Trial Magazine

John Doe, a prospective client, tells you that he had one child, a daughter named Jane. Unfortunately, shortly after Jane was born, John was convicted on drug-related charges and spent several years in jail. During that period, Jane was living with her mother, who was abusive and dealing with alcoholism.

After Jane was hospitalized with severe facial bruising, child protective services (CPS) was called. A CPS caseworker made several home visits, but despite the continued appearance of bruises and even broken bones, did nothing else.

Tragically, Jane’s mother beat her to death at the age of two. Only recently, 10 years after Jane’s murder, has John learned about CPS’s involvement. He is now asking whether he can sue CPS.

It is a heartbreaking reality that CPS fails far too many abused children in its mission of child protection. Sometimes the child, now an adult, seeks redress for years of abuse when CPS did little more than conduct assessments. Fortunately, these children or their families may be able to recover compensation through a carefully drafted civil action.

Given the likelihood that the defendant state’s first act will be to file a motion to dismiss, the importance of a well-crafted complaint based on thorough research cannot be overstated. And it is crucial to understand the potential pitfalls when developing claims against these agencies.

Sovereign Immunity

First and foremost, you must carefully check statutes regarding claims against state agencies. Generally speaking, states (and their agencies) are immune from suit, except to the extent that the state has waived its sovereign immunity.¹ You must therefore check the relevant statutes permitting tort actions against the state and its agencies (often called “tort claims acts”).

These statutes set forth the requirements for filing tort claims against the state, often with specific statutes of limitations and caps on damages. States may also move to dismiss on grounds that the alleged negligent acts or omissions were discretionary state functions, immunizing it from liability (discussed in more detail below).²

Statute of Limitations and the ‘Discovery Rule’

Most (if not all) states have enacted statutes tolling the statute of limitations for children until some number of years after the child has reached the age of majority.³ Similarly, the “discovery rule,” often enshrined by statute, tolls the limitations period until the plaintiff learned, or reasonably should have learned, of the injury and its causal relationship to the defendant’s negligence.⁴

Children often lack awareness, until they reach adulthood, of the role CPS played in permitting the abuse to occur. Further, these children are often abused by their parents or guardians, so there is no one in their lives to bring suit on their behalf when they are still minors.⁵

Unfortunately, tort claims acts often include a limitations period for bringing claims but do not incorporate tolling provisions. At least one state has argued that, because states are immune from tort liability—except to the extent that such immunity is waived by statute—the statute of limitations period set forth in the statute must be strictly applied, leading to the absurd result that if the plaintiff were five years old at the time of the abuse, a three-year statute of limitations would have run by the time the plaintiff was eight years old.⁶

New Hampshire, for instance, has held that such a strict application of the tort claims act’s limitations period without any tolling provisions is a violation of a child’s equal protection rights.⁷ You should be prepared to press equal protection and due process arguments to rebut the state’s attempt to claim that tolling provisions do not apply to claims brought under the relevant tort claims act.⁸

When relying on the discovery rule, the complaint should specifically set forth all the facts surrounding when and how the plaintiff first learned, or reasonably could have learned, about CPS’s negligence and its causal relationship to the abuse.⁹ A conclusory statement that the client first learned of the negligence on a particular date may not be sufficient to withstand a motion to dismiss. Rather, you should question your client intently about the circumstances under which they learned about CPS’s involvement and include those detailed facts in the complaint.

Here are two examples:

In January 2024, Plaintiff Grandparent was contacted by a reporter from the local newspaper, who provided her with a document titled “Information Request Regarding the Fatality of an Abused or Neglected Child,” which detailed CPS’s history with the family. Upon reviewing this document, Plaintiff learned for the first time of CPS’s involvement with Child’s family and began the process of exercising reasonable diligence to determine that CPS’s negligence caused or contributed to Child’s death.

In July 2024, Child’s probate attorney requested a copy of Child’s CPS case file. On or about August 1, 2024, counsel received a number of documents. It was not until then, when Child was 15 years old, that Child first learned that between 2012 and 2015­—when Child was between the ages of three and six—that CPS had received extensive and repeated reports of the allegations of abuse and neglect, stretching over multiple years.

