Hire a San Diego CACI Attorney to Win Your DOJ Grievance Hearing
California’s Child Abuse and Neglect Reporting Act (CANRA) was enacted in 1963. Over the decades, the law has been amended, expanded, and clarified. The law is codified in Penal Code § 11164 et sec. The intent of the legislation is to protect children from abuse and neglect. The law created a Child Abuse Central Index (CACI) maintained by the California Department of Justice (DOJ). All individuals known or suspected to have inflicted abuse or “severe neglect” on a child is placed on the CACI. (PC § 11169(a).)
Knowing the law behind California’s Child Abuse Central Index Grievance Hearings is crucial for those who intend to defend themselves and prevent their names from being placed on the CACI. What follows are a few of the challenges that must be addressed when fighting your case. See also our other website: CACI Lawyer.
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First Challenge: The Definition of Neglect
Neglect is a nebulous word that means different things to different people. The statute separates neglect into two types: severe neglect and general neglect. Of the two, only “severe neglect” is grounds for placement on the CACI. (See PC 11169(a).) One of the serious problems with the statute is that it gives a circular definition to “neglect”. The statutes says neglect “means the negligent treatment or maltreatment of a child by a person responsible for the child’s welfare under circumstances indicating harm or threatened harm to the child’s health or welfare. The term includes both acts and omissions on the part of the responsible person.” (PC § 11165.2, emphasis added.)
Two problem areas that frequently arise with this definition of neglect involve the words “threatened” and “omissions”. It is not uncommon to see CACI Grievance Hearings against mothers who live with abusive boyfriends or husbands. Here’s an example of a common scenario: Mom lives with her child and her new boyfriend (not the child’s dad). Boyfriend gets upset easily and has shown violent tendencies. He has never hit Mom or Mom’s child, but he has hit walls and put holes in doors and thrown items (shoes, cups, etc.) around the house and at Mom and/or Child in the past. One night Mom has had enough and calls the police on Boyfriend. A social worker gets involved and tells Mom that she must either kick Boyfriend out of the house or she must take her Child and leave the home herself. Why? Because there exists a threat of harm to Child, and by allowing her Child to live in that environment of fear, Mom is failing to protect her Child. If Mom does not leave, the social worker may conclude, rightly or wrongly, that Mom’s failure to take her Child out of that environment is an “omission” that constitutes “neglect.”
Second Challenge: The Social Workers’ Investigation
Under CANRA, “nonjudicial government employees are tasked with interpreting the meaning of child abuse or neglect as defined in Penal Code section 11165.6…In determining whether a CACI listing is appropriate, the social worker interprets the definitions contained in Penal Code sections 11165.1 through 11165.6.” (In Re A.V., Cal. Court of Appeal 1st Dist., 2nd Div. 2011). This is a task normally reserved exclusively for judges. Under CANRA, however, the job is given to each individual social worker. Thus, the likelihood that a person’s name will be submitted for placement on the Child Abuse Central Index depends largely on the social worker investigating the case. Social workers are given broad discretion and are not necessarily well-trained or well-educated on the law or what constitutes abuse or neglect. Therefore, mistakes will be, and are frequently, made. Furthermore, given the purpose of the social worker’s job, mistakes are generally made in favor of protecting the child, rather than giving the parent the benefit of the doubt.
While social workers are taught how to interview child witnesses, even experienced social workers do not always follow the best protocol and policies. Oftentimes social workers will make assumptions and draw conclusions before they have gathered all the evidence. Oftentimes social workers’ own biases and prejudices influence their investigation–i.e., which witnesses they question, what types of questions they ask, how they decide when to stop investigating the case. Social workers may think they know what happened when they really don’t.
