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Ben Simons v. State of North Dakota

September 15, 2011

BEN SIMONS,
PLAINTIFF AND APPELLANT
v.
STATE OF NORTH DAKOTA, DEPARTMENT OF HUMAN SERVICES,
DEFENDANT AND APPELLEE



Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme CourtSimons v. State,

2011 ND 190

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED.

Opinion of the Court by 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 ...


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