In Re Banks , 1973 D.C. App. LEXIS 307 ( 1973 )

KELLY, Associate Judge:

On Saturday, August 5, 1972, a juvenile of tender (13) years was petitioned as a delinquent in the Family Division of the Superior Court based on allegations of grand larceny, unauthorized use of an automobile, tampering, and malicious destruction of property. Through appointed counsel the juvenile waived a probable cause hearing and denied complicity in the charges. An October trial (fact-finding hearing) date was then set, but lack of adequate information necessitated the deferral of the requisite detention hearing to the following Monday.¹ Until then the juvenile was to remain in the Receiving Home upon a court finding that detention was required “to protect the property of others from serious loss or damage”.²

Miss Iris Elaine Banks, a social worker for the Social Rehabilitation Administration, was one of those present at the detention hearing held before another judge late in the afternoon of August 7. At that hearing, in response to an inquiry by the court as she understood it, Miss Banks stated³ by way of background that the juvenile respondent had been

committed to Social Services on 6-29-70 due to neglect. At that time his mother was unable to supervise him and give him adequate care. He was then placed at Junior Village, where his adjustment has been poor, and he was a behavior problem at Junior Village. And he absconded frequently. Then, on 6-27-72, he was released to his mother and there, he had made a satisfactory adjustment until today. We recommend that this case be continued pending his disposition hearing, which is the 11th— Friday, the 11th.

When Miss Banks recommended continued detention of the juvenile at the Receiving Home, the trial judge was moved, during further colloquy, to angrily express his concern over the fact that the juvenile had “been sitting in jail over the weekend”;⁴ that she had come to court with insufficient background information on the juvenile for him to make a reasoned decision on detention; that no one from her office unit works on Saturdays, and that she had not yet talked with the juvenile’s mother. It was with some difficulty that Miss Banks managed to inform the court that the mother had been called and been given a message to come to court. Nevertheless, after hearing the Assistant Corporation Counsel’s alternative suggestion that the juvenile be returned to Junior Village in the still-open neglect case, the court abruptly terminated the hearing by placing him in the custody of Miss Banks until the following morning.

Some thirty minutes later Miss Banks returned to the courtroom in the company of another Assistant Corporation Counsel. She refused, on advice of counsel, to take custody of the juvenile after the trial judge was asked and had declined to reconsider his order, dismissing without comment clear contentions that he had exceeded his statutory authority in entering the custody order and that Miss Banks had no duty to accept such a custodial responsibility. The court adjudged Miss Banks in contempt and sentenced her to serve eight hours in the custody of the United States Marshal, allowing a 10-day stay to note an appeal. While not in the transcript of proceedings, a subsequent docket entry recites that the juvenile was ordered released in the custody of his attorney who was to see that he was taken to his home at 923 Westminster Street, N. W.

Inexplicably, the trial judge did not reduce his contempt ruling to writing until August 24, 1972.⁵ The written contempt order read, in part, that at the hearing Miss Banks “gave no information as to name(s) or addresses of the respondent’s parent(s),⁶ no information as to any other suitable custodian for respondent should he be released,'⁷ no information regarding respondent’s prior delinquency involvement (if any) with the Juvenile Branch,⁸ no information or recommendation regarding shelter care for respondent rather than detention at the Receiving Home,⁹ nor any other relevant information.¹⁰ Consequently, the only recommendation that the caseworker made was that the respondent again be remanded to the Receiving Home pending trial,¹¹ notwithstanding the fact that the caseworker had been assigned the respondent’s case in the morning and the hearing at issue was held in the late afternoon. ¹² The court concluded by saying:¹³

This Court sees no reason why a respondent should have to spend additional periods in detention, when such detention may not be necessary, because of the failure of representatives of the Social Rehabilitation Administration to adequately perform their jobs. The inadequacy of the Representative from the Social Rehabilitation Administration in the performance of her job, left this Court with no means with which to make a rational, intelligent and equitable resolution of the question of detention. Rather than to require the respondent to suffer an additional night in detention (possibly unwarranted) and because the Court felt the caseworker to be a competent custodian for the respondent overnight, this Court directed the caseworker Miss Iris Banks, to take custody of the respondent pending a further detention hearing the next morning (August 8, 1972). Subsequent to the order of this Court, Miss Iris Banks refused to comply with the order (upon advice of the Corporation Counsel). This court deemed such refusal to be contumacious. Therefore, pursuant to SCR-Juvenile 42(a), it is hereby ORDERED that Miss Iris Banks serve eight (8) hours in the custody of the United States Marshal.

