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The Swain County Department of Social Services board met for three hours Tuesday night (March 8) to discuss whether employees named in an investigation should be suspended with pay pending the outcome. The board failed to come to a consensus. A vote was not held, so it is not known which board members are on which side.

Only four of the five DSS board members were at the meeting.

The fifth, Robert White, was out of town on county business that could not be rescheduled. White is also a county commissioner.

Had White been there, it seems he would have been the tie breaker — and that the scales would be tipped in favor of suspending the employees. White has already publicly weighed in on the issue at a county commissioner meeting last week, where county commissioners formally called on the DSS board to take action. White seconded the motion and voted in favor of sending a letter to the DSS board recommending the employees be put on leave with pay.

The DSS board has not announced whether they will hold another meeting to settle the issue when White gets back in town. Their next regularly scheduled meeting is not until Monday, March 28, at 5:30 p.m.

The DSS board met Tuesday night behind closed doors since the conversation centered on personnel, which is exempt from open meeting requirements.

Family members of Aubrey Kina-Marie Littlejohn, a 15-month-old who died in January, waited for three hours to hear the board’s decision. Family had repeatedly asked DSS to take the baby away from a great-aunt who was caring for her. DSS is being investigated by the State Bureau of Investigation for a subsequent cover-up including falsification of records, according to law enforcement documents.

Also waiting outside the meeting were family members of Craig Smith, a social worker directly involved in falsifying DSS records in an apparent cover-up. Smith is the only employee who has so far been suspended. However, in his testimony to investigators he said orders to fabricate records came from higher up.

Swain County commissioners voted 4 to 1 in a special meeting Thursday (March 3) to formally recommend that the  Department of Social Services Board suspend with pay four employees involved in a State Bureau of Investigation probe into an alleged cover-up at the agency.

Commissioners emphasized that their recommendation is not a reflection of whether they think the DSS employees are guilty of wrong-doing. But commissioners said that suspending the employees will protect the integrityof the ongoing investigation.

The DSS board will meet at 6 p.m. on Tuesday, March 8, at the DSS office to discuss the commissioners recommendation.

Swain County commissioners met with three members of the DSS board in closed session for over an hour Thursday evening prior to the commissioners' vote. The meeting could legally be held behind closed doors since the discussion centered on personnel and a criminal investigation.

About 30 friends and family of Aubrey Kina-Marie Littlejohn, a 15-month-old baby who died in January, waited outside during the duration of the closed meeting to see what commissioners would do. Relatives say they had appealed to DSS to take Aubrey away from her caregiver and complained of suspected abuse and neglect. The SBI is investigating whether DSS employees engaged in a cover-up following Aubrey's death to hide potential negligence on their part.

Several social workers came to the meeting as well and expressed their dismay that their agency was under attack. They pointed out the many dedicated social workers in Swain County who put their heart and soul into what is a very tough job.

So far, only one of the employees named has been put on leave – Craig Smith, a social worker with the agency since 2006, who was directly involved in falsifying records following the death of a child, according to an SBI search warrant. However, Smith told investigators he was acting on orders from his boss. Smith also told investigators that the DSS director and program manager knew he had never followed up on whether the child saw a doctor, even though he had fabricated a report to the contrary.

The Swain County Department of Social Services board has agreed to meet with the Swain County commissioners to discuss whether DSS employees and officials should be suspended due to an ongoing criminal investigation of the agency.

The two boards will meet at 5 p.m. Thursday, March 3, at the Swain County Administration Building.

A majority of the Swain County commissioners have asked the DSS board to suspend  with pay employees named in a State Bureau of Investigation probe until the investigation is concluded.

So far, only one of the employees named has been put on leave – Craig Smith, a social worker with the agency since 2006, who was directly involved in falsifying records following the death of a child, according to an SBI search warrant. However, Smith told investigators he was acting on orders from his boss. Smith also told investigators that the DSS director and program manager knew he had never followed up on whether the child saw a doctor, even though he had fabricated a report to the contrary.

By Quintin Ellison and Colby Dunn • Staff writers

The Eastern Band of Cherokee Indians is forced to rely on state social workers when it comes to protecting the tribe’s children from abuse and neglect.

That might change in the wake of Aubrey Littlejohn’s death. Some on the reservation are calling for the tribe to set up its own child- and adult-protection agency. Under the 1978 Indian Child Welfare Act, the tribe has the ability and federal right to do just that.

