The difficulty of bringing tort claims against the Department of Social Services

On December 2, 2015, the South Carolina Supreme Court reversed this Court of Appeals decision in Bass v. SCDSS For further analysis of the Supreme Court opinion: It just became a little easier (although still not very easy) to sue DSS in tort.

Last week a colleague of mine told me a story of attending a Charleston Riverdogs (the local minor league baseball team) game in which a staff attorney for the abuse and neglect section of the Charleston County Department of Social Services was throwing out the first pitch.  The announcer stated the honoree’s profession, whereupon the crowd loudly booed.  Neither of us can recall a first-pitch thrower having been booed before but neither of us were surprised this attorney was.  Folks simply–and for good reason–don’t like DSS.

Many if not most of the children that DSS removes from their caregivers are removed for good reason.  Yet even those caregivers are unlikely to feel warmly towards the agency that removed their children.  However, there’s a small subset of folks who find their family in DSS’s clutches without good cause and they tend to hate DSS–for very good reason–the most.

Occasionally folks call me wanting to know if I can help them “sue DSS.”  Typically they’ve found my website, see that I’ve written and lectured on defending parents in abuse and neglect proceedings, and assume I’m the right attorney to handle their tort claim.  For two reasons, I always turn them down–without even bothering to determine whether DSS interfered with their family without good cause.

My first reason for turning them down is that I don’t want to develop a practice area of suing DSS in tort.  The DSS staff attorneys are my opposing counsel in abuse and neglect proceedings and, even if we work for clients in conflict, it helps to have a good working relationship with the attorneys you oppose on a regular basis. Good will and trust with opposing attorneys helps smooth out procedural issues and makes it easier to resolve substantive issues.  Start suing DSS and it’s much harder for their staff attorneys to work with you.

My bigger reason for not handling tort claims against DSS is that it’s so hard to win, as the February 27, 2013 Court of Appeals opinion in Bass v. DSS, 403 S.C. 184, 742 S.E.2d 667 (Ct.App. 2013), demonstrates.  In Bass, DSS removed the Basses’ children as part of a safety plan when two of their children showed up at the emergency room having potentially been poisoned.  The Basses actually signed the safety plan that placed their children with a relative.  Subsequent investigation uncovered that a pharmacy had filled the children’s prescription at over one thousand times the prescribed strength.  When this was discovered the children were returned eight days after the removal.

The Basses sued the pharmacy, the pharmacist, and DSS and settled the claims against the other defendants.  To prevail in this lawsuit the Basses needed to prove “gross negligence.” Under the South Carolina Tort Claims Act, “[t]he governmental entity is not liable for a loss resulting from . . . responsibility or duty . . . except when the responsibility or duty is exercised in a grossly negligent manner.” S.C. Code Ann. § 15-78-60(25) (2005). Gross negligence is proved by demonstrating the “intentional conscious failure to do something which is incumbent upon one to do or the doing of a thing intentionally that one ought not to do,” or “the failure of slight care.” Jinks v. Richland Cnty., 355 S.C. 341, 345, 585 S.E.2d 281, 283 (2003).  At trial the jury returned a verdict against DSS on the Basses’ claims of gross negligence and intentional infliction of emotional distress for $4,000,000–as indicated above, folks really hate DSS.   The judge reduced the verdict to $600,000–the statutory cap under the South Carolina Tort Claims Act–but refused to direct a verdict for DSS.

The Court of Appeals reversed, finding that the Basses had failed to provide any evidence of gross negligence.  The Court reasoned (I believe correctly):

Based on the evidence in the record, we hold the trial court erred in denying DSS’s motion for a JNOV [judgment notwithstanding the verdict] on the Basses’ gross negligence cause of action. Initially, the  record indicates Parish [the DSS caseworker] responded to the hospital within forty-five minutes of the reported parental poisoning. Parish testified the children were classified as a medium danger rating, allowing Parish merely twenty-four hours to conduct her investigation, pursuant to DSS policy. We find this time constraint, which has been specifically recognized by our supreme court, to be particularly important in our determination. See Spartanburg Cnty. Dep’t of Soc. Servs. v. Little, 309 S.C. 122, 125, 420 S.E.2d 499, 501 (1992) (declining to award attorney’s fees against DSS in a child abuse and neglect case because “DSS often must act quickly and without thorough investigation to remove children who may have been abused or neglected from potentially dangerous situations”). In that time, Parish interviewed family members and learned the children became sick after Mrs. Bass administered  their medicine. Parish also obtained the Basses’ consent to have the children’s medical information released to DSS. Although it was ultimately inconclusive, Parish further obtained the children’s toxicology report. While far from perfect, there is no evidence in the record indicating DSS failed to exercise slight care.

