FILED DECEMBER 6, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35415-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JONATHAN D. DURANT, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Jonathan Durant appeals the Department of Social
and Health Services’ finding of physical abuse of a child. Durant argues that his physical
discipline did not amount to “physical abuse of a child” as defined by WAC 388-15-009
and RCW 9A.16.100. Because the Board of Appeals (BOA) misapplied the law, we
remand for it to correct its analysis and perhaps reconsider its ultimate conclusion.
FACTS
Nicole Alexander is the biological mother of eight-year-old A.J. On May 5, 2015,
she received a call from her son’s teacher, who wanted to meet to discuss an incident at
school. At the meeting, A.J.’s teacher said she had caught A.J. stealing things out of her
desk and when confronted, A.J. lied to her. No. 35415-6-III State v. Durant
After the meeting, Ms. Alexander confronted her son about what his teacher had
said. A.J. denied that he had stolen anything. This caused Ms. Alexander to be extremely
concerned. A.J.’s behavior had become increasingly defiant over recent months. Ms.
Alexander believed that his stealing and lying about it was an escalation of his behavioral
problems. She wanted to prevent A.J. from stealing and lying in the future and believed
that the situation required a response stronger than scolding. Ms. Alexander decided to
wait until her fiancé, Jonathan Durant, came home. She thought it was important for A.J.
to view them as a parenting team.
Ms. Alexander and Mr. Durant discussed the proper punishment with A.J. and told
him that he would receive five spankings for stealing and five more for lying. Ms.
Alexander asked Mr. Durant to administer the spankings. She did not want to administer
the spankings because the last time she spanked A.J., A.J. had openly mocked her. She
also believed that A.J. respected her fiancé’s authority more than he respected hers.
The spankings were administered by a wooden cutting board about one-half the
size of a telephone book. Ms. Alexander was present the entire time of the spankings,
which she described as “‘swats.’” Clerk’s Papers (CP) at 11. She did not believe the
swats would leave a mark.
2 No. 35415-6-III State v. Durant
A short while later, they again discussed with A.J. the reasons he was punished.
When A.J. continued to lie, Mr. Durant punished A.J. with three or four additional swats
of the paddle. During the final set of swats, it became clear that they were not changing
A.J.’s behavior. They stopped the physical discipline and decided it would be better to
seek counseling and/or outside help for A.J.’s behavioral problems.
The following day, A.J.’s biological father, Andrew Foskett, took A.J. to the
emergency room with a chief complaint of child abuse. A.J. had significant bruising on
his right buttock and a small bruise on his left buttock. Mr. Foskett called law
enforcement while at the hospital. Deputy Scott Kenoyer responded to the call.
When Deputy Kenoyer arrived at the hospital, he noticed A.J. sitting comfortably
in a chair. A.J. explained to the deputy that he had been spanked 10 times by Mr. Durant
the night before for lying. A.J. claimed he was spanked so hard that the paddle broke. He
also claimed that he awoke from pain the night before when he rolled onto his back. The
deputy decided not to refer the matter for criminal prosecution.
Mr. Foskett and the hospital made separate referrals to Child Protective Services
(CPS), a division of the Department of Social and Health Services (Department). CPS
assigned the investigation of the incident to Jennifer Erickson. Around this time, Mr.
Foskett filed papers to modify parental custody of A.J.
3 No. 35415-6-III State v. Durant
Ms. Erickson interviewed Mr. Foskett. According to Mr. Foskett, A.J. told him
Mr. Durant spanked him 10 times, he then hid in a corner, and his mom then pulled him
out of the corner and spanked him three more times before the paddle broke.
Ms. Erickson interviewed A.J. twice. The first interview was simply to establish
rapport. During the second interview, A.J. claimed Mr. Durant spanked him a total of 32
times and the paddle cracked.
Ms. Erickson interviewed Ms. Alexander. According to Ms. Alexander, A.J. was
not crying or screaming while he was spanked, but he was angry and saying “ouch.” CP
at 9. She believed the spankings would sting but did not think they would leave a mark.
She also said the paddle did not break.
Ms. Erickson interviewed Mr. Durant. According to Mr. Durant, A.J. received
five spankings for stealing, five more for lying, and when he continued to lie, he received
three or four additional spankings. Mr. Durant said he was calm and explained to A.J.
why he was being disciplined. After the spankings, he gave A.J. a hug.
