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Can You Sue Child Protective Services For Failing To Remove A Child From An Abusive Home?

It's an unfortunate truth that children are often abused by the very people who are supposed to protect them: their parents. This is why all states typically have agencies devoted to investigating claims of child abuse and taking action to remove kids from harmful situations. If the child protective agency fails to extract a kid from an abusive home and the child is severely injured or killed as a result, is it possible to sue for damages? It depends on the circumstances of the case. Here's what you need to know.

Elements of Negligence

The most likely course of action you would have against a child protective agency who left a child in an abusive home would be to sue for negligence. This is a tort that essentially holds someone liable for injuries and damages stemming from his or her action or failure to act.

There are four factors that must be proven for a plaintiff to successfully win a negligence lawsuit:

  • The defendant had a duty of care
  • The person didn't fulfill his or her duty
  • The injury to the plaintiff was the proximate or direct result of the defendant's failure
  • The plaintiff suffered damages

For instance, a worker for the state child and family welfare services agency receives reports that a child is being physically abused by the parent. However, the person never follows up on those reports and the child sustains fatal injuries. Because the worker failed to perform his or her duty to follow up on the abuse report, he or she could be held at least partially liable for the child's death.

Challenges of Holding CPS Legally Responsible

On the surface, suing a child protection agency for negligence may seem simple. Unfortunately, there are several issues that may come up that can make it exceedingly difficult to win a case against your state's agency, starting with the fact it may be hard to show the agency had a duty to act. The U.S. Supreme court has determined social service agencies don't have a special duty to protect kids from abuse by private parties.

In the case of DeShaney vs. Winnebago County, the Department of Social Services returned a child to the care of his father, despite evidence the man was physically harming the child. Unfortunately, the father beat the child so severely, the boy suffered traumatic brain injury, requiring him to be institutionalized. The child's mother sued the agency for damages, stating that the agency's failure to remove the child from harm violated his Fourteenth Amendment rights. However, the Supreme Court found that the Amendment was designed to protect people from actions by state actors, not private parties, and ruled against the mother.

The Supreme Court did note that individual states may provide other remedies for people to sue for damages caused by the state child welfare agency. That brings up another problem, though. In some states, government entities may have immunity from lawsuits except in certain situations, such as those that impose on citizens' rights (e.g. discrimination) or action taken in bad faith. Even though the plaintiff may have a case, he or she may be barred from taking legal action due to state laws.

At the very least, many states require plaintiffs to file their complaints with the appropriate government agency first and within a certain period of time before they can take the case to court. This can extend the amount of time it takes for the case to be resolved—you have to wait for the state's answer before you can file suit—which may increase the expense associated with suing and prevent people with limited income from taking action.

Another issue you may run into is proving the agency failed to fulfill its duty to take the child from the abusive situation. You have to prove the agency knew or should have known the child was being abused and failed to take the appropriate action. However, making a determination in abuse situations is not always clear cut. There may be signs of abuse, but the agent may not have enough evidence to justify taking the child from the home. Children may refuse to cooperate or testify against parents, or other adults may interfere with the investigation and hide or destroy evidence.

It's essential that you speak to an attorney about suing your state child protective agency if you feel it failed to take the right action and a child was injured as a result. An attorney can help you fully understand the challenges associated with proving your case and come up with a strategy to overcome them. For more information about this issue, contact a personal injury lawyer such as Jack W Hanemann, P.S.