Originally created 05/16/04

Moms say rules ignored in child custody cases



Amber Crosby says she wanted her children's lives to be different from her own, to be rooted in a structured and loving environment where they would learn to be morally strong and compassionate and know they could be whatever they wanted when they grew up.

She thought she had a lifetime to mold the boy and girl she was raising without help from their fathers.

But a judge said it was not to be.

"I missed my son's birthday, the first time in his life," she said as tears rolled down her cheeks. "I missed the loss of his first tooth."

Wrapped Christmas presents remain unopened. She no longer has the right to ask teachers and day care workers how her son and daughter are doing in school. Even to see her children depends on the kindness of people who disapproved of her so much they went to court to take them.

"Everybody says they should not have been taken in the first place, and now I'm here," Ms. Crosby said, clutching Richmond County Juvenile Court Judge Herbert Kernaghan's Feb. 5 order that declares she is no longer the children's parent.

In Georgia, a judge sitting behind closed doors can take a child from a parent. Cases involving allegations of abuse or neglect are secret court hearings, closed to the public and media.

Although a whole body of law governs how a child can be taken from a parent, the secrecy of the process keeps the public from knowing when rules are not followed.

Three birth mothers who contend the rules were ignored talked to The Augusta Chronicle and shared court documents about how their children were taken from them.

Ms. Crosby's lawyers will argue that Judge Kernaghan thumbed his nose at the state and federal constitutions when he took her children from her. Joy McDade said he gave her daughter away at a hearing she didn't even know about, a hearing later ruled improper by a Superior Court judge. And Amanda Mulherin said Judge Kernaghan took first one, then both of her daughters without any legal authority.

Ms. Crosby, Ms. McDade and Mrs. Mulherin all thought they stood alone as they stared at what they described as incomprehensible court documents that allowed their children to be taken.

The only recourse for a parent in such a situation is to plead to the Georgia Court of Appeals.

Juvenile Court judges in Georgia - with a single exception - are appointed to four-year terms by Superior Court judges.

Recent changes in state law made Juvenile Court judges autonomous, answerable only to the Georgia Supreme Court, which can remove a sitting judge only for violating the Code of Judicial Conduct.

In Georgia, the Judicial Qualifications Commission is the entity empowered to investigate allegations against judges and recommend disciplinary action to the Supreme Court.

Richard Wexler, the director of the National Coalition for Child Protection Reform, said these three cases show a pattern of disregard for the law. He said he couldn't believe Judge Kernaghan would take children from two of the parents without asking child protective services to investigate the allegations against the parents.

"There are very serious questions about this judge," Mr. Wexler said.

Judge Kernaghan, whose four-year appointment expires this fall, refused to discuss any individual case with The Chronicle or to talk about the procedures or the law he follows when someone says a child is abused or neglected.

"I just don't think it's proper," said Judge Kernaghan, Richmond County's full-time Juvenile Court judge since 1997. "These are closed matters."

Amber Crosby

Not long after a blood test proved that a Thomson man is the father of Ms. Crosby's 7-year-old son in early August, Judge Kernaghan took the boy from her and gave the child to his father.

He also took her 4-year-old daughter and gave her to Ms. Crosby's grandparents, who are in their 70s.

On Aug. 26, the Richmond County Department of Family and Children Services investigated allegations that Ms. Crosby's partner, Angela Martin, beat her in front of the children and sold drugs from the home and that Ms. Crosby smoked marijuana.

Ms. Crosby admitted she smoked marijuana occasionally but denied the other allegations. According to court documents and DFCS records, no evidence was found to support the claims.

The court-appointed guardian for Ms. Crosby's children and the DFCS caseworker recommended returning the children to Ms. Crosby.

Instead, on Feb. 5, Judge Kernaghan signed an order that effectively ended Ms. Crosby's parental rights without providing visitation.

"(Judge Kernaghan's) decision goes against the weight of the evidence," said Beth Littrell, of Georgia's American Civil Liberties Union, who has agreed to represent Ms. Crosby on appeal. "I'm confident a grave mistake has been made and an injustice done."

