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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:

  1. 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.
  2. 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.

Next Steps

Contact a qualified family law attorney to make sure your rights are protected.

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