In re Contempt of Dorsey

• Citation: 858 N.W.2d 84,306 Mich.App. 571
• Decision Date: 09 September 2014
• Docket Number: Docket No. 309269.
• Parties: In re CONTEMPT OF DORSEY.
• Court: Court of Appeal of Michigan (US)

306 Mich.App. 571

858 N.W.2d 84

In re CONTEMPT OF DORSEY.

Docket No. 309269.

Court of Appeals of Michigan.

Submitted Feb. 8, 2013, at Lansing.

Decided Sept. 9, 2014, at 9:10 a.m.

Willliam J. Vailliencourt, Jr., Prosecuting Attorney, and William M. Worden, Assistant Prosecuting Attorney, for the Livingston County Prosecuting Attorney.

The Law Office of Kurt T. Koehler by Kurt T. Koehler for Kelly M. Dorsey.

Before: KIRSTEN FRANK KELLY, P.J., and MARKEY and FORT HOOD, JJ.

Opinion

PER CURIAM.

Appellant, Kelly Michelle Dorsey, appeals by right the contempt order entered by the Livingston Circuit Court, Family Division (the family court). As part of her son's juvenile adjudication, the family court entered an order requiring appellant to submit to random drug screens at the request of the probation department. The court found appellant in criminal contempt after she refused to comply with the order, and she was sentenced to 93 days in jail and ordered to pay $200 in costs, $120 in attorney's fees, and $500 in fines. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The criminal contempt proceeding against appellant originated from juvenile delinquency proceedings concerning appellant's son, Tyler Dorsey. Tyler first came to the attention of the family court in April 2008, when he was charged with three counts of breaking and entering a vehicle, MCL 750.356a(2)(a). Tyler was placed on the consent calendar/informal docket, which he successfully completed on July 3, 2009.

A second delinquency petition was filed in December 2009, when Tyler was charged with carrying a dangerous weapon with unlawful intent, MCL 750.226, receiving and concealing stolen property, MCL 750.535, possession of a controlled substance (hydrocodone), MCL 333.7403(2)(b)(ii ), and possession of alcohol by a minor, MCL 436.1703(1)(a). The weapon and alcohol charges were dismissed, and Tyler pleaded guilty to the remaining charges. A dispositional hearing/sentencing was scheduled for March 25, 2010, but, it was adjourned after Tyler's father died.

After the father's death, Kimberly Ognian, the father's longtime girlfriend, was named Tyler's guardian. A dispositional hearing was scheduled for April 16, 2010. Before the hearing, Tyler's probation officer, Susan Grohman, submitted a report and recommendation to the family court. Grohman reported that Ognian was Tyler's primary caregiver and that appellant had not been involved in Tyler's life for the past year. Grohman further reported that appellant had “alcohol/drug problems and a criminal record.” Tyler was referred for a biopsychosocial assessment. In his assessment, Tyler reported “little contact with his mother [appellant] recently and that he feels that this might be due to his mother's substance abuse.”

On April 16, 2010, Tyler was placed on probation and ordered to complete a number of terms and conditions, including random drug screens. On August 2, 2010, Tyler tested positive for benzodiazepines. Shortly thereafter, a petition charging Tyler with domestic violence was filed, MCL 750.81(2). The victim was Meagan Ognian, Kimberly Ognian's daughter, with whom Tyler was living and in a relationship. Tyler was removed from Kimberly Ognian's care and went to live with appellant.

On August 20, 2010, another petition was filed, charging Tyler with first-degree home invasion, MCL 750.110a(2), and possession of alcohol by a minor, MCL 436.1703(1)(a). Grohman reported that Tyler's biggest problem was a lack of supervision. Tyler was allowed to come and go as he pleased and was seen walking around downtown Howell at all hours of the night. Because of his chronic delinquency and the inability of appellant and his guardian to control him, Tyler was placed in a residential facility.

Appellant and her daughter, Destiny Dorsey, visited Tyler at the facility and participated in family counseling sessions. According to the counselor's report, appellant and Destiny both denied that they used drugs and further reported that they did not keep alcohol in the house. Appellant did report, however, that “she had a serious drug problem several years ago when she got divorced.... [Appellant] acknowledged that the only way she knew how to cope with her feelings was to escape by smoking crack cocaine.” Appellant represented to the family counselor that she had changed and could be a positive parent for Tyler.

