. 584, 603 (1979)).
174. Leonard P. Edwards, Corporal Punishment and the Legal System, 36 SANTA CLARA L. REV. 983, 991 n.48 (1995-1996) (discussing the Supreme Court cases that, read together, support the assumption that parents have a constitutional right to use corporal punishment as a form of discipline).
175. See Newby v. United States, 797 A.2d 1233, 1242-43 (D.C. 2002) (explaining that "the basic conception of the parental discipline defense" requires a "genuine disciplinary purpose" and the use of only "moderate" or "reasonable" force).
176. RESTATEMENT (SECOND) OF TORTS § 147 (1965) (providing that "[a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training, or education").
177. See also, e.g., Gillett v. Gillett, 335 P.2d 736 (Cal. Ct. App. 1959) (noting that a parent "may administer reasonable punishment with impunity, but when he exceeds that limit and does so willfully he commits a battery and is civilly liable for the consequences").
178. Diehl v. Commonwealth, 385 S.E.2d 228, 230 (Va. App. Ct. 1989) ("[W]hile a parent has the right to discipline his or her child the punishment must be within the bounds of moderation. If the parent exceeds due moderation, he or she becomes criminally liable.").
179. Modern thought on the need for and benefits of corporal punishment is remarkably unchanged.
180. Further, it builds character, prevents bad behavior from reoccurring, and improves discipline.").
181. 1 WILLIAM BLACKSTONE, COMMENTARIES *542.
182. See Anne C. Dailey, Constitutional Privacy and the Just Family, 67 TUL. L. REV. 955, 965 (1993) (noting the historical construction of the family as "a little commonwealth").
183. HERMAN HUMPHREY, DOMESTIC EDUCATION (1840), reprinted in 1 CHILDREN AND YOUTH IN AMERICA: A DOCUMENTARY HISTORY 351-52 (Robert Bremner ed., 1970) ("Every family is a little state, or empire within itself ... Every Father is the constituted head and ruler of his household. God has made him the supreme earthly legislator over his children ... .").
184. William E. McCurdy, Torts Between Persons in Domestic Relations, 43 HARV. L. REV. 1030, 1076-77 (1930) (noting that the family is a "domestic government" and that "the head of the family is clothed with broad authority. .. similar to that of a sovereign").
185. see also LAURENCE THOMAS, THE FAMILY AND POLITICAL SELF 83-129 (arguing from Rousseau that "'[t]he family is the first model of political societies'").
186. Meyer v. Nebraska, 262 U.S. 390, 401-03 (1923) (discussing the downsides of alternative childrearing models).
187. Lehr v. Robertson, 463 U.S. 248, 257 (1983) ("[T]he Court has emphasized the paramount interest in the welfare of children and has noted that the rights of parents are a counterpart of the responsibilities they have assumed.").
188. Parham v. J.R., 442 U.S. 584, 602 (1979) ("Parents generally, 'have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.'") (quoting Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925)).
189. Katharine T. Bartlett, Re-Expressing Parenthood, 98 YALE L.J. 293, 297-98 (1988) (describing the traditional view of "parenthood as exchange").
190. As Emily Buss has written, [A] legal system that shows strong deference to parents' child-rearing decisions serves children well. Parents' strong emotional attachment to their children and considerable knowledge of their particular needs make parents the child-specific experts most qualified to assess and pursue their children's best interests in most circumstances. In contrast, the state's knowledge of and commitment to any particular child is relatively thin. A scheme of strong constitutional rights shields the parent expert from the intrusive second-guessing of the less expert state.
191. "Parental" Rights, 88 VA. L. REV. 635, 647 (2002).
192. JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD 19-20, and passim (1973) (arguing that interference in or disruption of a bonded parent-child relationship can cause harm to the child).
193. Barbara Bennett Woodhouse, From Property to Personhood: A Child-Centered Perspective on Parents' Rights, 5 GEO. J. ON FIGHTING POVERTY 313, 313 (1998).
194. David D. Meyer, The Constitutionalization of Family Law, 42 FAM. L.Q. 529, 529-30 (2008) (discussing "the circle of family privacy protection" in the current context).
195. See Meyer v. Nebraska, 262 U.S. 390, 402 (1923) ("The power of the state to compel attendance at some school. .. is not questioned.").
196. Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 (1925): No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.