The contempt order issued by the trial court in this case was void and could be disobeyed with impunity, for it is basic that

by an almost unbroken line of authority and unanimous consensus of judicial opinion the rule may be said to be firmly established that a court does not possess the right or power to punish as for contempt a disregard or violation of its order or decree which it has rendered without jurisdiction over the subject matter or the parties or without power or authority to render the particular decree or order. Lack of such jurisdiction or power may therefore be raised by the person charged with contempt for violation of the order or decree (for the annulment or reversal of which he has taken no direct steps), in a collateral proceeding on appeal from the judgment of conviction for contempt or upon an application for habeas corpus to test the validity of the imprisonment for contempt. [12 A.L.R.2d 1067.]¹⁴

That the trial judge lacked authority to place the juvenile in the custody of Miss Banks without her consent is a matter of simple logic. Briefly put, D.C.Code 1972 Supp., § 16-2312(d) (2) (A), provides that, when in a juvenile proceeding the trial court concludes that detention or shelter care pending a fact-finding hearing is unnecessary it may place the child in the custody of a parent, guardian or custodian. Since Miss Banks is neither the juvenile’s parent nor his legal guardian, the question is whether she can be deemed a “custodian” in whom the statute permits custody to be placed.

A “custodian” is defined as “a person or agency, other than a parent or legal guardian, to whom legal custody of a child has been given by court order and who is acting in loco parentis.” D.C.Code 1972 Supp., § 16-2301 (12).¹⁵ There is obviously no way to fit Miss Banks within this definition. Certainly, referring to her as a “competent custodian” in a contempt order cannot transform her into a custodian in whom the court is empowered by statute to place custody, nor can the court by that or by any other means force custody upon her. Our dissenting colleague does not suggest otherwise.

The order with which we are here concerned is not erroneous or voidable as were those at issue in Hunter v. United States, 48 App.D.C. 19 (1918), and other authorities cited in the dissent. It is, of course, appropriate to challenge such orders by direct appeal rather than in collateral contempt proceedings. But those cases are simply inapposite, for it is settled that when a court is without power or authority to issue the challenged order, a collateral attack upon that order by appeal from a conviction of contempt is proper.¹⁶

We would stress that it is no light matter to defy an order of court and that one does so at one’s peril. However, when a court acts in excess of its authority in issuing an order, a refusal to obey that order is not punishable by contempt.

Reversed.

1 . See D.C.Code 1972 Supp., § 16-2312.

2 . Supp.R. at 2. See D.C.Code 1972 Supp., § 16-2310.

3 .Tr. at 3.

4 . Tr. at 4.

5 . Super.Ct.Juv.lt. 42(a) :

(a) Summary Disposition. A contempt committed by a child may be disposed of summarily, and a contempt committed by an adult may be punished summarily, if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record:

6 . This information was contained in the delinquency petition before the court, which showed that the father was deceased and the mother lived at the same address as the juvenile, the very one to which the court ordered the attorney to take the juvenile. Curiously, the docket states that the respondent and his father appeared for the detention hearing.

7 . The trial judge never paused to inquire about another suitable custodian.

8 . Miss Banks had informed the court that there was none.

9 . The Assistant Corporation Counsel’s alternate suggestion that the juvenile be sent to Junior Village was advanced.

10 . The court was informed that the juvenile had been before the court on a neglect petition and had spent several years in Junior Village.

11 . Any fair reading of the record establishes beyond doubt that Miss Banks never recommended that the juvenile be remanded to the Receiving Home pending trial. She did recommend that he be so remanded until the disposition hearing in the neglect ease on Friday, the 11th, or at the very least until she could contact his mother and talk with her.

12 . R. at 28.

13 . R. at 28-29.

14 . See, e. g., Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861 (1882); Drew v. Hogan, 26 App.D.C. 55 (1905). See also and compare State v. Ramsay, 16 Wis.2d 154, 114 N.W.2d 118 (1962).

15 .See D.C.Code 1972 Supp., § 16-2301 (21), for the definition of the term “legal custody”.

16 . While we need not decide the point (neither briefed nor argued) in light of our view of this case, it is questionable that the custody order was subject to challenge by direct appeal.