Ben rose, attempting to exude confidence. He placed his notes on the podium. He had meticulously planned his strategy for his opening argument. He couldn’t possibly justify the way Jonathan and Bertha had kept Emily without telling anyone, so he was better off not dwelling upon it. Instead, he would emphasize Bertha’s warmth and good nature, her nurturing of the child despite difficult circumstances, and the bonding that had taken place.
“Your honor,” he began. His voice sounded scratchy. He cleared his throat and started again. “Your honor, I notice that, although the DHS complains that my client doesn’t meet many of their generalized, preconceived qualifications, they have never stated that she is or would be an unfit parent. Emily has lived with Mrs. Adams for almost a year now, and yet the DHS has made no complaints whatsoever about the child’s treatment during that time. Mrs. Adams may not have followed the proper procedures, but I submit that she nonetheless has earned the right to be considered Emily’s foster parent in loco parentis. I understand that the Department has its rules and procedures, and that it likes to see that they are observed. But the dispositive legal question in a proceeding of this nature is: What is in the best interests of the child? A slavish devotion to administrative procedure is not more important than the child herself, and I’m sure that this court cannot be fooled into making a decision that holds otherwise.”
“Don’t underestimate me,” the judge said. Again, the chuckle, the quick glance to the peanut gallery. Ben had the distinct feeling he was not making an impression.
“Thank you, son,” the judge said suddenly. “I think I’ve grasped your point.”
Ben stammered, then fell silent. He wasn’t half-finished yet.
“It’s pretty clear to me that these two motions are mutually exclusive,” the judge continued. “If I give the DHS the girl, I can’t let Mrs. Adams adopt her. And if I let Mrs. Adams adopt the girl, then the DHS ain’t gonna get her. So I’m going to consolidate these two motions and make a single decision at the conclusion of the hearing. If the Department has no objection, I’m going to ask Mr. Kincaid to call Mrs. Adams to the stand, ’cause it looks to me like she’s the only person I’m gonna need to hear from to decide this one.”
Sokolosky half rose with a little bow. “No objections, your honor. We concur.”
Consolidation. Cut straight to the key witness. Again, the hurry-up treatment. Why was Mayberry so determined to conclude this hearing?
Ben called Bertha to the stand. She took her seat at the judge’s lower left with relative ease, but it was clear to Ben she was extremely nervous. Realistically, Ben knew he couldn’t count on her for much.
Slowly and methodically, Ben took Bertha through the course of her life with Emily. How her late husband brought her home. How they took her to the police, but no trace of a parent could be found. How happy Emily made their home. How, at the suggestion of Joseph Sanguine, they found a lawyer to help them legally adopt Emily. Following Ben’s prior recommendation, she did not mention Emily’s neurological condition. Bertha spoke in a flat, even tone of voice. Ben knew that her nervousness was affecting her voice, but he was worried that it might be making her sound disinterested or artificial.
The judge listened to her testimony without comment or expression.
“Mrs. Adams,” Ben continued, “if this court allows you to adopt Emily, will you do everything in your power to raise her in the best possible way?”
“Yes,” she answered simply.
Damn. Ben didn’t know what to do. That leading question was her opening to expand on her testimony, to deliver a persuasive speech, to convince the court of her earnestness. Ben had prepared her for this before the hearing. In her nervousness, though, she had forgotten everything. She had given a dry, one-word, almost noncommittal answer.
“Let me ask you again, Mrs. Adams.”
“Objection,” Sokolosky said, rising to his feet. “Asked and answered.”
“Sustained,” the judge responded without hesitation. “Anything further, counsel?”
Ben couldn’t think of anything more to do. “No more questions,” he said.
Sokolosky rose and walked to the podium to begin his cross-examination. Ben noticed that his long yellow legal pad apparently contained pages of canned questions. He hoped Sokolosky’s plan was not to badger Bertha into saying something harmful by keeping her on the stand for an unbearably long period of time. He sensed that Bertha was already close to her limit.
“Mrs. Adams, you’ve kept Emily for almost a year now, is that correct?” Sokolosky was adopting a businesslike, just-the-facts-ma’am approach. Distancing himself and the court from the situation and its inherent emotionality.
“Emily has stayed with us, yes.”
“You reported discovering her to the police, didn’t you?”
“Yes, I’ve said that.”
“But, Mrs. Adams, the police told you that you should contact the Department of Human Services, didn’t they?”
Bertha hesitated. “Yes.”
Sokolosky continued to drive his point, home. “In fact, I think it’s safe to say that they assumed you would do so, don’t you?”
“Well, I don’t know. Perhaps. Yes.”
“Yes. Probably you even assured them that you would. But you didn’t, ever, at any time, contact the Department, did you?”
Bertha looked downward. “No.”
“No. You kept your little treasure to yourself.”
Ben didn’t know what to do. Nothing Sokolosky said was really objectionable. Obnoxious, yes. Prejudicial, sure, but a judge, unlike a jury, is assumed to be able to sort the prejudicial from the probative without help from counsel. Ben didn’t see Mayberry as the sort of judge who would enjoy a lot of time-consuming objections, especially when he was so anxious to move things along.
“I expect Emily is quite a good little helper to have around the house.”
Bertha’s face changed slightly. “No,” she said, with a soft laugh, “not really.”
For the first time, Sokolosky smiled. At the judge, not Bertha. “Oh, now, Mrs. Adams, haven’t you ever asked Emily to help you … oh, let’s say, wash the dishes?”
“Y-yes, of course, but—”
“Maybe to take out the trash.”
“Yes. Certainly—”
“Fetch you a drink. Do the ironing. Keep you company.”
“It isn’t like that,” Bertha protested. Her voice rose in pitch with her agitation. Sokolosky had put her on the defensive; she sounded defensive. “You’re trying to make it sound like—”
“Just answer the questions, Mrs. Adams.” The judge cut her off in midsentence. “Your counsel will make the speeches for you, no doubt.” He looked down disapprovingly at Bertha.
“But he’s making it sound like—”
“I won’t tell you again, Mrs. Adams.” The judge looked away. Bertha held her tongue.
Sokolosky took a long pause, letting the awkward moment fester. “Just answer one question for me, Mrs. Adams,” he said finally. “Just one simple yes-or-no question. In the entire time that Emily has lived with you, can you honestly say that Emily has developed a strong attachment to you?”
Ben looked up at Sokolosky. He knew.
Bertha hesitated. Ben could see her eyes watering.
“Objection, your honor!” Ben found himself on his feet before he had consciously formed the thought.
The judge looked at him with a raised eyebrow. “Really, son? Sounds probative to me. What are the grounds for your objection, pray tell?”
Ben stuttered and hemmed. He didn’t have any grounds. And he didn’t want to refer to Emily’s disorder. “It just … it isn’t fair, your honor.”