NATURE OF THE CASE
This cause is before the Supreme Court of Indiana and the Court of Appeals of Indiana,
Each respondent is charged with willfully and intentionally violating an order of the Supreme Court and the mandate of the Court of Appeals entered in the appeal of a case decided under the Uniform Child Custody Jurisdiction Act (UCCJA), Ind. Code § 31-1-11.6-1 et seq. (Burns 1979 Supp.). See In re Lemond, (1979) Ind. App., 395 N.E.2d 1287, trans. denied and trial court stay dissolved, May 29, 1980.
A criminal contempt can be any act which manifests a disrespect for and defiance of a court. The willful and intentional disobedience of the orders of these Courts can constitute indirect criminal contempt. In re Perrello, (1973) 260 Ind. 26, 291 N.E.2d 698. See Denny v. State, (1932) 203 Ind. 682, 182 N.E. 313. One of respondents' contentions is that there was no intent to violate the orders of these Courts. Questions of intent and good faith in a case such as this are to be decided by these Courts after considering all the evidence. In re Perrello, supra, 260 Ind. at 30, 291 N.E.2d at 701. After hearings on these matters, respondents Arthur, Richardson, Gray and McGaughey were found to be in indirect criminal contempt of the Supreme Court of Indiana and the Court of Appeals of Indiana. Each was fined in the sum of five hundred dollars. Respondent Lemond was found not guilty. This opinion is in furtherance and support of the findings and orders of these Courts wherein the above named respondents were found to be in indirect criminal contempt.
For the sake of continuity, the basic facts from the prior decision of the Court of Appeals will be restated, together with the events that transpired after the Court of Appeals rendered its decision on October 30, 1979. In 1968, Earl Lemond (the father) and Jeanene McCormack (the mother) were married and living in Hawaii. On May 1, 1968, a daughter, Michelle, was born of this union. The marital relationship became strained, leading to a divorce by consent decree entered by a Hawaiian trial court on December 10, 1973. The decree provided that both parties were to have the "care, custody and control" of Michelle, but that Earl Lemond was to have physical custody of the child. The decree also established that, if either party changed residence from Hawaii to some other state, physical custody was to be awarded to the mother, Mrs. McCormack. After the divorce, both parents continued to live in Hawaii. Michelle usually spent several months each summer with various relatives in the Pike County area of Indiana.
In June, 1977, Earl Lemond returned from Hawaii to Pike County, Indiana, and established residence. Instead of returning Michelle to Hawaii at the end of the summer, in accordance with the divorce decree, the father enrolled Michelle in school in Pike County. At this point, the mother came to Indiana and surreptitiously secured Michelle's return to Hawaii. The father countered by bringing Michelle back to Indiana in May, 1978, while the mother was in Europe. The mother's next attempt to return Michelle to Hawaii was blocked by the father.
Thus, on May 19, 1978, Mrs. McCormack filed a petition for the enforcement of the Hawaiian decree in Pike Circuit Court, pursuant to Ind. Code § 31-1-11.6-1 et seq. (Burns 1979 Supp.), the Uniform Child Custody Jurisdiction Act (UCCJA). The father, Earl Lemond, responded by filing a petition to modify the Hawaiian decree.
On appeal, the Court of Appeals, First District, found that under the UCCJA, Hawaii was Michelle's home state. Specifically, the Court of Appeals stated:
In re Lemond, (1979) Ind. App., 395 N.E.2d 1287, 1291. The opinion of the Court of Appeals concluded with the following explicit mandate:
In re Lemond, supra, 395 N.E.2d at 1292. Sections thirteen and fifteen of the UCCJA provide for the recognition and enforcement of out-of-state decrees as though they were Indiana decrees.
Soon after this decision was handed down by the Court of Appeals, counsel for the father petitioned the Pike Circuit Court to stay enforcement of the Court of Appeals mandate, pending further appeal. The Pike Circuit Court, by respondent Richardson, entered such a stay order, pending further proceedings in the Court of Appeals of Indiana, the Supreme Court of Indiana, and the Supreme Court of the United States.
On November 14, 1979, counsel for the father, pursuant to Ind.R.App.P. 11(A), filed a Petition for Rehearing. The mother filed petitions with the trial court and the Court of Appeals asking that the stay entered by respondent Richardson be dissolved. Each petition to dissolve the stay was denied. Subsequently, on December 4, 1979, the Court of Appeals denied rehearing.
