Qualified Immunity

by Aime Austin

  Otis defied popular convention, a redhead wearing a mauve suit. The cut of the suit was conservative, but sparkly stockings peeked under the A-line skirt.

  Judge MacKinnon spoke to the witness. “Mrs. Otis, in your written report, you recommend I grant the county temporary custody of the child. Having now heard the testimony, would you care to supplement your report?”

  Otis made a show of slipping on her reading glasses and scouring her legal pad. “Thank you, Your Honor. After meeting Olivia and Sheila, I have no doubt of their strong bond and love for each other. But love isn’t enough.

  “Alcoholism is not a problem to be treated lightly. Neither is the participation of a father in a child’s life, nor the learning disability diagnosis. I think there’s a problem with Sheila and drinking, and I think that her admission would be a huge first step. I’m also concerned that Mom missed the ADD diagnosis. I don’t think she’s in the best position now to make the necessary accommodation for Olivia.

  “Don’t get me wrong. I think all of this is fixable. But I think Mom needs some time apart from her daughter to get through rehab and get the training she needs for Olivia’s problems.

  “Also, Mom should consider getting Olivia’s biological father involved in the girl’s life. I think individual counseling for the child wouldn’t be unwelcome, either.”

  Casey stood. “If I may, I have a few questions for Ms. Otis.”

  Judge MacKinnon nodded. “Go ahead.”

  “How many times did you meet with Judge Grant?”

  “One.”

  “How many times in the last four months have you met with Olivia?”

  “Once.”

  “You didn’t think this case was important enough to meet with the child more than one time, yet you’re making a recommendation about her custody?”

  “Objection!” Foster shouted.

  “I withdraw the question,” Casey said. “Nothing further.”

  The court treated Otis with kid gloves. “I know you have one of the hardest jobs in juvenile court,” MacKinnon said. Guardian was a thankless job and there was no reason to alienate the few who’d take it on despite the meager pay. “I thank you for taking the time in this case.” To everyone, MacKinnon said, “I need to review all of this. I’ll be back in a few minutes with my decision.”

  As MacKinnon made her way to chambers, Jackie Foley burst back into the courtroom, her agitation palpable. Casey looked from Foley to MacKinnon. But used to comings and goings, the judge sat and began.

  “Ms. Grant, I have to make two decisions. First whether, as statutorily defined, Olivia is abused, neglected or dependent. And if so, whether a disposition of temporary custody is appropriate.

  “I think it’s clear to me, everyone who testified, and to you, that there are certain problems in your home. Olivia’s conversations with her school counselor, Alison Feingold, bear that out.

  “And Ms. Cort, while I’m sympathetic to the plight of African Americans in foster care, I’m not sure if Ms. Whitcomb’s testimony is relevant. If it’s true about the percentage of black children in foster care, that’s truly sad. However, it has no bearing on this girl, and this mom, and this case.

  “Anyway, the complaint alleges abuse, neglect, and dependency. When it comes to abuse, I’m not willing to make that leap. I haven’t heard enough evidence here today to suggest anything like that is going on in the home. As far as neglect, that’s a different matter.

  “Part three of the statute says a child is neglected if his or her medical needs are not addressed. It’s clear in this case that Olivia’s diagnosis of ADD was overlooked. Mom, you missed the boat on that one. Looking at Olivia’s IQ, then her school performance, you should have had her tested, diagnosed, and treated.

  “Based on the testimony before this court, I’m adjudicating this child neglected. Next we must deal with disposition.

  “Ms. Grant, I have two options. I can place your child in your home under protective supervision or place Olivia in temporary custody, which will mean a foster home.

  “I don’t know how serious a drinking problem you have, but I can see that you don’t have it under control. In this, as in any case, I would consider placement of the child with her father. Either you don’t know, or you won’t tell us who the father is. For these reasons, I’m placing Olivia in the temporary custody of the Cuyahoga County Department of Children and Family Services. I’ve also reviewed the case plan, and I’m making it an order of the court.

