What type of lawyer do i need for suing the state?

Question

So, let me get specific so I can get a more accurate answer.

My fiance's daughter had been in the custody of the State of Oregon for about 10 years. Yes, a ten year open case. She was taken from her mother.

My fiance (at the time) did not have a stable living situation or employment (but was NEVER a safety concern) so Oregon wouldn't give him custody. After about a year into the state having custody of his daughter he was in the position to have custody of his daughter. But, the state wouldn't grant custody.

The state required my fiance to take many classes (he did). But, there was always another hurdle for him to jump. When I met my fiance almost 6 years ago he had his own 2 bedroom appt., a job and was living a normal life, but, without his daughter.

We began to push back and write letters to the state, all attorneys involved, DHS, the juvenile judge ect. the case had gotten so bad and the judge, case workers and attorneys have gotten biased and had their own plans for his daughter.

They began to make a permanent plan for where his daughter will live and the life she will have for her remaining childhood. A court date was set to finally TAKE my fiancee parental rights (as he would not ever willingly give them up).

Three days before that court date, a meeting was frantically put together by DHS and they invited my fiance, his attorney, the mother of his daughter, her attorney, his daughter, her attorney and casa, the case workers involved in the case and a supervisor whom my fiance has never met. The purpose of that meeting was to see if my fiance was going to willingly give up his rights (it was a quick meeting). The DHS supervisor also stated that he had NEVER seen a case that big and open for so many years.

Three days later, we went into court and that DHS supervisor asked to speak to the judge, attorneys and casa. They all went into the judges chambers and when they all returned that DHS supervisor said that DHS is pulling out of the case and told the judge that she should grant custody to my fiance. The judge tried to talk DHS out of that decision but DHS told her they won't continue to keep custody of my fiances daughter. The judge continued to struggle with that decision and got DHS to agree to staying involved in our lives for 3 months if she were to grant my fiance custody.

A week later, we had full custody of my fiances daughter.

During all the time the state had custody of his daughter he racked up some owed child support to the state as well as paid the state thousands of dollars. They took his tax returns every dang year, until last year!

We know that DHS pulled out of the case and the judge was basically forced to give my fiance his daughter because as soon as that supervisor from DHS looked over the case he realized they should have given custody to my fiance YEARS AGO!

While we will never be able to get back the time and raising his daughter who is now 16, we want the child support that the state took while they kept custody of his child when they shouldn't have.

How do we go about finding someone to help us? What sort of lawyer should we contact? Any immediate steps we should take to make this process quick and easy? And, is there any cheap way to go about this?

I'm a stay at home mom and my fiance supports our family of 6. We are considered low income right now and DHS has a huge part in our crappy financial situation.

Any and all suggestions will help and be very appreciated. Thank you.

Answer 1

You shouldn't try to bring suit against the state or DHS.

DHS and the state and any other plausible defendants all have sovereign immunity from all liability for the kinds of conduct that you describe. Their actions were expressly approved by judges which gives them complete immunity from liability. You would not prevail. There is nothing you can do about that. You need to move on and get past it.

Nothing described constitutes a violation of someone's constitutional rights that can be remedied in a civil action.

Also, there is no way that he would ever get the child support back. Whether he liked it or not, the state paid money over that ten year period to support his daughter, and he had a legal duty as a father to provide some of that economic support. Child support cannot be changed retroactively, even if the custody decision was wrong.

If his child was physically harmed (or, for example, raped) over that ten years, the child may have a cause of action for that harm which could be brought by the child when the child becomes an adult, or by a guardian appointed for the child.

But, no facts above suggest that this has happened, proving that the harm was caused by the wrongful actions of a responsible person (like a foster parent) rather than, for example, a fellow child in foster care, showing damages, and overcoming the qualified immunity of the persons who allegedly caused the harm, is pretty much an insurmountable barrier as well.

Answer 2

According to Oregon law 30.265(6):

Every public body and its officers, employees and agents acting within the scope of their employment or duties... are immune from liability for... Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

If the state was keeping your money in a vault, you might be able to get that money back. But presumably they actually spent it on the support of your child. I'm fairly sure your money is gone.

Of course, I'm not a lawyer and have no idea what I'm talking about. Your actual question was what kind of lawyer to contact. You would need one who is licensed in Oregon, to start. They should be familiar with child custody law. If possible, they should also be familiar with when it is appropriate to sue the state.

If you do want to contact an attorney, you should probably do so soon. Oregon law 30.275 sets a time limit of 180 days to make a claim against a public body. I'm not sure if that means the first 9.5 years of support is already outside of the time window; a lawyer would probably know that.

Answer 3

First, you should never use StackExchange as legal advice. This is for educational purposes only and for an issue that sounds as important or life-altering as the one you describe, doing anything less than speaking to a licensed attorney who practices in your local jurisdiction would be doing a disservice to the matter at hand - in this case, custody of someone's daughter.

I do believe @ohwilleke is right, at least mostly but probably completely. That said, I think you have three options:

1) Nothing, based on @ohwillke's answer.

2) You say DHS already refunded child support to your fiance for a separate situation. Have your fiance go fill out the same form or speak to the same person or contact the same division of the department that he did that time. I'm assuming there was some process to go through or forms to file, so have your fiance initiate that same process but for this purpose this time.

3) Have your fiance speak to an attorney. Have him speak to one in real life in your local community who knows the laws of your state and the particulars of the system which you are trying to challenge.

The general rule is, as stated, that individuals cannot sue the government. The exception is for those cases in which the government allows itself to be sued. Hence, the need to speak to a local attorney. Also, I say to have him do these things not only because it seems as if he would be the one searching online for answers to such a dire situation/problem, but also because due to the sensitive nature of the topic (i.e. child custody) many times the agencies or other people who one would need to consult on this matter are ethically or legally required to not speak to someone unrelated to the situation. You are unrelated to the situation because it is not your daughter.