The ‘Discretionary Function’ Exception

To evade a motion to dismiss on the grounds that the alleged negligence is a “discretionary function,” spell out in the complaint CPS’s specific violations of specific statutory, regulatory, and policy provisions.¹⁰ Under the discretionary function exception, the state retains its immunity from suit for any conduct involving an “executive” or planning function with a high degree of official discretion or judgment. However, the state is not immune from liability for negligently failing to follow its own statutes, regulations, policies, standards, or established plans.¹¹

Determining whether CPS conduct falls within the discretionary function exception is not always obvious: Some states have held that CPS is exercising its discretion when making a decision whether an allegation of abuse must be followed up under the statutory scheme, while others have viewed the scope of discretion more narrowly.¹²

You must therefore research all statutory, regulatory, and policy provisions that either mandate agency conduct or proscribe agency conduct and then identify the ways in which CPS violated those provisions.

For example:

CPS Policy provides that the child should be interviewed in a private, quiet, neutral place that is free from interruptions. When the abuse has occurred in the home and the alleged perpetrator is a member of the household, prior parental notification is not advisable or required. [Citation to statute, regulation, or policy].

Had CPS acted in compliance with its own [statute, regulation, or policy] in providing a safe atmosphere for Child to confide the abuse to the investigating caseworker, CPS would have learned that Child was telling the truth about the multiple allegations of abuse and would have initiated proceedings to remove Child from the home.

Limitations on Damages

When evaluating a potential claim, consider whether and to what extent the applicable tort claims act includes any caps on damages. Some caps on damages refer to the number of incidents from which the claim arises.¹³ In those cases, it is critical to have a complete understanding of the meaning given to the term “incident.”

The complaint should set forth each and every separate incident of abuse. This is particularly important when making a claim for wrongful death. Often, the murdered child was abused on multiple occasions before the final abusive act that caused their death. Be careful to distinguish between the pre-death incidents of abuse and those incidents that caused the wrongful death. Have separate counts for the injury-causing wrongdoing and for wrongful death.

State’s Duty to the Child

States moving for dismissal have argued that CPS owed no duty to the plaintiff, particularly in cases when the child was not in the physical custody of the state.¹⁴ Most states have recognized that a statutory mandate to investigate each report of suspected child abuse creates a duty running from the state to abused children.¹⁵

To counter a motion to dismiss, lay out the statutory scheme in the complaint, including all mandates to investigate reports of abuse. Specifically allege that CPS’s conduct violated the duty of care established by statute. By avoiding conclusory statements, such as “CPS breached its duty of care to the child” without further elaboration, you can short-circuit a motion to dismiss on grounds that CPS did not owe the child any duty.

For example:

At all times relevant to the allegations contained herein, CPS, through its employees and agents, owed Child a duty to exercise reasonable care during its investigations into reports of suspected neglect and abuse regarding Child; to protect Child from unreasonable and foreseeable risks of harm; to provide for Child’s physical and emotional well-being; to promptly and thoroughly investigate allegations, instances, and indications of any foreseeable risk of sexual, physical, and/or emotional abuse; to follow, adhere to, and abide by applicable statutes and CPS’s policies, manuals, practices, and procedures to protect children from foreseeable risks of harm; and the duty to otherwise comport with basic notions of due care to avoid exposing Child to foreseeable risks of harm.

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A negligent hiring, training, and supervision claim does not arise vicariously under the doctrine of respondeat superior but directly as a separate theory of employer liability.

