This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of
the Minor Children of:
J.B.B. and N.F.
Watonwan County District Court
File No. J29950318
Ruth Ann Webster, Gislason & Hunter, LLP, 2700 South Broadway, Post Office Box 458, New Ulm, MN 56073-0458 (for appellant John Brown Bridges)
Daniel A. Birkholz, Post Office Box 461, St. James, MN 56081 (for Nancy Forsyth)
LaMar Piper, Watonwan County Attorney, Todd L. Kosovich, Assistant County Attorney, Post Office Box 461, St. James, MN 56081 (for Watonwan County)
Shiree Oliver, Post Office Box 518, St. James, MN 56081 (Watonwan County Guardian ad Litem)
Considered and decided by Toussaint, Chief Judge, Hanson, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
Watonwan County Human Services filed a Child in Need of Protection or Services (CHIPS) petition on December 7, 1999, alleging that T.B. and M.B. have been the victims of physical abuse in violation of Minn. Stat. § 260C.007, subd. 4(2)(i) (2000). All persons testifying agree that the children are well cared for and appear to be healthy, normal children. The sole basis for the CHIPS petition is that appellant John Bridges uses a wooden lath to spank his children on their buttocks or wrists for disciplinary reasons.
Bridges and Nancy Forsyth are the parents of T.B., age 6, and M.B., age 5. Both parents testified that they utilize many methods of punishment in order to discipline their children. For example, the children may be asked to stand in a corner for a period of time. Nevertheless, Bridges testified that on certain occasions he uses a wooden lath to spank the children. The wooden lath has been described as a piece of wood resembling a yardstick—approximately 18 inches long and one-quarter inch thick. Both the children and the parents stated that spankings are generally used only when the children directly disobey or defy their parents and occur sporadically.
The county became aware of the disciplinary practices of Bridges when T.B. reported to a teacher that his father hit him. The county investigated. Bridges was forthright with the fact that he spanked the children with the wooden lath. In response, the county told him:
John, you can’t spank * * * certainly parents have a right to spank their child with an open hand on the butt, but when another object is used and when pain is involved then [it would be abuse].
* * * *
If you leave marks [when] you use your hand, it would still be abuse.
The county also expressed concern to Bridges that his frequent anger-driven outbursts lead them to question whether he ever gets carried away with the spankings.
Bridges told the county that he believed that it was his duty to society to discipline his children and that using a wooden lath to spank his children was a reasonable method of discipline. While Forsyth disagrees with Bridges on the use of corporal discipline, she stated that Bridges does not get carried away while spanking the children.
Because Bridges refused to discontinue the practice of spanking his children with an instrumentality, the county filed a CHIPS petition. At the hearing, the parents and a doctor testified that T.B. is not always truthful, can be difficult to control, is very stubborn, and is defiant. Bridges testified that, therefore, he believes corporal punishment is necessary to raise his children properly. Both of the parents stated that there have never been any bruises or marks on the children caused by spanking. These statements were corroborated by T.B., who stated that neither he nor M.B. incur bruises as a result of the spankings. Both of the children, however, stated that the spankings hurt. T.B. stated that he was afraid of his father for this reason.
Dr. Wu, who had conducted a physical examination of the children, noted that neither of the children had any bruises or other injuries. He also noted that M.B.’s most recent spanking was the day before the examination. He testified, however, that it is not abnormal for children to be in an abusive situation, yet have no visible injuries at the time of examination. He further testified that the pediatrics association does not condone the use of corporal punishment of any kind because it negatively affects children. Therefore, Dr. Wu testified that in his opinion spanking with a wooden lath is, per se, physical abuse.
A district court has broad discretion in determining the disposition resulting from an adjudication that a child is in need of protection or services (CHIPS). In re Welfare of T.P., 492 N.W.2d 267, 268 (Minn. App. 1992). In juvenile protection proceedings, this court determines whether the record contains substantial evidence to support the district court’s decision, taking into account that the burden of proof in the district court is “clear and convincing” evidence. In re Welfare of D.T.J., 554 N.W.2d 104, 108 (Minn. App. 1996) (citing Minn. R. Juv. P. 59.05 and In re Welfare of Rosenbloom, 266 N.W.2d 888, 889-90 (Minn. 1978)). The reviewing court will “closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.” In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).
