Qualified Immunity Page 2

  “All rise!” the bailiff cried. The people in the mostly empty courtroom reluctantly shuffled to their feet. Glad that her water-filled carafe, glass, and the court’s file were in order on the bench, Sheila sat in the high backed chair. Taking a swig of water, she washed the bitter taste of the pain medication from her mouth.

  “Gentlemen. Are you prepared to argue on the motion to dismiss filed by the county?”

  “Yes, Your Honor,” the attorneys said in unison.

  “Prosecutor Richland, it’s your motion. You may proceed,” Sheila said.

  Richland, buttoning his suit jacket, came to the podium.

  “May it please the court,” Richland began then adjusted the microphone. The thick carpet and velvet drapes adorning the courtroom muffled his voice. “I’m assistant County Prosecutor John Richland representing the Department of Children and Family Services.

  “Precious Evans has sued the county for a huge amount of money for pain and suffering, and specialized counseling. The court should dismiss her complaint. The law is well settled that the county is immune from liability because none of the social workers were indifferent to her care. Any time they found a problem, Precious was moved to a new placement. What happened to the girl was just a few unfortunate coincidences.”

  Sheila had to interrupt him.

  Using both her own and the bench’s height to full advantage, she spoke. “Prosecutor Richland, I think ‘unfortunate coincidences’ is rather crude terminology for what happened. Looking at the complaint, it appears that this girl has already been in nine different homes. Is that true?”

  “Yes.”

  “Nine homes and she’s been abused at more than one county placement.” Sheila’s head swam as she drifted into silence. Having lost her train of thought, she stopped to read the summary of the case her law clerks had prepared. Regaining her composure, she spoke again in as authoritative voice as she could muster around the bile in her throat. “If my recollection of the record is correct, the girl contracted gonorrhea as a baby at one foster home, was sexually abused by a neighbor of a different foster parent, and was physically beaten at yet another placement. Is this true?”

  “Yes, Your Honor,” Richland said. “But the county is not directly responsible for any of these incidents.”

  “You don’t think the county is responsible for returning this child to an abusive situation with her parents or failing to investigate the abusive foster homes before you put her there?” Sheila asked.

  “Every time the county became aware of a bad placement, she was moved—almost immediately.”

  “So, this child, Precious, who’s going to need thousands if not hundreds of thousands of dollars of therapy gets what from the county? Aren’t they the least bit responsible for this? They were, after all, the indirect cause of her trauma and abuse.”

  Richland hesitated under her relentless questioning. Good, she liked them running scared. His voice quavered a little when he spoke. “Your Honor, I go back to our qualified immunity argument.”

  He wasn’t that good of a lawyer. If the law weren’t on his side, she’d never rule in his favor. Though Sheila knew her ruling well before she ascended the bench, she wanted to hear from Murphy. Maybe he would say something to assuage her guilt, because the legally right decision wasn’t going to be the morally right one. As a mother, the thought of leaving a child in the custody of those who had abused her made her already queasy stomach roil.

  “Mr. Murphy, your rebuttal?”

  “This girl could only hope for normalcy. Our experts have figured that it’s going to take years and a lot of money for this girl to lead a normal life. If Precious doesn’t get a chance before a jury to put this travesty of a foster care system on trial, she’ll never be justly compensated.”

  “Mr. Murphy, you’ve pretty persuasively laid out all this girl has gone through. But since she’s already in the county’s permanent custody, aren’t they already responsible for this girl’s care? And if she did go to trial and did win a big money judgment, who would be working with the Probate Court to manage that money?”

  She had to give him credit. Patrick Murphy didn’t miss a beat. “Our office is prepared to handle Precious’ monetary…arrangement…with court supervision, of course. Sure the county will care for her, but DCFS is on a tight budget; there are thousands of kids. She’s had a bad shake. The county needs to make it up to her now and after she ages out.”

