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In re K. J.

Court of Appeals of Georgia

March 2, 2017

IN THE INTEREST OF K. J. et al., children.

          McMillian, Judge.

         During a judicial review hearing in a juvenile dependency case, the court sua sponte found the children's mother, Haley Weaver, to be in criminal contempt after she tested positive for drugs. Weaver appeals, contending that (1) the evidence was insufficient to support the finding of contempt and (2) the juvenile court erred in finding her in contempt without first providing her with notice and a hearing. For the reasons set forth below, we affirm.

         For a contempt finding to constitute criminal contempt, rather than civil contempt, the trial court must impose unconditional punishment for a contumacious act, such as conduct that interferes with the court's ability to administer justice. See Moton v. State, 332 Ga.App. 300, 301 (772 S.E.2d 393) (2015). "On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation and punctuation omitted.) In re Liles, 278 Ga.App. 496, 496 (629 S.E.2d 492) (2006).

         So viewed, the evidence shows that on January 26, 2016, Weaver appeared with counsel in Lumpkin County Juvenile Court for a hearing in her children's dependency case. Prior to the hearing, the parties reviewed the dispositional report and the case plan. At the hearing, through her attorney, Weaver consented to the putative father's legitimation petition and stipulated to entry of the dispositional report. The court inquired into Weaver's progress on her case plan, and the Department of Family and Children Services indicated that it intended to ask Weaver to take a drug screen that day. The juvenile court then asked Weaver if she was willing to take a drug screen. Weaver agreed, and the court recessed in order for her to do so.

         Weaver's drug screen was positive for "oxy, opiates, THC, amphetamines, and methamphetamines."[1] Weaver did not dispute the results of the screen, and her attorney stated that she had admitted to using marijuana and pain pills in the recent past. Weaver declined the opportunity to speak on her own behalf to the court. The juvenile court then found Weaver in contempt because she had appeared in court in an impaired condition, thus interfering with the court's ability to do business and making it impossible to complete the hearing. Although trial counsel asserted that Weaver had been cooperative and was able to participate in the case and articulate her wishes, counsel conceded that he would not have been able to call her as a witness if there had been a need for her to testify. As a result, the juvenile court found that, by having come to court in an impaired condition, Weaver had limited the court's ability to complete its business, ordered Weaver into custody for 48 hours, and continued the hearing.

         1. Weaver contends that the juvenile court lacked sufficient evidence to find her in contempt because there was no evidence that she was impaired such that she disrupted the court's business.

         "[T]he broad authority of a judge to preserve good order in the courtroom by the use of contempt power is well recognized and must be preserved if the courts are to perform their public duty." (Citation, punctuation and footnote omitted.) In re Jefferson, 283 Ga. 216, 217 (657 S.E.2d 830) (2008) (punctuation omitted). Pursuant to OCGA § 15-11-31 (a), a juvenile court may find an adult in contempt for "willfully disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders."

         While there is no evidence that Weaver engaged in outbursts, the statute merely requires that she obstructed or interfered with court proceedings. See OCGA § 15-11-31 (a). Weaver asserts that the business before the court had been concluded prior to the drug screen. However, while the parties had nothing further to present, the juvenile court had questions concerning why Weaver had not been communicating with the Department, had not been visiting at least one of the children, and tellingly, why she had not submitted to a drug screen. The court apparently felt that it could not go forward with addressing these concerns without having Weaver screened for drugs and halted the hearing for that purpose. More specifically, the juvenile court found in its contempt order that Weaver "appeared to the Court, from the commencement of the hearing, to be under the influence of a substance." This finding was based, in part, "on its observation of her demeanor and the test results, including the comprehensive nature of [the] drugs for which [Weaver] tested positive." Although the dissent acknowledges that it must "credit" these findings, it appears to give more credit to Weaver's counsel's statement that she had been able to assist him, even though counsel conceded that he would not have been able to call her as a witness. See generally In re Bowens, 308 Ga.App. 241, 243 (1) (706 S.E.2d 694) (2011) ("[I]n a contempt hearing before a judge sitting as the trier of fact, the hearing judge, and not the appellate court, determines the credibility of witnesses."). Given the juvenile court's observations, the testimony that Weaver had a positive drug screen that day, as well as the continuation of the hearing, a rational trier of fact could have found beyond a reasonable doubt that Weaver interfered with the proceedings of the court by appearing in court at her children's dependency hearing while under the influence of drugs.

         2. Weaver contends that the juvenile court deprived her of due process because it issued an order of contempt against her without first providing her with notice of the contempt charge and time to prepare a defense.

         "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)." Ramirez v. State, 279 Ga. 13, 14 (2) (608 S.E.2d 645) (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. This 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. Direct contempts in the presence of the court traditionally have been subject to summary adjudication, to maintain order in the courtroom and the integrity of the trial process in the face of an actual obstruction of justice.

(Citations and punctuation omitted.) Id. See also Dowdy v. Palmour, 251 Ga. 135, 141-42 (2) (b) (304 S.E.2d 52) (1983) ("During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing."). Where the alleged acts of contempt occur outside of the court's presence, the considerations justifying summary adjudication do not pertain, and due process requires that a person charged with indirect contempt "be advised of charges, have a reasonable opportunity to respond to them, and be permitted the assistance of counsel and the right to call witnesses." (Citation and punctuation omitted.) Ramirez, 279 Ga. at 15 (2).

         An act of direct contempt occurs if the act is committed in open court. Ramirez, 279 Ga. at 15 (2). Weaver asserts that her alleged acts of contempt occurred outside the courtroom when she consumed the drugs that caused her to fail her drug screen. However, the record is clear that the juvenile court found her in contempt for appearing in court while impaired. The act of appearing in court in an impaired state is a direct contempt. See Hayes v. State, 298 Ga.App. 419, 423 (2) (680 S.E.2d 508) (2009) (physical precedent only) (The defendant appearing in court with alcohol in his system "occurred, if at all, in the judge's presence in open court" and was therefore a direct contempt.).

         Relying on Newton v. Golden Grove Pecan Farm, 309 Ga.App. 764 (711 S.E.2d 351) (2011), Weaver asserts that, even if her contumacious acts were direct, the court was not entitled to engage in summary adjudication because she was not disruptive and, thus, her impaired condition did not prevent the juvenile court from conducting its business. Newton is distinguishable. In that case, this Court held that, even if the preparation and filing of bankruptcy petitions in federal court could be considered direct contempt, summary adjudication was not warranted because the ...


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