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Hogan v. Cherokee County

United States District Court, W.D. North Carolina, Asheville Division

February 27, 2019

BRIAN HOGAN, on his own behalf and as representative of all unnamed class members who are similarly situated, and BRIAN HOGAN, as parent and next friend of H.H., both on her own behalf and as representative of all unnamed class members who are similarly situated, Plaintiffs,
v.
CHEROKEE COUNTY, CHEROKEE COUNTY DEPARTMENT OF SOCIAL SERVICES, SCOTT LINDSAY, in his individual capacity, CINDY PALMER, in her individual capacity, SCOTT LINDSAY, in his official capacity as Attorney for Cherokee County Department of Social Services, CINDY PALMER, in her official capacity as Director of Cherokee County Department of Social Services, DSS SUPERVISOR DOE #1, both in his/her individual capacity and his/her capacity as an employee of Cherokee County Department of Social Services, and DSS SOCIAL WORKER DOE #1, both in his/her individual capacity and his/her official capacity as an employee of Cherokee County Department of Social Services, Defendants.

          MEMORANDUM AND RECOMMENDATION

          W. Carleton Metcalf, United States Magistrate Judge

         This matter is before the Court upon a “Notice of Partial Motion to Dismiss, ” filed pursuant to Rules 12(b)(2) and 12(b)(6) of the Rules of Civil Procedure by Defendants Cherokee County, Cherokee County Department of Social Services, Scott Lindsay in His Official Capacity, and Cindy Palmer in Her Official Capacity (“Moving Defendants”) (Doc. 9), which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). The issues have been fully briefed, and the motion is now ripe for ruling. Following a careful review of the Complaint, the motion, and applicable law, the undersigned recommends that the Partial Motion to Dismiss be granted in part and denied in part.

         I. Procedural Background

         This case originated on or about March 14, 2018 through the filing of a Complaint in the Superior Court Division of the General Court of Justice for Cherokee County, North Carolina by Brian Hogan (“Hogan”), who appears: 1) on his own behalf, 2) as a putative class representative for similarly-situated parents, and 3) as the parent and next friend of H.H, who is also the putative representative of similarly-situated minor children. See Not. Rem. (Doc. 1) at 2. The 62-page Complaint (exclusive of exhibits) contains 17 separate claims, as reflected by the chart of claims appearing below.

         On April 13, 2018, the case was removed to this Court. See Not. Rem. (Doc. 1).

         On April 18, 2018, the Partial Motion to Dismiss (Doc. 9) and a Brief in Support (Doc. 10) were filed by the Moving Defendants. Plaintiffs filed a Response in Opposition (Doc. 13) on May 1, 2018, and the Moving Defendants replied on May 8, 2018 (Doc. 14). Plaintiffs filed a Notice of Supplemental Authority on May 16, 2018 (Doc. 15).

         II. Factual Background

         The allegations in Plaintiffs' Complaint, taking all disputed facts and reasonable inferences in favor of Plaintiffs, may be summarized as follows:

         H.H. is a minor child born on January 16, 2006 to Hogan and Amanda Edmondson (“Edmondson”), all of whom are residents of Cherokee County, North Carolina. Compl. (Doc. 1-1) ¶¶ 3, 39-40. Id.

         On or about September 14, 2015, Defendant Cherokee County Department of Social Services (“Cherokee DSS”) received a report of suspected neglect involving Hogan, H.H., and Edmondson. Id. ¶ 40. Cherokee DSS investigated the report and ultimately filed a juvenile petition that alleged abuse, neglect, and/or dependency of H.H. Id. ¶ 41. The juvenile petition was contained in Cherokee County File Number 15-JA-73 and is referred to as In re H.H. Id. Throughout the In re H.H. litigation, Hogan was represented by court-appointed counsel Melissa Jackson. Id. ¶ 43a.

         On or about April 1, 2016, North Carolina state District Court Judge Tessa Sellers entered an order that placed H.H. in Hogan's custody. Id. ¶¶ 42-43.

         Defendant Cindy Palmer (“Director Palmer”) was the director of Cherokee DSS during the investigation and litigation of In re H.H. Id. ¶ 44. Defendant Scott Lindsay (“Attorney Lindsay”) represented Cherokee DSS during the In re H.H. proceedings and provided advice and guidance to Cherokee DSS with respect to its investigation and practices relevant to the allegations set forth in Plaintiffs' Complaint. Id. ¶¶ 46-47.

         Around November 21, 2016, Cherokee DSS again contacted Hogan with concerns involving Hogan and H.H. Id. ¶ 48. At the request of an “agent” of Cherokee DSS, Hogan attended a meeting at Cherokee DSS's office with Lauren Smith (“Social Worker Smith”), a social worker for Cherokee DSS. Id. ¶ 49. During the meeting, Social Worker Smith asked Hogan to execute a Custody and Visitation Agreement (“Custody Agreement”) that purported to take custody of H.H. from Hogan and place physical and legal custody of H.H. with Hogan's father, Warren Hogan. Id. ¶¶ 50-51.

