Custody of the State Read online

  Today, Mary Sue and Joshua were walking through the canyons.

  As they strolled, Mary Sue mused on how she and Joshua had come to be there—and why. And she also thought about Joe, locked in a jail cell, alone and separated from her. When she thought of that, she had to struggle not to cry.

  The October air had turned chilly, and Mary Sue closed up the neck of the thick red blanket jacket that she had been given by Katherine. Mary Sue’s attachment to her had grown quickly. She loved her Indian name, “Walking Song,” and she had, in just a few days, learned much about life on the reservation from her.

  Mary Sue had even learned a few words in the Lakota tongue. The family, she was told, was of the Sioux tunwan—“nation.” Within that group, they were also of the oyate, or tribe, of the Lakota. And within that, they were also of the Oglala “band,” or tiyospaye.

  As she walked with Joshua, she stopped and pulled the strings tight on the hood of his snow jacket. The little coat was vinyl, with a torn sleeve and an elbow mended with a brown leather patch. Katherine had donated that too.

  Mary Sue glanced at her watch. In a few minutes she would meet Katherine, who would drive her to the pay phone five miles down the highway next to a gas station. She wanted to call Will Chambers’ office and check in with him. She knew there was a chance that Will might not have returned from Delphi yet, where he was going to interview Joe in jail. But she had to call. She needed the reassurance of being in touch, perhaps being able to find out even the smallest morsel of information about the criminal charges that had been filed against her and her husband.

  Joshua was holding Mary Sue’s hand and trying to kick the stones that littered the canyon with his small feet. He was even breaking into an occasional silly rhyming song. Mary Sue was happy because he’d gone an entire day without throwing up after eating. Yet she knew she would soon have to get him to a doctor and pursue a diagnosis for his mysterious medical condition.

  But at that moment it was enough that she was safely out of reach of the authorities, that her little boy was happy, and that the two of them were hidden within the canyons of the Badlands.

  Mary Sue and Joshua went back to the small guest cabin after their walk. She had given Joshua a very light breakfast, which he had been able to keep down. She thought she would wait to feed him lunch until after their trip to the phone booth.

  After they’d waited only a few minutes, Katherine pulled up in her station wagon. They strapped Joshua into the car seat and headed down the long road that led to the highway. Katherine smiled at Mary Sue, but said little on the drive to the phone booth.

  Deep in thought, Mary Sue was wondering what news Will Chambers’ office might have. They pulled up to the phone booth, which stood alone along the highway at the corner of a small gas station with a lone pump. Next door was a small grocery store. Katherine pulled the car off the highway and parked in front of the gas station.

  She turned to Mary Sue. “You make your phone call. Joshua and I will stay here in the car. I want to work on the new clapping game I’ve been teaching him.”

  With that, Joshua started clapping his hands furiously from the back seat and giggling. Mary Sue got out and walked over toward the phone booth, looking down the highway in both directions. No signs of traffic in either direction. She paused to feel the crisp breeze against her face and gazed out to the stark, rolling brown hills that stretched out to the horizon, broken only by a few pockets of dead vegetation and scrub.

  After dialing Will Chambers’ number, she heard Hilda’s voice. Hilda explained that Will had not yet returned from Georgia where he was working on her case. She connected Mary Sue to the office of Jacki Johnson.

  “Mary Sue, I am one of the other attorneys in Will’s office,” Jacki explained. “He has told me a little bit about your case. He was planning on talking to the prosecuting attorney after he talked to your husband. But he hasn’t returned yet, though he did call back once to brief me on the case.”

  “Did Mr. Chambers tell you how Joe is doing?” Mary Sue asked.

  “His spirits are high. He says he wants to fight this all the way—that he’d rather rot in jail then confess to something he didn’t do, particularly when it comes to little Joshua.”

  “That’s just like Joe,” Mary Sue noted.

  “There is one little technical glitch,” Jacki went on.

  “Glitch? What’s the problem?” Mary Sue said, suddenly tense.

