In re C.W.

In re C.W. (98-557); 169 Vt. 512; 739 A.2d 1236

[Filed 27-Aug-1999]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as  formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the  Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 98-557


In re C.W.	                                   Supreme Court

	                                           On Appeal from
     		                                   Rutland Family Court

	                                           June Term, 1999
  Mary Miles Teachout, J.


       Marvin Wolf, White River Junction, for Appellant.

       Mary Ann Neal, Special Assistant Attorney General, Rutland, for
  Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.   M.C., mother of the juvenile C.W., appeals from a
  protective order of  the Rutland Family Court.  She contends the court: (1)
  abused its discretion and violated her  constitutional right to travel by
  excluding her from the Town of Poultney; and (2) exceeded its  authority in
  providing for enforcement of the balance of the order by criminal contempt. 
  We  amend the protective order and, as amended, affirm it.

       The minor, C.W., was seven years old at the time of these proceedings
  and had been in  the custody of the Department of Social and Rehabilitation
  Services (SRS) since November 1996.  In March 1997, C.W. was adjudicated a
  child in need of supervision.  Following a disposition  hearing in October
  1997, the court found on the basis of expert testimony that mother, M.C., 
  suffered from significant psychopathology characterized by destructive and
  bizarre behaviors,  including a compulsion to "rescue" perceived victims,
  most significantly C.W., and punish  transgressors.  The court found that
  M.C.'s untreated mental health problems rendered her unfit  to parent the
  minor in a safe environment.  Accordingly, the court approved a case plan
  in which  C.W. remained in SRS custody and reunification would be attempted
  pursuant to a step-by-step  plan.  Under the case plan, SRS workers were to
  act as intermediaries for communication  between M.C. and the minor.  M.C.
  was to direct all communications and 

 

  gifts to SRS, which would review and forward them, if appropriate, to the
  child.  

       In July 1998, SRS moved for a protective order to prohibit M.C. from
  possessing  firearms or "contacting or attempting to contact" the minor or
  the minor's foster parents.  See 33  V.S.A. § 5534 (court may make order
  restraining or otherwise controlling conduct of person if  disposition
  order has been previously entered and court finds that such conduct is
  detrimental to  child and will tend to defeat execution of disposition
  order).  The foster parents and SRS  simultaneously filed a complaint for
  relief from abuse, pursuant to 15 V.S.A. § 1103.  Both the  motion and the
  complaint alleged that M.C. had attempted to contact the minor through a
  variety  of surreptitious methods, including gifts containing hidden
  messages referring to "rescues" or  "Resurrection Ranch," and had attempted
  to regain possession of firearms previously removed  from her premises. 
  The court issued a temporary relief-from-abuse order prohibiting M.C. from 
  contacting the minor or coming within 1000 feet of the minor's residence,
  and referred the  motion for hearing.

       Following an evidentiary hearing on the motion in September 1998, the
  court found that  mother had engaged in a sustained pattern of
  communications or attempted communications with  the minor in violation of
  the SRS case plan.  These included messages hidden in books and  stamped on
  various toys, a letter in the form of a paper airplane found on the lawn of
  the foster  parents' home which referred to a "special rescue," and another
  letter delivered to the foster  parents and addressed to the child that
  stated in part, "good people in Government will rescue  us."  The court
  found that these efforts had caused the minor anxiety and nightmares, were 
  detrimental to the child's welfare, and contrary to the disposition order. 
  Accordingly, the court  granted the motion, and entered a protective order
  enjoining M.C. as follows:

 


     1. [M.C.] is restrained and enjoined from having any contact with 
     C.W. at home, on the street, or elsewhere, by phone, mail or 
     through third parties.  [M.C.] must stay 1000 feet away from 
     C.W. at all times and places and may not be within the Town of 
     Poultney, Vermont.

     2. [M.C.] is prohibited from hiding messages in or on toys, books 
     or gifts.  All hand written messages must be visible from the 
     outside and may not include the Resurrection Ranch logo.

     3. Violation of this order will result in criminal contempt charges 
     and arrest pursuant to V.R.Cr.P. 42, and Title 13 Section 7554.  
     [M.C.] shall be subject to arrest without a warrant if she places 
     herself within the Town of Poultney, Vermont.