197. In re J.P., 692 N.E.2d 338, 345 (Ill. Ct. App. 1998).
198. Murray A. Straus, Prevalence, Societal Causes, and Trends in Corporal Punishment by Parents in World Perspective, 73 LAW & CONTEMP. PROBS. 1, 22-29 (Spring 2010) (explaining that social science research has documented recent rapid and marked changes in social norms and cultural acceptance regarding the frequency and manner of corporal punishment of children in both American society and worldwide).
199. Two criteria traditionally have informed the reasonableness of parental behavior and, thus, the legal limits of parental autonomy. One criterion is the degree of harm to the child.
200. The other criterion is cultural norms as these evolve over time. Regardless or independent of degree of harm to the child, parental autonomy tends to be respected as long as a parental practice does not stretch too far beyond culturally specific notions of normativeness. Norms are defined both by statistical frequency and cultural tolerance. Thus, parental autonomy is allowed if the practice is not too unusual; that is, as long as the behavior is also practiced by at least some other accepted members of the society. Official tolerance may also increase the statistical normativeness of a corporal-punishment practice; tolerance and normativeness undoubtedly reciprocally influence each other. Corporal punishment to the buttocks, for example, is allowed partly because it is statistically normative. In the United States, the majority of children between ages two and five have been corporally punished, even though parents report using corporal punishment relatively rarely, peaking at one and a half times per month when children are two years old and decreasing to less than once per month by the time children are twelve years old.
201. M.A. Straus and J.H. Stewart, Corporal Punishment by American Parents: National Data on Prevalence, Chronicity, Severity, and Duration, in Relation to Child and Family Characteristics, 2 CLINICAL CHILD & FAM. PSYCHOL. REV. 5, 59-60 (1999).
202. Male circumcision is also statistically normative, even though it causes the sort of harm to the child that would otherwise qualify as abuse.
203. See Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717, 757 n.185 (1998).
204. In contrast, corporal punishment to the genitals would receive much closer scrutiny by authorities simply because it is less common, whether or not it causes actual harm to the child.
205. A claim that the state has violated a parent's constitutional right of parental autonomy would be brought under the Fourteenth Amendment and, if the claim was religiously grounded, also under the First.
206. A claim that the state has violated a parent's right to use corporal punishment to discipline a child would be brought under the common-law or statutory-discipline exception relevant to the proceedings in issue, that is, tort law, criminal law, or civil-maltreatment law.
207. See U.S. CONST. art. VI.
208. See also ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 392 (3d ed. 2006).
209. See, e.g., In re C.B. J.B., Th.B., & Ti.B., 636 S.E.2d 336, 338 (N.C. Ct. App. 2006).
210. See D. L. Chadwick et al., Annual Risk of Death Resulting From Short Falls Among Young Children: Less Than 1 in 1 Million, 121 PEDIATRICS 1213 (2008).
211. See American Academy of Pediatrics, Committee on Child Abuse and Neglect, Shaken Baby Syndrome: Rotational Cranial Injuries Technical Report, 108 PEDIATRICS 206, 208 (2001).
212. H. T. Keenan, et al., A Population-Based Comparison of Clinical and Outcome Characteristics of Young Children With Serious Inflicted and Noninflicted Traumatic Brain Injury, 114 PEDIATRICS 633, 638 (2004).
213. J. Punt et al., The 'Unified Hypothesis' of Geddes et al. is Not Supported by the Data, 7 PEDIATRIC REHABILITATION 173, 173 (specifically addressing cerebral palsy as a delayed outcome).
214. K. M. Barlow, E. Thomas, & R. A. Minns, Neurological and Neuropsychological Outcome of Non-Accidental Head Injury, 3 EUR. J. OF PAEDIATRIC NEUROLOGY A139 (1999) (Abstract).
215. Mark Donohoe, The Evidence Base for Shaken Baby Syndrome: Meaning of Signature Must be Made Explicit, 329 BRIT. MED. J. 741, 741 (2004).
216. A. Duhaime, et al., The Shaken Baby Syndrome: A Clinical, Pathological, and Biomechanical Study, 66 J. NEUROSURGERY 409, 414 (1987).
217. Mary E. Case, Abusive Head Injury in Infants and Young Children, 9 LEGAL MED. 83 (2007).
218. R.A. Minns, 'Shaken Baby Syndrome:' Theoretical and Evidential Controversies, 35 J. ROYAL C. PHYSICIANS EDINBURGH 5, 8-10 (2005).
