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In re BD

February 23, 2010

IN THE INTEREST OF BD, JW AND CW:
BW, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Campbell County, The Honorable Michael N. Deegan, Judge.

The opinion of the court was delivered by: Golden, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

[¶1] This appeal arises from an indirect criminal contempt action against Appellant, BW (hereinafter Father). The juvenile court found Father in criminal contempt for violating its order entered in a neglect proceeding and sentenced him to a term of incarceration in the county jail. For the reasons set forth below, we vacate Father's criminal contempt conviction.

ISSUE

[¶2] Father challenges his conviction for indirect criminal contempt on several grounds. We find, however, that the dispositive issue in this appeal is whether the juvenile court followed proper procedural requirements in finding Father in indirect criminal contempt.

FACTS

[¶3] The basic pertinent facts of this case are not in dispute. On November 1, 2006, an adjudication of neglect under Wyo. Stat. Ann. § 14-3-402, et seq. (LexisNexis 2005), the Child Protection Act, was entered against Father for not providing adequate care necessary for the well-being of his minor children. During a subsequent review hearing held on October 1, 2007, the juvenile court ordered Father to satisfy certain requirements within a specified period of time. On January 28, 2008, the State filed an Information in the underlying juvenile neglect case charging Father with indirect criminal contempt pursuant to Wyo. Stat. Ann. § 14-3-438 (LexisNexis 2009), alleging Father had failed to comply with the juvenile court's order. The Information bore the same docket number and caption as the juvenile case, with Father added as a named defendant. After a bench trial on June 26, 2008, the juvenile court found Father in indirect criminal contempt and sentenced him to ninety days incarceration, with all but five days suspended in favor of probation. In accord with the juvenile court's rulings, a Judgment and Sentence was entered in the underlying juvenile case. It is this Judgment and Sentence that is the focus of this appeal.

DISCUSSION

[¶4] Criminal contempt is "a crime in every fundamental respect," and a conviction for criminal contempt is indistinguishable from an ordinary criminal conviction. Swain v. State, 2009 WY 142, ¶ 13, 220 P.3d 504, 508 (Wyo. 2009) (quoting Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481-82, 20 L.Ed. 522 (1968); Skinner v. State, 838 P.2d 715, 722 n.5 (Wyo. 1992)). Because of its punitive character, a court imposing criminal contempt sanctions must comply with due process. The due process protections of one charged with criminal contempt have been addressed in Rule 42 of the Wyoming Rules of Criminal Procedure.*fn1 Horn v. Welch, 2002 WY 138, ¶ 18, 54 P.3d 754, 760 (Wyo. 2002); United Mine Workers of America, Local 1972 v. Decker Coal Co., 774 P.2d 1274, 1281 (Wyo. 1989) (decided under the old rule, W.R.Cr.P. 41). Subparagraph (c) delineates the due process safeguards attendant to indirect criminal contempt actions which must be satisfied in all such proceedings, and states:

(c) Indirect (constructive) contempt proceedings. -- A criminal contempt, except as provided in subdivision (b) concerning direct contempt, shall be prosecuted in the following manner:

(1) Order to Show Cause. -- On the court's motion or upon affidavit of any person having knowledge of the facts, a judge may issue and sign an order directed to the accused, stating the essential facts constituting the criminal contempt charged and requiring the accused to appear before the court and show cause why the accused ought not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of a defense.

(2) Motions; Answer. -- The accused, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars or answer such order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. An accused's omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.

(3) Order of Arrest; Bail. -- If there is good reason to believe the accused will not appear in response to the order to show cause the judge may issue an order of arrest of the accused. The accused shall be admitted to bail in the manner provided by these rules.

(4) Arraignment; Hearing. --The accused shall be arraigned at the time of the hearing, or prior thereto upon the request of the accused. A hearing to determine the guilt or innocence of the accused may follow a plea of not guilty or may be set for trial at a later date or time. The judge may conduct a hearing without assistance of counsel or may be assisted by the attorney for the state or by an attorney appointed by the court for that purpose. The accused is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and may testify in his own ...


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