Morgan v. Foretich

MORGAN, Appellant, Jean Elizabeth FORETICH, Appellee.

Eric A.

No. 88-1599. Appeals.

District of Columbia Court of Sachs, Stephen H. A. with whom Juanita Argued May 1989.* Vanderstar, Roe, Crowley, Adrian N. John Aug. Decided 1989. Pash, Dale, Lyle Jeffrey and G. Allen Vacating Opinions Aug. Order 1989. D.C., brief, Washington, were on the Judgment Sept. appellant. Church, Va., Mittleman, Elaine Falls appellee. Cooke, Jr., Corp.

Frederick D. Counsel at filed, the time the memorandum was Reischel, Counsel, Deputy Corp. Charles L. Prager, and Lutz Alexander Deputy Asst. Counsel, D.C., Corp. Washington, sub- mitted a memorandum as Friend of the Court. MACK, FERREN,

Before BELSON, Judges. Associate FERREN, Judge: Associate dispute this unfortunate over child custody visitation, Dr. Jean Elizabeth daughter has hidden her minor father, from the court and from the child’s husband, Morgan’s former Dr. Eric A. consequence, Foretich. As a jail twenty-three been in for over months— August since 1987—for civil appeals of court. from a trial She 16, 1988, denying order of December (filed September motion for release 1988). relitigate Morgan does not seek to ruling this court’s her confinement for contempt initially was lawful. See (D.C.1988), 546 A.2d 407 cert. — denied, -, 790, 102 (1989) III). (Morgan L.Ed.2d 781 But she argued in the trial and stresses again appeal, confine- that her continued record, sup- supplemental *This court remanded the received and received briefs plemental parties from the trial court on June on June governing right process ment violates her to due un- not be the consideration in a civil der the fifth contempt amendment. case that arises out of such a proceeding. Nor is vindication of the trial specifically, Morgan More contends that authority ultimately at court’s stake here. although jailing contempt for civil is a le- Important as these concerns are—and we measure, gitimate, pu- coercive it becomes important believe that few can more in a be possibility nitive once there is no realistic society protect with laws intended to chil- compliance that it will induce with a court parents dren from is anoth- abusive Morgan —there order. stresses that she never prevail particu- er concern that must in this comply order to with proceeding: lar' due of law. Irre- pro- her child because she is determined to context, spective contempt once the civil tect the child from who power is shown to have failed in its intend- sexually daughter. claims has abused their purpose ed that failure is manifest on incarceration, Morgan argues that her ac- —and this record—the court must release the cordingly, punitive, has become and that jail. The trial contemnor court and punishment hiding further her child for can authorities, however, prosecuting justified only duly be she convicted They may turn to not without recourse. contempt criminal or some other crime. anyone, Mor- criminal sanctions for such as court, hearings The trial after and oral gan, who has taken the law into her own argument, agreed Morgan’s under- with example, may hands. The for initi- motion, standing of the denied the law but contempt criminal proceeding ate a sub- concluding on December that de- ject right jury to a' trial before months, spite incarceration for sixteen ordered for a term incarceration gan had not sustained burden show exceeding six months. there no “realistic or sub- was ruling We our below. stantial likelihood” that continued confine- elaborate ment her to surrender her would cause daughter. argument After oral on Mor- I. gan’s expedited appeal, we remanded the In late the trial court awarded Mor- 26, 1989, May supplemental record on gan custody daughter minor and of her findings solely conclusions “based rights for Fore- ordered liberal visitation occurring relevant facts and circumstances early Morgan alleged tich. In period 1988.” after December sexually abusing Foretich the child. was 19, 1989,

The trial court on June after In November the trial court held hearings argument, again further and oral hearings allegations on these and related incarceration for concluded parties motions in connection both with coercive, properly was still custody and visitation. In December Morgan again punitive had failed —that except the court denied all the motions carry despite her burden to show change a minor in Foretich’s visitation incarceration, possi- “there no reasonable rights. February began In outstanding bility compliance with the deny Foretich the to visit his child. produce her child.” order to motions, response to more the trial court record, including We reviewed the have July concluded 1986 that had and conclusions prove by preponderance failed to 16, 1988, and June 1989. We December sexually evidence that Foretich was abus- rulings are conclude the trial court’s the child. The court held therefore supported by the record. We refusing of court for to allow the an order to must reverse and remand with visitation and issued an order of incarcera- Morgan from confinement. release stayed pending tion appeal. that was Af- so, ter doing recognize appeal, that the child’s resolution of the issues on in- cluding ultimately judgment the con- affirmance of the of con- best interests —while tempt, Morgan incarcerated, pro- briefly relations trolling in the domestic issue Thereafter, then released. ceeding custody and visitation—can- Foretich’s visi- over 19, 1987, hearing, Morgan testified that she August tations resumed. On the court’s orders two-week, unsupervised fused court ordered that Foretich had sex- begin- she believed of the child Foretich because visitation explained the their child. She ually denied Mor- abused ning August 22. This court belief, included state- for her which gan’s stay pending motion for of that order basis child, Morgan’s own observa- re- ments appeal. August On pro- tions, by lay persons opinions make the child available for visita- fused to the court interacted with August tion. the trial who had On fessionals again jail and her cell and Morgan Morgan held once described child. August added adjustment prison ordered her incarcerated effective life. She her by she either delivered the the prison unless and until that she was sustained community court’s social child to Foretich or to the and support of members of the Morgan acknowledged services division.1 inmates. of other purge she could her con- that she knew later, September Thirteen months on returning the child to Fore- tempt by either 1988, Morgan for writ of petition filed or, by returning the child tich short of (1981), corpus, 16-1901 habeas D.C.Code § Morgan jurisdiction of the court. Court, naming Superior as defen- testified, however, that she not com- Morgan’s Plaut and jailers, dants William options she ply With either these Morgan argued that be- —that Hallem Williams. going jail was the route believed the cause she would never protect daughter. Three her available order, purpose civil the coercive Morgan’s on be- other witnesses testified and, contempt could not served there- Pyle, Mor- half. The Reverend Caroline fore, that her continued incarceration vio- Kleinman, priest, psychia- gan’s Carol right process. lated her to due On Novem- Michel, trist, the Honorable Paul and 8, 1988, court, Morgan’s the trial ber over fiance, Morgan’s gan’s all testified about objection, merger of the ordered habeas her adjustment prison life and about petition proceed- into the domestic relations stay jail long as she be- resolve to ing, deeming petition the a motion for to be necessary protect the child. Fore- lieves contempt. relief from the order of civil tich did not offer evidence. Morgan serve The court also ordered petition Foretich with the and to habeas 15, 1988, On December and defen- add Messrs. Plaut Williams as denying motion opinion an oral the issued proceeding dants in the domestic relations Morgan failed to show that had because solely on the issue of the incarceration. possibility or “there is no realistic substan- 13, 1988, confine- the trial court likelihood that her continued On December tial further, and, relent” hearing Morgan’s for ment will cause her to held a on motion Morgan’s “Dr. con- contempt. At failed to show that relief from the order of civil had abeyance pending the re- history procedural case is detailed other issues held 1. The of this judgment opinions of con- published of this court. The mand. We affirmed the 1986 in three first, Foretich, (D.C. Morgan tempt conclusion that 521 A.2d 248 as well as the trial court’s I), 1987) by (Morgan Morgan preponderance concerned the 1986 order had not shown incarcerating Morgan contempt. We abused the child. for evidence that Foretich had the (D.C. Foretich, qualified right held that civil contemnors have 546 A.2d 407 In — U.S. -, being denied, public proceeding 1988), before incarcerat- to a cert. III), (1989) record to the trial court (Morgan ed. We remanded the we af closing hearing, the judgment to articulate the basis and of civil firmed whether the best interests present well as to determine that underlie the order of incarceration child, rights coupled privacy so, with the and doing appeal. that we concluded opponents reputational or other interests of supported trial court’s determination record hearing, outweighed Morgan’s open and of the proved Foretich had had not hearing. public public’s to a and, consequently, the child abused ordering (D.C. discretion court had not abused its Morgan v. 528 A.2d 425 visitation with Foretich. 1987) II), the child’s two-week (Morgan the trial court's reviewed contentions, except rejected Morgan’s other response We to this court’s remand or- reversing forfeiture the court-ordered der in I and affirmed security hearing. bond. We also addressed closure pur- outstanding produce finement no serves a court order to coercive punitive Therefore, pose wholly and is now in nature child. said the “reme- rights.” in violation of her constitutional sought by dial to be end achieved [Mor- gave The trial court several reasons gan’s] as it incarceration exists is still via- denial this conclusion: the recent of relief ble.” courts, this court federal sup-