219. E.g., State v. McClary, 541 A.2d 96, 102 (Conn. 1988) (holding that SBS is a well accepted medical diagnosis).
220. State v. Lopez, 412 S.E.2d 390, 393 (S.C. 1991).
221. Brian. K. Holmgren, Assistant District Attorney General, Davidson County, Tennessee, Irresponsible Expert Testimony, http://www.dontshake.org/sbs.php?topNavID=3&subNavID=28&navID=11 5 (last visited Nov. 11, 2009).
222. This literature distinguishes the experience of physical abuse from the experience of corporal punishment, although corporal punishment is usually graded on a continuum of severity and chronicity that ends in abuse. Indeed, eleven states (Florida, Illinois, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, South Carolina, West Virginia) and the District of Columbia declare that "excessive corporal punishment" constitutes child maltreatment, and an additional eleven states declare that corporal punishment is maltreatment if it is "cruel" (Connecticut, Colorado, Nebraska, New Mexico, Ohio, South Dakota), "unlawful" (California), "excessive or unreasonable" (Wyoming), "severe" (New Jersey), "cruel and inhuman" (Kansas), or "extreme" (Maine).
223. Howard Davidson, The Legal Aspects of Corporal Punishment in the Home: When Does Physical Discipline Cross the Line to Become Child Abuse?, 17 CHILD. LEGAL RIGHTS J., 18, 20, 23-25 (1997).
224. L. J. Berlin et al., Correlates and Consequences of Spanking and Verbal Punishment for Low-Income White, African-American, and Mexican-American Toddlers, 80 CHILD DEV. 1403, 1411-12 (2009).
225. Elizabeth Thompson Gershoff, Corporal Punishment by Parents and Associated Child Behaviors and Experiences: A Meta-Analytic and Theoretical Review, 128 PSYCHOL. BULL. 539, 541 (2002).
226. Diana Baumrind, Robert. E. Larzelere & Philip A. Cowan, Ordinary Physical Punishment: Is it Harmful? Comment on Gershoff (2002), 128 PSYCHOL. BULL. 580, 585 (2002).
227. Sara R. Jaffee et al., The Limits of Child Effects: Evidence for Genetically Mediated Child Effects on Corporal Punishment but Not on Physical Maltreatment, 40 DEVELOPMENTAL PSYCHOL. 1047, 1053 (2004).
228. Jennifer E. Lansford et al., Trajectories of Physical Discipline: Early Childhood Antecedents and Developmental Outcomes, 80 CHILD DEV. 1385, 1397-1401 (2009).
229. Kirby Deater-Deckard et al., Physical Discipline among African American and European American Mothers: Links to Children's Externalizing Behaviors, DEVELOPMENTAL PSYCHOL. 1065, 1069-70 (1996).
230. As explained infra note 180 and in the accompanying text, these outcomes (that is, lowered cognitive skills, increased aggressive behavior, and increased use of aggression when parenting) for the corporally punished child qualify as functional impairments according to established medical practice.
231. Kenneth Dodge, V. C. McLoyd & Jennifer E. Lansford, The Cultural Context of Physically Disciplining Children, in EMERGING ISSUES IN AFRICAN AMERICAN FAMILY LIFE: CONTEXT, ADAPTATION, AND POLICY 245 (V.C. McLoyd, N.E. Hill & Kenneth Dodge eds., 2005).
232. Jennifer E. Lansford et al., Physical Discipline and Children's Adjustment: Cultural Normativeness as a Moderator, 76 CHILD DEVEL. 1234, 1244 (2005).
233. Lest one conclude that if severe corporal punishment were to become ubiquitous its adverse impact would be nil, cross-cultural studies have shown that there is a residual effect of a cultural norm that endorses such punishment of children: such societies are likely to have higher rates of adult violence and even war.
234. Jennifer E. Lansford & Kenneth Dodge, Cultural Norms for Adult Corporal Punishment of Children and Societal Rates of Endorsement and Use of Violence, 8 PARENTING: SCI. & PRACTICE 257, 266-67 (2008).
235. Ruth Gilbert et al., Child Maltreatment: Burden and Consequences in High-Income Countries, 373 LANCET 68, 76-77 (2009).
236. Kenneth A. Dodge, J.E. Bates & G.S. Pettit, Mechanisms in the Cycle of Violence, 250 SCI. 1678, 1678 (1990).
237. Jennifer E. Lansford et al., Early Physical Abuse and Later Violent Delinquency: A Prospective Longitudinal Study, 12 CHILD MALTREATMENT 233, 233 (2007).