  The court subsequently denied M.C.'s motion to vacate the order, amended
  certain findings, and  reaffirmed the order.  This appeal followed.

       First, M.C. contends the provision of the order prohibiting her from
  being in the Town  of Poultney was an abuse of discretion and a violation
  of her constitutional right to travel.   Although the court undoubtedly
  enjoys broad discretion in crafting a protective order, see In re  J.S.,
  153 Vt. 365, 370, 571 A.2d 658, 661 (1989), this discretion is not without
  limitation.  As  we have observed, the court's power is "limited to
  prohibiting such conduct that tends to defeat  execution of the court's
  disposition order."  In re B.F., 157 Vt. 67, 71, 595 A.2d 280, 282  (1991);
  see 33 V.S.A. § 5534 (court may issue protective order when it finds that
  "conduct is or  may be detrimental or harmful to the child, and will tend
  to defeat the execution of the order of  disposition").  The court here
  explained that the purpose of the case plan adopted in the  disposition
  order was to insulate the minor from the stress and fear induced by contact
  with  M.C., and to permit the development of a healthy new relationship
  through gradual contact.   Based upon the record evidence and findings, it
  is clear that M.C. engaged in a sustained pattern  of conduct subversive of
  these purposes. 

       The question remains, however, whether it was necessary to prohibit
  M.C. from placing  herself anywhere within the Town of Poultney in order to
  effectuate the goals of the disposition  order.  Except for the paper
  airplane incident, none of M.C.'s conduct necessarily involved her 
  presence within the Town of Poultney.  Moreover, all of her efforts to
  communicate with the  minor through non-approved channels were specifically
  addressed by other provisions of the 

 

  protective order enjoining M.C. from contacting the minor "at home, on the
  street, or elsewhere,  by phone, mail or through third parties," from
  placing herself within 1000 feet of the minor, and  from hiding messages in
  or on toys, books, or gifts.  These provisions were consistent with the 
  limited relief sought by the State in its motion, which requested only a
  non-contact order, and at  the hearing itself, where the State asked merely
  that M.C. be prohibited from contacting the  minor child or the foster
  parents at the home, on the street, or elsewhere, by telephone or  through
  third parties.  Although the townwide ban might, as the court stated,
  provide the child  an additional sense of security, the record evidence
  does not support a finding that such broad  relief was necessary to
  effectuate the purposes of the case plan.  Accordingly, we are compelled 
  to conclude that the court abused its discretion in excluding M.C. entirely
  from the Town of  Poultney.

       In view of our conclusion that the court exceeded its statutory
  authority in excluding   M.C. from the Town of Poultney, we need not
  consider the additional claim that the provision  violated M.C.'s
  constitutional right to travel.  Nor need we address the validity of that
  portion of  the protective order which provided that M.C. would be subject
  to arrest without a warrant if she  placed herself within the Town of
  Poultney; having invalidated the townwide ban, the corollary  arrest
  provision must necessarily fail, as well.

       Next we consider M.C.'s claim that the court exceeded its authority in
  providing that a  violation of the balance of the protective order would
  "result in criminal contempt charges and  arrest pursuant to V.R.Cr.P. 42,
  and Title 13 Section 7554."  Criminal contempt is generally  distinguished
  from civil contempt by the nature of the relief asked for and the purpose
  of the  order.  The purpose of a criminal contempt proceeding is punitive,
  and the purpose of a civil  contempt proceeding is coercive.  See Russell
  v. Armitage, 166 Vt. 392, 407, 697 A.2d 630,  640 (1997) (Morse, J.,
  concurring) (quoting In re Sage, 115 Vt. 516, 517, 66 A.2d 13, 14  (1949)). 
  Accordingly, in civil contempt proceedings the prison sentence is
  indefinite; the  contemnor stands committed only until he or she is able to
  purge the contempt by complying  with the underlying order.  In criminal
  contempt the sentence is definite, as its purpose is 

 

  punitive, and "`no amount of repentance will remit it.'" See  id. (quoting
  Town of Nottingham  v. Cedar Waters, Inc., 385 A.2d 851, 854 (N.H. 1978)). 
  As the United States Supreme Court  has explained, "a fixed sentence of
  imprisonment is punitive and criminal if it is imposed  retrospectively for
  a `completed act of disobedience,' .  .  . such that the contemnor cannot
  avoid  or abbreviate the confinement through later compliance." 
  International Union, United Mine  Workers of Am. v. Bagwell, 512 U.S. 821,
  828-29 (1994) (quoting Gompers v. Bucks Stove &  Range Co., 221 U.S. 418,
  443 (1911)).

