The woes of Cherokee County’s Department of Social Services are in the national spotlight this week, following a ProPublica-New York Times article highlighting the nationwide use of kinship placements and safety plans, and problems regarding what the article describes as a shadow foster care system.
However, Cherokee County’s method of evading judicial scrutiny, though featured in the article, was actually distinctive from what’s happening elsewhere in the state or nation.
As Carolina Public Press has reported repeatedly in coverage since 2019, practices in Cherokee County have been ruled unlawful and fraudulent. Although they operated outside of the state’s system, the violations were possible because North Carolina has each county administer services while the state provides minimal oversight.
Parents signed under duress
Parents have told Carolina Public Press that Cherokee County social workers coerced them into signing an unlawful document, called a Custody and Visitation Agreement. The paperwork was formatted to look like a legal document, with a block for a notary public to sign.
Hannah Allen, a mother in Cherokee County, said social workers threatened to use her own juvenile court record against her and strip custody of her son for good if she refused to sign.
“They wanted to put my (son) into custody, or they would put him into foster care, and I wouldn’t see him,” Allen said in October after former DSS Director Cindy Palmer pleaded guilty to felony obstruction of justice for her role in multiple cases over several years.
Some parents were told to sign the document while they served time in the Cherokee County Detention Center, run by Palmer’s husband, Sheriff Derrick Palmer.
Some parents were told they might never see their child again if they did not sign or did not have the document fully explained to them.
“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.”
Brian Hogan “was told he had 24 hours to meet with DSS, or his daughter would be placed in foster care,” special prosecutor Boz Zellinger, who is prosecuting the cases against Palmer and former DSS attorney Scott Lindsay, said in October. Hogan and his daughter won a $4.6 million judgment against Cherokee County, Palmer and Lindsay in May.
While the county’s attorney for civil litigation has said CVAs started in 2008, the attorneys for the children say they may have been authored as far back as 1999. In addition to CVAs, the department used powers of attorney, family safety agreements, safety plans and “substantially similar agreements” to avoid court oversight.
The county’s insurer settled its first case in September with Heaven Cordell for $450,000. Her sister is also suing the county, and her case is expected to go to trial in mid-January. The Cordell sisters were featured heavily in the recent ProPublica-New York Times article.
Social workers told to use CVAs to save money
The budgets for sheriffs and health and social services offices are often the two most expensive departments in a county’s annual budget, said David Wijewickrama, one of the lawyers for around two dozen people suing Cherokee County and a variety of DSS leaders.
In Cherokee County’s most recent annual budget, the two departments use just over half of the county’s $43.7 million budget.
“This whole thing is about the county saving money,” he said about the motivation for closing cases using the CVA in a recent interview.
Former Cherokee County DSS workers testified in May that they questioned the legality of the CVAs but were told to use them anyway by Lindsay and Palmer. One day after DSS lost several cases in court, former social work supervisor David Hughes testified in court that Lindsay told social workers to be certain they needed to file the petitions in court “because they were expensive.” Hughes said Lindsay “didn’t elaborate on what they cost.”
Lindsay was “mad at us for losing,” Hughes testified. “That particular day we had lost, I think, three cases. And two of them were, basically, thrown out or considered like a mistrial, I would say.”
In addition, after a 2016 audit found 35 children, nearly half of those in custody, had been in custody for more than a year, county leadership pressured social workers to close cases faster.
“They were telling us we needed to get our cases turned over more quickly,” Hughes testified. While the rural department had high turnover and was short on staff, he said at trial, this seemed like a good alternative to speed up case closures.
Once the parents signed a CVA, DSS removed their child or children and closed the case. With a closed case, any of the support a child or family might have otherwise been entitled to evaporated.
Social workers did not check up on the child as they would be required to if the child were in the foster care system or with a kinship placement. The parents were not represented by lawyers when this happened, and a judge did not rule on the CVA.