likelihood friends II. her, porters may the fact desert that Mor- child, gan miss her increasingly will A. probability realize upon finding of civil con Incarceration professional talents —all caus- waste of tempt designed to a remedial measure her to relent and the child. compliance enforce a court order. See timely appeal. filed a After oral States, 384 U.S. Shillitani v. United argument, we for additional find- remanded 16 L.Ed.2d solely ings and rele- conclusions based M.T., 37, 43 (D.C. (1966); 550 A.2d D.D. vant facts and circumstances since the De- 1988). may purge herself of A contemnor hearing. response, tri- cember 1988 at jail and obtain release from hearings held al court additional June order. any by complying time with that and, 1989, 19, again, once denied June 44; D.D., A.2d at In re See 550 Grand The court reiterated its motion. 420, (3d Jury Investigation, 600 F.2d 423 concern about the child’s welfare. The Cir.1979). imprison This control over one’s “public court then noted and liti- contempt pro distinguishes ment a civil position” gation that she would never deliv- and, ceeding proceeding a criminal from that er the child to Foretich added power to accordingly, justifies state’s Morgan had discussion” “avoided affording without the usual incarcerate purge other she could her con- alternative: safeguards jury. of indictment and Shilli tempt by returning the child the court’s 370-71, tani, 86 at 384 at 1535- division of social services or the District clear, however, that 36. Once it becomes Department of Columbia’s of Human Ser- compliance, will not coerce incarceration (DHS). emphasized also vices The court imprisonment ceases— the rationale for placed that the child not be pu changes its remedial character but parent either on her return would be process requires the con- nitive—and due (cid:127)initially experts. a team evaluated Crededio, 759 temnor’s release. See re unlikely The court “It is that then found: (7th Cir.1985); v. F.2d 590 Simkin continued will cause Dr. Mor- incarceration (2d States, 715 F.2d 36-37 Cir. United directly gan to deliver the child CBS, Inc., 1983); 642 F.2d Soobzokov Foretich at time within foreseeable Montana, (2d.Cir.1981); Lambert 545 . than if for reason Dr. Mor- future no other (9th Cir.1976) F.2d 89-90 Based on gan’s personal pride.” its deci- The test to determine whether initially not to over the sion turn longer is coercive is wheth confinement no return, Foretich trial there is no er the contemnor has shown longer “is alternative no stated this likeli or “substantial possibility” “realistic then the court.” The court conclud- before ac confinement hood” that continued will “were the ed that this alternative See, purpose. e.g., complish its coercive issue, [Morgan’s] this order court would 37, 38; Simkin, Jury F.2d at Grand trial immediate court fur- release.” 425; Farr, Investigation, 600 F.2d In re found, however, that because ther Cal.Rptr. Cal.App.3d alternative— had not addressed her second (2d Dist.1974); Seidl, 65 N.J. Catena v. returning the child to court’s social (1974)(Catena A.2d had division or to DHS—she still services I). no Determining whether incarceration sustained her burden show there coercive, and thus has incar- become “reasonable” compliance punitive, easy task. Resolution of is not an ceration would lead the court's order. See Grand specu- anee with question “inevitably far more 600 F.2d at 425. Investigation, Jury of traditional lative than resolution [the] in- prediction “a factual because issues” in- predictive nature Given prediction concerns volved and ... trial court enough for the quiry, it is hard likely effect uncertain matters as the such judgment. In most cir- make a sound upon particular of continued confinement individual_” cumstances, therefore, likely to be it is 38; Simkin, 715 F.2d at judges, who have even harder (2d Parrish, 782 F.2d see In re testify, to as- the contemnor not observed Cir.1986). compliance with the likelihood of sess the critical issue at the court’s order. The “The contemnor conscientious therefore, outset, standard for re- is our testifies ly believe at the time he [or she] ruling. gener- viewing the trial com that incarceration will not coerce ... Felder, 548 A.2d ally United States may be “al pliance,” prediction (D.C.1988) (discussing standards for 60-65 Parrish, tered continued confinement.” fact, questions of reviewing questions of that, al 782 F.2d at 328. It follows law, law, fact and questions mixed testimony that he though the contemnor’s trial court discre- matters committed to she is relevant tion). determination, the trial court trial court’s testimony accept need not the contemnor’s B. Crededio, 759 F.2d at as conclusive. See 592-93; States, appellate courts have been care- Not all Sanchez v. United (2d Cir.1984); Simkin, reviewing F.2d ful to discuss the standards for F.2d 37; rulings the effect of contin- at 600 F.2d trial court on Jury Investigation, Grand 425; on civil contemnors. Dep’t at Health ued incarceration King v. Social & 793, 802, the critical Servs., 110 756 P.2d courts have addressed Wash.2d Some 1303, (1988) (en banc). punitive between coercive and 1309-10 Other distinction factors, determinative, indicating whether a none incarceration without while is relevant, question is at issue or not. age also such as the and health of constitutional II; I; contemnor, King. Others Jury Investiga see Grand See Catena Catena Seidl, process or tion, 425; acknowledged 68 have that due 600 F.2d at Catena (1975) may punishment be at N.J. 343 A.2d cruel and unusual (Catena II), incarceration, analyze whether a length have failed to issue but degree inquiry affects the 600 F.2d at constitutional Jury Investigation, see Grand 425; II, accorded the trial court’s 68 N.J. at 343 A.2d at deference to be Catena (due process); analysis. rea and the contemnor’s own stated own See Crededio (cruel see, punishment). Still refusing comply, e.g. In re and unusual sons for Farr that, (S.D.N.Y. implied Ford, have stated or F.Supp. 261-62 other courts Thomas, fixing ceiling a 1985); F.Supp. the federal statute In re 984 when factors, (S.D.N.Y.1985).2 contempt civil for Even these other incarceration for grand jury however, fusing testify before a may provide not a clear indication involved, months) is see (usually eighteen whether there is no realistic 1826(a) (1982), process con- compli- due incarceration will coerce 28 U.S.C. continued § {Morgan), King, child is better off 110 Wash.2d at 756 P.2d at In {King), is better off when the incarceration of a father for contemnor which concerned seclusion, bring young dependency kept then we do not understand son to a is refusal to a extending imprisonment safety contemnor’s hearing, physical how the court said "the Although endangered relent. well-being will cause the contemnor to of a minor child concern, well-being in- King’s is of tremendous defiance of the court child’s Mr. continued for the sake of the example kind of factors carceration of the contemnor order. It is an of the strong deciding» incen- weigh the contemnor has a whether to child when the court should (and away keep the child from the court for civil tive to continue or terminate incarceration order) disagree. point with the court contempt.” is to therefore will not We must punishment practical purposes identify is for all contemnor, factors that could cause a contemnor coercion. the contemnor is satisfied either that not relent. If longer do not ex- cerns arise until incarceration confinement bears a reasonable statutory ceeds the maximum. relationship purpose See San- he which [or chez, 31; Simkin, at 725 F.2d at 715 F.2d is committed a substantial federal con- she] 37; Investigation, 600 F.2d at Jury Grand relating to stitutional claim denial of due & n. 26. courts These have reasoned Lambert, present.” 545 F.2d at Congress attempted to draw Indiana, (citing Jackson v. U.S. punishment, line between coercion (1972); 32 L.Ed.2d 435 unreasonable, line is this and that Director, Inst., 407 McNeil v. Patuxent courts, accordingly, should not substitute drawing judgment by their “finer lines (1972)). short, under the circumstances Congress already than drawn....” case, legislatively-created this absent at Jury Investigation, 600 F.2d See Grand pro- presumption against a denial of due during particular cess time frame operating premise from the when incarceration, question whether 1826(a) applicable, pro- 26 U.S.C. due § gan’s for civil is no incarceration eighteen concerns do not arise until cess coercive, punitive, presents a imprisonment passed, have these months concern. substantial constitutional adopted have abuse-of- federal courts concern, do Given this constitutional period discretion standard of review for the situation, Sanchez, not confront Sanchez, up eighteen months. 725 F.2d Simkin, Jury Investigation, and Grand 31; 37; Simkin, F.2d at Grand remedi- where the determination whether a Investigation, 600 F.2d at 428. See Jury punitive al has become incarceration Parrish, (no F.2d at abuse of also discre- committed the trial court’s sound civil con- discretion release tion, only for of discre- reversible abuse months).3 prison after seven temnor implies Trial discretion tion.4 statutory ceiling We do confront a “ incurring re- 'right wrong to be without case, Congress has not de- however. ” versal,’ States, 398 v. United Johnson period incar- fined a of time within which (citation omitted); (D.C.1979) A.2d District of ceration ‘inevitably’ discretionary ruling “does not arguably evoke Columbia courts does not acceptable result.” only lead to one process. concerns about due States, 920 Wright v. United 508 A.2d ques- not decide the We therefore need Johnson, (D.C.1986) A.2d at (citing 398 lawfully period whether there can be a tion 363-64)). discretionary A rul- sustainable contempt immune of incarceration for cor- ing, therefore, unquestionably is not But, process a due even attack. rect; demonstrably incor- simply it is permissible, are period such a were we appellate It “requires rect. for 23 satisfied that incarceration of ‘indicia assure itself that certain congres- months—5 than a months met.” rationality and fairness’ have been sionally-imposed ceiling another con- Johnson, Felder, 398 (citing 548 A.2d at 62 sufficiently require long to text —has been 362). contrast, of an at our review A.2d issue. us to address the fifth amendment process to- alleged of due cannot violation agree Court of We with the United States results, range acceptable includ- lerate a it is Appeals for Circuit: “Where the Ninth “wrong.” As may be alleged ing individual’s one or more that that the duration M.T., D.D. v. 550 one a case no statu- of abuse of discretion.” At least where 3. ceiling (D.C.1988) (citing Bryant, tory incarceration for civil Ollie A.2d In re involved, Jury Simkin relied on and Grand (D.C.1988)). was Investigation to hold A.2d The decision adopt an however, abuse-of-discretion party litigant contempt initially, a recognizing possible consti- a standard without quite question the constitutional different from King, Wash.2d at tutional limitation. See con- whether continued incarceration 802-805, 756 P.2d at process there is temnor violates due once in- realistic incarceration 4. We have the trial court’s decision said that compliance. duce party "will a in civil whether hold only upon appeal clear show- be reversed on a the issue whether therefore, confront issues, We therefore constitutional we determination —that (with appropriate error view for carry failed to her burden Morgan has fact-finding to the trial court’s deference possibility or sub- is no realistic show there role) “only possible one with a view to incarcera- continued likelihood that stantial Wright, A.2d at 920.5 outcome.” daugh- her to surrender tion will cause This of fact or of law.7 question ter —is C. may at question outcome-determinative reviewing for trial court error when inquiry, involv- appear a factual first to be jury, may set case is tried without a particularized determina- ing as it does a aside the court’s order for errors of law relevant the circumstances tion about errors un may not reverse factual Simkin, 715 F.2d contemnor. one findings “plainly court’s are less However, seem- in other instances of support” wrong” or “without evidence particu- about ingly factual determinations 17-305(a) (1981). This them. D.C.Code individuals, such as whether an act § lar that, reviewing for errors of means even or “voluntary” person was “seized” or law, “arrested,” defer to the trial court’s are we must ultimate issues these “clearly law, they questions especially unless are be- fact deemed 52(a), erroneous,” implicates “un a constitution- Super.Ct.Civ.R. cause the answer is- right.8 Conceptually, perhaps, these al supported by the record.”6 considering process 104 S.Ct. 5. One federal court not due (1984). predic- L.Ed.2d 502 limitations has written ”[s]ince involved,” “resolu- tion is in contrast with the presents case so-called mixed 7. Sometimes a issues," judge tion of traditional factual "questions questions and law. These are of fact "virtually both as to unreviewable discretion are admitted or in which the historical facts established, procedure he will use to reach [or she] [the] undisputed, and the rule of law is conclusion, and as to the merits of conclu- [the] satisfy the statu- the issue is whether the facts Simkin, sion” about continued incarceration. way, tory put whether or to it another standard however, emphasize, 715 F.2d at 38. We must applied established rule law as speaking appellate that this court was from the not violated.” Pullman-Standard facts is or is administering relatively position comfortable Swint, n. 456 U.S. review. an abuse-of-discretion standard of mixed Such 1790 n. true that an court is While it reviewed, ultimately, questions are sometimes second-guess positioned a trial well but, often, ques- questions of fact more continuing perceptions about the coer- Felder, A.2d at 61-62. Com- tions of law. power particular of incarceration on a con- cive however, engages monly, “in some the court temnor, very diffi- we are also aware that this unmixing, whereby subsidiary, fact- measure culty justify permitting a trial court to cannot issues, 'clearly erro- reviewed under the like escape altogether, especially when the review ultimate, issue, standard, law-like neous’ and the dimension. We cannot issue is of constitutional ” ‘de novo.’ Id. at 62. is reviewed "virtually unreviewable” exercise of settle for discretion when due of law is trial court States, A.2d 8. See v. United Ruffin at stake. (D.C.1987) suspect (question voluntar whether police headquarters, ily accompanied or was 17-305(a) amendment, interpreted § 6. We have D.C.Code is violation of fourth arrested in court, (1981) findings by appellate that the of fact with defer question to mean of law court, conflicting sitting jury, without a are of trial when court’s resolution ence due trial testimony), 2827, — denied, U.S. -, they clearly “presumptively 108 S.Ct. correct unless are cert. (1988); by v. unsupported Auxi 927 Hawthorne or the record.” 100 L.Ed.2d erroneous 580, (D.C.1986) 416, States, Kraisel, (D.C.1983); A.2d 586 504 er v. 466 A.2d 418 see United confession, totality Jones, 982, (D.C.1986); under of (question whether A.2d also Bell v. 523 992 circumstances, 543, voluntary question of law was is Flynn LaVay, A.2d Co. v. 431 Edmund J. indepen (D.C.1981). appellate court must resolve Supreme has which The Court 546-47 findings deferring of dently trial court’s finding 'clearly while erroneous’ when al "A is said: though denied, it, voluntariness), cert. 479 support of the re facts issue there is evidence to (1986); 992, 593, S.Ct. 93 L.Ed.2d 594 viewing U.S. 107 the entire evidence is left court on 868, States, Gayden 492 A.2d 872 v. United that a mistake definite and firm conviction (1985) suspect (question was seized whether United United States v. has been committed." ques U.S. 364, 395, Co., meaning is of fourth amendment S.Ct. within Gypsum 333 68 States 525, 542, giving (1948). due deference law for court while See also Bose tion of L.Ed. 746 92 fact). States, Inc., findings of trial court’s Corp. United v. Consumers Union of 8 low, ques- subsidiary sues are best facts characterized as mixed several of found supra See unsup-