Thereafter, Earl Lemond filed a timely Petition to Transfer, pursuant to Ind.R. App.P. 11(B). After reviewing the petition, the brief in support, and the brief in opposition, the Supreme Court of Indiana set the matter for oral argument, which was heard on April 21, 1980. On May 29, 1980, the Supreme Court first denied the father's petition to transfer, then also dissolved the stay previously entered by respondent Richardson.
On the same date, May 29, 1980, the Clerk of the Supreme Court and Court of Appeals sent notices to all counsel of record, informing them that the petition to transfer had been denied and the stay dissolved. In addition, the Clerk of these Courts certified the opinion of the Court of Appeals and transmitted the opinion to the Clerk of the Pike Circuit Court. See Ind.R.App.P. 15(B). The effect of the denial of transfer and dissolution of the stay was to make the Court of Appeals opinion the law of the case. See Egbert v. Egbert, (1956) 235 Ind. 405, 132 N.E.2d 910. Thus, all the issues directly decided by the Court of Appeals opinion were binding in further proceedings in this case. Hawaii had been found to be the home state for purposes of determining any further custody disputes, and that decision was not subject to further attack in Indiana. Accordingly, these Courts presumed and expected that the mandate of the Court of Appeals and the order of the Supreme Court would be honored in all respects and the child would be returned to her mother.
Information to the Supreme Court and Court of Appeals.
On Friday, June 13, 1980, these Courts were presented with an information,
Respondent Judge William D. Richardson issued the writ of habeas corpus in Trial Cause 78 C 71 at approximately 9:00 a.m., but only on the condition that the mother would not execute on the writ until 1:00 p.m., that afternoon. The reason for this delay soon became clear; respondents had engaged in a great deal of maneuvering before 9:00 a.m., that morning. Judge Richardson informed Mrs. McCormack that a new proceeding had been initiated at 8:50 a.m., in the juvenile division of the Pike Circuit Court. According to the order book entry of the Pike Circuit Court, the newly filed petition, under cause number 80 J 20, alleged that Michelle Lemond was a child in need of services. While respondent Richardson indicated that he believed the new action to be an "end run," he did not dismiss the petition; instead, he disqualified himself from acting as judge in the juvenile action. A panel of judges apparently was named, but Mrs. McCormack was not told of this procedure, despite being present in open court with her attorneys. A short time after Judge Richardson's disqualification, James R. Arthur, regular judge of the Daviess Circuit Court, appeared in the Pike Circuit Court, announced that he was the special judge, and assumed jurisdiction in cause number 80 J 20. Obviously, since Mrs. McCormack did not know of a panel being named, she also did not know how respondent Arthur became special judge.
Even though no evidence was presented, and Michelle was not present in court, respondent Arthur specifically found that Michelle was in need of services and ordered a mental examination to be conducted by the Comprehensive Community Health Care Center of Vincennes, Indiana. Judge Arthur reasoned that Michelle should be detained to "determine her mental condition at this time and her probable condition in the future if she is compelled to remove herself to the State of Hawaii." The transcript of June 6, 1980, CHINS Hearing at 20. This finding and order were made over a motion to dismiss and an objection by counsel for the mother. Counsel correctly argued that the trial court lacked jurisdiction to do anything other than enforce the writ of habeas corpus, because the issue of custody had been decided by the Supreme Court and Court of Appeals, and because the Child in Need of Services (CHINS) action was clearly a sham. This argument was made to no avail. The child was ordered turned over to the Pike County Welfare Department, pending the mental examination ordered by respondent Arthur. Mrs. McCormack was, however, permitted a short visit with Michelle. The contempt information further alleged that a second hearing was conducted on June 11, 1980.
The Supreme Court and the Court of Appeals, having been presented with the foregoing information, found probable cause did exist to believe the named respondents had willfully and intentionally violated the mandate of the Court of Appeals and the order of the Supreme Court. Accordingly, on Friday, June 13, these Courts issued an "Order for Appearance and to Show Cause," ordering respondents to appear before a joint session of these Courts on Wednesday, June 18, and show cause why they should not be held in indirect criminal contempt.