“I’ve been standing before tribal council ever since I’ve been in this position saying we need to take care of our own kids,” said Regina Rosario, program supervisor for Heart-to-Heart, a child-advocacy organization that works with tribal victims of child abuse.

This possibility was under discussion by tribal members and officials even before Aubrey’s death, Rosario said, in meetings held by the council’s social services committee.

Until — and if — that happens, the tribe and various county social service agencies must work together. Cases of suspected child abuse are handled by either Jackson or Swain counties for their respective portions of the reservation.

While Swain County DSS refused to speak to reporters about their role in Cherokee Bob Cochran, Jackson County’s DSS director, said the relationship between his county and the tribe is like any relationship in life: it requires good-faith work and thought.

“You have to maintain it,” Cochran said. “We also try to recruit and keep Native American staff. But, even when we can’t, we work hard to have our folks posted down there (in Cherokee) so they can develop those relationships.”

Cochran has six employees assigned to Jackson County’s portion of the reservation. Some are enrolled members of the Eastern Band. Five of the six Cherokee-dedicated workers report to an office each day that is physically located on the Qualla Boundary.

Although federal law does stipulate that states dealing with American Indian tribes must bear the cost of providing those services, Cochran said he was “quite confident the state is not paying for it entirely.”  A variety of federal funding flows into the state’s social services programs, he said.

There are certain complexities for those agencies working with Eastern Band members. When children are removed from an unsafe situation, for example, DSS must try to place those children into Indian families.

“Basically, we work with the tribe in doing that,” Cochran said. “But … I do have the discretion, if I disagree with a recommendation of the tribe, to place the child elsewhere.”

A court can overrule a DSS director’s decision.

Usually, it doesn’t come to that, Cochran said. The tribe and DSS generally find mutually satisfactory care situations. DSS workers and Cherokee’s Family Support Services conduct joint house studies, and are comfortable working closely together, Cochran said.

David Simmons of the National Indian Child Welfare Association said that the agency’s work has shown, however, that tribally run child protective services are more successful at locating and dealing with neglect and abuse than their state or local counterparts.

This, said Simmons, isn’t because state agencies are always sub-par or lacking in their dealings with tribal children, but because tribal agencies are able to take a more tailored, culturally oriented approach that larger agencies just can’t.

“They have knowledge about the community that the state or county program is not going to have access to,” said Simmons. “They’re going to know more quickly, be more knowledgeable about what kinds of interventions are going to be successful. They have a better success rate, usually, at being able to develop resources. They take more cultural approaches to the work.”

Simmons, however, also notes that it’s impractical to expect all tribes to take up their own DSS work.

“Child protective services is one of the more expensive services to operate,” said Simmons. “You can’t do it halfway, too many things rely on that.”

The tribe hasn’t formally announced whether it intends to reassess the relationship with local DSS agencies, but Rosario said she intends to reintroduce the idea of tribal child protection at this month’s tribal council meeting.

 

Indian Child Welfare Act

The Indian Child Welfare Act is a federal law that governs the relationship between state social-services departments and Native Americans. The act includes the following language:

• Nothing in the act shall be construed as preventing the emergency removal of an Indian child in order to prevent imminent physical damage or harm to that child.

• The act specifies tribal courts have exclusive jurisdiction of children who reside on the reservation. If the child does not reside on a reservation, the jurisdiction must be transferred to tribal court.

• In an action leading to a foster care placement or in any termination of parental rights action affecting an Indian child who doesn’t reside on the reservation, the parents, guardian or custodian may petition for transfer of jurisdiction to a tribal court.

• At any time during proceedings of a foster care placement, the Indian custodian and Indian tribe have the right to intervene in the proceedings.

Relatives of a Cherokee child who died in January are publicly calling for the suspension of the Swain County Department of Social Services’ director and program manager, as well as other employees named in a State Bureau of Investigation probe into an alleged cover-up at the agency.

Nearly two-dozen family members of Aubrey Kina Marie Littlejohn came to the Swain County Commissioners meeting Monday (Feb. 28) to make their case. Speakers told commissioners that public confidence in DSS has been severely shaken. They said suspending those in charge, including Director Tammy Cagle and Program Manager T.L. Jones, will help repair the agency’s credibility in the community.

“People do feel a little tense not knowing what is going to happen with these same people still sitting in the positions that they are in,” said Ruth McCoy, a great aunt to Aubrey.

Though commissioners have no authority to suspend DSS employees directly, they could implore the DSS board to take action.