tions of fact and law. 7. by note the trial court are themselves instances, too, In these we defer to the trial sup- the record do ported and thus not underlying resolution of the factual ruling. port the court’s ultimate In such (unless erroneous),9 clearly issues circumstances, setting un- after aside the applying legal the correct standard to these findings, supported it- court subsidiary answering say facts we we are may self decide the case entire question of law. Dayton See Bd. Educ. record. of Brinkman, 443 U.S. 526, 534-37, 539-40, case, out, present it as turns 2971, 2977-79, 2980, 99 61 L.Ed.2d S.Ct. need not whether decide United States United States (1979); 720 question ultimate determination resolves Co., Gypsum 364, 394-99, 333 U.S. 68 S.Ct. question of fact or of law or a mixed of 525, 541-44, (1948); United 92 L.Ed. 746 fact and law. it Even if were best charac- cf. 10 Shakur, 817 F.2d (2d States v. 197 terized a question of “ultimate fact” Cir.) (in finding reviewing court under “clearly trial may set unless be aside of Bail Reform Act 1984 that conditions “unsupported erroneous” or record,” imposed reasonably see D.C.Code § 17-305(a); Super. could be trial, supra presence appel- 52(a), 6,11 defendant’s at Cit.Civ.R. note we would assure because, weigh may have to reverse as elaborated be- late record evidence itself court Indeed, Hawthorne, (deference (1944). principle A.2d at 1525 rule or "will 504 586 9. findings finding unerringly distinguish trial court’s of fact on issue of "volun- factual they support Pullman-Standard, legal tariness" where have substantial conclusion." 456 U.S. record); (deference Gayden, 492 A.2d at 872 likely at It is more at findings deciding court of fact wheth- finding an outcome-determinative meaning suspect er was "seized” within question of deemed a law when a constitutional Zannino, amendment); fourth United States See, presented. e.g., Corp.; issue see Bose (deference (1st Cir.1986) 798 F.2d 546 Review, Monaghan, generally Fact Constitutional underlying findings trial court’s of fact when recently 229 The Court Collum.L.Rlv. determining question pretrial novo de whether noted, however, that "no broader review regulatory purpose detention and had exceeded simply because constitu [it] authorized ... punitive). become case, findings at tional or because the factual case.” issue determine the outcome 10. One court "ultimate fact” has described Taylor, S.Ct. Maine v. 2440, 477 U.S. the determination whether there is a substantial (court (1986) likelihood the contemnor’s continued confine- appeals setting erred in aside district court’s compliance ment will result in with the court's importation that Maine’s ban on of live did order. not indicate whether requirements Hughes v. baitfish satisfies terminology intended to mean that Oklahoma, one, 441 U.S. S.Ct. question wholly limiting ap- was a factual (1979), Farr, thus does violate pellate Cal.App.3d L.Ed.2d at review. See Clause). Cal.Rptr. Commerce at 654. said, we in at one All this note least occasionally Appellate to resolve courts have similar to the one we confront here— context particular findings whether that determine pretrial with- whether duration of detention facts,” litigation outcome of the subject are "ultimate out bail exceeded constitutional limits—the clearly Super.Ct. erroneous test Appeals States Court for the First United Pullman-Standard, 52(a), Civ.R. 288, 456 U.S. at see Circuit made “a de novo determination —with (issue 102 S.Ct. at 1790 of "intention underlying find- deference to the district court’s Title VII of discriminate because of race" under Zannino, ings United States v. of fact....” fact, Rights "pure question Civil Act of 1964 is accord, (1st Cir.1986); United F.2d 52(a)’s clearly subject erroneous stan- to Rule Claudio, (2d 806 F.2d States v. dard”), reviewing Gonzales questions of law for the Cir.1986) (appellate apply must "broader Corp., see Bose clearly case, test standard of review” than erroneous (in product disparagement issue of at 1965 findings significance since district court’s "have first defense un- "actual malice” in amendment of Sullivan, on the constitutional issue whether continued der York Times v. 376 U.S. New limitations”). (1964), detention violates due question 84 S.Ct. 11 L.Ed.2d law). and Claudio can best be char- Supreme Zannino noted that the Gonzales of The Court has rulings questions fact questions acterized on mixed of and of law distinction between of fact law, supra illuminating and see with the ultimate never note "is self-executing.” not an test often States, being law the Baumgartner determination one of v. United L.Ed. 64 S.Ct. court. jail to “coercion gone had primarily on factor or if trial court relied —that begin- begun”: Morgan just just specified by Congress not for evalu had factors flee), impact litigation losses ning to to feel the ating propensity defendant’s cert. courts; her denied, in the federal 484 U.S. in this court and her; might supporters desert L.Ed.2d 85 friends and regret abandoning her come to she would III. miss her and she would practice; medical will stay jail. We daughter too much In the second set We turn to the merits. percep- trial court’s second-guess the not findings, June after Mor- dated litigation impact Morgan’s twenty-two tion about gan had incarcerated for been but, clearly losses; finding by itself is months, the trial court the evi- reviewed the trial court’s con- support Morgan’s stated intentions not to insufficient dence of clusion, for the order, see no record basis as her rea- and we comply with its as well findings, not de- three which were refusing comply adjust- and her other sons for thus The court from discernible evidence jail. ment to conditions rived reflects that speculative. The record required not to were correctly noted that it was system was Morgan’s community support Morgan’s intention never to accept avowed 1988; had that she See, strong in December e.g., the court order. comply with 592-98; Sanchez, practice by medical December Crededio, closed her 759 F.2d at found, and, ac- according to friends and The then 725 F.2d at 31. court peace about however, quaintances, appeared to be unlikely that it “is that continued it; daughter that her de- and that her claim incarceration will cause Dr. Morgan’s an- danger in favor of directly Dr. Foretich at cuts liver the child future, incarcerated if intention to remain any time the foreseeable nounced within the court’s order. Morgan’s per- than Dr. rather than for no other reason if this pride.” The court added that sonal sup- court’s were Even way could were the which hearing, the time of the first portable at contempt, the would order purge the incarceration, six months of the additional her immediate release. testimony Morgan coupled with the however, find, The court also went on hearing, give rise others at the June unambiguous na- evidence of three of the court’s “[n]o to solid inferences that presented ture has been incar- believing continued four reasons for child to court social servic- her Morgan to relent are cause ceration will Department es or the of Human Services” now. simply not sustainable purging —Morgan’s alternative for second yielding pressure signs shows finding, the contempt. Based on this daughter missing her account of pur- the remedial trial court concluded that court itself practice, and the trial medical poses of incarceration could still be served community support found that relief from confine- and that the motion for system had increased June accordingly be Furthermore, supple- ment should denied. in its fallen off.12 support this conclusion. record does not ruling mentary of June reasons. of these court mentioned none

