In re Tidwell, A06A0731.
| Decision Date | 12 June 2006 |
| Docket Number | No. A06A0732.,No. A06A0731.,A06A0731.,A06A0732. |
| Citation | 632 S.E.2d 690,279 Ga. App. 734 |
| Parties | In re TIDWELL et al. In re French et al. |
| Court | Georgia Court of Appeals |
Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, P. Brian Campbell, Charissa A. Ruel, Assistant Attorneys General, Daniel C. Thomas, for appellants.
John P. Powell, Covington, for appellees.
In these two cases, the Newton County Department of Family and Children Services (DFCS); its director, Janice Tidwell; its services administrator, Rachel Taylor; its placement supervisor, Margarita Shaw; and caseworker Kristine French appeal from two orders of the Newton County Juvenile Court holding all of them in civil and criminal contempt for alleged failure to comply with an order of that court regarding placement of a deprived child, E.S. The two cases are consolidated for purposes of appeal.1
On August 8, 2005, DFCS filed deprivation complaints on behalf of F.N., E.S., and A.M., all children born of the same mother, Cindella Moore, but fathered by different men. Allen Scott was the father of E.S., a female who was 11 years old in 2005. Following Cindella Moore's testing positive for drug use in relation to the custody of F.N., the juvenile court entered a shelter care order on behalf of all three children. That order stated that "[i]t is therefore ordered that said child(ren) be placed in the custody of the Newton County Department of Family & Children Services until further order of the Court...."
On August 11, 2005, DFCS filed a deprivation petition regarding these children and Allen Scott, who had remarried, was listed as E.S.'s putative father. On August 15, 2005, following the informal detention hearing required by OCGA § 15-11-49(c)(3), the juvenile court entered its order finding probable cause to believe that the children were deprived. Although Cindella Moore stipulated that the children were deprived as to her because of her substance abuse and Mark Anthony Moore, father of A.M., stipulated that he could not provide for the needs of his son, A.M., by himself, Allen Scott did not stipulate to any causes of deprivation of E.S. as to him. The identity and whereabouts of the father of F.N. were unknown. Temporary custody of the three children, according to this order, was to remain in DFCS pending an adjudicatory hearing on the deprivation petition.
Allen Scott filed a complaint/petition to legitimate E.S. in the juvenile court on September 8, 2005, stating that he was named as the father on her birth certificate in New Jersey and that genetic testing done there showed he was her biological father. Scott also filed with the petition Cindella Moore's consent to his legitimation of E.S. The results of a drug test conducted on Allen Scott in September were negative.
Contained in the record, although not marked "filed," is an Order of Adjudication Withholding Disposition, signed by the juvenile court judge and dated October 3, 2005, "nunc pro tunc to September 8, 2005." Therein, the juvenile court found that the children were deprived as to their mother and the father of A.M. The order, however, withheld adjudication and disposition as to Allen Scott regarding E.S., including the issue of legitimation. Although no transcript of the September 8 hearing is contained in the record here, the order reflects that DFCS submitted into evidence a home evaluation conducted by Oasis of the home of Allen Scott and his wife. The report found the home to be an appropriate placement resource for E.S. The order continued temporary custody and control of the children in DFCS pending receipt of the relative search report from DFCS and the next scheduled hearing on November 10, 2005.
On October 7, 2005, DFCS filed a motion for review of the conditions of visitation with regard to the mother, Cindella Moore, only, requesting that her visitation with E.S. be supervised by DFCS because of her mental and emotional abuse of the children and based on the recommendation of E.S.'s therapist.
A hearing was held on this motion on October 13, 2005. At the beginning of the hearing, counsel for DFCS and Cindella Moore and the guardian ad litem appointed for the children by the juvenile court proposed that E.S. remain with Allen Scott for a period no longer than two years and agreed that E.S. was not deprived as to him. Again, at the conclusion of this hearing, counsel for Cindella Moore stated that there were family issues with E.S. which were going to be dealt with through counseling and that "[w]e've stipulated that custody should remain with the father for up to two years and then the counselor determine about visitation [with Cindella Moore]."