Three of the five Swain County commissioners openly agreed to do so, and a fourth seemed to indicate possible support as well.

Only Commissioner Steve Moon, who is the uncle of DSS Director Tammy Cagle, said he disagreed with suspending the employees. Moon argued with McCoy, who was speaking on behalf of the family, who are members of the Eastern Band of Cherokee Indians.

Several DSS employees attended the commissioners’ meeting, including Cagle and Jones. The cramped quarters — only two tightly packed rows of folding chairs — created standing room only.

DSS officials seemed to know that questions regarding their employment would be broached. DSS Attorney Justin Greene addressed commissioners at the outset of the meeting, preemptively putting them on notice that the authority to make personnel decisions rests “exclusively” with the DSS board of directors and not the county commissioners.

Commissioner David Monteith was the first to weigh in after McCoy sat down.

“I myself would like to suggest to the commissioner board that these other people who have been allocated in this be dismissed with pay until charges are either brought against or cleared. I think it would be better for the whole county if this would happen,” Monteith said.

Monteith suggested the commissioners write a letter to the DSS board with a recommendation to that effect.

A DSS worker who came to the meeting offered a rebuttal from the audience.

“Excuse me, can I ask something?” she said. “How will the agency run?”

Monteith replied that replacement staff could be sent in from the state level. The N.C. Department of Health and Human Services, the umbrella agency over county DSS units, has offered to provide support and resources should Swain County need help, Monteith said.

DSS Board Chairman Jim Gribble countered that their board didn’t have the authority to meddle in personnel when it comes to rank-and-file employees.

“The only position the board can appoint is the director. We could appoint a temporary director,” Gribble said.

“I think that would be a start,” McCoy answered.

“Close down the DSS? Is that a start?” Moon asked.

McCoy said the state would send personnel to help run the agency if needed.

“It won’t bring Aubrey back,” McCoy said. “But you are going to see there are going to be more people come forward.”

“No, it won’t bring her back,” Moon said.

It soon became clear Moon was in the minority, however.

Commissioner Chairman Phillip Carson said he supported sending a letter to the DSS board calling for the suspension of employees involved in the SBI investigation.

“In my opinion that would be the fair thing to do until the investigation is over with,” Carson said.

Commissioner Donnie Dixon agreed.

Gribble pointed out that the DSS board won’t meet until the end of March.

“Would they consider a special session?” asked Commissioner Robert White.

Carson turned to Gribble and reiterated the question.

“Would you have a special session?” Carson asked.

Gribble pointed out the DSS board has already made a unanimous decision on how to proceed, and for now that means waiting on the outcome of the investigation before making any personnel changes.

“We felt like the ongoing investigation would yield more evidence on personnel matters than we could obtain by having our own personnel investigation, so we chose not to do a personnel investigation,” Gribble said.

He suggested the commissioners and DSS board meet to talk about the issue behind closed doors.

McCoy said if that happens, Moon should abstain from the discussion and a vote on the matter since DSS Director Tammy Cagle is his niece.

That’s when yet another DSS employee spoke from the audience.

“It is my understanding that our director is not directly involved in the investigation,” the DSS worker said in defense of Cagle. “You would suspend that person, who gives the whole agency direction?”

Carson said he was not passing judgment on guilt or innocence, but was trying to protect the integrity of the investigation.

“It needs to be investigated with no complications,” Carson said. “There is a procedure to investigations and sometimes it is just better to set everyone involved aside.”

Monteith asked whether any DSS employee has been suspended so far. Several DSS workers who came to the meeting began nodding and saying “yes,” but DSS Attorney Justin Greene jumped up and said they could not comment on an employee’s personnel status.  However, the employment status, including a suspension, of a state or county employee is in fact public record under the N.C. Public Records Law, according to N.C. Press Association Attorney Amanda Martin.

Several sources who did not want to be identified have told The Smoky Mountain News that Craig Smith, the case worker assigned to Aubrey’s case, has been suspended. However, Smith claimed to investigators he was acting on orders when he fabricated DSS records (see related article.)

 

Citizens ask for action against DSS

DSS Director Tammy Cagle and Program Manager T.L. Jones have not spoken to reporters since the investigation became public. Cagle did read a brief written statement at the commission meeting Monday.

“I want to ensure the citizens of Swain County that the staff of Swain County Social Services has been faithful and diligent in our duties to protect children and we will continue to do so,” Cagle said.

Last week, Greene made a similar statement to media.

“We hope this doesn’t dissuade the public from seeking services or making reports to protect the adults and children of this county,” said Greene.

