CPS wrongfully took my child in Virginia. Can I sue CPS?
0January 3, 2025 by Tom Roberts, Esq.
Can I sue Virginia Child Protective Services for wrongfully taking my child from me?
You may be able to sue the person(s) responsible, but probably cannot sue the agency – Child Protective Services. Sue CPS Worker for removing my child improperly.
Child Protective Services is probably not the right party for 2 reasons: (1) CPS is "non sui juris"—that is, they lack the legal capacity to be sued; and (2) under 42 USC § 1983 there is no respondeat superior liability.
(1) Child Protective Services may not be a proper party to be sued. As one federal court explained:
The Agencies have moved to dismiss the claims against them on the ground that they are non sui juris—that is, they lack the legal capacity to be sued. See Black’s Law Dictionary 1158 (9th ed. 2009). Under Fed. R. Civ. P. 17(b)(3), “[c]apacity to sue or be sued is determined … by the law of the state where the Court is located.” The Agencies contend that “under Virginia law … agencies of a locality cannot be sued.” Agencies’ Mem. Supp. Mot. Dismiss (“Agencies’ Mot. Dismiss”) (citing Davis v. City of Portsmouth, 579 F. Supp. 1205, 1210 (E.D. Va. 1983), aff’d, 742 F.2d 1448 (4th Cir. 1984) (dismissing Planning Commission of City of Portsmouth because it had “not been given the capacity to be sued by either state or local mandate”)
Mercer v. Fairfax Cnty. Protective Servs., 2015 U.S. Dist. LEXIS 113019, *7-8
The Court is … unaware of any statute authorizing suit against [CPS]. Accordingly, [CPS does] not have the capacity to be sued and [the] claims against [CPS] will be dismissed with prejudice
Mercer v. Fairfax Cnty. Protective Servs., 2015 U.S. Dist. LEXIS 113019, *8-9
(2) Absent a pattern or practice, the municipality or county is not a proper defendant as there is no respondeat superior liability under 42 USC § 1983.
Suing the Child Protective Service (CPS) worker!
§ 63.2-1517. Authority to take child into custody.
But what are the damages?
The plaintiff has the burden to prove damages sufficient for the jury or fact finder to assess them.
If you or the child requires medical treatment or mental health treatment as a result of the wrongful actions of the CPS worker, that is a good place to start on showing damages. HOWEVER, this often requires expensive expert witnesses at trial.
Are you willing to pay legal fees and costs to vindicate your rights or to seek compensation for the damages?
Litigation is expensive. Many people assume that since their right was violated they have a right to have an attorney represent them — that is a myth. If an attorney agrees to take the case on a contingency basis, then you would only be responsible for the costs of the litigation, and the attorney is paid from the proceeds if the case is won. More often then not however most law firms will not take these cases on a contingency basis — and if you are not willing to pay legal fees, then your rights are not vindicated and you may not be compensated for your damages.
Thomas H Roberts & Associates, PC
105 S 1st St
Richmond, VA 23219
804-783-2000
Disclaimer
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Category Civil Rights, Due Process, Fourth Amendment, General, Litigation | Tags: Child Protective Services, child removed by CPS, civil rights and CPS, CPS, sue Child Protective Services, Sue CPS
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