Cherokee County will not get a new trial to overturn or reduce the $4.6 million jury verdict issued last year for unlawfully separating a girl from her father, according to a Wednesday ruling by Martin Reidinger, chief judge of the federal Western District of North Carolina.
In a separate order filed Monday, Reidinger approved an additional $1.8 million for attorney fees — an amount paid on top of the jury award. It’s an amount Cherokee County will have to pay, and not its insurer, according to their contract.
The result could cost Cherokee County millions of dollars that it doesn’t have. The county has among the lowest property tax rates of any county in the entire state. The county manager deferred to the county attorney when asked whether the county has the money to pay the plaintiff’s legal fees, and the attorney said he would not comment on pending litigation.
It’s not just the county’s share that’s the concern, either. Cherokee County is also being sued by its own insurer. One county commissioner estimated the payouts to dozens of children and families could reach $50 million.
By comparison, Cherokee County’s 2020-21 budget allocated $5.9 million for its Department of Social Services.
How Cherokee County found itself owing millions
After a four-day trial last May, the jury decided Cherokee County, former DSS Director Cindy Palmer and former DSS attorney Scott Lindsay violated Brian Hogan‘s and his daughter’s constitutional rights. The jury awarded Hogan $1.6 million and his daughter, now a teenager, $3.1 million.
Lawyers representing the county, Palmer and Lindsay asked Judge Reidinger to reconsider the jury award last summer, calling it excessive compared with other verdicts.
However, Reidinger disagreed with the cases they chose to justify such a reduction — one involving employment discrimination and another on consumer credit reporting violations.
“The emotional distress suffered as a result of a damaged credit report or the loss of a job is in no way comparable to the devastation caused by the loss suffered when a parent and child are wrongfully separated for over a year,” the judge’s order reads.
When reached Monday, David Wijewickrama, one of Hogan’s lawyers, said, “Today is a good day for Brian Hogan. Today is a step closer to putting this nightmare to bed and starting a new chapter in his life.”
“This couldn’t have come at a more interesting time as we are lining up to prepare for the game plan involving the rest of the cases,” the lawyer said.
Hogan’s case, heard last May, was the first civil case against Cherokee County over years of illegal child removals to be heard in federal court. Nearly two dozen more cases remain on the court docket.
Two similar cases have already been settled, one for $450,000 and another for $4 million. Cherokee County is insured by the N.C. Counties Liability Property Joint Risk Management Agency, which paid half of the $4 million award. The Cherokee County Board of Commissioners voted unanimously in December to pay $2 million from its fund balance.
When asked whether Cherokee County had the money to pay the legal fees for the Hogan case, County Attorney Darryl Brown said he would not comment on pending litigation.
Sean Perrin, the attorney representing Cherokee County in the civil cases, said the parties are mediating all of the remaining cases, save one, as a group in hopes of reaching a resolution. The remaining case is on track for a September jury trial.
“We are looking to mediate all of these cases by the end of April,” Perrin said.
In 2016, Hogan’s wife had a heart attack and went to a hospital in Asheville for treatment. He left his daughter in the care of his neighbor so he could be with his wife, who initially had a dire prognosis.
Over the intervening months, he faced increased pressure from social workers at Cherokee County DSS to sign paperwork to give temporary custody of his daughter to his father, a man whom Hogan described as an abusive alcoholic. Hogan testified that he had nobody else to ask for help.
A few months later, a DSS worker asked Hogan to sign another document, called a Custody and Visitation Agreement. Social workers testified at the trial that the document was formatted to look like a legal custody document.
However, Hogan said he is illiterate and cannot read or write, and he did not have a lawyer present when he signed it, nor did his daughter.
When the government takes a child from a family, the child is supposed to be represented by a lawyer with the guardian ad litem program. Parents who cannot afford an attorney are also appointed one. The case is also supposed to go before a judge.
This did not happen in Hogan’s case and dozens more.
Hogan and his daughter were separated for more than a year. One day in 2017, Hogan ran into Melissa Jackson, a lawyer he knew because she had previously represented him in DSS court. She said he still had legal custody of his daughter and to pick her up at school, but school workers would not let her leave with him.
Then on Dec. 7, 2017, Jackson presented the case to District Court Judge Monica Leslie, representing Hogan for free.
During the civil trial in 2021, Leslie testified about that day in court four years earlier, saying it was the first time she had seen a Custody and Visitation Agreement, or CVA.
“It was shocking,” she testified. She said she asked all of the lawyers in the room to convene in a jury room to discuss the document. Among them was Scott Lindsay, who at the time represented Cherokee County and its DSS.
Judge Leslie testified about what she asked him and his response: “‘What are you going to do about this?’ He said he did not know about this CVA until Ms. Jackson brought it to his attention.”
Lindsay told her that he’d tell social workers to stop using it, the judge testified. When Leslie asked him how many he knew of, he said at least 20.
“I asked what statutory or legal authority did you have to write something called a CVA?” Leslie testified at the civil trial last year. “He said, ‘None.’”
After the hearing, Leslie called the N.C. Department of Health and Human Services, which shortly thereafter ordered all counties to stop using CVAs to separate families. To date, only Cherokee County has been found to use the document.
During the trial, the girl, who was 9 years old when she was first taken to live with her grandfather, said she went to school “crying, basically, every day” and that her grandfather had anger issues. She said she missed her parents and only got to see her half-siblings about three times a month.
When she had her first period, she said “I thought I was dying,” but she was too scared to talk with anyone about it.
Social workers never visited her to see if she was OK, she testified.
Several social workers testified that once a parent signed a CVA, the case was closed — and it was less expensive for the county if the case was closed, one former supervisor testified.
Who will pay and how?
This week’s rulings suggest those expense calculations, from when the county was using CVAs to move along “stuck cases,” failed to look at the big picture.
Cherokee County’s insurer is suing the county in an effort to limit payouts of dozens of other cases like the Hogans’. Its lawsuit was recently moved from Wake County to Cherokee County. The insurer argues that since Palmer and Lindsay refused to aid in the county’s defense by invoking the Fifth Amendment, among several other reasons, the county had breached its contract.
In October, Palmer pleaded guilty to felony obstruction of justice in a related criminal case against her. Lindsay faces nearly two dozen felonies, and a trial could occur as soon as this summer.
Lawsuits against Cherokee County could be filed through 2035. Some children were very young when social workers unlawfully removed them from their homes, and the statute of limitations to file lawsuits for those children lasts until they turn age 20.
The Local Government Commission, a branch of the state treasurer’s office, can take over governments with runaway costs and no plans to pay down debts.
In October, the LGC released a short statement about Cherokee County: “LGC staff is aware of and is monitoring the situation in Cherokee County.”