Lessons from the hidden foster care scandal in North Carolina

Cherokee County, NC Courthouse

Lesson #1: It’s probably happening in your community, and it should be a scandal there, too.

There is quite a scandal in the child welfare system in Cherokee County, North Carolina.  But where to begin?  How about with the first few paragraphs of this September 11, 2019 story by Kate Martin of the nonprofit news site, Carolina Public Press:

The State Bureau of Investigation is continuing to look into possible felonies at Cherokee County’s Department of Social Services, nearly a year and a half after its investigation began.

Current and former workers of Cherokee County’s DSS office, including former director Cindy Palmer, are under investigation related to removing children from parents without judicial oversight using a document called a custody and visitation agreement or CVA. Social workers at the office did so for more than a decade, according to testimony in court last year.

Whether the agents are now looking at related issues that have come to light in recent months remains unclear.

Although suspended as director in March 2018, Cherokee County DSS rehired Palmer as the office’s business officer in June 2018, and she continues in that role despite the ongoing criminal probe.

The reason we all should be paying attention is simple: Some of the things exposed in Cherokee County first by investigative reporters for the Associated Press and now by Carolina Public Press are highly unusual – at least I hope they are.  But at the heart of the scandal is a practice that goes on all over America.  And the real scandal is that only in North Carolina is it being treated as a scandal. 

          

  There are many names for the practice in question: shadow foster care, the foster care Twilight Zone, blackmail placements, and hidden foster care.  Whatever you call it, it is a system that rivals in size and scope the open, relatively above-board foster care system – but with even less due process and less accountability.  I’ve written about it in general and I wrote about the North Carolina scandal when it first broke well over a year ago.  But much has happened since.

How hidden foster care works

            It works like this: A parent is told at a minimum:  We’re going to take your children away and place them in foster care with strangers. In some cases they’re told: We’ll also separate them from each other and place them far, far away. You can go to court and try to get them back but, well, good luck with that. Good luck even visiting them.  Then they offer the alternative: Just sign this little piece of paper in which you “voluntarily” agree to have us place the children with someone nearby – usually a relative.

            Of course no lawyer for the family ever looks at that piece of paper first, or explains to the family their rights.  The parents’ only explanation of what the piece of paper means is what the caseworker tells them it means. And while many of these placements are theoretically short-term, in some of the North Carolina cases these agreements effectively involve signing away rights to a child forever.

            As I said, it happens all over the country. But only one state child welfare agency has aid the whole thing is illegal: North Carolina. (North Carolina is one of the states in which counties run child welfare and the state social services agency has some oversight.)  Even in North Carolina, it’s not clear if the state would have acted had the practice not been exposed in a major national news story by Associated Press reporters Mitch Weiss and Holbrook Mohr. Since then, Kate Martin of Carolina Public Press (CPP) has been following up aggressively. 

The timeline

            Here’s what happened and when, based on news accounts:

            October, 2017: A state Department of Health and Human Services team conducting a routine review discovers that plenty is rotten in the County of Cherokee Department of Social Services.  A memo obtained by Carolina Public Press nearly two years later reveals what the state examiners believed to be widespread falsification of records involving contact between child welfare caseworkers, birth parents and foster children.

            The memo also states that terminations of parental rights “are pursued very quickly with little or no engagement with parents.  It is hard to believe with the lack of engagement and documentation that TPRs are even granted.”

            There is no indication that they also discovered the use of hidden foster care at this time.  But, it appears the state did very little about what it did discover.  The Cherokee County district attorney told Carolina Public Press she was “flabbergasted” she was not notified at the time about what might be criminal activity.

As CPP put it: 

Although the DHHS memo expressed concern about records falsified by duplicating other records, it focused not on potential criminal fraud or violation of families’ rights, but on DSS funding and destabilizing DSS child placement actions: “These records are tied into funding. A parent’s attorney could get ahold of these records and make an argument to have the kids returned home.”