Contempt Hearing of June 18, 1980.
Prior to the hearing, numerous motions to dismiss were filed by all respondents, all of which were taken under advisement. Three witnesses testified: Jeanene McCormack, Michelle's mother; R. Stephen LaPlante, attorney for the mother; and respondent Judge William D. Richardson. Respondent Richardson testified that, while he named the panel of judges in the Child in Need of Services (CHINS) case, he did not know how respondent Arthur was ultimately selected as special judge. Richardson did acknowledge, however, that he signed the special judge qualification sheet. Additionally, Judge Richardson testified that, when a petition alleging a child in need of services (CHINS petition) is filed in his court, he follows the statutory procedure.
Finally, respondent Richardson's testimony revealed that he delayed the execution on the writ of habeas corpus in order to allow the respondents, McGaughey, Gray and Lemond, time to move forward with the CHINS proceeding. Attorney David B. Hughes
Contempt Proceeding Transcript at 84-85. Under questioning by Chief Justice Givan, this matter was pursued further:
Contempt Proceeding Transcript at 86.
The testimony of the mother essentially reiterated many of the facts as previously set out. Respondent McGaughey had the following exchange with the mother:
Contempt Proceeding Transcript at 86. Respondent McGaughey did not move to strike the answer.
During the course of direct examination of R. Stephen LaPlante, trial counsel for the mother, respondent Gray's role in this case was disclosed:
Contempt Hearing Transcript at 113-15. However, respondent Gray took the position at the CHINS hearings and before this Court that he no longer represented Earl Lemond and instead purported to act as Michelle's "independent" counsel.
During the course of the testimony in the contempt hearing, the respondents insisted that the transcripts from the CHINS proceeding would be the "best evidence," and objected to other testimony as to what occurred at the CHINS hearings. The transcripts were not available for the June 18, 1980, contempt hearing. However, these Courts did wish to give respondents the opportunity to produce them. Accordingly, these Courts indicated that the hearing would be continued and that the transcripts would be ordered produced for the resumption of the hearing. The Courts then unanimously ruled that respondent Arthur lacked jurisdiction in the case, and ordered that custody of Michelle Lemond be returned to her mother in the presence of the Courts.
On August 15, 1980, respondents Arthur, Gray, McGaughey and Lemond each filed a "Verified Response to the Informations and Rules to Show Cause." These pleadings, in sum, indicated that each respondent:
Thereafter, on August 25, 1980, these Courts found that Special Judge Arthur, attorney Thomas Gray and Pike County prosecutor Jerry McGaughey had willfully and intentionally violated the mandate of the Court of Appeals and the order of the Supreme Court. Notwithstanding respondents' assertions to the contrary, these Courts found that their actions clearly were not taken in good faith. After considering all of the pleadings, the testimony before these Courts, and the transcripts from the CHINS hearings,
On August 26, 1980, these Courts cited before them William D. Richardson, regular judge of the Pike Circuit Court, to show cause why he should not be held in indirect criminal contempt of these Courts for having willfully and intentionally violated the orders of these Courts. Judge Richardson also chose not to contest this charge, and, upon consideration of the information, the testimony presented to these Courts, and the transcripts from the CHINS proceedings,
Transcripts of CHINS Hearings.
While a guilty plea normally terminates a case, we believe it important to elaborate on the evidence disclosed by the transcripts from the CHINS hearings conducted before respondent Arthur. As previously stated, these Courts, after considering the information, the testimony before these Courts on June 18, and, finally, the CHINS hearing transcripts, became convinced that this was not a good faith effort to help a child in need of services. Rather, it was a well orchestrated effort to thwart the orders of these Courts by prostituting the emergency authority of a juvenile court.
At the first hearing, in response to the CHINS petitions, Val Fleig, attorney for the mother, raised several valid questions as to their sufficiency and to the legitimacy of the proceedings.
Transcript of June 6, 1980 CHINS Hearing at 3-5.
This concise and correct statement of the law and the many apparent defects in the CHINS proceeding were totally ignored by respondent Arthur, who, with only the conclusory statements of the CHINS petitions,
On June 11, 1980, the trial court ordered a second hearing, wherein R. Stephen LaPlante again attempted to point out that the case had been concluded and that Special Judge Arthur was without jurisdiction:
Transcript of June 11, 1980 CHINS Hearing at 3-6. If Special Judge Arthur had read the CHINS petition filed by respondent Gray, allegedly on behalf of Michelle Lemond, he would have seen that a restraining order was sought against Mrs. McCormack.
