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Suing Child Protective Services
When A Child Starves To Death
If at some point a lawsuit is brought against the department of
human services/CPS in connection with that death, compassionate,
yet experienced plaintiff and defense attorneys, familiar with the
inner workings of CPS, will definitely be needed.
By Daniel Pollack | July 22, 2021at 10:30 AM
The agonizing headlines grab our attention:
Four years after teen's starvation death, report says DHS failed to heed earliest
reports of abuse
Authorities visited starving Southwest Washington teen days before death
Report faults DCF, schools in death of 14-year-old boy with autism
According to the United States Department of Agriculture, Economic Research
Service, in 2019, 10.5% of all U.S. households were food insecure; 4.1%, or 5.3
million people, had “very low food security – normal eating patterns of one or
more household members were disrupted and food intake was reduced at times
during the year because they had insufficient money or other resources for food.”
A child can starve to death over a prolonged period of time even when Child
Protective Services (CPS) and other authorities are involved, either sporadically or
continuously. This is because the child will likely, at least occasionally, be
provided food by its caregiver. For this reason, evidence of a child starving may
not be obvious. Depending on the exact circumstances, stored energy and nutrients
sufficient to meet the body’s needs can fend off starvation for weeks or even
months. Eventually, those reserves are exhausted and crucial kidney, liver, and
heart functions collapse.
Who is legally responsible for the child’s death? Whether applied to a criminal or
civil case, there will be a dispute regarding whether the caregiver intentionally
withheld sustenance or whether the child’s death was the result of neglect. On the
civil side, plaintiffs will assert that systemic failures in policy, practice,
supervision, and training were telltale signs of negligence, recklessness, and/or
indifference. These assertions may be accompanied by allegations that the
department of human services/CPS denied medically necessary treatment despite
knowing or being on notice of the child’s frail state.
Defendants will likely try to point to the paucity of evidence that it engaged in any
constitutional violations or otherwise illegal conduct and are therefore entitled to
qualified immunity. If the lawsuit is filed in federal court, under federal qualified
immunity, "government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73
L. Ed. 2d 396 (1982). "Qualified immunity also balances two important interests --
the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably." Pearson v. Callahan, 555
U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009).
Depending on the nature of the involvement of CPS, numerous questions must be
asked. Among them:
● Exactly what was the reason for the involvement of CPS initially? Did it
involve abuse or neglect or both?
● Was abuse or neglect previously substantiated?
● Were law enforcement or other agencies involved? What were the reasons
for their involvement regarding the family and child?
● What was the mental health status of the caregivers?
● What were the financial circumstances under which the child was living?
● Were department/CPS scheduled visits made in a timely way? During those
visits, was the child seen?
● Were regular medical visits scheduled and kept?
● Did the child have a history of malnutrition or dehydration? Did it have
other health issues that would cause it to fail to thrive?
CPS workers have stressful and demanding jobs. They are constantly being
accused of removing a child too soon or too late. And so, it’s hard to say what “err
on the side of caution” sometimes means. When a child dies of starvation, it is
understandable that the immediate focus is on grieving and emotional loss. If at
some point a lawsuit is brought against the department of human services/CPS in
connection with that death, compassionate, yet experienced plaintiff and defense
attorneys, familiar with the inner workings of CPS, will definitely be needed.
Daniel Pollack is an attorney and professor at Yeshiva University’s School of
Social Work in New York City. Contact: firstname.lastname@example.org; 646-592-6836.