This case shows how hard it is to sue child protective agencies for constitutional violations

This is one of those difficult cases that arises from child neglect proceeding and false charges against a parent who then brings a lawsuit against a city agency for damages over the trauma of being separated from their children.

The case is Dabah v. Franklin, a summary order issued on May 22. Plaintiff fathered two children from a prior marriage and his former wife was awarded custody of the children, though plaintiff saw the children every other weekend and on holidays and other occasions. The New York City Administration for Children's Services next investigated plaintiff over allegations that he had abused his children. Plaintiff says his former wife instigated the charges, which temporarily led to loss of plaintiff''s custody over his children. The charges were ultimately dismissed in plaintiff's favor. Can plaintiff sue over this? 

Civil rights lawyers will get phone calls over cases like this from time to time. These cases are emotional and difficult because child protective workers enjoy certain immunities from suit if they investigate in good faith. This case was dismissed on a Rule 12 motion, so the court held that plaintiff's allegations, even if true, were not enough for a lawsuit. 

As for the substantive due process claim alleging the loss of custody during the investigation was outrageous enough to violate the Fourteenth Amendment. This claim fails because the loss of custody happened after Family Court issued an order permitting such removal based on ACS's claim that his two children gave separate statements to a case worker and therapist reporting that he used corporal punishment on them. While the lawsuit says these statements were false, there is no claim that ACS fabricated the statements. Under the Iqbal pleading requirements, any falsehood claim is conclusory and cannot survive a Rule 12 motion.

Plaintiff also has a procedural due process claim. That claim fails because the defendants get qualified immunity, a defense enjoyed by public workers in constitutional claims when the court decides they acted in good faith or they did not violate clearly-established law in moving against the plaintiff. Plaintiff wanted a hearing prior to the termination of his custody over his children, but there is no case that entitled him to such a hearing. Nor is there any case that entitled him to a prompt post-termination hearing. 

Do you see how difficult it is to maintain such a case. Not that all such cases fail. But the laws regulating the child protective services world have built-in protections for case workers and investigators. More broadly, Section 1983 cases always run into a qualified immunity defense. That defense does not always succeed, but plaintiffs need to cite a case that is close enough on point that the court will be satisfied that the defendants knowingly violated the law.