Transcript of June 6, 1980 CHINS Hearing at 9. Clearly, then, respondent Arthur's order of June 6, placing temporary custody with the Department of Public Welfare, had the full effect of a restraining order.
The above-quoted brow-beating was not the only instance where respondent Arthur addressed unwarranted and improper demeaning statements to Mr. LaPlante from the bench. During closing argument after the June 11 hearing, Mr. LaPlante contended the evidence did not support a finding that the child should be detained, and renewed his argument that Judge Arthur lacked jurisdiction and should release the child to her mother. Judge Arthur responded in this fashion:
Transcript of June 11, 1980 CHINS Hearing at 80-81. Of course, Mr. LaPlante was arguing that the evidence would allow only one reasonable decision-the decision to turn the child over to her mother, and thereby comply with the orders of these Courts. Based on the feeble record presented to Judge Arthur, Mr. LaPlante was absolutely correct.
Regarding respondent Thomas Gray, the record is replete with evidence of his bad faith. One example concerned Gray's communications with Mrs. McCormack and her attorneys. Gray called Mrs. McCormack on June 4 and represented to her that she could pick up Michelle on Friday, June 6, at 9:00 a.m. The next day, June 5, Gray made a series of misrepresentations to Mrs. McCormack's counsel, LaPlante. Gray told LaPlante that Earl Lemond was his client, and that they would be "standing tall" awaiting the orders of the court on June 6. Further, Gray informed LaPlante that Michelle Lemond was seeking independent counsel. It developed, of course, that Gray appeared in court on June 6 purporting to
Transcript of June 11, 1980 CHINS Hearing at 17.
As the contempt proceedings began in these Courts, respondents repeatedly claimed that Special Judge Arthur had jurisdiction because, at the time the petitions were filed, there was a danger that Michelle would run away. Upon reviewing the transcript from the CHINS hearings, it became clear to these Courts that this allegation was nothing more than a pretense for Judge Arthur's assuming jurisdiction. Respondent Earl Lemond testified that Michelle never said she was going to run away. At one point in his testimony, Earl Lemond stated that Michelle "sort of wandered off" prior to the scheduled transfer of custody at 9:00 a.m. on June 6, which was also the date of the first CHINS hearing. As a matter of fact, Michelle was never lost. This conclusion is clearly shown by the fact that Michelle signed a petition that day prior to the CHINS hearing in Gray's office, alleging herself to be in need of services. Obviously, only Mrs. McCormack and her attorneys had any difficulty in locating Michelle. The girl also testified at the second hearing that she never told her father she was going to run away.
Each of the four CHINS petitions also alleged that Michelle was afraid of her mother. However, when Michelle testified at the second hearing, the following exchange occurred.
Transcript of June 11, 1980 CHINS Hearing at 68. This was the only specific testimony concerning the "cause" of Michelle's alleged fears and mental problem.
Also included in the transcript of the June 11 CHINS hearing was testimony given by Sheila Tisdale, Michelle's half-sister, regarding the short visitation permitted between Mrs. McCormack and Michelle after two years' separation:
Transcript of June 11, 1980 CHINS Hearing at 74. The Tinchers were persons chosen by the Pike County Welfare Department who apparently cared for children who might be in need of services.
Purely as a matter of equity and common sense, it is inconceivable how respondent Arthur could have ordered further detention of Michelle after the June 11 hearing. The CHINS petitions were vague and conclusory. The record is replete with inconsistencies, and without question demonstrates respondents' bad faith. The record is likewise totally devoid of credible evidence to support respondent Arthur's orders.
Respondents argue that, when Judge Richardson granted the writ of habeas corpus, these Courts' orders were thereby fully complied with. A similar position was advanced in State ex rel. Purcell v. Sullivan Circuit Court, (1950) 228 Ind. 410, 92 N.E.2d 843. In that case, a circuit court judge entered an order which seemingly complied with a writ of prohibition issued by the Supreme Court. The facts behind the trial court's order, however, demonstrated that the order was merely a sham, designed to avoid the force and effect of the writ. In finding the circuit court judge in contempt, the Supreme Court cautioned that "[t]his Court... is not blind," and proceeded to look past the trial court's order to his actual behavior. Id. at 425, 92 N.E.2d at 849. Similarly, these Courts are not blind to the true nature and purpose of these respondents' conduct.
