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Questions


The information below was taken from findlaw.com.  There is a wealth of information at this site, so one may want to check it out?

Questions from Findlaw

Can You Sue Child Protective Services for Emotional Distress?
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By George Khoury, Esq. on March 8, 2017 10:15 AM

Original Link: http://blogs.findlaw.com/injured/2017/03/can-you-sue-child-protective-services-for-emotional-distress.html

If you've ever been visited by Child Protective Services, you know just how stressful and distressing it can feel. Even the best of parents can get frazzled when someone with the legal authority to take aware their kids is present.

Unfortunately, unless your civil rights are violated, you likely won't have any legal claim against Child Protective Services stemming from the agency's, or its representatives', routine actions. So, you likely won't be able to sue for emotional distress*. However, when civil rights are violated, individuals can sue CPS, and these claims can be costly for cities*.

When Is There a Civil Rights Violation?

When a CPS worker comes to your door to perform their job and investigate a complaint, it does not automatically create a civil rights violation, no matter how distressing the situation may be for you. In fact, if a CPS worker, in good faith, believes that there is a danger of immediate harm to your child, your child can be removed immediately without a court order. And this is still not a civil rights violation, even if they are later proven to have been mistaken, it's their belief at the time that matters most.

Unfortunately, CPS will often coerce investigation suspects into providing information or drug test* via the threat of taking their children away, which again, likely does not rise to the level of a civil rights violation.

What If CPS Crosses the Line?

If CPS crosses the line into violating your civil rights, then legal relief may be available to you. This can occur when overzealous or untrained social workers investigate a case without adhering to the constitutional rights of individuals, particularly those dealing with due process and search and seizure. Under 42 USC 1983, every person has the right to be free from constitutional violations caused by government actors.

For instance, if a child is removed without there being any basis for a worker's good faith belief that the child is in immediate danger, then that could be a due process violation under section 1983. However, parents are cautioned to hire an attorney to analyze these types of claims, as a parent's emotions may prevent them from being able to see the forest through the trees (as they say). These claims are incredibly complex, specifically because they deal with a CPS worker's own subjective view of a situation.

Finally, if a parent believes that Child Protective Services acted with discriminatory animus because of the parent or child's race, national origin, gender, or other protected class, there may be other civil rights violations to sue under.


So When Can You Sue for Emotional Distress?

By Admin on May 29, 2012 5:59 AM

Emotional distress is a legal term many people know from daytime court shows and network dramas. It's a word that has become ingrained into our society, but at the same time how it works is very misunderstood. Especially when it comes to suing for it.

Turn on any episode of "Judge Judy" and you'll likely see litigants claiming emotional distress as part of their damages. It doesn't matter what their injuries are, they always request it.

But emotional distress damages are actually only awarded in very specific situations.

Typically, emotional distress is given when a person suffers physical or mental harm. The conduct leading to the emotional injury can be caused accidentally or intentionally.

In the case of physical harm, emotional distress is generally easier to win. That's because the law usually views emotional distress as accompanying most physical injuries. For instance, if someone punches you in the face and robs you, emotional distress can usually be given because of the trauma you endured.

On the other hand, when your harm is only emotional, recovery in such situations is much more difficult. Lawsuits under these circumstances are for "intentional infliction of emotional distress*." The reason it's more difficult is because you have to prove the defendant's actions were both extreme and outrageous and caused you to suffer some sort of physical harm.

Extreme and outrageous conduct is anything that would be considered unacceptable civilized behavior. A typical example is someone threatening to kill you or your loved one.

Physical harm is actually the trickier part of the equation. That's because a successful emotional distress lawsuit requires plaintiffs to show that a defendant's conduct caused some sort of bodily injury to manifest.

For instance, let's say someone threatened to break all your bones and showed you the hammer they were going to use to do it. That's pretty extreme and outrageous behavior. But if you went about your day fine afterward, you probably wouldn't be able to get emotional distress damages.

But if that same action caused you so much stress that you miscarried your baby, then you probably would be able to recover for emotional distress. That's because in this situation, you actually suffered physical harm.

There are other ways to successfully sue for emotional distress. But it can get pretty complicated from a legal perspective. In those situations, sometimes talking to a lawyer is best.


 Parents get $800K settlement after county officials remove their children without a warrant

by Frank Stoltze

February 03 2015

Original Link: http://www.scpr.org/news/2015/02/03/49639/parents-get-800k-settlement-after-county-officials/

LA County agrees to pay $800,000 to parents of kids who were removed from home.LA County agrees to pay $800,000 to parents of kids who were removed from home. via Wikimedia Commons

The Los Angeles County Board of Supervisors Tuesday agreed to pay $800,000 to the parents of two children taken from their home by a Sheriff’s deputy and social workers.