Tyler's behavior began to improve at the facility, and a placement review hearing was conducted on January 13, 2011. Grohman reported that Tyler was doing well and had been granted a day pass for Christmas to see his grandparents. Grohman further stated:

Transportation became an issue due to the fact that the grandparents had to cook and entertain. Tyler's sister and [appellant] became the next logical choice for a transport. A drug test was requested prior to allowing Tyler to be released to the care and custody of [appellant]. Due to the fact that his sister would be driving, she agreed to submit to a test as well. From the date the test [was] requested [to] the date [appellant] and Destiny appeared for a test, three days had lapsed. The test would not return prior to Christmas so a decision was made to allow the visit to take place in an effort not to punish Tyler. Unfortunately, both tests returned diluted. A retest was requested. To date, Destiny has failed to appear and [appellant] did report (again not on the day requested). [Appellant's] test returned negative for all substances.

* * *

In the meantime Tyler's [guardian ad litem] filed an abuse and neglect petition naming both [appellant] and Kim Ognian as respondents. Since the time of this hearing, Kim's guardianship has been terminated.

Grohman recommended that Tyler's facility placement continue and that the family court order appellant and Destiny to submit to random drug tests. Following the hearing, the family court issued an order dated January 14, 2011, requiring appellant and Destiny to “submit to random drug testing as requested by Maurice Spear Campus or the probation department.” The family court further ordered that appellant's home remain drug and alcohol free and subject to random searches.

On August 26, 2011, the family court conducted another placement review hearing.¹ Grohman reported that Tyler and appellant responded extremely well to services at the residential facility. Further, Grohman stated that the Department of Human Services (DHS) reported full compliance by appellant in her abuse and neglect case. Following the hearing, the family court entered an order releasing Tyler into appellant's custody.

On December 19 and December 27, 2011, Tyler tested positive for K2, a synthetic form of cannabis.² On January 9, 2012, Grohman filed a motion requesting that the family court issue an order directing Tyler to appear and show cause why he should not be found in criminal contempt. Also on January 9, 2012, Grohman requested that appellant begin biweekly drug screenings at Second Chance.

Appellant reported to Second Chance on January 9 and 10, 2012, but she refused to test both days. After appellant's second refusal, Grohman filed two show-cause motions. Both motions referred to the January 14, 2011 order requiring appellant to submit to random drug tests. The family court granted both motions and ordered appellant to appear and show cause why she should not be found in criminal contempt.

Counsel was appointed for appellant, and a show-cause hearing was conducted on February 2, 2012. During the hearing, Grohman referred to the juvenile proceedings and the abuse and neglect proceeding, noting that appellant's abuse and neglect case had been closed by the DHS. Grohman stated that appellant was required to drug test in the abuse and neglect case and was compliant with testing in that case.³ Grohman stated that she asked appellant to test in the delinquency case on January 9, 10, 11, 12, 13, and 17, 2012, and appellant had refused each time. Grohman did not show appellant the January 14, 2011 order requiring appellant to submit to random drug testing, but Grohman spoke with appellant, and appellant was aware of the order. Megan Alcala, a Community Reintegration Program facilitator, corroborated Grohman's testimony. Alcala stated that she was present when Grohman spoke with appellant and requested appellant to take a drug test. Alcala stated that Grohman explained to appellant that there was a court order and that appellant appeared to understand.

Appellant testified that she was confused between the delinquency case and the abuse and neglect case. Appellant stated that she was aware of an order requiring her to test in the abuse and neglect case, but she was unaware that there was a similar order in the delinquency case. Appellant stated that the abuse and neglect case was closed in November 2011. Therefore, appellant was confused when Grohman asked her to test on January 9, 2012. Appellant stated that Grohman did not explain that there was an order requiring her to test in the delinquency case. Appellant acknowledged, however, that Grohman had told appellant that “she wanted [appellant] to test for the [delinquency] case.” Appellant further stated that she received a piece of paper that stated “it is requested by Sue Grohman, juvenile probation, and Second Chance that you drug test though Second Chance twice a week until April 16th for drugs, alcohol, and K2.” Appellant stated: “I didn't refuse right then but I refused later on that day until I could talk to my attorney.” Appellant further stated: “I didn't know if it was legal ... because my [abuse and neglect] case was closed and I hadn't—there wasn't—in my opinion there was no reason why I would have to do a drug test.”

At the conclusion of the hearing, the family court found appellant in contempt of court for failing to comply with the court's order. On February 6, 2012, the family court entered a written order of contempt. The order appears to be a standard court document and includes boxes labeled “preponderance...