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                                http://www.gaappeals.us/rules


                                                                      March 2, 2017




In the Court of Appeals of Georgia
 A16A1501. IN THE INTEREST OF K. J. et al., children.

      MCMILLIAN, JUDGE.

      During a judicial review hearing in a juvenile dependency case, the court sua

sponte found the children’s mother, Haley Weaver, to be in criminal contempt after

she tested positive for drugs. Weaver appeals, contending that (1) the evidence was

insufficient to support the finding of contempt and (2) the juvenile court erred in

finding her in contempt without first providing her with notice and a hearing. For the

reasons set forth below, we affirm.

      For a contempt finding to constitute criminal contempt, rather than civil

contempt, the trial court must impose unconditional punishment for a contumacious

act, such as conduct that interferes with the court’s ability to administer justice. See

Moton v. State, 332 Ga. App. 300, 301 (772 SE2d 393) (2015). “On appeal of a
criminal contempt conviction the appropriate standard of appellate review is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” (Citation and punctuation omitted.) In re Liles, 278 Ga. App. 496, 496 (629

SE2d 492) (2006).

      So viewed, the evidence shows that on January 26, 2016, Weaver appeared

with counsel in Lumpkin County Juvenile Court for a hearing in her children’s

dependency case. Prior to the hearing, the parties reviewed the dispositional report

and the case plan. At the hearing, through her attorney, Weaver consented to the

putative father’s legitimation petition and stipulated to entry of the dispositional

report. The court inquired into Weaver’s progress on her case plan, and the

Department of Family and Children Services indicated that it intended to ask Weaver

to take a drug screen that day. The juvenile court then asked Weaver if she was

willing to take a drug screen. Weaver agreed, and the court recessed in order for her

to do so.




                                          2
      Weaver’s drug screen was positive for “oxy, opiates, THC, amphetamines, and

methamphetamines.”1 Weaver did not dispute the results of the screen, and her

attorney stated that she had admitted to using marijuana and pain pills in the recent

past. Weaver declined the opportunity to speak on her own behalf to the court. The

juvenile court then found Weaver in contempt because she had appeared in court in

an impaired condition, thus interfering with the court’s ability to do business and

making it impossible to complete the hearing. Although trial counsel asserted that

Weaver had been cooperative and was able to participate in the case and articulate her

wishes, counsel conceded that he would not have been able to call her as a witness

if there had been a need for her to testify. As a result, the juvenile court found that,

by having come to court in an impaired condition, Weaver had limited the court’s

ability to complete its business, ordered Weaver into custody for 48 hours, and

continued the hearing.

      1. Weaver contends that the juvenile court lacked sufficient evidence to find

her in contempt because there was no evidence that she was impaired such that she

disrupted the court’s business.

      1
        The witness who testified regarding Weaver’s drug screen was not tendered
as an expert and did not offer any evidence regarding whether the screen was reliable
or when the drugs might have been ingested.

                                           3
      “[T]he broad authority of a judge to preserve good order in the courtroom by

the use of contempt power is well recognized and must be preserved if the courts are

to perform their public duty.” (Citation, punctuation and footnote omitted.) In re

Jefferson, 283 Ga. 216, 217 (657 SE2d 830) (2008) (punctuation omitted). Pursuant

to OCGA § 15-11-31 (a), a juvenile court may find an adult in contempt for “willfully

disobeying an order of the court or for obstructing or interfering with the proceedings

of the court or the enforcement of its orders.”

      While there is no evidence that Weaver engaged in outbursts, the statute merely

requires that she obstructed or interfered with court proceedings. See OCGA § 15-11-

31 (a). Weaver asserts that the business before the court had been concluded prior to

the drug screen. However, while the parties had nothing further to present, the

juvenile court had questions concerning why Weaver had not been communicating

with the Department, had not been visiting at least one of the children, and tellingly,

why she had not submitted to a drug screen. The court apparently felt that it could not

go forward with addressing these concerns without having Weaver screened for drugs

and halted the hearing for that purpose. More specifically, the juvenile court found

in its contempt order that Weaver “appeared to the Court, from the commencement

of the hearing, to be under the influence of a substance.” This finding was based, in

                                          4
part, “on its observation of her demeanor and the test results, including the

comprehensive nature of [the] drugs for which [Weaver] tested positive.” Although

the dissent acknowledges that it must “credit” these findings, it appears to give more

credit to Weaver’s counsel’s statement that she had been able to assist him, even

though counsel conceded that he would not have been able to call her as a witness.

See generally In re Bowens, 308 Ga. App. 241, 243 (1) (706 SE2d 694) (2011) (“[I]n

a contempt hearing before a judge sitting as the trier of fact, the hearing judge, and

not the appellate court, determines the credibility of witnesses.”). Given the juvenile

court’s observations, the testimony that Weaver had a positive drug screen that day,

as well as the continuation of the hearing, a rational trier of fact could have found

beyond a reasonable doubt that Weaver interfered with the proceedings of the court

by appearing in court at her children’s dependency hearing while under the influence

of drugs.

