Qualified Immunity

by Aime Austin

  Keith shut his eyes, no doubt unmanned by the tears welling in his eyes for the second time that hour. “I’m sure it’s Peyton Bennett. That man—he used to look at Sheila like he owned her. Came to the hospital when my baby girl was born. How could I have been so stupid? All these years…”

  They shared a quiet dinner, only waking Olivia to take her a small plate. The girl ate a few bites before going back to sleep.

  Valene had a rule about not staying over at a man’s house when you weren’t married, but she knew God would forgive her this one indiscretion. She made Olivia the biggest breakfast she could, fried catfish, grits, biscuits, gravy. After the girl tucked into her meal, she looked up at Valene.

  “I’m going to be late for school.”

  “Don’t worry about it. You’re going to miss school today. Your dad and I need to talk to you.” Valene repeated what she’d told the girl yesterday, that she couldn’t stay with them any longer.

  “But why not?” Something dawned in the girl’s eyes. “You don’t want me here anymore, do you?”

  “Oh, honey,” Valene said. “Of course we want you to stay. But the social worker said you’ll need to go to a special foster home where you can get help.” God wouldn’t strike her down for this lie. He couldn’t be that full of wrath.

  “Can’t you help me here?”

  “You know your daddy works nights and me, early mornings. We can’t take you to the special doctors you’re going to need. Don’t think we don’t love you, but the county has the power to decide what’s best for you right now. Your daddy and I have tried but we can’t fight that. We want you to get better, feel better, be better.”

  Valene watched the life leach from the girl’s eyes. She pushed away from the table. “I guess I better get my stuff.”

  “I packed your stuff for you last night. I gave you one of my best suitcases, and I’ve got all your new clothes in there. I threw out that other stuff.” Valene talked, trying to make up for what, she didn’t know. “I also packed some of my Seven-up cake. I know you like that…” God damned life wasn’t fair. She pulled a small cell phone from her pocket. “Olivia, I’m so sorry it has to be this way. I don’t know if you’re allowed to have this, but if you need anything, just call, and we’ll do all in our power to help—”

  A sharp honk outside cut off Valene’s good-bye. The harsh sound of the apartment’s buzzer followed. Keith got up to let a woman with a badge into the vestibule.

  “Olivia,” the woman said. “Do you remember me? I’m the one who takes you to Metzenbaum to see your mom. Jackie’s in court today. I’m here to drive you to your next placement.”

  “Where are we going?” Olivia asked, hefting her backpack and the suitcase.

  “You’re going to be all by yourself this time. The woman’s name is Marcelle Wormwood. She’s one of our best foster parents. Even better, she lives in Shaker. You’ll be back at your old middle school.”

  Valene turned a dishcloth over and over in her hands. She followed Dawn and Olivia out, down the front walk. She said a silent prayer. God needed to grant her this one wish. “Dawn, did you say your name was? Let’s talk over here for a second.”

  Valene watched Olivia shivering at the curb, her last silent entreaty leaving her lips and floating upward. “Do you know what happened with that child? Maybe you could let her stay for a little while. Through Christmas vacation, at least.”

  Palomo looked from Valene to Olivia and back again. “I could maybe lose the file for a couple of weeks—”

  Valene gathered Palomo’s cold hands between hers for a long moment. “Thank you. God will smile down upon you for this.”

  Forty-Four

  Temporary Custody [part 2]

  January 16, 2002

  If the weeks between the last aborted hearing and this day had passed slowly for Casey, she could only imagine what it had been like for Judge Grant. When the clerk opened the courtroom doors that morning, Casey quickly took her position at the counsel table along with her client.

  Judge Grant was very conservatively dressed in a dark gray wool suit, white blouse, and dark hose. Her hair and nails were meticulous. Casey had to look very closely to see anything amiss. But Judge Grant’s eyes were red and upon further inspection, the buffed nails and trimmed cuticles were on hands that trembled slightly.

