How to sue child protective services
Can I Sue the Department of Social Services (DSS)?
You can, but you have an uphill battle against the state department of social services (DSS) in court. If you believe that they have discriminated against you or removed your child for no reason, you may be able to sue in federal court. If you believe they made a huge mistake or deliberately hurt you, you may be able to sue in state court.
It would be hard to win such a complicated case on your own. If you do want to sue DSS for violating your civil rights, strongly consider getting legal advice from a capable civil rights attorney. Otherwise, you may find it helpful to speak with a personal injury attorney.
State Social Services Agencies
Many social services are provided by state governments. The agency may go by different names depending on where you are (for example, DSS, Department of Human Services, etc.), but they generally provide a number of different social services:
- Assistance programs (such as energy, income, housing, etc.
)
- Services for family and children (including child welfare, foster care, child support payments, etc.)
- Services for people with disabilities
- Services for vulnerable adults
This article focuses mostly on claims against child protective services (CPS). FindLaw has more information about suing adult protective services (APS) in the article linked here.
Child Protective Services
Getting a visit from a CPS worker can be highly distressing. They have a lot of authority. In fact, if they have a reasonable belief that your child is in immediate danger, they can just take your child away temporarily. They don't even need a court order.
The legal process that follows may seem even more unfair. Defendants in criminal court have more rights than a parent in family court. You would get a jury trial for stealing a loaf of bread. You don't get a jury trial in family court, even if the state decides it wants to take away your child forever. If you can't afford a criminal defense lawyer, the court gives you one.
Not so in family court. So having a good family law attorney on your side might help immensely.
The question of whether and where you can actually sue CPS, however, depends on what they do.
Suing CPS in Federal Court
If CPS deprives you of your civil rights, you may be able to sue the caseworker or the agency itself in federal court. Lawyers call this a “section 1983" or, unsurprisingly, a “civil rights" claim.
Generally, to bring a civil rights claim, you have to show two things:
- A state actor (someone acting on behalf of the government) deprived you of your federal rights, such as your constitutional rights
- They acted under “color of law."
These requirements are explained below.
Deprivation of Federal Rights
The first element you have to prove is that CPS violated your federal rights. Two constitutional rights come into play more than other federal rights:
- You have the right to be free from “unreasonable searches and seizures" under the Fourth Amendment.
If that CPS caseworker didn't have any reason to believe that your child was in imminent danger and removes them anyway, then that would be an unreasonable seizure and the removal would violate your Fourth Amendment rights. - You have the right to “due process" under the Fifth and 14th Amendments. Among other things, that means that the government has to treat you fairly, such as by giving you notice of what it plans to do and the chance to present your side before they act. Removing a child permanently without telling the parents first and giving them the chance to object would violate their due process rights.
Acting Under Color of Law
The second element is that CPS was acting under “color of law." That essentially means that the caseworker was acting on behalf of the state when they took action.
CPS caseworkers are employed by the state and their job is to conduct child protection investigations. Generally speaking, they act “under color of law" when they interact with families.
If you can prove these two elements, you may be able to bring a civil rights lawsuit against CPS in federal court. An experienced civil rights attorney could help you understand your legal rights, give you your options, and guide you through the complex process.
Suing CPS in State Court
You also may be able to sue under state law. This can get complicated, so let's take it step-by-step.
Sovereign Immunity
Start with the doctrine of “sovereign immunity." Sovereign immunity essentially says that you cannot sue the state unless it says so. And if the state does say so, you can only sue it on its terms. If you're interested in a detailed discussion of the doctrine, visit our page on state sovereign immunity.
Torts
Every state has decided that in at least certain contexts, it should be able to be sued if its workers wrongfully hurt someone. Wrongfully hurting someone is called a “tort." What makes the action “wrongful," and therefore which tort, depends in part on the level of thought behind the act that leads to harm.
Think about that level of thought as on a sliding scale. On the far-left side is “no thought." Something happens entirely by itself or by accident, like if your dog is on a leash in your hand but suddenly bites someone who is petting it. If the state allows a lawsuit regardless of the care or thoughtfulness of those involved, that's called “strict liability."
Slide to the right a little. Something happens, but you didn't mean for it to happen. You were careless. This is negligence. Negligence is the failure to act as a reasonably prudent person in the same or similar circumstances. You can learn more about negligence here.
