A federal jury in Asheville will decide later this month whether Cherokee County and its Department of Social Services leaders should pay damages to a father for taking his daughter from him without a judge’s oversight.
Over the course of about a decade, social workers in Cherokee County used a document called a “custody and visitation agreement” to sever parental rights and place children with other guardians.
Three years ago, District Court Judge Tessa Sellers in Murphy ruled the documents, also called CVAs, did not carry the force of law and were the “product of both actual and constructive fraud on behalf of the Cherokee County Department of Social Services, its agents and employees, and attorney Scott Lindsay and DSS Director Cindy Palmer.” During the hearing, she voided all instances of the document, some of which a former worker has testified are missing.
Even though dozens of families, involving possibly more than 100 children, were separated by these acts by DSS and its workers, this federal lawsuit revolves around the circumstances of one family: Brian Hogan and his daughter. Social workers took the girl from him and placed her in the custody of his father in late 2016, after his wife was hospitalized with a massive heart attack and he’d spent several days in Asheville with her.
Hogan told The Associated Press in 2018 that social workers threatened to throw him in jail, put his daughter in foster care or allow another family to adopt his daughter if he didn’t sign the paperwork they presented him with — the CVA forms.
Without a judge or an attorney representing him, and under pressure from social workers, Hogan signed the papers.
“They gave me no choice,” Hogan told the AP in 2018.
Other parents have said they felt similarly pressured or threatened by social workers into signing these documents, while having no legal representation of their own.
Attorneys for neither party spoke with CPP for this article, either by not responding to inquiries or saying they could not speak before the trial. A jury will ultimately decide whether to award damages and if so, how much, after a trial lasting several days in the Western District of North Carolina’s federal court.
In early 2018, attorneys representing Hogan and his daughter sued Cherokee County and two officials who have since resigned their positions — the then-DSS Director Cindy Palmer and Scott Lindsay, who served both as the county and the DSS attorney.
Though Palmer was suspended and resigned as director in mid-2018, she then immediately took a post as the DSS business officer, despite the ongoing State Bureau of Investigations criminal probe into her role with the CVAs. She remains employed there today.
Both Palmer and Lindsay were also indicted by the state for their years of involvement with CVAs, along with former DSS supervisor David Hughes. Altogether they face more than three dozen felony and misdemeanor charges related to CVAs dating to 2016. Palmer also faces a charge of perjury for her testimony in 2018 when she said she did not know the department used CVAs until December 2017 — when the state Department of Health and Human Services asked about them.
Defense brief says CVAs were harmless
In the upcoming federal civil trial, three different attorneys represent Cherokee County, the county’s DSS office and the two social services workers. Palmer and Lindsay are being sued both as individuals and as county officials and individually have their own defense counsel.
According to a brief filed by defense attorneys, the plaintiff’s lawyers won’t be able to demonstrate harm to Hogan or his daughter. The brief says county social workers used CVAs in “stuck” DSS cases.
“Former DSS social worker Courtney Meyers described cases where children were ‘not safe to go home because nothing that was of concern has been corrected and we’re running out of time,’” the brief filed April 29 said. “The ultimate goal of having parents signing a CVA was to keep children safe.”
The defense filings say neither Palmer nor Linsday was present when Hogan signed the CVA, which relinquished his daughter to his father — her grandfather Warren Hogan. The defense says the Hogan family had previously been involved with the Department of Social Services between five and 10 times.
Plaintiff questions lack of oversight
Hogan’s legal filings say the county failed to properly oversee the DSS office.
“Where a local government is faced with a pattern of misconduct and does nothing,” one brief says, “the local government has acquiesced in or tacitly authorized its subordinates’ unlawful actions.”
In other words, the government knew there was a pattern of breaking law and policy. Because nobody did anything, the use of CVAs became an accepted local practice.
Attorneys say because the DSS board “did nothing to oversee DSS or prevent the unconstitutional use of the CVA process,” it hired Palmer as director despite her not being qualified to hold the post. (Cindy Palmer is the wife of the elected Cherokee County sheriff, Derrick Palmer.)
Though his family had been involved several times with DSS, Hogan was granted permanent custody of his daughter in January 2016 by District Court Judge Sellers after a hearing in which Palmer, Lindsay and Darryl Brown participated, the plaintiff’s attorneys state. At the time, Brown was the guardian ad litem, or attorney for the child. Now, in addition to those duties, Brown serves as Cherokee County’s attorney and the Sheriff’s Offic’se attorney.
