1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number: ______________
3 Filing Date: December 20, 2018
4 NO. S-1-SC-35427
5 STATE OF NEW MEXICO ex rel.
6 CHILDREN, YOUTH AND FAMILIES
7 DEPARTMENT,
8 Petitioner-Petitioner,
9 v.
10 JANET MERCER-SMITH and
11 JAMES MERCER-SMITH,
12 Respondents-Respondents.
13 ORIGINAL PROCEEDING ON CERTIORARI
14 Barbara J. Vigil, District Judge
15 Walz and Associates
16 Jerry A. Walz
17 Albuquerque, NM
18 for Petitioner
19 Comeau, Maldegen, Templeman & Indall, LLP
20 Larry D. Maldegen
21 William Phelps Templeman
22 Stephen J. Lauer
1 Santa Fe, NM
2 Dan Cron Law Firm, P.C.
3 Daniel Robert Cron
4 Santa Fe, NM
5 for Respondents
1 OPINION
2 MAES, Justice.
3 {1} While the parties in this case litigated contempt proceedings over the course
4 of seven years, the children at the center of the case aged out of the system and
5 became peripheral to a nearly $4,000,000 judgment in favor of Respondents Janet and
6 James Mercer-Smith (the Mercer-Smiths), who had pleaded no contest to allegations
7 of abuse against their two minor daughters Julia and Rachel. This case was initiated
8 in 2001 as an abuse and neglect proceeding and turned into a dispute over whether
9 the Children, Youth and Families Department (CYFD) had violated the district
10 court’s decision that Julia and Rachel could not be placed with former employees of
11 a group home where they had been residing. After protracted litigation, the district
12 court held CYFD in contempt for violating its placement decision and, almost four
13 years later, imposed the sanction for the violation, ordering CYFD to pay the Mercer-
14 Smiths more than $1,600,000 in compensatory damages and more than $2,000,000
15 in attorney fees and costs. The award was based on the district court’s determination
16 that the violation of the placement decision resulted in the loss of the Mercer-Smiths’
17 chance of reconciliation with Julia and Rachel. We hold that the purpose for which
18 the district court exercised its contempt power was not remedial in nature and
19 therefore cannot be upheld as a valid exercise of civil contempt power. Accordingly,
1 we reverse the contempt order and vacate the award in its entirety.
2 I. BACKGROUND
3 {2} This case began in early 2001 and was not fully resolved until January 2012,
4 when the final judgment was entered. The record indicates that nearly every aspect
5 of the proceeding was heavily litigated and highly contentious. What follows is the
6 background information most relevant to the issues before this Court. Additional
7 factual development will be done, as needed, in the context of our discussion of those
8 issues.
9 {3} In February 2001, James (Father) and Janet (Mother) Mercer-Smith’s three
10 daughters—Julia, 13; Rachel, 12; and Alison, 8—were taken into CYFD custody
11 based on allegations of sexual abuse of Julia and Rachel at the hands of Father. The
12 abuse and neglect petition also alleged that Mother knew or should have known of
13 the abuse but failed to protect her daughters.
14 {4} Six months later on August 30, 2001, Father pleaded no contest to allegations
15 that he “touched his children Julia and Rachel in a way that made them feel
16 uncomfortable and which they reasonably perceived as sexual.” Mother pleaded no
17 contest to allegations that she “knew or should have known that her husband . . .
18 touched their children Julia and Rachel in a way that made them feel uncomfortable
2
1 and which they reasonably perceived as sexual and she did not take reasonable steps
2 to protect the children from further harm.” Based on the pleas, the district court
3 entered a judgment and disposition adjudicating the children to be abused pursuant
4 to NMSA 1978, Section 32A-4-2(B)(2) (1999). The Mercer-Smiths were ordered to
5 comply with a treatment plan approved by the district court. Among other things, the
6 plan contemplated family therapy and visitation, if appropriate, at the daughters’
7 discretion. Although both Julia and Rachel expressed that they had no desire to
8 return to their parents’ home, the goal of the treatment plan at that time was
9 reunification. Alison, the youngest daughter, was returned to her parents’ custody in
