Chronister ex rel. Morrison v. Brenneman

BROSKY, J.

¶ 1 This is an appeal from the entry of a Protection" From Abuse Order. Appellant raises a single issue, does the Protection From Abuse Act, 23 Pa.C.S.A. § 6102(a), prohibit a parent from using physical punishment to discipline a child for misconduct? We reverse.

¶ 2 The relevant facts do not appear to be in dispute. On the morning of May 18, 1998, appellant administered corporal punishment to his sixteen-year-old daughter, Cassandra Morrison, in the form of hitting her four or five times with a folded belt across the buttocks after she admitted lying to appellant. Ms. Morrison testified that the strapping was painful and made her cry. After the incident she went to school and later reported the incident to her guidance counselor who refused to take action. Ms. Morrison then called her older half-sister, Shannon Chronister, ap-pellee here, and told her what had happened. Ms. Chronister then contacted CYS and reported the incident. A caseworker for CYS met with Cassandra the next day. However, CYS ultimately refused to intervene because the behavior alleged was not viewed as impheating CYS involvement.

¶3 Later on the evening of May 18, 1998, and perhaps prompted by the incident that morning, appellant and his girlfriend were having a discussion with Ms. Morrison on the “rules of the house.” Shortly thereafter appellant left the kitchen table and retrieved a pistol from a cupboard, looked at the gun, walked by Ms. Morrison and proceeded upstairs. Appellant testified that he had remembered that he left the gun downstairs and retrieved it, checked to make sure it was unloaded, then took it upstairs to a closet where he stores his firearms. Ms. Morrison testified that she had eye contact with appellant as he walked by.

¶ 4 The next day a Petition for Protection From Abuse was filed and a temporary order was signed on May 20,1998. A hearing was held on May 29,1998, to see if the parties could reach an amicable resolution, but the parties were unable to reach an agreement. Thus, a full hearing was scheduled for July 16, 1998. At the hearing of July 16, 1998, Ms. Morrison testified to the above facts and also to being frightened and intimidated by the incident as well as by appellant’s statements that similar punishment would follow if Ms. Morrison continued to break the rules. Appel*192lant also testified and essentially admitted the relevant facts. Appellant asserted that his actions were solely designed to discipline Cassandra and that he felt it was appropriate and necessary given her history of jumping to various caregivers whenever she did not get her way.1 On October 8, 1998, the court entered the subject PFA order. The present appeal followed.

¶ 5 Before us is the issue of whether or not appellant’s conduct in disciplining/punishing his sixteen year-old daughter falls within the definitions of the Protection from Abuse Act. We conclude that it does not.

¶ 6 We would state initially that nothing in this Opinion should be construed to be an approval or condoning of appellant’s choice of discipline. Undoubtedly, many individuals regarded as authorities in child rearing would certainly cringe at appellant’s choice of punishment for his sixteen-year-old daughter. On the other hand, neither should this Opinion be construed as disapproving of, or critical of, appellant’s conduct. Undoubtedly, many individuals believe in the old adage “spare the rod and spoil the child.” The topic is certainly suitable for a barstool or roundtable debate. However, it is not for us to dictate, as a policy matter, how a parent should choose to discipline his or her child.

¶ 7 Further, the trial court’s lengthy discussion relating to current viewpoints regarding corporal punishment, while interesting and instructive, is, in our opinion, mostly irrelevant. The fact of relevance is that our law allows a parent to administer corporal punishment.2 ’ The -fact that a father chose to discipline his child through the means of corporal punishment is relevant only to the extent it reflects the motivation for the physical conduct in question. In other words, it is relevant only to reflect appellant’s state of mind. Beyond this, we choose not to pass judgment on the appropriateness or inappropriateness of appellant’s choice of discipline.

¶ 8 While appellant’s parental judgment and choice of discipline can certainly be called into question, his motivation appears beyond reproach. That is, there appears to be a lack of any evidence to support the conclusion that appellant’s acts were intended to be anything other than punishment for a young woman who the trial court admits “has taxed her father’s patience to the limit.” Thus it appears clear that the strapping of his daughter across the buttocks, in appellant’s mind, constituted “punishment.” There is no evidence that it was a malevolent infliction of pain or an attempt to terrorize his daughter, nor did the trial court conclude to the contrary.

