Can I Sue DSS for foster care abuse?
I have represented hundreds of clients with DSS abuse and neglect allegations. Clients almost never have a positive experience with the Department of Social Services. That is understandable. A government agency has come into their home and either threatened to remove or has removed their children. And, this is a traumatic experience for the children, parents, and other family members to have the family separated in this way. Sometimes, there are valid reasons for DSS involvement in a family. And DSS has a difficult job of working to preserve family bonds, provide necessary services to these families, and protect the children in their care, sometimes they just don’t do a good job.
Many clients ask me if they can sue DSS for the interference in their lives. Typically, a governmental agency is immune from most actions. That means they cannot be sued in most cases. So, the removal of your children is not necessarily a reason DSS can be sued. The South Carolina Tort Claims Act, S.C. Code § 15-78-60(25), permits lawsuits for gross negligence committed by a state agency.
The most common way for people to recover from DSS is for injuries or abuse to children while they are in foster care. Children can be injured in foster care in a number of ways: they may be assaulted physically or sexually, raped by adults or other children in the home, having food withheld, having to live in unsafe and unsanitary living conditions, neglect of appropriate medical treatment, care, or medications, neglect of emotional or mental healthcare, not being seen regularly by their caseworkers who have excessive caseloads, cruel or unusual punishment or discipline by foster parents, or even death.
Abuse in foster care can be physical, mental, social, or emotional. A child may suffer physical injuries like broken bones, brain trauma, cuts, bruising, and internal organ damage. They may have mental injuries, including anxiety, a decline in school performance, avoidance of social situations, and other harm.
What is Gross Negligence?
"Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do." Etheredge v. Richland Sch. Dist. One, 341 S.C. 307, 310, 534 S.E.2d 275, 277 (2000) (citing Clyburn v. Sumter Cnty. Dist. Seventeen, 317 S.C. 50, 451 S.E.2d 885 (1994); Richardson v. Hambright, 296 S.C. 504, 374 5.E.2d 296 (1988)). In other words, "[i]t is the failure to exercise slight care." Id. at 310, 534 S.E.2d at 277 (citation omitted). "Gross negligence has also been defined as a relative term, and means the absence of care that is necessary under the circumstances." Id. (citing Hollins v. Richiand Cnty. Sch. Dist. One, 310 s.c. 486, 427 S.E.2d 654 (1993)). Normally, the question of what activity constitutes gross negligence is a mixed question of law and fact. Id. However, "when the evidence supports but one reasonable inference, the question becomes a matter of law for the court." Id. (citation omitted). Bass v. S.C. Department of Social Services, 414 S.C. 558, 2015).