In the Interest of: E.O., a Minor ( 2018 )

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2018 PA Super 247IN THE INTEREST OF E.O., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.O., FATHER :
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: No. 2641 EDA 2017
Appeal from the Order Entered August 3, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000127-2017
IN THE INTEREST OF: B.O., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.O., FATHER :
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: No. 2643 EDA 2017
Appeal from the Order Entered August 3, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000228-2017
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
OPINION BY LAZARUS, J.: FILED SEPTEMBER 05, 2018
A.O. (Father) appeals from the orders, entered in the Court of Common
Pleas of Philadelphia County, finding him in contempt1 for violating a visitation
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1 When reviewing a contempt conviction, much deference is given to the
discretion of the trial judge. Accordingly, we are confined to a determination
of whether the facts support the trial court’s decision. Commonwealth v.
Pruitt, 764 A.2d 569, 574 (Pa. Super. 2000).
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* Retired Senior Judge assigned to the Superior Court.
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order in an underlying dependency proceeding and ordering him to serve
seven days of incarceration. After careful review, we vacate and remand for
further proceedings.
At a January 20172 shelter care hearing, legal custody of Father’s minor
children, E.O. and B.O. (Children), was transferred to the Philadelphia
Department of Human Services (DHS); Children were placed in a foster home.
In February 2017, Children were adjudicated dependent; the trial court
ordered Father have weekly, supervised, line-of-hearing visits with Children,
at Children’s discretion, at the Community Umbrella Agency (Agency).3 At an
August 3, 2017 permanency review hearing, the trial court found Father in
contempt for violating the visitation order after Children told their assigned
social worker that Father calls them on the telephone ten times a day and was
meeting with them after court appearances.4 At the conclusion of the hearing,
the court ordered Father to immediately serve seven days of incarceration for
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2 In October 2016, DHS received a report alleging that Children’s sibling was
being emotionally abused by Mother. See Dependency Petition, 2/2/17.
There were also reports of a history of verbal and physical domestic abuse
between Mother and Father and that Father verbally abused Children’s older
sibling.
3 The permanency order also stated that visitation could be modified by
agreement of the parties, parents were to confirm their visits 24 hours in
advance, and, if parents failed to confirm visits within that time frame, they
were not to occur. Permanency Review Order, 2/7/17, at 2. Finally, the order
referred both Mother and Father for counseling and evaluations. Id.4 See N.T. Permanency Hearing, 8/3/17, at 11-15.
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contempt.5 The court ordered both parents to continue with supervised visits
at the Agency, at the sole discretion of Children. On August 10, 2017, the
court held a hearing, stating that the “case was brought back today only to
release Father from incarceration at CFCF. Father was held in contempt in
violation of court order at the last hearing on 8/3/2017.”
Father filed a timely notice of appeal from the court’s contempt order
and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors raised on
appeal.6 He raises the following issues for our consideration:
(1) Whether the trial court erred by finding Father in criminal
contempt, rather than civil contempt.
(2) Whether the trial court erred by sentencing Father for direct
criminal contempt rather than indirect criminal contempt.
(3) Whether the trial court erred by failing to provide Father
with all necessary [c]onstitutional protections and
safeguards required for criminal defendants.
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5 Specifically, the permanency order states:
THE COURT FURTHER FINDS Parents had unauthorized contact
with Child.
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Father to be held in contempt, on State Road for 7 days due to
violating court order.
Permanency Review Order, 8/3/17, at 1.
6 In his Rule 1925(b) statement, Father states that he did not have
“inappropriate contact with any of [his] children,” that he did not violate the
visitation order by calling Children, that he did not call Children ten times per
day as alleged, and that “[t]he court may have mistaken [him] for [Mother].”
See Father’s Pa.R.A.P. 1925(b) Statement, 8/14/17.
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(4) Whether the trial court erred by failing to establish Father’s
guilt beyond a reasonable doubt.