       We must first address whether a violation of the court's protective
  order may serve as the  basis for a criminal contempt prosecution.  The
  authorities cited in the family court's order do  not provide such a basis. 
  Criminal Rule 42 is entirely procedural and does not answer when  conduct
  may be prosecuted as criminal contempt.  See Reporter's Notes to V.R.Cr.P.
  42 (rule,  like its federal counterpart, is exclusively procedural and
  "does not define the substance of a  criminal contempt").  13 V.S.A. § 7554
  deals with conditions of release on bail and contains no  definition of
  what is criminal contempt.

       The protective order statute, 33 V.S.A. § 5534, does not directly
  provide the  consequences of a violation of a protective order.  A later
  section in the juvenile proceedings  chapter of Title 33, 33 V.S.A. § 5539,
  does, however, provide that the court has the "power to  punish any person
  for contempt of court for disobeying an order of the court or for
  obstructing  or interfering with the proceedings of the court or the
  enforcement of its orders."  We see no  reason that the contempt
  authorization would not be applicable to disobedience of a protective 
  order.  We must, however, determine whether the contempt authorized is
  civil or criminal in  nature. 

       Absent explicit authorization of the use of a criminal contempt
  sanction for violation of a  protective order we turn to other statutory
  sources and case law for guidance.  See Reporter's  Notes to V.R.Cr.P. 42;
  State v. Allen, 145 Vt. 593, 600, 496 A.2d 168, 172 (1985) (substantive 
  legal standards for contempt are set by common law and statute); State v.
  Dragon, 131 Vt. 500,  502, 310 A.2d 24, 26 (1973) (absent constitutional or
  statutory provisions defining scope of 

 

  contempt power, "the common law governs") (quoting State v. Hildreth, 82
  Vt. 382, 384, 74 A. 71, 72 (1909)).  In this regard, we note that the
  contempt power in general has long been  considered among the court's
  inherent powers, "indispensable to secure .  .  . `the respect and 
  obedience due to the court and necessary for the administration of
  justice.'" Allen, 145 Vt. at  600, 496 A.2d  at 172 (quoting In re Cooper,
  32 Vt. 253, 258 (1859)); see also Andrew v.  Andrew, 62 Vt. 495, 498, 20 A. 817, 818 (1889) ("the authority to make the order carries with  it the
  power to enforce it"); Young v. United States, 481 U.S. 787, 795 (1987)
  ("That the power  to punish for contempts is inherent in all courts, has
  been many times decided and may be  regarded as settled law.").  The power,
  in particular, to punish disobedience to judicial orders "is  regarded as
  essential to ensuring that the Judiciary has a means to vindicate its own
  authority."   Young, 481 U.S.  at 796. 

       Recognizing that "the line of demarcation between the two classes
  [civil and criminal] is  often shadowy and does not run true," In re Morse,
  98 Vt. 85, 90, 126 A. 550, 551 (1924),  relevant case law does provide some
  guidance in determining which class is appropriate.  Thus,  in Morse we
  generalized that "criminal contempt is one committed directly against the
  authority  of the court, tending to impede or interrupt its proceedings or
  lessen its dignity, while a civil  contempt is one which operates mainly to
  deprive another party to a suit of some right, benefit,  or remedy to which
  he is entitled under an order of the court."  Id.  A protective order is
  issued  when the court finds that a person's conduct will "defeat the
  execution of the order of disposition  made or to be made" with respect to
  a juvenile and "may be detrimental or harmful to the child."  33 V.S.A. §
  5534(2) (emphasis added).  By its very nature a violation of such an order
  must  tend "to impede or interrupt" the proceedings of the family court in
  protecting children.    Protective orders that enjoin conduct detrimental
  to the safety of children plainly fall within that  category of judicial
  orders the enforcement of which vindicates compelling public interests. 