Finding that there was insufficient evidence to find gross negligence, the Court of Appeals also determined the Basses had failed to prove “reckless” conduct sufficient to sustain the intentional infliction of emotional distress claim, as “[r]ecklessness is a higher degree of negligence than gross negligence.”

Assuming the Court of Appeals recitation of the facts did not neglect facts helpful to the Basses, it’s hard to see this as even a close case.  Two siblings in the emergency room with similar poisoning would raise concerns with most investigators and taking eight days from unraveling the facts to returning the children is actually quite speedy by state agency standards.  Given the requirement of proving gross negligence to prevail, it is somewhat surprising the Basses even brought this claim.

That a typically conservative South Carolina jury awarded these parents $4,000,000 for the eight-day removal of their children is indicative of the antipathy the public has towards DSS.  Yet that doesn’t make it any easier to prove the gross negligence necessary to successfully sue that agency.  It’s hard to making a living suing DSS in tort.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • Am

    What if you can prove DSS reckless gross negligenced a child while in foster care Medically? Does the caregiver have the right to sue? They were told to pick up the medcine and didn’t for five days. The child suffered those five days? What can be done by this neglect and abuse?..

  • Rose Ann Richardson

    I have only one 1 REQUEST the name and number for a die hard God-Fearing lawyer to help me SUE DSS in SUMMERVILLE Berkeley County SOUTH CAROLINA … THAT ORGANIZATION NEEDS A THOUROUGH INVESTIGATION … and if you or no one else can help me I’m going to cause a riot in front of that building with picketing and signing of petitions to have it CLOSED DOWN – I won’t NEED A DUMB LAWYER , I WILL REPRESENT MYSELF, for the pain and suffering, I and my family have gone through with them. I’m nearly 62 years old and I know better than to believe in such a CORRUPT , PERVERTED SYSTEM that says, the work they do is for the BEST INTEREST OF CHILDREN – BULLSHITE. THEY ADOPT AND SELL THEM OUT, THEY PUT THEM IN WORSE CONDITIONS THEY COME FROM , SOME DIE , OTHERS ARE LOST FOREVER. THATS OUR FUTURE?????? Glad I’ll be dead soon.

  • Wilda West

    Sad case of attorney….Human morals would at least try to point a person in the right direction for help.

    • Dear Ms. West:

      The right direction for help would be to ask an attorney in the state at issue rather than asking me to engage in the unauthorized practice of law.

      • Edwin G

        Mr. Foreman,
        You sir are wrong. A good attorney will fight for the rights of the individuals that are wronged plain and simple. Sounds to me that you sir are too scared to take on big brother. Instead you sir are playing buddy buddy playing golf with Dss attorneys. Sounds to me that you are fighting on the wrong side of the law. We in SC need attorneys that will represent us and our best interest. To the people needing good advice , if you feel your civil liberties were grossly violated contact the ACLU. They can and will point you in the right direction if they feel you have a case. I have sued Dss after they wrongfully removed my children. My daughter now suffers ptsd and does not trust any authority figure. All the nonsense you pointed out proves that you are not fit to hold the title of being an attorney.

  • Kelly

    It’s a shame that everyone on the planet hates DSS and they cause families their entire savings ON lawyers, yet nobody will take any cases on suing them. Maybe a few lawsuits will slow them down until they thoroughly investigate their cases and not treat children like dollar signs. Maybe laws would be then changed for DSS instead of them lying and spinning their cases in to more money for themselves, while the families use up their entire life savings fighting for their constitutional rights to raise their children.

