Patricia Hanson, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
PATRICIA HANSON, S/K/A
PATRICIA HANSON BAILEY
MEMORANDUM OPINION * BY
v. Record No. 2899-95-3 JUDGE SAM W. COLEMAN III
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
William W. Sweeney, Judge
Thomas S. Leebrick (Mosby & Leebrick, on
brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The circuit court convicted Patricia Hanson on two counts of
contempt for violating two juvenile court orders and sentenced
her to two concurrent ten-day jail terms. On appeal, Hanson
contends that the circuit court erred by (1) using an abuse of
discretion standard for review, rather than conducting a de novo
review, (2) admitting hearsay testimony of the juvenile court
judge's order, (3) holding that the juvenile court had the
jurisdiction over Hanson necessary to find her in contempt when
she was not a named party to the proceeding, (4) holding that the
juvenile court had jurisdiction to order Hanson's cooperation on
her daughter's delinquency petition when Hanson was not a party
to the action, no final order of delinquency was entered, and no
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
finding of delinquency was made, and (5) finding the evidence
sufficient to support Hanson's contempt citations. For the
reasons that follow, we affirm Hanson's contempt citation for
disobeying the juvenile court's September 1994 order, however, we
reverse Hanson's contempt citation for disobeying the July 1994
order.
BACKGROUND
On July 27, 1994, the Bedford County Juvenile and Domestic
Relations District Court, after considering a CHINS 1 petition,
found that Patricia Hanson's daughter was a child in need of
supervision and ordered, among other things, that the appellant
"have an evaluation of her need for alcohol treatment" and that
she "enter and complete treatment if recommended." In September
1994, a delinquency petition was brought against Hanson's
daughter, charging her with violating a court order. On
September 1, 1994, the court found that the evidence was
sufficient to prove that Hanson's daughter was delinquent, but
took the petition under advisement for twelve months. The
juvenile judge ordered the child to be placed in the Presbyterian
Home and ordered Hanson to immediately apply for Medicaid
assistance for the child and that she cooperate with the court
service unit in all matters relating to her daughter.
On December 20, 1994, the juvenile court issued a show cause
summons against Hanson pursuant to Code § 18.2-456 charging her
1
Children in Need of Supervision. See Code § 16.1-278.5.
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with contempt for failing to complete the ordered alcohol abuse
counselling and failing to apply for Medicaid. On February 6,
1995, the juvenile court issued a second show cause summons
against Hanson pursuant to Code § 16.1-69.24 charging her with
contempt for failing to cooperate with the court service unit by
removing her daughter from the Presbyterian Home before the
program was completed.
The juvenile court conducted a show cause hearing and found
Hanson in contempt on both charges and sentenced her to ten days
in jail for each contempt, to be served consecutively. Hanson
appealed to the circuit court.
In the circuit court hearing, a court service unit probation
officer testified that Hanson's daughter had reported problems
with Hanson abusing alcohol in the home. The probation officer
testified that as a result, the juvenile court judge ordered
that Hanson be evaluated to determine her need for alcohol
treatment in July of 1994. Hanson began but did not complete the
alcohol assessment program.
As to the September 1994 delinquency order, the court
service unit probation officer testified that it arose from an
assault and battery charge which Hanson lodged against her
daughter. The probation officer stated that Hanson was "very
much a part of the decision to place [her daughter] at the
Presbyterian Home. [Hanson] said that . . . she could no longer
keep [the daughter] at home." The officer testified that Hanson
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contacted him in January 1995 and wanted to withdraw her daughter
from the Presbyterian Home. He informed Hanson that her daughter
had been ordered to complete the program unless Hanson petitioned
the juvenile court to amend the September 1994 order. However,
Hanson removed her daughter from the Presbyterian Home program
without petitioning to amend the order and before the daughter
completed the program.