Special Judge Selection Procedure.
Before proceeding to the jurisdictional question in this case, we shall speak briefly to the striking procedure used to select respondent Arthur as special judge in Cause Number 80 J 20, the CHINS case. Without question, neither Mrs. McCormack nor her attorneys were informed that a panel had been named or that any striking had occurred or would occur. The Pike Circuit Court's entry for this striking reads as follows:
Transcript of June 6, 1980 CHINS Hearing at 2. This entry is, at best, a prime example of appalling record keeping, but, more likely, is further evidence of respondents' bad faith. As noted above, respondent McGaughey's affidavit to these Courts states that he and the Pike Circuit Court Clerk accomplished the striking.
Ind. Code § 31-6-7-1 (Burns 1979 Supp.) specifically states that the Indiana Rules of Trial Procedure shall apply to procedural matters not covered by the Juvenile Code. Thus, the striking here could have been accomplished under Trial Rule 79(4). That rule provides:
The very nature of a CHINS proceeding would usually presuppose a situation where the operation of Trial Rule 79(4) would not be necessary; that is, the typical CHINS case might only infrequently involve an "adversary proceeding." However, in those few instances where an adversary relationship is present and such a procedure is necessary, we specifically hold that the custodial parent-in this case, Mrs. McCormack-is a party for the purpose of striking. Thus, in a case such as this, in terms of the adversary relationship contemplated by Trial Rule 79(4), for purposes of striking to obtain a special judge, the custodial parent, if available, stands in the shoes of the defendant, while the prosecutor or county attorney stands in the shoes of the plaintiff. As explained above, in this case, neither Mrs. McCormack nor her counsel participated in the striking, and the court's entry states only that "the parties" struck the names.
On the other hand, however, at the June 6 CHINS hearing, the record discloses that respondents then treated the mother as a party. Indeed, when the hearing opened, respondent Arthur asked respondent Gray if he wished to be heard on his CHINS petition. Gray did, in fact, make an opening statement. Thereafter, the mother's counsel spoke. Only then did respondent McGaughey ask to be heard in addition to "the parties." Further, as noted above, when the June 6 hearing was concluded, Arthur ruled that "both parties" were restrained from removing Michelle. Transcript of June 6, 1980 CHINS Hearing at 2-5, 9.
Respondents initially presented a plethora of arguments which amounted to nothing more than attempts to raise a smoke screen and avoid the consequences of their deplorable conduct. The sole legal issue in this case is whether the juvenile court's jurisdiction was properly invoked. The Court of Appeals decision in this case held that, under the Uniform Child Custody Jurisdiction Act (UCCJA), Indiana was not the child's home state and thus not the proper state to determine further custody matters. In re Lemond, (1979) Ind. App., 395 N.E.2d 1287, 1291. As stated earlier, the law of the case was established in that decision and if there had been a change in circumstances warranting a change in the divorce decree, this was for a Hawaii court to decide.
The Supreme Court of Indiana recently addressed the narrow nature of the emergency powers under subsection (a)(3) of the UCCJA in State ex rel. Marcrum v. Marion Superior Court, (1980) Ind., 403 N.E.2d 806. The Court in Marcrum stated:
Id. 403 N.E.2d at 808.
These Courts will not tolerate the attempted use of emergency jurisdiction to reopen a fully litigated and decided custody battle, which is precisely what occurred here. Only where there is substantial evidence, not simply conclusory assertions, of an emergency, can emergency jurisdiction under § 31-1-11.6-3(a)(3) be invoked. In the case before us, the evidence clearly demonstrates nothing more than conclusory CHINS petitions initiated at the behest of the father, respondent Lemond, and his attorney, respondent Gray. In fact, the hearings on these CHINS petitions demonstrated a total lack of evidence to support respondent Arthur's findings and conclusions.