    • Spirit Haven

      I know in my state you can bring an article 78 proceeding against DSS. It is NOT a lawsuit in the sense of gaining a monetary(money) judgement but a declaratory judgement. That means the court compels DSS to follow the standards of the law. These proceedings also set precidence and group in class meaning you are bring the proceedings not just for yourself but everyone in your class( class action). Sometimes these judgements force the change of laws and regulations. If you want your kids back and changes to the laws/regulations STOP thinking money and start thinking greater good. The fact that this lawyer has this site and actually comments honest and truthfully is more than I or you will ever get from any other lawyer. I’m SURE your state/s have the same or similar proceedings and bonus there are tons of lawyers and legal aid society’s that do them at NO cost to the petitioner(you). My advice if you are in a rural area is to first go to city legal help they do these kinds of cases more often and are usually more effective. More advice that has saved me a few times is document EVERYTHING and request everything from DSS be sent to you in writing. I realized in my experience that they only get there way when I loss hope and give up. Dispute what they say about me I am not helpless, stupid or undeserving and neither are you. In closing I would like to thank mr. Forman for his honesty that is uncharacteristic for his profession and to wish all of you still fighting the best of luck.

  • Sandra Turski

    I adopted a baby girl 13 years ago she had shaken baby syndrome she was in the care of Social Services. She became violent at about age 11 , we went back to Social Services to ask for a medical card to access better medical care that our private insurance would not help with. We were denied. We were told because of the kind of adoption she did not qualify. She eventually was placed in residential and after 30 days I applied for Medicaid. Social Services told me to submit a birth certificate, I found that I didn’t have one so I went to DMV to get a copy of her birth certificate. after the ladies at DMV searched for 45 min. They finally found a birth cert. for my daughter but my name was not on it. The delay was that she was NEVER ADOPTED and therefore her name and parents name were not what we had been searching for. I went next to the courthouse and indeed the adoption was never completed by the attorney. I have a temp. Custody order that no one ever followed up on. Not one Social Services but 2. Both the county she was in the custody of or the county she was transferred to through placement in our home. They are both now aware of this problem. I am having difficulty finding an attorney .we were denied Medicaid , subsidy or any services for her after the adoption 13 years ago . She was in Foster Care when we adopted her, or should I say when we thought we adopted her, yet we were never given Medicaid . Her injuries were serious enough to qualify her for medical assistance. Now 13 years later the Social Services in the county where we live says we can adopt her or she can continue to live with us under the Temp. Custody order. We need help.

  • KRISTINA

    I need a lawyer to help me sue charleston country DSS. They took my child out of my home without presidence, no investigation, no court hearing. it has been 8 months they have failed to do any home checks, drug test or even call me back. I cannot get ahold of anyone. My son is begging to come home and where he is at they will not let me see him. what do i do?

    • LordHelpUs

      This is insane. I certainly hope you have seen your son. Hopefully, you will have showed out at this point. Understand that in the state of SC, most attorneys are just as corrupted and disgusting as the “department” they speak against, but have NO guts to stand up against.

      If you have not attained representation at this point, please go to the courthouse, and ask the clerk what papers you need to file (a motion) to get a hearing. They have the burden of proof, technically. Make sure you have affidavits for your good parenting, medical records to show care, ANYTHING and EVERYTHING you could possibly need or not…you never know. Also, I’ll pray that one day one of these “reputable” attorneys has something other than money in their hearts so they can help people like you. God help us, we need it.

    • Ann

      Would you please contact me, we have similar stories.

      • Gerrard Jenkins

        Me to

    • Gerrard Jenkins

      Going through the same right plus I’m on child support for the same child twice right now

  • Chris Palmero

    I live in Virginia, I’m 27 years old. I was taken from my family at 4. I was placed in a few different homes until I landed in the one that would forever change mine an my sisters life. The school put us together. They matched the last names up. Upon that I would be able to meet my mom again. Foster family allowed me visits. Soon my sister stayed the night. We both was abused physically.. an mentality.. Sexually. It would be reported an I was moved again to 3 or 4 homes till I was set with my final home at 12. I was then again victim of mental abuse an physical abuse for the year to come. I was starved an beaten.. Put down an among my other things. Adopted by them I had no place to go. Last physical attack I had a seizure from the father of the house hold. Dss knows the signs of abuse. There reaklessness for my well being growing up should pay a heavy toll an new changes be made. Many different times i tried to reach out but was push aside. I was forced to get married at 16 to get away from the abuse. I feel DSS has failed me many times over. There recklessness left a shaddered an broken person to pick up pices know as life. Everyday is a struggle for me an nightmares comes as often as the need to eat. They should be held responsible for what has happened to me growing up. They accepted responsible when I was taken from my family an so should be held accountable just as we are for our own. I feel I’m entitled to pain an surffing an mental damages. I am a very soft spoken person an I feel it’s time to stand up against those who think they are in the best interest of children. Any help would be bless on where to start getting legal advice.. And or if my time has past bc of my age. If so send a prayer my way for my family. Thank you for your time an God bless
    -Chris Palmero