       Further, criminal contempt is the only practical method of enforcing
  the order present  here.  As noted above, if the punishment is imposed for
  a "completed act of disobedience," 
       
 

  International Union, 512 U.S.  at 828, and there is no coercive purpose left
  to be served, the  sentence must of necessity be a determinate one and
  therefore the contempt is criminal in nature.  See D. Dobbs, Handbook on
  the Law of Remedies § 2.9, at 97 (1973).  If a court were to  incarcerate
  M.C. for violating the protective order, the violations would necessarily
  cease, but  M.C. could perform no act of compliance which would purge the
  contempt.  If the family court  necessarily has the power to enforce its
  order, Andrews, 62 Vt. at 498, 20 A.  at 818, it must be  through criminal
  contempt.

       We note that the Legislature has reached a similar conclusion in
  explicitly authorizing the  use of criminal contempt for violation of abuse
  prevention orders.  See 15 V.S.A. § 1108(e).  In  other states where the
  Legislature has failed to specify the enforcement remedy, or has not 
  specified which class of contempt may be invoked, the courts have found
  that criminal contempt  is appropriate.  See Mabry v. Demery, 707 A.2d 49,
  51 (D.C. Ct. App. 1998) (although  Legislature specified only that
  violation of abuse prevention order was contempt, court held such  a
  violation was criminal contempt); State v. Hart, 708 P.2d 1137, 1139 (Or.
  1985) (criminal  contempt must be available for violation of abuse
  prevention order "to provide legal teeth for  enforcement of court orders
  against violators").  We take these cases as persuasive authority for  our
  holding.

       Although we have answered the threshold question in support of the
  order issued here,  our inquiry has not ended, and we must look at the
  specific provisions of the order.  The order  specified that "violation
  will result in criminal contempt charges and arrest."  Except in cases 
  appropriate for summary disposition, criminal contempt must be prosecuted
  as any other crime.   See V.R.Cr.P. 42(b); cf. 15 V.S.A. § 1108(e)
  (criminal contempt for violation of abuse  prevention order may be
  prosecuted by state's attorney).  It can be initiated by an "order of 
  arrest."  V.R.Cr.P. 42(b).  Without attempting to limit how prosecution
  will occur, we believe it  goes too far to say that prosecution and arrest
  will automatically follow from a violation.  We  note that the Legislature
  has directed that those subject to an abuse prevention order be warned 
  that violation "may . . . be prosecuted as criminal contempt punishable by
  fine or imprisonment, 

 

  or both."  15 V.S.A. § 1103(i).  We conclude that a similar warning would
  be appropriate here.

       The order also cited to 13 V.S.A. § 7554, the main statute providing
  for orders with  respect to release prior to trial.  Apparently, the family
  court was conveying that this section  would govern pretrial release in the
  case of an arrest for violation of a protective order.  This  may be true,
  but we believe that citation to a bail statute serves only to confuse the
  message  conveyed by the order.  As a result, we strike it from the order.

       Ordinarily, we would remand for the family court to correct the order
  in accordance with  this opinion, see Persons v. Lehoe, 150 Vt. 582, 587,
  554 A.2d 681, 683 (1988), but in this case  we conclude that the record
  provides an adequate basis to amend the order here.  See id.   Accordingly,
  our mandate amends the order and leaves no necessity for further action in
  the  family court.


       Sections 1 and 3 of the family court's protective order are amended to
  read:

     1.  [M.C.] is restrained and enjoined from having any contact with 
     C.W. at home, on the street, or elsewhere, by phone, mail or 
     through third parties. [M.C.] must stay 1,000 feet away from 
     C.W. at all times and places.


     3.  Violation of this order may result in prosecution for criminal 
     contempt, punishable by fine or imprisonment, or both.


  As amended, the protective order is affirmed.



	                               FOR THE COURT:



	                               _______________________________________
	                               Associate Justice