But Angie Rasulo of Swain County said the allegations don’t exactly inspire confidence in the public.

“How are the people going to feel safe?” Rasulo asked.

Rasulo had an appointment at DSS the day it was raided by the SBI. She was told to come back another day. Rasulo shared what she said was a common sentiment in Swain County, that DSS is not responsive to the community. She hopes the agency sees a clean sweep.

“It’s terrible that a girl had to die to make a change,” Rasulo said. “I hope they are held accountable. They need to clean house.”

Gribble said Swain DSS has asked the state to review all pending child protective services cases to make sure they are being handled properly.

Aubrey Littlejohn’s family members weren’t convinced, however.

“How many other families are going to want to go to DSS? People will think ‘Why should we bother because they aren’t going to do anything,’” Leighann McCoy said. “How can you let them get away with this?”

The Swain County Department of Social Services falsified records relating to the abuse and neglect of a 15-month-old baby who later died, according to an investigation by the Swain County Sheriff’s Office and the State Bureau of Investigation.

The specific charge being investigated is “obstruction of justice being infamous, done in secrecy and malice, and/or with deceit and intent to defraud.”

The social worker who handled the child’s case, Craig Smith, altered his reports, fabricating a hospital visit and doctor’s exam that never occurred, according to law enforcement statements. Smith claims he did so at the direction of his immediate superior, Candace Lassiter, according to a search warrant executed by the SBI at the DSS office in Bryson City.

The search warrant also suggests that the agency concealed records in its possession rather than turning them over to investigators.

DSS Director Tammy Cagle and Program Manager T.L. Jones met with Smith after he had falsified the reports but before they had been turned over to investigators, according to the warrant. Smith said Cagle told him at the meeting “we have to get everything in order and everything straight.”

The SBI seized computers and records from Swain County DSS offices last Tuesday (Feb. 22). Workers were put on lock down during the raid. People with appointments to see social workers or apply for benefits had to come back another day.

The Swain County Sheriff’s Office unraveled the alleged DSS cover-up while investigating the Jan. 10 death of Aubrey Kina Marie Littlejohn. Kina Marie was living with a great aunt, Lady Bird Powell, at the time.

Abuse and neglect are considered contributing factors, according to law enforcement records, but the investigation is still pending and no charges have been filed yet. The autopsy report is not yet final.

The investigation into Swain DSS was launched after Swain County Detective Carolyn Posey uncovered discrepancies in DSS records and found holes in the accounts from DSS social workers. Posey had initially been assigned to investigate Aubrey’s death and determine what, if any, charges should be filed.

Over the course of the investigation, Posey encountered delays getting DSS records. When she finally got the reports she found there were missing pages and other things that didn’t add up.

The child and caregiver are members of the Eastern Band of Cherokee Indians, but lived in Swain County. The tribe hired a private investigator, Danny Cheatham, to assist Posey in the case.

Posey and Cheatham interviewed several relatives and neighbors who told them they witnessed abuse and neglect of Aubrey while in Powell’s care. Relatives said they had repeatedly informed DSS of the situation, made reports and requested intervention but got no response.

But numerous DSS employees — from the rank and file to the director and manager — told Posey a different story, according to the search warrant.

“Investigators Posey and Cheetham have interviewed numerous persons who indicated that they witnessed physical abuse and neglect inflicted on the child and observed no food, a lack of heat and other inadequacies in the home environment. This information is in direct contrast to the information provided by the Department of Social Services’ employees: Misty Tabor, Craig Smith, Candace Lassiter, Angela Biggs, T.L. Jones and Tammy Cagle,” the warrant states.

Cagle is the director of DSS and Jones is the program manager.

Cagle and Jones told Posey they had turned over all their reports and files on Aubrey. But Posey believed the agency was withholding records and reports, according to the search warrant.

Once Posey and Cheatham discovered what appeared to be cover-up by Swain DSS, they alerted District Attorney Mike Bonfoey, who in turn called the State Bureau of Investigation.

 

Unraveling tale

Posey encountered significant and unexplained delays getting the DSS records for Aubrey. Posey began asking for the records immediately following the child’s death, but three weeks later had still not received them.

Posey then went to DSS and met with Program Manager T.L. Jones and DSS Director Tammy Cagle to find out what the hold up was.

But even then another two weeks passed before she got the records — a delay of five weeks after her initial request. By now, Posey had grown suspicious. That suspicion mounted as Posey realized the records were incomplete.