      2. Weaver contends that the juvenile court deprived her of due process because

it issued an order of contempt against her without first providing her with notice of

the contempt charge and time to prepare a defense.

      “The procedures that a trial court must follow to hold a person in contempt

depend upon whether the acts alleged to constitute the contempt are committed in the

                                          5
court’s presence (direct contempt) or are committed out of the court’s presence

(indirect contempt).” Ramirez v. State, 279 Ga. 13, 14 (2) (608 SE2d 645) (2005). If

the contempt is direct, a trial court may, after affording the person charged with

contempt an opportunity to speak, announce punishment summarily and without

further notice or hearing. Id. This summary adjudication is authorized

      where contumacious conduct threatens a court’s immediate ability to
      conduct its proceedings, such as where a witness refuses to testify, or a
      party disrupts the court. Direct contempts in the presence of the court
      traditionally have been subject to summary adjudication, to maintain
      order in the courtroom and the integrity of the trial process in the face
      of an actual obstruction of justice.


(Citations and punctuation omitted.) Id. See also Dowdy v. Palmour, 251 Ga. 135,

141-42 (2) (b) (304 SE2d 52) (1983) (“During trial, a trial judge has the power, when

necessary to maintain order in the courtroom, to declare conduct committed in his

presence and observed by him to be contemptuous, and, after affording the contemnor

an opportunity to speak in his or her own behalf, to announce punishment summarily

and without further notice or hearing.”). Where the alleged acts of contempt occur

outside of the court’s presence, the considerations justifying summary adjudication

do not pertain, and due process requires that a person charged with indirect contempt


                                             6
“be advised of charges, have a reasonable opportunity to respond to them, and be

permitted the assistance of counsel and the right to call witnesses.” (Citation and

punctuation omitted.) Ramirez, 279 Ga. at 15 (2).

      An act of direct contempt occurs if the act is committed in open court. Ramirez,

279 Ga. at 15 (2). Weaver asserts that her alleged acts of contempt occurred outside

the courtroom when she consumed the drugs that caused her to fail her drug screen.

However, the record is clear that the juvenile court found her in contempt for

appearing in court while impaired. The act of appearing in court in an impaired state

is a direct contempt. See Hayes v. State, 298 Ga. App. 419, 423 (2) (680 SE2d 508)

(2009) (physical precedent only) (The defendant appearing in court with alcohol in

his system “occurred, if at all, in the judge’s presence in open court” and was

therefore a direct contempt.).

      Relying on Newton v. Golden Grove Pecan Farm, 309 Ga. App. 764 (711 SE2d

351) (2011), Weaver asserts that, even if her contumacious acts were direct, the court

was not entitled to engage in summary adjudication because she was not disruptive

and, thus, her impaired condition did not prevent the juvenile court from conducting

its business. Newton is distinguishable. In that case, this Court held that, even if the

preparation and filing of bankruptcy petitions in federal court could be considered

                                           7
direct contempt, summary adjudication was not warranted because the filing of the

petitions several months earlier posed no immediate threat to the trial court’s ability

to conduct its proceedings. See id. at 769-70 (1).

      In this case, Weaver posed an immediate threat to the juvenile court’s ability

to conduct its proceedings because she appeared at a hearing in her children’s

dependency case under the influence of drugs. “Where misconduct occurs in open

court, the affront to the court’s dignity is more widely observed, justifying summary

vindication.” (Citation and punctuation omitted.) Ramirez, 279 Ga. at 15 (2). Weaver

declined the opportunity to speak on her own, the court found her in contempt, and

her trial counsel presented arguments on her behalf. Because Weaver’s act of

contempt occurred in open court and she was afforded an opportunity to speak on her

own behalf, the juvenile court did not violate her due process rights.

      Judgment affirmed. Barnes, P. J., Miller, P. J., Dillard, P. J., Branch, Mercier

and Bethel, JJ., concur. Ellington, P. J., concurs in judgment only. McFadden, P. J.,

dissents.




                                          8
 A16A1501. IN THE INTEREST OF K. J. et al., children.

      MCFADDEN, Presiding Judge, dissenting.

      The evidence does not support the juvenile court’s finding that Haley Weaver

was in criminal contempt during a judicial review hearing, so I respectfully dissent

from Division 1 of the majority opinion. I would not reach the matters addressed in

Division 2.

      Juvenile courts are authorized to “punish an adult for contempt of court . . . for

obstructing or interfering with the proceedings of the court[.]” OCGA § 15-11-31 (a).

I would not condone coming to court impaired. But the record before us does not

support a finding that Weaver “obstruct[ed] or interfer[ed] with the proceedings.”

      “Criminal contempt is a crime in the ordinary sense and the evidence of the

contempt must be beyond a reasonable doubt. Contempt is a drastic remedy which
ought not to deprive one of her liberty unless it rests upon a firm and proper basis.”

In re Harris, 289 Ga. App. 334, 336 (1) (657 SE2d 258) (2008) (citations and

punctuation omitted). “On appeal of a criminal contempt conviction the appropriate

standard of appellate review is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” In re Beckstrom, 295 Ga. App. 179

(671 SE2d 215) (2008).

