Michigan Court of Appeals Holds Criminal Contempt Proper For Parent In Delinquency Case

On September 9th, 2014, the Michigan Court of Appeals held that a 93-day jail sentence for a parent of a delinquent child was proper when the parent failed to submit to drug tests previously ordered by the family court presiding in the son's delinquency case.

In People v  Dorsey et al., Docket No. 309269, the Michigan Court of Appeals addressed the issue of whether it was proper for the family court to enter a contempt order for a mother's failure to submit to drug testing as required by the judge in her son's delinquency case.

The Court first recited the facts of the case.

The criminal contempt proceeding against appellant originates from juvenile delinquency proceedings concerning appellant’s son, Tyler Dorsey. Tyler first came to the attention of the family court in April 2008, when he was charged with three counts of breaking and entering a vehicle, MCL 750.356a(2)(a). Tyler was placed on the consent calendar/informal docket, which he successfully completed on July 3, 2009 . . .

On August 20, 2010, another petition was filed, charging Tyler with first-degree home invasion, MCL 750.110a(2), and minor in possession of alcohol, MCL 436.1703(1)(a). Grohman reported that the Tyler’s biggest problem was a lack of supervision. Tyler was allowed to come and go as he pleased and was seen walking around downtown Howell at all hours of the night. Due to his chronic delinquency, and appellant and his guardian’s inability to control him, Tyler was placed in a residential facility.

Appellant and her daughter, Destiny Dorsey, visited Tyler at the facility and participated in family counseling sessions. According to the counselor’s report, appellant and Destiny both denied that they used drugs and further reported that they did not keep alcohol in the house. Appellant did report, however, that [']she had a serious drug problem several years ago when she got divorced . . . . [Appellant] acknowledged that the only way she knew how to cope with her feelings was to escape by smoking crack cocaine.['] Appellant represented to the family counselor that she had changed and could be a positive parent for Tyler.

Tyler’s behavior began to improve at the facility, and a placement review hearing was conducted on January 13, 2011. Grohman reported that Tyler was doing well and had been granted a day pass for Christmas to see his grandparents. Grohman further stated:

Transportation became an issue due to the fact that the grandparents had to cook and entertain. Tyler’s sister and [appellant] became the next logical choice for a transport. A drug test was requested prior to allowing Tyler to be released to the care and custody of [appellant]. Due to the fact that his sister would be driving, she agreed to submit to a test as well. From the date the test requested and the date [appellant] and Destiny appeared for a test, three days had lapsed. The test would not return prior to Christmas so a decision was made to allow the visit to take place in an effort not to punish Tyler. Unfortunately, both tests returned diluted. A retest was requested. To date, Destiny has failed to appear and [appellant] did report (again not on the day requested). [Appellant’s] test returned negative for all substances.

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In the meantime Tyler’s [guardian ad litem] filed an abuse and neglect petition naming both [appellant] and Kim Ognian as respondents. Since the time of this hearing, Kim’s guardianship has been terminated.

Grohman recommended that Tyler’s facility placement continue and that the family court order appellant and Destiny to submit to random drug tests. Following the hearing, the family court issued an order dated January 14, 2011, requiring appellant and Destiny to [']submit to random drug testing as requested by the Maurice Spears Campus or the probation department.['] The family court further ordered that appellant’s home remain drug and alcohol free and subject to random searches . . .

Appellant reported to Second Chance on January 9 and 10, 2012, but she refused to test both days. After appellant’s second refusal, Grohman filed two show cause motions. Both motions referenced the January 14, 2011 order requiring appellant to submit to random drug tests. The family court granted both motions and ordered appellant to appear and show cause why she should not be found in criminal contempt . . ."

The Court found appellant in contempt of court for failing to abide by the Court's drug-testing order.  The Court sentenced appellant to 93 days in jail, in addition to fines and costs.

The Court's analysis of the criminal contempt sanctions followed.

First, appellant argues that there was insufficient evidence to convict her of criminal contempt because the family court made its findings by a preponderance of the evidence. The family court entered two contempt orders in this case. Both included boxes labeled [']preponderance of the evidence['] and [']beyond a reasonable doubt.['] The [']preponderance of the evidence['] box was checked on both orders. Appellant argues that she was found guilty on the preponderance of the evidence standard; therefore, there was insufficient evidence to convict. The family court, however, clarified that there was a clerical mistake and that its findings were beyond a reasonable doubt. Appellant takes issue with the trial court’s action, stating that the burden of proof is a matter of substance. This argument is unpersuasive. The clerical mistake the trial court was referring to was the checking of the [']preponderance of evidence box,['] not the applicable burden of proof.

Appellant next argues that the prosecutor presented insufficient evidence to convict her of criminal contempt. [']To support a conviction for criminal contempt, two elements must be proven beyond a reasonable doubt. Those two elements are: (1) that the individual engage in a willful disregard or disobedience of the order of the court, and (2) that the contempt must be clearly and unequivocally shown.['] In re Contempt of O’Neil, 154 Mich App 245, 247; 397 NW2d 191 (1986) (citation omitted); see also DeGeorge v Warheit, 276 Mich App 587, 592; 741 NW2d 384 (2007). The defendant must have acted culpably. People v Little, 115 Mich App 662, 665; 321 NW2d 763 (1982).

Appellant argues that there was insufficient evidence that she willfully disregarded or disobeyed the family court’s order. Specifically, appellant argues that she did not act willfully because she was confused about the order and intended to consult with counsel prior to testing. Appellant cites this Court’s opinion in In re Contempt of Rapanos, 143 Mich App 483, 495; 372 NW2d 598 (1985) for the proposition that a person does not willfully violate an order when they act in good faith reliance on an attorney’s advice. Appellant argues that ['][i]f good faith reliance on an attorney’s advice prevents willfulness then a good faith intent to seek legal advice . . . must also prevent the refusal from being willful.['] This argument is unpersuasive.

As stated above, appellant cites Rapanos, 143 Mich App 483 for the proposition that a person does not willfully violate an order when they act in good faith reliance on an attorney’s advice. Rapanos, however, provides no such support. In Rapanos, this Court stated: [']The federal courts have ruled that when an individual in good faith relies upon his attorney’s advice or interpretation of a court order, he cannot be found guilty of criminal contempt since the element of an intentional violation of the court’s order has not been established.['] Id. at 395. Though the Rapanos Court referenced the federal rule, there is no indication that it adopted it. Further, precedent from our Supreme Court holds that it is no defense that the contemn or violated a court order on the advice of counsel. Brown v Brown, 335 Mich 511, 518-519; 56 NW2d 367 (1953); Chapel v Hull, 60 Mich 167, 175; 26 NW 874 (1886). Moreover, even if the federal rule was applicable, appellant has not cited any authority to support an extension of the rule to situations where an individual refuses because she intends to seek the advice of counsel. Accordingly, appellant’s argument is without merit.

The evidence supports the trial court’s finding. There is no dispute that an order was entered on January 14, 2011, requiring appellant to submit to random drug testing at the request of the probation department. The probation department made such a request, and appellant refused. Grohman testified that she did not show a copy of the order; however, Grohman stated she spoke with appellant and appellant was aware of the order. Alcala was present when Grohman spoke with appellant and requested appellant take a drug test. Alcala stated that Grohman explained to appellant that there was a court order, and appellant appeared to understand. Thus, there was competent evidence to support the trial court’s finding that the elements of criminal contempt were proven beyond a reasonable doubt.