10 November 2001 and was later dismissed from the case.
11 {5} The initial judicial review hearing was held on November 7, 2001. The district
12 court found that it was in Julia’s and Rachel’s best interests to remain in the legal
13 custody of CYFD. The court ordered CYFD to obtain a report from Julia’s
14 psychiatrist and Rachel’s therapist in anticipation of the next hearing, addressing
15 “why Julia and Rachel are refusing to go home and not wanting visits and what is in
16 their best interests in those regards.” The order memorializing the November 7, 2001
17 hearing was filed on March 21, 2002. At the next hearing on December 10, 2001, the
18 district court ordered that Julia and Rachel begin individual sessions with Dr. Charles
3
1 Glass, a psychologist retained by CYFD, who would submit a detailed report for the
2 next hearing regarding their progress in therapy. The order memorializing the
3 December 10, 2001 hearing was filed on March 22, 2002.
4 {6} The district court also ordered Julia and Rachel to participate in mediation with
5 the Mercer-Smiths, which occurred on April 5, 2002. The mediator’s memorandum
6 of understanding submitted to the court shortly thereafter reflects that the mediation
7 process had yet to be completed. Therefore, on April 9, 2002, the parties stipulated
8 that the “permanency plan should remain reunification until the mediation process is
9 completed by the parties.” However, in May 2002, CYFD filed a report with the
10 district court indicating that reunification was “no longer a viable plan.” The report
11 also recommended that individual sessions between the daughters and Dr. Glass cease
12 due, in part, to a breach of confidentiality by Dr. Glass. On July 11, 2002, CYFD
13 filed another report with the court, reiterating its position that reunification was “no
14 longer a viable plan.” The report also indicated that the mediation process had been
15 completed, “with no change in the prognosis for reunification” and recommended a
16 change in the permanency plan to planned permanent living arrangements (PPLA) for
17 Julia and Rachel. According to the social worker, the recommended change to PPLA
18 was a result of the Mercer-Smiths’ failure to “address the issues that have been at
4
1 hand since the inception of this case.” Specifically, Father refused to acknowledge
2 the factual basis of his no contest plea and instead focused on convincing case
3 workers that “he [was] not responsible for any problems that his family has
4 experienced and that the girls’ allegations of sexual abuse [were] the result of
5 confusion and false memories that have been created by one or more of their
6 therapists.” Additionally, Mother purportedly took the position that Father was not
7 guilty of the abuse alleged by Julia and Rachel. The social worker reported that Julia
8 and Rachel “continue to be adamant about not wanting to reunify with their parents.”
9 At that time, CYFD reported that Julia and Rachel were living at the Casa Mesita
10 Group Home in Los Alamos.
11 {7} At a highly contentious hearing on August 15, 2002, the attorney for the
12 Mercer-Smiths insisted that reunification had not been successfully attempted. The
13 district court noted that all attempts to get Julia and Rachel to participate in therapy
14 had failed and that there had been no progress at all toward reunification. Counsel
15 for CYFD stated that Julia and Rachel did not want any involvement with their
16 parents because they felt that they were being accused of wrongdoing and because
17 their parents had not taken responsibility for the abuse inflicted upon them. The
18 district court acknowledged that the daughters’ best interests and “perspective” were
5
1 “paramount.” Counsel for the Mercer-Smiths asked the court to order that Julia and
2 Rachel participate in ten family therapy sessions for the purpose of resolving issues
3 between them and the Mercer-Smiths. The guardian ad litem (GAL) insisted that
4 Julia and Rachel were “adamantly opposed to continued therapy” and reiterated
5 CYFD’s position—Julia and Rachel felt as though they were on trial and the
6 proceedings had become about what they had done, rather than the abuse their parents
7 had inflicted. Counsel for CYFD stated that it was CYFD’s position that it was not
8 in Julia’s and Rachel’s best interests to go forward with family therapy since the
9 purpose of it was unclear, given that they were adamant about not wanting to reunify
10 with the Mercer-Smiths. Counsel for CYFD also reminded the court that the
11 summary treatment plan adopted on August 30, 2001, specified that Julia and Rachel
12 would not be required to visit with the Mercer-Smiths unless they wished to do so and
13 that reunification would occur only “if appropriate.” Julia and Rachel were permitted
14 to address the court and read statements that they had prepared. Excerpts from those
15 statements follow.
16 Julia: . . . I have not had the opportunity as yet to speak with you
17 face to face about the issues in our case. I do not think the mediation
18 helped in the least . . . . I for one came out of the sessions angrier with
19 [the Mercer-Smiths] than before. . . . As far as I’m concerned our family
20 will never be able to be repaired. Mainly for two reasons. One because
6
1 Jan and James are unwilling to let the past go and concentrate on the
2 future and two, because I’m not ready to listen to them tell me how my
3 memories are planted and that everything is my fault. My hate toward
4 them has become far worse over the last couple of months. . . . If I had
5 my way, I would want their parental rights terminated, but I’m not sure
6 that will happen. . . . I hope this letter will bring some insight to our case
7 from one of the people the court seems to have forgotten.
