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Ely, Counselor at Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My daughter had a CPS case in Hawaii. 2 years ago, the caseworker

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My daughter had a CPS case in Hawaii. 2 years ago, the caseworker demanded that she bring her 2-year old child to the office, no reason given. The worker conducted a traumatizing strip search of the child while I waited outside. The child screamed for 30 minutes; worker would not allow the mom to calm the child. The father had left a message on her voice mail after he completed a supervised visit with his children on Friday, Sept 4, Labor Day weekend, 2009 that he had observed serious rash on his daughter from her waist to her knees and a gash on his son’s nose from the foster families dog. CPS worker drove to the foster family home and rudely demanded that the child remove all of his clothing except for his underpants. He was at home, sick with a fever at the time. The father had registered numerous frivolous complaints about his children’s physical condition from 6 months earlier when his supervised visits began. The worker would follow up with a phone call to each parent. On one occasion, she demanded that my daughter take her child to the doctor due to a complaint, but accepted the observations of a baby-sitter, where the child was on that day. Father had notification from a pediatrician that the 2-year old had toddler diarrhea, a condition that could not be cured but with only time. Other complaints were about bruises and scratches, common to toddlers. The father’s latest complaint was of such gravity that a reasonable parent would have called the CPS hotline for immediate attention. Father uses drugs. The worker had access to the supervisor’s observations but she was not available until a few hours after she received the message, so she conducted the strip search.

I just found this online. The context is, of course, what CPS does when they receive an anonymous call on their hotline. In this context, should not the parents have been given an opportunity to take the children to a physician where an investigation would have been
Humane! Of course CPS didn’t tell us we may have had an option. The foster family was upset, but figured they had to obey the worker, though she had a history of being rude and intimidating. Based upon the court rulings, do we have recourse even at this late date? We had tried to find a personal injury attorney for this issue, but no takers.

A formal complaint about this worker has already been filed with DHS. This strip-searching incident is only one of many other complaints of inappropriate case management. In this case, did the foster family and custodial parent of the younger child have the right to object?

LA Times Article on Escondido Case
September 15, 1999, page A3
Parents' Rights Upheld in Child Abuse Inquiries;
A federal appeals court in San Francisco ruled Tuesday that government officials investigating possible child abuse cannot conduct an invasive bodily search of a child without parental permission unless a judge has ruled in advance that such a search is warranted.

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This sounds terrible and I am sorry that your family had to go through this. My question is - what do you hope to achieve here? What do you want to do?
Customer: replied 6 years ago.
Knowledge as to whether both parents had a right to demand humane treatment in this instance by refusing the strip search, once we knew that was going to happen and to take the children to a physician instead, which is what the CPS article indicates that parents should do when an accusation is made of abuse.
Customer: replied 6 years ago.
CPS gets away with a lot of crap in this country. My goal is to let the Hawaii public know about it and be aware of the rights of children not to be traumatized by incompetent and dispassionate CPS workers.
They did, and CPS should have. What transpired here was not legal. Her parents should file a complaint and also should consider a suit against CPS for such treatment. What the family is looking here is a possible suit for 'negligence.'

It is well established that [t]he elements of a cause of action founded on negligence are:

1. A duty or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks;
2. A failure on the defendant's part to conform to the standard required: a breach of the duty;
3. A reasonably close causal connection between the conduct and the resulting injury[;] and
4. Actual loss or damage resulting to the interests of another. Tseu ex rel. Hobbs v. Jeyte, 88 Hawai`i 85, 91, 962 P.2d 344, 350 (1998) (quoting Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d 377, 383 (1987)

Here, CPS failed to conform to standard and breached its duty in treating the children.

In addition, a cause of assault may also be added to the suit as well. I recommend talking to an attorney about possible litigation.

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Customer: replied 6 years ago.
Thank you! I thought so, but I tried a personal injury attorney and they wouldn't even return my call after I explained to a paralegal that the children were not dead! Also have read some cases online that indicate CPS workers have a tremendous amount of immunity from lawsuits. May I "quote" some of your statements by questioning DHS about this incident further, as in to let them know that I've done my research? copies went to the Governor and state legislators one month ago. They're still writing. I gave them a lot to chew on! There's also a statue of limitations on a lawsuit? 2 years?
Customer: replied 6 years ago.
Did I forget to tell you that we were looking for a contingency attorney? We have no money for a lawsuit. Your answer was extememly helpful. This website is confusing to me.
If you will allow me a little time, I would like to research this further and see why kind of case this can be. If you would allow me unilateral this evening to respond, I would like to do some specific research.

No need to reply.

No need to stay online - you will get an alert a soon as I respond.
Customer: replied 6 years ago.
Thank you.

This may get complicated, but I will try to keep it simple.

Liability of State and Cause of Action
The state may or may not be liable per se. Under Chapter 662: STATE TORT LIABILITY ACT, "The State hereby waives its immunity for liability for the torts of its employees and shall be liable in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

The state will be liable if the action (negligence, negligence per se, & assault) can be attached to any of the following - then the cause of 'negligence' and/or 'negligence per se' will attach to both state and the individual worker:

If your attorney cannot attach the cause to one of those following, only the individual worker(s) would be liable.

There is also strong case-law to file a Bivens action in federal court for the seizure, which may or may not work:

But in reality, I believe that making this a Bivens claim would be stretching it, and it would be more workable as a negligence / negligence per se in state court.

Point is that there is definitely an action (but against the individuals involved, but not the state) which may be filed in state or federal court.

It may be hard to find someone to do this on contingency, but try, and see if you can find someone on contingency; and you can view them by professional experience, areas of expertise, and client reviews.
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