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Negligent Hiring, Training, and Supervision

CPS, like any other employer, has a duty to use reasonable care in hiring, training, and supervising its employers.¹⁶ This claim does not arise vicariously under the doctrine of respondeat superior but directly as a separate theory of employer liability. This is not a claim seeking to hold an employer liable for its employees’ negligence during the course of their employment.¹⁷

For example, CPS may have failed to conduct a criminal background check of its workers, or perhaps the CPS worker did not receive appropriate training regarding CPS policies or procedures. With factual support, you may want to include such a theory, but be prepared to counter an argument that CPS did not know or could not reasonably have known about the negligence.¹⁸

Breach of Fiduciary Duty

Include a claim of a breach of fiduciary duty when the underlying facts give rise to a special relationship between CPS and the child.¹⁹ Several jurisdictions have held that the relationship between CPS and the children in its care is fiduciary in nature. Significant factors have included the extent of CPS’s responsibility for the child’s direction, control, protection; where and with whom the child lives; and finances.²⁰ Pay close attention to the timing of the special relationship, as at least one court has found that CPS owes a fiduciary duty only once it is put on notice of alleged child abuse.²¹

For example:

At all times relevant: the [state] legislature and the citizens of [state] reposed confidence in [CPS] and its agents and employees to fully investigate all reports of abuse in accordance with its policies and procedures; [CPS], its agents and employees undertook to protect Child and owed Child a fiduciary duty to do so; and [CPS], by virtue of its having notice of the alleged abuse and neglect of Child, took on a special confidence binding it and its employees to act in good faith and with due regard to Child’s interests, and to thoroughly conduct its investigations to ensure that the reported abuse was addressed with consideration and due care.

This relationship gave rise to a fiduciary duty on behalf of [CPS] and its employees and agents to ensure an environment in which Child, at the very least, would be safe from neglect and/or abuse at the hands of [abuser], who was suspected of neglecting and abusing Child.

Wrongful Death

If the child died, carefully parse any pre-death injuries that did not cause the death—such as beatings preceding the final, fatal beating—and claim damages for both the pre-death injuries and for the death.²² Likewise, include loss of consortium claims where appropriate, and anticipate arguments that the consortium claim is derivative of the wrongful death claim and should therefore be dismissed if the wrongful death claim is dismissed.²³

Final Considerations

When the abused child is deceased, the probate court must appoint an estate administrator before that estate administrator may file suit. CPS often becomes involved with families after parents have undergone (or have been reported as undergoing) serious difficulties in life, with the result that the child’s nearest relative and prospective estate administrator may have a troubled past. Expect that the state will attempt to raise any shortcomings on the part of the administrator, whether those shortcomings take the form of incarceration, addiction, inadequately treated mental health problems, or otherwise.

Importantly, the reasons why CPS came to be involved in the child’s life often have little connection, whether causal or otherwise, to the cause of abuse that the child experiences while in CPS custody. Be prepared to fight to keep evidence of any life shortcomings on the part of the estate administrator out of the trial on the basis of relevance and any other helpful grounds.

Representing children who have been harmed or parents whose children have been harmed due to CPS negligence can be highly rewarding. Not only will you be obtaining damages for injured children or their estates, you’ll also shed light on the shortcomings of CPS practices and will be instrumental in improving those practices.

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Phyllis S. Schacht is a sole practitioner in Sharon, Mass., and can be reached at phyllis.schacht@yahoo.com. Kevin J. Powers is the owner of the Law Offices of Kevin J. Powers in Mansfield, Mass., and can be reached at kpowers@kevinpowerslaw.com.