During this hearing, a counselor employed by Pathways Transition Program testified that she had been asked to speak with E.S. during the past week. The counseling center had just been retained at that time. She had visited with E.S. at her school to talk about fears E.S. had expressed about visiting her mother for the weekend visitation the coming weekend. According to the therapist, E.S. expressed fears about her mother yelling at her and said that her mother had beaten her the past year. Asked several times if there were any arrangement under which she would be comfortable meeting with her mother, E.S. finally stated "for the police to be there." The therapist testified that she had no concern with E.S. staying with Allen Scott, her biological father, and that E.S. expressed "she is very happy there."
At the conclusion of this hearing the juvenile court judge stated:
I see a different picture than y'all see. I have a therapist come in here and she don't know. She don't know what the problem is.... As far as [E.S.], I'm no longer approving Mr. Scott's home. Y'all can put counseling in effect, put both of them involved. But I will not have somebody sitting here saying tell your child you don't want to see them.2 That's not going to happen. Y'all got some kids here that's got problems. I will not allow that to happen. So I don't believe a lot of what they're saying. I don't know what's going on but it's — I'm not going to allow this child to be put through that kind of a situation. So take that child out today. I'll set the hearing for November 10th, like it was before. This case is over.
(Emphasis supplied.)
In an order signed and filed on October 18, 2005, "nunc pro tunc to October 13, 2005," the trial court stated that the home of Allen Scott was no longer a suitable placement for E.S. and ordered that DFCS "shall no longer utilize the home of the father, Allen Wilson Scott, as a placement for the minor child, [E.S.], and shall remove the child from the placement as of October 13, 2005." The clerk was directed to mail copies to counsel for DFCS and French and a handwritten notation on the order indicates the order was "faxed and inbox 10/18."
On October 24, 2005, Assistant District Attorney Vanessa Weber filed a complaint/motion for contempt which alleged that DFCS, Tidwell, Taylor, Shaw, and French were "ordered to remove the child [E.S.] from the placement as of October 13, 2005 by verbal order and by written order entered on October 18, 2005[,]" and that they had "individually and jointly, wilfully failed and refused to comply with the Court Order and have not removed the child from the home." As relief, the petitioner sought that they be held in wilful contempt, "be incarcerated in the Newton County Detention Center and fined no more than $1,000.00 for their contemptuous conduct until their compliance with the Court[']s Order."
A rule nisi issued on October 24 for a hearing on October 27 directing the respondents to show cause why they "should not be held in contempt for violating this Court's Orders dated October 13, 2005."
On October 26, 2005, Weber filed a substitution of counsel requesting that the juvenile court substitute private attorney John Howell as attorney of record for the contempt hearing. No reason was given for the withdrawal of the district attorney's office. That same day, the juvenile court entered an order substituting John Howell as counsel. There is also in the record, although containing no stamp indicating it was ever filed, an order dated November 3, 2005, nunc pro tunc to October 26, 2005, appointing John Howell as "Special Prosecutor to conduct all proceedings in relation to the Motion for Contempt...." There is nothing in the record to suggest that any hearing was held on October 26 regarding the substitution of counsel.
On October 27, 2005, DFCS filed a motion for reconsideration of the order of October 18, 2005. The juvenile court continued the contempt hearing until November 4, 2005, and denied the motion for reconsideration by order of October 28.
Following a hearing on November 4, 2005, the written orders at issue here were filed. In the first order, the juvenile court found French in wilful contempt "by disrupting the court proceedings and by obstructing the administration of justice by failing to answer proper questions propounded to the witness that would not violate her rights." She was ordered to serve a minimum of four hours in the Newton County jail. This order is appealed in Case No. A06A0732.
The second order found all the named respondents "in wilful contempt of the Order of this Court entered on October 18, 2005[,] nunc pro tunc to October 13, 2005 by wilfully failing and refusing to abide by the order in finding another placement for the minor child, [E.S.], and not removing the child until October 31, 2005 from the home of Allen Wilson Scott." The individuals were each found in civil and criminal contempt and ordered to serve a minimum of 24 hours in the Newton County Jail. This order is appealed in Case No. A06A0731.
1. As stated in appellants' fifth enumeration of error, the juvenile courts of Georgia are courts of limited jurisdiction and their contempt powers...
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