ASHEVILLE — As the federal civil trial over the Cherokee County Department of Social Services’ removal of Brian Hogan’s daughter from her family continued Wednesday, the plaintiff’s attorneys finished presenting its case, and the defense began calling witnesses, including a social worker who followed the case.
Former Cherokee County DSS social worker Laurel Smith testified that she went over a document called a Custody and Visitation Agreement, or CVA, with Hogan to explain what it meant. However, Hogan, who can’t read, said she did not explain anything to him.
Wednesday marked a second day of testimony from Hogan, whose daughter was removed from his custody after social workers in Cherokee County used a CVA that two state judges later invalidated. Hogan is suing Cherokee County, former DSS Director Cindy Palmer and former DSS attorney Scott Lindsay.
Qualified immunity for Palmer
Palmer cannot be sued personally for negligence in her role during a time that her social workers executed dozens of the agreements that illegally removed children from their parents, Chief Judge Martin Reidinger ruled in North Carolina’s Western District Court on Wednesday.
The judge ruled that because Palmer’s actions were in the course of her job as a DSS official, she has “qualified immunity.” The concept protects government workers from personal lawsuits while on duty. The other defendant being sued personally, Lindsay, will not receive qualified immunity, Reidinger said.
This ruling does not protect Palmer from potential personal liability on three other areas covered by the lawsuit, gross negligence, constitutional violations and obstruction of justice.
Cindy Palmer’s husband, Derrick Palmer, who is also the elected Cherokee County sheriff, has sat in the back of the courtroom each day of the trial. He said he was relieved that his wife has qualified immunity.
“This is why I won’t run for sheriff again,” said the sheriff, who is being sued by at least one person over the questionable death of an inmate under his care. “After this, I’m very concerned about a lawsuit. The outcome of this trial is going to be detrimental to anyone in leadership positions.”
After Hogan’s wife, Amanda Edmondson, had a heart attack and nearly died in April 2016, he went to Asheville to be with her at the hospital, he testified Tuesday. He left his then-9-year-old daughter in the custody of neighbors, whose child was also her best friend, the girl testified Tuesday. Carolina Public Press is not naming her because she is still a minor.
DSS workers called Hogan and told him his daughter had come to school in dirty clothes and smelling of cat urine, but he said he didn’t believe it.
“I know my daughter better than that,” Hogan testified Wednesday. “She took a shower every day. I know for a fact they had running water and hot water.”
He said DSS workers called him three times, saying he had to do something. Eventually, Hogan decided to call his father, Warren Hogan. Brian Hogan did not want to place his daughter with his father, but the younger Hogan testified that he felt he had no other choice.
“He said, ‘What is it?’ I said, ‘Amanda is in the hospital,’” Hogan testified. He said his father knew and called her a “druggie.”
“I asked him to keep my daughter,” Hogan testified. “He told me I was a worthless father, and I shouldn’t have had kids.”
In May 2016, Hogan signed a document placing the girl in kinship care, a temporary placement with a relative, and she went with her grandfather.
‘I didn’t have no choice’
“I didn’t have no choice,” Brian Hogan testified Wednesday. “They kept telling me if I didn’t, they would give her to the state.”
During cross-examination, Sean Perrin, the attorney for Cherokee County, asked Hogan whether he signed the kinship care form voluntarily.
“For my father?” Hogan asked, to which Perrin said yes.
“Yes, I did,” Hogan testified. “I didn’t have no choice. They kept telling me if I didn’t, they would give her to the state.”
Perrin tried to ask another question, and Hogan sobbed. “Can I have just a minute?”
After Hogan took a few deep breaths and composed himself, Perrin’s questions continued.
“You signed a safety assessment the same day as the kinship (agreement),” Perrin said.
“I didn’t know what those papers was,” Hogan said.
“You were never threatened,” Perrin said.
“They were going to give her to the state,” Hogan replied.
“You know that can’t happen,” Perrin said.
“It can happen,” Hogan testified.
By July 1, 2016, Hogan returned to Cherokee County but had already lost his house and everything in it, he testified. He next lived in an apartment that he rented, but it wasn’t yet a good home for his daughter. Hogan said he tried to find a job and tried to get enough money to pay utility bills and get furniture.
Did Hogan know what he was signing?
Former social worker Smith testified for the defense Wednesday that she followed the Hogan case that eventually resulted in him signing a CVA. She objected to his daughter being alone with her mother because of a court order granting custody to Hogan. Smith said she believed the order required drug screening of the mother as a condition of unsupervised visits — an incorrect belief, later testimony showed.
Perrin asked Smith why reunification was not possible for Hogan and his daughter. Smith said Hogan was unwilling to do what DSS asked of him.
“He did not want to stop seeing Amanda or worry about Amanda not being able to test negative for drugs,” Smith said. “He thought he could go and see her (his daughter) and still live with Amanda.”
Throughout the early fall of 2016, Smith contacted Hogan several times to convince him to sign the CVA, she said. She testified that he was interested when she talked to him about a CVA and that she explained the document to him on more than one occasion.
“I read it with him, I explained everything on it,” Smith testified when Perrin asked her about her process.
“Did Brian have any questions?” Perrin asked.
“Not that I recall,” Smith testified.
However, during his testimony earlier, Hogan said he resisted. In previous DSS interactions, Hogan signed paperwork but didn’t know what the documents said — he is illiterate.
“Did they read them to you?” plaintiff’s attorney Ronald Moore asked.
