Patricia Hanson, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 1, 1997
• Docket: 2899953
• Status: Unpublished

Opinion

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.

- 2 - 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

- 3 - 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

- 4 - 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

- 5 - 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

- 6 - 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

- 7 - 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

- 8 - 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

- 9 - 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

- 10 - 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

- 11 - 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

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

- 12 - 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.

- 13 -