8 Rachel: . . . I have recently participated in mediation sessions with
9 my parents and during these sessions I felt as though I was not, what I
10 was saying was not really being heard. It seemed to me as though Janet
11 and James are still not taking responsibility. They said that my
12 memories are not accurate. This caused me to leave the sessions feeling
13 more angry and more hurt than I was before. I know that family therapy
14 has been suggested, but I don’t think that this would be beneficial unless
15 they are able to accept things and take responsibility. I don’t think that
16 there is a purpose in therapy. . . . And I know returning to my [parents’]
17 home is not what I want, it simply wouldn’t work and it would be
18 impossible unless they were able to take responsibility and I think that
19 under the plan of [PPLA], I would be able to begin to have a life that is
20 as close to normal as it could be under the circumstances.
21 {8} Attempting to find a middle road through the morass, the district court ordered
22 that the permanency plan be changed to PPLA but also ordered family therapy “to
23 attempt to resolve and bring some closure to some of these issues between the girls
24 . . . and their parents.” To that end, Julia and Rachel were ordered to participate in
25 ten therapy sessions each with Mother only. The change in the permanency plan to
26 PPLA meant that reunification was no longer a viable option and therefore not a goal
27 of any treatment plan. See 8.10.9.7(L) NMAC (“‘Planned permanent living
7
1 arrangement (PPLA)’ is a permanency plan established by the court for a youth in
2 [CYFD] custody who is age 16 or older once reunification, adoption, permanency
3 guardianship and placement with a fit and willing relative have been ruled out.”). On
4 April 30, 2004—almost two years after the August 15, 2002 hearing—the court
5 reduced to writing its findings, reflecting a change in the permanency plan from
6 reunification to PPLA.
7 {9} In the judicial review and/or permanency hearing report filed with the district
8 court in July 2003, CYFD reported that having completed the more structured therapy
9 living situation at Casa Mesita Group Home, Julia and Rachel were ready to transition
10 into regular non-relative foster homes in the Los Alamos area. CYFD sent the
11 Mercer-Smiths a letter dated June 5, 2003, informing them that Rachel would be
12 placed with Gay and Dwain Farley and Julia would be placed with Jennifer and Eric
13 Schmierer after both couples had become licensed as foster parents. On June 30,
14 2003, the Mercer-Smiths filed an objection to these placements, arguing that they
15 would be inappropriate because Gay Farley and Jennifer Schmierer had been
16 therapists at Casa Mesita Group Home where Julia and Rachel had been residing.
17 {10} The district court held four hearings over the course of three months in 2003
18 to determine the propriety of the proposed placements. At one of those hearings on
8
1 August 19, 2003, the district court affirmatively stated that CYFD had no duty to
2 support reconciliation between Julia and Rachel and the Mercer-Smiths. Although
3 the district court acknowledged that reconciliation may be, in a broader sense, in the
4 best interests of Julia and Rachel, the court nonetheless concluded the following:
5 I understand that reconciliation of the parents is not part of the
6 permanency plan. I can accept that as [an] uncontroverted fact. It’s
7 clear to me that reconciliation with the parents is not something, a goal
8 of [CYFD] in the [PPLA].
9 ...
10 There’s no duty on the part of [CYFD] to support reconciliation with the
11 parents at this point and I find that as a fact.
12 {11} At the last of the three hearings on September 9, 2003, the district court ruled
13 that the proposed placements would be inappropriate in light of the therapeutic
14 relationships between Gay and Jennifer and the children. The court entered its
15 findings of fact and conclusions of law and decision on November 3, 2003
16 (Placement Order). In part, the district court found that Gay and Jennifer, who were
17 both licensed clinical counselors, served as therapists for Julia and Rachel while they
18 lived at Casa Mesita Group Home. Because of the patient-therapist relationships that
19 formerly existed, the court determined that the proposed placements would constitute
20 “dual relationships,” which are prohibited by the code of ethics that governs clinical
9
1 counselors in New Mexico. Accordingly, the court concluded that the proposed
2 placements constituted an abuse of discretion and would not be permitted.
3 {12} Because Julia and Rachel could not be placed with the Farleys and Schmierers
4 as a result of the Placement Order, CYFD placed them with Martin and Jeanne Ritter.