  Judge MacKinnon came to the bench and started without preamble. “Are we on the record?” she asked the clerk. The tape recorder was whirring and the clerk nodded. The judge read the case number and Olivia’s name. She peered about the file in her hand. “Who’s missing?” The judge’s gaze swept the room. “Where’s Sherry Otis this morning?”

  When no one answered, Judge MacKinnon sighed. Turning to her clerk, she said, “Can you call around and get Otis in here?” Turning back to the assembly, Judge MacKinnon said, “We’re on the record. The court is planning to call Otis as the court’s witness last. Unless there’s an objection, in the interest of time, I’d like to go ahead.” When no objection was forthcoming, she said, “Mr. Foster, please call your next witness.”

  Dick Foster moved toward the podium. “We’d like to call Celeste Young to the stand.”

  The young looking social worker who came to the stand looked far more inexperienced than Casey had imagined. After the witness was sworn in, and she stated her occupation, Foster got to the meat of the matter.

  “How did you come to be familiar with the Grant child?”

  “It’s my job to investigate allegations. I was assigned when Olivia was taken into custody.”

  “Did you meet with Sheila Grant?”

  “Yes.”

  “What was the result of your first meeting with Mom?”

  “I was unable to get information from the mother. She was too upset by her daughter’s removal.”

  “Excuse me,” Judge MacKinnon interrupted. “Have you completed an intake on the mother?”

  Celeste shifted in her chair, turning to the judge. “No, Your Honor.”

  “Has Mom done anything on the case plan?” Casey tried not to close her eyes and rub her temples at the judge’s tone of incredulity. She was so tired of a system that expected every parent to roll over and play dead.

  “No, Your Honor,” came Young’s reply.

  Casey stood. “Judge MacKinnon, maybe I need to clarify. My client, Judge Sheila Harrison Grant, strongly opposes the allegations in the complaint and the disposition of temporary custody. The county will be unable to prove their case, because the allegations have no foundation. The county takes a few random incidents—my client falling asleep and not picking up her daughter, my client disciplining her daughter—a near genius, the tests show, by the way—for underachieving in school, and blows them up into neglect and dependency charges.

  “My client, Your Honor, is a good mother, who has unfortunately been swept up in this system because of some newly minted, overzealous school counselor trying to save the world, one child at a time.”

  The silent courtroom alerted Casey that she’d probably overstepped her bounds. The judge’s tone indicated that also. “Well, thank you, Ms. Cort. I say, I think we can dispense with your opening statement.” The judge paused and sorted through the papers on the bench. “So what we’ve got here is the agency saying Mom has a drinking problem and parents inappropriately. And on the other hand, Mom is saying that none of this is true?

  “You’ve got my attention, Ms. Grant. Most parents come in here contrite, ready to work on their problems. The agency usually doesn’t make mistakes. But there’s a first time for everything. Mr. Foster, your witness.”

  Casey cringed inwardly. Nothing like the judge admitting her bias up front. She felt like a lone soldier, trying to raise a flag over Iwo Jima. A platoon wouldn’t be half bad right about now.

  Foster collated his notes, starting again. “Ms. Young, what were the allegations you were to investigate?”

  “Objection, Your Honor,” Casey said. “He’s trying to elicit hearsay. We are all very aware
of the allegations in this case.”

  “Miss Cort, your objection is overruled. The Juvenile rules permit me to consider hearsay. And since this is a bench trial, I’m sure I can separate truth from fact.” To the witness, the judge said, “You may answer Ms. Young.”

  “The hotline caller said that Mom was having alcohol issues and was otherwise neglectful toward her daughter.”

  “Your witness,” Foster said to Casey.

  She stood. It was do or die. Her approach to this case could go one of two ways. She could keep it short and sweet, putting the burden of proof on the prosecutor. Or, she could do what most lawyers in her position do. Try to obfuscate matters with lengthy cross examinations.

  Walking toward the lectern, she made her decision. “Ms. Young, I’ll keep my questions brief. Did you personally witness Sheila Grant drinking? Or drunk?”

  “No.”

  “Have you ever seen Ms. Grant act inappropriately toward her daughter?”

  “No.”