A. In its December presents problem. This order, differen- trial court did not First, unsupported by the record we find the likelihood gave in tiate between reasons the trial court most of the two of her acceding to one or the other disbelieving Morgan’s 1988 for December complying the court’s comply with alternatives testimony she would not to contin- were order if incarceration In this set August 1987 order. believing reasons for ue. The trial court’s gave four rea- findings, the trial court comply with Morgan might after at the time concluding months sons for —sixteen 1,000 just port group over has increased findings, 12. In its June 5,000.” sup- [Morgan’s] over membership that "the found therefore, order, apparently applied Morgan emphasized public the that has to that equally During to either the the court she would never deliv- alternative. may something er the child to Foretich. It also be past changed, six months support her public true to sustain for the trial Mor- court now believes that deliberately Foretich; position, avoided gan never will deliver the child to option, to public discussion her turn yet, except referring Morgan’s to designated to social child over one “personal pride,” the trial court did agencies. Morgan testified at service But explain this conclusion. Given the terms of 13, 1988, hearing that she the December remand, however, our assume the we must clearly options; understands her two that previous findings trial court intends its to equates she the two because of the risk force, remain in absent modification. unconditionally turning over that the child Thus, must still assume trial court eventually to the court turn- will result they sufficiently powerful believes reflect ing Foretich; she the child to and that over compliance pressure Morgan’s to coerce produce will therefore not the child as with the second alternative. quired. nor Neither trial court this court testimony, light Morgan’s In we see obliged Morgan, to believe but because the problems June two with the trial court’s reasons on which the trial court relied for finding. place, In the first discounting Morgan’s resolve six months unambiguous of an found evidence strong “[n]o to ago longer enough are no over- nature ... that will not refusal, come a matter her or the child court social services “personal pride,” to turn the child over Department of Human Services.” But and because three of four finding we can see for this basis any operative reasons are no “experienced it had court’s statement that (if were), they event ever we are hard degree difficulty determin- an obvious rejection pressed to sustain the trial court’s Morgan objected to the ing whether Dr. Morgan’s testimony that she her having supervised child visitation order, including part no [;] appears it that she wanted father ... option. her second ” ‘no,’ T saying ‘yes,’ avoid don’t know.’ same; and, in are not the These two issues B. event, contrary indi- trial court’s 1988, Morgan In December testified that posi- cation, Dr. we observe that equated for purg- she the two alternatives concerning supervised tion visitation her because she believed crystal consistently stated and Foretich is turning was the child over to the court hearing clear from the record. turning her over to Foretich. tantamount response address, specifically, more It is true that June We therefore testify finding Morgan did questions, that to the court’s the trial court’s June 1989 agree daughter’s might no that to her Morgan failed to demonstrate there is she Fore- supervised Foretich possibility, if incarceration contin- visitation with realistic if child, ues, he Morgan will to free herself tich admitted had elect abused if (now seven) willing option was to visit by exercising to turn child father, such visitation designated agency. social service with her over Morgan con- part therapy regime of a supplemental find- As the But, sidered “safe.” time did clear, two alternative methods ings make intimate, testify, gan even let alone purging have been avail- turn the child over to the court’s she would jailed in since she was able social services division or to DHS absent fact, August the trial court con- these conditions. September hearing ducted a finding might do so if fully understood make sure that continued, true, It the court did not options. incarceration these two findings, Morgan’s testimony in December advert to trial court stated its June

H experts might initially rec- contrary. importantly, appointed 1988 to More only supervised visits with either inexplicably equated the court the issue of ommend that, parent....” implies This statement supervised visitation with the issue of turn- court, unsupervised are services or to the trial visits the child over to court social And, event, any it does Morgan clearly equate not also conceivable. to DHS. does visits, issues, and, suggest supervised kind of these in the context of the not two conditions, might hearing, Morgan said she questions asked at the June 1989 on potentially quite consider.13 these issues are different.

Morgan return adamantly has refused to C. juris- the child either to Foretich or to the Morgan ac- diction of the court. While the trial court itself has Because knowledged possibility of the child’s recognized this record that there is no Foretich, supervised with possibility Morgan visitation with will deliver the realistic conditions, speaking Foretich, specified directly she was not child to because by concluding control the context of unconditional there is no record basis for Morgan’s testimony Morgan does not that uncondition the court. has ever believed might option ally surrendering designated her child to a suggest that she exercise the by unconditionally agency troubling a less purge contempt her social services alternative, compelled by the record surrendering designated pub- her child to a we are agency, thereby losing lic all control over to conclude there is no realistic the child’s visitation. The court therefore or substantial likelihood that further incar finding Morgan Morgan complying into had no record basis for ceration will coerce might option. her court’s order to her relent under second child.