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Notes

1. E.g., Petition of N.H. Div. for Children, Youth & Families, 244 A.3d 260, 262–63 (N.H. 2020) [hereinafter Petition of N.H. DCYF I] (“DCYF, as a state agency, enjoys the State’s sovereign immunity and is immune from suit in New Hampshire courts, unless a statute waives that immunity.”).
2. E.g., N.H. Rev. Stat. Ann. §541-B:19 (1985) (“Without otherwise limiting or defining the sovereign immunity of the state and its agencies, the provisions of this chapter shall not apply to: . . . . (c) Any claim based upon the exercise or performance or the failure to exercise or perform a discretionary executive or planning function or duty on the part of the state or any state agency or a state officer, employee, or official acting within the scope of his office or employment.”).
3. Many states have also enacted statutes tolling or even eliminating the limitations period in sexual abuse cases. E.g., N.H. Rev. Stat. Ann. §508:4-g (2020).
4. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366, 369 (2024); Glines v. Bruk, 664 A.2d 79, 80 (N.H. 1995). The classic case is that of a patient who discovers, years after surgery, that an instrument was left inside their body. E.g., Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 713 (Ky. 2000).
5. Petition of N.H. Div. for Children, Youth & Families, 294 A.3d 1134, 1139 (N.H. 2023) [hereinafter Petition of N.H. DCYF II].
6. Petition of N.H. DCYF I, 244 A.3d at 264 (failure to apply catch-all discovery rule to state tort claims would do violence to legislative policy limiting sovereign immunity and enacting catchall discovery rule); see also Petition of N.H. DCYF II, 294 A.3d at 1138.
7. Petition of N.H. DCYF II, 294 A.3d at 1139 (holding failure to apply tolling statute allowing suit within two years after child reached adulthood would violate equal protection because “DCYF has failed to articulate any reason—let alone an important governmental one—for foreclosing lawsuits against the State for some child plaintiffs, while allowing lawsuits for children in the same position with claims against private tortfeasors [, n]or has it articulated how such an extinguishment of rights is substantially related to an interest of the government” where statute “is designed to prevent just such an arbitrary extinguishment of rights from occurring”); Petition of N.H. DCYF I, 244 A.3d at 265 (citing Opinion of the Justices, 493 A.2d 1182, 1191 (N.H. 1985)).
8. For a broader discussion of claims on behalf of minors, including the interplay between tolling of state claims and federal claims, see Kimberly J. Winbush, Annotation, Representation of Minors and Infants Under Fed. R. Civ. P. 17(c), 27 A.L.R. Fed. 3d Art. 5 (2018).
9. Often, the client does not learn about CPS’s negligence until obtaining a copy of the relevant CPS records. It is not always easy to obtain copies of CPS records. See M.M. v. Tacoma Sch. Dist. No. 10, 2023 WL 3250677, at *1 (W.D. Wash. May 4, 2023) (denying motion to compel despite recognition of “Defendants’ unsuccessful months-long odyssey to obtain the requested [Washington DCYF] records”).
10. CPS agencies are often subject not only to extensive statutory provisions and regulatory provisions, but also to voluminous policies set forth in policy manuals, policy statements, memoranda of understanding, and other sources. See, e.g., DCF Policies and Regulations, Massachusetts Department of Children & Families, https://www.mass.gov/dcf-policies-and-regulations (last accessed Oct. 14, 2024); DCYF Policy Manual, New Hampshire Department of Health and Human Services, https://www.dhhs.nh.gov/programs-services/child-protection-juvenile-justice/dcyf-policy-manual (last accessed Oct. 14, 2024).
11. Delaney v. State, 769 A.2d 1043, 1045 (N.H. 2001).
12. E.g., Jepsen v. County of Pope, 966 N.W.2d 472, 489–91 (Minn. 2021) (carrying out legislative statutory requirements and agency policy requirements not discretionary); Stocker v. State, 264 A.3d 435, 448 (Vt. 2021) (determining whether allegation constitutes abuse or neglect not discretionary, but determining whether to accept allegation of abuse as valid discretionary); Crouch v. Gillispie, 809 S.E.2d 699, 706 (W. Va. 2018) (determining whether situation of present danger exists is discretionary).
