State-Supervised Parental Custody
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State-Supervised Parental Custody

 

Can I Sue if My Child Dies Under State-Ordered Custody of a Parent, Guardian, or Foster Parent?

The death of a child is a family’s worst nightmare. Responsible parents and custodians always try to act in the best interests of a child, but their instincts and fears about an unfit guardian may conflict with the policies of the state if a court awards visitation rights or custody to a mentally unstable or abusive parent, or a parent with a partner who endangers the child’s safety.

When courts are considering custody disputes, they want both parents to be a part of the child’s life. Most of the time, that’s a good thing. But on occasion, it’s a horrible mistake. Judges may award visitation rights or custody to an unfit guardian despite warnings, reports of abuse, begging, and endless court battles from the other parent or concerned adults.

While maintaining contact with a parent is an important priority, a child’s safety comes first. If the state agencies that granted custody or visitation rights ignored red flags that lead to the worst-case scenario – the death of a child – they should be held accountable for the negligence. This includes children who die in foster care.

How do Washington courts keep children safe from unfit parents?

In the United States, the legal system includes family courts to help resolve disputes between parents who need to separate from each other and arrange custody and visitation rights. Sometimes, one parent will be afraid of the other, perhaps because of mental health problems and/or a history of abuse, and will seek protective orders, denial of custody, and restrictions to visitation rights for fear of potential danger. A parent or family member may also be concerned about another adult in the household, such as a parent’s romantic partner.

In Washington State, custody is determined by the Superior Court through a parenting plan. Under the law, the court should not award custody of a child if the parent’s behavior would harm the child. A judge should always consider the safety, welfare, and health of a child foremost as well as any evidence or claims of past abusive behavior in the parties seeking custody.

The following factors should be used to determine a parent’s fitness for custody:

  • History of substance abuse
  • Mental illness
  • Instances of abuse against the child, other children, or anyone else
  • A record as a sex offender
  • Lack of ability to provide a safe home and other necessities
  • Any neglect or alienation history

If a parent is found unfit for custody, the court should order sole custody and restricted visitations, including supervised visitations for suspected abusers. A court that fails to identify a lack of fitness, ignores evidence of violent tendencies or neglect, and awards custody or unsupervised visitation rights to an unfit guardian should be held accountable if the child dies while in that person’s care.

How does Washington State keep children safe in foster care?

Sometimes courts will find that neither parent is fit for custody, in which case they will remove the child to be cared for by a close family member or a foster family. The legal term for this removal is “dependency,” and it is normally done after an investigation by Child Protective Services (CPS), which is a division of the Washington State Department of Children, Youth, and Families.

The state is responsible for properly screening foster parents, a process that involves a background check and training. Foster homes provide a critical service to the community, but sadly, children have died while in the foster care system because of unfit foster parents. These deaths are unforgiveable, and the state should be held responsible for placing the child in a dangerous environment.

Can I sue the state if my child dies while under court-ordered custody or supervision?

If a child dies because of court-ordered custody or supervision, the estate of the child can sue the state as a legal representative of the child. Representatives of the estate will facilitate the lawsuit by first contacting a lawyer, who will initiate an investigation and then file the lawsuit. Parties of interest to the lawsuit could be another parent, but parties could be other individuals who were close to the child, such as stepparents, grandparents, aunts or uncles, or godparents. There is a three-year statute of limitations to sue for wrongful death in the State of Washington, which means the estate has three years to file a lawsuit from the date of death.

PCVA attorneys have handled numerous cases where children died because of negligent state supervision and custody orders. In one case, a foster couple was sentenced to 30 years in prison for the murder of a 3-year-old child in their care. In another instance, PCVA partner Darrell Cochran represented a father who sued the state after his son’s mother’s boyfriend killed the boy. The father and other family members made numerous reports to CPS about bruises and cuts the child sustained when in the mother’s custody to no avail. The state had never conducted a background check on the boyfriend, which would have revealed a history of abusing his own children.

The success of a lawsuit against the State of Washington depends on proving negligence in making the decision that brought the child into the care of the person directly responsible for his or her death. This involves a thorough investigation.

How does an attorney investigate wrongful death if a child dies while under state parental supervision orders?

An experienced attorney will thoroughly investigate all the documents produced during child custody proceedings, focusing on any warnings that the court should have flagged that would warrant concern that a parent or caregiver was unfit for custody. A court should consider a parent’s arrest history, a history of calls to police for domestic disturbances, and assessments from counselors or therapists. It should also investigate any warnings or concerns from the other parent. The attorney will conduct a thorough background investigation into the people responsible for the wrongful death to demonstrate to a jury that the state acted negligently in awarding custody or unsupervised visitation rights.

It’s critical to keep the system accountable for any negligence that results in the unforgivable death of a child to ensure that these tragedies never happen again.

If you would like to discuss your case, speak with a lawyer for free by completing our intake form or calling us at (253) 948-3199 or (206) 536-2850. All conversations are confidential.

How much do you charge?

Our work is done on a contingency basis. This means that if your case settles favorably, we collect a portion of the settlement.