A 38-year-old father and his attorney have managed to uncover an illegal practice so widespread that its exposure could overturn dozens, or even hundreds, of child welfare proceedings in one North Carolina county.
According to an investigation and March 15 report by the Associated Press, the Cherokee County Department of Social Services has been using Custody and Visitation Agreements (CVA’s) to take children away from their parents without ever going before a judge. And if they hadn’t taken the daughter of Brian Hogan, they might still be using it today.
Hogan, an out-of-work pipe-fitter in the impoverished rural county, got a call in 2016 that his wife had suffered a major heart attack. So he left his 10-year-old daughter with a neighbor (and the girl’s best friend) and drove the 60 miles to the ICU in Asheville. He was still spending his time at his wife’s side a few days later when he learned his daughter had been taken into custody because a school teacher had reported that she “smelled like cat,” and a subsequent investigation determined she was living in unclean conditions. (The report does not mention whether the neighbor’s daughter was also taken.)
That’s when Hogan was forced to sign the illegal CVA.
“I had no choice,” Hogan told the AP, which reported that the county “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.” So, sign he did. But he also sought the help of an attorney to get his daughter back.
Enter Melissa Jackson. She agreed to help Hogan, and soon discovered the bizarre and unacceptable practice. Using CVAs to remove children from their parents is illegal, “because they did not take place with court oversight, as required by law,” according to the AP.
Here’s the way it worked: a DSS worker would come to the home, and if they decided the child should be removed, they would identify a family relative and draft up the CVA. The parent would be told to sign the CVA, transferring custody to the relative, or DSS would place the child with strangers in foster care. Neither the parents nor, often, the relatives receiving the child would know their rights or the illegality of the transaction. But for DSS, it meant the child never entered the system at all, and often there would be no follow-up or oversight.
Once the illegal practice was exposed in court, an investigation determined it had been used in an undetermined number of cases, perhaps affecting hundreds of children. Scott Lindsay, a longtime attorney recently fired from the county’s DSS, says he started using CVAs in 2007 or even before. And since they are not properly documented in DSS records, DSS cannot say how many were affected or even where all of those children are now.
When the practice was exposed, the state’s Department of Health and Human Services reacted immediately, issuing a letter in December to county DSS departments to advise them that the use of such CVAs “falls outside of both law and policy,” according to the AP report.
Then this month, when the AP story was released, the state’s HHS took the rare step of completely taking over the county’s DSS operation, according to another AP report of March 16.
Secretive System Ripe for Abuse
What happened in Cherokee County—forcing parents to sign a CVA transferring custody of their child to a relative—is illegal and an abuse of the system. It is not the norm and does not take place everywhere (though National Coalition for Child Protection Reform’s Richard Wexler recently pointed out on their blog that the general practice of coercion, with CVA or no, is indeed widespread).
But a system designed as ours is to operate outside the public view is bound to give rise to these violations. It is no wonder we are regaled by story after story of abuse within a system that operates in secret, acts with impunity, and defies public accountability.
Amending federal and state laws to provide oversight for child protective agencies and juvenile courts is a great place to start. And a federal amendment to the Constitution protecting the right of parents can help, as well; by creating a clear standard, it would make these violations more immediately recognizable for the offenses that they are.
That’s why ParentalRights.org supports the proposed Parental Rights Amendment, champions revisions to federal laws like the Adoption and Safe Families Act (ASFA) and the Child Abuse Prevention and Treatment Act (CAPTA), and works for changes to state laws as well. There is so much work to be done, but the cost of failure is far too high.
Together we can make a change and draw attention to the plight of families and children in the system. Then maybe next time an overzealous state agent looks to sidestep a parent’s due process rights and fundamental liberty to the care and custody of their child, someone will challenge the practice immediately and not ten years down the road.
Director of Communications & Research