A federal case: Violated rights versus ‘best interests’ of child
Federal civil trial underway Monday puts Cherokee County seizures of children without judicial authority under a magnifying glass.
By Kate Martin May 11, 2021
ASHEVILLE — Lawyers for Brian Hogan said in opening arguments in a federal civil trial Monday that Cherokee County, its former director and former attorney broke state policies and violated Hogan’s constitutional rights when they took his daughter away using a document they told him granted permanent custody to her grandfather.
Defense attorney Sean Perrin said in his own opening arguments that child welfare workers in Cherokee County and their supervisors oversaw 30 such agreements, called Custody and Visitation Agreements, or CVAs, separating children from their parents. Perrin represents Cherokee County in the civil trial that is expected to include three or four days of testimony.
Perrin and the defense attorneys for former Cherokee County Attorney Scott Lindsay and former Department of Social Services Director Cindy Palmer argued that even though the CVAs were against state policy, the children were better off in other homes.
“Everything done in this case was done in the child’s best interest,” Perrin told the jury during his opening statement. “The child was unsafe, there’s no doubt about that here.”
The trial’s outcome may hinge on whether the jury thinks the plaintiff’s violated constitutional rights argument or the defense’s “best interest” argument will meet the standard that Chief Judge Martin Reidinger set in his instructions to the eight jurors.
If there is a preponderance of evidence, or it is more likely than not, that Hogan’s constitutional rights were violated, the jurors ought to decide in favor of the plaintiff, Reidinger said. If it is more likely his rights were not violated, they ought to rule for the defendants.
First-day testimony
At issue in the trial are the circumstances of Hogan and his daughter after Hogan traveled to Asheville to tend to his wife, who had just had a massive heart attack, leaving his daughter in the care of neighbors. Carolina Public Press is not naming the girl because she is a minor.
According to statements in court Monday, before Hogan signed the CVA, Amanda Edmondson, the girl’s mother, had been previously involved with DSS. Hogan often worked long hours and lived away from Murphy to provide for his daughter. He and Edmondson were separated at the time.
Former Cherokee County DSS worker Diana Garrett testified in court on behalf of the plaintiffs Monday that Edmondson was addicted to drugs and at one point had fallen behind on utility and rent payments. She would use drugs while the children stayed elsewhere in the trailer park they called home, according to Garrett’s testimony.
While Hogan was out of town working, Garrett said, Edmondson tested positive for methadone, methamphetamine, marijuana and cocaine, sometimes multiple days in a row.
“All of this was taking place while he was out of town working,” Garrett said.
The environment was unsafe, so DSS petitioned a court for what amounts to emergency custody for Hogan’s daughter. When Hogan returned, he cooperated with child welfare officials and granted temporary custody to his father, Warren Hogan.
District Court Judge Tessa Sellers later oversaw a hearing where all parties, including DSS, agreed to give custody of the girl back to Hogan, Sellers testified Monday.
A few months later, Edmondson had a heart attack, and Hogan went to be with her in Asheville while she recovered.
In November 2016, Hogan signed the CVA granting permanent custody of his daughter to his father, Warren, until she turned 18 years old.
Typical child welfare cases involve attorneys and judges at every step of the process, a fact that multiple former child protective services workers testified was a standard process in Cherokee County. All of the workers said they had been trained prior to working cases for Cherokee County and took state training. None of those trainings included anything related to CVAs.
“We were always told (that) to have a case closed, we had to have a permanent solution to a case,” Garrett said.
“You understand it was not legal and it was not valid?” asked Melissa Jackson, one of Hogan’s four attorneys.
“Yes ma’am,” Garrets said.
Defense attorneys pointed out Edmondson’s prior involvement with DSS, but when Jackson asked if Hogan had previous DSS complaints other than being out of town, Garrett said, “No.”
Hogan regained custody of his daughter after presenting the CVA to District Court Judge Monica Leslie in December 2017.
A ‘stuck case’
All CVAs were invalidated by Sellers in February 2018 as a “product of actual and constructive fraud” by the DSS, former DSS and county attorney Lindsay, and Palmer.
Former DSS worker Kate Brown testified on behalf of the plaintiff Monday that Child Protective Services workers used CVAs when they had a “stuck case.”
“When a case is hard and they don’t have enough evidence to go to court,” she said.
Workers told parents that “it was up to them if they sign it,” Brown said. But they were led to believe that “it was legally binding” and “they had to go to court to undo it.”
Typically, if a child is placed in a home that is not licensed for foster care, DSS is required to assess the health of that environment. Parents are also entitled to legal representation, as is the child through the guardian ad litem program. In CVA cases, the health assessments were not done, and legal representation was not provided, Brown testified.
All social workers said Lindsay had at some point told them to use a form letter to orchestrate the CVAs.
Even though the legal process was not followed, all who worked for Cherokee County who testified Monday said they believed the child was better off in the new home than their previous circumstances.
Former DSS worker Courtney Myers testified for the plaintiffs that Brown, then named Johnson, had questioned the legality of the forms during a staff meeting. Myers said she distinctly remembers Palmer being there by the distinctive sound of her spoon tapping against the side of her yogurt container during the meeting.
Myers said she was involved in about five such CVAs. Policy in Cherokee County, and in many places around the country, leans in favor of returning the child to the biological parents, she said. Barring that, social service workers aim to find a permanent home so the child is not bouncing from foster home to foster home. At some point, CVAs became common practice around the office.
“I had parents tell me they weren’t willing to stop drugs — not able to, didn’t want to or wanted to give their child to grandma or grandpa,” Myers said. “After my first (CVA), it became another option for getting stuck cases closed. If (parents) weren’t willing to work on their case plan, we had to find the kids some permanency.”
At one point, Myers said she asked Lindsay about the legality of the document because a father of one child could not be located initially.
“When we located him, he was arrested in Georgia,” Myers testified. She then asked Lindsay if she should fax the CVA to that county jail. “Scott said whoever was the custodial parent (should sign). It was OK, that we didn’t need to get that father’s signature.”
“Was there a custody order?” Jackson asked.
“No.” Myers said.
“The CVA stripped him of any rights to his child?” Jackson said.
“Yes,” Myers said.
What to expect next
For the remainder of the week, witnesses are expected to include social workers, a school principal and expert witnesses. Lawyers for Hogan began presenting witness testimony on Monday and are expected to continue at least through Tuesday. Once they are done, the defense lawyers will have an opportunity to present their witnesses. After both sides present their evidence and make closing arguments, jurors will decide the outcome.
The trial has broader implications.
Additional families affected by the CVAs may pursue similar lawsuits. The outcome could also point to problems with child custody policies in Cherokee County and other counties, as well as with the state’s ability to hold them accountable.
In addition, several of those named in the lawsuit in the federal civil case already face state criminal charges over the same issues.
Palmer, Lindsay and a former social worker supervisor, David Hughes, were indicted by a Cherokee County grand jury last year on more than three dozen felony and misdemeanor charges related to the CVAs, involving more than two dozen children.
That matter has not yet been scheduled for trial, but an attorney from the law firm that represents Palmer in the criminal matter was also present in the courtroom Monday.