“Documents were missing and forms with sequential page numbers were not complete,” the search warrant states.

But it was a dubious account of a doctor’s checkup that proved the biggest red flag to Posey.

Powell was supposed to have Aubrey examined by a doctor following a complaint from relatives who saw the baby with bruises. When visited by social worker Craig Smith, Powell told him the bruises were the result of a fall down the stairs.

Smith told Powell to take the baby to the doctor for a checkup, but she never did. Smith failed to follow up with Powell on the outcome of the doctor’s visit.

Following Aubrey’s death, Smith claims his supervisor told him to go back and “fudge” the reports, according to the search warrant. Smith wrote a fake report recounting a conversation with a doctor who had done a checkup.

Here’s what the fabricated report said about that conversation:

“Smith asked (Dr. Toedt) how the visit went and she stated that she checked the child and didn’t find anything wrong with the child and stated the child appeared to be normal to her. Smith asked her if she could send him something stating what she had just told him. Dr. Toadt stated that wouldn’t be a problem and that she would type something up for him and fax it to him.”

Posey found the account troubling. For starters, Smith spelled the doctor’s name wrong throughout the report.

But as a licensed nurse herself, Posey knew that federal law prohibits doctors from giving out personal health information about patients over the phone. So she decided to call the doctor herself.

“Detective Posey found that there was no medical record documenting that Dr. Toedt had ever seen Aubrey Littlejohn,” the search warrant states. “Dr. Toedt told Detective Posey that she had never had a phone conversation with Craig Smith, and she had never seen or examined Aubrey Littlejohn.”

The very next day, Thursday, Feb. 17, Posey and Cheetham went to see Smith. When they asked him about his visit to Powell’s trailer, he told them the house was clean, that the floors had been mopped and even “smelled of Pine Sol cleaning solution.” He said Powell was feeding Aubrey crackers and juice, and that the home was “stocked with food.”

Smith told the investigators that reports of abuse were “unsubstantiated” and the case had been closed on Oct. 10.

When asked about the doctor’s visit, Smith repeated his story from the fake report. Posey and Cheatham then confronted Smith with what they knew, and Smith fessed up.

Smith admitted to fabricating the doctor’s visit and altering reports in the case file, but said that he did so at the direction of his immediate supervisor, Candice Lassiter. Smith said Lassiter came to him the week after Aubrey’s death and told him to change the records, including faking a doctor’s visit, according to the search warrant.

Smith also said he met with DSS Director Tammy Cagle and Program Manager T.L. Jones during the course of the law enforcement investigation.

“Cagle told Smith that we have to get everything in order and everything straight,” the search warrant says. “This was after Smith had altered and falsified his original narrative and after he had submitted the altered and falsified narrative to Lassiter.”

In the meeting, Cagle asked Smith why he hadn’t followed up on the doctor’s visit, according to Smith. Smith said he was then told to leave the meeting and his bosses stayed in the room.

By now, it was early February. Posey still hadn’t received the records from DSS.

Meanwhile, Cagle told Smith and Lassiter to go out and find Powell so they could question her about whether she ever took Aubrey to the doctor, according to the search warrant. Smith and Lassiter went to Powell’s trailer and to her sister’s house but had no luck. They came back and told Cagle they couldn’t find Powell, according to Smith’s statement in the warrant.

The following Monday, the SBI secured a search warrant from Superior Court Judge Brad Letts. Agents showed up at DSS shortly after the start of the workday the next morning.

 

Computer forensics

The search warrant gave SBI agents sweeping authority to seize computers, hard drives, servers and data storage devices, including thumb drives and memory sticks in the personal possession of employees. The search warrant also stipulates that DSS workers turn over passwords required to open files or get into e-mail accounts.

Documents to be seized included case files, call logs, child services reports, time sheets, mileage records and even desktop calendars of employees.

In the search warrant, SBI Agent S. Ashe explained why computers had to be seized rather than inspected on site.

“Searching electronic or computer devices for criminal evidence can be a highly technical process requiring expert skill and a properly controlled environment,” Ashe wrote.

Even if DSS employees deleted incriminating files, it might be possible to recover them.

“Files, or at least traces of that file, can be recovered by forensic analysis techniques even after the file has been deleted by the user,” Ashe wrote.

Computer experts can recover “hidden, erased, compressed and encrypted files,” Ashe wrote, but sifting through the massive quantity of data on computers to find what investigators are looking for is a lengthy process.

