Accused dad’s access to child raises concerns

By Bill Rankin

Doctors at Scottish Rite Children’s Hospital became suspicious of a couple’s complaint that their baby boy was having trouble breathing, so they put him in a room with hidden surveillance cameras.

To her horror, a security guard watching a video monitor the next day saw the 3-month-old’s father enter the room and close the baby’s mouth and nose with his hands. The guard called a nurse, who rushed into the room as the child gasped for air, according to Sandy Springs police. They arrested the father, Michael Callaway.

But after being indicted for first-degree child cruelty for the March 2007 incident, Callaway was found mentally incompetent to stand trial. This summer, because of an unusual sequence of court decisions, he gained visitation rights to see his now 3-year-old son.

A Fulton County Judge has scheduled an emergency hearing today to hear prosecutors’ concerns about the child’s safety.

Fulton prosecutors want Superior Court Judge Craig Schwall to order a new evaluation of Callaway and reconsider terms of his bond, which have allowed him to remain free while receiving outpatient treatment at a psychiatric clinic in Blue Ridge, Ga.

Douglas McDonald Sr., Callaway’s lawyer, did not return calls seeking comment. According to court filings, McDonald has said “there are other logical and reasonable inferences that can be drawn from Michael’s conduct exhibited on the [security videotape] CD, thus his plea of not guilty.” According to the police report, Callaway at the time of the incident claimed he was trying to control his son’s seizure, but neither police nor the attending doctor believed that.

The visitation issue emerged this summer through a custody ruling by a second judge in the north Georgia town of Blairsville, where his ex-wife, Wendy Garland, had filed for divorce.

In a July 29 order, Superior Court Judge Lynn Alderman found Garland, 29, to be unfit as a parent and awarded custody of the child to Callaway’s parents. The judge cited a variety of parenting problems in deciding to give the grandparents custody. Her order gave Callaway, 31, visitation rights in his parents’ presence.

Fulton prosecutors, in a recent court filing before Schwall, said Callaway’s parents are not professionals with regard to child visitation. Callaway could gain unsupervised access and harm his son, Assistant District Attorney Shireen Hormozdi wrote.

Alderman’s ruling allows Callaway to see his son two hours a week. Visitation must always be supervised by the grandparents, Mike and Peggy Callaway, the judge said. Mike Callaway declined comment Wednesday.

Garland, who is now remarried, gets to see her son every other weekend and on certain holidays. She said she will appeal Alderman’s ruling, and she said she fears for her son.

“Who can guarantee me it’ll never happen again?” asked Garland. “It’s rather scary. It’s horrifying. I’m begging for someone to do something to stop this.”

Randy Kessler, an Atlanta attorney who is an expert in family law, said there must be compelling reasons to cut natural family ties. Termination of that right must be done under the most carefully controlled circumstances for the sake of the child, he said.

“Of course, if the allegations [against Callaway] are true, this would obviously be a case where the rights should be severed or terminated,” he said.

Kessler questioned whether Callaway’s visitation should be supervised by his own parents. “Why put them in the position of having to protect their son or their grandchild?” he asked. “I’d want an independent, neutral supervisor.”

After Callaway was determined to be incompetent for trial, Schwall convened a hearing in June 2009. Jessica Talley, a Grady Health System psychiatrist, had made the finding after evaluating Callaway during a 40-minute session.

Callaway told her he understood the judge was in charge of the court and said he thought he could work with his attorney, whose role was “to look out for me,” Talley reported in a letter to Schwall. But Talley found that Callaway’s vocabulary and behavior suggested he was mildly mentally retarded. She also determined he had an insufficient understanding of court procedure or the plea-bargain process.

Most defendants found incompetent, particularly those charged with violent crimes, are sent to Georgia Regional Hospital for treatment and evaluated later to see if they are competent to stand trial. But Schwall noted that psychiatrists believed the possibilities for Callaway ever being found competent were slim or none.

“If that’s the case, then that would be a waste of time and taxpayer money,” Schwall said of sending Callaway to the state mental hospital.

McDonald, Callaway’s lawyer, asked that the case be placed on an administrative dead docket. That would allow Callaway to remain free on $25,000 bond and receive outpatient treatment, while having no contact with his son.

McDonald also told Schwall that the Callaways’ divorce case was ongoing.

“The civil courts can deal with my client ever, ever having anything to do with this child again,” McDonald said during the 2009 hearing. “So there is protection for this child that the state will afford this child in the ultimate, final matter in this case.”

Schwall signed off on the arrangement, despite objections from Fulton prosecutors.”I understand, but I think that’s what justice requires,” he told them.

In early 2010, Schwall convened another hearing at the request of Fulton prosecutors who were concerned that Callaway was seeing his son, who by that time was already living with Callaway’s parents in Blairsville.

Was Judge Alderman fully aware of the child-cruelty case in Fulton? Schwall asked. McDonald said she was.

“I just wanted to make sure we don’t ever get in a situation where this child can be harmed by his father,” Schwall said. “I just want to make doubly clear that the child is safe.”

Michelle Vaughan, a Blairsville lawyer who represented Garland during her custody dispute with Callaways’ parents, said she strongly disagreed with Alderman’s ruling. She added that during the proceedings Alderman did not see the hospital security video that shows Callaway putting his hands over his son’s nose and mouth.