Barren Circuit Court Affirmed in Holding Cabinet for Health and Family Services in Contempt

Issue: Whether party may be sanctioned after it has cured contemptuous behavior.

As part of a dependency, neglect, and abuse action, the Circuit Court ordered, in relevant part:

1.) In light of this child’s sibling being returned to the mother’s home for a “trial home visit” by the North Dakota Court until February 2022; the above child shall also be allowed to return to North Dakota for a trial home visit with her mother. Effective immediately the child shall be sent to her mother in North Dakota on a trial home visit. CHFS Muse shall arrange such trial return to North Dakota.

2.) CHFS shall engage any specialty services available to assist with return of a possible child victim of trafficking.

. . .

3.) This court anticipates returning custody to the mother and closing this action on February 8, 2022[,] to allow North Dakota to resume personal jurisdiction over the child. Any party seeking relief from this order shall schedule and file an appropriate motion within ten days.

Subsequently, Mother’s counsel moved to hold the Cabinet in contempt for failure to comply with the order, noting that no attempts had been made to comply with the order. During a hearing, several Cabinet workers and supervisors testified, and laid blame on the local Cabinet workers as to why there had been no compliance. The Circuit Court later ordered the Cabinet to produce emails regarding compliance. Then, the Circuit Court found that several of the witnesses committed perjury as to the reason for noncompliance, finding that the Cabinet supervisors directed the Cabinet workers not to comply with the order. The Circuit Court found the Cabinet in contempt and ordered it to pay attorney’s fees to Mother’s counsel and the guardian ad litem for the additional work they were required to do to obtain compliance with the order. The Cabinet appealed.

The Cabinet argued that the Circuit Court imposed criminal contempt sanctions on it because they were not subject to purgation and that the Circuit Court was not authorized to hold it in contempt because it had complied with the order by the time the contempt was imposed. The Court of Appeals disagreed. It held that compensatory penalties are within the scope of civil contempt, where one purpose of civil contempt is to compensate for the losses the noncompliance occasioned. The Court of Appeals also held that the Cabinet willfully disobeyed the Circuit Court’s order and determined that its findings of contempt were not an abuse of discretion.

Digested by Nathan R. Hardymon