  “No further questions.” Casey sat down, hoping the judge would be able to connect the dots when this case was done.

  “Mr. Foster, you may call your next witness,” Judge MacKinnon said.

  “Your Honor, I call Alison Feingold.” After Feingold was sworn, she stated her name, educational background and current employment. “How did you come to know Olivia Grant?”

  “I met Olivia when she started at Shaker Middle. I was assigned to a group of children. I made a point of meeting them one-on-one.”

  “How else have you come into contact with Olivia?”

  “She was a member of the ‘For Girls Only’ club.”

  “What’s that?”

  “It’s a peer counseling group. I wanted to do it to lessen the likelihood of bullying and queen bee behavior at the school.”

  “What prompted you to call the child abuse hotline?”

  “During one of our after school groups, Olivia asked, ‘How do I know if my mom drinks too much?’ Then when I talked to Olivia one-on-one, she reported that her mom routinely drank an entire bottle of rum each evening.”

  Foster paused, allowing the damning evidence to sit with the judge for a moment. Casey steeled herself to limit her reaction. The visual of a poor child watching her sloppily drunk mama plow through a bottle of eighty proof alcohol wasn’t lost on her.

  She stole a quick glance at her client. Judge Grant sat as stiffly as the chair holding her. Either she was the consummate actress or there wasn’t a lick of truth in what had been said. Casey suspected it was the former.

  Foster continued, “Did Olivia say she feared going home?”

  “Yes. She said that not only did her mom drink, but that she was verbally abusive as well.”

  “What was the verbal abuse?”

  “She said her mother was always angry at her for how much she weighed, how she ate, her grades at school. She said her mother had called her ‘a sorry excuse for a child’ that very morning.”

  Foster closed his folder with a snap. “Your witness.”

  “I represent Olivia’s mother, Judge Sheila Harrison Grant.”

  Alison looked at Casey, then at the judge, her pretty young face full of confusion. “I thought you were the guardian.”

  Casey plowed forward in case the judge caught wind of her interrogation sleight of hand. “Have you ever met Sheila Grant?”

  “Only when the county workers came to remove Olivia.”

  “Isn’t it true that you’ve never seen Judge Grant imbibe alcohol?”

  “Yes, but…”

  “Your Honor, please admonish the witness to answer the questions put before her.”

  MacKinnon did exactly as she’d asked, keeping Feingold where she wanted her.

  “I was asking you whether you’d seen Judge Grant drink.”

  “No.”

  “Have you witnessed any interactions between Ms. Grant and Olivia?”

  “She, Judge Grant, looked a little cross when she dropped off Olivia one day.”

  “So your basis for making a complaint to the child abuse hotline was solely the words of a bright twelve-year-old girl who admittedly was underachieving in school?”

  “Yes.”

  “Did you ever suspect Olivia of having attention deficit disorder?”

  “No.”

  “Did you consider it at all possible, with all of your education and training, that Olivia was looking for an excuse not to go home?”

  Casey could see the gears turning in the counselor’s head. If only she’d had second thoughts before picking up the phone. “No…” The counselor’s voice was markedly less confident than it had been ten minutes earlier.

  “Is it possible that Olivia blew a situation out of proportion? Is it possible a bright girl may have manipulated you?”

  “I…but…”

  “Your Honor,” Casey added a pleading note to her voice, trying to get the judge in her corner.

  “Please answer the question with a yes or no,” Judge MacKinnon said.

  “Yes.”

  Then Casey took a gamble. She asked a question where she didn’t already know the answer. “Why did you think Ms. Grant was an alcoholic?”

  “From the team meetings I attended, we were worried about Olivia. She was coming to our school from a single-parent home. She was a latch key kid from a poor, predominantly African American neighborhood in Cleveland. It’s just statistics that would make her mom, living in a stressful head of household situation, more susceptible to alcoholism.”

  Now it was time for the show. Casey walked from the podium back to the counsel table. She ruffled through some papers, pulling out a thick, stapled packet. “Ms. Feingold, here I am holding a copy of the U.S. National Comorbidity Survey. Are you familiar with this study?”

