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Brian Hogan and his teenage daughter won a $4.6 million federal civil case against the Cherokee County Department of Social Services for improperly separating them.
Social workers convinced Hogan to sign a document called a Custody and Visitation Agreement, or CVA, but the way this was done violated his rights to due process, the jury decided in May.
What is a Custody and Visitation Agreement?
A CVA uses legal language, which gives the appearance of a legal document to a layperson. Social workers in Cherokee County also told parents the document granted permanent legal custody of the child until he or she turned age 18. Social workers told parents if they wanted to get it changed, they had to go before a judge.
The CVA says the parent “is not able at this time to properly care for (the child or children) and to provide them an adequate home.”
It also says all parties “desire to enter into this Agreement,” which grants custody, care and control of the child or children to someone else, “which the parties hereto deem to be in the best interest of said children.”
The agreement says the parents lose custody of the children “until such a time as the children, and each of them, shall become 18 years of age or is otherwise emancipated, whichever comes first.”
Parents can still see their children under this agreement, but the times are not spelled out and are at the discretion of whoever has custody of the children.
An example of a CVA:
Is a CVA legally binding?
No. There is no true legal document in North Carolina called a Custody and Visitation Agreement, and the documents created in Cherokee County with this name were improper and used illegally, judges have ruled.
When children are taken from parents by the government, both the child and parent have certain rights. Under the 14th Amendment of the U.S. Constitution, parents have the right to a “fundamental liberty interest in the care, custody, management and companionship” of their children, and that right cannot be infringed without due process, said one of Hogan’s attorneys, Brandon Christian, during closing arguments of the trial.
Due process means both Hogan and his daughter are supposed to be represented by attorneys. Children in North Carolina are represented by lawyers with the guardian ad litem program.
During meetings where parents signed CVAs, the children were not represented by lawyers and neither were the parents, according to testimony presented by former Cherokee County social workers during Hogan’s civil case.
When parental rights are terminated — even if those terminations are voluntary — a judge should hear the case. This did not happen for CVA cases in Cherokee County.
In some situations, children can be taken away from parents temporarily without the involvement of judges or attorneys, but generally these circumstances are rare and involve keeping the child safe from immediate harm.
What have judges said about CVAs?
Two separate District Court judges ruled that the documents were not legal. In Hogan’s case specifically, in late 2017, District Court Judge Monica Leslie invalidated the CVA that kept Hogan’s daughter from him.
Leslie testified that the Hogan CVA was the first she’d ever seen. In a conference with attorneys in another room, Leslie testified that she asked former Cherokee County DSS attorney Scott Lindsay a question during that meeting.
“I asked, ‘What statute or legal authority did you have to write something called a CVA?’” she testified. “He said, ‘None.’”
A few months later, District Court Judge Tessa Sellers invalidated all other CVAs that exist. Sellers rebuked the county in strong language, calling the CVAs “unlawful” and that the process in obtaining the agreement violated the constitutional rights of the parent.
Finally, Sellers ruled the CVA as “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.”
Where did the CVA come from?
Lindsay has testified that he received a copy of the CVA language from another attorney he met while attending a continuing legal education course to maintain his law license, sometime in 2007 or 2010.
Carolina Public Press asked the North Carolina State Bar when Lindsay attended the courses. Records from the state bar show he attended two social services attorney conferences: One on Feb. 22, 2007, and another on Feb. 25, 2010, both in Chapel Hill at the UNC School of Government. His 2010 conference attendance included one credit hour of ethics training. The Bar did not produce record of any specifics of the courses, including whether CVAs were introduced.
Lindsay had testified in another case that CVAs were first used in 2014. However, Sean Perrin, the attorney representing Cherokee County at the Hogan trial, said CVAs were first used in 2009.
How many families have been separated using CVAs?
Perin said at the Hogan trial that Cherokee County and its social workers are responsible for 30 Custody and Visitation Agreements from 2009 through 2018, but attorneys for the parents whose children were taken say there could be dozens more children involved.
Social workers testified at trial that the tracking of CVAs was not rigorous. Sometimes they created a new document by deleting the names of parents, children and dates, and filling in new information.
There is also conflicting information about where the CVAs were actually kept within the county.
“I asked, ‘Where are these being kept at DSS? Are they in the files?” said Judge Leslie at the Hogan trial. “He hemmed and hawed and never answered that question.”
Where else have CVAs been found?
So far, according to officials with the state Department of Health and Human Services, CVAs or documents like them have not been in use by any other county, except Cherokee, though some children may have moved outside Cherokee County.
For instance, Leslie testified at the Hogan civil trial that Clay County had a copy of a CVA in its files that originated with Cherokee County.
What should you do if you think you have a CVA?
These documents are relatively rare, even in Cherokee County. Most of the CVAs were signed after 2014. State officials say so far, they have no evidence of CVAs being executed outside Cherokee County, N.C.
However, if you believe you and your children were separated using a CVA without attorneys to represent the children and parents, contact Carolina Public Press using this form.
Parties with a CVA may also want to contact an attorney.