From WH: How to sue DCFS for lying and removing children wrongfully

How to Sue Child Protective Services

Each state has its own Child Protective Services (CPS) agency that is responsible for protecting the health and welfare of children. CPS investigations can be traumatic and stressful for both parents and children. However, emotional distress alone does not give you the right to sue CPS. Since CPS social workers are government agents, they cannot act in ways that violate your established civil rights. An overzealous CPS worker may violate your constitutional right to due process, or your protection from unreasonable search and seizure. When that happens, you may be able to sue for monetary damages.[1]

Part1

EditBuilding Your Case

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    Create a chronological outline of events. Beginning with your first encounter with CPS, draft an account of each encounter or communication you’ve had with CPS social workers and other staff members.[2]

    • Write down the names, job titles, and direct contact information of every individual at CPS who contacted you or communicated with you in any way.
    • You also want outlines of any other activities that have anything to do with your children or the reasons CPS became involved with your children.
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    2

    Gather any related documents and other evidence. You should already have been documenting every interaction you had with CPS. All of these records are now evidence you can use in your lawsuit.[3]

    • If you had written documents that you can no longer locate, make a note of them. CPS should have copies as well, and you can request them later.
    • You also want to gather any documents that have anything to do with the care of your children. For example, if you’re home schooling your children, gather school schedules, assignments, and curricula and make copies.
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    Consult an attorney. Civil rights lawsuits in federal court are notoriously complicated. If you’ve decided to sue CPS for violating your constitutional rights, you need an experienced civil rights attorney to represent you.[4]

    • Civil rights attorneys typically offer a free initial consultation, so you can use this opportunity to speak to several attorneys. That can help you choose the best attorney for your case.
    • These lawsuits can drag on for a long time. Pick an attorney who is passionate about your case and who you get along with – you’ll be spending a lot of time with them, and discussing some potentially sensitive issues.
    • If you have been brought up on criminal charges of child abuse or neglect, you may already have a criminal defense lawyer. Ask them for a referral to a civil rights attorney who can help you sue CPS.
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    Identify an established right. The first hurdle you’ll face is pointing to a specific, established constitutional right that CPS violated while working with you and your children. This is a legal argument. Your attorney will review your documents and notes to determine which of your civil rights have been violated in your situation.[5]

    • This is part of the reason documenting all of your interactions with CPS is so important. Something that seems unfair to you may not necessarily rise to the level of a constitutional violation. However, something you thought insignificant might actually be a big deal.
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    Calculate your damages. You may have heard of parents who sued CPS for hundreds of thousands or even millions of dollars. However, the amount of money must be directly related to the violation of your rights.[6]

    • Your attorney will start with actual damages, if you have any. For example, if you and your spouse have been seeing a counselor as a result of the trauma you experienced from dealing with CPS, that expense may be considered actual damages.
    • Additional damages, known as punitive damages, may be available to you if the actions of the CPS social workers involved in your case were particularly egregious.

Part2

EditInitiating Your Lawsuit

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    File a complaint. Typically, complaints are not extremely detailed. However, a complaint in federal court that alleges violations of civil rights requires more information than the typical complaint. If the violations aren’t explained correctly, the lawsuit may be thrown out. This is why you need an experienced civil rights attorney.[7]

    • You don’t have to prove anything or submit any evidence when you file your complaint. At this point, you’re merely making allegations.
    • Your attorney will file your complaint in the federal district court that has jurisdiction over the county where the CPS agency is located. You may have to pay the $400 filing fee, or your attorney may pay it and add the amount to the costs of your lawsuit.
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    Have CPS served with the complaint. Once your complaint is filed, CPS must be notified of the lawsuit so that it has the opportunity to respond. Your attorney typically will have the complaint served on the attorneys of record for CPS.[8]
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    Evaluate the response from CPS. When CPS is served with your complaint, the agency has a limited period of time to file an answer with the court. A copy of that written answer will be delivered to your attorney.[9]

    • Your attorney will go over the response with you. Typically, the answer will deny all of the allegations and raise the defense of qualified immunity.
    • The response from CPS may include a motion for summary judgment. Similar to a motion to dismiss, this motion argues you have failed to state a claim for which the court can provide any legal or monetary relief.
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    Attend the summary judgment hearing. When you sue CPS, the agency will likely raise the defense of qualified immunity. While technically a defense, if the court grants the agency (and its social workers) qualified immunity, you won’t be able to sue the agency at all.[10]

    • When CPS argues it is entitled to qualified immunity, the judge must hold a hearing to decide this question before you can move forward with the lawsuit. Until this matter is decided, you won’t be able to do any further work or information gathering on your lawsuit.
    • Your attorney and the attorneys for CPS will submit lengthy briefs to the court arguing both sides of the issue. The judge may decide the question after reading these briefs, or they may have a hearing in court.
    • If the judge denies CPS qualified immunity, you still may not be able to move forward to the next stage of litigation. CPS has the right to appeal that decision and argue to an appellate court that the agency is entitled to qualified immunity.

Part3

EditGoing to Trial

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    Send written questions and requests to CPS. Provided the judge rules that CPS is not entitled to qualified immunity, you will proceed to the discovery phase. You will work with your attorney to create written questions and requests for documents, which must be answered by CPS.[11]

    • You will request CPS’s entire case file related to your family, as well as any internal documents, including emails, that are related to the investigation of your family.
    • The documents and answers to questions may reveal additional problems or violations that you didn’t know about before.
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    Depose the social workers involved. A deposition is an interview under oath. Since so much of your case relies on the subjective beliefs and interpretations of the social workers involved, these depositions will be crucial.[12]

    • You may or may not need to attend the deposition. Your attorney may want you there, or they may decide that it’s better if you’re not there.
    • Regardless of whether you attend, your attorney will go over the deposition with you afterward and explain how it affects your case.
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    Prepare for your own deposition. The attorneys for CPS will likely want to depose you as well. Your attorney will meet with you at least once to go over likely questions you’ll be asked and explain to you how to respond to deposition questions.[13]

    • Generally, you want to answer the questions directly and honestly, but refrain from rambling or further conversation. For example, if you are asked a yes/no question, your answer would be “yes” or “no,” without elaboration.
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    Answer questions from CPS. Just as you sent written questions to CPS, the agency will likely send written questions for you to answer as well. Your attorney will draft the specific answers after consultation with you.[14]

    • Your attorney may object to some of the questions. If they do, they’ll explain to you why you don’t have to answer those questions.
    • Even though these questions are in writing, they are still considered to be under oath. Answer each question as honestly and accurately as you can. If you don’t remember something, don’t guess.
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    Participate in pre-trial hearings. Judges typically schedule numerous hearings to make sure the litigation is on track and progressing on schedule. You won’t have to attend many of these hearings or meetings personally. Your attorney will update you on what happened.[15]
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    Evaluate any settlement offers. Lawsuits in federal court seldom make it to trial. Discovery can drag on for months, and most litigants prefer settling the case to avoid the uncertainty of trial. The judge may encourage settlement talks or preside over a settlement conference.[16]

    • Any settlement offers from CPS will be communicated to your attorney. Your attorney will present the offer to you and offer their advice. Regardless of what your attorney recommends, the decision of whether to accept or reject the settlement is solely your own.
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