In the course of the investigation, it was determined that A.J. was four feet, six
inches in height and weighed 80 pounds.
The Department determined that the report of physical abuse of a child was
founded. Mr. Durant requested internal Department review of the finding. The finding
4 No. 35415-6-III State v. Durant
was upheld. Mr. Durant requested an administrative hearing to contest the Department’s
finding.
At the hearing, Ms. Erickson testified that she found Mr. Foskett and A.J. not
credible. She believed that Mr. Foskett’s and A.J.’s statements were inconsistent and
directly influenced by the pending custody issues. She further testified that she found
both Ms. Alexander and Mr. Durant credible in their statements to her and their efforts
with the Department. In her opinion, other than the significant bruising of A.J., she
believed that the discipline would have been appropriate.
Ms. Alexander testified she was present during the entire time of the spankings
and did not believe they would leave a mark; however, she did testify that A.J., like her,
bruises easily. There was no evidence that Mr. Durant knew that A.J. bruised easily. Ms.
Alexander testified that the bruises were gone by May 10.
The administrative law judge (ALJ) issued an initial order. In the order, the ALJ
found that Ms. Alexander and Mr. Durant were credible and that Mr. Foskett and A.J.
were not credible. The ALJ nevertheless affirmed the Department’s finding of physical
abuse of a child.
5 No. 35415-6-III State v. Durant
Mr. Durant filed a petition for review to the Department’s BOA. The BOA
reviewed the entire record and issued a comprehensive review decision and final order.
The BOA agreed with the ALJ’s credibility determinations and explicitly found that Ms.
Alexander was credible. The BOA nevertheless affirmed the Department’s finding of
physical abuse of a child.
Mr. Durant appealed the BOA’s decision and order to the superior court, which
affirmed the BOA. Mr. Durant then appealed to this court.
ANALYSIS
The Administrative Procedure Act (APA), chapter 34.05 RCW, governs this
court’s limited review of an agency’s order. Campbell v. Emp’t Sec. Dep’t, 180 Wn.2d
566, 571, 326 P.3d 713 (2014).
Free access — add to your briefcase to read the full text and ask questions with AI
FILED DECEMBER 6, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35415-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JONATHAN D. DURANT, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Jonathan Durant appeals the Department of Social
and Health Services’ finding of physical abuse of a child. Durant argues that his physical
discipline did not amount to “physical abuse of a child” as defined by WAC 388-15-009
and RCW 9A.16.100. Because the Board of Appeals (BOA) misapplied the law, we
remand for it to correct its analysis and perhaps reconsider its ultimate conclusion.
FACTS
Nicole Alexander is the biological mother of eight-year-old A.J. On May 5, 2015,
she received a call from her son’s teacher, who wanted to meet to discuss an incident at
school. At the meeting, A.J.’s teacher said she had caught A.J. stealing things out of her
desk and when confronted, A.J. lied to her. No. 35415-6-III State v. Durant
After the meeting, Ms. Alexander confronted her son about what his teacher had
said. A.J. denied that he had stolen anything. This caused Ms. Alexander to be extremely
concerned. A.J.’s behavior had become increasingly defiant over recent months. Ms.
Alexander believed that his stealing and lying about it was an escalation of his behavioral
problems. She wanted to prevent A.J. from stealing and lying in the future and believed
that the situation required a response stronger than scolding. Ms. Alexander decided to
wait until her fiancé, Jonathan Durant, came home. She thought it was important for A.J.
to view them as a parenting team.
Ms. Alexander and Mr. Durant discussed the proper punishment with A.J. and told
him that he would receive five spankings for stealing and five more for lying. Ms.
Alexander asked Mr. Durant to administer the spankings. She did not want to administer
the spankings because the last time she spanked A.J., A.J. had openly mocked her. She
also believed that A.J. respected her fiancé’s authority more than he respected hers.
The spankings were administered by a wooden cutting board about one-half the
size of a telephone book. Ms. Alexander was present the entire time of the spankings,
which she described as “‘swats.’” Clerk’s Papers (CP) at 11. She did not believe the
swats would leave a mark.
2 No. 35415-6-III State v. Durant
A short while later, they again discussed with A.J. the reasons he was punished.