5 However, on April 27, 2004, during the annual permanency and presentment hearing,
6 counsel for CYFD reported that because it could not find suitable foster parents for
7 Julia and Rachel in Los Alamos, the children had transitioned into a semi-
8 independent living arrangement in February 2004 and were renting a room from
9 Melissa Brown and her husband. Upon inquiry from the Mercer-Smiths’ attorney
10 about the Browns, counsel for CYFD explained that Melissa Brown was the daughter
11 of Gay and Dwain Farley, was a licensed foster parent, and had not been previously
12 involved in the case. The district court judge responded, “So [CYFD] found a way
13 to get around my ruling?” Counsel for CYFD apologized and stated that it was not
14 CYFD’s intent to disrespect the court or the court’s Placement Order and explained
15 that the Ritters requested that Julia and Rachel be moved because the placement was
16 not working out as a result of transportation issues. The GAL added that she asked
17 the daughters for the names of friends and other people that they knew who might be
18 willing to become licensed so that they could remain in Los Alamos. While there
10
1 were many people with whom the daughters had contact in Los Alamos, it was the
2 opinion of the GAL that because of the Mercer-Smiths’ status in the community,
3 people did not want to get involved since everyone the daughters approached had
4 turned them down. The only people who came forward were the Farleys’ daughter
5 and her husband. Thus, the issue became whether to move Rachel and Julia from Los
6 Alamos to find a different placement. The district court responded:
7 I can’t imagine [t]hat the Mercer-Smiths are [of] such status in the
8 community . . . that there is not a family in the community that’s healthy,
9 willing and able to take care of these children. It’s just truly amazing to
10 me. I’ve never seen anything quite like it and find it quite disturbing,
11 the efforts [CYFD] made to try to circumvent the decision that this court
12 made in my decision.
13 {13} Three months later on July 30, 2004, the Mercer-Smiths filed a motion to
14 initiate civil and criminal contempt proceedings. The motion named several
15 individuals and CYFD as an entity as alleged contemnors. The Mercer-Smiths
16 alleged that Rachel and Julia had been, for all practical purposes, placed with the
17 Farleys and Schmierers despite the district court’s ruling that doing so was an abuse
18 of discretion. Their motion indicated that the Mercer-Smiths had hired a private
19 investigator to observe their daughters’ comings and goings from the Farley and
20 Schmierer households and to observe their daily activities. Based on the information
11
1 gathered, the Mercer-Smiths contended that “CYFD created a sham to mask the true
2 caretaker relationships between the girls [and] the Farleys and the Schmierers in
3 contravention” of the district court’s Placement Order.
4 {14} While the parties litigated the contempt proceedings, Julia and Rachel reached
5 the age of majority and aged out of the system—Julia in 2005 and Rachel in 2006.
6 After legal custody of both daughters ended and was no longer an issue, this case
7 remained unresolved for almost six more years.
8 {15} On July 10, 2006, CYFD filed a motion to dismiss both the civil and criminal
9 contempt proceedings. The district court entered an order on August 29, 2006,
10 dismissing several named individuals from the contempt proceedings and ruling that
11 criminal and civil contempt would proceed only as to counsel for CYFD and CYFD
12 as an entity. On November 6, 2006, the district court entered an order dismissing all
13 claims of criminal contempt. The order notes that there remain “civil contempt
14 remedies which can be granted based on the actions of the parties.”
15 {16} The bench trial on the civil contempt issues occurred on November 9, 2006.
16 On January 3, 2008, the district court entered its findings of fact, conclusions of law,
17 and order holding CYFD in contempt of court. The district court found that the
18 Farleys had a significant and ongoing relationship with Rachel such that Rachel was
12
1 “placed” into their home by CYFD and the Farleys were Rachel’s foster parents.
2 Similarly, with respect to Julia, the district court found that the Schmierers had a
3 significant and ongoing relationship with Julia such that Julia was “placed” into their
4 home by CYFD and the Schmierers were Julia’s foster parents. Accordingly, the
5 district court concluded that CYFD’s conduct was in direct violation of the court’s
6 Placement Order and held CYFD in contempt. The district court did not hold counsel
7 for CYFD in contempt.
