                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                         May 6, 2003 Session

                                  IN THE MATTER OF K.J.K.

                        Appeal from the Juvenile Court for Franklin County
                              No. J00221    Floyd Don Davis, Judge



                         No. M2002-02039-COA-R3-JV - Filed July 2, 2003


In this unusual appeal, the State seeks review of the trial court’s Order granting the appellee
Mother’s Petition for Contempt. We reverse the trial court’s finding of criminal contempt and award
of visitation.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                                  Reversed and Remanded

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
WILLIAM C. KOCH , JR., J., joined.

Paul G. Summers, Attorney General & Reporter; Douglas Earl Dimond, Assistant Attorney General,
for the appellant, State of Tennessee, Department of Children’s Services.

Glen A. Isbell, Winchester, Tennessee, for the appellee, A.K.

                                                 OPINION

        On December 16, 1999, A. K. gave birth to the child who is the subject of this action, K.J.K.
Shortly after the child was born Ms. K. left her with a friend. On January 19, 2000, the State of
Tennessee, Department of Children’s Services (DCS) filed its Petition for Temporary Custody
asserting that the actions of the Mother constituted neglect and that the child should be found
dependent and neglected. The Juvenile Court found K.J.K. to be dependent and neglected on
January 25, 2000.1 On April 19, the Juvenile Court allowed visitation to A. K. for one hour every
Monday and Wednesday. This visitation was to be supervised by DCS personnel. On January 18,
2002, DCS filed a petition to suspend visitation alleging its concern that both the putative Father and
Ms. K. might be infected with hepatitus C. The Department alleged that A. K. had open sores on
her body and mouth, and would encourage K.J.K. to kiss her during visitation. The Department also
asserted that A. K. provided this information and stated that she might have contracted the disease

       1
           This Order was entered March 16, 2000 nunc pro tunc, January 25, 2000.
from her husband. The Motion was not accompanied by any affidavit nor did it contain in its body
any request for an expedited hearing. On January 25, 2002, while the Motion to Suspend Visitation
was pending, and without the benefit of any order from the court temporarily altering the visitation
schedule, DCS unilaterally suspended visitation with the Mother.

         In response to this unilateral action by the Department, Ms. K. filed her Petition for Contempt
in the trial court. On February 13, 2002, the Juvenile Court heard Ms. K.’s Petition. In that hearing,
the court stated the following:

                 THE COURT: We will continue this hearing to March 6th at 1:00 and in the
         meantime they are going to get tested for hepatitis C at DCS’s expense. We will hold
         an evayance for the petition for contempt of court. [sic] And everybody understands
         the ten for one rule? Does anyone not understand what the ten for one rule is?
                 MS. SONGER: I’m not familiar with that.
                 THE COURT: Anybody who withholds visitation under any circumstance,
         there’s a ten for one make-up penalty. For every day there’s ten days for one. I think
         that’s been the rule in General Sessions Court for four years now. That stops a lot
         of visitation problems.
                 MS. BUCK: And you’re telling that’s from today forward.
                 THE COURT: No. I’m telling you that if I find y’all withheld visitation
         without a court order it’s ten days for each day the missed visitation.

         Consistent with the court’s order from the bench, DCS reported on March 6 that G. K., the
Father tested positive for the hepatitis C antibody, but A. K. testified negative. The court heard
further arguments from counsel. Upon their agreement that Ms. K. had missed eleven hours of
visitation at one hour per day as the result of DCS’s action, the court ordered resumption of visitation
and apparently under the “10-for-1 rule,”2 ordered 110 days of consecutive unsupervised visitation.
Pursuant to a Motion for Relief filed by the Department, the court clarified this Order by filing a
Written Order dated July 29, 2002. The Department filed its Notice of Appeal on August 21, 2002,
challenging this Order as an inappropriate exercise of the Juvenile Court’s authority.

        The discretionary nature of the trial court’s authority in determining and dealing with
contempt is a well settled proposition in this jurisdiction. See Hawk v. Hawk, 855 S.W.2d 573, 583
(Tenn. 1993); see also Robinson v. Air Draulics Engineering Company, Inc., 214 Tenn. 30, 37, 377
S.W.2d 908, 912. However, when the exercise of the trial court’s authority amounts to a plain abuse
of discretion, this Court is bound to reverse it. The time-honored distinction between civil and
criminal contempt separates the exercise of a court’s power to compel performance from the
reasonable goal of vindicating the court’s ability to determine controversies and enforce its judgment
by punishing contemnors who flaunt that authority. It is this very punitive nature of the latter which


         2
           Despite the c ourt’s statement from the bench, no portion of the record or arguments of counsel provide written
authority or citation to a local rule. The “10-for-1” rule is of dubious origin and a practice of subjecting all visitation
problems to a single punitive sanction regardless of the fac ts of the case invites re versal.

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compels not only compliance with the proper criminal procedures such as those provided in
Tennessee Rule of Criminal Procedure 42, but also the restrictions placed upon that power by the
statutes. It stands to reason that any court exercising this ominous power should not only guarantee
procedural due process to a criminal contemnor but also tailor its exercise to correct only that
behavior which amounts to the contempt. It is for this reason that the legislature specifically
determined that punishment for contempt may be by fine or by imprisonment or by both. See Tenn.
Code Ann. § 29-9-103; Black v. Blount, 938 S.W.2d 394, 397 (Tenn. 1996); see also Robinson, 214
Tenn. at 36, 377 S.W.2d at 911.

         There is no question in the record before this Court that the Juvenile Court chose to exercise
its powers under the “10-for-1 rule” to punish DCS for its unilateral actions. While the motive of
the trial court in this admittedly sad exercise of state power on the part of the department is
understandable, the punishment is contrary to that punishment provided for by statute, and
unfortunately punishes only the most innocent party in this action, the child. It is not logically
tailored to address only the behavior constituting contempt. In this respect the net is cast too far.
The trial court abused its discretion. The Order of the trial court is vacated. The visitation schedule
is restored status quo ante, and the Department is strongly cautioned against interfering with the
visitation rights of parents without prior court approval, or a proper evidentiary showing of imminent
irreversible harm to the child. Punishing the Department of Children’s Services is not a proper basis
for awarding a windfall to the petitioning party, especially when that windfall may needlessly
endanger the primary person before the court - - the innocent child. The cause is remanded to the
trial court for further proceedings not inconsistent with this opinion, costs of this action are taxed
against the Department.



                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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