The payment settles a civil rights lawsuit that claimed the children were wrongfully removed from the parent’s San Gabriel Valley residence four years ago. The children were returned four months later.

In their lawsuit, Sebastian Xoss and Mirtha Lopez accused the county of the “baseless, unreasonable, and unlawful” removal of their 6-year-old daughter and 8-year-old son from the hotel where they were staying on Feb. 10, 2011. They had gone to the hotel in part to escape suspected abuse of the daughter by a relative of Lopez, according to the lawsuit.

Social workers with the Department of Children and Family Services claimed the parents “created a detrimental and endangering home environment” for the children by failing to provide nourishing food and immunizations, the lawsuit states. They also accused Xoss of having untreated mental health issues that were a danger to the children.

A deputy from the Sheriff’s Department’s Special Victims Bureau and social workers were responding to a report of abuse, according to a case summary prepared by the county counsel. It is unclear who filed the report.

But the parents said the allegations were fabricated and that they were raising their children “in a loving, emotionally, academically, and financially supportive, intact nuclear family.”

In their lawsuit, the parents accused the deputy and social worker of entering their hotel without a search warrant or “exigent circumstances” showing the children were in danger. The lawsuit describes the deputy mocking the parents for not immunizing their children based on religious beliefs and homeschooling them. It accuses him of coercing the parents into a search of their hotel room.

“You could lose your kids forever,” he allegedly threatened.

“We don’t comment on litigated matters,” said Neil Zanville, a spokesman for the Department of Children and Family Services. A spokesperson for the Sheriff’s Department did not return calls for comment.

“No employee misconduct was suspected and no systemic issues were identified,” the county counsel’s case summary said. At the same time, it said the Sheriff’s Department intends to issue a newsletter “designed to educate members of the necessity to obtain a warrant where insufficient exigency exists for warrantless action.”

Asked about the size of the settlement, Senior Assistant County Counsel Patrick Wu said the county anticipated large attorney’s fees if it lost the lawsuit. “If you have a civil rights issue, under federal law you can ask for attorneys fees,” he said.

The payout comes amid increased scrutiny of how the county handles children who are in danger of being abused by parents. A blue ribbon commission was formed after the death of Gabriel Fernandez in Palmdale. The 8-year-old allegedly died at the hands of his mother and her boyfriend. Relatives have accused government workers of not doing enough to protect the child.

The commission has made a series of recommendations, including the creation of a Child Protection czar. The Board of Supervisors has yet to hire one, nearly a year after the recommendation.


Can You Refuse a CPS Drug Test?

By George Khoury, Esq. on October 27, 2016 2:57 PM

When Child Protective Services knocks on your door, many parents are so confused that they may make some poor decisions or give some suspicious answers without even realizing it. CPS investigators are trained in working with confused, worried parents. If they observe certain behaviors or things around the house, they may ask a parent to take a drug test.

When CPS asks you to take a drug test, many parents assume they must comply. This is simply not the case. Just like any law enforcement officer, unless you consent, a CPS investigator would need a warrant to force you to submit to a drug test. In order to get that warrant, they need probable cause. Although you do not need to comply/consent, oftentimes doing so is the path of least resistance, or it may be a condition to get custody back. While you can refuse, doing so may have other consequences.

Comply or Cry

Frequently, CPS shows up because they receive an anonymous report that they must investigate. If they don’t find any evidence to substantiate the report, typically, that will be the end of it. Because CPS has a position of power over parents, many parents believe that not complying with a CPS request for a drug test will automatically lead to their children being taken away.

Sometimes parents believe that by taking the drug test, the investigation will end. However, none of this holds true in every situation. If there are other issues being investigated, a drug test may just be one piece of evidence, and one that may not even be needed. Unless there is a court order, refusing to take a drug test will be viewed in the context of your case, and negative implications can be drawn from the refusal.

When CPS Can Drug Test

Generally, CPS can drug test only when they have consent, or a court order. CPS will often require parents who have had their children taken away to pass drug tests in order to get their children back. Some agencies will have parents sign an agreement stating that they will comply with CPS’s rules and conditions, and will include random drug tests, as a condition to get their children back.

While a parent may still refuse to take the CPS drug test, CPS can then refuse to return their children. In essence, CPS is still getting the consent of the parents before administering a drug test, but that consent may feel rather forced from the parent’s perspective. For CPS to get a court order, they generally will need to involve law enforcement. If law enforcement is involved in a CPS investigation, you should be concerned about potential criminal charges, and should contact a criminal defense attorney.