Second, findings the trial court’s own support Morgan’s Although accept announced fear of uncon- court need not a con- ditionally turning testimony predictor the child over to a social temnor’s own as a true behavior, Morgan steadfastly agency. They accordingly services rein- of her has Morgan order force the inference that will contin- refused to court’s incarceration, defy twenty-three ue to months of 1987 trial court order. after so, supplied doing reasons has While the trial court has stated that the has clear child, return, increasing support upon initially her not received from some placed community up shore her parent, with either the court has members of the resolve, prac- dismantled her medical made clear that this decision will be tice, acquaint- force until the child “evaluat- has convinced friends and has been experts.” yield, will not and has even appointed ed a neutral team of ances that she open possibility that convinced the trial court that she will This leaves We see no again, once make the child deliver the child to Foretich. could believing that further incarcera- available to as well as to Mor- room delivering the Morgan will coerce into gan Morgan concern that has consist- tion —a refusing to the court social services division or ently expressed as the reason for DHS; reasons for so their That concern is to surrender child. corroborated, alleviated, believing analysis on erroneous based support find no factual statement in a footnote to its June and otherwise court’s findings, calling it “not inconceivable the record. aspect supple- means. Because know what this 13. We note another jail cogen- stay said she will until her child becomes mental that detracts from their her, appear age protect cy. order to it would The trial court noted that "Dr. that, purge could for the child’s on her the trial court welfare, mean bases her refusal obligation protect The court then the court will incarcerate the child.” stay long as she elects to there for the same announced "that the welfare of the child is rele- event, incarceration, concerned as we are for the issue of reason. vant to minimum, continued welfare, not relevant to bases the child’s that factor is to the same extent likely purge question whether the contemnor is her refusal obligation supra protect do not note 2. the child.” We relent. counterpart, recognize necessarily are federal that we U.S.C. We § is, however, venturing predic- point the elusive area of into and, tion, Judge to due the benefit of ob- is entitled law. without Posner, demeanor, dissenting serving another witness we lack access Crededio context, our important to that the record cannot has well summarized concern: data hand, reflect, all. easily if at On the other bright keep We a line between should have record clear- we do a voluminous contempt. Putting a civil and criminal consistent, ly convincing a stand reflects prison up 18 person in for to months budge. will not are that she We (which much time as the is almost as Morgan's incar- convinced that therefore average defendant federal criminal said, can twen- ceration be after years is sentenced to 5 serves who months, ty-three to a effect. have coercive trial, prison), and without a full process requires her release Due safeguards of the criminal none of the jail.14 process, Wright, 3 Practice see Federal (1982), and 2d 705 Procedure: Criminal § release, Morgan’s not ordering we do anomaly system, per- is an in our and express her condone conduct and do not purpose the is not to mitted when on the child’s interest any view where best miscreancy punish past to induce for Foretich, both, nei Morgan, or lies—with specific a act that the law has a to availability of Nor we address the ther. do coerce, testifying in this ease before the remedies, as a contempt other civil such 704, grand jury. pp. at 823-24. id. § Morgan’s the refusal to fine. As as it is clear that the inducement soon moreover, order, to a subject work, contempt the purpose won’t charge of criminal con properly lodged imprisonment lapses, and the continued (1981), entitling tempt, 11-944 D.C.Code § and [person] penal, of the becomes trial, her, however, jury to a see Bloom quires proceeding. a criminal Illinois, 1477, 20 391 88 S.Ct. U.S. Furthermore, (1968), subject while 522 if 759 at 594. we L.Ed.2d she be F.2d months, be released from to for more than six hold that must incarceration York, 90 jail, we share the trial court’s concern see Baldwin v. New U.S. (1970). More the child. We assume L.Ed.2d 437 about the welfare of S.Ct. steps over, may avail the trial court will take whatever other criminal sanctions be her, actions, expect find and Morgan’s example, available to able. agencies appropriate Kid executive will assist amount to a of the Parental violation do not have law napping Act of D.C.Code as well since courts Prevention (1988 disposal. its Supp.) or enforcement resources their 16-1021 to 16-1026 §§ ground suggestion, Maryland all Contrary appellee order on the four Foretich's Goldberg, weighing Rehnquist’s Rostker of interests criteria in Chief Justice (1979), pending appeal granting stay in Baltimore 101 S.Ct. 65 L.Ed.2d a — U.S. -, particular, Bouknight, Justice Dep't were met. Chief con- Social Servs. (1988), issue is not cluded that the fifth amendment 102 L.Ed.2d case, M., likely "important question” which the Court was In re Maurice relevant here. The (1988), granted, a to vote hear and on which Court had cert. Md. 550 A.2d reversing prospect” of court. City Dep't v. Bouk "fair the state Baltimore Social Servs. — U.S. -, equities L.Ed.2d S.Ct. at He also noted that the night, freed, because, mother, (1989), Bouknight Bouknight, stay were who favored a concerns might contempt incar not an alternative means of and ordered the state finding have was held in civil produce protecting Bouknight refusing her the child. Id. child. and cerated before, present case is irrelevant to for two reasons: had abused child been (1) again or asserted fifth amendment feared child would abused privilege against self-incrimination as reason might The mother has refused even be dead. child; (2) refusing produce her where reveal child’s abouts, position might appeal, claiming contrast with on the answer incriminate incarceration; challenges Appeals Bouknight Maryland initial Court of held that her. The challenge separately Bouknight’s Bouknight does violated fifth order against due privilege self-incrimination continued grounds incarceration amendment Rehnquist, presumably, is still Justice claim avail- vacated the order. Chief and sitting —a Justice, granted stay able to her. as Circuit Finally, although compelled accept proposi- we are to re- it difficult While verse the ruling, purposeful litigant trial court’s we note that tion that a can effective- courts, ly deprive temporarily, court has shown fortitude even remarkable long gruelling proceed- power adjudicate in the face of a matter entrusted laws, ings. system to them under our We commend the court’s efforts. difficulty does not alter the nature of civil IV. contempt, holding it nor does warrant We reverse the trial deny- court’s order gan jail any longer if her incarceration ing Morgan’s motion for relief from civil merely punitive. has become The law will contempt and remand the case to the trial simply have to turn to means other than entry court for of an order to release Mor- incarceration for civil gan from the District jail.15 attempt presence of Columbia to secure the of the permit completion child and thus