By this time, a plaintiff’s brief says, the use of CVAs “was so commonplace by 2016 that it had been used to remove 39 children from their parents’ custody in 2016 and 2017 (excluding Hogan’s daughter) without due process.”
That spring, though, the Hogan family again came to the attention of DSS. This time, county workers presented him with a CVA in November 2016, which he said he signed under duress.
More than a year later, in December 2017, Hogan again fought for custody of his daughter, this time before District Court Judge Monica Leslie, where Lindsay represented Cherokee County DSS and Brown as the attorney for the child in his role as guardian ad litem.
The plaintiff’s trial brief says Lindsay told Leslie in the judge’s chambers that he knew of “at least 20 CVAs like the one signed by Hogan. When Judge Leslie asked Lindsay what statutory or legal authority he relied upon in drafting the CVAs, he admitted that there was ‘none.’”
That day, Leslie found the CVA removing Hogan’s daughter was “not a valid legal document and is not enforceable or binding and is hereby null and void,” granting legal custody to Hogan.
Two months later, in February 2018, Judge Sellers voided all remaining CVAs, saying the process used to obtain signatures violated the constitutional rights of parents and was the “product of both actual and constructive fraud on behalf of the Cherokee County Department of Social Services, its agents and employees and Attorney Scott Lindsay and Director Cindy Palmer.”
The plaintiff’s briefs say both Palmer and Lindsay, throughout recent questioning during a pretrial deposition, frequently exercised their Fifth Amendment right against self-incrimination.
While in criminal trials pleading the Fifth cannot be held against a defendant, civil trials are another matter. Juries in federal civil trials can “make adverse inferences” of improper conduct based on her refusal to answer questions under the Fifth Amendment,” the plaintiff’s brief states. “In particular, those adverse inferences establish that Lindsay acted with deliberate indifference to the rights of juveniles.”
If Lindsay and Palmer decline to testify next week, Hogan’s lawyers appear poised to use testimony Palmer and Lindsay gave from a 2018 trial involving custody of another child removed with a CVA.
What was the motive?
North Carolina is one of the few states where county social services offices, and not the state, are in charge of child welfare decisions. Inconsistencies in screening abuse cases from county to county led a legislative nonpartisan research group to recommend changes to the state’s child welfare system. State DHHS leaders indirectly oversee these local DSS offices in all 100 counties.
The report by the Program Evaluation Division said nearly 1-in-4 counties used outside guidance in addition to state policy to decide a family’s fate in the system.
In response to the report, legislators have not enacted new legislation. However, not long afterward, lawmakers disbanded the Program Evaluation Division, and its nonpartisan researchers are to be eventually replaced by partisan staffers.
Once the state realized Cherokee County used CVAs, the state DHHS took over management of the county child welfare office for several months. In a first-of-its-kind temporary takeover, state workers trained Cherokee County’s staff with the purpose of ensuring workers were getting the training they needed to handle these complex and sensitive child welfare cases.
The state has also recently asked all county DSS agencies to sign a lengthy memorandum of understanding, which requires the county to provide training, submit data to the state, respond to communication from the state and comply with state and federal rules.
Cherokee County commissioners, who now serve as the DSS board, have refused to sign the memorandum and instead have written a scathing letter back to DHHS blaming the “clogged and lethargic” District Court system.
Commissioners write that they cannot meet state requirements for family reunification or case adjudication until the District Court system, which sees child welfare cases, is expanded to handle the swelling caseload in the seven westernmost counties of the state of the 30th Judicial District.
Judicial District 1, which also has seven counties but is located in the eastern part of North Carolina, “is managing approximately half the caseload as District 30.”
Of District 1’s cases in 2017-18, 28% of its 556 child welfare hearings were continued. By comparison, District 30 had 3,263 hearings, of which 1,475 were continued, representing 45% of cases involving 595 children, the commissioners’ letter states. Cherokee County had a higher continuance rate of 56%.
“With every continuance a child remains out of home care longer than necessary,” the commissioners wrote in January. “… Additionally, the actual costs to the county for unnecessary long-term foster care are exorbitant. Without attempting to demonstrate a complicated reimbursement system, the county share for children in foster care (at the state level of reimbursement) is approximately 50%.
“Thus, when foster care is extended unnecessarily because of court continuances, both the state and Cherokee County suffer those costs too.”
When Hogan’s attorneys asked Lindsay whether he used the CVA process to avoid filing cases in court, he refused to answer the question, pleading his Fifth Amendment right against self-incrimination, a brief states.