In re Jeffrey C.
| Decision Date | 26 June 2001 |
| Docket Number | (AC 20767) |
| Citation | 64 Conn. App. 55,779 A.2d 765 |
| Court | Connecticut Court of Appeals |
| Parties | IN RE JEFFREY C. |
Lavery, C. J., and Schaller and Flynn, Js. Sara R. Martin, for the appellant (respondent father).
Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).
The respondent father2 appeals from the judgment of the trial court finding him in civil contempt,3 granting attorney's fees for the preparation of a contempt motion by the office of the attorney general and issuing a temporary restraining order against him in this Juvenile Court proceeding. On appeal, the respondent claims that the court improperly (1) held him in contempt for failing to comply with the specific steps in the protective supervision order with respect to his son, Jeffrey C., (2) ordered him to pay attorney's fees in the contempt proceeding and (3) issued a temporary restraining order prohibiting contact with the mother or the couple's children. We conclude that the court exceeded its authority in issuing the contempt order and reverse the judgment.
The following facts and procedural history are relevant to this appeal. The commissioner of children and families (commissioner) filed a petition alleging neglect by the respondent and the mother of Jeffrey C. in failing to attend to his special medical needs as an asthmatic. The respondent and the mother entered pleas of nolo contendere to the neglect petition, and the court ordered that Jeffrey C. be placed in protective supervision for one year subject to the respondent's family following a series of specific steps. The steps required the respondent to attend all appointments with the department of children and families (department), to participate in family counseling, to submit to substance abuse counseling and adhere to recommendations of treatment, to submit to random drug testing, and to avoid substance abuse and other criminal activities.
The commissioner thereafter moved to modify the protective supervision order, and sought custody of Jeffrey C. and his sister because the respondent and the mother had failed to comply with the court-ordered specific steps. The court found that the respondent had not complied with the specific steps in that he had not attended family counseling sessions, had engaged in criminal activities, specifically, assault and driving under the influence of alcohol, and had failed to participate in substance abuse evaluation or treatment. The court subsequently extended the protective supervision order for an additional six months rather than committing the children to the custody of the commissioner. The court issued a supplemental order requiring the mother and the respondent to comply with the specific steps and to submit to a drug test within two weeks. The police arrested the respondent two days later for assault on the mother, criminal mischief and disorderly conduct.
As a result of the arrest, the commissioner filed a motion for contempt for the respondent's failure to comply with the court's protective supervision order. The commissioner also filed an application for an ex parte temporary restraining order. The court issued the temporary restraining order, which prohibited the respondent from entering the family residence or contacting the mother or children, except for visits at a rehabilitation center. The court scheduled a hearing for February 28, 2000.
At the hearing, the respondent stipulated that he had not complied with steps requiring participation in substance abuse treatment and prohibiting criminal activity. The court found him in civil contempt of the order and ordered that he pay attorney's fees. The court further extended the temporary restraining order to May 26, 2000, and added the requirement that any visits with the children be under the mother's supervision. The court granted the respondent's motion for articulation on the three orders that issued as a result of the February 28, 2000 hearing. The court stated that the respondent's noncompliance with any one of the specific steps could lead to a finding of contempt and that any one violation found to be a basis for the finding of contempt, under the appropriate facts, would support such a finding. The court characterized the contempt as civil contempt against the rights of the department and the award of attorney's fees as compensatory. The respondent now appeals from the judgment finding him in contempt, granting attorney's fees and issuing a temporary restraining order.
The respondent first claims that the court improperly held him in civil contempt for failure to comply with the specific steps set forth in the protective supervision order. The respondent claims that the specific steps described in General Statutes § 46b-129 (b)4 may not be characterized as orders from which a finding of contempt may issue. We agree.5 "[O]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.... This limitation originates because by its very nature the court's contempt power ... must be balanced against the contemnor's fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights.... We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite ... the findings on which it was based were ambiguous and irreconcilable... the contemnor's constitutional rights were not properly safeguarded ... the penalties imposed were criminal rather than civil in nature ... and the contemnor, through no fault of his own, was unable to obey the court's order....
"Although ... plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment." (Citations omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998).
The respondent contends that a violation of the "specific steps" in the order is not a violation of an order and, therefore, noncompliance with one or more of the specific steps does not constitute contempt of a court order. We agree with the respondent.
Under our limited review, we conclude that a trial court unquestionably has the power pursuant to General Statutes (Rev. to 1999) § 46b-121 (b)6 to find in contempt those persons who violate orders pertaining to juvenile matters. The relevant question, therefore, is "whether the act or acts for which the penalty was imposed could constitute a contempt." (Internal quotation marks omitted.) Eldridge v. Eldridge, supra, 244 Conn. 527.
The respondent argues that § 46b-129 does not contemplate a finding of contempt for failure to comply with the specific steps prescribed pursuant to a neglect proceeding. Section 46b-129 (b) provides that "[u]pon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth." (Emphasis added.) The court, in proceedings to terminate parental rights pursuant to General Statutes § 17a-112,7 considers the specific steps issued in the order as a measure of the degree of "personal rehabilitation." In re Shyliesh H., 56 Conn. App. 167, 179-80, 743 A.2d 165 (1999). If the specific steps in an ex parte order were to be construed as a series of individual orders, such a logical progression to § 17a-112 would not be possible, as § 46b-129 would itself end the process.
The specific steps are also considered "fair warning" of the potential termination of parental rights in subsequent proceedings pursuant to § 17a-112. Id., 179. The import of § 46b-129 (b) and our decision in In re Shyliesh H. is that the specific steps contained in the ex parte order are not themselves orders, but rather serve as criteria by which to measure personal rehabilitation and notice of impending termination of parental rights. We have stated that (Emphasis added; internal quotation marks omitted.) In re David L., 54 Conn. App. 185, 191-92, 733 A.2d 897 (1999).
We conclude, therefore, that the specific steps prescribed by a court, pursuant to § 46b-129 (b), may not be interpreted as orders unto themselves from which the court may issue a contempt order. The court in the present case, therefore, improperly held the respondent in contempt of the ex parte order.
The respondent further claims that the court improperly ordered him to pay attorney's fees in the contempt proceeding. We agree.
An award of attorney's fees pursuant to General Statutes § 52-256b8 or Practice Book § 1-21A9 first requires a finding of contempt. Because we concluded in part I that such finding was improper, we also conclude that the award of attorney's fees was...
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...to appear and show cause why his appeals should not be dismissed as moot pursuant to that court's decision in In re Jeffrey C., 64 Conn.App. 55, 64-67, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002).7 Following that hearing, on November 17, 2004, the Appella......
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2001 Connecticut Appellate Review
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