  “Ms. Grant, I’m aware that you’ve made no effort to comply with the case plan, as was your right. Now that it’s an order of the court, I suggest you get into treatment and get this done. The sooner you complete it, the sooner Olivia can come home. I don’t see why Olivia can’t be home before summer.”

  Judge MacKinnon continued, “Let’s do the housekeeping. We need to pick a review date. How’s June eighth?” No one objected, and the judge’s clerk marked the date in the calendar. “June eighth it is. Good luck, Ms. Grant.”

  Forty-Five

  Disclosure

  January 16, 2002

  Not without irony, Casey thought about drowning herself in alcohol. Good thing no one would take her cat Simba away for imbibing a few too many.

  No time to wallow in the biggest loss of her career, that could wait until later. She had to show the client she would press on. “Judge Grant, I’ll file an immediate appeal. There’s no way the court could find neglect. There was no clear and convincing evidence.”

  “Tomorrow,” Judge Grant snapped. “I’ve just lost my daughter. I have to get back to my chambers. I need time to think.”

  Casey stuffed papers, folders and everything else in her leather barrister’s bag. Pushing the brass clips down into the locks, she gave the approaching Jackie Foley the evil eye.

  “Miss Grant? I need to talk to you about Olivia?”

  “Can’t you give me a break?,” Judge Grant made no effort to hide her exasperation. “You won this round. I have your case plan. I’ll call you when I’m ready.”

  Casey hefted her bag and placed a light hand on Judge Grant’s arm. There was no reason for either of them to hang around the courtroom, burning bridges. Judge Grant was right, once the initial anger passed, they’d be better equipped to take the next step.

  “Miss Grant, it’s not that. Something happened to Olivia,” Foley said.

  Judge Grant flipped her phone closed, piercing Foley with a stare Casey hoped was never aimed her way. “What’s going on?”

  Dick Foster had joined their little circle. Foley looked from Foster to Judge Grant to Casey, unable to meet anyone’s eyes. “Maybe we could go to the conference room,” Foley said tentatively.

  “Can you just tell me? There’s no reason to beat around the bush, Ms. Foley,” Judge Grant said, still poised to leave the courtroom.

  Foley wasn’t ready to leave, though. She sat heavily at counsel table. Casey had no choice but to drop her bag and wait. Judge Grant did the same. Foster bounced from the ball of one foot to another.

  “I really think,” Foley started then stopped. “Okay.” A deep but fractured breath made the worker’s chest heave. “I just got off the phone with our psychologist…. We think it’s possible Olivia was molested in her last foster home.”

  Judge Grant’s phone shattered when it hit the floor. Plastic nicked Casey’s ankle, while the other pieces skidded throughout the courtroom. Casey tried not to cry for this girl she’d never met, or her client when Grant sank to the floor, face in her hands.

  Pushing sympathy aside, Casey went into litigator mode. “What are you talking about?” She rounded on Foley, getting down into the worker’s face. “Did the father attack her?” Foley shrank back, but Casey pressed on. “Is there a history of abuse in this home?”

  “At the last home, the other child there, a boy, had an abusive history. We were only keeping him there until we could find a bed at the Bassett therapeutic group home.”

  A lot of words had left Foley’s m
outh, but Casey still wasn’t getting it. “What happened exactly?” she asked. She looked down at her client, but Judge Grant had yet to show her face. But the gentle shaking of her wool clad shoulders suggested the mother was crying.

  “Valene Winstead called. Olivia disclosed that her foster brother had…seduced…her.” Casey tried not to flinch at the awkward language. But rape was a far less pleasant word. “Dawn Palomo picked her up this morning and took her to see,” Foley looked down at the small piece of paper in her hand, “Dr. Konakowitz at Euclid. From what’s he’s saying, the boy may have had intercourse with her.”

  At the end of Foley’s disclosure, Judge MacKinnon, free of her black robe, came to the bench to collect some papers she’d left. “Court was adjourned.”