So ordered. litigation concerning custody unresolved and visitation. BELSON, Judge, Associate concurring: ruling today, In this majority holds that, record, on this in the trial court erred join Judge I in opinion. Ferren’s In do- finding Morgan that carry had failed to her so, I acknowledge dissenting that our establishing burden of that further incar- colleague undoubtedly is correct that the ceration no holds out realistic best interests of the ultimately child are compelling compliance her with the order underlying the central consideration in the jurisdic- that the child be returned to the Family Division case. But granting words, tion of the court. In other the trial keeping Morgan we must consider how in judge’s supported by decision is not jail will serve the child’s best interests. evidence of record. Incarceration will serve the best interests only of the child if there is by Judge some reasonable As the cases cited both Ferren clear, likelihood that it will Judge coerce into judge’s Mack make a trial producing the child. If prediction incarceration at being likely of what a human is this time is no coercive in that to do in the future is difficult to review at sense, level; merely puni- rather has become appellate judicial but under our tive, then the system, for, child’s best interests are not such review is called and the advanced at all governs continued incarceration. statute which this court’s review Instead, likely further incarceration Superior proceedings Court tried with- be attended by continuing jury provides stalemate1 out a for reversal of a trial which, during Judge aptly puts judge’s findings Mack so they of fact if are without it, missing proceedings child in support these in the evidence of record. D.C. “[a] protecting power (1981).3 divests a court of the agree Judge to Code 17-305 I § act.” Dissent at 18.2 analysis Ferren’s of the evidence. dispose appeal protect partisan 15. Because we of this on other the child. But is a grounds, case, Morgan's we need not reach conten- in this contested as is Foretich. It is true merging tion that the trial court erred that has adduced evidence from which gan's petition corpus for habeas into the under- a factfinder could find that Foretich is not a fit lying proceeding. domestic relations custodian of the child and therefore should not given custody. But there is also evidence broken, Any despite stalemate would be that could lead the factfinder to have doubts recalcitrance, pro- if the child were troubling about fitness. This conflict through duced the efforts of law enforcement level, subject must be decided at the trial record, agencies; appears but so far as appropriate appellate Judge review. Dixon’s join emphatical- such efforts have been made. I certainly Family view is reasonable that ly Judge agencies expectations Ferren’s proceedings Division cannot be concluded until of the executive will assist in the court’s efforts the child is returned. the hidden child. emphasize Judge frequently 3.While is not I to a Mack referred court”; predictions "protecting upon I also realize called to review trial court behavior, repeatedly failing faulted human the civil context case, I. all indications are that Mor- gan persist will in her recalcitrance missing It This case about child. very face fact of incarceration. The custody as a of a action which arose result years stayed jail pending Family she has two Division. Dr. almost still is in has hidden jail because she strengthens the conclusion that she will not she the child and because refuses reveal be coerced further incarceration. For Family her Division. whereabouts reasons, join Judge I above Ferren’s welfare, the At is the child’s stake opinion. agree I with much of what also upon impar- power to effect orders based written, Judge particular Mack has her findings, capacity of an inter- tial and the parties statements about the conduct wrong, ac- party or ested —whether leading up Morgan’s incarceration and circumvent the find- cuser accused—to indication, Judge similar to that of Fer- instituted, ings neutral legally of a arbiter ren, judge that the trial has dealt consci- third and effect an innocent entiously with most difficult case. I dis- therefore, Judge position, party. Ferren’s however, agree, conclu- dissent’s are irrelevant that the child’s best interests purely judge sion that the trial can make of due against claim constitutional discretionary decision as to whether process, is untenable. is contemnor should be released. It incum- missing welfare this child has The of bent this the entire court review Family primary concern of the been the supports it record and decide whether girl little was Division since when the judge’s ruling. the trial old, and record before only nine months the justifying grave us the reveals evidence MACK, the Judge, dissenting: by the trial court for Associate concern voiced In current welfare of the child. November goes prove far to Judge opinion Ferren’s Mencher, 1984, Judge in an Bruce exhaus- depends you that reach the conclusion evaluating respective opinion tive the traits you preoccupation the issue frame. His parents, as as well personalities and of process rights Dr. Eliza- with the due of custody grandparents, granted both sets Morgan, unalloyed beth considera- rights to the and liberal visitation mother controlling tion vital of the other issues (and the record rights to the father sealed appeal, myopic, this is under the cir- and child”). The in “the best interest of the case, uncaring. It has cumstances this having deep and mother described prompted majority decision1 that having abiding love the child and Superior Court stricts discretion nurturing provided environment. arena, in a a conflict poses most vital love impressed with the father’s court was rationale, judicial only with the not child, found credi- his but and concern for rely precedents majority purports testimony life had been marred ble that his instability his upon, prior also of our own decisions because of but a tenor of Judge Mencher many problems. marital this case. joins Although Judge says he only Belson that not situation in which Judge opinion, of such I read his state court has that role. Another instance Ferren's cannot presented trial court sets anything disposi when the joining review than more ment as pretrial pro a criminal is, release in conditions ceeding. be released Dr. must that tion—that If, grants example, order, obey a court simply not because she will that the defendant release on likely basis liberty position we to take in view are not jurisdiction, relevant indi to flee the (D.C.1987) Foretich, Morgan v. 528 A.2d 425 contrary, are to in the record cations appellate M.T., (D.C. II) (Morgan v. 550 A.2d 37 and D.D. may trial court’s reverse the moreover, me, 1988). he It is clear carry finding government failed holding Judge child's Ferren’s embraces Shakur, States v. 817 F.2d its burden. United weighed against a consti be best interest cannot (2nd 1987); Cir. see also United States process, how he could nor claim of due tutional Cir.1985) (9th (re Motamedi, 767 F.2d versi law. so in view of established do finding ng predictive that the jurisdiction). likely to flee the defendant special pains order, took point Supreme out the contrast and the Court of the United between the grandparents Foretich, sets of stay, denied a States —on side, maternal emotionally restrained and 483 U.S. sedate, “perhaps as a result of their em- phasis importance on the high- of the more

