Ark. Dep't of Human Servs. v. Hellyer

521 S.W.3d 158

ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant

v.April and Ricky HELLYER and Minor Child, Appellees

No. CV–17–43

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered May 10, 2017

Andrew Firth, Office of Chief Counsel, for appellant.

No response.

BRANDON J. HARRISON, Judge

The Arkansas Department of Human Services (DHS) appeals an order finding County Supervisor Denise Gibson in contempt of court and ordering her to complete 160 hours of community service, imposing a suspended sentence of three days in the county jail, and imposing a $200 fine to be paid by providing $200 worth of children's books to the court. On appeal, DHS argues that (1) Gibson was not provided sufficient notice and opportunity to defend the criminal-contempt charges in violation of her due-process rights, (2) the circuit court's finding of contempt is not supported by substantial evidence, and (3) the fine of $200 worth of children's books is not a proper sanction. We affirm.

On 6 September 2016, the Madison County Circuit Court exercised an emergency seventy-two-hour hold on twelve-year-old A.H. as part of an ongoing Family In Need of Services (FINS) case. The order explained that A.H.'s parents and grandparents could not meet her mental-health needs; that all placement options had been exhausted; and that the parents agreed to placement with DHS with the goal of reunification with the family. The court's order was not followed, however, and A.H. was returned to her family that night.

Two days later, on September 9, A.H.'s attorney ad litem filed a motion for citation of contempt against DHS, alleging that Denise Gibson, the DHS county supervisor, had authorized caseworker Antoinette (Toni) Johnson to release A.H. to her parents and that such action was in direct violation of the court's order. The motion asked that DHS be ordered to appear and show cause why it should not be held in criminal contempt. DHS filed a general denial to the allegations in the motion.

The court held a show-cause hearing on September 23. Niki Rowland, the Madison County juvenile probation and FINS officer, testified that after the court issued its order exercising the seventy-two-hour hold, she contacted DHS caseworker Toni Johnson and asked her to pick up A.H. at the regional juvenile detention center (JDC). Rowland said she left a copy of the court's order at JDC as well. Later that afternoon, Rowland received a message from Johnson asking for A.H.'s grandmother's phone number; Rowland returned the call but got Johnson's voicemail. The next day, Rowland contacted Johnson and found out that A.H. had been returned to her parents. On cross-examination, Rowland confirmed that it was her understanding that it was Johnson who had returned A.H. to her family. According to Rowland, Johnson said that she had spoken to her supervisor and with the DHS attorney "and that's what they had advised her to do."

Toni Johnson testified that on September 6, at approximately 1:30 p.m., she was informed by Rowland that Judge Zimmerman had taken a seventy-two-hour hold on A.H. and that the judge wanted A.H. put into a group home or some other appropriate placement. Johnson called Vantage Point about getting A.H. assessed; she also called her supervisor, Denise Gibson, who told her that "the Judge cannot take a hold on a delinquent." Johnson said that Gibson instructed her to call the DHS attorney, Rielle Parrish, to discuss it. Johnson arrived at JDC around 5:00 p.m. and picked up A.H. along with the court order. Johnson said she briefly looked at the order but did not speak to Gibson or Parrish again; instead, she drove A.H. to her grandparents' home, which is adjacent to her parents' home. Johnson stated that Gibson never asked to see the court order and that Gibson told her to release the hold and take A.H. back to her parents. Johnson also said that she was following her supervisor's instructions and that she had no willful intent to disobey the court order.

Denise Gibson testified that she received a phone call from Toni Johnson on September 6 regarding the emergency hold on A.H. Johnson told her that the judge had placed a hold on A.H., and when Gibson asked why, Johnson said she did not know. According to Gibson, she then said, "[W]ell, the Judge can't just take a hold on a delinquent. There has to be a reason. We need to find out what's in that Court Order." Gibson told Johnson to call Ms. Parrish and ask her what was in the order. A short time later, Johnson called Gibson again and said that she had spoken to Ms. Parrish "and Ms. Parrish did not have a copy of the Court Order, but she [Parrish] stated that we could release the hold." Gibson responded that they could not just release the hold and asked to see the court order. Johnson told Gibson that she would get a copy of the order, and Gibson told Johnson to "let [her] know what it [said]." Gibson said she did not speak to Johnson again that day, however, and she "assumed since she [Johnson] was gonna get the Court Order that she looked at it, figured out what we could and couldn't do per the Court Order and had followed through with that." Gibson explained that a seventy-two-hour hold is not a disposition in a delinquency case "without notice or a reason," and that was why she wanted to know what that reason was.

Gibson said that she found out the next day that the hold had been released. When asked why she had not followed up with Johnson to find out what the order said, Gibson explained, "I trust my workers a lot." Again, she said that she assumed Johnson had seen the order and followed it "or she would've called me to clarify and ask questions." She agreed that she was ultimately responsible for the actions of her caseworkers.

On cross-examination, Gibson stated that she would not authorize the release of a hold without a court order and that she had not authorized the release of the hold in this case. She also said that Johnson had violated a court order approximately two years ago by releasing a hold on some children. Gibson denied that she had willfully violated the court's order. She also agreed that the reasoning behind the court order was irrelevant and that the order should have been followed regardless.

Sarah Ashurst, a family service worker who works with Johnson, testified that she had seen several instances of Johnson not following court orders or DHS policy, which she (Ashurst) reported to Gibson. She also testified that on September 6, she assisted Johnson in finding a placement for A.H., but later "Toni told [her] she was releasing the hold on [A.H.] to the family."

After hearing arguments from counsel, the circuit court found DHS in contempt of court and found that the "ultimate responsibility" fell on Gibson. The court specifically found Johnson's testimony credible. The court ordered Gibson to perform 160 hours of community service to be completed by December 25 and to pay $200 in the form of coloring books and other books to the court. The court also suspended her three-day sentence in the county jail "for six months on the condition that court orders are followed." In its written order filed 20 October 2016, the court found that Gibson had authorized Johnson to release the emergency hold on A.H. The court further found

by clear and convincing evidence that Ms. Gibson, as DHS supervisor, directed, told Ms. Johnson that "the judge cannot take a 72 hour hold on a delinquent" and that Ms. Gibson willfully failed as a supervisor to take reasonable steps to follow-up to ensure this Court's 72 hour hold order was followed.

The court ordered that Gibson's community service be performed by 4 January 2017 and that the children's books be provided by 2 November 2016.

DHS filed a motion for reconsideration and stay pending appeal on 25 October 2016. In that motion, DHS argued that the court should reconsider its contempt order because (1) Gibson's conduct was not willful, (2) the emergency-hold order was not sufficiently definite in its terms and did not specifically name Gibson or impose any duties or requirements on her, and (3) the motion for citation of contempt and show cause did not put Gibson on notice that she would personally be subject to contempt sanctions. DHS further argued that Gibson's constitutional rights were...