  • Kimberly

    There was a hotline call made on my daughter and her new boyfriend in KS. There were drugs found in clear view. My daughter was charged with endangering a child and possession of opiates. They arrested my daughter and took her to jail where she remained for 3 days. The homeowner (boyfriend) present at the time was not charged. My 4 yr old grandson was taken into dfs custody immediately. My sweet little granddaughter who was 5 yrs old at the time was supposed to be picked up at her school by dfs. She was forgotten about and left in the home with the assumed drug dealer (boyfriend) for 6 days. My daughter called dfs and told them that they had never showed up at her daughter’s school. But they took her little brother immediately. Doesn’t this mean that dfs did not do their job? They failed to make contact with my granddaughter (therefore no welfare check was made) for 6 days. Is this enough to show gross negligence by dfs? They are trying to terminate my daughter’s parental rights. Please help!

    • LordHelpUs

      I think it’s ridiculous that no one has commented, or no one has bothered to “approve” the comment if so.

      I would think that it definitely means they failed to do their job, which IS gross negligence, considering the boyfriend is not nor would be a legal guardian. In essence, they put her in jeopardy leaving her with a known drug dealer. Also, if I were your daughter, I would spill everything I know about him and move on. She needs to worry about her children and hopefully they’ll work with her on her charges. She needs an attorney (obviously), but just ensure that her attorney has dealings with the KS DFS, not in SC or any other state. EACH state is different and the laws are different, the people, etc. They could react and issue different punishments than here.

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  • Steve

    Are there precedents of gross negligence in a foster care to adopt situation. If DSS failed to disclose any of the required physical and psychological records for the potentially adopting family and lied on record regarding the presence of mental health diagnosis, could that be considered gross negligence?

  • Mary Bailey

    I have a final order granting sole legal physical custody of my child with the father having only supervised visitation. He has now married a DSS agent in our County. She has now begun to harass me and interfere with custody. She has made repeated demands that she act as a supervisor and has demanded that the visitation take place at her home contrary to the Court’s order sighting the fact that she works for the DSS. Is there anyway I can report this activity to home and to get it to cease.

  • Janice

    It is better to have a good working relationship with lawyers (and those who know the injustices perpetrated by DSS) than to help citizens find justice? Hard to win? That is more important than finding justice? Tragic times when an attorneys actually say out loud what would be unconscionable thoughts. Tragic times. Corruption is being spoken as if it the norm–and it appears that corruption and lack of justice is the norm.

    • Roy

      Exactly. The collusion between opposing representation would be called a “Conflict of Interest” anywhere else!
      And then add in a collusive Public School and a DSS sponcerd neighbor to call in fabricated reports and stories!

  • VERNON TISDALE

    Dss destroyed my family they got involved with my medical history and causing my wife to have a nervous breakdown .after 5 yrs of keeping them away from their mother father one come home swung out on marajuna and my daughter is still in foster care she is hook on marajuna n others substance abuse they kept my daughter for 5 yrs I did everything I can do to get my children out of foster care they even got into my medical history which is confidental my daughter I want home cause she runaway from foster care n going wild at the time they took my daughter she was 10 at the time she was in foster care her virginity was taken
    from her out of the 5 years I have stable home n still do I appreciate it if you can help me with this matter …Vernon Tisdale

  • Katherine Noto

    I have different story about needing representation to file suit against NC Mecklenburg County DSS. I adopted my children out foster care. I was lied to and given a brand new adoption SW. She did not know the ins and outs or proper procedure for getting my son with sever therapeutic needs the services and stipend he deserved. I have since found out that I have been lied to for 2 years. And I keep getting the run around with every single call I make. Do you know of any lawyer willing to help an adoptive parent against DSS?

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