More recently, Cherokee County commissioners, who also serve as the DSS board, have as of October refused to sign an agreement with the state Department of Health and Human Services to train their workers, reply to state communications and follow state and federal rules.
Instead, the commissioners’ scathing reply blamed the lethargy of the state’s District Court system in rural North Carolina for delays that cost the county money.
“The actual costs to the county for unnecessary long-term foster care are exorbitant,” the letter says. “… Thus, when foster care is extended unnecessarily because of court continuances both the state and Cherokee County suffer those costs.”
Kinship care is overseen by the court
As social services workers investigate a claim of abuse, dependency or neglect and need to remove a child from a home, they ask the parents whether any relatives can take a child temporarily while they investigate the claims.
This is broadly called kinship care, which featured prominently in the Propublica/New York Times article. The idea behind this is children are better off with people their own family or those they are already familiar with.
However, in North Carolina kinship care is generally legal and regulated. What happened in Cherokee County was something else entirely — the concocted “Custody and Visitation Agreements” are a legal fiction, not a part of the state’s system.
“Really the difference is the kinship placement is something done through the court after DSS files a petition, and the court has determined there is a need for the child to be placed out of the home,” said Sara DePasquale, an associate professor of public law and government at the UNC School of Government.
“The CVA was an outside-of-court practice that was implemented where there were no protections for the parents,” DePasquale said.
Parents have broad authority granted by the U.S. Constitution in how they raise their children, and when they are taken to court to strip that right, they are also entitled to legal representation, she said.
In North Carolina, social workers and law enforcement officers can remove children without court authority when there is a risk of imminent harm — but that’s only until social workers can file a petition with a magistrate or local judge to remove the child from the family’s home. After that, parents are assigned lawyers, and a guardian ad litem represents the child’s best interests.
If the child is not in imminent danger and the home or living situation is unsafe, social workers can ask to move the child to a relative or close family friend while the parent makes changes to the home or living situation.
“It’s very clear this is not to be coercive and is voluntary,” DePasquale said. “And it can be revoked (by the parent) at any time.”
Those kinship homes are supposed to be scrutinized for safety, and the child welfare office is supposed to conduct background checks on adults who live there, she said. All the while, there are hearings that allow parents the opportunity to be represented by counsel with the ultimate goal of reuniting with their child.
State’s limited system of oversight missed CVA scheme
Whatever problems exist with child welfare systems across the country, North Carolina’s system is unusual.
North Carolina is among a few states that do not have a state-administered child welfare system. Instead, counties oversee day-to-day operations while the state provides training and supervises the counties’ work.
A series by CPP earlier this year examined wide inconsistencies in child removals throughout North Carolina’s child welfare system. Patchwork Protection revealed some counties removed children at far higher or far lower rates than others, and regional pay inequities mean some rural counties are often short-handed and must train a rotating cast of workers new to the field.
Prior to 2020, NCDHHS reviewed county DSS child welfare files roughly once every year, according to records obtained from DHHS. Those reviews did not always happen in Cherokee County, records show. From 2004 through 2017, the state did not conduct reviews for five of those years.
The state’s October 2017 review — authored just two months before District Court Judge Monica Leslie invalidated Hogan’s CVA and notified the state of the unlawful practice — said for all reviewed foster care cases, only 55% of the legal requirements were met.
“Reviewer comments indicated there were missing court reports, missing court orders, and orders indicating there had been multiple adjudications,” the report said. “The management team indicated there were ongoing issues with timeliness and accuracy of court orders, and other difficulties in court processes had led to appeals and dismissals of cases.”
However, the state has said it only reviewed open cases — not those that were later closed, like those done with Custody and Visitation Agreements.
Starting in 2020, the state has transitioned to a regional support model to more quickly and consistently respond to concerns about training and following federal and state policy and law.
The governor signed a law in September to make several changes to the state’s child welfare system. It includes funding to study a statewide hot line to report child abuse.