Can I Sue the Department of Social Services (DSS)?

It would be hard to win such a complicated case on your own. If you want to sue DSS for violating your civil rights, strongly consider getting legal advice from a capable civil rights attorney. Otherwise, speaking with a personal injury attorney may be helpful.

You can, but you have an uphill battle against the state Department of Social Services (DSS) in court.

If you believe they have discriminated against you or removed your child for no reason, you may be able to sue in federal court. If you think they made a huge mistake in taking away your child custody or deliberately hurt you, you may be able to sue in state court.

State Social Services Agencies

State governments provide many social services. The agency may go by different names depending on where you are (for example, DSS, Department of Human Services, etc.), but they generally provide several 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 or mental health issues
  • 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. Social workers have a lot of authority. If a social worker from CPS has a reasonable belief that your child has been a victim of sexual abuse or is in immediate danger, they can 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 could get a jury trial for stealing a loaf of bread. You will not get a jury trial in family court, even if the state decides it wants to take away your child forever.

In a criminal case, if you can't afford a criminal defense lawyer, the court provides one to you. Not so in family court. So having a good family law attorney on your side might help immensely.

But the question of whether and where you can sue CPS 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."

We explain these requirements below.

Deprivation of Federal Rights

The first element you must prove is that CPS violated your federal rights.

Two constitutional rights come into play in this context more than other federal rights:

  1. You have the right to be free from "unreasonable searches and seizures" under the Fourth Amendment. If that CPS caseworker had no reason to believe that your child was in imminent danger and removed them anyway, then that would be an unreasonable seizure, and the removal would violate your Fourth Amendment rights.
  2. You have the right to "due process" under the Fifth and 14th Amendments. 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 a 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 means that the caseworker acted on the state's behalf when they took action.

The state employs CPS caseworkers, and their job is to conduct child protection investigations. Generally speaking, they act "under the color of law" when they do their job interacting 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, discuss 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 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 reasonably prudent 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. For example, if you deliberately punched someone in the face, that would be the intentional tort of battery. It wouldn't matter how badly you injured the person you punched. 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 little 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 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 either gross negligence or an intentional tort on specific 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. The amount may be capped if you do recover monetary damages for your injury. 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 for substance abuse, 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 $4 million. The South Carolina supreme court upheld the verdict in that DSS case.

Do Foster Parents Have Legal Recourse?

Foster parents also have legal rights and may face challenges when dealing with the Department of Social Services (DSS).

While foster parents don't have the same legal rights as biological parents, they still have a vested interest in the welfare of the children in their care. Foster parents may encounter issues with DSS that prompt them to consider legal action.

Defending Yourself Against False Accusations

In addition to considering legal action against DSS, you must defend yourself against false child abuse, neglect, or domestic violence accusations. This may involve:

  1. Hiring a criminal defense attorney: If you are facing criminal charges due to false accusations, you need an experienced criminal defense attorney to represent your interests and protect your rights.
  2. Gathering evidence: Collect any evidence that may help prove your innocence, such as text messages, emails, photographs, police reports, or witness statements.
  3. Documenting your interactions with DSS: Keep detailed records of all your interactions with DSS, including dates, times, and the names of the caseworkers involved. This documentation may be useful if you take legal action against the agency.

Is it Possible to Bring a Class Action Against DSS?

A class action lawsuit against the DSS may be possible if certain conditions are met.

Class actions involve a group of people (the class) who have suffered similar harm or losses due to a defendant's actions. These lawsuits can be an efficient way for many people to seek justice and compensation collectively.

Requirements for a Class Action

To bring a class action lawsuit against DSS, the following conditions must be met:

  1. Numerosity: There must be a large enough number of identifiable people who have suffered similar harm or losses due to DSS's actions. The exact number may vary depending on the jurisdiction, but it should be large enough that it would be impractical for each person to file a separate lawsuit.
  2. Commonality: The class members' claims must involve common questions of law or fact. This means that the legal issues and the facts surrounding the case must be similar for all class members.
  3. Typicality: The named plaintiff's claims must be typical of the claims of the entire class. In other words, the representative plaintiff's experience with DSS should be similar to the experiences of the other class members.
  4. Adequacy of Representation: The named plaintiff and their attorney must adequately represent the interests of the entire class. The representative plaintiff must have no conflicts of interest with other class members. Their attorney must have the experience and resources to handle a complex class-action lawsuit.

A class-action lawsuit under Rule 23 of the Federal Rules of Civil Procedure can be classified as either a (b)(2) or (b)(3) class action. Here's a brief overview of the additional requirements for each type.

Rule 23(b)(2) Class Action

This type of class action is brought when the primary relief sought is injunctive or declaratory relief. This means the class members seek to change the defendant's behavior or obtain a court order clarifying their rights.

Injunctive or Declaratory Relief Predominates

The primary goal of the lawsuit must be to obtain injunctive or declaratory relief that would benefit the entire class rather than individual monetary damages.

The (b)(2) class action is suitable when the defendant's actions or policies have affected the class members in a similar way, and a single injunction or declaration would provide relief to the entire class.

Rule 23(b)(3) Class Action

This type of class action is brought when the primary relief sought is monetary damages.

In this case, the following additional requirements must be met:

  • Predominance: The common questions of law or fact must predominate over individual issues among class members. This means that the legal and factual issues common to the entire class must be more significant than any individual issues that may arise.
  • Superiority: A class action must be the superior method for resolving the dispute compared with individual lawsuits or alternative dispute resolution.

Challenges in Bringing a Class Action Against DSS

While a class action against DSS may be possible, there are several challenges to consider:

  1. Sovereign immunity: Suing a state agency like DSS is subject to sovereign immunity limitations. This may affect the ability to bring a class action against DSS or the potential remedies available to the class.
  2. Diverse claims: The experiences of people dealing with DSS can be diverse, making it hard to establish the commonality and typicality prerequisites.
  3. Procedural Requirements: Class actions are complex lawsuits that require compliance with strict procedural rules. Navigating these rules can be challenging, even for experienced attorneys.

If You Are Thinking About Suing DSS, Consult a Lawyer

After reading this article, you now have an idea of what gross negligence looks like.

If something similar has happened to you, you may have a basis for bringing a lawsuit in state court. If you believe your federal rights have been violated, you may be able to bring a civil rights claim in federal court.

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 you a free consultation.

Some civil rights lawyers also handle personal injury cases, so make sure you ask.

If you want to sue CPS or DSS, act quickly. You may lose the right to sue under the statutory limits if you wait too long.

Use FindLaw to find a family law attorney today.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Parental liability laws are different in every state
  • Liability cases are complex and a skilled attorney is essential
  • Establishing or terminating parental rights will involve a court process

An attorney can help protect your rights after your child’s negligent or criminal acts. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

If you are in the midst of a parental rights or liability case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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