Yes, in certain situations, you may be able to sue the Department of Children and Family Services (DCF). You must show that DCF violated your civil rights or was grossly negligent. This is hard, but not impossible, to do in a lawsuit.
These cases are more complicated than your typical personal injury case. You shouldn't try to take DCF on alone. Strongly consider getting the legal advice of a skilled civil rights attorney or a personal injury attorney (some practice law in both areas).
What Is DCF?
DCF is the name of a state agency that is responsible for the child welfare system. Depending on where you are, it may go by different names, such as Child Protective Services (CPS).
For example, in Illinois, you would be dealing with the Illinois Department of Children and Family Services. In Chicago, DCFS works closely with the Cook County public guardian in cases involving child abuse or neglect.
FindLaw has more information about suing CPS in an article about suing the Department of Social Services and a blog about suing CPS for emotional distress. In this article, we focus on claims against DCF that arise out of alleged abuse or neglect.
How Many DCF Maltreatment Cases Are There?
States define abuse and neglect differently. The federal definition is:
"Any recent act or failure to act on the part of a parent or caregiver that results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act that presents an imminent risk of serious harm."
By 18, more than one in three children are involved in a child protection investigation. In 2019 alone, DCF agencies nationwide received about 4.4 million referrals for about 8 million children. Of these, about half were found to justify DCF intervention.
DCF Investigations Can Be Distressing
Suppose you're going about your day. You are cleaning the kitchen. You see your two foster children through your kitchen window. They are riding their bikes in the street — just a typical day.
You hear a knock on your door. You open it and find a DCF caseworker, first day on the job, standing on your porch. "I'm here to investigate a report of child neglect." You have no idea what they are talking about.
You get a long series of questions that include:
- How old are the kids?
- Who watches them when you're inside?
- Do you always let them play alone in the street?
You start getting defensive. You do your best to cooperate but don't like where this is going.
Your greatest fear is realized. The caseworker decides that your kids are at extreme risk of serious harm — they could get hit by a car, after all — and contacts the police. The police come, take your kids away, and put them into temporary foster care. Although a judge finds the neglect claim to be baseless, it takes two weeks to get your kids back.
Two whole weeks.
Your reaction to a nightmare like this may be to call a lawyer — with good reason.
Filing a Civil Rights Case
This example illustrates two possible claims that can arise against DCF. The first is a civil rights claim. Under a particular federal statute, 42 U.S.C. section 1983, you may sue DCF in federal court if you can show two things:
- There was a violation of your constitutional or federal statutory rights (a civil rights violation).
- The violation was committed by someone acting under "color of law."
Civil Rights Violation
The first element is a violation of your federal rights. This is the harder of the two elements to prove. When DCFS is involved, two federal rights come into play more than others: the right to be free from unreasonable searches and seizures and the right to due process.
Searches and Seizures
You have the right to be free from unreasonable searches and seizures under the Fourth Amendment. If a DCF caseworker takes your child without a good faith belief that the child is in immediate danger, even temporarily, then your child has been "unreasonably seized."
You also have the right to due process under the Fifth and 14th amendments. The phrase "due process" involves many things, but some basics include the right to notice that the government is going to do something, the chance to tell your side of the story, and an impartial judge who decides whether the government can do it.
If DCF took your child permanently without telling you first, they would violate your due process rights. Similarly, if your child were placed in foster care permanently without a judge hearing any evidence, that, too, would violate your rights.
Under 'Color of Law'
This second element is usually easier to prove. When you act under the state's authority, you are acting under "color of law." Most district courts have held that DCF workers act under the color of law while doing their jobs.
The case of Janiah Caine is illustrative. As a charge of the Illinois Department of Children and Family Services (DCFS), she was wrongfully incarcerated for 166 days in the Cook County Juvenile Detention Center, even after there was a court order for her release. DCFS claimed it did not have enough staffed beds for her placement.
So the Cook County Public Guardian, on behalf of minor children, filed a civil rights lawsuit against DCFS in federal court. He wants the court to order DCFS to hire enough staff so that kids who have been ordered released have a place to go.
Consider Consulting a Civil Rights Attorney
Civil rights cases are hard, but not impossible, to prove. If you want to explore this option, consider speaking with an experienced civil rights attorney.
Suing for Gross Negligence
The second claim is to sue DCF "in tort." A tort is a wrong other than a breach of contract that you can recover money for.
That includes the tort of negligence. To show negligence, you need to establish four elements:
- Duty of Care
- Breach of that duty
The duty of care in most situations requires you to act as a reasonably prudent person in the same or similar circumstances. But to sue DCFS, you need to meet a higher standard.
Unless the DCF caseworker intentionally hurts you, you must show gross negligence. States define this term differently, but you can generally think about it as a failure to use even the slightest care to protect against an unreasonably high risk of harm.
Example of Gross Negligence
In FindLaw's article Can I Sue the Department of Social Services (DSS), we gave a real legal case as an example of gross negligence. But let's stick with our illustration from above. The fresh-faced DCF worker's decision to take your kids may seem wrong. But depending upon your answers to their questions, it may not amount to gross negligence.
You would probably need to show more. Let's say that your crabby neighbor is the one who reported you. He has a long history of making false DCF reports against you and other families in the area. Maybe you even have a restraining order against him. The caseworker could have checked into this before taking your kids away but couldn't be bothered. That might amount to gross negligence.
Consider Consulting a Personal Injury Attorney
Gross negligence can be challenging to prove. It depends on the facts of your case and the state where you live.
If you believe DCF may have been grossly negligent in dealing with you, you may benefit from speaking with a reputable personal injury attorney. Many will offer a free consultation. That way, you can get legal advice about your situation and explore your legal options in case you are considering a civil rights lawsuit.