8 {17} The district court commenced a five-day bench trial to determine damages on
9 May 31, 2011, and also held a hearing on October 19, 2011, where additional
10 evidence and argument was considered. On December 9, 2011, the district court
11 entered its findings of fact and conclusions of law on contempt damages. The court
12 concluded that the Mercer-Smiths were injured by CYFD’s contemptuous conduct
13 and awarded Father damages of $616,000—$100,000 for past emotional distress,
14 $200,000 for future emotional distress, $200,000 for loss of enjoyment of life,
15 $56,000 for past psychological expenses, and $60,000 for future psychological
16 expenses. Mother was awarded damages of $1,000,000—$200,000 for past
17 emotional distress, $400,000 for future emotional distress, and $400,000 for loss of
18 enjoyment of life. Additionally, the district court awarded the Mercer-Smiths
13
1 $1,859,096 in attorney fees plus $152,213 in tax and $175,826 in litigation expenses.
2 In total, the award equaled $3,803,135.
3 {18} The Court of Appeals affirmed the district court’s contempt order and award
4 of damages, attorney fees, and costs. State ex rel. Children, Youth & Families Dep’t
5 v. Mercer-Smith, 2015-NMCA-093, ¶ 1, 356 P.3d 26. CYFD filed a petition for writ
6 of certiorari in this Court, asserting that the Court of Appeals erred in: (1) upholding
7 the district court’s determination of contempt contrary to legal authority; (2)
8 upholding the district court’s award of emotional distress damages for civil contempt
9 in violation of CYFD’s sovereign immunity; (3) upholding the district court’s
10 decision to deem admitted two requests for admission contrary to legal authority,
11 public interest, and the integrity of the judicial process; (4) concluding that the
12 contempt damages are analogous to tort damages but refusing to limit the damages
13 pursuant to the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -30 (1976,
14 as amended through 2015); (5) not reversing the damages award based on the
15 doctrine of unclean hands; (6) affirming the award of attorney fees, tax, and costs to
16 counsel for the Mercer-Smiths for work performed in post-contempt proceedings; and
17 (7) upholding a decision that is contrary to public interest. All seven contentions
18 relate to two overarching issues that we address in this opinion—whether CYFD was
14
1 properly held in contempt and, if so, whether the resulting award of damages, attorney
2 fees, and costs was proper. We granted CYFD’s petition for certiorari pursuant to
3 Article VI, Section 3 of the New Mexico Constitution and NMSA 1978, Section 34-5-
4 14(B) (1972).
5 II. DISCUSSION
6 A. Standard of Review
7 {19} Whether the district court exercised its contempt power consistent with the
8 purposes of civil contempt is a mixed question of fact and law that we review de
9 novo. See Papatheofanis v. Allen, 2009-NMCA-084, ¶ 8, 146 N.M. 840, 215 P.3d
10 778. Where there is an appropriate civil contempt, the sanction itself is reviewed for
11 an abuse of discretion. Tue Thi Tran v. Bennett (Tran), 2018-NMSC-009, ¶ 30, 411
12 P.3d 345. “An abuse of discretion occurs when the court’s ruling is clearly against
13 the logic and effect of the facts and circumstances of the case or is based on a
14 misunderstanding of the law.” Id. (internal quotation marks and citation omitted).
15 B. Overview of Contempt Law in New Mexico
16 {20} Courts have inherent power and statutory authority to impose remedial or
17 punitive sanctions for contempt of court. Concha v. Sanchez, 2011-NMSC-031, ¶¶
18 21-26, 150 N.M. 268, 258 P.3d 1060; see also NMSA 1978, § 34-1-2 (1851).
15
1 Contempts of court can be civil or criminal, and the “major factor” in determining
2 how to classify a particular contempt “is the purpose for which the power is
3 exercised.” Tran, 2018-NMSC-009, ¶ 33 (internal quotation marks and citation
4 omitted). “Criminal contempt proceedings are instituted to punish completed acts of
5 disobedience that have threatened the authority and dignity of the court and are
6 appropriate even after the contemnor is no longer acting contemptuously.” Concha,
7 2011-NMSC-031, ¶ 26. Civil contempt, on the other hand, is remedial in nature and
8 serves “to preserve and enforce the rights of private parties to suits and to compel
9 obedience to the orders, writs, mandates and decrees of the court.” Tran, 2018-
