DHHS memo: NC agency knew early about DSS unlawful actions

A Western North Carolina district attorney told Carolina Public Press on Wednesday that she was “flabbergasted” over state officials’ failure to advise her when they suspected the Cherokee County Department of Social Services staff of involvement in potentially criminal activity months before civil litigation exposed the problems and led her to request for a State Bureau of Investigation probe.

A judge called out Cherokee County’s removal of children without court oversight as unlawful and unconstitutional in February 2018. But a memo, recently obtained by CPP through an extensive request for DHHS public records, shows that state officials had caught on to the improper practices at the county’s child welfare office at least four months earlier.

Details in the October 2017 memo by a DHHS staffer describe potential felonies, District Attorney Ashley Welch told Carolina Public Press on Wednesday. Yet nobody at DHHS contacted her office.

Until shown the memo this week, the DA had no idea that DHHS knew in advance about the improper practices in Cherokee County, Welch said.

An unnamed staffer authored the memo as the agency wrapped up a three-day visit to Cherokee County to evaluate its child welfare division in October 2017.

DHHS Children’s Program representative Brian Vogl “stated concerns for falsifying the foster care monthly contact records — these are identical, and they are falsifying these records,” the memo stated.

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.”

The actions described in the memo mirror the findings in civil court months later, which sparked the SBI investigation.

State workers responsible for reviewing county DSS offices throughout the state said there was a “big concern about monthly contact records” that appeared falsified, according to the October memo.

In addition, Cherokee officials were terminating parental rights “very quickly with little to no engagement with parents,” the memo said. “It’s hard to believe with the lack of engagement and documentation that TPRs (terminations of parental rights) are even granted.”

As the courts later recognized, at least some of these speedy removals of children were possible precisely because no judge was reviewing some of the TPRs in Cherokee County. DSS officials were ignoring the proper legal process while creating a documentary fiction of duplicated files to conceal what was actually happening from the state.

It was this duplication that apparently caught DHHS’ attention in October 2017.

When asked this week what she thought of the memo, Welch’s long sigh was her first reply.

“I’m sort of flabbergasted by it,” she said. “It’s one of those situations where – very rarely am I speechless – I am absolutely speechless over it.”

Welch said she first found out about Cherokee County’s unlawful custody and visitation agreements, not from state officials, but when she read the March 2018 Associated Press story in USA Today.

“You would hope (DHHS) would bring it to someone’s attention,” Welch said Wednesday. “I was a little troubled that this is stuff that they were dealing with internally, with no notification either to law enforcement or my office.”

CPP asked DHHS in an email Wednesday whether it notified any agency about the falsification of records or the surprising swiftness with which Cherokee County terminated parental rights. An agency spokesperson responded to the email without acknowledging that question.

“If you turn a blind eye and continue to let it happen, you are talking about aiding in the commission of a crime,” Welch said.

The October 2017 memo described the rapid termination of parental rights in Cherokee County, which raised red flags for DHHS staff five months before a judge ruled the practice unconstitutional.

Terminating parental rights is supposed to be a last resort for social workers trying to help children in troubled families.

State and federal law require a judge’s authorization for such action, which usually only arises in cases of dire neglect and abuse.

To that end, social workers must document their efforts to contact parents, guardians, children and foster parents throughout the process as children stay in foster care or other placements. The documentation is also required to justify federal payments to DSS agencies.

The October memo questioned whether the required visits were occurring at all. At least in some cases, the reports were identical from month to month, with only the date changed.

DHHS spokeswoman SarahLewis Peel explained this week why duplication of these records raised a red flag for officials in 2017.

“It’s unlikely that contact records and documentation are identical from month to month,” she said.

“In the event identical records were discovered, further inquiry would be necessary to determine whether records were in fact being falsified.”

According to the memo, Cherokee County social workers told DHHS workers that some parents weren’t contacted because they were incarcerated, but this did not resolve the concerns.

“Parents’ rights are not being considered, and they should be,” the memo stated. “There are very limited diligent efforts to locate parents.”

David Wijewickrama, one of the attorneys representing parents in a federal lawsuit against Cherokee County and several of the county’s current and former employees, was shocked by DHHS’ prolonged inaction when he read the memo.

