ELIZABETH HADAWAY’S effort to adopt a 7-year-old girl got complicated when a Wilkinson County judge denied her adoption petition in part because Hadaway had been living with her same-sex partner.

But the sexual preference of Hadaway, an emergency medical technician, was not addressed at a hearing in Wilkinson Wednesday.

Instead, Senior Judge William M. Towson Sr. heard a bewildering procedural tale that has spawned conflicting decisions from judges in Wilkinson County and nearby Bibb County.

"I’ve never had one like this in 30 years," said Towson, who is based in the Dublin Judicial Circuit but is hearing a habeas corpus petition brought by Hadaway’s lawyers in Wilkinson Superior Court because all of the Wilkinson Superior judges have recused.

Hadaway’s lawyers want Towson to order the state Department of Family and Children Services to turn 7-year-old Emma over to Hadaway. They’re relying on a change of custody order in Hadaway’s favor issued by Bibb County Superior Court Judge Tilman E. Self III on March 30.

According to Self’s order, Emma’s biological mother, Deborah Schultz, a truck driver who spends much of her time on the road, asked Hadaway to take custody of and adopt Emma because Schultz said she could no longer do so adequately. A social worker’s written assessment says that Hadaway got to know Emma in 2004 because Schultz’s lesbian partner was a co-worker of Hadaway’s longtime partner.

Without addressing the homosexuality issue, Self’s order says Hadaway is the best person to give Emma what she needs. That’s in contrast to a January order where Wilkinson Superior Court Judge John Lee Parrott cited the potential for "long-term exposure to the homosexual parent’s lifestyle" as a reason for denying the adoption and said Emma would be taken into shelter care by the state unless Schultz retook custody.

Hadaway and Schultz met at a truck stop in Jeffersonville on Jan. 12, but Schultz refused to take Emma back. On Feb. 20, Parrott ordered DFCS to take custody of Emma. DFCS placed Emma with a foster family in Wilkinson County, and Hadaway met a caseworker at the family’s home to hand Emma over.

Gerald R. Weber Jr. of the American Civil Liberties Union of Georgia, one of the lawyers representing Hadaway, told Towson that Hadaway has tried to use Self’s order to get Emma back from the foster parents, but to no avail.

"DFCS basically needs some guidance from this court," said Weber.

The habeas petition filed two weeks ago by Hadaway’s lawyers says that DFCS officials are "illegally detaining" Emma at the foster parents’ home.

Weber told Towson that a habeas action was the proper way to enforce Self’s order. He noted that while one Georgia statute, O.C.G.A. § 19-9-23, says a habeas cannot be used to get a change of custody, another statute allows for a habeas proceeding when a child is unlawfully detained.

Towson paused to say he took the bench in 1977, just before the Legislature promulgated the rule that habeas was an improper vehicle for seeking change of custody. He said before the change, it was common for judges to receive habeas petitions seeking mere changes in custody, so he thought the change a good idea.

But on Wednesday, he said, "I see the distinction in this situation."

Weber’s brief states that on Jan. 12, Schutz signed paperwork acknowledging having resumed custody of Emma. That made Schultz the legal custodian, if not the physical custodian, of Emma, Weber said.

"Legal custody passes when there’s a court order saying it passes," explained Weber. That, he argued, was when Self gave Hadaway custody in his March 30 order.

Schultz had a constitutional right to rear her child and make decisions—and she chose Hadaway, Weber said. The law presumes fit parents act in the best interests of their child, he said.

While Weber didn’t attack the reasoning of Parrott’s Jan. 8 order, he questioned the aspect that mandated custody revert back to DFCS if Schultz didn’t take the child. Weber said a Supreme Court of Georgia decision precludes such "self-executing changes in custody."

As for the propriety of Self’s order, Weber acknowledged that the Bibb County court would not have had personal jurisdiction and venue over the matter except that Schultz waived those objections. And he noted changes in circumstances cited by Self that Weber said made a new custody order legal.

Before Parrott denied her adoption petition, Hadaway had left her partner and moved to Bibb County, according to Self’s order.

After Hadaway filed her Bibb County change of custody petition Jan. 19, Parrott held both Hadaway and her previous attorney, Dana P. Johnson, in contempt, sentencing each to 10 days in jail, and filed a complaint against Johnson with the State Bar of Georgia. Both women have appealed the contempt orders to the Court of Appeals of Georgia, which has set the cases to its September argument calendar.

Self’s March 30 order ruling that Hadaway have custody said Parrott’s order did not preclude Self’s decision because things had changed. Self said Emma had suffered academically, was wetting the bed and "has regressed emotionally."

On Wednesday, Weber drove home Self’s conclusion that Hadaway was the best person to care for Emma.

"This child has had a very difficult life," Weber told Towson. And with Hadaway, said Weber, "this child now has a place where she feels secure."

After Weber’s presentation, Towson turned to Thomas J. O’Donnell Jr. of Sandersville, a special assistant attorney general who appeared for DFCS. O’Donnell had little to say.

"We have a proper order. … We have proper orders," O’Donnell said tersely. Pressed further by Towson, O’Donnell said he had nothing more to say but added that the "real mother"—apparently not in attendance at Wednesday’s hearing—appeared at a prior proceeding.

A review of the case file in the court clerk’s office revealed no written response to the habeas petition by DFCS officials.

Towson inquired about juvenile court proceedings. A filing by Hadaway’s lawyers in the habeas case indicates that Wilkinson Juvenile Court Judge Philip B. Spivey held a hearing on the matter April 26 and that Spivey denied Hadaway’s motion to stay those proceedings pending resolution of the habeas action.

O’Donnell told Towson that Spivey has given the parties 10 days from April 26 to file additional briefs. But Weber told Towson that he thought the habeas was the most "expeditious" way to resolve the matter.

Towson paused to think, as though he might be contemplating a decision. But then he noted that if he waited until Spivey ruled—"this could become moot, wouldn’t it?"

"It’s a little confusing to me," Towson added.

But Weber said Hadaway’s lawyers have entered only a limited appearance before Spivey, for the purpose of contesting Spivey’s jurisdiction to sort the matter out. If Spivey agrees and decides not to decide the case, said Weber, "the ambiguity may continue."

In the end, Towson requested the court reporter transcribe the hearings and requested proposed orders from the parties, saying the parties could also submit additional arguments or authorities.

The habeas case is Hadaway v. Fowler-Dennard, No. 2007-CV-0105.

SOURCE: Fulton County Daily Report