Family separated by DSS offers emotional testimony in 2nd day of federal civil trial

ASHEVILLE — Tuesday saw an emotional second day of testimony from witnesses for the plaintiff during a federal civil trial in Asheville, where a father is suing the Cherokee County Department of Social Services for taking his daughter away without judicial oversight.

At issue is Cherokee County’s use of a document called a Custody and Visitation Agreement, or CVA. Social workers testified that they told parents the CVAs had the force of law that only a judge could undo. However, a judge later tossed the agreement, returning Hogan’s daughter to him. Another judge voided all other CVAs three months later, returning children to their families because CVAs are not lawful in North Carolina.

Nearly every Cherokee County DSS worker who has so far testified said they used CVAs to close “stuck cases” — child welfare cases that had stalled, or that the department otherwise would not win outright in an official court hearing. When asked by defense attorneys whether they did it in the best interests of the child, all said yes.

The number of CVA cases escalated in 2016, a former social work supervisor testified.

Daughter and father testify

One of the children named in a 2016 CVA took the stand on Tuesday. She was 10 when separated from her father, Brian Hogan. Now 14 years old, the girl said she loved her parents and would have preferred to remain with them. Hogan described himself as a hard worker who loved his daughter. Carolina Public Press is not naming her because she is a minor.

A social worker presented Hogan with a CVA document in November 2016, and he signed it. Social workers told Hogan — who is unable to write, cannot read complex words or cursive writing, and took special-education classes through ninth grade before dropping out — that his father, Warren Hogan, had permanent custody of his daughter until she turned 18.

Brian Hogan talked of his upbringing with his father, whom he described as an abusive alcoholic. Hogan said he helped his father grow fields of marijuana from the time he was 7 years old. Hogan said he moved out when he was 16 years old and found jobs to support himself.

He married Amanda Edmondson in 2005, and his daughter was born the next year. Hogan described the girl’s birth as “the happiest day of my life.”

He said he played with her, took her to the park and enjoyed spending time with her. In 2015, when his daughter was 9, his wife had a massive heart attack. Hogan said he could choose to send his wife to the local hospital in Murphy or to Mission Hospital in Asheville. He said he chose Asheville because he heard it was the better hospital, he testified Tuesday. There the doctor said, “She’s dying. We can’t save her.”

Hogan said he decided to temporarily leave his daughter in the care of neighbors and went to Asheville to spend time with Edmondson. At first, Hogan said the prognosis was dire.

“The doctor said she wasn’t going to make it through the night,” Hogan said. Three children came — two of Edmondson’s children from a previous relationship as well as their daughter — to see their mother on what Hogan thought was her deathbed.

Hogan described a night of prayer and a vigil in her hospital room during which he could not sleep.

“I prayed and prayed,” Hogan said. “And God saved her. God gave her back to me.”

During his weekslong stay in Asheville with his wife, his daughter stayed with neighbors. Earlier in the day, the girl testified that she enjoyed the stay because she was also in the home of her best friend.

“It was fun, because we did kid things,” the girl testified Tuesday. She said they went to the park but mostly played video games.

During Monday’s testimony, social workers said school officials had complained that she smelled like cat urine when she arrived at school, giving Cherokee County DSS the basis for its investigation into Hogan’s household.

She was at that point taken from school to the DSS office in Murphy, where her grandfather, Warren Hogan, took her in. At the time the arrangement was supposed to be temporary, and it was with Brian Hogan’s consent.

When asked why he left her with his father, Brian Hogan said he had no one else to ask for help.

A document he didn’t understand

After a few months passed, a Cherokee County DSS worker asked Brian Hogan to sign the CVA.

Two social workers testified earlier in the trial that the document was intentionally formatted like a legal custody agreement. Hogan, who could not read well, did not have legal representation when he signed the document in November 2016. Neither did his daughter.

All children in DSS court actions are represented by a lawyer with the guardian ad litem program. Parents who cannot afford an attorney are also appointed one.

When asked whether DSS workers had ever checked on her when she lived with her grandfather, she said, “They didn’t.”

Although she “liked living there in the beginning,” she said her grandfather “was short-tempered about everything. If I did anything wrong, I’d go to school crying basically every day.”

The girl, then 10, said she had to wear long-sleeved shirts and jeans every day to school because he did not allow her to shave, not even her underarms.

Her mother had not yet discussed periods with her, and when she menstruated for the first time while living with her grandfather, “I thought I was dying.”

“Did you talk to anyone about it?” Hogan’s attorney Melissa Jackson asked.

“No,” the girl said. “I was too scared.”

She testified that her father and mother dropped off presents for her on birthdays and holidays. She said Brian Hogan called her every day after school was out and asked to talk to her.

“Did you get to talk to your dad?” Jackson asked.

“No, because (my grandfather) didn’t like my parents,” the girl said. “He would say they were terrible people. He said if they wanted you, they would try harder.”

On the occasions when she did get to see her parents, “they would cry a lot,” she said.

State judge on witness stand

The girl’s living situation changed on Dec. 7, 2017, when District Court Judge Monica Leslie saw a CVA for the first time.

“It was shocking,” she testified Tuesday.

Leslie testified Tuesday that she brought multiple lawyers into a jury room to talk about the document. Among them were Hogan’s lawyer Jackson, the guardian ad litem Darryl Brown (who is also the Cherokee County attorney), then-DSS attorney for Cherokee County Scott Lindsay, and an attorney for DSS agencies in another county, David Moore.