Jump all the way to the far-right side. You meant to do the act that caused the harm. That's intent. If you deliberately punched someone in the face, for example, that would be the intentional tort of battery. It wouldn't matter how bad the person you punched was injured. You'd be responsible for the harm done because you intended to do the act.
Gross Negligence
Now, there is a range between negligence and intent.
Somewhere between carelessness and purpose. At some point between those two is another tort called “gross negligence."
The term “gross negligence" is a little vague. States vary widely on how they define it. One way you can think about it is conduct that shows not the slightest care to protect someone you are responsible for from an unreasonably high risk of harm. One example is driving a car through a crosswalk full of pedestrians while you are texting.
Sovereign Immunity and Gross Negligence: Tort Claims Acts
Let's jump back to sovereign immunity. You typically can't sue the state for ordinary negligence. But states generally have waived their immunity and allow you to sue for gross negligence or an intentional tort on certain terms.
There are limitations. For example, you first need to notify the proper agencies of your claim within a particular, and usually very tight, time frame. Then, if you do that right, you are generally required to follow specific procedures.
If you do recover money damages for your injury, the amount may be capped. As we pointed out, sovereign immunity says that states get to set the terms on which you can sue them.
Example of CPS Gross Negligence
Let's take a real case from South Carolina as an example. A mother refilled her children's prescription at a local pharmacy. When her children took the medication, they became very sick. The parents took them to the emergency room.
As required by state law, the hospital reported the case to DSS as a possible poisoning. A caseworker came to the hospital, looked at the inconclusive drug tests, and, without even talking to the doctor, pressured the parents into agreeing to put the kids in foster care while DSS did a full investigation into child abuse.
The kids had been poisoned, all right. It turns out that the pharmacist had accidentally prepared the medication at 1,000 times the proper concentration. But it took eight days for the kids to be returned to their parents.
The parents sued, claiming gross negligence and intentional infliction of emotional distress (an intentional tort). A jury returned a verdict for the parents and awarded four million dollars. The South Carolina supreme court upheld the verdict in that DSS case.
If You Are Thinking About Suing DSS, Consult a Lawyer
That is what gross negligence looks like. If something like that has happened to you, you may have a basis for bringing a lawsuit in state court. And if you believe your federal rights have been violated, you may be able to bring a civil rights claim in federal court.
As is clear, however, both types of cases are complicated. You would benefit from having a lawyer on your side to help explain your parental rights. Many lawyers will offer a free consultation. Some civil rights lawyers also handle personal injury cases, so make sure you ask. And act quickly — you may lose the right to sue if you wait too long.
Can You Sue Child Protective Services for Emotional Distress?
By George Khoury, Esq.
on March 08, 2017 10:15 AM
If you've ever been visited by Child Protective Services (CPS), you know just how stressful and distressing it can feel. Typically parents feel frazzled when someone with the legal authority to take aware their kids, like a caseworker, is present.
Unfortunately, unless your civil rights are violated, you likely won't have any legal claim against Child Protective Services. Typically cases don't come out of the agency's day-to-day processes or its representative's routine actions.
So, you likely won't be able to sue for emotional distress. However, when civil rights are violated, individuals can sue CPS, and these claims can be costly for cities.
When Is There a Civil Rights Violation?
When a CPS worker comes to your door to perform their job and investigate a complaint, it does not automatically create a civil rights violation. This is true no matter how distressing the situation may be for you.
In fact, if a CPS worker, in good faith, believes that there is a danger of immediate harm to your child, your child can be removed immediately without a court order.
And this is still not a civil rights violation. Even if they are later proven to have been mistaken, it's their belief at the time that matters most.
Unfortunately, CPS may coerce investigation suspects into providing information or drug test via the threat of taking their children away. This, again, likely does not rise to the level of a civil rights violation.
What If CPS Crosses the Line?
If CPS crosses the line into violating your civil rights, then legal relief may be available to you. This can occur when overzealous or untrained social workers investigate a case without adhering to the constitutional rights of individuals, particularly those dealing with due process and search and seizure. Under 42 USC 1983, every person has the right to be free from constitutional violations caused by government actors.
For instance, if a child is removed without any basis for a worker's good faith belief that the child is in immediate danger, then that could be a due process violation under section 1983.
Parents may want to consider hiring an attorney to analyze these claims. A lawyer may be able to view them more objectively and discuss if they have a case. These claims are incredibly complex, specifically because they deal with a CPS worker's own subjective view of a situation.
