Chapter XXIV #2
His pipe stilled in his hand as he stared stone-faced from across the desk.
“Finally,” she forged on, “the basis for removal is described broadly, but lacks specificity sufficient for appellate review. Out of respect for the court, I raise these points not as accusations, but as concerns of equity and finality.” Mae held the judge’s eyes as she finished her oral presentation.
The judge tapped his finger on the desk and placed his pipe down on the corner. Leaning toward her, he countered, “These are clerical issues, not legal defects, Madam. The court does not demand perfection in paperwork—only substantial compliance.”
Mae held her ground. “I agree, Your Honor. Substantial compliance is sufficient where the missing elements are non-material. My concern is that the omissions here go to the court’s ability to determine whether compliance occurred at all.”
“But the law must function in the real world. If this case had already been ruled upon, compliance is understood.” He waved his hand in a dismissing fashion.
“Respectfully, Your Honor, compliance may be assumed in daily administration—but it is only demonstrated through the record. Where a court’s authority is later questioned, assumption cannot stand in place of memorialized fact.
” She forced her hands to remain at her sides; her fingertip itching to find its place between her teeth.
She bit the inside of her cheek to quell the urge.
The defiant response had tumbled out before she could weigh the consequences.
“You would have this court reopen settled matters on inference alone?”
“Substantial compliance cannot be inferred solely from the outcome. Otherwise, any deprivation—once finalized—would insulate itself from review.” Mae knew this precedent had come from property law, but Henry had used it before to highlight the need for due process in some of his earlier cases.
“You are asking this court to disturb an existing placement based on technical insufficiency. Children are not abstractions, Mrs. Turner.”
Abstractions? Obviously, she knew children were not abstractions.
The image of Simon came to her unbidden.
Her body ached to hold him again, while her hands curled into fists.
“Nor are they beyond the reach of the law once placed. Stability achieved through a defective process does not become lawful by the passage of time.”
“If this court reexamines one file on speculative procedural grounds, it invites system-wide uncertainty. Every resolved placement could be called into question. That degree of scrutiny would not strengthen the system—it would destabilize it. The court must consider the precedent it sets, not merely the case before it.”
“With all due respect, Your Honor, the stay has already been provided for by Judge Matthews.” She immediately wished she could recall the words.
His eyes flashed at the mistake. “Well, Madam, a stay issued by a judge in New York is not valid in the state of Kansas.”
Mae knew he would point it out. “Then I am not asking this court to enforce the stay, Your Honor,” she pressed quickly. “I am asking the court to recognize that the underlying order is void for lack of jurisdiction—and that this placement, proceeding from it, cannot stand.”
“Even if I were to accept your argument, Madam, this court is not empowered to entertain it in this posture.” He leaned forward as his voice sharpened.
“A collateral attack on a removal order must be brought in the issuing jurisdiction—and by proper writ. It cannot be raised here, in this court, against a placement already in process.” He leaned back and tapped the desk once.
“You are not before the correct court, nor have you invoked the correct procedure. On that basis alone, your argument fails.”
She resorted to a different tack. “But Your Honor, you are sacrificing one child for the stabilization of a faulty system. That seems like a more dangerous precedent to set.”
The judge set his jaw at this comment. “I am not sacrificing anyone, my dear. I’m merely following the law’s requirements and taking into account the overarching and lasting effects such a judgement would produce upon the lives of many poor and needy children.”
The finality of the statement brooked no further argument.
Mae's mind leapt to the Mercein case law, which would bolster her parental rights case—but she understood, with sudden clarity, that proof no longer mattered.
He was not weighing evidence. He was weighing consequence.
This new piece of information would only serve to put her in an ill light.
“Now,” the judge leaned back, “if that is all, I must get back to my caseload for today.”
The tension in Mae's body released, and her ankles found it hard to keep her legs upright. Slowly, she preceded the judge out into the courtroom. The court clerk sat just inside the door. She hadn’t realized that he had witnessed the entire exchange.
As she looked down at the clerk’s hand, a brief memory of her form being slid into a separate folder settled into her mind.
The thick, smoke-filled air that had choked her within the judge’s chamber thinned as she crossed the threshold.
As she walked to the end of the aisle toward the thick courtroom doors, the certainty of Simon's removal settled over her. The judge’s decision infuriated her.
Her reasoning was sound. The precedents and applications were sound.
Her entire argument had been sound. And she had been denied.
There had been no mistake in his reasoning.
Only a refusal to see this child as singular—her child.
She had to sit. Her eyes swung to either side, barely noticing the throng of people entering the house of law. She slumped down on the first convenient bench. Burying her face in hands, she released a low whimper. The watch swung forward with the movement. She did not reach for it.