 Intentional Infliction of Emotional Distress

Original Link: http://injury.findlaw.com/torts-and-personal-injuries/intentional-infliction-of-emotional-distress.html

In general, the tort of intentional infliction of emotional distress involves some kind of conduct that is so terrible that it causes severe emotional trauma in the victim. In such cases, the victim can recover damages from the person causing the emotional distress.

Not all offensive conduct qualifies as intentional infliction of emotional distress, however. People in society must necessarily deal with a certain level of rude or offensive conduct. When the conduct rises to a truly reprehensible level, though, recovery for the resulting emotional trauma becomes available.

Elements

While some states' specific rules for intentional infliction differ, the following elements are fairly common:

If the situation satisfies all of the elements above, the person behaving in the extreme and outrageous manner is liable for both the severe emotional distress and the bodily harm that results from the stress (a miscarriage, for example).

In addition, parties may sometimes recover for emotional distress under circumstances where the extreme and outrageous conduct wasn't even directed at them. Typically, this kind of claim involves extreme or outrageous conduct towards the claimant's family member while in the claimant's presence. This type of claim varies even more widely between the states than the basic intentional infliction tort, but here are some of the general elements of the injury:

Extreme and Outrageous Conduct

Clearly, one of the most important issues in any claim for intentional infliction of emotional distress is defining what exactly constitutes extreme and outrageous conduct. Without extreme and outrageous conduct, the injured party can't make a claim for intentional infliction even if the actor behaved with malice and/or harmful intent.

Extreme and outrageous conduct goes beyond merely the malicious, harmful or offensive. People must have a certain level of thick skin and possess the ability to weather ordinary rude or obnoxious behavior.

In order to rise to the level of extreme and outrageous, the conduct must exceed all possible bounds of decency. Normal insults or rudeness don't normally qualify as extreme and outrageous conduct, although they can rise to that level if there is some kind of special relationship between the parties.

In addition, ordinary insults or actions can constitute extreme and outrageous behavior if the actor knows that the victim is particularly susceptible to emotional distress because of some physical or mental condition or abnormality. For example, if Adam knows that Barbara is intensely claustrophobic and intentionally locks her in a closet to scare her, she could possibly recover for intentional infliction of emotional distress.

Exercising a legal right can never amount to intentional infliction of emotional distress, however even if the behavior does cause some severe emotional trauma. If a landlord properly initiates eviction proceedings against a sick and destitute widow who has not paid rent in a year, his actions won't constitute intentional infliction of emotional distress even if the widow does in fact suffer an extreme emotional reaction. Since the landlord was only exercising his legal rights, his behavior is most likely privileged.

In the end, a jury makes the final decision on whether the conduct in question rises to the level of extreme and outrageous.

Intent/Recklessness

In addition to acting in an extreme an outrageous manner, the actor must act with iintent or recklessness. In other words, the actor must intend to cause severe emotional distress or know that severe emotional distress is likely to occur. The actor can also become liable for intentional infliction if they behave with deliberate disregard to the high possibility that severe emotional distress will occur.

For example, if someone receives a text message from their significant other while at a friend's house, becomes angry, and smashes the urn containing their friend's mother's ashes, the friend could possibly win an intentional infliction lawsuit under the theory of reckless disregard.

Severe Emotional Distress

Emotional distress can take many forms. Many unpleasant emotions qualify as emotional distress, including embarrassment, shame, fright and grief.

In order to satisfy the elements of an intentional infliction claim, however, the emotional distress in response to extreme and outrageous behavior must reach a "severe" level. The exact definition of severe emotional distress is vague, and plaintiffs must prove to a jury that the emotional distress they experienced reached a sufficient level of severity to justify an award for intentional infliction.

Some guidelines do exist to help determine whether an emotional disturbance constitutes severe emotional distress. When extreme and outrageous conduct causes suffering such that no reasonable person should have to endure it, a jury will likely hold that the experience reached the level of severe emotional distress.

The intensity and duration of the emotional distress also contribute to its severity. The longer the emotional disturbance continues, the more likely it is to constitute severe emotional distress.

A plaintiff must use evidence to demonstrate their emotional distress to a jury. For example, a plaintiff can use persistent anxiety and paranoia resulting from a Halloween prank gone bad to show that they suffered extreme emotional distress as a result of the conduct.

Sometimes the very nature of the conduct in question will suffice to demonstrate that the victim suffered severe emotional distress. If behavior is particularly disturbing, the plaintiff may not have to offer much evidence to support their claims; the behavior itself is so reprehensible that the emotional distress is almost assumed.

Bodily harm also acts as an indicator that severe emotional distress has occurred. Ulcers or headaches, for example, can show that the plaintiff has experienced severe emotional distress that has revealed itself through these physical symptoms.

 


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