Opinion
No. COA 15-867
04-19-2016
IN THE MATTER OF: CAROLINE CARRITHERS
Office of the Guilford County Attorney, by County Attorney J. Mark Payne and Deputy County Attorney Robert W. Brown III, for appellee Guilford County Department of Health and Human Services. Caroline Carrithers, pro se contemnor-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Guilford County, No. 13 JA 100 Appeal by contemnor from order entered 10 February 2015 by Judge Angela C. Foster in Guilford County District Court. Heard in the Court of Appeals 4 April 2016. Office of the Guilford County Attorney, by County Attorney J. Mark Payne and Deputy County Attorney Robert W. Brown III, for appellee Guilford County Department of Health and Human Services. Caroline Carrithers, pro se contemnor-appellant. HUNTER, JR., Robert N., Judge.
Caroline Carrithers appeals from an order entered in district court holding her in civil contempt. Carrithers contends the trial court erred by holding her in civil contempt. We vacate the civil contempt order.
I. Factual and Procedural Background
This appeal arises out of a juvenile abuse, neglect, and dependency proceeding brought pursuant to Chapter 7B of the North Carolina General Statutes, In re: S.M., in which Carrithers is not a party. In February 2013, the Guilford County Department of Health and Human Services ("DHHS") entered into a voluntary case treatment plan with S.M.'s parents. The treatment plan included placement of S.M. in a non-relative, non-licensed foster care placement with Carrithers and her husband, who were friends of S.M.'s parents. DHHS obtained non-secure custody of S.M. on 26 September 2013, but continued placement of S.M. with Carrithers. However, disagreements soon arose between DHHS and Carrithers over the care, custody, and control of S.M., and DHHS moved S.M. to a licensed foster care family on 21 November 2013.
Carrithers responded to the removal of S.M. from her care by canceling S.M.'s upcoming doctor's appointment without informing DHHS and repeatedly attempting to obtain S.M.'s confidential medical records. Carrithers also filed multiple administrative complaints against DHHS personnel and their attorney, and sent a complaint about DHHS to a Guilford County Commissioner. Additionally, Carrithers filed various legal actions and motions involving S.M., including a motion to intervene in the juvenile case, a motion proposing dispositional alternatives in the juvenile case, a motion for an ex parte emergency custody order, a civil complaint seeking custody of S.M., and a petition to terminate parental rights and for adoption of S.M. All of Carrithers' filings were either dismissed or denied by the district court.
Concerned that Carrithers and her husband were obtaining and releasing confidential information from the juvenile case, DHHS subpoenaed them to appear at a juvenile hearing on 15 January 2015. Carrithers appeared at the hearing, but her husband did not. DHHS moved for a continuance because Carrithers' husband was not present. The trial court allowed the continuance, but permitted the guardian ad litem ("GAL") to question Carrithers regarding her appearance at S.M.'s foster home and her distribution of confidential information. Carrithers declined to answer any questions, asserting her rights under the Fifth Amendment. The trial court informed Carrithers that given the nature of the GAL's questions, her answers were not protected by the Fifth Amendment. The trial court ultimately held Carrithers in civil contempt and directed a bailiff to detain her until she agreed to answer questions.
While being escorted out of the courtroom, Carrithers resisted the bailiff and began to argue with Judge Foster, whereupon Judge Foster held Carrithers in direct criminal contempt and ordered her to serve seven days in jail. Shortly after Carrithers was taken into custody, her attorney indicated that she desired to purge herself of the civil contempt and answer questions. Carrithers appeared in court again later that afternoon, apologized for her earlier behavior, and freely answered the questions posed by the GAL. The trial court released Carrithers from the civil contempt and reduced the criminal contempt sentence to time served.
Carrithers filed written notice of appeal from the civil contempt order on 11 February 2015. The record on appeal does not include a copy of the written order holding her in civil contempt. Instead, Carrithers included a statement wherein she claims she was never served or otherwise provided with a copy of the civil contempt order. On 11 August 2015, DHHS filed a motion objecting to the content of the record on appeal and the timing of the filing of the record on appeal, and asked this Court to dismiss Carrithers' appeal or strike her filed record. This Court denied the motion by order entered 26 August 2015, but permitted DHHS to file objections, amendments, or a proposed alternative record on appeal with this Court on or before 4 September 2015. DHHS filed objections to the record on appeal on 9 September 2015.
Carrithers' appeal from the criminal contempt order was to the superior court for a trial de novo and that order is not at issue in this appeal. See N.C. Gen. Stat. § 5A-17(a) (2015). --------
DHHS filed its appellee brief on 19 November 2015 and included a redacted copy of the civil contempt order in the appendix to its brief. The civil contempt order was filed on 10 February 2015, and the certificate of service attached to the order by the GAL does not list Carrithers as a party served with the order.
In response to obtaining a copy of the civil contempt order, through her receipt of DHHS's appellee brief, Carrithers filed a motion with this Court on 4 December 2015, asking for leave to file an amended brief and for this Court to strike DHHS's brief and impose monetary sanctions against DHHS. By order entered 22 December 2015, this Court allowed Carrithers' motion for leave to file an amended brief, but otherwise denied the motion. Carrithers' appellate counsel filed a motion to withdraw as counsel on 5 January 2016, which this Court allowed. Proceeding pro se, Carrithers filed an amended brief with this Court on 19 January 2016.
