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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: 

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 

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 nonaccidental 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. 

***** 

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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