ly life,” aspects intellectual and on the II. paternal side, “warm, outgoing openly This is not the first time that Dr. Judge emotional.” Mencher added that the specter has raised the of a constitutional child experi- should have the opportunity to in spite violation to seek her release of her ence this personali- beneficial contrast of attacking defiance of court orders. ties, that Dr. one failure to act urged initial commitment she the best interests of the child been her had that she had been denied a due rights intolerance toward visitation and her right public hearing. to a reject- This court unwillingness to any sig- allow the father argument ed her bringing child, and, nificant role in and held effect that the up the sage prediction, privacy rights in a best interests and the pattern that “if such a outweighed were to continue it Morgan’s right could result in child Dr. to a detriment to the child.” public hearing contempt proceed- in a civil Family Division. preceded months that ruling, (D.C.1987) 521 A.2d assigned before the case was by spe- I); (Morgan II, supra note Dixon, cial Judge order to at least eleven A.2d at 426-27. If the best interests of the Superior other judges Court had handled may against be balanced Dr. Mor- numerous motions and issued orders with gan’s open hearing claimed to an respect rights. judge visitation One committed, being before it stands to reason granted a contempt against motion for the child’s best interests Morgan for refusing with a con- weighed against Morgan’s Dr. claimed noted, sent order. As aspects certain ground to be released on the that she the case are still pending in the trial court. can never be coerced to the child vein, court, In the same this faced with she has hidden. Mathews Eldridge, v. Cf. an avalanche requests Morgan from Dr. 319, 334-35, 902-03, 424 893, U.S. 96 S.Ct. (fifteen appeals relief and for (1976) (noting pro- L.Ed.2d 18 that due motions, ty-nine date, prompting, to conception cess “is not a technical awith entry sixty-seven orders and three writ time, fixed place content unrelated to and opinions), ten kept the welfare of the (quoting circumstances” Work- Cafeteria uppermost in its deliberations. We 886, 895, McElroy, v. ers 367 U.S. 81 S.Ct. suggested appointment guardian of a (1961)), and child, for the expect and as have been that, holding in determining what ed, we reviewed with the scrutiny strictest due, government’s interest must be every request stay for a of the monitored weighed against private liberty property court, by visitations ordered some interests and the risk of erroneous deci- suggesting times provisions additional sions); Department Lassiter v. Social assure that under no circumstances would Services, 18, 2153, 452 U.S. 101 S.Ct. there be an opportunity by for the abuse (1981) (balancing, proce- L.Ed.2d 640 in a alleged by then Morgan. Dr. After we had petitioner’s parental dure to terminate the approved rejection of Dr. rights, the state’s interest the welfare of contention that Dr. Foretich had child, against parent’s the child II, 1, abused the interests supra note 429, maintaining custody 528 A.2d at the care and of her grant we refused children). emergency request Significantly, stay for a the first sentence two- reads, unsupervised opinion week of our visit ordered the tri III “The court, al parties appeal v. 546 A.2d formal to this are the divorc- (D.C.1988) III). H, 410-11 (Morgan parents daughter, Our ed the ultimate banc, sitting en stay party refused to real in interest.” 546 A.2d at 408. imprisonment van attempts for conditional Judge Ferren to use the civil rationale cases, involving im- when contemnor no recalcitrant ishes order ability to with the court’s munized witnesses who have refused to Shillitani, grand key. su testify in criminal and thus use the See trials or before (citing fight against pra, at 1536 juries government’s 384 U.S. at 86 S.Ct. crime, Zeitz, 68 S.Ct. organized support Maggio his conclusion v. 333 U.S. released, (1948)); re that Dr. 92 L.Ed. In Grand only must Investigation, supra, 600 F.2d at Jury the welfare of the child this but that with situa dispute very underly- years, In recent courts faced custody interest —the periods of involving indeterminate be considered tions the commitment—cannot contempt have assessing Morgan’s right for civil rea Dr. to release. confinement lost contrary, that confinement has suggest I these cases soned that once force, punitive it becomes and require affirmance of the trial court’s or- its coercive See, e.g., v. requires release. der. Lambert (9th Cir.1976). Montana, To 545 F.2d 87 By background, briefly I way of allude to such confinements foreclose indeterminate development questionable case that renders line between what is coer and to draw the reliance on her continued punishment, and a federal stat cive what is her release. Embed- calcitrance secure (1989 exists. ute U.S.C. § in Anglo-American ded law is the inherent Supp.); Jury Investigation, re Grand power judiciary to coerce obedience- at 425. supra, 600 F.2d summarily holding to its orders a recal- majority The can draw comfort person citrant as an immunized wit- —such witness” testify grand on- these “immunized jury ness at a reliance who refuses II, supra note or at cases.- In proceeding trial—in “justification is complies. he at held that imprisoning and him until A.2d thus only showing of (Braun), upon a inabili Jury re established Investigation Grand Cir.1979). (3d ty perform performance,” or substantial 600 F.2d year, princi last we reiterated Supreme has characterized Court M.T., A.2d ple supra note D.D. orders, al- such conditional commitment Zeitz, supra, (citing Maggio at 44 though they grow proceed- out of criminal Smith, 411; at Smith nature, ings, civil in therefore valid Moreover, (D.C.1980)). A.2d which indict- imprisonment orders of used cases cannot be the criminal witness constitutionally jury ment support Judge Ferren’s insistence States, required. 384 Shillitani v. United the bearing the status of factors on only 1534-36, 368-71, 1531, 364, 16 U.S. 86 S.Ct. health, (i.e., length of incar age, contemnor (1966). 622 The rationale for coer- L.Ed.2d ceration, contemnor given reasons the safeguards imprisonment cive the without etc.), obey, to the exclusion refusing to for defen- constitutionally afforded criminal confinement, very the of the reasons for keys “the of dants is that contemnors hold continued confine to the can be relevant Id. at prison pockets.” their in their own relevancy Morgan. The ment of Dr. Nevitt, 368, (quoting In re 86 S.Ct. at 1534 in these cases has party a third welfare of Cir.1902)); 448, (8th King v. 117 F. 461 because, factually, theré surfaced Department Social and Health Servic- party. been third 800, 1303, es, 793, 756 P.2d 110 Wash.2d controlling only course, fact, the case—the (1988) (en banc).2 since it 1308 Of bearing re- contempt case a factual impossible coercing what is civil is to succeed case—the perform, the to the instant beyond person’s power a semblance 817, 54, denied, 54 contempt, U.S. 98 S.Ct. L.Ed.2d 2. Even in the context of criminal cert. 434 central, (1977). Notably, nonappearance counts as a process more a where due concerns id.; presence, prior contempt summary proceeding required in the court’s all that is committed here, withholding logic, contempt, child from the like that similar commitment for a contempt presence. Super.Ct. protection is a committed committed in the court’s 42; Hunt, (D.C.), presence the court. Crim.R. In re A.2d (1972); L.Ed.2d 435 In re involving case the refusal of a contemnor Grand . 424; Judge Investigation, supra, 600 F.2d at King, supra Jury a child—is States, footnote, F.2d in a Ferren dismisses this case Lambert United (9th Cir.1976). however, comment, wrong, It is when conclusory “We must case, us that there is no such reasonable disagree.” Supreme In that it tells con- Washington relationship. Dr. continued Court of the State of reversed re- ter finement bears more than a reasonable the decision of a lower safety child whom she minating lationship father who of a the confinement of a jurisdic- caused to be removed from the had refused to reveal the whereabouts of has son, protecting court. In the circum- allegedly abused and ordered re- tion of case, custody action relying of this commitment. The stances contempt.4 separated from the cannot be Second Circuit’s decision Simkin (2d Cir.1983)(an contempt proceeding part States, civil 715 F.2d 34 United “[A] M.T., case), supra given original cause.” D.D. v. immunized witness held that legislative 550 A.2d at 44. Even Dr. express concern for note rely upon a due physical well-being and emotional of chil therefore had dren, claim, here, powerful countervail- power process to coerce com safety pliance supra, crucial.3 interests in the King, was at 1308. Because would defeat that claim absence Wash.2d at P.2d statutory compulsion. passage the mere of time does not trans punitive con form coercive into found that Dr. The trial court id., tempt, 110 Wash.2d at P.2d at sexually proved that Dr. Foretich had not 1309, the trial court could use its broad holding abused the child. This was contempt powers compliance coerce II, affirmed in su- that this court bring with its order to to the court a child 528 A.2d at pra note abuse, allegedly who the victim of III, 409, and supra, 546 A.2d at responsible could therefore incarcerate the spect Supreme Court of the which complied adult until he or she with the certiorari, has denied Mor- United States Id., order. 110 Wash.2d at 756 P.2d at — -, gan v. U.S. majori- The approach says Judge stage at this King, ty’s Fer- release of therefore, ren, presents proceedings, cannot countenanced because custody imprisonment practical purposes frightening prospect for child dis- all “punitive.” Judge in this putes. Ferren’s conclusion is Those who have taken sides to consider that wrong. right only controversy It is insofar as it tells would do well easily abuser could as avail himself us that for due reasons Dr. a child holding as an gan’s majority’s herself of the continued confinement must bear M., 314 relationship purpose could. In re Maurice reasonable accuser Cf. (1988)(mother sus- 550 A.2d 1135 which she was committed. Jackson v. Md. Indiana, held in pected of child abuse well-being may King recognized impor- be en- the of a minor 3. The court also considering King's the dangered by tance of the best interests of defiance of Mr. continued decision, very pur- child in the as this was the example It is an of the kind the court order. pose for which the father had been incarcerat- weigh deciding should of factors the court ed: continue or terminate incarcera- whether to deciding whether a contemnor’s incar- In contempt. tion for civil continue, the trial court ceration should King, supra, P.2d at 110 Wash.2d at significance of the should also consider 1310. appropriate ends to be achieved. It is for the enforcing balance its interests in court compliance to Dis- Court for the 4. The United States District particular a with a order and con- a has declined to entertain trict of Columbia liberty. point, temnor’s At some extended in- corpus of petition a writ of habeas because noncompliance a carceration due to tively with rela- custody pendency suit in the District of the may court order be an abuse of minor of Columbia courts. case, physical safety discretion. In this its accomplish pur- coercive refusing, grounds, to finement on self-incrimination cert, Simkin, child), F.2d at part pose. supra, 715 37. granted in sub See Department City nom. Baltimore So of reasoning nothing is majority’s more The — U.S. -, Bouknight, cial Services v. attempt disguised to hold thinly a than (1989); 109 S.Ct. L.Ed.2d 152 see can find as a matter of this court (father supra suspected of King, also coerced into that Dr. cannot be law refusing pro to contempt abuse held in legal Basic obeying the trial court’s order. child). duce sense, principles, of common course power compel compli- is to why This Any tell this cannot be the case. us that ance, balancing competing and the of inter- question a human as to conduct of ests, custody proceedings. is so crucial to a determination to being is factual one—a missing proceedings A child in these di- case-by-case a made a factfinder on be protecting power vests a of the context, contempt the civil basis.5 charges and contro- act. the tumult of con determination as whether continued case, versy way of this we have compel requires a finement will obedience knowing the child way in what or whom prediction particular human to what a (or psychologically have other- been obviously a being will do the future — wise) onlyWe know abused. predic Since a matter the factfinder.6 rejected Morgan’s allegations. tion, prediction about extent that aspect of the case While the civil valid, a pre can is still human behavior may have from a contest between evolved diction, it who is in best is a factfinder child, parties, party, it is also a third two there a realistic position to determine if is import aggrieved. is This was the who confinement will that continued of a Kiku- Judge Steadman’s wise citation position A in the best coerce. factfinder is yu proverb prior in our decision: “When credibility. A is in factfinder determine grass it that suf- elephants fight is the position to determine whether the best III, supra, 546 A.2d 413. fers.” ability comply contemnor has the order, a that need not con