II. Jurisdiction
Generally, parties may not immediately appeal from an interlocutory order. However, if an interlocutory order "affects a substantial right" then the order is immediately appealable. Hausle v. Hausle, 226 N.C. App. 241, 244, 739 S.E.2d 203, 206 (2013). "The appeal of any contempt order . . . affects a substantial right and is therefore immediately appealable." Thompson v. Thompson, 223 N.C. App. 515, 517, 735 S.E.2d 214, 216 (2012) (quoting Guerrier v. Guerrier, 155 N.C. App. 154, 158, 574 S.E.3d 69, 71 (2002)). Because Carrithers appeals from an order holding her in civil contempt, the order affects a substantial right and is thus immediately appealable.
III. Standard of Review
"The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Trivette v. Trivette, 162 N.C. App. 55, 60, 590 S.E.2d 298, 302-303 (2004) (quoting Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997)). The standard of review for alleged violations of constitutional rights is de novo. State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009).
IV. Analysis
A. Civil Contempt Holding
Failure to comply with a court order constitutes civil contempt so long as the order remains in force, compliance still serves the purpose of the order, the noncompliance of the contemnor is willful, and the contemnor is able to comply or able to take reasonable steps to comply with the order. N.C. Gen. Stat. § 5A-21(a) (2015). Rule 58 of the North Carolina Rules of Civil Procedure requires an order to be "reduced to writing, signed by the judge, and filed with the clerk of court." See N.C. Gen. Stat. §1A-1, Rule 58 (2015); Onslow County v. Moore, 129 N.C. App. 376, 388, 499 S.E.2d 780, 788 (1998). As a result, for civil contempt, the order being disobeyed must be in writing, signed by the judge, and filed with the clerk of court. Carter v. Hill, 186 N.C. App. 464, 465-66, 650 S.E.2d 843, 844 (2007), Onslow County v. Moore, 129 N.C. App. 376, 388, 499 S.E.2d 780, 788 (1998).
If service of an order is challenged, the test is whether the record establishes "substantial compliance" with Rule 5. Macon v. Edinger, 303 N.C. 274, 280, 278 S.E.2d 256, 259 (1981). Rule 5 of the North Carolina Rules of Civil Procedure requires "[e]very order required by its terms to be served . . . ." N.C. Gen. Stat. § 1A-1, Rule 5(a) (2015). Service may be made by delivering or mailing a copy of the papers upon the party's attorney of record and, if ordered by the court, also upon the party. N.C. Gen. Stat. § 1A-1, Rule 5(b) (2015). Pursuant to Rule 58, the party who prepares the order must serve a copy of the order upon all other parties within three days after the order is entered. See N.C. Gen. Stat. §1A-1, Rule 58 (2015).
On appeal, Carrithers argues she was improperly held in civil contempt. Carrithers contends she did not violate a written order and the trial court's findings of fact did not support holding her in civil contempt. Additionally, she contends Appellees erred by failing to serve her a copy of the civil contempt order. We agree.
Here, the trial court entered the following relevant findings of fact to support its conclusion holding Carrithers in civil contempt of court:
13. GAL Attorney Advocate then requested that Caroline Carrithers be placed under oath and questioned about her presence at the prospective adoptive home of the aforementioned juvenile.
14. Caroline Carrithers after taking the stand and being sworn to the truthfulness of her testimony, stated her name, but then attempted to take the 5th and refused to answer the question regarding whether or not she and her husband were present at the prospective adoptive home on January 1, 2015.
15. Attorney Caroline [sic] Woodruff indicated at that time that she represented the witness, Mrs. Caroline Carrithers. Mrs. Woodruff was given an opportunity to explain how the protection of the Fifth Amendment applied to the question at hand. Her arguments were not persuasive and the Court concluded as a matter of law that the Fifth Amendment did not apply to the question posed by Attorney Wright.
16. The Court explained to Caroline Carrithers that the Fifth Amendment protection did not apply.
17. The Court then ordered Mrs. Carrithers to answer the question and instructed the GAL attorney advocate to restate the question. Upon the question being restated Mrs. Carrithers again refused to answer the question. The Court then instructed Mrs. Carrithers that she could be held in civil contempt for her refusal to obey the Court's directive to answer the question and went on to explain the effects of a civil contempt finding. Once again the Court ordered Mrs. Carrithers to answer the question and Mrs. Carrithers refused once again to answer the question.
Although the trial court contends Carrithers violated an "order," the trial court was referring to an oral instruction from the court. At the hearing on 15 January 2015, Carrithers asserted the Fifth Amendment in response to a question about her whereabouts on a particular day. Upon continuing to assert the Fifth Amendment in response to questions, the court instructed Carrithers to answer the questions and warned her she would be held in civil contempt if she did not comply. The trial court held Carrithers in contempt, stating, "When she comes back and apologizes, you know it's always been my rule if you apologize for your behavior, I'll let you out." That afternoon, approximately three hours after being held in civil contempt, Carrithers again appeared before the trial court. Carrithers responded to questions, no longer asserting the Fifth Amendment. The trial court said, "[T]hat clears the civil contempt."
On 10 February 2015, the trial court entered its order of civil contempt. The certificate of service attached to the trial court's contempt order shows Appellees served a copy of the order to Robert Brown, a Deputy County Attorney and Stacy Burch, an adoption social worker. The certificate does not list Carrithers nor her attorney at trial, Carolyn Woodruff.
Therefore, Carrithers purged the civil contempt before the written order was filed. Carrithers violated an oral instruction and not a written order. Because Carrithers did not have notice of the written order and Appellees did not substantially comply with the service requirements of Rule 5, the statutory requirements have not been met. Civil contempt requires the violation of a written order signed by the judge, filed with the clerk of court, and served on the contemnor. Lacking these procedural safeguards, the order of contempt is void.
V. Conclusion
For the foregoing reasons, we vacate the trial court's order holding Carrithers in civil contempt.
VACATED.
Judges DAVIS and ZACHARY concur.
Report per Rule 30(e).