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Adoption attorney questions actions by Lumpkin court clerk

POSTED: March 13, 2008 5:00 a.m.

An adoption attorney from White County wants Edward Tucker, 35-year clerk of court for Lumpkin County, to rethink how he does business.

Attorney Amy Brown Harbst claims Tucker is improperly filing adoptions in Lumpkin County, charging fees unnecessarily and refusing to give subpoenas to people who are not attorneys.

In a complaint filed Feb. 20, Harbst alleges Tucker refused to give subpoenas to people who were not attorneys and filed portions of adoption proceedings as public record. Harbst says Tucker's actions are illegal, and she asked the court to force him to change his ways.

Tucker and his attorney, K.C. Horne, declined comment when contacted by The Times.

Harbst recently gained the opportunity to facilitate adoptions in Lumpkin County, and said she was shocked to see how Tucker files adoptions. "It's just wrong," she said.

In one case, a child's mother went to Tucker's office seeking a subpoena but Tucker refused to give it to her because she was not an attorney, according to the complaint Harbst filed.

In two other cases, Harbst filed a petition for adoption along with motions to terminate the parental rights of the child's biological parents. Tucker filed the adoption and the motions to terminate the parental rights as three separate civil actions, Harbst said. As a result, Harbst had to pay three separate filing fees for the adoption, something she said she never had to do in other counties.

But the clerk of courts in Forsyth County said such motions typically are filed separately in that county. Barbara Phillips said they usually incur separate filing fees. "I have seen one or two filed together, but they are usually filed separately," Phillips said.

Either way, Phillips said the termination of parental rights is kept sealed in Forsyth County, along with all other adoption records. But Harbst's complaint alleges adoption records are being filed as public record in Lumpkin. Harbst claims that violates state law.

"I have one client who is extremely upset and concerned that her children's information and all the information is a matter of public record," Harbst told The Times last week.

Jim Outman, the principal author of Georgia's adoption code since 1977, said no adoption records, including termination of parental rights, should be made public record. All adoption records historically have been sealed since 1941, he said.

"It's generally thought that it was some kind of quest to protect the birth parent, but it was really just a general feeling that adoption was a private matter," Outman said. "The pendulum's swinging back the other way now, and I have advocated ... legislation that would allow adult adoptees to have access to their adoption records, but ... the legislature is still of the opinion that we should be protecting somebody."

Outman chose not to comment further because Tucker's attorney has asked him to testify in the case.
In a letter dated Oct. 24, 2007, Harbst asked Tucker to reconsider his decision to file the motion to terminate parental rights as an action separate from the adoption. She told Tucker that his actions caused the matter to become public record.

One week later, Tucker responded that Harbst presented her motion to terminate parental rights differently than most motions are filed in Lumpkin. If Harbst had filed the motion to terminate in juvenile court, Tucker said in a letter, the matter would have been sealed.

"My staff ... asked your office specifically if you wanted the termination of parental rights filed (in juvenile court), which would also be nonpublic," Tucker wrote in a letter dated Oct. 31. "Your office advised that you wanted them in (Lumpkin County) Superior Court."

Harbst maintains Forsyth County Juvenile Court had no jurisdiction over the motions and that they must be heard in Superior Court as part of the adoption.

When questioned by The Times, Tucker would not respond as to whether the motions to terminate parental rights have been made public record in Lumpkin County, and deferred all questions on the matter to his attorney.

Horne said Friday he did not want to comment because he did not yet know how he was going to deal with Harbst's allegations.

"It would be a little presumptuous of the allegation to comment at this point," Horne said. "I wouldn't want to comment and then determine that was not a good comment, so the best thing is to just withhold comment until we're a little more certain ... (as to) how we're going to deal with each of the charges and specifications."

Tucker's Oct. 31 letter is what pushed Harbst to take the situation to court, she said.

"(The letter proved) that he was not going to be open to my concerns about what was happening to my clients," Harbst said. "And those clients are the ones that elected him and put him in office."

Tucker faces re-election in November.

Judge Marion Cummings of Canton will decide on the matter March 10 in a Lumpkin County courtroom. Lumpkin County Superior Court judges recused themselves from the matter, because the complaint involves the county's clerk of courts, Harbst said.



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