In Re Banks

PAIR, Associate Judge

(dissenting).

The order directing appellant to assume and maintain overnight custody of the child involved in the proceedings below was not challenged by an appeal1 and so the majority has decided, nevertheless, that the court was without authority to enter the order. Reasoning from this, the majority concludes that appellant’s in-court defiance of the order was not punishable by contempt. I disagree and would affirm the contempt order. A more detailed review of the factual background of the controversy than that set forth in the majority opinion seems necessary to put the issue in proper perspective.

Taken into custody, petitioned and detained, the child involved (a 13-year-old boy) was brought before another judge for an initial hearing on Saturday, August 5, 1972.2 The child’s appointed counsel waived a probable cause hearing and “trial” was scheduled for October 10, 1972. Because the court was not at that time furnished information sufficient to base a judgment as to whether the child should be released or detained pending trial, the detention hearing was continued until Monday, August 7, 1972, so that the court could have the benefit of the report and recommendation of the social worker assigned to the case. Consistent with the determination of the Director of Social Services that the detention of the child was required “To Protect the Property of Others from Serious Loss or Damage”, the court ordered the child detained at the Receiving Home until the next session of the court.

When the detention hearing was resumed on Monday, August 7, 1972, appellant was present in her capacity as the social worker assigned to the case, and the following transpired:

MISS BANKS: My name is Iris Banks, from Social Services.
THE COURT; Well, why is this matter here ?
According to the file here, on J-4477-72, on August 5th, probable cause hearing was waived by counsel and the matter was set for trial on October the 10th, ’72.
Detention hearing was set for this morning ?
MRS. HUHN [An Assistant Corporation Counsel]; I believe there wasn’t enough information — the worker, Your *275Honor, Saturday — I was present — did not have enough information to make a recommendation to the Court as to detention or not, or release.
THE COURT: . . .
. So we’re hear today to hear from the social worker on this matter ?
MRS. HUHN: Yes, Your Honor.
THE COURT: What is your name, madam ?
MISS BANKS: Miss Iris Banks.
THE COURT: Why are we here today, madam?
MISS BANKS: For a law violation.
THE COURT: All right. Now, what are we going to do, hang him from the ceiling pending trial?
MISS BANKS: No. T would recommend that he be sent to the Receiving Home pending his trial on—
THE COURT: What other prior convictions does he have? Is this the first time he’s charged with a crime ?
MISS BANKS: Yes.
THE COURT: And you’re going to send him to the Receiving Home?
MISS BANKS: Well, his mother isn’t here and I wanted to check out his mother’s situation.
THE COURT: Well, didn’t you have time over the weekend to check it ? Wasn’t it continued on Saturday until today ?
MISS BANKS: Yes, Your Honor.
THE COURT: —so you could come in here to court today and give us some facts ?
This case was continued until today. This little boy has been sitting in jail over the weekend. What have you been doing over the weekend ?
MISS BANKS: I—
THE COURT: You were supposed to come in here today and give us some facts so we could determine whether or not — what we’re going to do with this young man pending trial.
Didn’t you know that ?
MISS BANKS: Yes, Your Honor.
THE COURT: Well, what have you got to give me? You haven’t talked to his mother, have you? You don’t know anything, do you? .
MISS BANKS : No, Your Honor.
THE COURT: ....
You knew Saturday, that you were supposed to come in here today with some facts.
MISS BANKS: I didn’t get the report until this morning, Your Honor.
THE COURT: Who was in court Saturday from your office ?
MISS BANKS: No one, that I know of.
THE COURT: You mean you tell me your office has no one sitting in these courts on Saturdays?
MISS BANKS: Unless there’s someone from Protective Services. We do not work on Saturdays.3
*276
Your Honor, what I was trying to say, he has a disposition hearing, which is Friday.
THE COURT: I’m not interested in Friday. He was charged last Saturday with a crime. Now, he has a right to an arraignment' — to a hearing on that, and to be determined whether or not he should be released to third-party custody or held in jail pending the trial date.
You’re a social worker, is that right?
MISS BANKS: Yes.
THE COURT: And you’ve been trained to care that much about people, that you don’t care whether they sit over in jail over a weekend. The case is continued until Monday for this very purpose, to get a recommendation from you,based upon your knowledge of investigation as to what should be done with this young man, and you come in here this afternoon and tell me that you haven’t talked to his mother and you don’t know anything, but, in any event, you’re going to recommend that he stay locked up.
MISS BANKS: Yes.
I have tried — Mrs. Hamilton, his mother, called at the office while I was here at court and I left a message for her to come to court, and she has not shown up yet.
THE COURT: So, since she hasn’t shown up, you recommend that he be locked up; it that right ?
[A pause.]
Is that right?
MISS BANKS : Well, until I can get to talk with her.
THE COURT: No. You know what I’m going to do? I’m going to put him in your custody [speaking to Miss Banks] until tomorrow. You be back here in court with him tomorrow morning at ten o’clock, and I want a report on this young man and his mother; and he will be in your custody until tomorrow morning at ten o’clock.
Make that order out.