  “Will decided that he can’t represent both you and Joe at the same time. It presents a potential conflict of interest—and with everything else going on in your case, you don’t want to invite that kind of problem. So Will decided that he is going to represent only you, and Joe is going to get his own lawyer.”

  “Oh—I don’t feel good about that,” Mary Sue responded. “Joe and I are together on this. I don’t like being split up.”

  “I’m sure it won’t be a problem. Will is used to working with other attorneys on a team basis. I’m sure he will help Joe get good local counsel—someone he can work with while still officially representing you.”

  “Has Mr. Chambers gotten to the bottom of this—why they are making such a crazy allegation against me? Saying that I am actually poisoning my son? Where are these lies coming from?”

  “He’s not sure yet,” Jacki said. “As he works further on the case he’ll get discovery from the prosecutor. I’m sure those questions will be answered at that time.”

  “And what about the court appearance later today?”

  “Joe has his bail hearing this afternoon—possibly with his new attorney, whoever that happens to be. And at the same time, Will plans on entering an appearance in your case.”

  After a pause, Jacki added, “You know, Mary Sue, you are going to have to tell us where you are. And eventually you will have to give yourself up. The law is going to require it. I’m sure Will has talked to you about that—and if he hasn’t, he probably will.”

  There was silence for a moment. “Miss Johnson?”

  “Yes?”

  “Are you married?”

  “Yes, I am.”

  “Have you ever been a mother?”

  “No, not yet. But I do look forward to that. Howard, my husband, and I would like to have a baby. Why?”

  “Just wondering,” Mary Sue said, looking over at the station wagon where Katherine was playing a patty-cake game with Joshua.

  Then she continued. “Talk to me about turning my child over to Social Services when you’ve carried a baby under your heart for nine months. When you see him born—and nurse him when he’s got a temperature of a hundred and three. When you’re the last thing he sees at night and the first thing in the morning. After you hold your child when he is scared and kiss his tears away—then come to me. Then talk to me about what the law requires, Miss Johnson.”

  11

  WILL WAS SITTING in the attorney’s bench in a Delphi courtroom—that of Judge Wilbur Mason. At the front, the bailiff was chatting with another court worker. Except for a couple in the back, no one else was in the room.

  After glancing at his watch, Will looked around the courtroom. In the back row there was a blond woman in her forties, well-dressed, who looked mildly familiar. Next to her was a younger man in a denim shirt, with hair that had an orangish tint to it. He had an MTV look about him.

  It was now 1:15 P.M. The hearing in Mary Sue’s case had been scheduled to start at 1:00.

  Then the door to an anteroom opened, and a small flood of people entered the courtroom. In the lead was prosecutor Harry Putnam, striding quickly, file in hand. He was grinning.

  The court reporter was next, lugging her stenographic equipment.

  She was followed by a woman wearing a bland suit jacket and a pair of jeans, with a plastic tag dangling from her neck on a little chain. She was carrying a pile of papers. Will assumed she was a county worker—probably Liz Luden from Social Services.

  Finally, a rumpled-looking woman in a pantsuit entered the courtroom
. She had a briefcase and shouted a husky hello to the bailiff as she walked over to him. The two enjoyed a loud laugh about something until the judge entered in his robe, a thick file under his arm.

  The courtroom fell silent as everyone rose.

  “State of Georgia versus Mary Sue Fellows—child abuse—one count—everybody here?” the judge asked.

  “Herodius Putnam, prosecutor, for the State.”

  “Harriet Bender, recently court-appointed to act as attorney ad litem for the child Joshua Fellows,” the woman in the pantsuit barked out with enthusiasm.

  “Liz Luden, Social Services, Your Honor.”

  Will Chambers moved forward to the empty counsel’s table.

  “Your Honor, Will Chambers, from the Commonwealth of Virginia. I have filed my motion for admission, pro hac vice. I am here, entering a special appearance on behalf of Mary Sue Fellows.”

  “Perhaps you could enlighten us,” the judge asked with a smile, staring up at the ceiling, “what’s so special about your appearance today, Mr. Chambers?”