  As Precious’ guardian ad Litem wound down, she turned her attention to the clock on the far wall of the courtroom. The remainder of the morning docket stretched before her. Precious tugged at her heart, but her job was only to decide the legal issues. And in this case it was relatively simple. Was the county responsible for the abuse at the hands of foster parents?

  No.

  The Department of Children and Family Services was immune from lawsuits when they tried their best. They were cavalier, but not deliberately indifferent. The county would win, and Precious would have to fend for herself.

  She closed the case file, opening another. “Gentlemen. You’ll have my written decision within a few weeks.”

  Three

  Guardian ad Litem

  October 9, 2001

  Casey Cort’s hand-me-down Honda Accord sputtered along Superior Avenue. She tried not to let the red needle hovering around the ‘E’ on her gas gauge freak her out. The young lawyer needed to complete the visit to her client DeAndre Nelson today. Her wallet was empty, save for a few pennies and some lint. She needed to get her task done and get home before she ran out of gas.

  Slowing down and looking at each street sign carefully, Casey knew this wasn’t the case to bolster her bank account. She’d already spent too many hours on it. At forty dollars an hour with a cap of two hundred fifty on fees, she was running against the clock.

  Steering with one hand and looking at the map of the east side of Cleveland with the other, Casey swung a quick left on East Seventy-first Street, then a right on Lockyear, her destination. Checking the address her assistant Leticia had written on the folder, Casey pulled to a stop in front of the foster mother’s house. She peeked at the file again. Kendra James was her name.

  Few cars occupied this inner city Cleveland street. The neighborhood’s solitude disturbed her. Casey reached into the back seat and hauled out the heavy red metal lock, bracing the Club against the steering wheel when she saw several black men loitering on the corner in front of a decrepit mom and pop shop. She got her briefcase from the seat beside her, and walked around to the passenger side to lock the car’s doors. The driver’s door lock hadn’t worked since her car had been broken into during another visit to some foster kids. One more thing she couldn’t afford to fix.

  Casey looked for the doorbell. There was none. She knocked carefully at the rotting wood of the screen door, careful not to knock it off its hinge. Waiting by the door, she marveled how these foster parents were nearly as poor as the kids they were ‘helping.’ Finally, a smartly dressed woman let her in.

  “Kendra James.” The woman extended her hand, inviting her in.

  While she disappeared to get DeAndre, Casey took a seat on a sunken couch smelling faintly of things she didn’t want to consider. She watched as two little kids, red Kool-Aid rings staining their mouths, sat catatonically in front of a television blaring cartoons.

  The uneven acoustic drop ceiling was stained, while bowed wood paneling stood out from the wall like a sail full of sea air. Carpet curled away from the walls. She’d hate to be here during a hard rain. A cherubic baby perched on Kendra’s hip as the woman strode from the back of the house.

  “So, how’s he doing?” she asked after dispensing with the usual preliminary questions. “Any problems? Is the mom getting visitation?”

  Babies were the hardest cases. They didn’t talk so Casey was forced to make custody determinations weighing the opinions of social workers and foster parents. ‘Best interests of the child, the statute said.’ What’s best for someone w
ho can’t tell you if cold water drips on him at night or if rats nibble at his tiny toes? Kendra slid the sleepy child into a crank-up swing. Casey leaned in to have a look. Shrugging inwardly, she supposed the baby was normal—though she hadn’t seen many babies in her life.

  Kendra sat heavily on a recliner and answered her question. “The mom’s not an issue in this case. The social worker, Ms. Pachencko said that my husband and I could adopt him in a couple of months.”

  Had she wandered into some dystopian world? Fostering was temporary by its very definition. Casey sunk deeper into the smelly cushions. The mom wasn’t an issue? The mother was always an issue. Parents had fundamental constitutional rights. Even if the new laws cut off parents’ rights quicker, it didn’t make them any less important.

  “Ms. James,” Casey started captiously. “I think we must have our wires crossed. Right now, DeAndre is not eligible for adoption. The county has only removed him from his mom temporarily. The social worker is a Ms. Pachencko, did you say?” Kendra nodded, so Casey continued. “She should have a case plan in place so the baby and the mom can work toward reunification.”