238. Chih (Peter) L. Chen, Is There a Right Way to Discipline a Child, 16 J. CONTEMP. LEGAL ISSUES 105, 106-07 (2007).
239. See Kenneth Dodge, John D. Coie & Donald Lynam, Aggression and Antisocial Behavior in Youth, in 3 HANDBOOK OF CHILD PSYCHOLOGY: SOCIAL, EMOTIONAL, AND PERSONALITY DEVELOPMENT 719 (Nancy Eisenberg ed., 6th ed. 2006).
240. see generally Kenneth Dodge, Translational Science in Action: Hostile Attributional Style and the Development of Aggressive Behavior Problems, 18 DEV. & PSYCHOPATHOLOGY 791 (2006).
241. Functional impairment refers to short-or long-term or permanent impairment of emotional or physical functioning in tasks of daily living.
242. For example, corporal punishment that causes a child to fail academically, to have disciplinary problems in school, to be fearful of personal relationships, or to become a violent adult, achieves precisely the opposite of the result intended by the corporal punishment exception-that is, a lawabiding and otherwise successful adult. The standard that defines unlawful corporal punishment must provide the relevant legal actors with the basis to classify such punishment as abuse. It should not, however, permit classification as abuse of incidents and injuries that do not cause such impairments. There are no perfect parents, and everyone can imagine themselves to be damaged even by exceptional ones. Routine childhood injuries, whether these are physical or emotional, are not what maltreatment law was or ought to be designed to address.
243. Many CPS professionals are not aware of or else reject this balancing test. See, e.g., interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS frontline investigator, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP) (explaining that CPS's job is to protect children, not to safeguard parents' rights). They may believe that respect for family privacy and parental autonomy only hurt children, or at least those children they are assigned to investigate.
244. In fact, however, the overriding presumption in American law is that parents act in the best interests of their children until proven otherwise. Parham v. J.R., 442 U.S. 584, 602 (1979).
245. This means that CPS interventions conducted in advance of such proof disrupt parents' efforts to do right by their children. CPS interventions thus are risking harm even as they are designed to protect against it. To the extent that this legal presumption and its logical ramifications reflect how society in general views the relationship between CPS and families, CPS professionals who ignore the balancing test are (at least) operating against that grain.
246. Older statutory language often made this caveat express, and similar language has found its way into some judicial decisions. See, e.g., Anderson v. State, 487 A.2d 294, 298 (Md. Ct. Spec. App. 1985) ("So taken for granted that it tends to be neglected by the case law and legal literature, is that the force truly be used in the exercise of domestic authority by way of punishing or disciplining the child-for the betterment of the child or promotion of the child's welfare-and not be a gratuitous attack.").
247. see also, e.g., Bowers v. State, 389 A.2d 341, 348 (Md. App. Ct. 1978) ("On the other hand, where corporal punishment was inflicted with 'a malicious desire to cause pain' or where it amounted to 'cruel and outrageous' treatment of the child, the chastisement was deemed unreasonable, thus defeating the parental privilege and subjecting the parent to penal sanctions in those circumstances where criminal liability would have existed absent the parent-child relationship.").
248. Kirby Deater-Deckard, Kenneth Dodge & Emma Sorbring, Cultural Differences in the Effects of Physical Punishment, in ETHNICITY AND CAUSAL MECHANISMS 204, 211 (Michael Rutter & Marta Tienda eds., 2005).
249. Even if the right were based in the Federal Constitution, however, community norms would likely continue to govern its scope.
250. Reasonableness in law is thus either consistent with existing community norms or else aspirational. In the former, more typical case, the determination whether something is reasonable is made by the trier of fact, usually the jury. When a norm has been established by the jury over a series of cases, judges may decline in future similar cases to submit the question to another jury on the ground that the matter has been amply settled. In the latter, more-atypical case, the determination whether something is reasonable is taken away from the jury by the judge on the ground that community norms are ultimately unacceptable.
251. See, e.g., Brzoska v. Olson, 668 A.2d 1355 (Del. 1995) (deciding the question whether AIDS phobia was reasonable "as a matter of law," thus removing it from the jury's consideration, on the basis that the state should not be in the business of sanctioning such phobia no matter how normative). In suggesting that judges ought to continue to be permitted to decide what a community's norms ought to be-as prevailing reasonableness analysis does-we do not propose that they be given the leeway to codify their personal opinions; indeed, we specifically reject this as unreasonable. Rather, we propose that they be authorized to prohibit even normative forms of corporal punishment when these are scientifically proven to cause functional impairment. The example we have already used of such a case is SBS, which is still normative in some situations but which, based on scientific evidence, ought to be prohibited always.