Later that afternoon another Assistant Corporation Counsel moved the court to reconsider and rescind its order urging that appellant was not a custodian within the purview of D.C.Code 1972 Supp., § 16-2301(12) and (21). The motion was denied4 and that Assistant Corporation Counsel then announced to the court that, on his advice, appellant would refuse to comply with the order. Upon inquiry by the court, appellant confirmed that she refused to comply with the court’s order. The court then adjudged her in criminal contempt and sentenced her to serve eight hours in the custody of the United States Marshal.5

*277Because there was no appeal from the order which directed appellant to assume and maintain overnight custody of the child, it was wholly unnecessary — in my opinion — to decide whether, for the purposes of D.C.Code 1972 Supp., § 16-2311(a)(1) and § 16-2312(d)(2)(A), appellant was or was not a proper custodian.6 Thus the only issue this court was called upon to resolve is whether appellant’s in-court defiance of the order was properly punishable as contempt.7

In Hunter v. United States, 48 App.D.C. 19, 23 (1918), the Juvenile Court adjudged the father of a child in contempt for violating an order respecting the custody of the child. In disposing of the father’s contention that the custody order was invalid, the court said:

[Hjowever defective or erroneous the proceedings, the judgment was not void, and could, at most, be voidable. It cannot, therefore, be collaterally impeached in this proceeding. Murphy v. Massachusetts, 177 U.S. 155, 159, 44 L.Ed. 711, 714, 20 Sup.Ct.Rep. 639; District of Columbia v. Wilson, 44 App.D.C. 265, 269. Defendant cannot justify his conduct upon his assumption that the order of the court affecting the status of his son was invalid. So long as the order stood, it must be obeyed by all whom it affected. To hold otherwise would be to permit anyone affected by the order to set up his own judgment against that of the court, which will not be permitted. The rule in such a case is concisely stated in Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450, 55 L.Ed. 797, 809, 34 L.R.A. (N.S.) 874, 31 Sup.Ct.Rep. 492, as follows: “If a party can make himself a judge of' the validity of orders which have been issued, and by his own acts of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the ‘judicial power o.f the United States’ would be a mere mockery.”

See also Land v. Dollar, 88 U.S.App.D.C. 311, 190 F.2d 366 (1951), cert. dismissed, In re Killion, 344 U.S. 806, 73 S.Ct. 7, 97 L.Ed. 628 (1952). Accord, United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Cf. Brotherhood of Locomotive Fire. & Eng. v. Bangor & A. R. Co., 136 U.S.App. D.C. 230, 420 F.2d 72 (1969), cert. denied, 397 U.S. 1024, 90 S.Ct. 1258, 25 L.Ed.2d 533 (1970). This panel of the court is not free to deviate from the great weight of precedent in this jurisdiction.8

Based upon the foregoing, appellant was not, in my opinion, well advised when she ignored available remedies9 and elected to openly defy the court’s order. The trial judge, concerned and very properly so as to the welfare of the child who was before the court charged for the first time as a *278delinquent, sought only a reasonable alternative to further confinement at the Receiving Home pending completion of the detention hearing.10

The statutory scheme11 mandates of the court and its officers not only a sensitive concern for any child exposed to the juvenile justice system but also the accomplishment of a speedy and humane disposition of any such child, particularly one who has been removed from his home, family and friends pending adjudication of the subject of any complaint against him. Fulwood v. Stone, 129 U.S.App.D.C. 314, 394 F.2d 939 (1967). Needless to say, the discharge of that responsibility is seriously impeded when, as in this case, the supporting staff members of the court are derelict in the performance of their duties.12

The record, of course, speaks for itself telling in greater detail of the callous indifference to the welfare of the child demonstrated by the supporting staff of the court at every stage of the proceedings.

