“Direct” v “Indirect” Contempt and Due Process Implications

Earlier this month, the Georgia Court of Appeals decided In Interest of K. J., No. A16A1501, 2017 WL 822471, at 1 (Ga. Ct. App. Mar. 2, 2017) At issue was whether the Lumpkin County Juvenile Court had the authority, sua sponte, to find a parent in criminal contempt.

The evidence before the Court of Appeals was that on January 26, 2016, a judicial hearing was held in a dependency matter, at which time the parties stipulated to the entry of a dispositional report, and mother consented to father’s legitimation of their children. The Juvenile Court inquired as to the mother’s progress on her case plan, after which the Department advised of its intent to request a drug screen. The Court asked mother if she would consent to same. Mother responded that she would. The hearing was recessed so that mother could submit to the drug test, which came back positive for oxycodone, opiates, THC, amphetamines, and methamphetamines. Mother (through her attorney) did not dispute the drug screen results. The Court offered mother an opportunity to speak on her own behalf, but mother declined. The Court then found mother in contempt and ordered her into custody for 48 hours. Mother appealed.

The Court of Appeals acknowledged initially that in Georgia, judges have “broad authority … to preserve good order in the courtroom by the use of contempt power….” Id., citing In re Jefferson, 283 Ga. 216 (2008). Moreover, under Georgia’s Juvenile Code, the Juvenile Court has the authority to find an adult in contempt for “obstructing or interfering with the [court’s] proceedings ….” See OCGA § 15-11-31 (a). Mother, however, claimed that by the time she submitted to the drug screen, the Court’s business had concluded. The Court of Appeals did find that the parties had concluded their presentations at the time mother submitted to the drug screen, but noted that the Juvenile Court had questions that remained unanswered and “apparently felt that it could not go forward with addressing these concerns without having [mother] screened for drugs and halted the hearing for that purpose.” The Court of Appeals stated further that the Juvenile Court’s Contempt Order found that mother “appeared to the Court, from the commencement of the hearing, to be under the influence of a substance.”

Viewing the evidence in a light most favorable to the prosecution, specifically the Juvenile Court’s observations of the mother, her positive drug screen, and the need to halt and continue the judicial review hearing, the Court of Appeals determined that a rational trier of fact could have found beyond a reasonable doubt that mother interfered with the Juvenile Court’s proceedings. Mother, however, claimed that by finding her in contempt absent notice and a hearing, the Juvenile Court denied her due process.

The Court of Appeals explained that under Georgia law, “The procedures that a trial court must follow to hold a person in contempt depend upon whether the acts alleged to constitute the contempt are committed in the court’s presence (direct contempt) or are committed out of the court’s presence (indirect contempt).” Id. citing Ramirez v State, 279 Ga. 13, 14 (2) (2005). “If the contempt is direct, a trial court may, after affording the person charged with contempt an opportunity to speak, announce punishment summarily and without further notice or hearing.” Id. Such summary adjudication is authorized “where contumacious conduct threatens a court’s immediate ability to conduct its proceedings, such as where a witness refuses to testify, or a party disrupts the court.” Id. This authority, Georgia’s Supreme Court has opined, is necessary “to maintain order in the courtroom and the integrity of the trial process in the face of an actual obstruction of justice.” Id. See also Dowdy v Plamour, 251 Ga. 135 (1983).

On appeal, mother claimed that her contumacy took place outside the courtroom, when she consumed the illicit drugs with respect to which she tested positive. However, the Court of Appeals found that Juvenile Court’s basis for finding mother in contempt was her appearance in Court in an impaired state. Such conduct has been found to constitute direct contempt. See Hayes v. State, 298 Ga.App. 419 (2009) (a direct contempt resulting from defendant appearing in court with alcohol in his system).

Mother also claimed on appeal that the Court’s summary adjudication was in error because mother did not engage in behavior that was disruptive to the proceedings. The Court of Appeals disagreed, finding that mother “posed an immediate threat” to the proceedings by virtue of her appearance in court under the influence of illegal drugs. “Where misconduct occurs in open court, the affront to the court’s dignity is more widely observed, justifying summary vindication.” Id., citing Ramirez, supra. Because mother’s contumacy occurred in open court and because she was given an opportunity to be heard, the Court of Appeals found that her due process rights were not violated.

The dissenting opinion, however, recited the traditional notion that “Contempt is a drastic remedy which ought not to deprive one of her liberty unless it rests upon a firm and proper basis.” In re Harris, 289 Ga.App. 334 (2008). According to the dissent, the hearing before the Juvenile Court “… was brief. [Mother] appeared with her attorney. Counsel for the Department … tendered a proposed case plan to which all had consented. [Father] asked that his petition to legitimate be granted…. [mother] consented; and the trial court granted it. The parties then reported that they had nothing further….”

The Court inquired about the dispositional report, including the Department’s indication that mother had failed to submit to a drug test. Hearing that the Department intended to request a screen that day, the Court addressed mother directly. Mother agreed to submit to a screen, the Court ordered it, and the screener thereafter announced the positive results. The Juvenile Court asked mother if she wished to be heard, at which time her counsel indicated that Mother acknowledged using marijuana and pain pills in the last few weeks, but was unable to explain the methamphetamine. The Juvenile Court again addressed mother directly, despite her attorney’s representations, and asked if she wished to speak on her own behalf. Mother declined, at which time the Juvenile Court held her in contempt and asked that she be taken into custody.

According to the dissent, “…[T]here is no evidence that [mother] obstructed or interfered with the review hearing. On the contrary, the record plainly shows that she was present and fully participated in the hearing through her attorney. While the drug screen showed the presence of some unspecified level of certain drugs in her body, and while we must credit the court’s finding that some signs of impairment could be discerned from observation of her demeanor, there is no evidence that [mother] was impaired to the extent that she somehow interfered with the proceedings. Her counsel stated in his place that she had been able to assist him. So the mere presence of some unidentified level of drugs in [mother’s] body ‘was insufficient to establish contempt beyond a reasonable doubt.’” Id., citing Haynes v State, 298 Ga.App. 419, 424 (2) (2009) (evidence that defendant appeared in court smelling of alcohol and with alcohol in his system was insufficient to establish contempt beyond a reasonable doubt). See also Moody v. State, 131 Ga.App. 355 (1974) (defendant, who was brought to court by law enforcement officers and not on her own volition, was not subject to contempt merely for appearing there in a drunken condition). In this case, the judicial review hearing was continued, according to the dissent, “not because of [mother’s] condition, but because the judge chose to incarcerate her even though she had in no way interfered with the proceedings.” Id.

Rachel has represented parties in family law cases for 21 years. She also serves as a guardian ad litem and child advocate and is a registered domestic relations and domestic violence mediator.