252. Compare ARK. CODE ANN. § 12-12-503(2)(C)(1) ("'Abuse' shall not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child."), with In re T.A., 663 N.W.2d 225, 230 (S.D. 2003) (considering whether a parent's discipline of his child was "rendered necessary" by the child's actions).
253. Kirby Deater-Deckard & Kenneth A. Dodge, Externalizing Behavior Problems and Discipline Revisited: Nonlinear Effects and Variation by Culture, Context, and Gender, 8 PSYCHOL. INQUIRY 161, 163 (1997) (noting the cultural and socio-economic differences).
254. See generally Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberal's Dilemma, 96 COLUM. L. REV. 1093 (1996).
255. For example, some jurisdictions with both extensive non-conforming immigrant communities and the political will and resources to work to reconcile those practices with broader community norms and applicable law have incorporated sensitivity to cultural difference in their CPS protocols and have trained their professionals accordingly. On the other hand, jurisdictions that are unaccustomed to nonconforming immigrants or are unwilling to work to understand their different practices have not engaged such efforts.
256. See Stephen D. Whitney et al., Defining Child Abuse: Exploring Variations in Ratings of Discipline Severity Among Child Welfare Practitioners, 23 CHILD & ADOLESCENT SOC. WORK J. 316, 323 (2006) (including these practices or behaviors as among those most likely to trigger CPS scrutiny); interview by Kenneth A. Dodge and Doriane Lambelet Coleman with a county CPS supervisor, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP) (noting that its agency's protocol requires a finding of abuse when a parent seeks to corporally punish a child anywhere on the head).
257. See FED. R. EVID. 401, 402. The states' own rules mirror the Federal Rules in these respects. See, e.g., ALA. R. EVID. 401 ("'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").
258. ALA. R. EVID. 402 ("All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible."). None of the standard exceptions to this rule apply to exclude consideration of the scientific and other evidence described in this article.
259. FED. R. EVID. 702. The states' rules on expert testimony are similar. See, e.g., ALA. R. EVID. 702 ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.").
260. Part III.B elaborates on the contexts that cause children to suffer functional impairments. Evidence of the presence of these contexts is thus relevant to establishing child abuse. Discerning functional impairment is easiest in circumstances where children are old enough to express their concerns, or else to exhibit failures or inabilities in the exercise of their daily activities. It is more difficult in circumstances where children are either chronologically or developmentally younger, because how well they are functioning in their daily lives is much less susceptible to lay observation. It is thus essential that valid expertise be brought to bear on both the actual and probabilistic effects of parental behavior in infants and toddlers. Thus, for example, immediate functional impairment could be assessed by a medical or psychological examination of the child's current status. Future functional impairment is (in all contexts) an estimate that has a probability attached to it, for example: highly likely, somewhat likely, unlikely to be impaired in a domain such as academic, mental health, or daily living. This probability is based on matching the parent's behavior and child's current status with a scientific literature that says "if the parent's behavior is x and the child's current status is y, then the likelihood is z that the child will be impaired in the future." Although probabilistic evaluations are, by definition, less certain and thus more likely than current status to result in errors, they are necessary unless society is willing to forgo interventions in the family to protect children who are (merely) at risk of maltreatment. Assuming that society is not willing to forego such interventions, it is better-errors will be reduced-if this evaluation is based or substantially relies on valid scientific evidence. Currently, there is no such requirement.
261. Although the law today generally recognizes claims for emotional harm, its traditional concerns about frivolous and fraudulent claims and about how to limit liability in such a way that the outcome is fair also to the defendant continue to affect their viability and usefulness. See, e.g., N.C. GEN. STAT. § 7B-101(1)(e) (2007) (providing that an "[a]bused juvenile" includes a child "whose parent, guardian, custodian, or caretaker. .. [c]reates or allows to be created serious emotional damage to the juvenile" which "is evidenced by a juvenile's severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others") (emphasis added).
262. Dziokonski v. Babineau, 380 N.E.2d 1295 (Mass. 1978) (making these points about the need to limit the scope of civil claims for emotional-distress damages).