The CHIPS petition alleged that T.B. and M.B. are in need of protection or services within the meaning of Minn. Stat. § 260C.007, subd. 4 (2000), because they have been “victim[s] of physical or sexual abuse.” After hearing the evidence, the trial court issued only the following findings:
(1) T.B. (DOB: 1/18/93) and M.B. (DOB: 7/18/94) are residents of Watonwan County.
(2) John Brown Bridges admits using a wooden stick or lathe [sic] to discipline his children.
(3) Dr. Woo [sic] of New Ulm testified that such punishment using an instrument constitutes abuse.
(4) T.B. told social workers and law enforcement that such punishment causes him pain and causes him to fear his father.
Based on these findings, the trial court concluded that T.B. and M.B. were “Children in Need of Protective Services.” In a memorandum accompanying the order, the court referenced no statutory or caselaw, but stated, in relevant part:
This Court is concerned about making a blanket declaration that any and all use of wooden laths or other similar objects is ipso facto child abuse.
* * * It seems that the proper response to allegations of child abuse should be the effect on the child either physically or psychologically. This decision should not be construed as the Court’s endorsement that any form of physical punishment administered to a child will be based upon the instrumentality rather than the effect. As much harm can be inflicted on young children with the use of one’s hand as most certainly could be inflicted by the use of a small lath or other object of a similar nature.
With these concerns in mind, the Court does find that (T.B. and M.B.) are children in need of protective services, but it is not to be construed as a blanket endorsement of a distinction between how parents choose to discipline their children.
Bridges argues that the CHIPS adjudication is not supported by substantial, clear, and convincing evidence that T.B. and M.B. have suffered from, and will continue to suffer from, child abuse. We agree.
While the definition of physical abuse set forth by Dr. Wu and the rejection of corporal punishment by the pediatric association are surely concepts accepted and observed by many, Dr. Wu’s definition of “abuse” is not the operative definition of “abuse” for purposes of a CHIPS proceeding.
The use of corporal discipline alone does not justify a finding that children are in need of protective services. See In re Welfare of P.L.C., 384 N.W.2d 222, 226 (Minn. App. 1986) (citations omitted) (finding that corporal discipline—hair and arm pulling—without evidence of injury was not a “grave reason” justifying denial of a right to custody). Rather, a proper application of the law requires the trial court to consider evidence of the degree of force used and any resulting injury. Id.; Johnson v. Smith, 374 N.W.2d 317, 320 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985). Absent evidence of excessive force or physical injury, a conclusion that children are in need of protective services is not supported. See Johnson, 374 N.W.2d at 320(occasional spankings—spanked on the buttocks with a wooden spoon—are insufficient to constitute danger for child-custody modification where there was no evidence that the child had been hurt, physically or mentally, and the child stated that he did not fear the parent). Here, while the spankings administered by Bridges may, indeed, have hurt, they were for disciplinary purposes only, were infrequent, and did not result in any injury. Thus, under P.L.C. and Johnson, the circumstances of this case will not support a CHIPS adjudication.
Respondent Watonwan County also argues that this case was decided on the basis of whether T.B. and M.B. reside with a perpetrator of domestic child abuse or child abuse as defined in Minn. Stat. § 260C.007, subd. 25 (2000). Therefore, respondent argues, proof of physical injury to the children is not required because subdivision 25 incorporates the criminal assault statutes, which require merely the commission of an intentional act for the purpose of causing fear in another of immediate bodily harm or death. Minn. Stat. §§ 260C.007, subd. 25, 609.221, 609.222, 609.223, 609.224, 609.2242 (2000); see In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997) (“Bodily harm means physical pain or injury, illness, or any impairment of a person’s physical condition.”). Even if we accepted respondent’s argument that the trial court relied on subdivision 25, we would still find that evidence of physical injury is required in order to find that children are victims of physical abuse under Minn. Stat. § 260C.007 (2000).