The Swain County Department of Social Services falsified records relating to the abuse and neglect of a 15-month-old baby who later died, according to an investigation by the Swain County Sheriff’s Office and the State Bureau of Investigation.

The specific charge being investigated is “obstruction of justice being infamous, done in secrecy and malice, and/or with deceit and intent to defraud.”

The social worker who handled the case, Craig Smith, altered his reports, falsifying a hospital visit and doctor’s exam that never occurred, according to law enforcement statements.

Smith claims he did so at the direction of his immediate superior, Candace Lassiter, according to a search warrant executed by the SBI at the DSS office in Bryson City.

ALSO: Suspicious death of 15-month-old prompts SBI to seize Swain DSS computers

DSS Director Tammy Cagle and Program Manager T.L. Jones met with Smith after he had falsified the reports, according to the warrant. Smith said Cagle told him at the meeting “we have to get everything in order and everything straight.”

The SBI seized computers and records from Swain County DSS offices this week. Workers were put on lock down during the raid and those with appointments to meet with DSS case workers had to come back another day.

Fifteen-month-old Aubrey Littlejohn was in the care of her great-aunt Ladybird Powell when she died on Jan. 10. Abuse and neglect are considered contributing factors, according to law enforcement records, but the investigation is still pending and no charges have been filed yet. The autopsy report is not yet final.

DSS had been to Powell’s trailer several times to investigate claims of abuse and neglect of children in Powell’s custody.

The investigation into Swain DSS was launched after Swain County Detective Carolyn Posey uncovered discrepancies in DSS records and found holes in the accounts from DSS social workers.

Posey had initially been assigned to investigate Aubrey’s death and determine what, if any, charges should be filed.

Over the course of the investigation, Posey encountered delays getting DSS records. When she finally got the reports she found there were missing pages and other things that didn’t add up.

For example, one report said that Aubrey had been seen by a doctor and was normal with no signs of injury. But when Posey called that doctor, she found that that the doctor in fact had never seen Aubrey.

Posey had interviewed several relatives and neighbors who witnessed abuse and neglect of Aubrey while in Powell’s care. Relatives said they had repeatedly informed DSS of the situation, made reports and requested intervention but got no response.

Information gleaned from relatives about the baby’s condition and treatment was “in direct contrast to the information provided by the Department of Social Services’ employees: Misty Tabor, Craig Smith, Candace Lassiter, Angela Biggs, T.L. Jones and Tammy Cagle,” the warrant states.

DSS Program Manager T.L. Jones and and DSS Director Tammy Cagle told Posey their agency had only received two reports of abuse and neglect, which Poesy noted was “in direct contrast” to what she had been told by relatives claiming they had made numerous reports.

Posey was aided in her investigation by Danny Cheatham, a private investigator hired by the Eastern Band of Cherokee Indians to assist in the inquiry into Aubrey’s death.

Once Posey and Cheatham discovered what appeared to be cover-up by Swain DSS, they alerted District Attorney Mike Bonfoey, who in turn called the State Bureau of Investigation.

The State Bureau of Investigation raided Swain County Department of Social Services Tuesday, hauling off computers and records in an investigation allegedly tied to the death of Aubrey Littlejohn, a 15-month-old baby who died Jan. 10.

Littlejohn was brought to a hospital emergency room at 3:30 a.m. that day, according to an affidavit filed to establish probable cause by the Swain County Sheriff’s Department. The 15-month-old’s left arm was fractured, and she had a bruise on her forehead. Interviews of people staying at the residence, a singlewide trailer at 187 Kenneth Cooper Road off U.S. 19 between Cherokee and Bryson City, revealed the baby had been left strapped in a car seat for about 12 hours.

“During that time period, Aubrey was not removed from the car seat, given food or drink except for some bites from a hotdog and sips of a soda around 5 p.m. that evening. Aubrey’s diaper was not changed during this time period,” the affidavit stated.

When the baby was admitted to the hospital, she was dressed only in a t-shirt and a urine-soaked, feces-filled diaper.

“Infant was limp and very cold to the touch, skin color dusky blue,” according to the affidavit, which noted law enforcement interviews indicated “abuse and neglect” contributed to the baby’s death.

DSS workers had repeatedly been called to the home where the baby lived over the past year, but failed to remove her, The Smoky Mountain News was told.

That’s what angers David Wijewikrama, an attorney in Waynesville.

“The Departments of Social Services across the state have had needless deaths occur multiple times a year because officials involved fail to follow up and do their jobs in the necessary manner,” Wijewickrama said.