10 NMSC-009, ¶ 33 (internal quotation marks and citation omitted).
11 {21} Consistent with the various purposes for which a court may exercise its
12 contempt power, a court may impose punitive sanctions for criminal contempt,
13 remedial sanctions for civil contempt, or both. The court may not, however, impose
14 criminal penalties on a person who has not been afforded the protections of the
15 criminal law, “‘including the requirement that the offense be prove[n] beyond a
16 reasonable doubt.’” Concha, 2011-NMSC-031, ¶ 26 (quoting Hicks v. Feiock, 485
17 U.S. 624, 632 (1988)); cf. id. (“[C]riminal contempt is a crime in the ordinary sense;
18 it is a violation of the law.” (internal quotation marks and citation omitted)). Acts
16
1 that constitute criminal contempt can take a variety of forms, including (1) any sort
2 of disturbance that “actually obstructs or hinders the administration of justice or tends
3 to diminish the court’s authority,” (2) “misconduct of court officers,” and (3)
4 disobedience of an order of the court. Rule 1-093(B)(1) NMRA.
5 {22} “Civil contempt sanctions may be imposed by honoring the most basic due
6 process protections—in most cases, fair notice and an opportunity to be heard.”
7 Concha, 2011-NMSC-031, ¶ 25. If a court is exercising its civil contempt power, it
8 may impose compensatory sanctions or coercive sanctions, as both are remedial in
9 nature. Tran, 2018-NMSC-009, ¶ 35. “Compensatory sanctions may include
10 damages or attorney’s fees and are imposed for the purpose of compensating a party
11 for pecuniary losses sustained due to the contempt.” Id. ¶ 36; see also State ex rel.
12 Dep’t of Human Servs. v. Rael, 1982-NMSC-042, ¶ 6, 97 N.M. 640, 642 P.2d 1099
13 (“With civil contempt, remedial punishment for the benefit of the plaintiff is
14 measured in some degree by the pecuniary injury caused by the acts of disobedience.”
15 (internal quotation marks and citation omitted)). “Coercive sanctions may include
16 fines, imprisonment, or other sanctions designed to compel the contemnor to comply
17 in the future with an order of the court.” Tran, 2018-NMSC-009, ¶ 37 (internal
18 quotation marks and citation omitted). “Because the purpose of [this type of] civil
17
1 contempt sanction[] is to compel compliance with the court’s orders and not to
2 punish, the continuing contempt sanctions end when the contemnor complies.”
3 Concha, 2011-NMSC-031, ¶ 25.
4 C. The District Court Did Not Exercise Its Contempt Power Consistent With
5 the Purposes of Civil Contempt
6 {23} The classification of contempt in this case is not based on the initiation of the
7 contempt proceedings in the context of a civil case, the dismissal of the criminal
8 contempt portion of the Mercer-Smiths’ motion, or all parties proceeding since that
9 time as if dealing with civil contempt. See Tran, 2018-NMSC-009, ¶ 34 (stating that
10 this Court is not “bound by the parties’ characterization of the contempt as civil or
11 criminal”). Instead, as set forth above, “we look to the nature and purpose of the
12 punishment, rather than the character of the acts to be punished, as a controlling
13 factor.” Concha, 2011-NMSC-031, ¶ 32 (internal quotation marks and citation
14 omitted).
15 {24} The district court awarded the Mercer-Smiths compensatory damages for past
16 and future emotional distress, loss of enjoyment of life, and past and future
17 psychological expenses. In support of the award, the district court found that “there
18 continued to be viable prospects for reconciliation between [the Mercer-Smiths] and
18
1 their daughters Julia and Rachel” before the hearing that resulted in the district
2 court’s Placement Order. Additionally, the district court found that because of
3 CYFD’s contempt of the Placement Order, “the likelihood of any meaningful form
4 of reconciliation . . . was greatly reduced to the point of being remote and effectively
5 eliminated.” Based on the district court’s findings, the intended purpose of the
6 contempt proceedings was to preserve and enforce the Mercer-Smiths’ chance of
7 reconciliation with Julia and Rachel, which was allegedly undermined by CYFD’s
8 violation of the Placement Order. However, at the time that the contempt proceedings
9 were initiated, the district court had already “accept[ed] . . . as an uncontroverted fact”
10 that CYFD had “no duty . . . to support reconciliation.” Thus, as we explain in further
11 detail below, because efforts toward reunification and reconciliation were no longer
12 being required by the district court, the contempt proceedings were not, in fact,
13 instituted for the remedial purpose of preserving and enforcing the Mercer-Smiths’
14 chances of reconciliation. Therefore, the resulting contempt order and award of
15 damages, attorney fees, and costs cannot be upheld as a valid exercise of civil
16 contempt power.
