                  TO BE PUBLISHED IN THE OFFICIAL REPORTS


                       OFFICE OF THE ATTORNEY GENERAL

                                 State of California


                                JOHN K. VAN DE KAMP

                                   Attorney General


                              _________________________

                                             :
                 OPINION                     :                No. 85-1201
                                             :
                     of                      :            FEBRUARY 3, 1987
                                             :

        JOHN K. VAN DE KAMP                  :

           Attorney General                  :

                                             :

          JACK R. WINKLER                    :

         Deputy Attorney General             :

                                             :


________________________________________________________________________



          THE HONORABLE MICHAEL D. BRADBURY, DISTRICT
ATTORNEY, COUNTY OF VENTURA, has requested an opinion on the following
question:

              Does a county probation officer have a duty to make a child abuse report
when he or she knows or reasonably suspects that a juvenile has a non-accidental
physical injury inflicted by the police in the course of the juvenile's arrest?

                                     CONCLUSION

               A county probation officer has no duty to make a child abuse report when
he or she knows or reasonably suspects that a juvenile has a non-accidental physical
injury inflicted by the police in the course of the juvenile's arrest unless he or she knows
or reasonably suspects that the force used to inflict the injury was not reasonably
necessary to effect the arrest, prevent escape or overcome the resistance of the minor.

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                                                      ANALYSIS


               Penal Code Section 11166(a) in the child abuse reporting law provides in
part:

               ". . . any . . . employee of a child protective agency who has
        knowledge of or observes a child . . . within the scope of his or her
        employment whom he or she knows or reasonably suspects has been the
        victim of child abuse shall report the known or suspected instance of child
        abuse to a child protective agency . . . . For the purposes of this article,
        'reasonable suspicion' means that it is objectively reasonable for a person to
        entertain such a suspicion, based upon facts that could cause a reasonable
        person in a like position, drawing when appropriate on his or her training
        and experience, to suspect child abuse."

               Section 111651 defines certain terms used in the child abuse reporting law
as follows:

               "(a) 'Child' means a person under the age of 18 years."

               ". . . . . . . . . . . . . . . . . . . . . . .

               "(g) 'Child abuse' means a physical injury which is inflicted by other
        than accidental means on a child by another person.

               ". . . . . . . . . . . . . . . . . . . . . . .

              "(k) 'Child protective agency' means a police or sheriff's department,
        a county probation department, or a county welfare department."

              We are asked whether the child abuse reporting requirements are applicable
to a probation officer dealing with a minor who has incurred physical injuries in the
course of being arrested by a peace officer. In addressing this issue we must differentiate
between two factual situations. The physical injuries incurred by a minor during his or
her arrest may result from the application of the use of reasonable force or by the use of
excessive force. Section 835 provides:




   1
        Section references are to the Penal Code unless otherwise indicated.

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               "An arrest is made by an actual restraint of the person, or by
        submission to the custody of an officer. The person arrested may be
        subjected to such restraint as is reasonable for his arrest and detention."

Section 835a provides in part:

               "Any peace officer who has reasonable cause to believe that the
        person to be arrested has committed a public offense may use reasonable
        force to effect the arrest, to prevent escape or to overcome resistance."

              When a peace officer arrests a minor for a crime Welfare and Institutions
Code section 626 requires the peace officer to deliver the minor to the probation officer
without unnecessary delay for proceedings under the Juvenile Court Law unless the
minor is released from custody. It is not uncommon for the minor to complain to the
probation officer of mistreatment by the arresting officer in such situations. The question
presented requires us to determine whether the probation officer is required to report such
cases under the child abuse reporting law.

              An analysis of section 11166(a), supra, reveals that a duty to report arises
when:

              (1) an employee of a child protective agency
              (2) has knowledge of or observes a child
              (3) within the scope of his or her employment
              (4) whom he knows or reasonably suspects
              (5) has been the victim of child abuse.

               A probation officer is an employee of a child protective agency under
section 11165(k) so element (1) of the reporting requirement is satisfied. We assume the
juvenile referred to in the question is a minor under the age of 18 whom the police have
taken into temporary custody pursuant to Welfare and Institutions Code section 625
because the minor has committed a crime. Thus the juvenile is a child under section
11165(a), supra. The question posits as facts that the probation officer "knows or
reasonably suspects that a juvenile has a nonaccidental physical injury inflicted by the
police in the course of the juvenile's arrest." This knowledge or suspicion of a particular
child's injuries satisfies elements (2) and (4) of the reporting requirement. We assume
that the probation officer's contacts with the child are within the scope of his or her
employment so element (3) is also satisfied.

