Opinion
NO. 2012-CA-002085-MR NO. 2012-CA-002086-MR
11-08-2013
CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT v. G.G. (FATHER); J.M.G.; S.G. (MOTHER) APPELLEES CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT v. C.G.; G.G. (FATHER); S.G. (MOTHER) APPELLEES
BRIEFS FOR APPELLANT: Mona S. Womack Frankfort, Kentucky BRIEF FOR APPELLEES: No briefs were filed on behalf of Appellees.
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 04-J-01810
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 10-J-01112
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND VANMETER, JUDGES. CAPERTON, JUDGE: The Cabinet for Health and Family Services (CHFS) appeals from the November 14, 2012, order of the Fayette Family Court which found CHFS in contempt. After review of the record of the record, we hold that the trial court did not abuse its discretion and we affirm.
This appeal originates from two juvenile dependency, neglect, and abuse actions. The juveniles in the two underlying actions have been in foster care since 2010. On October 11, 2012, an order was entered in which trial court scheduled a contempt hearing against CHFS. Therein, the trial court cited to eight separate acts of CHFS which the trial court deemed potential instances of contempt. Relevant to this appeal are the allegations that CHFS failed to file and mail a case progress report, as required by Kentucky Revised Statutes (KRS) 620.240, and that CHFS failed to request a pretrial conference in the adjacent termination of parental rights cases, as required by Kentucky Family Rules of Practice and Procedure (FCRPP) 34.
Thereafter, CHFS filed a response to the trial court's order setting a contempt hearing. In that response, CHFS addressed the first allegation by indicating that a system-wide standardized process had since been implemented wherein all future case progress reports, as required by KRS 620.240, should be forthcoming. In addition, CHFS admitted that its past practices included not requesting pretrial conferences in termination proceedings, albeit required by FCRPP 34, and again promised to remedy the deficiency in all future proceedings.
A contempt hearing was held on November 13, 2012. The trial court's resulting order was entered on November 14, 2012, in which the trial court found that CHFS had admitted failure to comply with KRS 620.240 and FCRPP 34 and that such failures constituted willful disobedience of the respective statute and court rule. In addition, the trial court found that although the additional six acts did not rise to the level of willful disobedience sufficient to make a finding of contempt, that they were indicative of neglect and lack of due diligence. As a result of the two findings of contempt, CHFS was ordered to pay $500.00 on each finding, in each underlying juvenile action. This appeal followed.
At the outset, we note that contempt falls into two categories, civil and criminal, which are distinguishable not by their punishment but the reason for which the punishment was imposed. A.W. v. Commonwealth, 163 S.W.3d 4, 10 (Ky. 2005). Refusal to abide by a court's order is an act of civil contempt. Newsome v. Commonwealth, 35 S.W.3d 836, 839 (Ky. App. 2001). In contrast, an act which exhibits disrespect for the court's procedures or has obstructed the administration of justice or has brought the court into disrepute is an act of criminal conduct. A.W. v. Commonwealth, 163 S.W.3d at 11. Criminal contempt further includes those acts that obstruct the court's process, degrade its authority, or contaminate its purity. Id. When a court seeks to coerce or compel a course of action, the appropriate sanction is civil contempt. Id. However, when a court seeks to punish conduct that has already occurred or to vindicate its authority, the appropriate sanction is criminal contempt. Id. See also Miller v. Vettiner, 481 S.W.2d 32, 35 (Ky. 1972).
In addition, criminal contempt can be either direct or indirect:
A direct contempt is committed in the presence of the court and is an affront to the dignity of the court. It may be punished summarily by the court, and requires no fact-finding function, as all the elements of the offense are matters within the personal knowledge of the court. Indirect criminal contempt is committed outside the presence of the court and requires a hearing and the presentation of evidence to establish a violation of the court's order. It may be punished only in proceedings that satisfy due process.Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) (citations omitted).
A court has nearly unlimited discretion in its exercise of contempt powers. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007). Therefore, we will not disturb a court's finding of contempt absent an abuse of that discretion. "The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. ("quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In the case presently before us, CHFS argues that the evidence was insufficient to support a finding of contempt for failure to follow a family court rule and for failure to comply with a statute. We disagree. It is not necessary for a trial court to make a finding of malice or disrespect in order to hold an attorney in criminal contempt. Poindexter v. Commonwealth., 389 S.W.3d 112, 118 (Ky. 2012). "All that needs to be shown is 'willful disobedience toward ... the rules or orders of a court.'" Id. (quoting Burge, 947 S.W.2d at 808). Here, the trial court found that CHFS had willfully disobeyed KRS 620.240 and FCRRP 34. Moreover, CHFS conceded to such acts. This admission directly contradicts CHFS's argument of insufficient evidence. The fact that CHFS had a history of deficient procedural practice does not function to excuse its conduct. If anything, it is indicative that a finding of contempt was inevitable if not overdue. Apologies and promises of future improved performance do not serve to invalidate the court's findings of willful disobedience. Consequently, the order of contempt is adequately supported by the record and we perceive no abuse of discretion. We further note that the gravity of dependency, neglect, and abuse proceedings and parental right terminations make it critical that parties adhere to all statutory and procedural requirements, no matter how inconsequential they may appear.
For the foregoing reasons, the November 14, 2012, order of the Fayette Family Court is affirmed.
DIXON, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
VANMETER, JUDGE, DISSENTING: I respectfully dissent. The record discloses the trial court's frustration with the Cabinet and one attorney in particular. While that animus may have been well-earned, it does not form a basis for holding a party in contempt, whether civil or indirect criminal, absent a previously issued order from the trial court mandating compliance with some direction. See 17 Am. Jur. 2d, Contempt § 50 (2004) (stating that "[a] violation of law does not, per se, constitute contempt of court"); see also Fiscal Court v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72, 74 (Ky. 1977) (stating that "mere fact that a court has found that a defendant has committed an act in violation of a statute does not justify an injunction broadly to obey the statute and thus subject the defendant to contempt proceedings[]"). The absence of any pre-existing order renders the trial court's contempt finding and sanction arbitrary and an abuse of discretion. In my view, a preliminary and necessary step to any contempt sanction was the entry of a court order by the Fayette Circuit Court directing compliance with KRS 620.240 and FCRPP 34. In other words, the trial court should have fired a shot across the bow before she sank the ship! I would vacate the contempt orders in these cases. BRIEFS FOR APPELLANT: Mona S. Womack
Frankfort, Kentucky
BRIEF FOR APPELLEES: No briefs were filed on behalf of
Appellees.
Some question may exist as to whether the contempt in this case was civil or indirect criminal. As noted in Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996), "[c]ivil contempt consists of the failure of one to do something under order of court, generally for the benefit of a party litigant." Generally, once the person has performed the task directed by the court, the contempt is lifted. Id. By contrast, "[c]riminal contempt is conduct 'which amounts to an obstruction of justice, and which tends to bring the court into disrepute'" Id. (citation omitted). The punishment's "character and purpose . . . often serve to distinguish civil from criminal contempt. If the court's purpose is to punish, the sanction is criminal contempt." Id. (internal quotations and citations omitted). In this case, the trial court's purpose clearly was to punish. The proceeding, thus, was for indirect criminal contempt.
A clear distinction with direct criminal contempt, which may be sanctioned summarily, should be noted. See Burge, 947 S.W.2d at 808.
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