the court’s fact III. in view Dr. recal cern us here that she can citrance—an admission majority The is to the extent that Moreover, this court cannot but will not. authority there is some the “immunized credit, law, protestation cases, as a matter release witness” that he or she will never of a contemnor finding follow a that the contemnor should relent, it as a matter coerced; nor can we determine wrong unques- cannot be it — fact, very defeat the since this would tionably wrong concluding can —in justification for coercive finding purpose the trial court disturb the Dixon, Judge after a hear imprisonment. possibility” that there is a “realistic case majority’s ing, made fact. that continued con- “substantial likelihood” behavior, may impor- holding it be detrimental Importantly, Supreme ture Court's Corp. any- rely upon review in Bose about constitutional fact tant constitutional concerns States, United 466 U.S. Consumer Union judgment, thing less based than 485, 511, L.Ed.2d 502 upon exposure direct to the contemnor. (1984), Judge opinion, upon Ferreris relied First Amendment context. More- limited over, example, it is the factfinder who called For abdicating it involve our unless person accused of to determine whether duty constitutional norm or to state actual trial, dangerous if released before crime will be rule, independent appellate review of the facts is (D.C. Edwards, 430 A.2d 1321 United States 1981) (en banc), generally warranted even in constitutional denied, cert. Edwards United Monaghan, Fact Constitutional contexts. States, 72 L.Ed.2d 455 U.S. Review, Colum.L.Rev. (1982), mentally person ill and whether case, Many of a but few facts are determinative will, released, danger to himself constitute independently to determine must be reviewed States, 432 A.2d 364 or others. Jones United applied be to them. content of the law to the Moreover, 1981) (en banc), (D.C. aff’d, 463 U.S. only fact review is a where the predictive judgment fu- about contemnor’s contemnor, possibility conclusions about the facts of this case are that no such realistic (emphasis original)); not the exists.” words of a factfinder. In re Dic See also Sanchez v. United (Footnotes omitted; emphasis supplied.) F.2d pose and that the trial court’s decision is F.2d at 38: is the trial tinued make the ond courts, “virtually unreviewable.” his conclusion. conclusion that such confinement is war- There must be an individualized decision. finement or ranted. In re his virtually unreviewable discretion both individual, issues. Since a than his the issue of the certain effect is realistic since court of continued as to the er a civil CBS, Inc., It ... We have A Circuit noted in take is ^[******] conclusion, district confinement will without Grand for these reasons that determination matters as testimony appeals possibility resolution inevitably procedure court that (2d Cir.1984) confinement we think prediction 642 F.2d judge’s Jury Investigation, supra.] rejecting exception, located prediction and as to the merits of requiring a district court utility [Citing from a contemnor on sanction has lost of traditional determination wheth- far more Simkin, has he will use to reach accomplish concerns district having a district court’s no of continued con- (explaining have held that it the discretion to likely to whether con- Thus, Soobzokov v. decision of a (2d Cir.1981); involved States, supra, speculative judge a coercive particular effect of such un- appellate the Sec- its factual Sim- pur- has 725 child, prompting identity of the real mother. Lest this ac- pute between two other has living child as her sends for a sword and has Judge accedes and the other wisdom of Kings 3:16-28. There Solomonhears a dis- unjustifiably wrapped herself in the mantle fact are this case. Dr. in unpersuasive vehicle for heard Dr. standard, tute its though us, fact. The Soobzokov v. approach.7 tion standard of cedure he will use to reach his and as to the merits of his deference it unreviewable discretion ing Simkin, kinson, Credibility motherhood. litigants reasons living borne majority, disregarding Ferren and finding, it judgment 763 F.2d clearly it a child. child between majority’s pronounces Morgan testify. died. Each King ordering nonetheless why Judge It “a is of critical CBS, Inc., supra, rejects required erroneous follows district It would detail. judges Solomon Solomon Judge One women, own. abstract discussion of opts Dixon’s judge woman child has proposes proceeds both as to a most alike, to accord the (2nd them, has justifiably or Yet it clearly be well for Belson have not abuse of discre- speaks When review, significance of the trier-of- each of whom relinquish reported Cir.1985) (cit has conclusion”); to recall the one woman 642 F.2d at decide distressing claims the conclusion, becomes a erroneous degree lived, to substi- to divide for itself Solomon virtually release. and al- all of in 1 pro standpoint, kin from proof burden of and count for Dr. support be taken as noting Judge determine, “the District must position, say I hasten to it is Dr. can, as best he whether the contemnor has Morgan has, beginning, who persuaded him that continued confinement fought to unseal record before us to producing holds realistic a publicly air lurid of evidence she details willingness testify.”). to, See In re Parr- submitted relevant which are but not ish, (2d Cir.1986) (“[I]t of, 782 F.2d determinative curtail visita- believes, tion, whether the judge district based the risk might which run of irre- on all pertinent vocably harming daughter. the circumstances to that She has suggested presumed 7. The District of Columbia anoth- due considerations period approach er of a establishment time legis- attach. This is a matter for the of course —the limiting the duration of conditional confine- lature. period ment for civil time when —a 20 ROGERS, Judge, from Before Chief daughter fugitive

made her a the law. FERREN, MACK, NEWMAN, draw the A factfinder could in- reasonable TERRY, to willing BELSON, STEADMAN, ference to risk harm that she public daughter FARRELL,† to in a forum SCHWELB,* vindicate and Associate her claim the man whom she once with Judges. a has abused his

shared mutual obsession daughter judicial system and that ORDER used) (which exhaustively has she has PER CURIAM. to- protect daughter. failed to Even proclaiming day, proceeding, in this while appearing majority It that a of child, that she never she will voted, judges sponte, this court has of sua protection this for demanding the of banc, it to this ease en rehear strenuously arguing herself that the and judg-^ opinions and ORDERED not at best of the child are issue.8 interests hereby It ment date vacated. filed this Ferren means Judge I do know what not is' by suggesting that of the trial vindication ORDERED the Clerk FURTHER authority not be our con- should shall this for consideration schedule matter commending majority I join cern.9 sitting en banc soon as' before the court as Judge diligence fortitude. I Dixon’s and hereby permits. Counsel are calendar add that one cannot read only would copies of provide to ten the briefs directed transcripts rulings in case without and 10 filed the Clerk heretofore with within fulfilled, concluding that the.trial court.has days the date of this order. tradition, judicial oath finest ROGERS, Judge, and Before Chief I justice “that will administer —without FERREN, MACK, NEWMAN, persons.” spect to STEADMAN, BELSON, TERRY and judge— I trial 'would leave with the Judges. Associate belongs it to deter- where discretion —the underlying de- mine this contemnor’s facts JUDGMENT I hold that at this mand for release. would mo- emergency On consideration time, showing point there been immediate release tion Dr. abuse' discretion.10 III, carrying diligent energetic out the or- and supra, A.2d at 546 Blum, F.Supp. ders of the stated: Swift (S.D.N.Y.1980), a effort and token Probably nor neither our courts courts Enter- do. Sound Storm anywhere perfect deal in world can prises, Keefe, N.W.2d Inc. v. intimately way matters so linked to (Iowa 1973). family can dissolved. We unit formed and day by try. girl grows foremost, little older H my 10.Judge view Belson mischaracterizes she, day. first whom It is and trial suggesting I concluded "that the have seek render the courts must justice purely discretionary judge make a decision can on. moves should be released.” as to whether contemnor M.T., supra 550 A.2d at In D.D. note cases, Although the relied we stated: Ferren, Judge speak distinguished by yet demand, right do unreviewable,” Courts have "virtually being decisions unstinting compliance upon, insist full and suggesting only that the trial court has I am subject who is commands. One their underlying of “coer- fact to determine the obligation obey it order has the (I trigger cibility” note that is the release. necessary fairly, honestly take all and to "inability spoken have in terms of that our cases Village steps Great render it effective. performance." perform or substantial Rose, A.D. N.Y. Neck Estates 428; M.T., II, gan supra A.2d at D.D. v. note dismissed, (2d Dept.1952), appeal S.2d 44.) I reverse A.2d 105 N.E.2d 491 He 303 N.Y. abuse of discretion. thing, prohibited do the she nor * participate Judge did not Associate Schwelb permit to be done his or connivance. it rehearing petition en banc.' Utility Dist. No. I Chelan Roehl v. Public Judge himself Farrell recused County, (1953) P.2d Associate † Wash.2d banc). ; ,,- Indeed, (en case. she he or must from.this pursuant from incarceration the District Contempt Imprisonment

of Columbia Civil (the Act),

Limitation Act Pub.L. 23, 1989), (September

No. 101- and the

opposition thereto Dr. Foretich contest- Act, constitutionality of the and it

appearing Dr. is incarcerated Superior virtue of an order of the Court in a

of the District Columbia issued

proceeding custody of a minor child Family

conducted Division Court,

Superior and that the enactment of requires reconsideration of that

the Act

order, appeal having been taken from Superior denying

an order of the Court Dr. for relief from an

motion of

order of civil an order from refusing

of that court to issue a writ of corpus, it is

habeas

ORDERED and ADJUDGED that the- Superior

ease is remanded to the Court for

entry releasing of an order forthwith Act, custody pursuant to the being prejudice

such release without

proceedings which the trial court con-

duct, release, following respect

constitutionality of the Act. SUMPTER, Appellant,

Kevin H. STATES, Appellee.

UNITED

No. 86-332. Appeals.

District of Columbia Court of

Submitted Dec. Aug. Decided D.C., McCarthy, Washington, Michael J.

appointed by this was on the brief appellant. Atty., Jay Stephens, B. Michael W. Farrell, Atty. at the time the Asst. U.S. Bollwerk, filed, Helen M. brief Tourish, Jr., Attys., Thomas J. Asst. U.S. D.C., Washington, were on brief appellee.

Case Details

Case Name: Morgan v. Foretich

Court Name: District of Columbia Court of Appeals

Date Published: Sep 25, 1989

Citation: 564 A.2d 1

Docket Number: 88-1599

Court Abbreviation: D.C.