Ms. Crosby is gay and was living with her partner and her children, Ms. Littrell said. The Georgia Supreme Court has ruled that children cannot be taken because a parent is gay, she said.

"The Georgia Supreme Court has looked at that exact issue," Ms. Littrell said. It's also why the ACLU agreed to take Ms. Crosby's appeal.

Greg Nevins, of Lambda, a nonprofit organization that supports civil rights for gays, examined the legal documents in Ms. Crosby's case.

"I think the key thing in all of this is that there is a very strong principle in Georgia - there has to be a showing kids are actually deprived" because of abuse or neglect, he said.

Judge Kernaghan's Feb. 5 order gives no details on how the children have been deprived - such as a drop in grades, personality changes or signs of physical abuse, Mr. Nevins said.

It's unheard of for the state to take children based on rumors of domestic violence or drug use, Mr. Nevins said.

"Clear and convincing evidence (the required legal standard) is not hearsay," he said.

If not for the ACLU, Ms. Crosby's limited financial resources might make fighting for her children impossible. She had to take out a loan to pay the attorney who represented her before Judge Kernaghan.

"It's really hard to appeal cases when you're poor and at the mercy of the court," said Vicki Kimbrell, of Georgia Legal Services, who regularly represents parents and has served on the Georgia Supreme Court's Child Placement Project.

Joy McDade

Ms. McDade also didn't have the money to hire an attorney when Judge Kernaghan signed an order Oct. 2 giving her 5-year-old daughter to her ex-mother-in-law, Betty McDade. The procedure has mystified several juvenile-law experts.

It took days for Joy McDade to discover that Richmond County Department of Family and Children Services, the agency empowered to investigate abuse and neglect claims and seek a child's removal, had nothing to do with the loss of her only child.

Betty McDade met privately with Judge Kernaghan, according to his court order, contending that her daughter-in-law was unfit mentally and physically to care for the child and had left the girl in her care for several weeks - allegations Joy McDade said she would have denied.

Betty McDade walked out with an order giving her custody of the preschooler until the girl reached age 18.

Joy McDade wasn't even aware of the meeting, she said. Furthermore, the order by Judge Kernaghan gave her only five days to challenge his decision. Without any court provision for visitation, she wouldn't see her daughter again for more than a month.

Judge Kernaghan didn't ask DFCS to investigate, nor did he appoint a guardian to ensure that an independent advocate looked out for the girl's best interest, according to court records later filed in Richmond County Superior Court.

In a Jan. 21 ruling, Superior Court Judge Michael Annis wrote of Judge Kernaghan's order: "The order transferring temporary custody was improper and shall be set aside at a later time."

A Juvenile Court judge has the legal authority to take a child out of a dangerous home or circumstance. But Judge Kernaghan's order taking Ms. McDade's child doesn't mention the words "abuse," "neglect" or "immediate danger," necessary terms for such a drastic step.

If the order were really a ruling in a custody matter as opposed to deprivation, which Ms. McDade's lawyer contended in court documents, then Judge Kernaghan had no legal authority to consider the case.

For more than 40 years in Georgia, Juvenile Court judges have been prohibited from hearing a custody case unless it is specifically assigned by a Superior Court judge. When an ex-spouse or a family member contends in Juvenile Court that a child is being abused or neglected, the law requires the judge to investigate carefully to ensure that it is not a veiled custody fight.

That's why many Juvenile Court judges ask DFCS to investigate when a relative files a complaint alleging abuse or neglect, said Eric John, the director of the Georgia Council of Juvenile Court Judges.

If a child is in immediate danger and the judge cannot wait to give a parent notice of the charges and hold a hearing, then the judge especially needs DFCS, Mr. John said. Without immediate danger, "I don't think a judge is going to go forward without a parent there."

Regardless of who makes the allegations, the claims must be proven by clear and convincing evidence before a child is taken from a parent, Mr. John said.

"You're not going to be able to come in and say, 'She's not a good parent.' It's not an easy thing," Mr. John said.