Reading the statutory provisions together, and informed by caselaw, we conclude that Minn. Stat. § 260C.007 must be broadly interpreted as requiring evidence of physical injury before a child will be found a victim of physical abuse. See Doe v. Minnesota State Bd. of Med. Exam’rs, 435 N.W.2d 45, 49 (Minn. 1989) (when statutes relate to the same thing or those having a common purpose, they should be construed together and in harmony with one another); see also Apple Valley Red-E-Mix, Inc. v. State, 352 N.W.2d 402, 404 (Minn. 1984) (same). Because the child protection statutes incorporate the criminal code by cross-reference, it is important to note that the criminal code recognizes a defense to criminal charges arising out of discipline to children and permits the use of corporal punishment. See Minn. Stat. §§ 609.06(6) (reasonable force may be used “when used by a parent, guardian, teacher or other lawful custodian of a child or pupil, in the exercise of lawful authority, to restrain or correct such child or pupil”), 609.377 (malicious punishment occurs when “unreasonable force or cruel discipline that is excessive under the circumstances” is inflicted), 609.379 (2000) (reasonable force may be used upon or toward the person of a child without the child’s consent in limited circumstances).
It is also important to note that Minn. Stat. § 260C.007 defines “domestic child abuse” as:
(1) any physical injury to a minor family or household member inflicted by an adult family or household member other than by accidental means; or
(2) subjection of a minor family or household member by an adult family or household member to any act which constitutes a violation of [the criminal sexual] sections 609.321 to 609.324, 609.342, 609.343, 609.344, 609.345, or 617.246.
Minn. Stat. § 260C.007, subd. 21 (emphasis added). Because (1) Minn. Stat. § 260C.007, subd. 21, requires physical injury in order to establish “domestic child abuse,” (2) the criminal code provides parents with a statutory defense to criminal charges that may result from discipline, and (3) caselaw recognizes that corporal discipline does not constitute endangerment or abuse until physical injury results, it appears to be natural and reasonable to presume that the legislature believed the definition of “child abuse,” Minn. Stat. § 260C.007, subd. 25, which cross-references the criminal code, would require evidence of a physical injury before physical abuse would be found. See 2A Sands, Sutherland Statutory Construction, § 51.03 at 468 (if it is natural and reasonable to think that the understanding of members of the legislature or persons to be affected by a statute, be influenced by another statute, then a court called on to construe the act in question should also allow its understanding to be similarly influenced).
There is insufficient evidence in the record to establish that T.B. and M.B. are children in need of protective services. Accordingly, we reverse.
In view of our reversal of the CHIPS adjudication, we do not reach Bridges’s claim that a parent has a clearly established right under the Fourteenth Amendment to the United States Constitution to discipline his children by striking them with a wooden lath. State v. Hoyt, 304 N.W.2d 884, 888 (Minn. 1981) (constitutional questions should not be decided unless doing so is necessary “to dispose of the case at bar.”).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 There has never been any allegation of sexual abuse in this case.
 Indeed, a CHIPS adjudication in this case required clear and convincing evidence of the alleged “abuse.” See In re A.R.M., 611 N.W.2d 43, 49 n.2 (Minn. App. 2000) (stating clear and convincing evidence required to support CHIPS adjudication). A motion to modify custody, however, requires only a preponderance of the evidence. Id. And, because this case lacks use of excessive force or an injury, we cannot say that the circumstances of this case show even a preponderance of the evidence supporting a modification of custody. See Uhl v. Uhl, 413 N.W.2d 213, 217 (Minn. App. 1987) (finding that for purposes of custody award, spankings with a wooden spoon that occurred once a week were mitigated by the differences between Korean child-rearing practices and those in the United States, the parent was open to therapy and willing to change some of her habits, and there was no evidence of physical injury); Murray v. Antell, 361 N.W.2d 466, 470 (Minn. App. 1985) (spanking a two-year-old with a strap or club on buttocks where bruises resulted constituted abuse for purposes of modification of custody); Johnson, 374 N.W.2d at 320 (occasional spankings—spanked on the buttocks with a wooden spoon—are insufficient to constitute danger for child-custody modification where there was no evidence that the child had been hurt, physically or mentally, and the child stated that he did not fear the parent); cf. In re Welfare of R.A., 375 N.W.2d 578, 580-81 (Minn. App. 1985) (spanking supported determination that child was victim of domestic abuse where the parent admitted to getting carried away once he started spanking and acknowledged frequent abuse).