“I was traumatized and devastated on behalf of the affected families and children that the state of North Carolina knew this, came in and took over Cherokee County DSS and to my knowledge did nothing to audit every single file that had been touched by that office in 20 years,” Wijewickrama said.

“It seems to me like DHHS did the absolute minimum.”

Wijewickrama and his fellow attorneys are seeking class-action status for what he says could be hundreds of children and parents who may have been coerced to sign the unlawful custody and visitation agreements. The lawsuit is now winding its way through a federal court.

If Cherokee County was caught falsifying contact records, it “could jeopardize their federal funding and reimbursement,” Peel told CPP.

Additional DHHS documents that CPP has obtained also show that DHHS’ Vogl asked Cindy Palmer, then the director of Cherokee DSS, whether the department was using custody agreements in lieu of legal involvement on Dec. 7, 2017.

Four days later, Palmer said the social workers who used them were no longer employed in Cherokee County and that she told the remaining employees not to use them.

Despite Palmer’s statements, the courts later found that she was directly involved and that the “unlawful” agreements were “a product of actual and constructive fraud” by Palmer, social workers and former DSS attorney Scott Lindsay.

In early March 2018, DHHS asked Cherokee County DSS to fill out a “corrective action plan” to map out how DSS could improve its practices.

Then, on March 14, District Court Judge Tessa Sellers ruled that the CVAs were unconstitutional. A major news story from The Associated Press made nationwide headlines.

The state abruptly changed course.

A DHHS document from this time obtained by CPP maps out whom agency officials planned to talk to and in what order as the agency made plans to temporarily wrest control of child welfare from Cherokee County.

Among the talking points was a summary of Sellers’ statements in the case.

“Judge Sellers expressed that the information presented at this hearing was alarming and disturbing to her with regards to the operation of Cherokee County DSS,” the document said.

“She stated she received a case file for an in-camera review that was a ‘disaster.’ There were missing documents, disorganized documents and incomplete information contained in the case notes. Further, there was testimony presented at this hearing that indicated (Cherokee County Child Protective Services) case files and documentation were being stored and kept by social workers off-site and in nonsecure ways.”

On Sunday, March 18, DHHS sent workers on the nearly six-hour drive from Raleigh to Murphy to take temporary control of the county’s child welfare department. Meetings started at 8 a.m. Monday, March 19, starting with Palmer and the DSS board chairwoman.

DHHS’ occupation would last for more than six months, concluding in late 2018.

It was under this cloud that Palmer returned, and DHHS Division of Social Services Director Wayne Blackacknowledged the tense atmosphere in a June 10, 2018, email to inform other DHHS workers that she was coming back.

“This can be an awkward situation under the best of circumstances,” Black wrote. He called her return to the DSS office with DHHS still in charge of child welfare an “unprecedented situation.” Emails encouraged DHHS workers to limit their contact with Palmer unless it directly related to her job.

“Be sure to communicate with Cindy only regarding appropriate business officer duties,” Black continued. “Do not allow communications with the business officer to go outside of that role and relationship. Everyone needs to work strictly within the boundaries of their job duties (their lane).”

As part of its oversight into child welfare, DHHS “directed the ordering of several secure filing cabinets” for active child welfare files and the placement of locks on all child welfare employee offices, Peel told CPP.

In Palmer’s new role as business officer, Peel wrote, “her job functions would not have required her to have access to child welfare case files.”

Earlier this year, the SBI concluded its investigation into the DSS practice of removing children from homes without judicial oversight earlier this year to District Attorney Welch. She recused herself from the case due to a potential conflict of interest. Welch’s office tries cases investigated by Sheriff Derrick Palmer‘s office. The Cherokee County sheriff is Cindy Palmer’s husband.

Teams of DHHS workers rotated out of Cherokee County as high summer approached in 2018. When fall came around, the county was nearing a hire for its new director.

Amanda McGee, formerly the Rutherford County child welfare director, had accepted the position. Lisa Cauley, DHHS child welfare director, relayed the news to the DHHS employees working with Cherokee County.

“An excellent choice!” Cauley wrote in September 2018 to a group of DHHS employees, who were thrilled at the news that their oversight of the troubled agency was ending.

“This is fantastic!!!!” wrote Michael Becketts, assistant secretary for human services. “We can really move to get out of there. When will she start?”