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Attorneys representing two people indicted for their roles in separating children from Cherokee County parents are trying to wrestle their clients out of dozens of felony and misdemeanor charges.
A grand jury in Murphy indicted former Cherokee County Department of Social Services attorney Scott Lindsay, former DSS Director Cindy Palmer and former Child Protective Unit supervisor David Hughes last year on dozens of felony and misdemeanor counts.
The trio led the office for several years while social workers used Custody and Visitation Agreements to separate families unlawfully, the indictments say.
Hughes made a deal with prosecutors last month. In exchange for truthful testimony “in any proceeding,” the state dropped 10 felony obstruction-of-justice charges against Hughes, and he pleaded guilty to two misdemeanors.
In recent filings and statements, Lindsay’s Murphy-based attorney, Jerry Townson, disputes that Lindsay even committed a crime. Townson said in an interview this week that in family law, it’s legal to sign a contract and assign custody of a child to someone else.
The contracts “can always be changed by a District Court judge,” he said. “So, nothing really changes. So, what the hell are these people — what are they really complaining about?”
He then used a mocking tone, apparently imitating a parent with a reference to slavery: “‘Well, they took my kid and sold it down the river.’”
Returning to his usual voice, Townson continued. These contracts, including the CVAs, he said, “can always be changed by a District Court judge. … So, what’s the big deal?”
When asked for comment, the state Attorney General’s Office declined, saying its prosecutors are adhering to state ethical rules that prohibit commenting that might unfairly influence a jury pool.
Local District Attorney Ashley Welsh would typically prosecute cases in her district, but she recused herself in early 2019 and handed the case to the AG’s office because she often prosecutes cases out of Cherokee County Sheriff Derrick Palmer’s office. Derrick Palmer is Cindy Palmer’s husband.
David Wijewickrama, one of the attorneys representing families in several federal civil cases against Cherokee County, Palmer and Lindsay, said Townson’s arguments ignore an important detail.
“What they are ignoring is the state facilitated the transfer” of custody, he said. “He’s saying there’s no harm in facilitating a private custody agreement.”
But the parents often signed the documents at the DSS office, or while a DSS worker was present.
“They billed for these,” Wijewickrama said, citing a practice that social services offices use to get reimbursed for their work with state or federal money. “The state can’t get involved in people’s lives without judicial oversight.”
Wijewickrama takes issue with much of Townson’s filing.
“The statements in this document are not based in reality or law,” he said. “They appear to refer to an alternate reality saturated with delusions and wishful thinking.”
Parents have told Carolina Public Press the social workers threatened to take their kids away unless they signed the paper.
“It did seem sketchy, but when you have someone who you think is over you and is threatening foster care, who you know can take your kid, you kind of do what they say,” Tienda Rose Phillips told CPP in 2019. “You kind of feel you have no choice.”
Palmer’s and Lindsay’s indictments said they obstructed justice by creating a practice of using CVAs, “an agreement that allowed the removal of minor children from their parent(s) without court involvement, in violation of North Carolina law. The use of this agreement effectively avoided judicial oversight into the activities of Cherokee County DSS and subverted the statutory process for determining the abuse and neglect of children, and determining custody and parental rights.”
Attorney Hart Miles with Cheshire Parker in Raleigh, who represents Palmer, asked the judge last month to drop two felony obstruction-of-justice charges “on the ground that these counts charge an unconstitutionally vague offense on its face and as applied” and that the counts “fail to state an offense.”
Miles asked the court also to drop the felony perjury charge against Palmer because it “failed to state an offense.” Palmer was charged with perjury for what prosecutors say was her deliberately untruthful testimony in 2018 when she said she had never heard of a CVA before Dec. 6, 2017.
Miles did not respond to a request for comment this week. A co-worker said he was away from the office.
Townson’s seven-page motion mirrors Miles’ filing in some ways, asserting “there is no crime charged, no violation of the law, except in a vague, general and unconstitutional way.”
Both also ask for the dismissal of misdemeanor charges, saying the statute of limitations for the charges has passed. North Carolina’s statute of limitations on misdemeanor charges is two years, and each defendant faces several misdemeanor charges.
The most recent CVA mentioned in either indictment was executed on Oct. 30, 2017, and the three DSS workers were indicted on May 18, 2020. Court records do not say how long the child remained separated from his or her home.
State Bureau of Investigations officers worked the case for years. The investigation opened in late 2017 shortly after state officials discovered the practice.
Social workers testified in a civil trial in May that they subverted the court process and leaned on CVAs to close “stuck cases” or “weak cases.” This process accelerated in the fall of 2016, according to court testimony and other documents.
During a May federal civil trial in Asheville, Hughes testified that social workers were losing cases in court, after which Lindsay talked with staff.