One of the case workers at the Presbyterian Home testified
that Hanson was "sabotaging" their efforts to work with the
daughter. The case worker stated that one of the daughter's
problems was truancy, and when the daughter visited Hanson,
Hanson did not make the daughter go to school and was
consistently late in returning the daughter to the Home. While
her daughter was still at the Home, Hanson took her, without
informing the Home's staff, to see a psychiatrist who diagnosed
her as being manic-depressive. However, the Home's case worker
did not believe that the daughter was manic-depressive. The case
worker further testified that she told Hanson that she would have
to either petition the court to amend the order or revise the
service plan to shorten the program to end on January 23, 1995
before she could remove her daughter from the Home. Hanson opted
to revise the service plan, but then signed a discharge statement
removing her daughter from the Home on January 17, 1995, before
the end of the revised program. The case worker testified that
Hanson had not allowed her daughter to sign the discharge
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statement because she did not want the daughter held accountable
for the removal decision.
Hanson acknowledged that in July 1994 the juvenile court
ordered that she be assessed for alcohol abuse. Hanson testified
that she had difficulty attending her alcohol evaluation
appointments because she did not drive and her husband, who could
drive her, worked out of town during the week. ARISE, the
alcohol assessment center, informed Hanson that her file was
being closed because she had failed to keep her scheduled
appointments. Hanson did eventually complete the alcohol
assessment program, which determined that she did not have an
alcohol problem. However, Hanson did not complete the alcohol
evaluation program until October 1995, after she was convicted by
the juvenile court of contempt, but before her circuit court show
cause hearing.
As to Hanson's failure to obey the September 1994 order, she
testified that she did not obtain a Medicaid card for her
daughter as ordered because the court service unit never
contacted her after her daughter entered the Presbyterian Home,
so she assumed that they did not need the card. Hanson testified
that she disagreed with the Home staff that her daughter suffered
a bipolar or manic-depressive disorder. Hanson further testified
that she knew that she could not withdraw her daughter from the
Home without having the juvenile court amend its order or revise
the service plan. Nevertheless, Hanson withdrew her daughter
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from the Home on January 17, 1995 without the permission of the
court or the court service unit. On cross-examination, Hanson
admitted that she knew she violated the juvenile court's order
when she removed her daughter from the Home.
The circuit court judge, in his letter opinion, found beyond
a reasonable doubt that Hanson had willfully violated both
juvenile court orders. Accordingly, the court found her in
contempt and imposed two ten-day jail sentences to run
concurrently.
STANDARD OF REVIEW
Prior to the circuit court trial, the judge expressed his
belief that the standard of review for contempt appeals from a
court not of record is for abuse of discretion rather than de
novo. Defense counsel objected and argued that the evidence
should be reviewed de novo. At the conclusion of the evidence,
the judge issued a letter opinion stating, "I find beyond a
reasonable doubt that Patricia Hanson willfully violated both
orders."
In Baugh v. Commonwealth, 14 Va. App. 368, 417 S.E.2d 891(1992), this Court held that appeals of contempt citations from
district courts are reviewed de novo.
Code § 16.1-132 grants to any person
convicted of an offense in the district court
the right of appeal to the circuit court and
Code § 16.1-136 provides that such appeal
shall be heard de novo, as a new trial.
The issue before the circuit court is not
the disposition of the matter in the lower
court, but the defendant's guilt or
innocence. In this determination, the
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judgment of the district court must be
ignored. In the appeal of a contempt
citation, however, those events which
occurred in the district court comprise the
evidence of the offense before the court of
record. The occurrence, circumstances and
perceptions of the district court judge are
relevant and necessary direct evidence in the
appellate proceeding, the admission of which
does not effect the de novo nature of the
trial.
Id. at 373, 417 S.E.2d at 894 (citations omitted). Thus, the
correct standard of review in the circuit court was a de novo
review of whether Hanson willfully violated the two court orders.
