By Steven J. Ellison, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last updated March 31, 2022
Yes, in certain situations you may be able to sue the Department of Children and Family Services (DCF). You would need to show either that DCF violated your civil rights or was grossly negligent. This is hard, but not impossible, to do.
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).
DCF is the name of a state agency that is responsible for child protection. It may go by different names (such as Child Protective Services (CPS)) depending on where you are.
FindLaw has more information about suing CPS in the article linked here and a blog about suing CPS for emotional distress linked here. In this article, we focus on claims against DCF that arise out of alleged abuse or neglect.
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 the age of 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.
Suppose you're going about your day. You are cleaning the kitchen. You see your two kids 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:
You start getting defensive. You do your best to cooperate, but you 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 ultimately finds the neglect claim to be baseless, it takes two weeks before you get your kids back.
Two whole weeks.
Your reaction to a nightmare like this may be to call a lawyer. With good reason.
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 if you can show two things:
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.
1. 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" in violation of the Fourth Amendment.
2. Due Process
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.
This second element is usually easier to prove. When you act under the authority of the state, you are acting under “color of law." Most courts have held that while they are doing their jobs, DCF workers act under the color of law.
Civil rights cases are hard, but not impossible, to prove. If you are interested in exploring this option, you should consider speaking with an experienced civil rights attorney.
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:
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 hurts you intentionally, you would need to 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.
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 the questions they asked, 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.
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 specific situation and explore what your legal options are
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