“He was just, kind of mad at us for losing,” Hughes testified. “That particular day we had lost, I think, three cases — and two were basically thrown out or considered a mistrial.”
After May’s four-day civil trial, in which father Brian Hogan and his daughter sued Cherokee County DSS and several employees for violating their constitutional rights, the jury awarded the pair $4.6 million. The risk management pool covering Cherokee County is suing the county to avoid paying millions of dollars for the Hogan verdict and other cases sure to come.
Sean Perrin, the county’s attorney in the Hogan civil case said DSS workers executed 30 CVAs as far back as 2008. Part of Palmer’s defense, Miles’ filing said, is CVAs were used before she became the permanent director in March 2016. At least two other CVAs involving three children were signed before Palmer became the permanent director, according to the indictments.
Palmer’s attorneys also say prosecutors are engaging in “selective prosecution” by unfairly singling her out, while CVAs were signed under two prior directors. By the time she arrived in the director’s seat, the filing says, the practice had already been established for “several years.”
“No evidence provided in discovery thus far indicates that Ms. Palmer had any involvement in the initiation of the use of any CVAs or in making their use standard practice for Cherokee DSS social workers in the first place,” the filing said.
Townson also alleges “selective prosecution” for Lindsay, saying that social workers retrieved a “custody agreement” from a form book in his office without Lindsay’s guidance.
When asked in an interview to clarify if he meant a CVA, he avoided the question, instead saying it’s not against the law for attorneys to provide forms to “help people.” He declined to specify the form book in which it was located.
Lindsay testified in an early 2018 custody case that he received a copy of the CVA from another attorney when he attended a continuing legal education course in 2007 or 2010 — or perhaps earlier. Records requested from the North Carolina Bar indicate that Lindsay attended social worker conferences in Chapel Hill in each of those years.
“And at some point — I’m not sure at what point — I gave the form, or the form was taken by a supervisor or someone at DSS because they had the form themselves because, at some point, they started sending forms to me with names and dates and already filled in,” Lindsay testified in 2018.
He said if parents had questions about the CVAs, he told them he could not advise them and that they needed to find their own attorney.
Hogan, who earned around $17,000 per year and is illiterate, testified he was coerced into signing a CVA to give custody of his daughter to her grandfather while his wife was undergoing a medical crisis. The CVA said his father had custody of the daughter until she turned 18.
Hogan and his now-teenage daughter were separated with the CVA for more than a year before he ran into attorney Melissa Jackson at the grocery store. Jackson read the document and asked a judge to overturn the CVA, which she did. Two judges testified at the Hogan civil trial that they had never seen a CVA before Jackson brought it to their attention.
District Court Judge Tessa Sellers had ruled the CVA 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.”
District Court Judge Monica Leslie testified at the Hogan trial in May. She said when Jackson came to court in 2018, she asked the lawyers to meet her in a backroom to discuss Jackson’s motion.
She asked Lindsay, “Who prepared this CVA and these others?” Leslie testified in May. “And he said, ‘Well, usually the social workers are the ones that prepare them, but I may have prepared one or two.’”
She asked, “What statutory or legal authority did you have to prepare or write something called a CVA,” Leslie said at trial. “And he said none.”
Townson, who said he is defending Lindsay for free, also accuses sitting judges of colluding with the SBI to decide what charges to pin on Lindsay, Palmer and Hughes.
“If I was a defendant, I believe I would be concerned if sitting judges were pointing at me saying I had violated the law, especially when I didn’t think I had,” Townson said, expanding on this allegation. “I don’t think that’s a sitting judge’s job.”
He declined to specify which judge or judges he referred to or where he got his information, citing a gag order imposed by Superior Court Judge Bill Coward on attorneys. When asked whether he meant Coward, who has been hearing the criminal cases in a Murphy courtroom, Townson said no.
A review of the files for Lindsay’s and Palmer’s cases does not include a gag order. However, a protective order in place prevents attorneys from releasing information from sensitive documents received in the discovery phase, such as anything mentioning the name of a minor child.
Hearing of Townson’s remarks, Wijewickrama said, “There may be some very serious ethical issues regarding the statements made regarding sitting judges.”
CPP has been unable to uncover CVAs like those used in Cherokee County anywhere else. State Department of Health and Human Services workers also said they do not know of any other North Carolina county where they were used, despite an effort to find out if any had.
A hearing on motions in the case was recently continued. The next hearing in the case is scheduled for October. A trial could come in 2022.
Correction: Cindy Palmer and Scott Lindsay have been named along with Cherokee County in a civil suit over the child removals. An earlier version of the article mistakenly named an additional individual as party to the civil suit.