CANRA deals with many types of child abuse, including physical abuse, emotional abuse, and sexual abuse (sexual assault or sexual exploitation). (PC § 11165.1) An individual may be placed on the CACI for “the willful harming or injuring of a child or the endangering of the person or health of a child” (PC § 11165.3) or for inflicting on a child “unlawful corporal punishment or injury.” (PC § 11165.4) The word “willful” is important because it means that accidentally harming a child is not abuse. In fact, the statute explicitly states that “accidental” injury is not abuse or neglect. (PC §§ 11165.6 and 11165.12(a)) Social workers face great difficulty in determining whether an injury was caused willfully or accidentally. As hard as they may try to look at the evidence objectively, they make a subjective analysis when arriving at their conclusion.
Children can also be placed on the CACI as suspected child abusers. However, child abuse or neglect does not include a mutual “affray” or public fight between two children. (PC § 11165.6) When investigating this type of situation, social workers must somehow make a determination as to whether a fight was mutual or one person was the main aggressor. People may end up on the CACI simply because the social worker guessed who the main aggressor was, and guessed wrong.
Third Challenge: The Fine Line between Physical Abuse and Discipline
Parents may legally and appropriately discipline their children by physical means. It is also true that parents may legally but inappropriately physically discipline their children. That is to say, physical discipline that may not be considered appropriate by a social worker’s standards may nevertheless be entirely legal, falling outside the category of abuse.
Despite California law, social workers are notorious for wanting to impose their own standards of parenting on others. It is often necessary to remind the government what rights California law provides to parents in the realm of child discipline. The following cases, while not dealing directly with CACI grievance hearings, are instructive.
In Emery v. Emery, 45 Cal.2d 421, 430 (1955), the California Supreme Court considered whether or not a child can sue his parent for willful parental misconduct. The court noted: “Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right willfully [sic] to inflict personal injuries beyond the limits of reasonable parental discipline.”
In Gibson v. Gibson, 3 Cal.3d 914 (1971), the California Supreme Court agreed that parental immunity should remain where the alleged act involves an exercise of parental authority over the child. Id. at 921 (citation and quotations omitted). Gibson gave examples of situations where parental immunity applies: “Obviously, a parent may exercise certain authority over a minor child which would be tortious if directed toward someone else. For example, a parent may spank a child who has misbehaved without being liable for battery, or he may temporarily order the child to stay in his room as punishment, yet not be held responsible for false imprisonment.” Id.
Gibson favored a reasonableness standard: “In short, although a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits. The standard to be applied is the traditional one of reasonableness, but viewed in light of the parental role. Thus, we think the proper test of a parent’s conduct is this: what would an ordinarily reasonable and prudent parent have done in similar circumstances?” Id. at 921. Thus, one of your goals in your CACI Grievance Hearing may be to convince the hearing officer that your conduct was reasonable.
In People v. Whitehurst, 9 Cal.App.4th 1045, 1050 (4th Dist. 1992), a California appellate court explained, “A parent has a right to reasonably discipline by punishing a child and may administer reasonable punishment…[t]his includes the right to inflict reasonable corporal punishment. However, a parent who willfully inflicts unjustifiable punishment is not immune from either civil liability or criminal prosecution…[C]orporal punishment is unjustifiable when it is not warranted by the circumstances, i.e., not necessary, or when such punishment, although warranted, was excessive. Thus…whether the corporal punishment falls within the parameters of a parent’s right to discipline involves consideration of not only the necessity for the punishment but also whether the amount of punishment was reasonable or excessive.” (citations omitted)
What does all this mean? It means that, despite what most social workers would have you believe, there is no bright line rule for distinguishing child abuse from permissible corporal discipline. Bruises, red marks, scratches, etc. are not conclusive indicators that parental discipline was so harsh it necessarily falls into the category of child abuse.
The best chance you have to overcome or mitigate any of the three challenges mentioned above is to seek legal representation by an experienced and knowledgeable CACI Grievance Hearing lawyer. The right attorney can help you develop the right strategy for fighting your case, preserving you rights, and keeping your name off California’s Child Abuse Central Index.