Each state has its own Child Protective Services (CPS) agency in charge of ensuring children’s health and well-being. Both parents and children may experience trauma and stress as a result of CPS investigations. However, emotional distress does not entitle you to sue CPS. Because CPS social workers are government employees, they are not permitted to violate your established civil rights. An overzealous CPS employee may violate your constitutional right to due process, as well as your protection against unreasonable search and seizure. You may be able to sue for monetary damages if this occurs.
Building Your Case
1. Make a list of events in chronological order. Begin by writing down every encounter or communication you’ve had with CPS social workers and other staff members, beginning with your first.
Make a list of everyone at CPS who has contacted you or communicated with you, including their names, job titles, and direct contact information.
You also want an outline of any other activities involving your children or the reasons CPS became involved with them.
2.Collect any relevant documents and evidence. You should have already documented every interaction you had with CPS. All of these records are now admissible as evidence in your lawsuit.
Make a note of any written documents that you can no longer find. CPS should also have copies, which you can request later.
You should also gather any documents pertaining to the care of your children. If you’re homeschooling your children, for example, gather school schedules, assignments, and curricula and make copies.
3. Speak with a lawyer. Civil rights cases in federal court are notoriously difficult. If you’ve decided to sue CPS for violating your constitutional rights, you’ll need the assistance of an experienced civil rights attorney.
Because civil rights attorneys typically provide a free initial consultation, you can take advantage of this opportunity to speak with several attorneys. This can assist you in selecting the best attorney for your case.
These lawsuits can last a long time. Choose an attorney who is enthusiastic about your case and with whom you get along because you will be spending a lot of time with them and discussing potentially sensitive issues.
If you have been charged with child abuse or nefarious behaviour,
4. Determine an established right. The first obstacle you’ll face is proving that CPS violated a specific, established constitutional right while working with you and your children. This is a legal discussion. Your attorney will go over your documents and notes to figure out which of your civil rights have been violated in your situation.
This is one of the reasons why it is critical to document all of your interactions with CPS. Something that appears to be unfair to you may not necessarily constitute a constitutional violation. However, something you thought was insignificant could turn out to be a big deal.
5. Calculate your losses. You’ve probably heard of parents suing CPS for hundreds of thousands, if not millions, of dollars. The amount of money, however, must be directly related to the violation of your rights.
If you have actual damages, your attorney will begin with them. For example, if you and your spouse have been seeing a therapist as a result of the trauma of dealing with CPS, that expense may be considered actual damages.
If the actions of the CPS social workers involved in your case were particularly egregious, you may be entitled to additional damages known as punitive damages.
Initiating Your Lawsuit
1. Make a formal complaint. Complaints are rarely extremely detailed. However, a complaint in federal court alleging civil rights violations necessitates more information than a typical complaint. If the violations are not properly explained, the lawsuit may be dismissed. This is why you require the services of an experienced civil rights attorney.
When you file your complaint, you are not required to prove anything or provide any evidence. You’re just making accusations at this point.
Your lawyer will file your complaint in the federal district court with jurisdiction over the county in which the CPS agency is located. The $400 filing fee may be required of you, or it may be paid by your attorney and added to the costs of your lawsuit.
2. CPS should be served with the complaint. Once your complaint has been filed, CPS must be notified of the lawsuit so that it can respond. Typically, your attorney will serve the complaint on CPS’s attorneys of record.
3. Examine the CPS response. When CPS receives your complaint, it has a set amount of time to file an answer with the court. Your attorney will receive a copy of the written response.
Your lawyer will review the response with you. Typically, the response will deny all of the allegations and raise the qualified immunity defence.
CPS’s response could include a motion for summary judgement. This motion, like a motion to dismiss, contends that you have failed to state a claim for which the court can grant legal or monetary relief.
4. Participate in the summary judgement hearing. When you sue CPS, the agency will almost certainly assert qualified immunity as a defence. While technically a defence, if the court grants qualified immunity to the agency (and its social workers), you will be unable to sue the agency at all.
When CPS claims qualified immunity, the judge must hold a hearing to decide this question before you can proceed with the lawsuit. You will be unable to do any further work or gather information on your lawsuit until this matter is resolved.
Your attorney and CPS’s attorneys will file lengthy briefs in court arguing both sides of the issue. The judge may make a decision after reading these briefs, or he or she may hold a hearing in court.
Even if the judge denies CPS qualified immunity, you may be unable to proceed to the next stage of litigation. CPS may appeal that decision and argue to an appellate court that it is entitled to qualified immunity.
Going to Trial
1. CPS accepts written questions and requests. If the judge rules that CPS does not have qualified immunity, you will move on to the discovery phase. You will collaborate with your attorney to develop written questions and document requests that must be answered by CPS.
You will request CPS’s entire case file pertaining to your family, as well as any internal documents, including emails, pertaining to your family’s investigation.
The documents and responses to questions may reveal additional problems or violations that you were previously unaware of.
2. Depose the involved social workers. A deposition is a sworn interview. These depositions will be critical because so much of your case is based on the subjective beliefs and interpretations of the social workers involved.
You may or may not be required to appear at the deposition. Your attorney may want you to be present, or they may decide that it is best if you are not.
Whether or not you attend, your attorney will review the deposition with you afterward and explain how it affects your case.
3. Get ready for your own deposition. CPS attorneys will almost certainly want to depose you as well. Your attorney will meet with you at least once to go over potential questions and explain how to respond to deposition questions.
In general, you should answer the questions directly and honestly, but refrain from rambling or engaging in additional conversation. For example, if you are asked a yes/no question, your response would be “yes” or “no,” with no further explanation.
4. Respond to CPS inquiries. Just as you sent CPS written questions, the agency will most likely send you written questions to answer as well. After consulting with you, your attorney will draught specific responses.
Some of the questions may be objected to by your attorney. If they do, they will explain why you are not required to answer those questions.
Even if the questions are written, they are still considered under oath. Answer each question as truthfully and accurately as possible. Don’t guess if you don’t remember something.
5. Take part in pre-trial hearings. Judges typically schedule a number of hearings to ensure that the litigation remains on track and progresses as planned. You will not be required to attend many of these hearings or meetings in person. Your attorney will keep you up to date on what has occurred.
6. Consider any settlement offers. Federal court lawsuits rarely go to trial. Discovery can last months, and most litigants prefer to settle to avoid the uncertainty of trial. The judge can either encourage or preside over a settlement conference.
Any settlement offers made by CPS will be forwarded to your attorney. Your attorney will present the offer to you and advise you. Regardless of what your attorney suggests, the decision to accept or reject the settlement is entirely yours.
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