  Putnam and Harriet Bender laughed loudly. The bailiff and the court clerk were resisting the temptation to join in the mirth.

  “The special appearance is to let the court know that we are objecting to jurisdiction over my client. A general appearance, Your Honor, would have waived any jurisdiction defects—”

  But Will was interrupted by the judge. “Oh, now don’t lecture me on the law of criminal jurisdiction, Mr. Chambers. Before we get down to the nitty-gritty legalities of the situation—you’re asking this court to permit you to practice here in Georgia for purposes of this case?”

  “That’s right. I filed my motion for admission, which has been endorsed by Alexander Armstrong, former Chief Justice of the Georgia Supreme Court and presently the president of the Georgia Bar Association.”

  “I know who Mr. Armstrong is, counselor. He and I just had dinner together at the state bar meeting not three weeks ago,” the judge said. “So let’s not get off on that.” He paused for a few seconds, eyeing Will.

  The judge turned to the other two lawyers.

  “Any objections to Mr. Chambers’ motion?”

  “No objection,” Harry Putnam snapped out, then sat down.

  “Ms. Bender?”

  Harriet Bender rose slowly.

  “As guardian ad litem for the minor child, I take no position on Mr. Chambers being admitted. However, if I get a whiff of any funny business from out-of-state counsel that interferes with the best interests of my client—Joshua Fellows—I will be back in this courtroom in a heartbeat. And Mr. Chambers,” and with that she turned to face Will, “this court knows that I will tolerate no attorney who takes any action that impedes my representation of my children.”

  The judge smiled. “Mr. Chambers, Ms. Bender is one of our best attorneys ad litem for minor children. This court knows well how she represents them with the kind of zeal that a mother bear would show for her little cubs.”

  Will decided not to comment on that metaphor, and he nodded politely. Though he couldn’t help thinking that the part of the mother bear had already been cast in this drama—and Mary Sue Fellows was the one playing it.

  “On the criminal case number 04-CR-169, Mr. Chambers, is your client here?”

  “No, Your Honor.”

  “Why not?”

  “To divulge that would be to reveal attorney–client confidences—which my client has not authorized me to do.”

  The judge tapped both hands on the bench like he was playing a bongo drum. When he finished he addressed Will again.

  “Do you know where she and little Joshua are?”

  “I can candidly say that I don’t know where they are. But even if I did, I would probably not be able to reveal that based on my ethical duty to preserve client confidences—”

  “You seem to be singing the same song again, Mr. Chambers. I’m hearing a broken record. If this isn’t live—then it must be Memorex…”

  Putnam and Bender were chuckling.

  “Let’s hear something new,” the judge said impatiently. “Like this—when can this court expect Ms. Fellows to be present with you in court so we can take a plea—and proceed with this criminal case?”

  “I’m not sure, Your Honor. If Mr. Putnam would see clear to dismiss these charges—or at least file a nolle prosequi—I am fairly confident that I could produce Mary Sue Fellows, and the prosecution and I could then discuss getting to the truth—”

  Putnam jumped up, his arms flailing.

  “The State of Georgia will not be dismissing these charges, Your Honor. As the court knows from the ex parte hearing we held in closed chambers before opposing counsel got here, this is a very serious case. You will recall the substantial evidence of child abuse that we have already presented.”

  “Ex parte hearing?” Will asked incredulously.

  “Yes,” the judge said, “our code does permit that. Section 9-27-315 specifically authorizes an emergency hearing without attendance by the parent or her counsel—and even without notice to them—in order to transfer custody of the child—”

  “Your Honor,” Will said, “section 328 in that same code chapter requires a finding by the court, based on an emergency situation, that the health and safety of the child have made such a drastic hearing—in the absence of the presence of the attorney—absolutely necessary—”

  “I’ve been satisfied by the evidence. In fact, I’m more than satisfied that Mary Sue Fellows has got some mental issues—at least according to the evidence I’ve seen. And my land, Mr. Chambers—giving her little boy hydraulic brake fluid to drink—do you think that’s not a danger to health and safety…”

  But before Will could respond to what was apparently just a rhetorical question, the judge continued.