  “No.”

  “Here you go.” Casey handed her copy to Feingold. “Would it surprise you if I told you that the prevalence of alcoholism in African Americans was lower than white Americans?”

  “I don’t know.”

  “You don’t know. This is a yes or no question. Are you surprised to find out that there are a higher percentage of white alcoholics than black?”

  “Yes, no, I mean no…”

  “Are you aware that studies done at Howard University show that the perception in the white community is that there is a higher prevalence of alcoholism in the African American community?” Casey stacked two more stapled packets on the dais in front of Feingold.

  “No.”

  “No further questions, Your Honor,” Casey said as she plunked down next to Judge Grant at the counsel table. She was hardly able to keep the self-satisfied smile off her face. She’d shown Feingold to be exactly as her client had described.

  Judge MacKinnon looked at Dick Foster. “Any rebuttal, counselor?”

  “Not at this time, Your Honor. But I’d like to reserve the right to call Ms. Feingold later as a rebuttal witness.”

  “Noted.” Judge appeared to be looking at the clock on the far wall behind everyone in the courtroom. “It’s twelve-fifteen. Let’s break for lunch and reconvene at two o’clock.”

  At two-fifteen, the clerk pressed the tape recorder buttons with an audible click. “We’re back on the record in the adjudicatory phase of the temporary custody hearing in the Olivia Grant matter. Present this afternoon are Mom, Sheila Grant; her counsel, the prosecutor with a CFS social worker. Also joining us this afternoon is guardian ad Litem, Sherry Otis. Ms. Otis, so glad you could join us. I have your written recommendation before me. Has the matter in the other courtroom concluded?”

  “Yes, Your Honor. I’d like the opportunity to modify my recommendation based on evidence presented in this hearing.”

  “So noted, Ms. Otis,” Judge MacKinnon said. “Have you given counsel copies of your recommendations?”

  Fumbling with the leather portfolio in her lap, Otis extracted two packets. One she handed to Foster, the other to Casey. While the judge addressed technical matter, Casey flipped to the e
nd of the report. The conclusion disheartened her. The GAL had gone for temporary custody.

  Casey shoved the open report toward her client and pulled her legal pad closer to beef up her cross examination of the guardian. When Casey finally looked up, Foster called his next witness.

  “Your Honor, I call Jackie Foley to the stand.”

  Shifting in a suit that looked far from comfortable, Foley rose and took the stand. After stating the preliminaries, she stated that she was Olivia’s ongoing worker.

  “Can you tell that court what you’ve done as Olivia’s worker?”

  “I’ve placed Olivia in suitable foster homes and when it was appropriate, relative care. I’ve also been responsible for making referrals to deal with Olivia’s special needs.”

  “Let’s talk about her special needs, as you call them. What are they?”

  “Olivia came into the county’s custody and was diagnosed with ADD by a psychiatrist for the Cleveland school district.”

  “I know you’re not a doctor, but in layman’s terms can you describe attention deficit disorder?”

  “Olivia’s a bright girl, but has problems focusing in class. This has shown up in her underachievement.”

  “What’s being done for her ADD?”

  “She’s getting the medication she needs, Adderall and something to counteract it. Then she and her foster mom were enrolled in classes at Euclid Hospital.”

  “What’s the purpose of those classes?”

  “They teach the parent to help the child with organizational skills, focus, time management and prioritizing.”

  “Have those classes helped Olivia?”

  “Yes. She’s doing much better in school. Her foster mother said she was able to come home and complete her homework in a timely manner.”

  Dick Foster closed his folder. “One last question, how was Olivia doing in foster care?”

  “She was doing great.” Foley darted a judgmental look toward Casey’s client. That paternity snafu did not get anything off to a good start, she knew. It, along with all the other evidence, branded Judge Grant as cold and callous. “The structure was good for Olivia. They had morning calisthenics, week day chores, homework schedules and everything. Then she was moved to her father—um—Keith Grant’s house. I didn’t get a chance to visit her there. And of course we’re going to have to move her again.”