ASHEVILLE — After less than four hours of deliberation, jurors issued a unanimous verdict on 18 claims against Cherokee County, its former Department of Social Services Director Cindy Palmer and former DSS attorney Scott Lindsay in a federal civil trial that could send shockwaves around the state.
The jury issued a combined monetary award of $4.6 million — $1.5 million for Brian Hogan and another $3.1 million for his daughter.
At issue were illegal documents Cherokee County DSS used to separate Hogan from his then-10-year-old daughter. Hogan signed the document, called a Custody and Visitation Agreement, thinking that if he did not, the state would take his daughter away and he would never see her again.
Hogan, who is illiterate, testified Wednesday that he did not understand what he was signing, nobody explained it to him, and he would not have signed if he had understood that he was giving up custody of his daughter until she turned 18 years old.
Time and again in 2016, DSS workers contacted him and tried to get him to sign the document, he testified. While the CVA is formatted like a custody agreement, it has no legal weight, state judges have previously ruled.
Jury charge sheet
Dozens of parents and children were separated using CVAs in recent years in Cherokee County. Many of those cases are also pending in federal court. The county used CVAs to separate families as far back as 2006.
The charge sheet sent to the eight-member jury asked whether the county had an official policy, practice or custom that caused violations of the rights of Hogan and his daughter, and whether the county failed to adequately train its employees regarding the rights of parents and children.
It also asked whether Palmer and Lindsay violated Hogan’s and his daughter’s due-process rights, whether Palmer and Lindsay “acted in a grossly negligent manner” causing injury to Hogan and his daughter, and whether Palmer and Lindsay obstructed justice.
The jury voted “no” on only one claim — whether Palmer obstructed justice with respect to Brian Hogan.
Attorneys for Hogan argued the county failed to train its employees properly and that Lindsay had obstructed justice by creating a document that illegally circumvented the court process, which violated constitutional rights to due process by giving Hogan and his daughter no opportunity for legal representation.
“This case came about because of a tragedy, a tragedy of mismanagement, incompetence, and a — well, just honestly — a desire to do things on the cheap,” said plaintiff attorney Brandon Christian after the verdict. “And what I hope the legacy of this case is that people’s constitutional rights are worth more than that.”
The U.S. Constitution was front and center during closing arguments. Christian said Hogan worked hard over long hours at difficult, low-paying jobs for most of his life, at times more than one, to provide for his family.
“The question is: Was Brian Hogan’s and (his daughter’s) constitutional rights under the Constitution — that protects each and every one of us — were they violated?” Christian said as some members from the jury nodded subtly.
He said the 14th Amendment to the Constitution guarantees parents a “fundamental liberty interest in the care, custody, management and companionship” of their children, and that right cannot be infringed without due process.
“Brian Hogan had a right to be (his daughter’s) father,” Christian said. “Brian Hogan had a right to be a parent to her. Both parents and children have a fundamental liberty interest in remaining a family without the interference of the state.”
He then jabbed his index finger toward the defense lawyers sitting in a row in front of Lindsay and Palmer.
“That’s the state, over there — that’s the government,” Christian said.
“The government that should be the government of ‘by the people, for the people.’ Instead, they became the government of the elite. The government of ‘I know better.’”
Social workers testified throughout the week that they used CVAs on advice from Lindsay, who initially distributed copies to DSS workers. At times there would be staff meetings to discuss cases, where Lindsay and at times Palmer were present as CVAs were discussed.
The social workers testified they used CVAs on “stuck cases,” including instances when social workers could not convince a judge to issue an order to separate children from parents in circumstances where the social workers thought the child was unsafe.
Attorneys for the county, Lindsay and Palmer assured the jury throughout the trial that social workers had the best interests of the children in mind.
Lindsay’s attorney Patrick Flanagan said Lindsay had obtained a copy of a CVA from a continuing education class lawyers take to maintain their credentials sometime before 2006.
Flanagan said Hogan signed the CVA voluntarily, a fact Hogan stridently denied Wednesday. Flanagan also tried to counter the plaintiff’s narrative that the county was deliberately indifferent to the plight of parents whose rights were being violated.
