Bryant v. HOWARD CTY DEPARTMENT OF SOCIAL SERV.

• Decision Date: 12 May 2005
• Docket Number: No. 93,93
• Citation: 874 A.2d 457,387 Md. 30
• Parties: Joseph David BRYANT v. HOWARD COUNTY DEPARTMENT OF SOCIAL SERVICES ex rel. Cassandra COSTLEY.
• Court: Maryland Court of Appeals

874 A.2d 457

387 Md. 30

Joseph David BRYANT v. HOWARD COUNTY DEPARTMENT OF SOCIAL SERVICES ex rel. Cassandra COSTLEY.

No. 93, September Term, 2004.

Court of Appeals of Maryland.

May 12, 2005.

Julia Doyle Bernhardt, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for appellant.

Barbara T. Strong, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Argued before BELL, C.J., RAKER, WILNER, HARRELL, BATTAGLIA, GREENE and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

WILNER, J.

The ability of a court to enforce child support orders entered by it is often difficult and frustrating. In many cases, the court must invoke, as a last resort, its power to punish a wilfully non-compliant parent for contempt, but when the exercise of that power involves incarceration—deprivation of the parent's liberty—it is subject to certain circumscribing conditions and limitations. In 1997, through the adoption of Maryland Rules 15-201 through 15-208, we tried to set out criteria for the proper exercise of the power of contempt, in both its coercive and punitive aspects. In this case, the court did not follow the requirements and, as a result, it entered an order that we shall be obliged to vacate.

BACKGROUND

Jasmine B. was born out of wedlock in December, 1993. In November, 1996, the Howard County Department of Social Services (DSS), which was then paying public assistance to her mother, Ms. Costley, filed a petition in the Circuit Court for Howard County to declare appellant to be Jasmine's father and to order him and Ms. Costley to pay child support. Though she was the custodial parent, Ms. Costley was made a defendant because she refused to sign an oath naming the child's father. See Maryland Code, § 5-1010(d)(3)(ii) of the Family Law Article. After a hearing before a domestic relations master, during which appellant acknowledged paternity, the court, on February 24, 1997, entered an order that, among other things, declared appellant to be Jasmine's father and ordered him to pay child support in the guideline amount of $189/month plus an additional $20/month against an arrearage of $569.

Appellant paid little attention to that order and, by July, 1998, had increased his arrearage to $3,306. When faced with the possible loss of his driver's license as a result of that arrearage, he entered into a stipulation and payment agreement, under which he agreed to resume monthly child support of $189 and to pay, in addition, $92/month toward the arrearage. That stipulation was incorporated into a court order entered on August 4, 1998.

Appellant was as non-compliant with that order as with the first one. By December, 2001, his arrearage stood at $11,181, and DSS petitioned to have him held in contempt. The petition, though captioned and filed in the civil paternity proceeding, asked, as the only sanction for contempt, that appellant be "sentenced to a period of incarceration not to exceed [180] days," without regard to any provision for purging the contempt, which is a criminal penalty not available in a civil contempt proceeding.¹ After a hearing, the domestic relations master ordered appellant to participate in the Absent Parent Employment Program and the court entered an order to that effect on February 28, 2002. That order required appellant to report to the program on a weekly basis, commencing March 11, 2002, and to accept any employment obtainable under the program. If no employment was so obtainable, appellant was ordered to conduct a minimum of eight job contacts per week and to continue reporting to the program until released. After a subsequent hearing before the master on April 26, the court, on May 12, 2002, ordered appellant to continue monthly support payments of $189 and to pay an additional $47/month toward an arrearage that then amounted to $11,685. Resolution of the contempt issue was deferred until June 3, 2002.