17 {25} In their motion to institute contempt proceedings, the Mercer-Smiths noted that
18 they had objected to the proposed placements with the Farleys and Schmierers on
19
1 three grounds: first, that placing their daughters with Gay and Jennifer would result
2 in “dual relationships” in violation of ethics rules that bind counselors and therapists;
3 second, that the Farleys and Schmierers were not supportive of the Mercer-Smiths’
4 attempts to achieve reconciliation with their daughters; and third, that the possibility
5 of future reconciliation would be undermined by the placement. The district court’s
6 Placement Order reflects its findings that the placements would constitute dual
7 relationships as contemplated by relevant ethics rules. However, the district court
8 made no findings indicating that the placements were inappropriate for any other
9 reasons, including that they might undermine future prospects for reconciliation
10 between Julia and Rachel and the Mercer-Smiths. In fact, although the Mercer-
11 Smiths tendered proposed findings based on its arguments that the proposed
12 placements would undermine reconciliation, the district court refused them. The
13 court’s refusal to adopt these particular findings is tantamount to a finding against the
14 Mercer-Smiths on those issues. Jones v. Beavers, 1993-NMCA-100, ¶ 18, 116 N.M.
15 634, 866 P.2d 362; see also Sanchez v. Mem’l Gen. Hosp., 1990-NMCA-095, ¶ 33,
16 110 N.M. 683, 798 P.2d 1069 (“[R]efusal of a requested finding has the legal effect
17 of a finding against the party who submitted the request.”). Therefore, the district
18 court’s subsequent ruling that CYFD’s violation of the Placement Order resulted in
20
1 the loss of the Mercer-Smiths’ chances of reconciliation was an abuse of discretion
2 and cannot be sustained.
3 {26} Additionally, by the time that the Placement Order was entered, the treatment
4 plan in place, which was approved by the district court, no longer required Julia and
5 Rachel to have any contact whatsoever with their parents via visitation or family
6 therapy. In fact, the treatment plan required no action at all with respect to either
7 Father or Mother, except for the requirement that they pay child support. In August
8 2002, prior to approving that treatment plan, the district court had already changed
9 the permanency plan from reunification to PPLA and ordered additional therapy
10 sessions between Julia and Rachel and Mother for the purpose of attempting to
11 resolve the ongoing issues between them. However, the district court apparently
12 accepted CYFD’s recommendation not to continue therapy between Father and the
13 daughters, which is tantamount to a finding that it was not in their best interests.
14 Subsequently, on July 1, 2003, when the annual permanency hearing took place, the
15 therapy between the daughters and Mother had been completed and no additional
16 therapy sessions were ordered. Testimony from Dr. Glass subsequently established
17 that after family therapy ceased, it was clear that efforts at reconciliation had failed.
18 By not requiring additional therapy—or any contact whatsoever—between Julia and
21
1 Rachel and the Mercer-Smiths, there was no mechanism by which reconciliation
2 might be achieved, thus eliminating any chance of reconciliation that CYFD could
3 have had a duty to support. In short, as of July 2003, no efforts at either reunification
4 or reconciliation were being ordered by the district court. The district court’s oral
5 remark that there was “no duty on the part of [CYFD] to support reconciliation with
6 the parents” at the August 19, 2003 hearing is consistent with this conclusion.
7 Therefore, when the contempt proceeding was initiated in July 2004, it could not have
8 been for the purpose of preserving or enforcing any chance of reconciliation that the
9 Mercer-Smiths had—that opportunity had passed.
10 {27} Because the contempt proceedings could not have been for the purpose of
11 preserving or enforcing any right that the Mercer-Smiths had, the only other possible
12 remedial purpose would have been to coerce CYFD into compliance with the
13 Placement Order. See El Paso Prod. Co. v. PWG P’ship, 1993-NMSC-075, ¶ 28, 116
14 N.M. 583, 866 P.2d 311 (“[C]ivil contempts are those proceedings instituted to
15 preserve and enforce the rights of private parties to suits and to compel obedience to
16 the orders, writs, mandates and decrees of the court[.]” (emphasis, internal quotation
17 marks, and citation omitted)). It is clear, however, that coercion was not the intended
18 purpose either. When the district court learned at the April 27, 2004 hearing that
22
1 Julia and Rachel had been placed with Melissa Brown, the court expressed its
2 disappointment that CYFD had “found a way to get around [its] ruling” but did not
3 order a change in placement. Even three months later, when the Mercer-Smiths
4 moved to initiate civil and criminal contempt proceedings based on CYFD’s violation
5 of the Placement Order, the district court did not order CYFD to find an alternate
6 placement. Instead, the district court allowed Julia and Rachel to remain in the
7 independent living situation with Melissa Brown until they aged out of the system.