Although the trial judge initially stated his belief that
the standard of review was an abuse of discretion, the judge's
opinion letter found beyond a reasonable doubt that Hanson
willfully violated the juvenile court orders. Thus, the trial
judge applied the correct standard of review and considered the
evidence de novo.
HEARSAY EVIDENCE
The appellant contends that the trial judge erred by
admitting the hearsay testimony of the court service unit
probation officer to prove what the juvenile court judge ordered
the appellant to do in the July 27, 1994 and September 1, 1994
orders. We disagree.
"Hearsay is a statement, other than one made by the
declarant while testifying at trial, which is offered to prove
the truth of the matter asserted." Clark v. Commonwealth, 14 Va.
App. 1068, 1070, 421 S.E.2d 28, 30 (1992). "Unless it is offered
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to show its truth, an out-of-court statement is not subject to
the rule against hearsay and is admissible if relevant." Church
v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 825 (1985).
Here, Mr. Harper's testimony as to the contents of the
juvenile judge's orders and what the judge ordered the appellant
to do was not offered for the truth of its contents. The orders
themselves were evidence in the case. The testimony of the
probation officer was offered to prove that the trial judge told
Hanson of the requirements of the order and proved that she had
notice of the orders. Therefore, the trial judge did not err in
admitting the evidence.
JULY 1994 CHINS ORDER
Because Hanson was not a named party to the July 1994 CHINS
order entered by the court, she contends that the juvenile court
did not have jurisdiction to order her to have an alcohol
treatment evaluation and to enter a treatment program if
indicated. More specifically, Hanson argues that the evidence
was insufficient to prove that she was a contributing factor to
her daughter's need for supervision as required under Code
§ 16.1-241(F)(3). We find that the evidence was sufficient to
support the trial court's finding that she contributed to the
need for supervision and, therefore, the juvenile court had
jurisdiction to order the alcohol evaluation.
Code § 16.1-241(F)(3) gives the juvenile court jurisdiction
over
[a]ny parent, guardian, legal custodian or
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other person standing in loco parentis of a
child . . . [w]ho has been adjudicated in
need of services, in need of supervision, or
delinquent, if the court finds that such
person has by overt act or omission, induced,
caused, encouraged or contributed to the
conduct of the child complained of in the
petition.
Furthermore, Code § 16.1-278.5(B)(3) gives the court the
authority to "[o]rder the child and/or his parent to participate
in such programs, cooperate in such treatment or be subject to
such conditions and limitations as the court may order and as are
designed for the rehabilitation of the child."
At trial, the court service unit probation officer testified
that there were "problems within the household, fighting, staying
out all night, truancy . . . that sort of thing." Prior to the
July 1994 CHINS order, he stated that "there were suspicions that
there were problems with alcohol abuse in the household . . . ."
Hanson's daughter also testified that, prior to the July 1994
hearing, she told the probation officer that her mother had a
problem with alcohol abuse. She later recanted that statement,
but not until after the judge entered the order requiring Hanson
to obtain the evaluation. Thus, the evidence was sufficient to
support the juvenile court's factual finding that the mother had
contributed to her daughter's need for supervision, giving the
court jurisdiction to order the mother to be evaluated for
alcohol abuse pursuant to Code § 16.1-241(F)(3).
SEPTEMBER 1994 DELINQUENCY ORDER
In the September 1994 delinquency order, the juvenile court
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judge found the evidence sufficient to prove that the child was
delinquent, but the court took the case under advisement for
twelve months. Hanson contends that she cannot be held in
contempt of the September 1994 order because it was under
advisement and not a final order. The argument is without merit.
In general, an order finally disposing of a case must be
entered by a trial court before it is final and may be appealed.
Hairfield v. Commonwealth, 7 Va. App. 649, 654, 376 S.E.2d 796,
799 (1989). However, the issue was not whether the delinquency
order was final and appealable. An interlocutory order which
directs a party to perform or refrain from certain acts is
enforceable and may be the subject of a contempt citation. So
long as the September 1994 order was a valid court order, as we
find that it is, a contempt charge may be brought for failure to
obey the court's order.