  Kendra James blinked a couple of times as she took in the information. “Oh…but…I’m sorry—I, I thought when we agreed to be a foster-to-adopt home that we’d only get kids we could eventually adopt. I really want to be a mom.”

  “I’m sorry, Mrs. James, but in DeAndré’s case, it doesn’t work that way.”

  “But if the mom’s in jail, or dead, why can’t we have him?” Her voice was bordering on a whine.

  Because babies aren’t dogs that you pick up at the pound after a three-night stay. Casey bit her lip, keeping her opinion to herself. “Why don’t you talk to Ms. Pachencko about that? In the meantime, I need to find out where the mom and dad are—make a determination of whether reunification with the family is a good idea here.” Kendra looked so distressed, that Casey softened her tone, mollifying the foster mom as best she could. “We need more people in the foster care system like you and your husband.”

  With that, Casey gathered her papers, took another quick peek at the sleeping child, then left the James’ residence.

  Casey started the car. She eased her foot onto the gas pedal, hoping to conserve what fuel she could, when a fist banged against her passenger window. Remembering the men down the street, she started and slammed her foot on the brake, bucking the car. It was only Kendra James, though. Turning an engine on and off used more gas than idling, she suspected, and shifted the car to neutral. Leaning across the passenger seat, she rolled down the last manual window in Northern Ohio.

  “We paid her, you know.”

  “Paid who? What?”

  “Trish said if we paid her, the next eligible baby would be ours. We’ve been giving her half the check that comes for the kids. I really want this baby. I…I can’t have my own. Please. What do you need from us to make this little boy ours?”

  Flabbergasted, Casey couldn’t think of an appropriate response. “I’m sorry, Ms. James. I can’t help you.” She pulled from the curb, the tires squealing in protest.

  What in the hell was this Pachencko woman up to? This was far from an easy case. Any profit she could have made on this one had just gone up in smoke. Before Carnegie turned into Stokes, the car sputtered to a stop. Shit. She pulled the automobile club card from her glove compartment and hoped her membership fee would cover the cost of getting a gallon of gas out here. Maybe she should have taken Mrs. James up on her offer.

  Casey’s rent was due in a few days. Her bank account was looking nearly as grim as her wallet. As she punched in the toll free number for the motor club, Casey thought not for the first time, she had to give up these time-sucking, money-losing cases. Doing the right thing is what had landed her in this predicament in the first damn place. She was tired of being right. She’d rather be rich.

  Four

  The ‘Burbs

  October 12, 2001

  Doodling her way through fourth period Geography class, Olivia drew a heart and penciled in her name and above it, Jon Heath’s. Reaching under the scarred wooden chair, she got another pen from her backpack, and filled in the lopsided heart with red ink.

  The whole Shaker Heights Middle School thing—in the suburbs—was new for Olivia. Since her mom had gotten the job as a judge, she’d said in her lecture voice that it was important to change the way they lived their lives. That meant moving from the city to the wrong side of tony Shaker Heights, and her mom acting like a poser in her new Lexus. Gone were the days where she could blend into the background of her Glenville neighborhood.

  Every adult she ran into when she was with her mom talked on forever about how Shaker was one of the finest school districts in Ohio and how grateful Olivia should feel to live there. How it was so much better than her Glenville school. To the outside world, Olivia guessed, the Heights, Shaker, Cleveland, and University looked ideal. But Olivia hated that she was only one of a handful of black students in regular or honors classes. The teachers talked down to her as if she were retarded or something, like she was going to flunk out of school or get pregnant tomorrow. It drove her crazy. But she had enough good sense to know that she shouldn’t confront these particular bigots head on.

