Simons v. State

Decision Date15 September 2011
Docket NumberNo. 20110012.,20110012.
Citation803 N.W.2d 587,2011 ND 190
PartiesBen SIMONS, Plaintiff and Appellantv.STATE of North Dakota, DEPARTMENT OF HUMAN SERVICES, Defendant and Appellee.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Rodney Ervin Pagel, Bismarck, N.D., for plaintiff and appellant.Andrew Moraghan, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Ben Simons appealed from a district court judgment affirming an order of the Department of Human Services finding that Simons had abused his two-year-old child and that services were required. We affirm, concluding the Department's findings that Simons had inflicted bodily injury, as defined by statute, upon the child and used unreasonable force are supported by a preponderance of the evidence and the relevant statutory provisions governing child abuse are not unconstitutionally overbroad or vague.

I

[¶ 2] Ben and Traci Simons are married and have six children. In addition, at the time of the incidents in this case, two other children were living with them, a foster child and a child for whom they were guardians. Ben and Traci Simons required their children to always respond to a parent in a respectful manner and to use the phrases “yes, sir” or “yes, ma'am.”

[¶ 3] In 2009, while the Simons family was attending church, their two-year-old child refused to use the phrases “yes, sir” and “yes, ma'am” when responding to his parents. Ben Simons took the child outside and swatted him twice on his bottom. When they went back inside, Traci Simons was able to get the child to say “yes, sir” and “yes, ma'am.”

[¶ 4] Later that evening, after returning home, the child again refused to respond to Ben Simons with “yes, sir.” Ben Simons took the child to an upstairs bedroom and explained to him that he would be spanked if he did not say “yes, sir.” When the child continued his refusal, Ben Simons placed him over his knee and struck him on his buttocks three times with a wooden backscratcher. The child was wearing pants and a diaper. Ben Simons then hugged and consoled the child for approximately fifteen minutes, explained the consequences if he refused to say “yes, sir,” and emphasized to the child that he needed to show respect to his parents. He then gave the child the opportunity to say “yes, sir,” and the child again refused. Ben Simons repeated the three swats with the wooden backscratcher, and again consoled and spoke with the child for approximately fifteen minutes.

[¶ 5] This cycle of three swats and fifteen minutes of consoling the child, each time telling the child the spankings would stop if he said “yes, sir,” was repeated eight times over a two-hour period, with the child receiving approximately 24 swats with the wooden backscratcher. The child cried after each spanking, and occasionally began crying before the spankings were administered when he was placed over Ben Simons' knee. Ben Simons characterized the incident as a “power struggle” between himself and the child. After two hours, Ben Simons decided the punishment was not working, and he and Traci Simons decided to try “time-outs” to get the child to obey and say “yes, sir” and “yes, ma'am.” When subsequently changing the child's diaper, Ben and Traci Simons discovered the child had two purple bruises the size of fifty-cent pieces on his buttocks.

[¶ 6] Two days later, Stark County Social Services received a report of suspected child abuse regarding the child. A child protection social worker investigated the report and observed the bruises on the child's buttocks. Upon completion of the investigation, Stark County Social Services found the child was an abused child and issued a “services required” finding. Ben Simons requested a hearing, and an administrative law judge (“ALJ”) was assigned. Following a hearing, the ALJ issued recommended findings of fact, conclusions of law, and order finding that, although Ben and Traci Simons generally showed many strengths as parents and the children were healthy and well cared for and exhibited appropriate behavior, Ben Simons had abused the child and had used unreasonable force. The ALJ recommended affirming the finding of “services required.” The Department's executive director amended certain parts of the recommended findings of fact, conclusions of law, and order, and issued a final order determining that Ben Simons had committed abuse of the child and that services were required. Ben Simons appealed to the district court, which affirmed the Department's order.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 28–32–42. The appeal to this Court was timely under N.D.C.C. § 28–32–49 and N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28–32–49.

II

[¶ 8] Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32, courts exercise only a limited review of administrative agency decisions. Kaspari v. Olson, 2011 ND 124, ¶ 5, 799 N.W.2d 348; Frokjer v. North Dakota Bd. of Dental Exam'rs, 2009 ND 79, ¶ 9, 764 N.W.2d 657. The district court under N.D.C.C. § 28–32–46, and this Court under N.D.C.C. § 28–32–49, must affirm an administrative agency decision unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28–32–46. In determining whether an administrative agency's findings of fact are supported by a preponderance of the evidence, we do not make independent findings of fact or substitute our judgment for that of the agency; rather, we determine only whether a reasoning mind reasonably could have determined the agency's factual findings were proven by the weight of the evidence from the entire record. Kaspari, at ¶ 6; Workforce Safety & Ins. v. Auck, 2010 ND 126, ¶ 9, 785 N.W.2d 186.

III

[¶ 9] Ben Simons challenges the Department's findings leading to the determination that the child was an “abused child.” Resolution of these issues requires an analysis of the complex maze of statutes governing the determination whether a child is an abused child.

[¶ 10] Under N.D.C.C. § 50–25.1–02(3), an “abused child” is defined as “an individual under the age of eighteen years who is suffering from abuse as defined in subdivision a of subsection 1 of section 14–09–22 caused by a person responsible for the child's welfare.” Section 14–09–22(1)(a), N.D.C.C., provides:

Except as provided in subsection 2 or 3, a parent ... who willfully commits any of the following offenses is guilty of a class C felony except if the victim of an offense under subdivision a is under the age of six years in which case the offense is a class B felony:

a. Inflicts, or allows to be inflicted, upon the child, bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1–01–04 or mental injury.

“Bodily injury” is defined in N.D.C.C. § 12.1–01–04(4) as “any impairment of physical condition, including physical pain.” Read together in the context of this case, these statutes provide that an abused child includes one whose parent has willfully inflicted impairment of physical condition, including physical pain, upon the child.

[¶ 11] When force is used by a parent to promote the child's welfare, including punishment of misconduct or maintenance of discipline, an additional element is engrafted onto the determination whether a child is an abused child under N.D.C.C. § 50–25.1–02(3). Section 12.1–05–05(1), N.D.C.C., provides:

The use of force upon another person is justified under any of the following circumstances:

1. Except as provided in section 15.1–19–02, a parent, guardian, or other person responsible for the care and supervision of a minor ... may use reasonable force upon the minor for the purpose of safeguarding or promoting the minor's welfare, including prevention and punishment of the minor's misconduct, and the maintenance of proper discipline. The force may be used for this purpose, whether or not it is “necessary” as required by subsection 1 of section 12.1–05–07. The force used must not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.

Because the legislature tied the determination of whether a child is an “abused child” under N.D.C.C. § 50–25.1–02(3) to whether the child has suffered abuse as defined in N.D.C.C. § 14–09–22(1)(a), which is the criminal child abuse statute, the legislature also necessarily incorporated the justification statute into the definition of “abused child.” Thus, because a parent who uses reasonable force to discipline his child has not committed child abuse under N.D.C.C. § 14–09–22(1)(a), the child therefore has not suffered abuse as defined in N.D.C.C. § 14–09–22(1)(a) and is not an “abused child” under N.D.C.C. § 50–25.1–02(3). Accordingly, a parent's use of reasonable force to prevent or punish misconduct or maintain discipline may not provide the basis for a finding that a child is an abused child.

A

[¶ 12] Ben Simons contends the Department failed to show he had inflicted bodily injury upon the child, arguing a bruise does not constitute an impairment of physical condition and there was insufficient evidence to establish the child had suffered physical pain...

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