(5) Whether the trial court erred by failing to sentence Father
in accordance with the Pennsylvania Rules of Criminal
Procedure.
Appellant’s Brief, at 7.
Contempt of court may be classified as civil or criminal in nature.
The distinction between the two categories lies in the purpose
behind the court’s finding of contempt. If the dominant purpose
of the court is to prospectively coerce the contemnor into
compliance with the court’s directive, the adjudication is one of
civil contempt. However, if the court’s dominant purpose is to
punish the contemnor for disobedience of the court’s order,
the adjudication is one of criminal contempt.
In the Interest of C.W., 960 A.2d 458, 466 (Pa. Super. 2008) (emphasis
added), citing Pruitt, supra at 573.
Criminal contempt may be classified as either direct or indirect. “A direct
criminal contempt consists of misconduct of a person in the presence of the
court, or disobedience to or neglect of the lawful process of the court, or
misbehavior so near thereto as to interfere with the immediate business of
the court.” Fenstamaker v. Fenstamaker, 487 A.2d 11, 14 (Pa. Super.
1985) (citation omitted); Commonwealth v. Marcone, 410 A.2d 759, 762
(Pa. 1980). “A charge of indirect criminal contempt consists of a claim that a
violation of an order or decree of court occurred outside the presence of the
court.” Commonwealth v. Ashton, 824 A.2d 1198, 1203 (Pa. Super. 2003)
(citation omitted). Criminal contempt is a crime punishable by imprisonment
or fine; sentences of imprisonment for contempt must be imposed according
to the Sentencing Code, 42 Pa.C.S.A. § 9701. Commonwealth v.
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Falkenhan, 452 A.2d 750, 757 (Pa. Super. 1982) (citation omitted).
Moreover, in cases where one is accused of criminal contempt, whether direct
or indirect, the accused is entitled to certain procedural safeguards.
To establish a claim of indirect criminal contempt, the evidence must be
sufficient to establish the following four elements:
(1) the order in question must be definite, clear, specific and leave
no doubt or uncertainty in the mind of the person to whom it was
addressed of the conduct prohibited; (2) the contemnor must
have had notice of the specific order or decree; (3) the act
constituting the violation must have been volitional; and (4) the
contemnor must have acted with wrongful intent.
Ashton, 824 A.2d at 1203 (citation omitted). The Pennsylvania Supreme
Court has emphasized that the order underlying a finding of indirect criminal
contempt must limit the alleged contemnor’s conduct in a clear and definite
manner. Id. Moreover, pursuant to 42 Pa.C.S. § 4133, except as otherwise
provided by statute, “the punishment of commitment for contempt provided
in section 4132 . . . shall extend only to contempts committed in open court.
All other contempts shall be punishable by fine only.” 42 Pa.C.S. § 4133
(emphasis added).
Here, the trial court’s order constituted a finding of criminal7 contempt
where the visitation order set forth specific conditions surrounding Father’s
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7The characteristic that distinguishes civil from criminal contempt is the ability
of the contemnor to purge himself of contempt by complying with the court’s
directive. If he is given an opportunity to purge himself before imposition of
punishment, the contempt order is civil in nature. Sinaiko v. Sinaiko, 664
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visitation rights with Children, he allegedly violated these conditions by calling
Children on the phone daily and meeting with them after court proceedings,
and the court specifically stated that “it expect[s] that [its] court order will be
abided by.” N.T. Permanency Hearing, 8/3/17, at 22 (“that’s defiance of my
court order”); see Commonwealth v. Griffiths, 15 A.3d 73, 77 (Pa. Super
2010) (“If the dominant purpose is to vindicate the dignity and authority of
the court and to protect the interest of the general public, it is a proceeding
for criminal contempt.”) (citation omitted); see also Cipolla v. Cipolla, 398
A.2d 1053 (Pa 1979) (if contempt consists solely of past act, only allowable
judicial response is punitive, and any contempt adjudication must be criminal).