“We know that’s not true,” Flanagan said during his closing argument, adding that social workers testified that they had the best interest of children in mind.
“Should we have used the CVAs?” the county’s defense attorney Sean Perrin asked. “No. They were ineffective legal documents.”
Perrin argued the CVAs were not in widespread use, as only 30 have so far been found out of the hundreds of DSS cases Cherokee County has every year. He added that DSS workers were trained by the state Department of Health and Human Services and disregarded some of that training when they elected to use CVAs.
“We solved the problem in a legally defective way,” Perrin said in his closing remarks. “There was a big problem. We tried our best and did it wrong, but we tried our best to help (Hogan’s daughter).”
Hogan attorney Melissa Jackson stood before the jury, a scowl on her face. It was Jackson whom Hogan first told about the CVA when he approached her in the grocery store more than three years ago and asked her to help return his daughter to his custody. She represented him for free in a 2017 hearing that exposed Cherokee County’s scheme and reunited Hogan’s family.
“The fun thing about the Constitution is it doesn’t just apply to you or me or all these fancy people in suits,” she said as she swept an arm toward the defense table. “It applies to everyone. It applies to the people suffering from addiction. Their arguments are almost insulting.”
She said the arguments from the defense were “flashing lights” trying to distract the jury from the real issue at hand.
“Cherokee County was not doing what was in the best interest of the children,” Jackson said, now shouting in the courtroom. “They were doing what was in the best interest for them. An easy, cheap, quicker way.
“They aren’t dealing with people who are doing wonderful,” Jackson said. “They are not dealing with people who have money and cars. These people are at the worst point in their lives.”
Jackson, quoting one of the defense attorneys, said they had to use CVAs because there were no other options.
“There were plenty of other options; they just chose not to use them,” Jackson said.
She paused and then turned to the jury. The entire week nobody had addressed the elephant in the room, that at the end of this trial, the jury would have to consider a dollar amount if the county, Lindsay or Palmer were found liable.
But Jackson had done some math. She said if the defense’s expert witnesses’ time was worth $300 per hour, so was Hogan’s pain and suffering. So was his daughter’s pain and suffering. So should the defense pay for their wrongs.
She suggested an award of nearly $3.4 million.
The jury asked only a few questions during deliberations. They wanted to see the job description for a DSS director. They also inquired about whether the lawyers or expert witnesses would receive part of any verdict award.
They asked how much would be given each to Hogan and his daughter, and whether they could reserve money for the girl’s college education.
Counsel for both sides looked at each other. As the jury remained out of the courtroom, Christian told the court that typically funds awarded to a minor are put in trust until she comes of age.
Chief Judge Martin Reidinger called the jurors in and told them they had to follow his instructions: If they were to award an amount, it should be sufficient to compensate each of the plaintiffs for the damages that had been caused. The jurors returned to deliberate some more, and a half-hour later they were ready to deliver their justice.
The jury filed into the courtroom for the last time, wearing the clothes of working people — cargo shorts, jeans, T-shirts, flowery flowing dresses — a stark contrast to the pressed suits of the lawyers. The courtroom fell silent with anticipation.
Members of the jury sat stone-faced as Reidinger read the verdict and the award in the civil trial.
Reaction to verdict
A sigh came from Palmer’s husband, Cherokee County Sheriff Derrick Palmer. He and his wife declined to speak after the verdict, as did Lindsay and the rest of the attorneys for the defense.
As lawyers packed up, Hogan stood off to the side by himself.
“I don’t know what to say. I’m speechless,” Hogan said in a hoarse voice. After he took a moment to collect his thoughts, he added, “I hope no other family goes through what my family went through, me and my daughter.”
Outside the courthouse on Otis Street, Hogan joined his legal team for a celebratory photo.
“If there’s any positive to come out of this, it’s that maybe we will see … systemic reform that says when social services are taking action involving people’s lives, that we actually support that mission and do the job as it’s meant to be and consistent with the U.S. Constitution,” Christian said.