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August 23, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

When children are taken from their parents by the state due to abuse or neglect, they often suffer worse abuse or neglect at the hands of the foster parents with whom the state places them. Now, a court in Ontario has approved a class action lawsuit against the Province of Ontario for abuse and neglect suffered by children while in the “care” of provincial authorities. Read about it here (Newswire.ca, 5/29/15).

The proposed representative plaintiffs, Holly Papassay, Toni Grann, Robert Mitchell, Dale Gyselinck and Lorraine Evans are former Crown wards of the Province of Ontario. These former Crown wards are seeking justice for the Crown's failure to protect them from the severe physical and sexual abuse they suffered as children while in the Province's care.

Over 500 people have contacted the attorneys for the named plaintiffs seeking membership in the class.

"Sadly, my experience is not unique. There were countless children like me who were torn from their homes, only to experience further harm because the Ontario government failed us," said former Crown ward Toni Grann. "I hope that by sharing my story, others will have the courage to come forward so that we can get some closure on this terrible chapter of our lives. Justice must be done."

"I was taken from my home at the age of five, when I could speak Ojibway, French and English. I was promised a better life," said former Crown ward Holly Papassay. "That promise was broken. Not only did I suffer horrible abuse for which no claims were ever made, but I also lost my ability to speak Ojibway and French. I lost my childhood, I lost my culture and I lost my identity. There are others like me who also deserve to have their story told so that history can't repeat itself."

Jonathan Ptak, co-lead counsel, emphasized, "these victims are among the most vulnerable members of our society. Crown wards were doubly victimized, first at the hands of their abusers, and second, when their rights to make claims weren't protected. We intend to shine a light on their experiences and demand accountability."

In short, not only did provincial authorities traumatize the children by taking them from their parents, they often placed them in abusive foster homes and, as a final indignity, refused to recognize their errors and protect the children from future harm. Such, at any rate, are the allegations of the plaintiffs, allegations the judge considered credible enough to certify the class.

Oddly, lawyers for the province argued that child protective authorities owed no duty to the children to keep them safe.

The Ontario Superior Court of Justice ruled yesterday that abused, neglected and re-victimized Crown wards may proceed with their class action against the Provi nce of Ontario, despite government lawyers arguing that they did not owe a duty of care to the tens of thousands of children in their custody.

Needless to say the judge ruled against the province on that claim.

Parents and children in the United States might want to think about using civil courts to combat the overreaching and often wrongful behavior of state child welfare agencies. For the most part, individual CPS workers have limited immunity from civil liability arising out of their employment. But again, that immunity is limited. Generally speaking a caseworker can’t be held personally liable for simple negligence. But when that person acts outside the bounds of what’s known to be proper conduct, then that immunity vanishes. So, if a caseworker violates and existing law, he/she will not be immune from suit for any damages arising out of that behavior.

And the limited immunity that protects a caseworker may not protect the agency for which he/she works. So, for example, actions committed by a CPS employee “under color of law” may give rise to a federal civil rights action. Therefore, if a caseworker enters a home without a search warrant pursuant to an investigation of abuse or neglect, the parent may sue under the civil rights statutes.

The truth is that much of what children’s welfare workers and their bosses do is either illegal outright or comes very close to it. I’m reading a book right now called “Culture of Fear” by a former caseworker for Los Angeles County Department of Children and Family Services. Time and again she reports that caseworkers are ordered to commit perjury for the purpose of taking a child from its parents. Similarly, they’re often ordered to alter their reports and threatened with punishment if they don’t. Sometimes, supervisors simply write the reports for caseworkers to sign, despite the fact that the supervisors have no first-hand knowledge of the matters stated in the report. Those reports are then relied on by judges in making their decisions about whether or not to take the children from their homes.

Obviously, if proven in court, that type of behavior would give rise to a range of civil causes of action.

As I’ve said many times before, foster care is, on average, more destructive of children than is parental care. Studies indicate that to be the case even when parents are somewhat abusive themselves. There’s little doubt that children are traumatized when they’re taken from their parents and placed in the care of strangers. When those strangers go on to abuse them as well, the damage is doubled. And of course we know that children in foster care are far more likely to exhibit a range of dysfunctional behaviors than are kids in parental care.

But what we also know is that hefty federal largess encourages states to take children out of their homes and into foster care. So it’s no surprise that states do exactly that despite the fact that doing so tends to be detrimental to the very kids the state has taken on the obligation of protecting. Molly McGrath Tierney made that very point in her fine TEDx talk about which I’ve written before.  And so have former state officials who know whereof they speak.

All in all, the process of reporting alleged child abuse and neglect, its investigation, the placement of children in foster care and their adoption out of it begin to look uncomfortably like state-sanctioned trafficking in children. And we know for certain that perhaps nothing is more important to people than children’s welfare. We further know that people who sit on juries are likely to either be parents or have a deep sympathy for children or both.

What all that means is that any civil suit that can prove any of the above stands a very good chance of being heard and decided by a sympathetic jury.

Some of the worst abuses of state power are done in the name of protecting children. But child welfare agencies are some of the least competent and most high-handed of our public servants. Civil lawsuits are one of our best remedies for exactly the type of behavior by CPS we hear about so often.

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