While Father’s conduct may have amounted to criminal contempt where the
trial court clearly sought to vindicate its authority and to punish Father for his
alleged misconduct, Father’s contemptuous conduct did not occur in open
court, nor did his misbehavior occur “so near thereto as to interfere with the
immediate business of the court.” Fenstamaker, supra. Thus, his conduct
is classified as indirect criminal contempt. Compare Commonwealth v.
Baker, 766 A.2d 328 (Pa. 2001) (charge of indirect criminal contempt consists
of claim that violation of court order or decree occurred outside presence of
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A.2d 1005, 1009 (Pa. Super. 1995) (citation omitted). If the purpose of the
order is to punish despite an opportunity to purge, the order is criminal in
nature. Id. Here, the court clearly imposed criminal, not civil contempt upon
Father by immediately incarcerating him for violating a visitation order and
not giving him an opportunity to purge.
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court) with Knaus v. Knaus, 127 A.2d 669, 671 (Pa. 1956) (direct contempt
occurs either in presence of court or “so near thereto to interfere with its
immediate business.”).
Where one is accused of indirect criminal contempt, he shall enjoy the
right to be notified of the accusation and time to prepare a defense. See
Cipolla, 398 A.2d at 1056; see also In re Martorano, 346 A.2d 22 (Pa.
1975) (accused in criminal contempt proceeding entitled to essential
procedural safeguards attendant to criminal proceedings generally).
Moreover, an individual may only be found guilty if the order underlying the
finding of indirect criminal contempt limited his conduct “in a clear and definite
manner.” Ashton, supra. Here, the visitation order permitted Father to have
weekly, supervised, line-of-hearing visits with Children at the Agency, at
Children’s discretion, and also permitted modification of visitation by
agreement of the parties.
Father instantly denied calling Children ten times a day8 and also
claimed he never had unauthorized meetings with Children after court
proceedings. N.T. Permanency Review Hearing, 8/3/17, at 23-25. Although
the trial judge deemed Father not credible and found him to be manipulative,
it did not provide Father with any of the required procedural safeguards
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8 Notably, the permanency order does not mention whether Father was
permitted to contact Children via telephone or whether he was restricted from
communicating with them other than during supervised visitation.
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attached to indirect criminal contempt matters. Moreover, pursuant to section
4133, the trial court was only permitted to fine Father, not incarcerate him.
See Commonwealth v. Marcone, 410 A.2d 759 (Pa.1980) (restricting
incarceration to direct contempts).9 Because the trial court clearly failed to
understand the nature of the proceedings, imposed an unauthorized sentence
of imprisonment and, concomitantly, failed to accord Father the procedural
safeguards he was due, we must vacate. Pruitt, supra.Order vacated. Jurisdiction relinquished.
Judge Platt joins this Opinion.
Judge Dubow did not participate in the consideration or decision of this
case.
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9 In Commonwealth v. McMullen 961 A.2d 842 (Pa. 2008), the Supreme
Court held 42 Pa.C.S.A. § 4136 (statute for indirect criminal contempt
proceedings involving restraining order or injunction) unconstitutional,
recognizing that the right to a jury trial is procedural, that the Pennsylvania
Constitution only provides for a jury trial when a criminal defendant faces a
term of imprisonment exceeding six months, and that courts have authority
to punish individuals in violation of their orders. The McMullen Court,
however, specifically limited its holding to subsection 4136, stating “[w]e
recognize there is other statutory law concerning contempt in Title 42, see 42
Pa.C.S. §[§] 4132-39; however, only § 4136 is at issue in this case.” Id. at
856 n.6. We realize that section 4133 proscribes a court’s power to imprison
an individual found guilty of indirect criminal contempt. However, since the
constitutionality of section 4133 is not before us today, unless and until the
Supreme Court holds otherwise, that subsection is still valid.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/18
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