         Hogan suffers from learning disabilities and is unable to read and write adequately, id. ¶ 52, and Cherokee DSS was aware of these limitations, id. ¶ 53. Further, Plaintiffs allege that Cherokee DSS “agents” made various statements to Hogan when he was presented with the Custody Agreement, including that: (1) the Custody Agreement was entered into in lieu of court involvement; (2) adverse legal proceedings and other consequences would follow if Hogan refused to sign the Custody Agreement; and (3) if Hogan did not agree to the Custody Agreement: (i) H.H. would be adopted, and he would never see her again; (ii) H.H. would be placed in foster care, and he would not see her; and (iii) H.H. would be placed in a location where he would have little or no contact with her. Id. ¶ 54.

         At the time of the November 21, 2016 meeting, Hogan was not represented by counsel - the previous representation by appointed counsel Melissa Jackson had concluded - and he was not given an opportunity to contact new counsel. Id. ¶¶ 55-56.

         In this context, Hogan agreed to and signed the Custody Agreement, which Plaintiffs allege was directed and approved by Director Palmer and Attorney Lindsay. Id. ¶¶ 59-60.

         H.H. was removed from Hogan's care and placed with Warren Hogan. Id. ¶ 61. During this period, Hogan was not allowed to see H.H. and, at best, had de minimis contact with her. Id. ¶ 62.

         On December 4, 2017, Hogan contacted the Cherokee County Sheriff's Office about the situation but was told that Judge Sellers' Order was not valid. Id. ¶ 63. Similarly, on December 6, 2017, Hogan attempted to pick H.H. up from school, but school officials would not release H.H. to Hogan, notwithstanding that he had a certified copy of Judge Sellers' Order. Id. ¶¶ 65, 66. School officials contacted the Andrews Police Department and Warren Hogan, who arrived with a copy of the Custody Agreement, after which Hogan was precluded from retrieving H.H. by threat of arrest. Id. ¶ 66.

         On December 7, 2017, Attorney Jackson filed a motion in In re H.H on behalf of Hogan to enforce Judge Sellers' Order.[1] Id. ¶ 67.

         On December 13, 2017, North Carolina state District Court Judge Monica H. Leslie heard the motion. Id. ¶ 68. Hogan alleges that, when the Court asked what legal authority Cherokee DSS had for the execution of the Custody Agreement, Attorney Lindsay admitted that there was “none.” Id. ¶ 69. Attorney Lindsay also informed the Court that he was aware of twenty (20) such agreements that were either drafted by him or at his direction. Id. ¶ 70. Judge Leslie found that the Custody Agreement was not a valid or enforceable legal document and was null and void, that the previous order entered by Judge Sellers was valid, and that full legal custody and control of H.H. was to be returned to Hogan. Id. ¶ 71.

         Judge Leslie also reported Cherokee DSS and Attorney Lindsay to the North Carolina Department of Health and Human Services (“DHHS”). Id. ¶ 72. In a December 20, 2017 letter to all county directors of social services, DHHS advised that “facilitating such private custody agreements without the oversight of the Court falls outside of both law and policy.” Id. ¶ 74.

         Plaintiffs allege that, as a result of Defendants' conduct, Hogan was denied the opportunity to provide care and love to H.H. who was denied the care and protection of Hogan, and that Hogan and H.H. lost the society, companionship, comfort, guidance, kindly offices, and advice of each other. Id. ¶ 75.

         III. Legal Standards

         A. Rule 12(b)(2)

         When considering a motion made pursuant to Rule 12(b)(2), the court has “broad discretion” to determine the procedure that it will follow. Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016). The court may consider jurisdictional evidence “in the form of depositions, interrogatory answers, admissions, or other appropriate forms.” Id. at 269.

         Generally, the plaintiff bears the burden of demonstrating jurisdiction by a preponderance of the evidence, but when the court considers a challenge to personal jurisdiction without holding an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). Jurisdiction is determined at the time the claim arose. Glynn v. EDO Corp., 536 F.Supp.2d 595, 606 n.15 (D. Md. 2008).

         B. Rule 12(b)(6)

         The central issue in connection with a motion made pursuant to Rule 12(b)(6) is whether the complaint states a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009). In considering the motion, the court accepts the allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588 F.3d at 192. A court is not, however, required to accept “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Consumeraffairs.com, 591 F.3d at 255; see Giacomelli, 588 F.3d at 192.

         Claims need not contain “detailed factual allegations, ” but must contain enough factual allegations to suggest the required elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Consumeraffairs.com, 591 F.3d at 256. “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor will mere labels and legal conclusions suffice. Id Federal Rule of Civil Procedure 8 “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         IV. Discussion

         The chart that follows represents an attempt to illustrate, in a succinct form, the various claims asserted in the Complaint, taken in the light most favorable to Plaintiffs.[2]

         The Moving Defendants seek dismissal of some, but not all, of the claims pending against them. Specifically, the Moving Defendants seek dismissal of:

• all claims against Cherokee DSS
• all claims against Cherokee County
• all claims against Attorney Lindsay in his official capacity, except the Eleventh Claim for relief: “Deprivation of Rights 42 U.S.C. § 1983”; and
• all claims against Director Palmer, in her official capacity, except the Eleventh Claim for relief: “Deprivation of Rights 42 U.S.C. § 1983.”

Defs.' Mem. (Doc. 10) at 4. The claims targeted by the Partial Motion to Dismiss are highlighted on the claim chart.

         Other Defendants have not sought dismissal. Attorney Lindsay and Director Palmer, in their individual capacities, are represented by separate counsel and have answered the Complaint. See (Docs. 11, 12). Defendant DSS Supervisor Doe #1 and DSS ...


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