  “The code has been satisfied. I have, today, entered an order transferring custody of Joshua Fellows to the care of the Department of Social Services. Ms. Luden, have you secured a proper foster home for the child?”

  Luden nodded.

  “Now, all we need is the mother and the child. The criminal case cannot proceed without Ms. Fellows appearing personally to enter her plea and submit to the jurisdiction of this court. Instead, Mr. Chambers, this court is proceeding on the civil case—on the petition filed by Juda County for a permanent transfer of custody of Joshua out of the care of Ms. Fellows—the basis is child abuse. Because that action is civil—not criminal—we can proceed without Ms. Fellows’ personal appearance.”

  “I don’t have a copy of that petition,” Will noted.

  Putnam tossed a stapled packet of papers onto the counsel table in front of Will.

  Will glanced at it and then addressed the court.

  “We enter a denial to these allegations.”

  “Noted,” the judge said casually. “The court clerk will be advising you all—when you come up to the bench after the hearing—of the date for the adjudication hearing on the issue of child abuse as grounds for transfer of custody.”

  “Your Honor,” Will said.

  “Yes?”

  “The ten-day Georgia law hearing.”

  “What about it?”

  “Under section 19-13-3, subparagraph (c), 1, we have a right to a hearing within ten days to challenge this court’s ex parte order transferring custody.”

  “Fine. You’ll get your hearing.”

  “When?”

  “Right now, Mr. Chambers. Go ahead and argue. Persuade me that what I did fifteen minutes ago in my office was legally incorrect.”

  “I’ve had no time to prepare for that argument,” Will countered. “I’ve just received the petition.”

  “It’s all in there, Your Honor,” Putnam said, joining in. “The affidavits. Everything. Mr. Chambers should be able to respond to that right now.”

  Will grabbed the packet of papers and flipped to the back. There was an affidavit from Dr. Wilson, the family’s doctor. He had written that Mary Sue had impeded his proper treatment of Joshua, disregardin
g his advice. That she had become belligerent when he inquired about Joshua’s medical history and her feeding schedule. And further, that he had personally reviewed the medical records from the hospital, where he had submitted Joshua to blood tests. Those test results, he concluded, had noted the presence of ethylene glycol—the main ingredient in hydraulic brake fluid—in Joshua’s blood. Any further ingestion of that chemical could be fatal to Joshua.

  A second affidavit was signed by Detective Otis Tracher. The detective indicated that after the arrival of the sheriff’s deputies—and the arrest of Joe Fellows—he and a member of the evidence team had swept the kitchen for evidence. They had taken samples from the kitchen counter and had seized a child’s drinking cup. The state crime lab results all indicated that there was hydraulic brake fluid on the kitchen counters and—most importantly—on the child’s cup.

  Of the final two affidavits, the first was from Liz Luden, Department of Social Services. It indicated that an anonymous caller had reported that Mary Sue Fellows was poisoning her son with hydraulic brake fluid. The second was from Dr. Parker, a local pathologist, who had performed the test on Joshua’s blood that verified the poisoning.

  “This evidence is complex and technical in nature,” Will said after reviewing the documents. “I need time to secure expert witnesses to rebut this.”

  “Not here you don’t. This is only a ten-day probable-cause hearing. Save that for trial.”

  “Your Honor, this is all hearsay evidence—”

  “Which our code permits in an emergency hearing,” the judge emphatically noted. “Read it yourself.”

  “I have,” Will said. “That applies to emergency ex parte hearings—like the kind that you held in my absence earlier today—but it does not apply to the ten-day probable-cause hearing.”

  “Well,” the judge said, leaning back, “that’s what makes a good lawsuit. Differences of opinion. You can appeal that if you want—at the end of this case. Your objection is noted. This court affirms its prior ex parte order in this case.”