            December, 2017: A local attorney, Melissa Jackson, discovers the use of hidden foster care in Cherokee County while representing a father coerced into “voluntarily” signing a so-called “custody and visitation agreement.”  As the Associated Press would later report:

Soon after Jackson exposed the practice, the North Carolina Department of Health and Human Services sent an “urgent” letter to county agencies on Dec. 20, 2017, warning that “facilitating the completion of private custody agreements” without court oversight “falls outside of both law and policy.”

            If the state did anything else at that point, there is no public indication of such action.

            December, 2017: Jackson and attorney David Wijewickrama sue Cherokee County on  behalf of parents whose children were taken using CVAs.  They are seeking class-action status.

            Early March, 2018: The state asks Cherokee County for a “corrective action plan.”

            March 14, 2018: With Jackson’s client prominently featured, the AP story exposing Cherokee County’s system of  hidden foster care is published.  The story reveals that the practice dates back at least to 2007 and may involve hundreds of families.  Exactly how many is unclear because former Cherokee County DSS attorney Scott Lindsay said at court hearings that many “files are missing.”

At about the same time, District Judge Tessa Sellers rules that CVAs violate state law, the state constitution and the United States Constitution.   According to the ruling:

The CVA is the product of both actual and constructive fraud on behalf of the Cherokee County Department of Social Services, it’s agents and Attorney Scott Lindsay and director Cindy Palmer.

            March 16, 2018: Now the state is really interested, and, apparently, concludes that a “corrective action plan” is not enuogh. After the scandal makes national news, the state announces it will temporarily take over the child welfare functions of the Cherokee County Department of Social Services.  The takeover begins three days later.

            At about the same time the county district attorney – who only learned of the scandal by reading the AP story – asks the North Carolina State Bureau of Investigation to investigate possible criminal wrongdoing.

            March through June 2018: Though the state is taking over the child welfare functions, the county DSS still is overseen by a local Board of Social Services.  The Board holds what is apparently an unusually large number of special meetings. But we don’t know exactly what happened at all of them – because, Carolina Public Press reveals, the minutes are missing.  We do know, however, that Lindsay’s replacement as DSS attorney, David Moore, said Palmer may have lied under oath.

April 2018: The Board of Social Services suspends Palmer, with pay.  She is replaced with an acting director.  Moore tells the board Palmer should not be allowed to return.

May, 2018: The position of business officer for Cherokee County DSS becomes vacant. Palmer had held that job before she was named director. 

            June 11, 2018: Palmer resigns as DSS director.

            June 11, 2018: Palmer’s interim replacement hires Palmer to be the DSS business officer – the job Palmer held before she became DSS director.

            June 12, 2018: DSS attorney David Moore resigns.

            July, 2018: Cherokee County DSS receives a bill of $3,311.87 for document shredding services covering the period mid-June to mid-July, 2018.  The highest previous monthly total since November 2017 was $367.76, in May.  In November and December, 2017, the bills were $90.17 per month. 

            Or, as Carolina Public Press put it:

The DSS agency in early 2018 also started a curiously timed massive shredding campaign, which went into high gear after Palmer returned to the agency in June 2018. The effort was supposedly designed to create urgently needed space and did not touch child welfare documents, which DSS had been ordered not to destroy. But a year later, the space remains unused. Whether any additional child welfare documents went missing remains uncertain.

            October, 2018: The state Deparemtent of Health and Human Services ends its direct control over child welfare in Cherokee County.

            November, 2019: The State Bureau of Investigation’s findings concerning CVAs, and possibly other issues, are now in the hands of the state Attorney General’s office.  CPP reports that “Palmer, and possibly others, remain under criminal investigation…” by that office.

            And a new problem has been discovered: The county and the state have had to repay the federal government more than $247,000 in federal foster care funds to which they were not entitled “after mistakes by social workers and their supervisors.”

Child welfare, foster care and civil liberties: When CPS resorts to blackmail

Reporters in North Carolina exposed the practice of child welfare agencies blackmailing families into giving up all their rights and letting them take away children with no court review at all. 

The only thing unusual about this is that, in North Carolina, it’s illegal. Elsewhere it’s standard operating procedure.