  The white students were friendly enough, on the surface. Like her, they listened to hip-hop music, and dressed in so-called urban gear—even if theirs came from the Beachwood Mall. But other than Cate’s one party, she didn’t get invited to the others she heard whispered about after class. Worse, the boys didn’t even act like she was a girl worth talking to. Some days she just wanted a boyfriend—

  “Olivia? Olivia Grant! Are you with us today?” Mr. Donaldson asked, snapping Olivia from her reverie.

  “Um, sorry. I didn’t hear the question,” Olivia said straightening in her chair, trying to look alert.

  Mr. Donaldson’s sigh was full of exasperation. “Okay, I’ll repeat the question for those of you not paying attention. What are Russia’s five major rivers?”

  A sweat broke out on Olivia’s top lip, as a trickle of moisture ran between the cups of her training bra. Watching teen dramas last night had not prepared her for today’s lesson. Desperate for an answer, she flipped through the current chapter, but her gathering tears blurred the information in front of her.

  “Uh, the V-Volga,” Olivia stammered then stopped, unable to remember any others.

  “Olivia, I know you’re new here. But I want you to stay after class so that we can discuss student expectations in Shaker Heights,” Mr. Donaldson said.

  A few students tittered at the rebuke. Olivia sighed and looked down at her new watch with its hot pink wristband. The second hand wasn’t moving fast enough. She wanted this class and the humiliation that went with it to be over, now. Watching the thin red clock hand make its sweep, Olivia hid a little smile. In an unusual fit of generosity, her mom had purchased the watch for her while they were picking up cleaning supplies at Target. Though it wasn’t like the other kids’ expensive jewelry—she was sure they never shopped at discount stores—she was still glad to have something new that was all her own.

  Being chewed out by her Geography teacher wasn’t enough to get her to pay attention to more boring European river talk. Who cared about the Rhine or Danube? She was really looking forward to her first ‘For Girls Only!’ club meeting after school. Her new guidance counselor, Alison Feingold, had personally invited her.

  Alison had been so nice when Olivia had come to her office that first nerve-wracking day. Olivia was anxious about starting in the middle of the school year, but Alison had put her right at ease. It was the first time she’d ever met with a guidance counselor. At her last middle school, there was only one guidance counselor, and she’d only had time for the troubled kids. Alison wasn’t like a counselor at all, she was so cool. She’d said Olivia could call her by her first name, and talked to her like an adult.

  “Welcome. Welcome to Shaker Heights Middle School.” Alison had stood when Olivia first cam
e into her office.

  Olivia had looked at Alison shyly, “Thank you.”

  “Please sit down,” Alison said after formally shaking her hand. “It’s so nice to meet you. So, this is your first day here at Shaker?” Alison asked rhetorically.

  Olivia nodded.

  “Well then. Let me tell you a little bit about our school. Shaker is committed to providing you with a great education in small classes and teams, like a school within a school. Obviously, you’ll be joining us a bit late in your academic career, but we’ll try our hardest to make sure that you fit in socially, and more importantly, academically.

  “Each grade is divided into teams. This means that you and about a hundred other students will have the same teachers for your four core subjects: English, Math, Science, and Social Studies. The whole school shares the rest of the teachers for electives.

  “I want you to understand that our school is a lot different than your old school. The teachers here have your best interests at heart. We all meet regularly to discuss every student’s progress. If we believe you have any problems with the work, we’ll be there to help you before your academic career goes awry. Our main focus these days is making sure you’re prepared for the Ohio proficiency exams that you’ll take in the spring.”

  Olivia took it all in, wondering if Alison ever stopped for a breath. “Your file says that you’ve come from Bethune Middle School.” She paused after Olivia’s small nod of assent. “Now, I know that some of the Cleveland schools have good programs. But in the last few years, Cleveland has fallen behind in exam performance. Despite the budget crunch, our schools have been voted one of the best districts in the state. We don’t take that honor lightly. Our mission is to make sure every single student can perform at more than a minimal level. And now you’re going to be part of that legacy.” Olivia heard the subtext. Don’t come here and mess up our numbers.