Maryland Family Law Maryland family law opinions and commentary
RALEIGH, NC — A federal jury has awarded $4.6 million to a father and daughter after finding that Cherokee County and several of its Department of Social Services’ employees created and executed a fraudulent document to remove the girl from her father’s custody.
Dozens of families have alleged that Cherokee County’s DSS illegally separated children from their parents. The May 13 verdict, in which the jury awarded $1.5 million to the father and $3.1 million to the daughter, is the first verdict to be handed down in connection with the scandal, which led to criminal charges being filed against two DSS employees.
David Wijewickrama and Ron Moore of the Law Office of David Wijewickrama in Waynesville, Melissa Jackson of Waynesville, and D. Brandon Christian of Fayetteville represented Brian Hogan and his minor daughter. They alleged that the former Cherokee County DSS director, Cindy Palmer, and the agency’s former attorney, Scott Lindsay, along with other social workers, coerced Hogan into signing a Custody Visitation Agreement (CVA) — conjured up by the agency — which transferred custody of Hogan’s then-10-year-old daughter to Hogan’s father.
In November 2016, Hogan left his daughter with a neighbor so he could be with his wife, who had suffered a life-threatening heart attack and was in intensive care in Asheville, hours away from their home in Murphy. Cherokee County DSS later became involved when the daughter’s school expressed concern about her care.
The complaint states that social workers told Hogan that he was to come home immediately, where he claims he signed the CVA under duress. The CVA is formatted such that it appears to be official, but it is not supported by statute or legal authority, state district court judges have found.
“They were told that their children would be placed in foster care and they wouldn’t be able to see them again, that they could be sent to jail, or they could face criminal issues if they didn’t sign,” Wijewickrama said.
Chief U.S. District Court Judge Martin Reidinger wrote in a Feb. 21 order granting a motion for summary judgment that Hogan—who is intellectually disabled and unable to adequately read and write—was given just 24 hours’ notice that he needed to sign the CVA and just a moment’s notice to read it before signing. Hogan wasn’t represented by an attorney or given an opportunity to confer with one, Reidinger found.
On Dec. 17, 2017, a state district court judge returned custody to Hogan and declared the CVA invalid and unenforceable. In a separate but similar case, another state district court judge voided all CVAs, calling them actual and constructive fraud, citing “gross irregularities” in the process used to obtain them and in the illegality of the CVA themselves.
In March 2018, the North Carolina Department of Health and Human services temporarily assumed leadership of child welfare services at Cherokee County DSS. Its investigation revealed a systematic lack of adequate training, supervision, and capacity to deliver appropriate services, even beyond the CVAs.
“There is a lot of work to be done to bring Cherokee County Department of Social Services into compliance with laws, policies, and appropriate child welfare services,” DHSS secretary Mandy Cohen wrote in a news release.
Court records show that this case is one of many, and that Cherokee County DSS has used dozens of CVAs to remove children from their homes.
“It’s a long story that has 31 cases to go,” Wijewickrama said.
According to court records, there is no evidence that CVAs have been used anywhere else in the state.
In May 2020, Palmer and Lindsay were indicted on numerous felonies and misdemeanors related to their duties with DSS, including the use of CVAs.