8 Only then did the district court finally hold CYFD in contempt. It took the district
9 court over three and one-half years to adjudicate the contempt proceedings once it
10 was apprised of the placement in April 2004. It took another almost four years for the
11 district court to impose a sanction for the violation of the Placement Order. Because
12 of the inordinate amount of time that it took to adjudicate the contempt proceedings,
13 placement of Julia and Rachel was no longer an issue and CYFD never had an
14 opportunity to cure its non-compliance. By the time that the district court entered the
15 almost $4,000,000 award in favor of the Mercer-Smiths, the sanction imposed could
16 no longer be fashioned in such a way to compel CYFD to comply with the Placement
17 Order. The time for the opportunity to impose a coercive sanction had already lapsed.
18 {28} Based on the foregoing, we conclude that the contempt proceedings in this case
23
1 were not instituted either to preserve and enforce the rights of the Mercer-Smiths or
2 to compel obedience to the district court’s Placement Order. Accordingly, the almost
3 $4,000,000 award could not have been remedial and was, therefore, purely punitive
4 in nature. The punitive nature of the award in this case seems obvious—once
5 remedial sanctions were no longer available to the district court, the purpose of the
6 award was “to punish [a] completed act[] of disobedience that . . . threatened the
7 authority and dignity of the court.” Concha, 2011-NMSC-031, ¶ 26. Punitive
8 sanctions, however, can only be imposed for criminal contempt of court and only if
9 the alleged contemnors were afforded adequate due process. See id. (“A criminal
10 contempt defendant is . . . entitled to due process protections of the criminal law, . . .
11 including the requirement that the offense be prove[n] beyond a reasonable doubt.”
12 (internal quotation marks and citation omitted)). There is nothing in the record below
13 indicating that the district court afforded CYFD these protections once the criminal
14 contempt portion of the proceedings was dismissed. Accordingly, the district court’s
15 contempt order cannot be affirmed as a valid exercise of civil or criminal contempt
16 power.
17 {29} As we have done in the past, we remind courts of their duty to exercise their
18 contempt powers cautiously. Int’l Minerals & Chem. Corp. v. Local 177, United
24
1 Stone & Allied Prods. Workers, 1964-NMSC-098, ¶ 18, 74 N.M. 195, 392 P.2d 343;
2 accord Concha, 2011-NMSC-031, ¶ 30. Because the “power of a court is so
3 broad[,]” it is “uniquely liable to abuse.” Concha, 2011-NMSC-031, ¶ 29 (internal
4 quotation marks and citation omitted). When the purpose for exercising the contempt
5 power is punitive in nature, it should not be stretched to fit some sort of remedial
6 motivation. A court should determine, from the outset, the purpose for which it is
7 exercising its contempt power so that it can fashion an appropriate remedy. Id. ¶ 45
8 (“A judge’s exercise of the contempt power must be tailored to the contemptuous
9 conduct, exerting just enough judicial power to right the wrong; no more, no less.”).
10 The district court in this case failed to abide by these mandates.
11 III. CONCLUSION
12 {30} The district court did not exercise its contempt power for the purpose of
13 preserving the Mercer-Smiths’ chance of reconciliation with Julia and Rachel or for
14 the purpose of coercing CYFD into compliance with its Placement Order. Therefore,
15 the contempt order cannot be upheld as a proper use of civil contempt power;
16 accordingly, we reverse the contempt order. Because the compensatory damages and
17 award of attorney fees and costs cannot stand under an improper contempt ruling, we
18 vacate the entire award. For the same reason, we deny the Mercer-Smiths’ request
25
1 for attorney fees incurred as a result of the proceedings in this Court.
2 {31} IT IS SO ORDERED.
3
4 ___________________________________
5 PETRA JIMENEZ MAES, Justice
6 WE CONCUR:
7 ___________________________________
8 JUDITH K. NAKAMURA, Chief Justice
9 ___________________________________
10 EDWARD L. CHÁVEZ, Justice, retired
11 Sitting by designation
12 ___________________________________
13 JENNIFER E. DELANEY, District Judge
14 Sitting by designation
15 ___________________________________
16 JOHN J. ROMERO JR., District Judge
17 Sitting by designation
26
State Ex Rel. Children, Youth & Families Dep't v. Mercer-Smith
Combined Opinion