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March 26, 2018 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I’ve said it before and, alas, I’ll say it again, “Child protective agencies run roughshod over the poor.” Often, we see the strong arm of CPS when caseworkers make the mistake of thinking they can do to the educated and affluent what they routinely do to the uneducated and poor. One such example was that of Alexander and Danielle Meitiv in Chevy Chase, Maryland. They are exemplary caregivers to their kids who were never harmed in any way. But Montgomery County CPS threatened the family with removing the children simply because the parents allowed them to play unsupervised at a nearby park.

The Meitiv rightly sued CPS.

But they’re highly educated people and know their rights vis-à-vis the state. Many, many poor families don’t.

Enter Brian Hogan of Cherokee County, North Carolina. Hogan is skilled enough, but only marginally literate. So when the Department of Social Services showed up at his door demanding that he sign a “custody and visitation agreement” or have his children taken from him, he did. He had no idea that CVAs are blatantly illegal under state law unless they’re approved ahead of time by a judge. Nor did he know that the county DSS had used them without a judge’s order for at least a decade, taking an untold number of kids from their parents in violation of the law.

That Hogan had harmed his daughter not a bit made no difference to DSS. Neither did the fact that he’d probably shielded her from harm. Hogan’s wife and the mother of his daughter had suffered a massive heart attack and was in ICU in Asheville, 60 miles away. So he asked a neighbor to care for his daughter who was then 10 and whose best friend was the daughter of the neighbor.

To many of us, that looks like (a) a sound decision that allowed Hogan to deal with his wife’s medical needs while (b) sparing his daughter the trauma of spending days at a hospital and seeing her mother on the edge of death.

But DSS didn’t like it.

Hogan said he asked his neighbor to watch his daughter mainly because her best friend lived there. But a few days later, a teacher at her middle school called DSS to say the girl smelled “like a cat,” Hogan said.

A child welfare worker investigated and decided the girl was not living in an acceptable environment. Hogan said he told the social worker that he had to be at the hospital because his wife was on life support. That’s when Hogan said he was coerced into signing a CVA giving his father custody.

In the world of DSS caseworkers, the fact that the neighbor apparently hadn’t sufficiently seen to the child’s bathing was more serious than if Hogan had taken her out of school and taken her to a strange new place to be up close and personal with her mother unconscious and hooked up to various medical apparatus.

But irrespective of what the right decision for Hogan would have been under those stressful circumstances, DSS had no right under state law to do what it did. Proper procedure would have involved going to court and presenting the case to a judge and allowing Hogan to explain why he’d done what he did. But, as we’ve seen all too often, respecting parental rights, state law or the U.S. Constitution is often not part of the repertoire of CPS agencies. Just a few years ago I reported that Judge Michael Schneider in Houston had actually gone so far as to order two Harris County caseworkers to write essays demonstrating that they understood the Constitution and the rights of parents. That sounds like a good idea for Cherokee County caseworkers, supervisors and others. They’ve been ignoring parental rights since at least 2007.

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.

Those same children are now facing the possibility of being uprooted again — including some who have spent years adjusting to their new lives, an Associated Press investigation has found…

In order to remove a child from a biological parent, social workers must get a court order from a judge, said Sara DePasquale, assistant professor of public law and government at the University of North Carolina.

Not only did Cherokee County child-welfare workers bypass that critical legal step with Hogan, they did the same thing with dozens, possibly hundreds, of other parents, according to interviews, court documents and copies of the agreements obtained by the AP.

Because a judge and state welfare officials have determined the practice was illegal, the children are at risk of having their lives disrupted again, AP found.

Some children who are better off in their new homes might not be allowed to stay there because the agreements did not follow proper protocol. In other cases, children never should have been removed from their parents.

And of course all that took place, not in the lives of educated, well-to-do parents, but the poor who tend to be less aware of their rights and have less ability to assert them if they do know.

The practice of using private custody agreements was implemented by longtime county and DSS attorney Scott Lindsay, who was recently fired from the agency.

Lindsay declined to say why he bypassed the court system to remove children, or how many of the arrangements his agency made over the years. He provided legal services for DSS for nearly two decades.

The lawyer may have “declined to say why he bypassed the court system,” but I can explain it. He did that because he could. He did that because he routinely dealt with parents who were ignorant of the law and their rights. He did that because it was simpler to shanghai children away from their parents if he could “bypass” due process of law. He did that because, on occasion, judges can be pesky, requiring evidence before they issue the desired order.

That was much to the liking of DSS. What’s not to like about a process that’s quick, easy and a slam-dunk winner for the agency? And if hundreds of parents feel the state’s boot in the middle of their face in the process, hey, they’re poor and ignorant. Why care about them? And if hundreds of children are traumatized, well c’est la vie.

Hogan, his daughter and those hundreds of other parents and children need to sue Cherokee County and attorney Lindsay. They need to acquaint themselves with the inside of a courtroom and, at this point, a hefty civil suit is the best way to accomplish that. Meanwhile, it looks from here as if Lindsay should be disbarred for blatantly violating state law.

 

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