When A.J. continued to lie, Mr. Durant punished A.J. with three or four additional swats
of the paddle. During the final set of swats, it became clear that they were not changing
A.J.’s behavior. They stopped the physical discipline and decided it would be better to
seek counseling and/or outside help for A.J.’s behavioral problems.
The following day, A.J.’s biological father, Andrew Foskett, took A.J. to the
emergency room with a chief complaint of child abuse. A.J. had significant bruising on
his right buttock and a small bruise on his left buttock. Mr. Foskett called law
enforcement while at the hospital. Deputy Scott Kenoyer responded to the call.
When Deputy Kenoyer arrived at the hospital, he noticed A.J. sitting comfortably
in a chair. A.J. explained to the deputy that he had been spanked 10 times by Mr. Durant
the night before for lying. A.J. claimed he was spanked so hard that the paddle broke. He
also claimed that he awoke from pain the night before when he rolled onto his back. The
deputy decided not to refer the matter for criminal prosecution.
Mr. Foskett and the hospital made separate referrals to Child Protective Services
(CPS), a division of the Department of Social and Health Services (Department). CPS
assigned the investigation of the incident to Jennifer Erickson. Around this time, Mr.
Foskett filed papers to modify parental custody of A.J.
3 No. 35415-6-III State v. Durant
Ms. Erickson interviewed Mr. Foskett. According to Mr. Foskett, A.J. told him
Mr. Durant spanked him 10 times, he then hid in a corner, and his mom then pulled him
out of the corner and spanked him three more times before the paddle broke.
Ms. Erickson interviewed A.J. twice. The first interview was simply to establish
rapport. During the second interview, A.J. claimed Mr. Durant spanked him a total of 32
times and the paddle cracked.
Ms. Erickson interviewed Ms. Alexander. According to Ms. Alexander, A.J. was
not crying or screaming while he was spanked, but he was angry and saying “ouch.” CP
at 9. She believed the spankings would sting but did not think they would leave a mark.
She also said the paddle did not break.
Ms. Erickson interviewed Mr. Durant. According to Mr. Durant, A.J. received
five spankings for stealing, five more for lying, and when he continued to lie, he received
three or four additional spankings. Mr. Durant said he was calm and explained to A.J.
why he was being disciplined. After the spankings, he gave A.J. a hug.
In the course of the investigation, it was determined that A.J. was four feet, six
inches in height and weighed 80 pounds.
The Department determined that the report of physical abuse of a child was
founded. Mr. Durant requested internal Department review of the finding. The finding
4 No. 35415-6-III State v. Durant
was upheld. Mr. Durant requested an administrative hearing to contest the Department’s
finding.
At the hearing, Ms. Erickson testified that she found Mr. Foskett and A.J. not
credible. She believed that Mr. Foskett’s and A.J.’s statements were inconsistent and
directly influenced by the pending custody issues. She further testified that she found
both Ms. Alexander and Mr. Durant credible in their statements to her and their efforts
with the Department. In her opinion, other than the significant bruising of A.J., she
believed that the discipline would have been appropriate.
Ms. Alexander testified she was present during the entire time of the spankings
and did not believe they would leave a mark; however, she did testify that A.J., like her,
bruises easily. There was no evidence that Mr. Durant knew that A.J. bruised easily. Ms.
Alexander testified that the bruises were gone by May 10.
The administrative law judge (ALJ) issued an initial order. In the order, the ALJ
found that Ms. Alexander and Mr. Durant were credible and that Mr. Foskett and A.J.
were not credible. The ALJ nevertheless affirmed the Department’s finding of physical
abuse of a child.
5 No. 35415-6-III State v. Durant
Mr. Durant filed a petition for review to the Department’s BOA. The BOA
reviewed the entire record and issued a comprehensive review decision and final order.
The BOA agreed with the ALJ’s credibility determinations and explicitly found that Ms.
Alexander was credible. The BOA nevertheless affirmed the Department’s finding of
physical abuse of a child.
Mr. Durant appealed the BOA’s decision and order to the superior court, which
affirmed the BOA. Mr. Durant then appealed to this court.
ANALYSIS
The Administrative Procedure Act (APA), chapter 34.05 RCW, governs this
court’s limited review of an agency’s order. Campbell v. Emp’t Sec. Dep’t, 180 Wn.2d
566, 571, 326 P.3d 713 (2014). The review is of the agency’s decision, not the superior
court. Id. Under RCW 34.05.570, the reviewing court can invalidate an administrative
order on nine different bases. RCW 34.05.570(3)(a)-(i). Because Mr. Durant is asserting
the invalidity of the agency decision, he has the burden of proof. RCW 34.05.570(1)(a).
