Child Advocacy: Disciplining children in foster care – How much is OK?

Is “just a hand pop” OK for a child in foster care?

How about “run 100 laps?” “Do 20 pushups?” “Do 20 squats?”

“Write ‘I will do better’ 50 times?” Is that OK?

What about “No dinner for you tonight.  Go straight to your room.”  OK?

By statute, Maryland prohibits physical discipline of any child where it rises to the level of abuse, defined as “the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed”, inflicted by someone who has care, custody, supervision, or responsibility for the child, or is in a position of authority over the child, including a parent. Family Law § 5-701(b)(1)(i).

Maryland’s appellate courts have held that reasonable corporal punishment is not child abuse.  B.H. v. Anne Arundel County Department of Social Services, 209 Md. App. 206, 229 (2012) (where a father’s grabbing a 4-year-old and forcing him sit at the dinner table and eat by pressing food in his mouth was unreasonable corporal punishment and was therefore abuse.)

“[T]he reasonableness of corporal punishment depends not simply on the misbehavior of the child and the amount of force used in the punishment from the parent’s perspective, but also on the physical and mental maturity of the child, and the propriety of the decision to use force in circumstances that may increase the potential for serious injury.” Charles County Dept. Of Social Services v. Vann, 382 Md. 286 (2004) (where a father’s swinging the buckle end of a belt at a six-year-old trying to get away was child abuse).

In December 2018, the American Academy of Pediatrics issued a policy statement which concluded that physical discipline is ineffective and harmful to children.

When a court grants custody of a child to the local Department of Social Services or Human Services views in favor of physical discipline must bow to Maryland’s regulations prohibiting the physical discipline of a child in foster care.

“Corporal punishment” of a child in foster care is flatly forbidden.  COMAR 07.02.25.20(D)(1).

“Reasonable” is not the applicable standard when it comes to foster youth.

Though some parents may take a differing view, regardless of how a foster parent raises his or her own children, he or she may not use physical discipline or corporal punishment of any kind on the foster child.

This includes “physical hitting or any type of physical punishment inflicted in any manner upon the body”. Id.

So, the “hand pop” on a foster child is prohibited.

Any action designed to cause physical discomfort or strain is prohibited.

“Physical exercises, such as running laps or performing pushups” and “Requiring or using force to require a child to take an uncomfortable position such as squatting, bending, or repeated physical movements” are prohibited. COMAR 07.02.25.20(D)(2)-(3).

Foster parents also may not withhold meals, clothing, bedding, or sleep as a form of discipline. COMAR 07.02.25.20(D)(6).

There is no “going to bed without dinner” for a child in foster care.

Bedding and sheets may not be withheld from a foster youth who wets his bed.  Id.

Of great importance for a child in foster care is the regulation that prohibits the denial of family visits as a means of discipline. COMAR 07.02.25.20(D)(6).

Also, of great importance to a child in foster care is the regulation that prohibits “[t]hreatening a child with the loss of the child’s placement in the home” as a form of discipline.  COMAR 07.02.25.20(D)(7).

Foster parents have been entrusted with the care and custody of a child who has been deemed to be in need of the state’s protection. In most cases, a child is in foster care because of neglect or abuse suffered at the hand of a parent.

Clear regulations prohibiting discipline which could cause discomfort to such a vulnerable child make eminent good sense.

Once a child comes into the care and custody of the department, the regulations make clear that physical discipline of a foster child is prohibited, even where it falls far short of physical abuse. Indeed, physical discipline which might be deemed “reasonable” by some is nevertheless prohibited when it comes to a child in foster care.

Attorneys representing children involved in Child in Need of Assistance cases should be aware of the research and the foster care regulations governing the use of discipline and should be watchful for situations where prohibited forms of discipline are used against the child.

Richard Perry is a senior attorney at Maryland Legal Aid.