As to Hanson's claim that the September 1994 delinquency
order was not enforceable against her because she was not a named
party, Code § 16.1-241(F)(3) confers juvenile court jurisdiction
over the parent of a child who has been adjudicated delinquent.
Furthermore, if the juvenile is found to be delinquent, Code
§ 16.1-278.8(6) grants authority to the court to
[o]rder the parent of a juvenile with whom
the juvenile does not reside to participate
in such programs, cooperate in such treatment
or be subject to such conditions and
limitations as the court may order and as are
designed for the rehabilitation of the
juvenile where the court determines this
participation to be in the best interest of
the juvenile and other parties concerned and
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where the court determines it reasonable to
expect the parent to be able to comply with
such order . . . .
In the September 1994 order, the juvenile court judge found
the evidence was sufficient to prove that the child was
delinquent. Taking the case under advisement did not void or
negate the delinquency finding or defeat the court's jurisdiction
to order the child's mother to be evaluated. Therefore, the
juvenile court had jurisdiction to order that the mother be
evaluated and to hold her in contempt for willfully disobeying
the court's order.
SUFFICIENCY OF THE EVIDENCE
Code §§ 18.2-456 and 16.1-69.24 confer upon the juvenile
court the power to punish for contempt in cases of
"[d]isobedience or resistance of an officer of the court, juror,
witness or other person to any lawful process, judgement, decree
or order of the court." Code § 18.2-456(5). Willful or
intentional disobedience is a necessary element in proving
contempt. Carter v. Commonwealth. 2 Va. App. 392, 397, 345
S.E.2d 5, 8 (1986) (citing 17 Am. Jur.2d Contempt § 8 (1964)).
At the time of the juvenile court contempt hearing, Hanson
had attended but had not completed the alcohol evaluation
program. However, when the case was heard de novo in the circuit
court, the evidence proved that Hanson had completed the program
on October 11, 1995, two weeks before the circuit court trial.
The July 27, 1994 order did not provide a time limitation by
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which the evaluation was to be completed. The evidence did not
prove that time was of the essence. The purpose of the judge's
order was to have Hanson evaluated to determine the need for
alcohol abuse treatment to the extent her conduct may have
contributed to her daughter's delinquency. At the time of the
circuit court trial de novo, Hanson had completed the alcohol
abuse treatment and was not shown to have willfully disobeyed the
court's order. Thus, the evidence was insufficient for the
circuit court to find that Hanson was in contempt of the juvenile
court order. Accordingly, Hanson's contempt citation on this
count is reversed and dismissed.
As to the September 1994 order, the evidence was sufficient
to support the trial court's finding that Hanson willfully
disobeyed that order. Hanson admitted at trial that she knew she
was violating the order by removing her daughter from the
Presbyterian Home before the end of the program. She argues,
however, that she intended no disrespect to the court and,
therefore, lacked the intent necessary to be in contempt of the
order.
Hanson's argument has no merit. She intentionally disobeyed
the court's order. She removed her daughter from the
Presbyterian Home in violation of the order and after being told
by the court service unit probation officer and the case worker
that she could not do so unless she petitioned the juvenile court
to amend its order. Thus, the evidence is sufficient to support
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Hanson's conviction on this count.
In summary, we hold that the trial court used the proper
standard of review and that the juvenile court had jurisdiction
over Hanson, the child's mother. The evidence was sufficient to
sustain Hanson's contempt citation for violating the September
1994 order. However, because Hanson completed the alcohol
evaluation program, the circuit court erred in finding that she
was in contempt on the July 1994 order. Accordingly, we affirm
the appellant's conviction on the September 1994 order and
reverse the conviction on the July 1994 order.
Affirmed in part,
reversed in part.
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