The child had been living with her great-aunt, Ladybird Powell, because the child’s mother, Jasmine Littlejohn, was in jail on unrelated drug charges, he said. While they are members of the Eastern Band of Cherokee Indians, Aubrey Littlejohn lived off the reservation in Swain County. That’s why Swain County DSS was the agency tasked with investigating claims of abuse.

According to Veronica Callahan, next door neighbor of Ladybird Powell, there were often lots of cars and trucks at Powell’s trailer at all hours of the night. Callahan said that children were outside the home as late as 2 a.m., and just this past fall several children were sleeping in a tent in the trailer’s backyard. Callahan said Powell would lock the children out of the house and not allow them back in.

She said sheriff’s deputies and DSS workers were at the house repeatedly responding to complaints.

“It’s horrifying,” said Callahan. “A baby has no voice. I really hope this doesn’t get washed away.”

Tuesday, Michell Hicks, principal chief of the Eastern Band of Cherokee Indians, declined to comment directly on the investigation, but did say: “we remain committed to following through to ensure justice is served in this case.”

Additionally, Hicks said the tribe had hired a private investigator to help provide “a more comprehensive level of information in this case.”  

Swain County Sheriff Curtis Cochran said his department is investigating the child’s death, but has not yet determined what if any charges might be filed against her caregivers. District Attorney Mike Bonfoey also confirmed the existence of an investigation, but declined to comment further. State and local DSS officials failed to return phone calls requesting comment before press time.

Wijewickrama has been retained by the child’s mother, who, he said, is devastated by her baby’s death while in the care of a relative. She retained him in a civil capacity to look into possible negligence by DSS.

“She’s sad. She is devastated. She wants to see if there is a law that can be passed that forces DSS to immediately remove children if there are visible signs of abuse,” Wijewickrama said. “What makes me angry is that DSS went to the house of Ladybird (Powell) and removed other children. They knew she was abusive but failed to remove 15-month-old Aubrey and provide her a safe placement.”

Staff writer Quintin Ellison contributed to this report.

A lawsuit waged by Swain County Sheriff Curtis Cochran against the county was shot down in court this week.

Cochran accused commissioners of cutting his pay in 2006 as a form of partisan retribution. State statute protects sheriffs from politically motivated pay cuts, making it illegal for county commissioners to reduce the sheriff’s compensation or allowances following the outcome of an election.

In this case, Cochran argued the all-Democratic board of commissioners retaliated against him after he narrowly beat out a long-time Democratic sheriff.

However, Cochran’s civil suit was thrown out by Judge Allan Thornburg this week following a hearing on Jan. 24. Cochran’s attorney David Sawyer said they plan to appeal the decision to the N.C. Court of Appeals.

The judge did not stipulate why he was dismissing the case, so it’s unclear which of the many defenses put forward by the county was the winning one.

One interesting argument in the case centered around whether county commissioners indeed reduced Cochran’s compensation as he claimed. While it seems like a clear-cut matter — either they cut his pay or they didn’t — it gets a little complicated.

Following an election upset by Cochran in 2006, commissioners put an end to a long-standing slush fund enjoyed by prior sheriffs. Prior sheriffs were paid a flat rate to feed jail inmates and could keep the surplus to use as they pleased, whether it was pocketing the difference or using it to subsidize operations around their office.

When making his case that the lost meal money equated to lost pay, Cochran needed to prove that previous sheriffs made a profit on the meal deal and by how much.

“The problem is we don’t know what that number is,” said Mark Melrose of Melrose, Seago and Lay, who represented the county in the suit.

Melrose said any dollar amount would be “highly speculative.”

The county never made prior sheriffs document what they were actually spending on inmates’ food, but instead dolled out a lump sum with no questions asked.

The lack of records means Cochran could not conclusively show how much previous sheriffs made on the meal deal, and thus how much he supposedly lost when it was taken away.

The previous sheriff got $10 per inmate per day. Sawyer said Cochran has complete records of his cost to feed inmates, so while the surplus made by past sheriffs remains a mystery, it would be easy to calculate what Cochran was due if the old formula was still in effect.

The state statute not only bars commissioners from cutting the sheriff’s pay, but also for reducing his “allowances.” Cochran and the county sparred over whether the inmate meal fund qualified as an “allowance.”

“His contention was that it was an allowance. Our argument was that it was a reimbursement for expenditures,” said Melrose.