“I asked (Lindsay) what are you going to do about this,” Leslie testified. “He said he did not know about this CVA until Ms. Jackson brought it to his attention.”

Leslie testified that Lindsay told her he would instruct social workers to no longer use the document.

“I asked how many more he knew about,” Leslie testified. “He said he had received at least 20 via email. I said, ‘Where are these being kept at DSS? Are they in the files?’ He hemmed and hawed, and never answered that question.”

“I asked what statutory or legal authority did you have to write something called a CVA?” Leslie testified. “He said, ‘None.’”

After that hearing in 2017, Leslie told the court Tuesday, she immediately called Wayne Black, then the state Department of Health and Human Services Division of Social Services director. Later the same day, a DHHS worker emailed then-Cherokee County DSS Director Cindy Palmer to inquire about the department’s use of the document — an event that snowballed into a temporary state takeover of the county’s Child Protective Services division, the first in state history.

The hearing with Leslie affirmed the CVA was not enforceable, and Hogan had legal custody of his daughter all along. Despite being deprived of physical custody, DSS did not follow any legal procedure to grant permanent custody to Warren Hogan, she told the court Tuesday.

Trauma of being moved around

The girl testified that she was nervous to move back in with her parents, “but I was happy.” She said she loved her parents and, if given the choice, would want to live with them.

When Jackson asked the girl whether she ever saw her parents doing drugs, as DSS workers have alleged, the girl said no.

When the girl returned to Brian Hogan’s custody, she said she struggled, both mentally and at school. She started cutting herself.

“That’s because I thought they wouldn’t pay attention to me like they didn’t at my grandpa’s house,” said the girl.

Hogan described moving from one low-paying job to another to support his wife and daughter. His tax returns show $17,000 to $18,000 per year for the last two years, his attorneys said. Hogan said he is good with mechanical things. He never had formal training. He called it “common sense.”

Jesse Raley, called as an expert witness in forensic psychiatry, said he interviewed the girl for around 2 1/2 hours last year. She arrived at that interview dressed all in black, stone-faced and “very guarded,” Raley testified.

Even though she was initially guarded, as he interviewed her, he saw that she warmed up. He talked with her about a favorite hobby, and she talked with him about what it was like moving to live with her grandfather and then back with her parents.

“She had a very difficult time with that move,” Raley testified Tuesday. “Not because she didn’t want to live with her grandpa or mom and dad. She perceived it was her fault and hurting the adults in her life.”

The girl told him she felt unstable, Raley testified.

“‘Why care about anyone because I was going to get moved again?’” he testified that she told him. “‘Why get connected emotionally because it could all go away?’”

His testimony described a girl who was now deeply anxious, and he said she could benefit from therapy and other services.

Did DHHS know?

Two former social workers also gave conflicting accounts on whether DHHS — which oversees all DSS organizations statewide — knew or should have known about CVAs far sooner.

DHHS was supposed to perform annual audits, said former DSS social worker Courtney Myers. During the audits, DHHS is supposed to review a random selection of case files.

“You were aware that some of the files contained CVAs?” asked Sean Perrin, an attorney representing Cherokee County and its insurance company.

“Yes,” Myers said.

“DHHS never complained to the Cherokee County Department of Social Services about the use of the CVAs?” Perin asked

“Right,” Myers testified.

Former social work supervisor David Hughes took the stand as well. If DHHS ever pulled a file with a CVA within it, he wasn’t told, Hughes testified.

Saving time and money

Hughes started working at Cherokee County DSS in 2011 as a social worker and became a supervisor in 2016. By then, cases were taking too long to get through the system, he testified Tuesday.

“They were telling us we needed to get our cases turned over more quickly,” Hughes testified.

Often Cherokee DSS did not have enough child welfare social workers. In an 18-month period, eight social workers left. The pay was low, neighboring counties paid more for the same work, and the work was emotionally draining, he said.

The county was also concerned about the cost of the cases, he said.

“It was expensive to provide services,” Hogan attorney Ronald Moore asked. “If you don’t provide services and go to the CVA route, that’s not as expensive.”

Hughes said yes. He testified these discussions happened after Cherokee County DSS lost three cases in one day. “Two were basically thrown out.”

Social workers were told how to record their time under specific billing codes, which referenced whether Cherokee County, the state or the federal government would pay. Payments to those entities were determined by a three-digit number.

“We were told what numbers we should be using, either by the (Cherokee County DSS) director or business officer,” Hughes testified. “‘We are out of this pot of money. You need to switch this code.'”

Palmer was suspended as director in early 2018 and resigned from her position six months after the CVAs were discovered, but she accepted being rehired as the DSS business officer the same day. She continues to work for Cherokee County DSS in that role.

A previous CPP investigation showed that Cherokee County DSS overbilled the federal government by nearly $250,000 over four years.

Brian Hogan’s testimony began Tuesday and will continue Wednesday morning when court reconvenes. Lawyers for both sides said they may complete their cases by end of day Wednesday or the start of Thursday. An eight-member jury will decide the outcome of the lawsuit.

Palmer, Lindsay and Hughes are under state indictment for their roles in using the CVAs. Dates for their trials have not yet been set.

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