Ark. Dept. Health & Human Serv. V. Briley

• Decision Date: 01 June 2006
• Docket Number: No. 05-1278.,05-1278.
• Citation: Ark. Dept. Health & Human Serv. V. Briley, 237 S.W.3d 7, 366 Ark. 496 (Ark. 2006)
• Parties: ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellant, v. Tammy BRILEY and Charles Renley, Appellees.
• Court: Arkansas Supreme Court

237 S.W.3d 7

ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellant, v. Tammy BRILEY and Charles Renley, Appellees.

No. 05-1278.

Supreme Court of Arkansas.

June 1, 2006.

Office of Chief Counsel, Arkansas Department of Health and Human Services, by: Gray Allen Turner, Little Rock, AR, for appellant.

Kimberly Johnson, Yellville, AR, for appellee.

Deanna S. Evans, Attorney ad Litem, Summit, AR, for appellee.

ANNABELLE CLINTON IMBER, Justice.

The Arkansas Department of Health and Human Services (DHHS) appeals the Boone County Circuit Court's order, which found DHHS to be in civil contempt for failing to obey the court's prior orders. On appeal, DHHS seeks reversal of the contempt order. We affirm the circuit court's order holding DHHS in contempt, but hold that the circuit court erred in imposing a sanction that required DHHS to submit a written report on "future staffing issues" after the protective-services case had been closed. Thus, while the written methodology report sanction must be reversed, the $160 reimbursement-fee sanction remains in force.

In January 2005, DHHS participated in a dependency-neglect hearing involving Appellee Tammy Briley. According to the record, Briley's children had been returned to her, and the case was to be closed once several documents were received. However, on March 8, 2005, the circuit court conducted another review hearing. In that hearing, Briley informed the court that counseling services had not been regularly provided and home visits had not been made. The court ordered Briley to submit to a drug assessment and to random drug screens at the request of DHHS and to follow the recommendations of and otherwise cooperate with DHHS. In that same order, the court ordered DHHS to "maintain a protective services case under strict compliance with this court's orders." The case plan of March 2005 designated the family services to be provided by DHHS: (1) random drug screens, (2) referral to an aide for parenting safety issues, (3) regular visits with the family to monitor the home, (4) referral and contact with a substance abuse provider as to Briley's progress, (5) transportation as needed, and (6) referral for counseling and monitor of progress. On June 14, 2005, the court held another review hearing. During that hearing, Briley testified that only minimal family services had been provided by DHHS since the March review hearing. She testified that DHHS had failed to (1) help her with transportation to court-ordered AA meetings, (2) conduct regular drug screens, and (3) provide counseling or assistance with housing. In its order entered following the June 14, 2005, hearing, the court closed the protective-services case, finding that Briley should retain permanent custody of the children who were no longer in need of the services of DHHS. The court, however, retained jurisdiction of the case in anticipation of a request for sanctions or contempt arising out of its finding that DHHS failed to make reasonable efforts to provide services to achieve the goal of family preservation.

Immediately thereafter, Appellees Tammy Briley and Charles Renley filed a petition for contempt. The petition alleged that DHHS failed to provide court-ordered services to Briley and requested that DHHS be held in contempt. Briley also submitted an affidavit, in which she asserted that DHHS did not provide the following court-ordered family services: counseling, transportation, random drug screens, or home visitation.

On August 20, 2005, the circuit court held a show-cause hearing. Prior to the hearing, DHHS filed a motion to dismiss the petition, contending that Appellees had failed to identify which order the agency had violated. The circuit court denied the motion to dismiss. At the hearing, several witnesses testified as to what actions the agency had taken during the case. The DHHS county supervisor, Teresa Head, testified that because her caseload totaled eighty-five (85) cases, she had difficulty completing all the services outlined in the case plan.

The circuit court subsequently entered an order finding DHHS in civil contempt, with remediation to be the payment of $160 to Appellee Tammy Briley for her out-of-pocket expenses and the preparation and submission within sixty (60) days "of a written methodology for responding to future staffing issues in the 14th Judicial Circuit . . . ." Thereafter, DHHS filed a "motion to reconsider and to modify findings of fact and conclusions of law." From the contempt order, DHHS now appeals.

We have jurisdiction of this case in order to achieve fair allocation of the appellate workload between this court and the Arkansas Court of Appeals. Ark. Sup.Ct. R. 1-2(g) (2006). Our court recently set forth the standards for determining whether a contempt order constitutes civil or criminal contempt. In Omni Holding & Development Corp. v. 3D.S.A., Inc., 356 Ark. 440, 448-49, 156 S.W.3d 228, 234-35 (2004), we stated:

We begin by distinguishing civil and criminal contempt:

Contempt is divided into criminal contempt and civil contempt. Johnson [v. Johnson], 343 Ark. at 197, 33 S.W.3d at 499. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Johnson, 343 Ark. at 197, 33 S.W.3d at 499. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. This court has often noted that the line between civil and criminal contempt may blur at times. Id. Our Court of Appeals has given a concise description of the difference between civil and criminal contempt. See Baggett v. State, 15 Ark. App. 113, 116, 690 S.W.2d 362, 364 (1985) ("[C]riminal contempt punishes while civil contempt coerces." (emphasis in original)).

In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 138, 752 S.W.2d 275, 276 (1988). Because civil contempt is designed to coerce compliance with the court's order, the civil contemnor may free himself or herself by complying with the order. See id. at 139, 752 S.W.2d at 276. This is the source of the familiar saying that civil contemnors "carry the keys of their prison in their own pockets." Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v. S.E.C., 330 U.S. 585, 593, 67 S.Ct. 918, 91 L.Ed. 1117 (1947)) (quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902)). Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged. Fitzhugh, 296 Ark. at 139, 752 S.W.2d at 276-277.

Ivy v. Keith, 351 Ark. 269, 279-80, 92 S.W.3d 671, 677-78 (2002).

Moreover, in Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988), this court quoted from the United States Supreme Court's decision of Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). In Feiock, the Court, in an attempt to distinguish between the two contempts, said:

[T]he critical features are the substance of the proceeding and the character of the relief that the proceeding will afford. "If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." Id., at 442, 31 S.Ct. 492. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. See, e.g., Gompers, supra, at 444, 31 S.Ct. 492; Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162 (1924). [Footnote omitted.]

485 U.S. at 631-32, 108 S.Ct. 1423.

Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. at 448-49, 156 S.W.3d. at 234-35.

In this case, the contempt order entered by the circuit court constitutes civil contempt because the sanctions imposed on DHHS were not punitive; rather, the sanctions were remedial. DHHS could purge itself of contempt by performing the affirmative acts required by the circuit court — paying Briley's out-of-pocket expenses and submitting a written methodology for responding to future staffing issues in the Fourteenth Judicial Circuit. Our standard of review in civil contempt proceedings is whether the finding of the circuit court is clearly against the preponderance of the evidence. See Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991).

For its first point on appeal, DHHS claims that the contempt finding should be reversed because the petition for contempt did not give DHHS sufficient notice of what court orders had been violated. We have observed that willful disobedience of a valid court order is contemptuous behavior. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., supra. However, before one can be held in contempt for violating the court's order, the order must be definite in its terms and clear as to what duties it imposes. Id. In the instant case, DHHS...