A state cannot simply take a child without proof of harm or neglect or without affording the parent due process, said Howard Davison, the director of the American Bar Association's Center on Children and the Law.

"In every state, if there's a petition of deprivation (a claim a child is neglected or abused), there has to be a hearing for the parents to be heard and for the allegations to be proven," Mr. Davison said.

Superior Court Judge Annis presided over what was a custody dispute between Ms. McDade and her ex-husband. Because of concerns about whether she was taking medication for a bipolar disorder, Judge Annis granted physical custody of the 5-year-old girl to Ms. McDade's ex-husband but gave Ms. McDade liberal visitation rights.

Amanda Mulherin

Although Judge Kernaghan refused to speak with The Chronicle recently, in February 2003 he told the newspaper that Amanda Mulherin's case was a custody dispute and he had the authority to hear it. Legal experts disagree.

When Mrs. Mulherin refused Aug. 5, 2002, to give up her then-2-year-old daughter to the uncle and aunt of her husband, the attorney for Ed and Leanne Mulherin met privately with Judge Kernaghan.

Within hours, the toddler was taken away from her birth mother and given to the childless Lawrenceville, Ga., couple to raise until she is 18.

As in Ms. McDade's case, Judge Kernaghan gave Mrs. Mulherin five days to object.

Judge Kernaghan's order that took the girl from Mrs. Mulherin alleged that the toddler was deprived. However, the order first addressed another issue - that Mrs. Mulherin had reneged on an agreement to give the girl to Ed and Leanne Mulherin, the son and daughter-in-law of Judge Bernard J. Mulherin Sr.

Amanda Mulherin said she felt as if she were choosing between prison and her youngest daughter in summer 2002, right before Judge Kernaghan thrust himself into the matter. Department of Corrections records show that Ed Mulherin and Judge Mulherin both contacted her probation officer, Ted Wiggins.

Mr. Wiggins would later testify that he believed Ed Mulherin wanted him to violate Amanda's probation, her sentence for credit card fraud, possibly resulting in Amanda Mulherin's imprisonment and giving Ed Mulherin leverage in a custody dispute. However, he testified that Judge Mulherin assured him later that the judge wasn't requesting her arrest.

Judge Mulherin has not responded to three messages for comment about his call to Amanda Mulherin's probation officer.

Two months after Judge Kernaghan signed an order taking Mrs. Mulherin's youngest daughter, he signed another that took Mrs. Mulherin's then-4-year-old daughter and gave her to Ed and Leanne Mulherin. Unlike the 2-year-old, who is the biological child of the Mulherins' nephew, the 4-year-old is Mrs. Mulherin's child from a previous relationship, not a blood relative of the Mulherins.

According to court records, Judge Kernaghan did not ask DFCS to investigate allegations that the girls were being abused or neglected.

Amanda and Joseph Mulherin were living like nomads and had left the children with Joseph's aunt and uncle, said the Lawrenceville couple's attorney, John "Jack" Long. The young couple were in constant trouble and in no position to raise babies, he said.

Legal experts say Judge Kernaghan should have had "clear and convincing" proof that Mrs. Mulherin's daughters were abused or neglected before taking them. But he never conducted a formal hearing to determine whether Ed and Leanne Mulherin's allegations were true.

Since the 1970s in Georgia, the law has said a Juvenile Court judge's decision, like Judge Kernaghan's in the Mulherin case, must be thrown out if there is no formal determination that children have been deprived. The formal hearing isn't just a technicality, it's an absolute necessity, said Ms. Kimbrell, of Georgia Legal Services.

Amanda and Joseph Mulherin didn't have an attorney when Mr. Long, one of Augusta's most influential lawyers, filed a petition asking Judge Kernaghan to stop efforts to reunite the family.

"We're talking about taking kids away from their parents. Of course they're entitled to be represented," said Georgia Child Advocate Dee Simms. Just because parents are poor is no reason to take their children, she said.

"Maybe we don't have as much money as (Ed and Leanne Mulherin), but we still love our children," Amanda Mulherin said.