Finally, if a parent believes that Child Protective Services acted with "discriminatory animus" because of the parent or child's race, national origin, gender, or other protected class, there may be other civil rights violations to sue under.
Other Reasons to Sue CPSCPS exists to protect children and place them in safe care. In some cases, the people who are meant to help can be the abusers.
Aside from emotional distress, you should speak with an attorney if you believe you or your child experienced any of the following:
- Child abuse from a caseworker or staff
- Unfair removal of parental rights
- Lack of child welfare in foster care or temporary housing
- Undiagnosed or ignored mental health concerns
- Sexual abuse or threats from a CPS employee
- Endangerment of a child's life or child's safety
- Unfair court hearings
- Lack of advocacy or due process
Speak with an attorney focused on family law if you feel something was handled illegally.
They can help you understand your rights and when you may want to consider suing CPS and its staff.
Related Resources:
- Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory)
- What Happens When CPS Is Called? (FindLaw's Law and Daily Life)
- Riverside Co. CPS Takes 'Thousands' of Babies, Lawsuit Claims (FindLaw's California Case Law Blog)
- CPS Investigations: 3 Reasons to Call a Lawyer Right Away (FindLaw's Law and Daily Life)
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
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How to write a complaint to the guardianship authorities: a sample, help from a lawyer
Complaint to the guardianship and guardianship authorities will solve the problem with our help.
Since the law states that the parent is obliged to look after and care for the child, as well as its proper upbringing and development, violation of the article may lead to the fact that relatives will write a complaint to guardianship against the mother of the child.
Contents of the article:
- When to write a complaint to the guardianship to protect the rights of children?
- How to write a complaint to the guardianship authorities?
- How do I file a complaint with the guardianship?
- What do you do if you have a custody complaint?
- Sample complaint to guardianship and guardianship authorities
- Guardian Complaints Attorney
ATTENTION: if the guardianship authorities are inactive, then a complaint against the actions of the guardianship and guardianship authorities will help resolve the issue, use your rights to the full and do not leave everything as it is!!!
When to write a complaint to the guardianship for the protection of children's rights?
For example, if a child is involved in strength sports and is frequently injured, the school must be notified, as teachers may apply for guardianship of the child's mother for a domestic battery check.
It is necessary to distinguish between situations when there is a force impact in the family and in the sports section.
- Complaint to guardianship for beatings in the family. If the beatings were indeed received at home, then the second spouse should already file an application against the spouse about the abuse of the right of upbringing as part of the protection of the rights of minor children. A mother should not calmly look at how a father beats a son or daughter for educational purposes.
Checking the residence of the child is carried out by representatives of the authority after the issuance of the relevant decision and should not interfere with the normal life and routine of the child. During the visit, you should calmly show the representatives the apartment where the family lives.
- Complaint to the guardianship authorities against the ex-wife after the divorce. Divorce proceedings lead to problems. When parents divorce, it happens that the one who is engaged in education, for the purpose of revenge, may prevent the child from communicating with the second parent.
Negotiations may not be fruitful, and a child custody complaint may be required. Filling is allowed in any form with a competent and truthful description of the family situation. We also recommend an application for determining the order of communication with the child or determining the place of residence of the child in court if the guardianship authorities were powerless.
How to write a complaint to the guardianship authorities?
In order to file a complaint, it is first necessary to determine which rights of the child or parent have been violated. So, the most common cases are:
Violation of the rights of the child:
- Obstruction of communication with parents;
- Restriction of the child in attending school, kindergarten;
- Failure to fulfill the obligation to support the child;
- Formation of bad habits and negative attitudes towards society in a child.
Violation of the rights of a parent:
- Restriction of communication between a parent and a child;
- Interfering with a parent's participation in a child's life;
- Formation in a child of a negative attitude towards a parent;
- Restriction of the parent's direct parental duties.
USEFUL: read also about protecting the rights of parents at the link
After determining the violated rights of children and parents, you should state the specific circumstances that led to the violation of rights. When describing such circumstances, one should refer to specific evidence: video recordings, correspondence, appeals to the police, responses to appeals to departmental bodies, which will indicate the identified violations of rights, which will indicate that the child's parents or his legal representatives continued to commit illegal acts .
The above circumstances should be supported by the norms of the current legislation, it would not be superfluous to point to specific judicial practice or regulations of the higher guardianship authorities, the positions of the commissioner for children's rights.