  Before the judge could admonish them for using her courtroom while not in session, Foster made his way to the bench, speaking to the judge in hushed tones. MacKinnon pressed buttons on an intercom, and seconds later, a court clerk and county sheriff escorted them all to the judge’s chambers.

  Judge Grant sat in one of the two chairs, her face stoic. Foster didn’t fight Casey for the other chair. Instead he and Foley stood, backs to bookcases against the far wall as if waiting for a secret passage to open up and save them from this situation.

  “Social worker Foley, am I to understand that Olivia Grant was raped while she was in the Williamses’ home?” Judge MacKinnon asked, all pretense and confidentiality gone.

  Foley looked pained. “Judge, Your Honor, foster home information isn’t supposed—”

  “Ms. Foley, do not lecture me in the law. Answer my question.”

  “Yes. Jermaine, the other child in the home—”

  “How did this happen?” Judge MacKinnon barked out the question.

  Foley’s voice grew quieter. “He…Jermaine came from a traumatic background. His mother was doing drugs and the boyfriend-drug dealer beat him, starved him, and molested him. When the boy’s behavior got out of control at the last foster home, we moved him to the Williamses temporarily.

  “They’re known to be a strict family and Jennifer—that’s his worker—thought it wouldn’t be a problem to have another child in the home if precautions were taken. Jennifer was just waiting—”

  “What’s the boy’s full name?”

  “Jermaine Hickle.”

  “Where is he now?”

  “He’s being transported from the Bassett home to the Juvenile Detention Center today.”

  “Mr. Foster, is your office going to press charges?”

  “If the allegations are sustained, of course we will.”

  Casey watched his exchange, speechless. Judge MacKinnon’s gaze finally rested on her client. “Ms. Grant, I can’t say how sorry I am about what happened to your daughter. I will make sure I do everything in my power to make sure the county does whatever is necessary to make sure your daughter is safe.”

  “Like you did for Precious Evans?”

  Judge MacKinnon shook her head, perplexed. Who was Precious, Casey wondered. But before she or the judge could pursue that line of questioning, Judge Grant continued. “Are you going to send my daughter home?”

  “I can’t do that. I’ve already made an order. I’m very upset that Mr. Foster and Ms. Foley didn’t see fit to bring this to my attention before we ended this trial—but it may not have changed my opinion.”

  “How could it not, Your Honor?” Grant asked, her voice laced with scorn. “All the things you’ve accused me of are not as horrible as what has happened to my daughter in your custody. I mean, everyone’s heard all the terrible things that can happen in foster homes. Now they’ve happened to my daughter. Why would any parent want to comply with your crazy demands when you don’t have your own house in order?” Sheila said.

  “Judge Grant, please try to control your temper,” Judge MacKinnon said.

  “Control my temper? You’ve damaged my daughter for life. Will she ever get her self-esteem back? Will she ever have normal relationships? Will she ever trust me again?”

  “I understand your pain, Judge Grant.”

  “No, I think you don’t.”

  “You know, you’re right. I probably don’t. I’ve been in the juvenile court for a few years now, and I know that it’s not a perfect system. Why don’t we do this?” Judge MacKinnon paused for a long moment. “Ms. Grant, has your daughter had her first period?”

  “Yes,” Judge Grant nodded, her face stricken as realization dawned.

  “Make sure a pregnancy test was completed with the rape kit. If not, I’m ordering that immediately. The child needs to be able to make an informed choice should it come to that.

  “Next, Ms. Foley, I want you to arrange for Ms. Grant to have visitation with Olivia every day for the next week. Olivia’s going to need her mother’s support.”

  “Your Honor, you know that at most we have visitation every other week at Metzenbaum.”

  “Ms. Foley, I’m well aware of the county’s practices and procedures. This girl has been injured in your custody. I am ordering you to make the necessary arrangements for this. This is a court order, so you can run it up your chain of command if you must. But you will comply.” Judge MacKinnon turned to Dick Foster. “Is this order going to be a problem?”

  “No, Your Honor.”

  “Then we’re done here.”

  Forty-Six

  Appeal

  March 14, 2002

  Casey stood as tall and straight as the columns in the grand courtroom.