Understandable, therefore, was the response of the trial judge who, mindful no doubt of the teaching of Fulwood v. Stone, supra, proceeded with firmness to make a disposition of the child which he deemed to be just and reasonable under the circumstances.13 I indicate no opinion as to the propriety of the court’s response to severe provocation or as to the validity of the order. I would hold only that since the order was not challenged by an appeal, this court should refuse to disturb it. For the reasons indicated I respectfully dissent.

. D.C.Code 1972 Supp., § 11-721; D.C. App.R. 8.

. By D.C.Code 1972 Supp., § 16-2311, it is provided that any child taken into custody shall with all reasonable speed be released to his parent, guardian or custodian or shall be accorded a detention hearing not later than the next day as provided in D.C.Code 1972 Supp., § 16-2312.

. In S.Rep.No.620, 91st Cong., 1st Sess., District of Columbia Juvenile Code [To accompany S. 2981] (1969), it was said:

(b) Any child taken into custody is to be thoroughly screened prior to his detention in a juvenile facility. . [T]he law enforcement officer or other person taking the child into custody must himself screen the child and forthwith bring before the Director of Social Services any child not released. Ap*276plying the same criteria, the Director of Social Services (or his deputy, that is to say, a court officer) must again screen any child brought before him. The committee expressly intends that at least one sueh court officer from the Director of Social Services shall he available at all times, 2Jf hours of every day, and expects that such officer may he stationed at the juvenile facility itself. The committee intends further that (1) supporting personnel shall he likewise available. . . . [Emphasis added.j

. Appellant did not see fit to challenge further that order.

. The court, consistent with Chief Judge Greene’s opinion in In re Savoy, et al., Super.Ct.Juv. (Nos. J-4808-70 & J-4714-70, October 13, 1970), 98 Wash.L. Rep.1937 (October 30, 1970), refused to order the child returned to the Receiving Home and released him to the custody of his court appointed counsel who undertook to take the child home.

.D.C.Code 1972 Supp., § 16-2301, “Definitions”, it is provided:

(12) The term “custodian” means a person or agency, other than a parent or legal guardian, to whom legal custody of a child has been given by court order and who is acting in loco paren-tis.
(21) The term “legal custody” means a legal status created by Division order which vests in a custodian the responsibility for the custody of a minor which includes—
(A) physical custody and the determination of where and with whom the minor shall live; . . . .

. After oral argument in this case it was brought to the attention of the court that another judge in the Family Division ordered the Director of Social Services to assume custody of two minor female children involved in a marital dispute. Although the Director interposed no objection of record, this court, upon motion of the mother of the children, stayed the order pending appeal. Ziegler v. Ziegler, D.C.App., 304 A.2d 13 (1973).

. See M.A.P. v. Ryan, D.C.App., 285 A.2d 310, 313 (1971).

. See supra note 1.

. Putting aside the gravity of any deprivation of the liberty of a 13-year-old child, the Receiving Home should be a last resort where no suitable alternative exists. Cooley v. Stone, 134 U.S.App.D. C. 317, 414 F.2d 1213 (1969); Fulwood v. Stone, 129 U.S.App.D.C. 314, 319, 394 F.2d 939, 944 (1967); Creek v. Stone, 126 U.S.App.D.C. 329, 379 F.2d 106 (1967). See. also Chief Judge Greene’s directive respecting detention at the Receiving Home, In re Savoy, et al., supra note 5.

. D.O.Code 1972 Supp., § 16-2301 et seq.

. S.Rep.No.620, 91st Cong., 1st Sess., supra note 3.

. D.O.Code 1972 Supp., §§ 16-2311 & 16-2313.