Overview of how to sue Child Protective Services if they violate your due process rights and take your children without following the proper procedure.
What laws must Child Protective Services follow?
In Tennessee and many other states, Child Protective Services has operated under the assumption that parents were not protected by Constitutional Rights provided for by the Fourth and Fourteenth Amendments of the United States Constitution. As a result, social workers often would conduct child interviews, search homes and ultimately remove children into state custody without court approval. Recently, the Federal Court of Appeals for the Sixth Circuit has held there is no social worker exception and social workers must comply with the protections of the Constitution. This means they must first obtain court approval before interviewing children and before taking children into State custody.
An exception to the court warrant process exists if a social worker can establish exigent circumstances. Exigent circumstances means there must exist an immediate threat of harm to the child. The threat must be clearly articulatable and not just a general concern for the general welfare of the child. However, this is a high burden for CPS to establish and the procedure must be closely followed and provide a hearing to the parents within 72 hours.
What can I do if my rights have been violated by CPS?
First, please consult a lawyer immediately before your children are permanently removed. You may also consider filing a claim for violations of civil rights under a law called 42 U.S.C. 1983. This law has provisions for awards of injunctions, money damages and attorney fees. Consult with a lawyer who handles civil rights claims that specifically includes experience with CPS claims.
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