One express purpose of the UCCJA is to avoid the continued controversies and abductions, and the repeated relitigation of custody matters. Additionally, it is the intent of the legislature that proper custody decrees from other jurisdictions be enforced. Ind. Code § 31-1-11.6-1 (Burns 1979 Supp.); State ex rel. Marcrum v. Marion Superior Court, supra. For these reasons, trial court judges must in all cases take a close look to determine if they should invoke emergency jurisdiction under the UCCJA. Here, however, respondents did not even purport to act under the emergency jurisdiction section of the UCCJA; instead they allegedly acted under the Child in Need of Services Statutes, Ind. Code § 31-6-4-3 et seq. (Burns 1979 Supp.), and the Emergency Medical Treatment sections of the Juvenile Code, Ind. Code §§ 31-6-7-12-14. In any event, to have attempted to act under the emergency sections of the UCCJA under the facts of this case would have been clear error.
Respondents next contend that jurisdiction existed and was properly invoked under the CHINS statutes. Of course, in a true emergency situation, a juvenile court does have subject matter jurisdiction under the CHINS statutes. However, that jurisdiction must be invoked properly, and a court does not acquire jurisdiction over a particular juvenile case where the jurisdictional prerequisites are completely ignored.
An examination of the CHINS statutes shows the following statutory prerequisites to jurisdiction. First, Ind. Code § 31-6-4-3(a)(1), (6) (Burns 1979 Supp.) provide the definitions of "child in need of services" under which respondents ostensibly proceeded:
Cf. Ind. Code § 31-6-4-3 (Burns 1980 Supp.) (effective October 1, 1980). It is highly questionable whether Michelle Lemond fitted within either of these definitions. There was no substantial evidence that either parent failed to discharge his or her duties,
Ind. Code § 31-6-4-8 (Burns 1979 Supp.) establishes the next steps to be followed in
Cf. Ind. Code § 31-6-4-8 (Burns 1980 Supp.) (effective October 1, 1980).
If the prosecutor or county attorney determines that a petition should be filed, he must obtain authorization for such filing from the juvenile court. This procedure is clearly spelled out in § 31-6-4-10:
The "concise statement" of facts called for in subsection (c)(3) contemplates a substantial recitation of specific facts which demonstrates that a child may be in need of services. Moreover, just as the UCCJA emergency jurisdiction subsection, § 31-1-11.6-3(a), requires substantial non-conclusory, non-self-serving facts to be alleged, so it is with § 31-6-4-10(c)(3). See State ex rel. Marcrum v. Marion Superior Court, supra.
However, in examining the facts of this case, we find virtually a total failure to abide by and follow these clear statutory procedures. Specifically, the evidence before these Courts reveals, first of all, that the Pike County Welfare Department was conspicuously missing from the entire procedure; no written preliminary inquiry was submitted by the Welfare Department to respondent McGaughey, the prosecutor. Second, McGaughey did not initially seek the necessary authorization to file the petition; further, neither respondent Richardson nor respondent Arthur even purported to make the necessary finding of probable cause. Third, while the statute permits
Further, in light of these glaring defects and the apparent lack of substance of the allegations presented, it is relevant that respondent Arthur was, in fact, presented with several requests to examine the petitions and see the case as it really was-a sham proceeding. Val Fleig, Mrs. McCormack's counsel, called these defects to Arthur's attention and asked that the proceeding be dismissed. Respondent McGaughey evidently recognized these defects himself, for he subsequently argued that the State was also proceeding under the emergency treatment statutes, Ind. Code §§ 31-6-7-12, 31-6-7-14.
After the prerequisites for filing are met, the CHINS statutes call for additional jurisdiction steps. The juvenile court is to hold an initial hearing and advise the parents of their rights and possible dispositional alternatives. Ind. Code § 31-6-4-13.5 (Burns 1979 Supp.). Thereafter, where the facts of the case are not admitted, a fact-finding hearing is to be held, at which evidence is to be taken. § 31-6-4-14. However, in the present case, it does not appear that respondent advised the parents of their rights and the dispositional alternatives. Additionally, respondent Arthur specifically found Michelle to be in need of services at the close of the first CHINS hearing on June 6, wherein no evidence was taken. Such a finding is clearly not contemplated until the fact-finding hearing is held pursuant to § 31-6-4-14.