“No, they said I had to sign them,” Hogan said. “They said it was in the best interest of (my daughter). They told me if you don’t sign it, we are going to give her to the state and you’re not going to get her back.”
“What does ‘give her to the state’ mean?” Moore asked.
“They were going to get her to somebody else, and I would never be able to see her again,” Hogan said. He then reached for a tissue and covered his face on the witness stand as he tried to compose himself.
In fall 2016, Hogan eventually relented and agreed to come in to sign the CVA. He testified that he got a ride to the DSS office from his father. When they arrived, the pair went upstairs, and Brian Hogan said DSS workers told him to sign the CVA.
“They never explained it to me,” Hogan testified. “Never read it to me. I thought it was going to be temporary.”
The document says Warren Hogan had custody of the girl until she turned 18 years old. Hogan said he never would have signed if he knew that was what it said.
Plaintiff attorney Melissa Jackson cross-examined Smith, the social worker, asking whether she read the CVA to Hogan before he signed it.
Smith said she did. Then she said, “I can’t recall. I’m trying to remember.”
Jackson asked Smith to read testimony she gave in 2018 to refresh her memory.
“Are you 100% sure that you read that CVA to Brian Hogan?” Jackson asked.
“We read over the CVAs if they say they don’t understand it,” Smith said. She later said she was unaware Hogan had a learning disability.
Jackson asked whether a criminal history was ever run on Warren Hogan, a typical step social workers take before placing a child in a home that is not registered for foster care. Smith said, “I was never told that was a concern. No.”
“When Mr. Hogan signed the CVA, did you tell him he had a right to an attorney?” Jackson said.
“I did not know I was supposed to,” Smith said.
“Throughout this process, did you offer services?” Jackson asked.
“We couldn’t,” Smith testified. “The cases were always closed. No services were ever provided to a child after a case was closed.”
“Do you feel you were properly trained?” Jackson asked.
“Honestly, no,” Smith said. When asked, she added that both Palmer and Lindsay were present at staff meetings during which CVAs were discussed.
“Did you understand the CVA?” Jackson asked.
“I understand what we were told,” Smith testified.
Jackson then directed Smith to read District Court Judge Tessa Sellers’ order from early 2016, prior to the CVA, granting custody of Hogan’s daughter to him.
“Amanda Edmondson (the girl’s mother) must provide satisfactory proof that she is not on substances; it also says the visitations have to be supervised,” Smith said.
“Nowhere does it say she has to provide a drug screen,” Jackson said, adding that what Smith did was in direct violation of a judge’s order.
“I didn’t know it was in direct violation of anything,” Smith testified.
Defense attorneys for Cherokee County, former director Palmer and former DSS attorney Lindsay have asserted throughout the trial that Hogan and other parents voluntarily signed the forms.
“What was in the best interest of (the girl) right then?” Moore asked Hogan. “What choices did you have? What was the other option?”
“Give her up to the state,” Hogan said as he tried to hold back sobs. “I wanted my baby back.”
While Hogan said he was overjoyed to be reunited with his daughter, in the months that followed he said he feels guilty for what happened. Hogan also spoke with a forensic psychiatrist, Dr. Matthew Gaskins.
Gaskins said he evaluated records from when Hogan was in school, including two IQ tests. These assessments measure the ability of someone to learn or figure things out, not what they have memorized or already know, Gaskins said Wednesday.
Hogan’s IQ test showed a score of 83 — a level Gaskins said is considered below-average intelligence.
“He blamed himself,” Gaskins said. “If he was smarter, he would’ve been able to stop it.”
Ultimately, Gaskins testified, “He did not fully understand the document he was asked to sign.”
Taking the Fifth in a civil trial
Rather than call Palmer and Lindsay to the stand, the court elected to allow lawyers to read questions from sections of earlier court testimony and depositions into the record while June Ray, a former Haywood County clerk of court who served as witness coordinator for the defense, read the responses.
During depositions recorded last year, both Linsday and Palmer repeatedly refused to answer questions, exercising their Fifth Amendment right to avoid incriminating themselves.
Judge Reidinger explained to the jury that when people who elect to exercise their Fifth Amendment right in a criminal trial, it cannot be held against them, but that is not so for civil trials like this one.
The jurors can, if they choose to, draw a negative conclusion against those who plead the Fifth, Reidinger said.
Witness describes change in girl
When Hogan’s daughter was finally returned to him, her manner and dress changed, said Amelia Brickey, her Girls in Action leader at Peachtree Memorial Baptist Church, who testified for the defense.
“She was a sweet child,” Brickey testified. “I always enjoyed her. And when the girl moved in with Warren Hogan, she changed for the better.
“She really dressed up. She started participating more. You’d see a joy. It’s like a light went on.”
After the girl moved back in with her parents, she stopped wearing the pretty dresses, Brickey said.
“She came in with all colors of different hair, and her dress changed,” Brickey said. “It’s like the light went out of her eyes. The hope, the light that was there when she was with Warren, it just went out.”
Instead of pretty dresses, the girl wore shorts or sweatpants instead.
Moore, one of Hogan’s attorneys, told Brickey that Warren Hogan made the girl wear dresses.
“All I know is she was beautiful and appeared happy,” Brickey said.
The defense is expected to complete presentation of its case Thursday morning, after which the two sides will present closing arguments and the case will go to the eight-member jury.
Clarification: Former Cherokee County Department of Social Services Director Cindy Palmer has qualified immunity from personal liability related to allegations of negligence in the performance of her work, but not from other allegations in the lawsuit. Earlier versions of the article did not specify the limitations of this qualified immunity accurately.