Mr. Durant contends there was not substantial evidence from which a reasonable
person could make the same finding as the BOA.1 We generally agree.
1 Mr. Durant asserts no error to any findings of fact. Therefore, the facts found by the BOA are verities on appeal. State v. Ross, 141 Wn.2d 304, 309, 4 P.3d 130 (2000).
6 No. 35415-6-III State v. Durant
“‘Substantial evidence’ is evidence of a ‘sufficient quantity . . . to persuade a fair-
minded person of the truth and correctness’ of the agency action.” Campbell, 180 Wn.2d
at 571 (internal quotation marks omitted) (quoting Port of Seattle v. Pollution Control
Hr’gs Bd., 151 Wn.2d 568, 588, 90 P.3d 659 (2004)). “‘We view the evidence in the
light most favorable to the party who prevailed in the highest forum that exercised fact-
finding authority.’” Spokane County v. E. Wash. Growth Mgmt. Hr’gs Bd., 188 Wn.
App. 467, 482, 353 P.3d 680 (2015) (quoting Miotke v. Spokane County, 181 Wn. App.
369, 376, 325 P.3d 434 (2014)).
“Abuse or neglect” is defined as “sexual abuse, sexual exploitation, or injury of a
child by any person under circumstances which cause harm to the child’s health, welfare,
or safety, excluding conduct permitted under RCW 9A.16.100.” RCW 26.44.020(1).
RCW 9A.16.100 provides:
[T]he physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child. Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child’s parent or guardian for purposes of restraining or correcting the child. The following actions are presumed unreasonable when used to correct or restrain a child: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) shaking a child under age three; (4) interfering with a child’s breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary
7 No. 35415-6-III State v. Durant
marks. The age, size, and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate. This list is illustrative of unreasonable actions and is not meant to be exclusive.
(Emphasis added.) Here, it is undisputed that Ms. Alexander gave Mr. Durant authority
to spank her son, so the question is whether Mr. Durant’s use of force was reasonable and
moderate.
The BOA determined that the spankings here were presumed unlawful under the
sixth described action. That is, the spankings caused bodily harm greater than transient
pain or minor temporary marks. But this finding is insufficient. The sixth described
action also requires a finding that the act was “likely to cause” bodily harm greater than
transient pain or temporary marks. More to the point, would an objective viewer of the
discipline believe the spankings were “likely to cause” bodily harm greater than transient
pain or temporary marks. See State v. Singleton, 41 Wn. App. 721, 723, 705 P.2d 825
(1985) (The prevalent approach is to determine whether the parental conduct itself,
viewed objectively, would be considered excessive, immoderate, or unreasonable.).
The strongest evidence on this point comes from the testimony of Ms.
Alexander—who the CPS investigator, the ALJ, and the BOA all found credible. She
testified that she saw the spankings and did not believe they would leave a mark. Ms.
Alexander was in the best position to know whether the spankings would likely leave a
8 No. 35415-6-III State v. Durant
mark. She knew her son bruised easily and, even with that knowledge, did not believe the
spankings would leave a mark. An objective person, not knowing what Ms. Alexander
knew of A.J ., would be more likely to believe that the spankings would not leave a mark.
But this objective inquiry is best left to the finder of fact. Here, the finder of fact
is the BOA. We, therefore, remand with instructions for the BOA to answer the
following question: Given the present record, would an objective viewer of the spankings
believe the discipline was likely to cause bodily harm greater than transient pain or
temporary marks? 2 If not, it should set aside the Department's finding of physical abuse
of a child.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
C~wr\"C..\.- ~V\A\_t C~ Lawrence-Berrey, C.J. ( t ·~f WE CONCUR:
J;d!A>w~ I&~ Siddoway, J. Pennell, J. ·/} 2 Disciplining an eight-year-old boy by paddling him on his buttocks is inoffensive and reasonable compared to the offensive and unreasonable examples of force set forth in RCW 9A.16.100. If after remand, the BOA finds that the discipline administered here is presumptively unreasonable, we direct that it also consider whether, under RCW 9A.16.100, this presumption has been overcome.