      The hearing at issue was brief. On January 26, 2016, Weaver appeared with her

attorney. Counsel for the Department of Family and Children Services tendered a

proposed case plan to which all had consented. Counsel for the children’s father

asked that his petition to legitimate be granted. Through her counsel, Weaver

consented; and the trial court granted it. The parties then reported that they had

nothing further.

      At that point the court asked the department’s attorney about the dispositional

report, including the indication that Weaver had not submitted to a drug screen. The

department’s attorney responded, focusing on the issue of the mother’s engagement

with the children, but also stating that the department had not been able to reach the

mother for a drug screening and that it was going to ask Weaver to take a screen that


                                          2
day. Asked to respond, Weaver’s counsel followed the lead of the department’s

counsel and addressed engagement and visitation with the children.

      The judge then addressed Weaver directly. He asked if she was willing to agree

to the department’s request for a drug screen that day. Weaver replied, “Yes, sir.” The

judge ordered Weaver not to leave the courtroom until the screener was ready to take

her for the drug screening. He again addressed her, rather than her counsel, and asked

if she understood. Weaver again replied, “Yes, sir.” Thereafter, the judge ordered

Weaver to go with the screener. After the screening was completed, the parties

returned to the courtroom and the screener announced the results were “non-negatives

for oxy, opiates, THC, amphetamines, and methamphetamines.”

      The judge asked Weaver if she wished to be heard, and her counsel answered

on her behalf, stating that she was not in a position to dispute the results, that she had

admitted using marijuana and pain pills in the past few weeks, but that she could not

explain the methamphetamine. Despite counsel’s response on his client’s behalf, the

juvenile court judge again asked Weaver directly if she would like to explain the

results. She replied, “ No, thank you.”

      The judge then announced his finding that she was in contempt and ordered

that she be immediately taken into custody. The judge stated that his reason for the


                                            3
contempt ruling was that she was in an impaired condition which limited her ability

“to communicate effectively with your attorney so that he can represent what your

wishes really are,” and that she had thereby impeded the court’s ability to do

business.

      Weaver’s counsel asked the judge to reconsider the ruling, stating in his place

that she had been able to articulate her wishes to him and to participate in the case.

The judge responded to counsel’s request by again addressing Weaver directly, “All

right. Ma’am, you’re in the custody of the sheriff.” The judge then ordered the case

continued until February 2, 2017. The day after the review hearing, the juvenile judge

entered a written contempt order finding, on the basis of his “observation of her

demeanor and the test results” that Weaver had been impaired and that her

impairment “render[ed] her unable to proceed, making it impossible for the [c]ourt

to conduct the scheduled hearing, which was continued due to her impairment.” The

court concluded that “[h]er conduct thus falls under OCGA § 15-11-31 (a) in that she

interfered with the proceedings of the court.”

      Weaver did not attend the continued hearing on February 2, 2016, and her

attorney waived her presence. The judge issued a judicial review order, adopting in




                                          4
full the case plan that the parties had agreed to and that had been tendered at the

outset of the January 26 hearing.

      As noted above, OCGA § 15-11-31 (a) authorizes juvenile courts to impose

contempt sanctions upon an adult “for obstructing or interfering with the proceedings

of the court[.]” Contrary to the juvenile court’s findings in this case, there is no

evidence that Weaver obstructed or interfered with the review hearing. On the

contrary, the record plainly shows that she was present and fully participated in the

hearing through her attorney. While the drug screen showed the presence of some

unspecified level of certain drugs in her body, and while we must credit the court’s

finding that some signs of impairment could be discerned from observation of her

demeanor, there is no evidence that Weaver was impaired to the extent that she

somehow interfered with the proceedings. Her counsel stated in his place that she had

been able to assist him. So the mere presence of some unidentified level of drugs in

Weaver’s body “was insufficient to establish contempt beyond a reasonable doubt.”

Hayes v. State, 298 Ga. App. 419, 424 (2) (680 SE2d 508) (2009) (finding that

evidence that defendant appeared in court smelling of alcohol and with alcohol in his

system was insufficient to establish contempt beyond a reasonable doubt). See also

Moody v. State, 131 Ga. App. 355, 357 (1) (206 SE2d 79) (1974) (defendant, who


                                         5
was brought to court by law enforcement officers and not on her own volition, was

not subject to contempt merely for appearing there in a drunken condition).

      The January 26 hearing was continued, not because of Weaver’s condition, but

because the judge chose to incarcerate her even though she had in no way interfered

with the proceedings. Unlike in Hayes, supra, where the possibility of impairment

“led the trial court to vacate Hayes’ earlier plea,” Hayes v. State, 298 Ga. App. 419,

423, 680 S.E.2d 508, 512 (2009), nothing compelled the trial court to continue the

hearing. Indeed, when she did not appear at the continued hearing, the court simply

proceeded in her absence and adopted the case plan agreed to by the parties at the

start of the original hearing.

      Because there is no evidence that Weaver interfered with the court, the

judgment of contempt should be reversed.




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