13. E.g., N.H. Rev. Stat. Ann. §541-B:14(I) (2018) (“All claims arising out of any single incident against any agency for damages in tort actions shall be limited to an award not to exceed $475,000 per claimant and $3,750,000 per any single incident . . . ”); Md. Code Regs. 25.02.02.02 D(1) (2000) (“Subject to §D(2) of this regulation, $200,000 per claimant for all injury, loss, and damage to person and property arising from a single incident”).
14. E.g., Rees v. State, Dep’t of Health and Welfare, 137 P.3d 397, 402–03 (Idaho 2006); Horridge v. St. Mary’s County Dep’t of Soc. Servs, 854 A.2d 1232, 1243 (Md. 2004).
15. Kaho’ohanohano v. Dep’t of Human Servs., 178 P.3d 538, 566–67 (Haw. 2008); Rees, 137 P.3d at 406; Horridge, 854 A.2d at 1243; Susan Lynn Abbott, Note, Liability of the State and Its Employees for the Negligent Investigation of Child Abuse Reports, 10 Alaska L. Rev. 401, 405 (1993) (“ . . . most state courts have held that state child abuse statutes create a special relationship between the State and a child who is the subject of a child abuse report. This special relationship gives rise to a duty of protection owed by the State to the abused child.”).
16. See, Exeter Hosp. v. New Hampshire Ins. Guar. Assn, 158 N.H. 400, 405-406 (2009)(claims for negligent employment or supervision are not based on vicarious liability but rather on an independent theory of employer liability).
17. El Koussa v. Attorney Gen., 188 N.E.3d 510, 520–21 (Mass. 2022); Lev v. Beverly Enters.-Mass., 457 Mass. 234, 238 (Mass. 2010); Exeter Hosp., Inc. v. New Hampshire Ins. Guar. Ass’n, 956 A.2d 1159, 1163–64 (N.H. 2009).
18. G.J.C., Annotation, Employment of Incompetent, Inexperienced, or Negligent Employee as Independent Ground Negligence Toward One Other Than an Employee, 8 A.L.R. 574 (1920 & Supp. 2024).
19. “A fiduciary relationship . . . exists wherever influence has been acquired and abused or confidence has been reposed and betrayed.” Schneider v. Plymouth State Coll., 722 A.2d 101, 105 (N.H. 1999) (internal quotation omitted). For examples of cases in which underlying complaints alleged breach of fiduciary duty, see, e.g., Petition of N.H. DCYF I, 244 A.3d. at 262; Sheila S. v. Commonwealth, 783 N.E. 868, 871 (Mass. App. Ct. 2003).
20. The Alaska Supreme Court has held that the relationship between [the Alaska Office of Children’s Services] and children in its legal custody . . . is a fiduciary relationship for purposes of . . . the ‘breach of trust or fiduciary duty’ exception to the [Alaska] statute of repose” because “OCS’s duties . . . include nearly all aspects of the child’s direction, control, and protection, from ‘where and with whom the child shall live’ to ‘decisions of financial significance concerning the child.’” Dapo v. State, 454 P.3d 171, 179–80 (Alaska 2019) (quoting Alaska Stat. §47.10.084(a)). See also Kane v. Chester Cnty. Dep’t of Children, Youth & Families, 10 F. Supp. 3d 671, 693–94 (E.D. Penn. 2014) (“[u]nder Pennsylvania law, the relationship between a minor foster child and an agency caring for foster children is a fiduciary relationship where one party is bound to act for the benefit of another” and “the conduct which plaintiff has alleged—failing to protect the minors from abuse—if proved, constitutes a breach of defendants’ fiduciary duties”) (applying Pennsylvania law); S.B. v. City of Philadelphia, 2007 WL 3010528, at *3 (E.D. Penn. Oct. 12, 2007) (allegation “that [plaintiff’s] daughter was at the mercy of defendants to place her in [a] safe home . . . easily satisfies the [Pennsylvania] standard for creating a fiduciary relationship”) (applying Pennsylvania law); In re Leah S., 898 A.2d 855, 861 (Conn. 2006) (“[i]n seeking and accepting the child’s charge, the commissioner [of children and families] acted as a fiduciary to the family and for the state”), rev’d on unrelated grounds, 935 A.2d 1021 (Conn. 2007).
21. Atkocaitis v. N.H. Dep’t of Health & Human Servs., No. 217-2023-CV-00052 (N.H. Super. Ct., Jan. 3, 2024).
22. See, e.g., Willott v. State, No. 216-2018-CV-00605 (N.H. Super. Ct., July 14, 2021).
23. Id.