Can I sue Child Protective Services


 *Updated in September 2019

We hear this question all the time. In these inquiries, Child Protective Services, known as CPS on Long Island and ACS in New York City, has done something that a parent feels violated their rights or invaded their privacy. Almost always, the answer I give them is “no, these government agencies have legal immunity as long as they are acting in good faith”. But in a case from Arizona which lasted approximately ten years and involved three children who were ages 1 ½, 4 and 5 when the case began, a Federal court allowed the parents to bring a lawsuit.

What exactly happened?

In 2008, a couple took some innocent photos of their three daughters playing in a bathtub together. They were not meant for public consumption and were not posted on the internet. Harmless enough, right? Not so fast! The parents took the photos to Walmart to be developed, and from there the parent’s nightmare began. The Walmart employee flagged the photos and called the police. The police obtained a search warrant and raided their home, and their computers and seized their cell phones. Social workers were contacted, and launched a full blown investigation. The children were put through medical examinations for signs of sexual abuse, the parents were put through psychological evaluations, and the children were placed in emergency protective custody for an entire month (away from their parents) without either a court order or a warrant. Ultimately, the medical examinations came back negative for sexual abuse, and no evidence was ever found on the parent’s computers or phones. When the photos were brought before a judge, he deemed them to be harmless. The parents were never charged with a crime, and Child Protective Services declined to bring neglect or abuse proceedings against them.

The parents then sued Child Protective Services in Federal court, as well as two social workers, a police detective, Walmart, the state attorney general and the town, arguing that they were put through this entire ordeal for no good reason. The lower court dismissed the action, holding that the social workers were entitled to qualified immunity, in that they were protected from liability arising from their professional duties. The Appellate Court, however, reversed this decision, arguing that since the social workers did not have reasonable cause to believe that the children were at risk of harm, they acted unconstitutionally in taking the children away from their parents without judicial authorization.

What is the take away from this case?

Caseworkers no doubt have difficult jobs, and are often overworked and underpaid. When it comes to allegations of sexual abuse, they will often err on the side of caution. However, when they make grievous errors in judgment that severely harm parents and children, the protections given to them in their professional capacity are not unlimited, and are, ultimately, accountable. Obviously, prosecuting such a case against a government agency will involve a great deal of time and money, as the parents in this case had been litigating their case for approximately 10 years. Most parents will not want to go through such time and expense. However, it is good to know that parents do have a legal recourse, particularly when the system goes too far, their constitutional rights have been violated, and their children have been seriously harmed without just cause.

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