At the end, you should indicate what kind of response measures the applicant asks to take when checking the complaint by the guardianship authorities.
How do I file a complaint with the guardianship?
When filing a complaint with the guardianship authorities, you should correctly indicate the departmental territorial body. Often such a body corresponds to the administrative-territorial division of large cities or corresponds to the municipality in which the child lives.
In some cases, such applications are handled by an inter-regional division operating in several municipalities.
Applicant is eligible to apply in the following ways:
- In person. In this case, a second copy of the complaint should be prepared, on which the specialist of the guardianship authorities who will receive the appeal will mark the receipt of the complaint.
- Post. The applicant has the right to send a complaint by mail. The applicant is entitled to send a complaint by registered mail, valuable with a description of the attachment, or use a courier service.
In any case, the applicant must have a track number (RPO) of the postal item to confirm the very fact of contacting the guardianship authorities, as well as to be able to track the time for consideration of the complaint. - Through a representative. If the applicant decides to use the representation of his interests in the guardianship authorities, he should draw up a notarized power of attorney for the representative, which will indicate the right of the representative to file a complaint with the guardianship authorities. If the representative will apply to the guardianship authorities by mail, it is recommended to additionally attach a notarized copy of the power of attorney to the complaint.
What to do if you have a complaint filed against you?
If a complaint has been filed against you with the guardianship authorities, you should:
- Read the complaint.
- Ask caregivers what steps they will take to address the complaint.
- Prepare documents or take other actions that testify to the insolvency of the circumstances referred to by the person who filed the complaint:
- Confirmation of communication between the child and the complainant (correspondence, video, photo)
- Confirmation of the maintenance of the child (checks, whether the child has children's things, etc.)
- Get a reference from your place of work, information about income, get a reference from the organization in which the child is studying.
- If you have previously filed complaints to guardianship, as a result of which the departmental authorities indicated that there was no violation of the rights of the child and parents, be ready to provide documents on the results of verification of such appeals.
IMPORTANT: provide evidence that the rights of the child and the complainant have not been violated.
In the event that the guardianship authority reveals violations of the rights of the child or the complainant, be ready to challenge the results of the audit in an administrative manner as soon as possible.
If the complainant spreads false information about you not only by contacting the guardianship authorities, you have the right to file an application with law enforcement agencies in accordance with Art. 128.1 of the Criminal Code of the Russian Federation.
Sample complaints to the guardianship authorities to father
to the guardianship authority
of the Chkalovsky district of the city of Yekaterinburg
Sverdlovsk region
complaint
on the fact of violation of the rights of minor children
from the date of pregnancy and to the present A. D. evades parental duties, does not participate in the upbringing or education of children, and is also not interested in life and health. Doesn't interact with children. Does not provide content. Doesn't make gifts. The children are registered and live in the mother's place of residence - separately from A.D.; are fully supported by the mother. Voluntarily child support A.D. are not paid. An agreement on the payment of alimony has not been concluded.
In this regard, O.S. was forced to apply to the court for the enforcement of alimony for the maintenance of minor children.
By virtue of Part 2 of Article 38 of the Constitution of the Russian Federation, the care of children, their upbringing is an equal right and duty of parents.
According to Article 63 of the Family Code of the Russian Federation, parents have the right and obligation to raise their children.
Currently A.D. does not want to fulfill the statutory obligations of a parent in relation to children, does not pay funds for their maintenance. Inaction A.D. also expressed in the lack of concern for children, their moral and physical development, education. Such an attitude is unacceptable, unlawful and entails a significant violation of the rights of minor children, mainly the right to ensure an adequate standard of living and development. Inaction indicates his indifferent attitude towards children. The father of the children knowingly does not fulfill parental duties and does not use the rights granted to the children.
Under such circumstances, appropriate measures should be taken against the father of minors.
In the case under consideration (guilty, unlawful inaction of A.D. in relation to minors) in relation to A.D. it is necessary to apply the established family law consequences in the form of deprivation of parental rights. Moreover, their presence and implementation by A.D. does not claim, which means that any of his rights, as well as interests, will not be affected and violated. The application of a measure of responsibility in the form of deprivation of parental rights is a necessary and sufficient circumstance to protect the rights, freedoms and legitimate interests of minor children, their mother, because today A.D. has a real possibility of abusing the rights granted to conscientious parents, including by restricting the entry / exit of children outside the Russian Federation, limiting the time of communication between the mother and children, causing damage to the psychological and moral development of children, causing inconvenience as a result of systematic visits to the place of residence of minors by strangers, by a stranger.