What Associated Press reporters found in
one small county in North Carolina actually
is common all over the United states

I have often written about the lack of due process in proceedings involving child protective services.  CPS agencies can and often do take away children entirely on their own authority. Parents then have to go to court days later to try to get their children back.

At that point, while the CPS agency has had days to make its case, an impoverished parent – and it’s almost always an impoverished parent – if she has a lawyer at all probably met her overwhelmed public defender for the first time five minutes before the hearing.

The standard of proof is not beyond a reasonable doubt as in a criminal proceeding, or even the middle standard, “clear and convincing.” Instead, CPS need merely persuade the judge that it is slightly more likely than not that the child needs to remain in foster care – the same standard used to determine which insurance company pays for a fender-bender.

The judge usually is easy to convince. That’s because the judge knows that he can hold hundreds of children in foster care needlessly and while this will do enormous harm to the children, the judge is safe. Return one child to a home and have something go wrong and the judge’s career could be over.

Resorting to blackmail

But in many cases across the country, even this doesn’t stack the deck enough to suit CPS agencies.  So they’ve resorted to something else: blackmail, typically using a parent’s own extended family as bait.

They don’t call it that, of course. Usually it goes by a term such as “safety plan” or “parental child safety placement” or “custody and visitation agreements.”

Here’s how it works: The child protective services worker says to a parent: Sign this document allowing us to place the child with an extended family member or we’ll take the child on the spot and place the child with total strangers. (If that’s not enough, they might ratchet up the threat, saying they will proceed immediately to termination of parental rights.)

CPS then argues, with a straight face, that the placement was voluntary – the family chose to give up any rights they may have to a lawyer and court review.  In fact, these placements are about as voluntary as a mugger sticking a gun in your face, saying “give me your money” and then telling the judge “I didn’t mug the guy, he gave me the money.”

What the AP reporters found

All of this brings me to what two enterprising Associated Press reporters, Mitch Weiss and Holbrook Mohr found in Cherokee County, N.C.  But let them tell you:

When Brian Hogan got a call that his wife had suffered a massive heart attack, he knew he had to get to the hospital fast. So Hogan asked his neighbor to take care of his 10-year-old daughter, then headed 60 miles east to the intensive care unit in Asheville, North Carolina.

What happened next would eventually expose a practice by a child welfare agency that illegally removed potentially hundreds of children from their homes in this poverty-stricken mountain community …

Hogan said the Cherokee County Department of Social Services threatened to throw him in jail, place his child in foster care or give his daughter to another family for adoption if he didn’t sign a “custody and visitation agreement,” known as a CVA.

“They gave me no choice,” said Hogan, 38, who told AP that child-welfare workers wanted to remove his daughter because they believed he placed the girl in an “unclean” home while he was caring for his hospitalized wife.

AP found that the county “did the same thing with dozens, possibly hundreds, of other parents…”

The extent of the blackmail

But that’s just the tip of a very large iceberg.

In North Carolina, individual counties run child welfare with supervision by the state. To its great credit, the state Department of Health and Human Services says what Cherokee County did was illegal and ordered counties not to do it.  A judge also ruled the practice illegal.  And, in a follow-up story, AP reports that the state is going to take over the entire Cherokee County child welfare system.

But it’s a different story in much of the rest of the country.  One reason we don’t know how many blackmail placements exist is because states often don’t report them to the federal government as entries into foster care – even though federal regulations make clear they should be counted.

But by one estimate, on any given day, there probably are 300,000 children trapped in a foster-care Twilight Zone because of blackmail placements across the country – that’s over and above the more than 400,000 children states admit to holding in foster care.

In Texas nearly two-thirds of entries into foster care probably are blackmail placements.

In Illinois, blackmail placements have been the subject of repeated lawsuits that lead to settlements. Then the child welfare agency violates the settlements.

So to really understand the harm done to children by blackmail placements, take the pain inflicted on Brian Hogan’s daughter and multiply it – hundreds of thousands of times.