¶ 9 Nevertheless, this is not to say that appellant’s actions, regardless of innocent intent, cannot amount to “abuse” within the contemplation of the Act. But clearly intent is an important element in the equation. If it had been demonstrated that appellant conducted a sadistic reign of terror upon his daughter strapping her on a frequent basis, we would be inclined to affirm the trial court’s disposition. After all, good intentions, regardless of how well founded they are, cannot be an excuse for the frequent infliction of physical or mental pain and/or the terrorizing one’s children. In the present case, however, such .a factual foundation is absent. What remains is the infliction of a painful, yet otherwise relatively harmless, “good, old fashioned whooping” of appellant’s daughter. Thus, the question as we see it is whether or not appellant’s conduct constitutes abuse within the meaning of the Act.3

¶ 10 “Abuse,” as defined in the Act encompasses, in relevant part, attempting to *193cause or intentional, knowingly or recklessly causing bodily injury or serious bodily injury. 23 Pa.C.S.A. § 6107(a). At 18 Pa.C.S.A. § 2301 “bodily injury” is defined as “impairment of physical condition or substantial pain.” In the present case, although the strapping of Cassandra, according to her testimony, “was painful and made her cry,” there is no indication that it resulted in anything more than a temporary painful condition, which, of course, was its intent. Nor was there any indication that the punishment resulted in any degree of bodily impairment. In fact, Cassandra told Cindy Leik, who works for CYS, that the strapping did not leave any bruises. Consequently, we do not think the conduct in question amounts to “abuse” for purposes of the Act.4

¶ 11 We believe the above conclusion is bolstered by 18 Pa.C.S.A. § 509 which, although sounding as a justification defense in the criminal law arena, has been characterized as codifying a parental “privilege” to administer corporal punishment. This section allows the use of force upon another under certain circumstances. For our purposes subsection (1) is relevant and provides for the use of force if the actor is a parent and the force is used for the purpose of safeguarding or promoting the welfare of a minor, including the preventing or punishment of his misconduct, where the force is “not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, or mental distress or gross degradation.” Cases interpreting this provision have stated that parents may use corporal punishment to discipline their children “so long as the force used is not designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain, or mental distress or gross degradation.” Appeal of E.S., 82 Pa.Cmwlth. 168, 474 A.2d 432 (1984). Other cases have referred to the parental “privilege” to administer corporal punishment. See Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 (1988). If the activity found in the present case were viewed as violating the Protection From Abuse Act then a parent could exercise his or her “privilege” only to suffer the rather inconsistently seeming consequence of losing custody of the child or being banished from his or her home. This seems grossly illogical.

1112 For the above reason we reverse the order appealed from.5

¶ 13 Order reversed. Jurisdiction relinquished.

¶ 14 ORIE MELVIN, J, files a Dissenting Opinion.

. Apparently Ms. Morrison had lived in the homes of her mother, paternal grandmother and appellee in addition to, appellant’s home.

/ See discussion infra.

. The trial court relies upon 23 Pa.C.S.A. § 6102(a)(1) in granting the PFA order. This subsection focuses upon causing or intending to cause "bodily injury." The court also interjects commentary regarding appellant’s pulling a gun out in front of his daughter, yet *193did not appear to rely upon subsection (a)(2) in entering its order. 23 Pa.C.S.A. § 6102(a)(2) targets a person’s placing of another in “reasonable fear of imminent serious bodily injury.” Although the trial court does not specifically raise this issue we would be disinclined to find that this subsection was met by appellant’s actions in retrieving the gun and relocating it upstairs. The action was unaccompanied by any verbal threat and the circumstances certainly do not suggest that appellant was "threatening to shoot his daughter” if she continued to disobey him or was a threat to do so.

. Contrast the present case with Miller on Behalf of Walker v. Walker, 445 Pa.Super. 537, 665 A.2d 1252 (1995), wherein a panel of this court affirmed the entry of a PFA order against a father who had struck his seven-year-old son with a board across the legs which caused bruises.

. One certainly gets the impression that, in the present case, the PFA law has been injected where it does not belong. Although the issue presented might be an appropriate matter for custody court, there is no indication that the PFA law was meant to be utilized to question a parent’s personal choice of discipline except for in the rarest of circumstances where a child’s welfare is truly jeopardized by the conduct in question. We are unwilling to essentially label appellant an "abuser” of his child merely because his viewpoints on parenting might be viewed as "old fashioned” and out of favor with today’s parenting "experts.” If allowed to stand one must wonder where we will head next, will any parent who spanks his child be ripe for having a PFA slapped upon him/her?