  “May it please the court,” she started, her voice echoing in the rotunda. “My name is Casey Cort and I represent the appellant, the Honorable Sheila Harrison Grant. Her appeal rests solely on one assignment of error. The juvenile court erred when it found clear and convincing evidence of neglect and awarded temporary custody to the Cuyahoga County Department of Children and Family Services.”

  As was their right, the three appellate judges hearing Casey’s appeal interrupted her carefully crafted speech.

  “Ms. Cort, are you saying the testimony of the school counselor was insufficient?” one asked.

  “Yes. The single conversation Olivia had with Alison was the only evidence of the mother’s alleged drinking problem.”

  “What about the child’s undiagnosed ADD?” another asked.

  “The appellant strongly disagrees with that diagnosis.”

  “Did she get her own diagnosis? Seek a second opinion? We didn’t see evidence refuting the county’s doctor in the record.”

  Casey was silent for long seconds. Had she made a grievous error? Should she have requested a medical exam, hired her own expert? She shook her head imperceptibly. She’d followed her client’s defensive versus offensive strategy and this was the consequence.

  Thoughts gathered, she answered, “My client’s limited access to her daughter made that difficult. As you can see from the transcript, the county accuses her of neglecting her daughter’s special needs, then literally tossed her out of a therapy session that would do just that.”

  “Thank you, Ms. Cort. We’ll hear from the county,” a judge said.

  Dick Foster rehashed the same arguments about Sheila’s drinking problem and Olivia being a special needs child.

  “Did you remove the child because of the untreated ADD or because of the drinking problem?” a judge asked.

  “The drinking problem is what’s in the complaint,” Foster answered.

  “Did you amend the complaint?”

  Foster shuffled through the papers, buying time. “No,” he said, his voice hesitant.

  “How is it,” the judge leaned forward, “that the county’s claiming the mother is neglectful for missing the diagnosis? Isn’t that like saying the mother’s neglectful because the child was sick? What if she wasn’t sick on the mother’s watch?”

  “It’s not only that, Your Honor. The child now has special needs. We’re not convinced the mom’s equipped to deal with these needs.”

  “You’re going to rest on the idea th
at a well-educated federal judge with time and resources can’t ‘get up to speed’ on ADD?”

  Foster backtracked in a hurry. “No, we’re not saying that she can’t. Mom hadn’t completed anything on the case plan at the time of the trial. The county likes to supervise the parents during this process to assure the child’s safety.”

  “So which is it: alcohol or learning disability?”

  Foster ducked the question, and argued the same two points again before finally taking his seat. The three judges looked from one to the other and promised to consider the matter. Casey left the courtroom, energized. She might have a chance to finally get justice for the judge and the girl.

  Two weeks later, Casey was summoned back to the Court of Appeal, an unprecedented move. Quickly, she reassembled her file, the articles from the Plain Dealer and Sun Newspapers concerning Judge Grant and Olivia’s coincidental disappearances, and braving the stiff Lake Erie wind, ran to the courtroom. This afternoon, Foster, Casey and the judges were in a smaller sun filled room next to the marriage application office. It didn’t have the gravitas of the first.

  The presiding judge spoke soon after everyone was seated. “Ms. Cort, we called you and Mr. Foster here, sua sponte, because it has come to our attention that the facts have changed. We’re taking judicial notice of the news reports, and sheriff’s report that suggest Judge Grant has illegally removed her daughter from the county’s custody.

  “It is the decision of this court that in the matter of Olivia Grant, the appeal is hereby dismissed. It will not be said that our court will honor the appeal of a fugitive from justice. Therefore, it is the further order of this court, that the appeal is hereby dismissed with prejudice.

  “Ms. Cort, you’ve done an admirable job here. We were going to reverse the judgment of the trial court. What happened in this case is a tragic perversion of our child protective system. Your client should have trusted the system of which she’s a part. But we cannot condone law breakers. If the fugitive returns to this county, she will be taken into custody. The county will be well within its rights to seek permanent custody.