Rather than paying out a lump sum, the county now reimburses the sheriff for actual food costs at the jail — but it still counts as a reimbursement, not an allowance, Melrose said.

In a dual claim, Cochran sued the county for breach of contract.  

“Cochran argued there was an implied contract based on the county’s dealing with prior sheriffs, but you can’t piggy back on top of that,” Melrose said.

The county commissioners never “implied” they would continue funding inmate meals the same way they had with prior sheriffs. In fact, government entities legally can’t make verbal promises to do business with someone, Melrose said, but must do business in the open through written public contracts.

The county argued that it had sovereign immunity in this case, meaning it could not be sued for such things. Sawyer said granting the county sovereign immunity in this case renders the state statute moot.

“If soveriegn immunity applies here, it is questionable whether there is any mechanism to enforce that statute,” Sawyer said. “We feel it is an important issue for the Court of Appeals to look at.”

But the county did not hang its hat on that defense alone, and it is ultimately not known whether it was the deciding factor for the judge.

“In order to defend the county, we had to recreate all the events of the food being supplied to the inmates for a long time to see what was the practice, what was paid, how was it paid, was there a profit. It was very fact intensive,” Melrose said.

Mike McConnell, an attorney with the same firm as Melrose, was the primary lawyer for Swain County in the case.

 

Lowest sheriff salary

Auditors had repeatedly warned the county the meal deal wasn’t exactly kosher and should be ended, but it wasn’t until Cochran came into office that commissioners heeded the advice. The county claimed it was simply time to embrace a new, better way of doing business.

At the time, Cochran asked commissioners for a salary increase if they were going to cut out the meal deal.

When Cochran filed the suit he was one of the lowest paid sheriffs in the state with a salary of just $38,000. He’s gotten incremental raises from commissioners since then, bringing his salary to $47,000, but he is still one of the lowest — if not the lowest — paid sheriffs in the state. His salary is the lowest according to a list of sheriff salaries put out by the UNC School of Government, but it shows no data for a few counties. Only two other counties showed sheriff salaries of less than $50,000.

In the end, the county may have been better off giving Cochran more of a raise to offset the loss of the meal deal rather than paying the costs of the lawsuit. County Manager Kevin King said he did not know how much the county had spent in legal costs defending the suit so far.

“To be honest I have not received any bills yet,” said King.

However, Melrose said the county has been billed regularly for work in the suit since 2008.

“There has been a good bit of billing,” Melrose said. “There have been three or four depositions and court hearings and time spent preparing the case. The legal arguments took a lot of time and research.”

King did not return subsequent messages and emails again requesting the cost of the lawsuit to the county. The county hopes to be reimbursed for court costs, but those amount to less than $1,000, a small sum compared to the legal fees for the attorneys.

“The sheriff is willing to talk with the county at any time and would like to resolve this in amicable but if not the appeal is the only other route that we have,” Sawyer said.

When asked whether the county was pleased the suit was dismissed, King directed questions about the lawsuit to county commissioners. Commissioner Chairman Phil Carson did not return a message.

The second and final public hearing on whether the N.C. Department of Transportation should widen and pave Needmore Road took place in Macon County last week.

Needmore Road is a rough, one-lane, 3.3-mile gravel road along the Little Tennessee River in Macon and Swain counties. It parallels N.C. 28, but on the opposite bank. The road runs through the protected Needmore Game Lands. A broad coalition of environmentalists, hunters, local residents and others saved the 4,400-acre tract from development some six years ago after raising $19 million to buy the land from Duke Energy.

Twenty-seven people spoke at the recent hearing. Additionally, the entire five-member Macon County Board of Commissioners turned out to listen, along with transportation department officials. These comments come on top of nearly 800 signatures on a petition supporting some type of paving or resurfacing, and at least 66 written comments sent in to the department of transportation earlier. Plus, about 25 people spoke publicly at a previous public hearing last fall.

In a follow-up discussion, DOT spokesperson Julia Merchant told The Smoky Mountain News a post-hearing meeting would be held in about six weeks “to discuss each and every comment that has come in on the Needmore project. Then, we’ll make a decision as to whether future studies will be conducted.”

Merchant said no percentage weight is assigned directly to public support or opposition.

“So I guess you could say it’s more intuitive,” she said. “Public comments certainly weigh in the decision making, but we have to balance them against engineering criteria. We also have to weigh other engineering criteria such as cost, traffic surveys and impacts to the human environment in order to come up with the best solutions.”

Page 29 of 47

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