USEFUL: watch the VIDEO why I am against the use of Internet design protection and do not forget to subscribe to the YouTube channel for advice in the comments of the video:
long period of time (more than a year). Under such circumstances, it is obvious that children do not recognize A.D. your relative, close friend, father. The potential "appearance" of A.D. after a long period of time in the place of residence of young children will cause significant damage to their psychological state, because children do not know and do not communicate with him at all. The latter does not in any way show concern for children, is not interested in their fate and development, and therefore, it is obvious that he does not have a legal, moral right to claim further communication with children.
By virtue of parts 1 and 2 of article 38 of the Constitution of the Russian Federation, motherhood and childhood, the family are under the protection of the state.
Caring for children, their upbringing is an equal right and duty of parents.
Based on the above, guided by Articles 2, 7, 38 of the Constitution of the Russian Federation, Article 27 of the Convention on the Rights of the Child, Articles 1, 63, 64, 69, 70, 80 of the Family Code of the Russian Federation,
REQUEST:
- on the fact of violations of family law committed by the father of the children, as a result of which to take response measures corresponding to the consequences of violations.
- to report the results of the audit in writing to the applicant by sending it by mail to the address of residence: 620146, Sverdlovsk Region, Yekaterinburg
Date, signature
Attorney for complaints to the guardianship authorities Yekaterinburg
Since it is on the mother’s shoulders that the main responsibilities for raising a child are assigned, she may first of all be subjected to various claims.
A complaint to the guardianship authorities against the father can be received when educators or teachers in children's institutions notice traces of beatings and a depressed mood of the child.
If necessary, you can use the advice of our family lawyer, who will help you understand the intricacies of the law and help resolve all issues and disputes about children.
Often the services of a lawyer in family disputes of our Law Office "Katsailidi and Partners" are able to resolve the conflict in a short time, file a complaint with the guardianship authorities: professionally and on favorable terms. Call today!
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Remedies -
Authorities are required to provide advice
The public authority has a legal obligation to advise the client, when necessary, when dealing with authorities.
Children and parents should be aware of their rights and responsibilities. Many disagreements can be resolved by talking directly to the official or superior. However, if you feel that your rights have not been respected or you feel that you have been treated unworthily, you can take legal action.
Legislation classifies certain government decisions as subject to possible appeal in court. Instead of appealing to the court against the actions of the authorities, a complaint can be filed, in which case the complaint can be considered by various bodies.
In case of conflict, help can be obtained from the social ombudsman.
Social security services have created the possibility of contacting an impartial person in case of suspicion of a violation of the rights of a client. This function is performed by the social ombudsman in each municipality. The task of the Ombudsman is to protect the rights of clients in the area of social security by providing information, advice and assistance.
The social ombudsman can be asked to act as a support and mediator if a client is dissatisfied with the services or treatment they have received. Contact information for the social ombudsman can be found on the website of the municipality.
Reminder
Poor customer service or mistreatment can be reported as a reminder. A reminder is a quick and convenient way to report bugs. This allows you to get information about service deficiencies. You can file a reminder with the social ombudsman, who will know who the reminder should be addressed to. A reminder must always be answered, even if it does not raise the question of compensation or other measures.
The right to appeal a decision: appeal and review
One of the most important principles of legal protection is the right of everyone to appeal against a decision. The most effective remedy is an appeal, because then the decision of the authority will be reviewed. However, not all decisions can be appealed: the law defines decisions that can be challenged in court.
There are many such solutions in the field of child protection. After an appeal has been filed, the court may intervene in the content of the decision, such as overturning it or changing it.
In some child protection cases, a request for review must be filed with the municipal welfare office before an appeal can be made to the court. This is called the review process and is considered an internal municipal process. Its purpose is to allow municipal authorities to review their decision before it goes to court.
In the case of a particularly important, from the point of view of the child's parent or guardian, nature of the child protection decision, an appeal may be made directly to the administrative court without the above-mentioned review procedure. Such issues include, for example, decisions regarding emergency placements in foster care or restrictions on communication.
The municipal social ombudsman can advise you on the appeal process. A low-income person has the opportunity to receive legal assistance from public funds.