As noted earlier, respondents attempt, alternatively, to justify the juvenile court's jurisdiction upon the basis of the emergency treatment provisions of the juvenile code, Ind. Code §§ 31-6-7-12, 31-6-7-14. Section fourteen states in pertinent part:
Further, section twelve provides:
In the case before us, respondent McGaughey requested a protective order and mental examination pursuant to section twelve. As this section clearly establishes, such orders are proper only where a physician has certified that an emergency exists. The
The brief by amicus curiae questions whether the result of this contempt proceeding will be an unwillingness in trial judges to act, even in emergency case, where there is a valid and enforceable foreign custody decree. Of course, when probative, substantial and specific evidence of a clear emergency is presented to a juvenile court, the court should not hesitate to exercise jurisdiction pursuant to the appropriate statutes. Additionally, such jurisdiction could be properly exercised where, as here, an appellate court has found that a foreign custody decree should be enforced.
On the other hand, the facts and circumstances of this case do not even remotely approach the point at which jurisdiction could be rightfully and legitimately exercised. In a case such as this, where: (1) after protracted and lengthy manoeuvering and litigation, these Courts each finally determine that a foreign custody decree should be honored; (2) an information is filed with these Courts wherein, by specific and substantial allegations, it appears that there has been a wilful and intentional effort to circumvent or thwart orders of these Courts; and (3) the evidence does, in fact, show that there was no emergency and that there has been a deliberate and bad faith violation, circumvention or frustration of those orders, these Courts will not hesitate to cite attorneys or judges before these Courts and find them in indirect criminal contempt.
It is not often that either of these Courts is forced to exercise its inherent contempt powers. These Courts earnestly hope that this case sounds a clear warning to the bench and bar that behavior of the sort presented in this case will not be tolerated. Moreover, while only a fine was imposed here, these Courts also have the authority to impose prison terms, and quite likely will exercise this prerogative in the future. In re Perrello, (1973), 260 Ind. 26, 291 N.E.2d 698.
Finally, respondents Arthur, Richardson, Gray and McGaughey are charged with the costs of this case. These costs relate to preparation of the transcripts of the CHINS hearings in Pike County, and preparation of the transcripts from the contempt hearings before these Courts. The costs shall be paid to the Clerk of the Supreme Court and Court of Appeals of Indiana.
"Earl Lemond, being first duly sworn upon his oath, deposes and says:
1. That he is the father of Michelle Lemond, who presently resides with him at Velpen, Indiana and that there is presently pending in the Pike Circuit Court, a Habeas Corpus proceeding wherein his daughter, Michelle Lemond, will soon be ordered by the Court to return to her mother, Jeanene McCormack. Michelle Lemond is 12 years of age, having been [born on] May 1, 1968 and Michelle Lemond has had a number of emotional outbursts and has stated that she will not go back to her mother. From things told this Affiant by Michelle Lemond, this Affiant believes Michelle Lemond has a deep seated fear and resentment of her mother and that returning to her mother creates severe mental anguish which may be presently resulting in a mental condition and which might result in a permanent psychiatric condition. This Affiant further believes that the mother of said child is not mentally capable of caring for said child and cannot provide said child with a suitable environment, inasmuch as said mother is in the process of obtaining a divorce to dissolve her third marriage. This Affiant further believes that there is a high likely hood (sic) that Michelle Lemond will leave the jurisdiction i.e. run away before said proceedings.
WHEREFORE, Affiant states that he believes that an emergency exists and that he prays for a temporary injunction from the juvenile court for the purposes of providing said child with a mental examination pursuant to I.C. 31-6-7-12 and to further prevent the child from leaving the jurisdiction, all as set forth in I.C. 31-6-7-14."
Transcript of June 6, 1980 CHINS Hearing at 11-12.
Amicus also asserts that there may be a conflict between the emergency provision of the U.C.C.J.A. Ind. Code § 31-1-11.6-3(a)(3), and the juvenile court's exclusive original jurisdiction to handle emergencies under Ind. Code § 31-6-2-1. We think, however, that these two statutes can be given full effect without a conflict arising. Where two statutes deal with the same subject matter, they should be read together and construed so as to harmonize and give effect to each. E.g., Schrenker v. Clifford, (1979) Ind. 387 N.E.2d 59. We agree with the following assertion found in the brief of amicus curiae:
Brief of Amicus Curiae at 5.