Because appellant arrived late, the master was unable to proceed with the hearing on June 3, and instead scheduled a hearing before a judge on June 27, 2002. Appellant was advised in writing that, if he desired counsel, he should contact the Office of the Public Defender by June 12, 2002. Appellant did not heed that advice and showed up in court on June 27 without counsel. He said that he intended to retain private counsel but, by the time he realized he could not afford a private attorney, the June 12 deadline had passed. The court was obviously not impressed, found no meritorious reason, and therefore proceeded with the hearing. Appellant did not contest the arrearage or seek to have either the arrearage or the amount of support reduced. From what he said and from what he implied, it was evident that he had a history of drug abuse, that he had been incarcerated a number of times, including for distribution, and that he had been in various recovery programs, trying to get his life in order. The transcript reveals that, at times, he was crying during his testimony. He said that he had tried to obtain employment but that, with his criminal record, he had difficulty finding a job. He informed the court that he had recently managed to get two jobs, at least one of which was temporary, and, although he did not seem to know much about the jobs, he said that he was to be paid, from each, about $8/hour. Appellant said that Jasmine and her mother then lived in Georgia, and that when the mother indicated that she needed something for the child, he tried to supply it, although he understood that voluntary gifts or payments did not discharge his child support obligation. Appellant advised the court that he was then on probation in another case in the Circuit Court.

DSS noted that appellant had been employed and had earned over $6,000 in 2001, but that he had made no payment toward his child support. Appellant responded that he was homeless in 2001 and had spent his earnings on hotel rooms and for food for his two other children.

On June 27, 2002, the court entered an Order for Probation that referenced the same case number as the paternity action but was captioned "State of Maryland v. Joseph Bryant." No such case or file existed and none was created as a result of that order. The order stated that the "execution of the sentence of [blank] has been suspended for the offense of ... contempt." It purported to place appellant on "Supervised Probation" for a period of 18 months, effective June 27, 2002, and, in addition to the conditions usually found in probation orders entered in criminal cases, including reporting to his probation agent as directed and informing the agent of any subsequent arrest, made reference to an addendum. That addendum, which also referenced the paternity action case number, required that appellant pay all "fines, costs, restitution, and fees as ordered by the court," totally abstain from alcohol and drugs, submit to alcohol and drug testing, attend NA self-help group meetings, and "obtain sponsor + home group w/in 30 days + maintain."² The Order is signed by appellant but is not dated or witnessed. The addendum is not signed by appellant; indeed, the pre-printed "Consent" paragraph is lined out.

The next day, the court entered another order, in the paternity case, that was captioned "Order For Constructive Civil Contempt." Among other things, the court, in that order, (1) declared a current arrearage of $12,189, (2) found appellant to be in contempt of the May 12, 2002 order, (3) "sentenced" appellant to 180 days incarceration in the Howard County Detention Center, (4) suspended all but 30 days of that "sentence," (5) directed that appellant report to the county sheriff on August 30, 2002, to begin serving the unsuspended 30 days of the sentence, (6) decreed that, upon payment to DSS of "a purge amount" of $1,000 on or before August 29, 2002, appellant would be released from service of that part of the sentence, (7) declared that service of the remaining 150 days of the "sentence" was suspended on condition that appellant pay DSS $189/month child support and $47/month against the arrearage, and that, upon payment in full of the arrearage, the contempt would be purged, and (8) directed that appellant comply with "all of the conditions specified in the attached addendum to this Order." One problem with that last, eighth, provision, apparently unnoticed by anyone, is that there was no addendum attached to the June 28 order. There was an addendum attached to the June 27 Order for Probation, but neither that addendum nor the June 27 Order of Probation was attached to the June 28 Order for Constructive Civil Contempt. No appeal was noted from either order.

On September 16, 2002, the Division of Parole and Probation, which assumed supervision of appellant pursuant to the June 27 order, filed a Request for a Warrant in the Circuit Court, alleging that the defendant had violated three conditions of probation by failing to report to his probation officer as instructed, failing to report for drug testing 11 times, and failing to provide proof of attendance at self-help meetings or acquisition of a home group or sponsor. Two days later, the Circuit Court judge entered an order, in the paternity case, directing the issuance of a bench warrant for appellant's arrest and setting a full cash bond of $10,000. It was not until July, 2003, that the county sheriff was able to locate appellant, however. He had been arrested in Anne Arundel County on two charges of possession of CDS paraphernalia and an additional charge of making a false statement to a police officer and was being held in the Anne Arundel County Detention Center. On July 8, appellant was transferred to the Howard County Detention Center.³

On August 7, 2003, the Division of Parole and Probation, responding to the arrest in Anne Arundel County, added two more alleged violations of the probation— appellant's failure to obey all laws and failure to advise his probation officer of his...