The first child guardian in the case, Judge Kernaghan's court reporter, supported Ed and Leanne Mulherin's desire to adopt the girls. Judge Kernaghan had placed the children in the temporary custody of Ed and Leanne Mulherin.

"These children have become so bonded with the Mulherins that they both now call them Mommy and Daddy. (The oldest) says referring to LeeAnn Mulherin, that she is the 'bestest mommy.' She also says she cooks the 'bestest spaghetti,' " Judy Burnett wrote in a report to Judge Kernaghan.

For six months, Amanda Mulherin and her parents, who said they had basically been raising the older girl until Judge Kernaghan took the girls away, weren't allowed to see the girls or talk on the telephone with them, they said.

Amanda Mulherin and her mother, Marceau Quick, both wrote letters in protest to the Superior Court judges. Mr. Long countered with a request to sever Amanda and Joseph Mulherin from the children's lives. Since then, Amanda and Joseph have had another baby, a son, who has not been involved in what they say is a custody dispute over the girls.

Mrs. Quick said that by the time her family was able to see the girls again, they were extremely confused. The oldest girl told her, "I live in the new world," Mrs. Quick said.

About 11 months after getting custody of the two girls, Ed and Leanne Mulherin were ordered July 17, 2003, by Columbia County Juvenile Court Judge Doug Flanagan to turn the children over to the Quicks. But in late October, Amanda and Joseph Mulherin surrendered their parental rights to the youngest girl, allowing Joseph's uncle and aunt to adopt her.

Amanda and Joseph Mulherin said they gave up the youngest girl because they couldn't withstand a barrage of threats and promises. Fearing a judge would sign another court order to take all three of her children, Amanda said she agreed to an open adoption.

"I begged Amanda not to do it and she promised me that she wouldn't," Mrs. Quick said. "She kept telling me they were going to take (the baby boy) because they didn't have a home.

"I think she thought it would never end, and, frankly, I have to agree." Mrs. Quick said. "It's been an absolute nightmare. It's aged me 10 years in two. You just become bitter."

Georgia's child advocate said it's a terrible experience for a child to be taken from a parent.

"There have been studies - even when removed from a home where it's clearly abusive or neglectful, it's traumatic for a child," Ms. Simms said. To remove a child from a loving, bonded home is far worse, she said.

Some children must be taken from parents, "but we do that with caution."

That's why the law mandates clear findings of deprivation and clear findings of what reasonable efforts were made to maintain a child in the parent's home, Ms. Simms said.

Mr. Wexler said he was shocked that a judge would consider taking a child without involving protective services, or that someone who believed a child was being harmed wouldn't call DFCS.

"If you think a child is being harmed, you call DFCS, you don't go straight to a judge. I would say it's very scary," Mr. Wexler said.

"Anytime you take a child away from a parent, it's an enormous emotional pain for a child. How do you explain that suddenly Mom's gone?

"They think they've been taken because they've done something wrong and are now being punished," he said. "That's why it's so important not to take a child unless you are sure he is in danger. You don't simply go in and decide you like one side better."

The judge's responsibility

When a judge deems it necessary to take a child from a parent, the law clearly sets out the procedure, said Vicki Kimbrell, a former member of the Georgia Supreme Court's Child Placement Project, which is responsible for easy-to-read manuals and handbooks about the laws regarding abuse and neglect allegations and juvenile courts.The judge is to hold a hearing within 72 hours to ensure that a parent knows a hearing is set and what allegation he faces; appoint an attorney for a parent who cannot afford one; except in a limited number of cases, such as when a parent killed another child, ensure that a parent is given a plan of action to become a safe parent and is given the assistance necessary to meet the plan's goals; and make specific findings as to why a child can or cannot be returned, Ms. Kimbrell explained.It's the judge's responsibility to ensure that a parent is treated fairly, just as it is a judge's responsibility to ensure that someone accused of a crime has a fair trial, said Howard Davison, the director of the American Bar Association's Center on Children and the Law.

Reach Sandy Hodson at (706) 823-3226 or sandy.hodson@augustachronicle.com.