dissenting. The effect of today’s holding is that when an employee of the Department of Human Services (DHS) undertakes, pursuant to Ark. Code Ann. § 12-12-509 (1987), to take a child into temporary protective custody to prevent imminent danger of child abuse, thereby interfering with court ordered visitation by the parent suspected of causing such abuse, that employee becomes subject to contempt proceedings. Nothing in § 12-12-509 indicates that such power is not to be exercised so as to impinge on visitation rights ordered in a divorce suit, pending or concluded.
But even if the appellants’ conduct in this affair renders them culpable, the fines and jail sentences imposed are seriously disproportionate to the circumstances. These appellants are not disgruntled parties flaunting the authority of the court, nor officious intermeddlers in an affair that does not concern them. Rather, they are agents of that division of state government (DHS) to which the legislature has assigned the specific task of alleviating and preventing child abuse, whether substantiated or merely suspected. Neither appellant was acting pursuant to some personal motive but purely in response to a perceived responsibility under the law. I do not suggest that that responsibility is transcendent to the authority of the trial court, but I do submit that a number of factors mitigate on the side of greater leniency than the singularly harsh sentences imposed. For one thing, the indications of parental abuse were sufficiently serious that the trial court took extraordinary measures; for another, the trial court’s order (verbally delivered on February 14, 1991, but not reduced to writing for six weeks) was decidedly vague in its terms:
THE COURT: And as to visitation, I’m going to order visitation under the conditions, provided for by the defendant that there will be a third party, someone else present when he’s visiting to make sure that if he’s accused there’s some reputable person present that can vouch for his conduct and the child’s conduct throughout that time. And since he’s agreeable to that, I think that’s a good, wise decision, and we’ll do it that way. (R. 532-533).
MS. DUNCAN: Can we start our visitation this weekend? It’s been a long time since Mark has seen his son.
THE COURT: Yes. You bet.
MS. DUNCAN: Thank you.
MR. EVANS: Do we know what, who the third party is going to be in this? Could they submit something so we kind of can at least condition the child?
THE COURT: Well, I’m reluctant to get involved in a situation where we’re talking about this side is having to approve that side. You know. The plaintiff, in other words, are we going to submit a list of names to the plaintiff to see if they’re okay to be the third party?
MR. EVANS: No. I didn’t say that. I didn’t mean to indicate that. It’s— The child, I think, will need to be conditioned to certain, that you’re going and this one’s going to be there and that sort of thing. And if we know who the parties were going to be, then we could lay that foundation.
THE COURT: Okay. If you know who the person is, I don’t mind telling them, but it’s not a condition of the decree. (R. 535-536).
MR. EVANS: Your Honor, was that visitation going to be this weekend or — ?
THE COURT: Yes, as far as I’m concerned. I don’t know any reason why not. (R. 537)
THE COURT: And as far as the visitation is concerned, you know, for how long, I intend ordering, like weekend visitation and holiday visitation in the directive. For this week, you know, for the first time, you might want to, you know, I don’t know how much time you have to visit nor how long, and you might feel it appropriate to visit less than, a shorter period of time.
MR. DUNCAN: Yes sir, that’s what we had discussed, as a matter of fact, was for a period of maybe four hours on Saturday and then again for a period of about four hours on Sunday.
THE COURT: Well, that sounds like you’re using your head.
MR. EVANS: That’s what you’re proposing?
MS. DUNCAN: That’s for this weekend.
MR. EVANS: Yeah. Okay.- And the rest of the visitation, you’re going to set that out at a later time?
THE COURT: I’ll put it in the decree, right. But I’ll try to be pretty standard with it. (R. 538).
For another thing, the law not only imposes an affirmative duty on the appellants, among others, but clothes them with immunity in the discharge of those responsibilities. Ark. Code Ann. § 12-12-510 (1987). Finally, while appellants may have been generally aware of the verbal order, there is no showing that their claim to have been unaware of its terms, is false. Taking these factors into account I believe a more judicious solution would have been an admonition and a warning as opposed to a sizeable fine, a jail sentence and a psychiatric examination.