              The remaining question is whether the physical injuries inflicted on the
juvenile by the police in the course of the juvenile's arrest make the juvenile a "victim of

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child abuse". This requires a careful analysis of the term "child abuse." We have noted
that the child abuse reporting law defines child abuse to mean "a physical injury which is
inflicted by other than accidental means on a child by another person." (§ 11165(g).)
Read literally this would include physical injury inflicted on a minor by a peace officer
which was reasonably necessary to effect the minor's lawful arrest. However, we do not
believe that the Legislature intended that the physical injuries which result from the use
of reasonable force which it has authorized peace officers to use to effect an arrest of a
minor is to be reported as child abuse under the child abuse reporting law. Use of the
word "abuse" suggests that Legislature contemplated that the conduct in question is
excessive and unauthorized.2 The courts will disregard the literal meaning of statutory
language when necessary to avoid absurd results or to effectuate manifest legislative
purposes. (Henreid v. Superior Court (1976) 59 Cal.App.3d 552.) We conclude that
physical injuries incurred by a minor caused by use of reasonable force used by a peace
officer to effect the lawful arrest of the minor does not constitute child abuse within the
meaning of the child abuse reporting law.

              On the other hand when excessive force is used in the arrest of the minor by
a peace officer which inflicts a physical injury on the minor, we find no statutory or other
reason why such an injury is not child abuse as that term is defined in the child abuse
reporting law. If the other requisites of reporting as outlined above are present section
11166(a) requires a probation officer (as an employee of a child protective agency) to
report such an injury as child abuse when he or she "knows or reasonably suspects" the
minor has been the victim of child abuse.

                We recognize that our interpretation of child abuse requires the probation
officer to consider whether the force used to effect the arrest of the minor was reasonably
necessary or excessive when determining his or her duty to report any resulting physical
injury to the minor as child abuse. This means that the reasonableness of the force used to
inflict the injury must be considered as well as the age of the person, whether a physical
injury was inflicted, whether it was self inflicted, or accidental to determine whether

   2
        When the Legislature rewrote the child abuse reporting law in 1980 it explained its intent
in part as follows:

        "In enacting [the child abuse reporting law], the Legislature recognizes that the reporting
of child abuse and any subsequent action by a child protective agency involves a delicate balance
between the right of parents to control and raise their own children by imposing reasonable
discipline and the social interest in the protection and safety of the child. Therefore, it is the
intent of the Legislature to require the reporting of child abuse which is of a serious nature and is
not conduct which constitutes reasonable parental discipline." (Ch. 1071, Stats. 1980, § 5,
p. 3425.)

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there is any child abuse which must be reported under the child abuse reporting law. The
duty to report does not arise until knowledge or reasonable suspicion of each fact
necessary to establish child abuse enters the mind of a person required to make child
abuse reports. Section 11166(a) defines reasonable suspicion to mean that "it is
objectively reasonable for a person to entertain such a suspicion, based upon facts that
could cause a reasonable person in a like position, drawing when appropriate on his or
her training and experience, to suspect child abuse." Unless the probation officer's
suspicion of child abuse rises to the level of the statutory test there is no duty to report
such suspicion.

              A probation officer is not required to accept the minor's version of what
happened during the minor's arrest. The minor's account of what happened may or may
not give rise to knowledge or reasonable suspicion of child abuse in the probation
officer's mind. Other information possessed by the probation officer may indicate that
the minor is lying. The probation officer might well make inquiries of the arresting
officer and other witnesses to determine whether any suspicion raised by the minor's
account was reasonable. We do not suggest that the probation officer is to make a full
investigation of all relevant facts before deciding that his or her suspicion of child abuse
is reasonable. That is the roll of the child protective agency to whom a child abuse report
is made. Nevertheless the child abuse reporting law contemplates that the persons
required to report child abuse will obtain sufficient information of the circumstances to
determine whether any suspicion they might have of child abuse is reasonable.3

              We conclude that a probation officer does not have a duty to make a child
abuse report when he or she knows or reasonably suspects that a juvenile has a non-
accidental physical injury inflicted by the police in the course of the juvenile's arrest
unless he knows or reasonably suspects that the force causing the injury was not
reasonably necessary to effect the arrest, to prevent escape, or to overcome the resistance
of the minor.
                                           *****

   3
       In Planned Parenthood Affiliates v. Van de Kamp (1986), 181 Cal.App.3d 245, the court
held that the child abuse reporting law did not require a doctor to report consensual sex between
minors under 14 absent "indicia of actual sexual or other abuse in the judgment of the reporting
professional involved." The court rejected the view expressed in 67 Ops.Cal.Atty.Gen. 235
(1984) that a child abuse report is required when a child under 14 receives medical attention for a
sexually transmitted disease, for pregnancy or for an abortion. The court said that our 1984
opinion departed "from the norm of employing trained professional judgment to determine abuse
on a case-by-case basis." (Id., p. 261) On page 273 of its opinion the court observed: "A
fundamental part of the reporting law is to allow the trained professional to determine an abusive
from a nonabusive situation."

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