BOSTON, MA -- Louis Piccone wants to show lawyers they can make money by suing the Department of Children and Families.

In a sprawling federal lawsuit against seven DCF employees, Piccone is seeking revenge for what he calls a witch hunt that targeted him and his family, ruined his reputation, and ended only when the courts dismissed the charges against him.

"There are such fundamental flaws in the system, and it is such a shocking ordeal for a parent to go through," says the Dalton patent attorney. "I am still in shock that this whole thing occurred, and it has taken up literally two years of our lives. I want to turn that into something positive. I want to show attorneys that this happens every day and try to create some kind of counterbalance that will move the pendulum back to where it should be."

In January 2008, a caller to a DCF hotline reported that Piccone's 3-year-old son had told a day care worker that his father had sexually assaulted him. Within hours, two DCF social workers and a pair of Dalton police officers arrived at Piccone's home.

The DCF asked to interview the boy. Piccone said he would allow an interview only if the DCF videotaped it. A DCF worker allegedly said, "We don't do videotape."

The DCF employees insisted that Piccone leave his house that night and asked him to sign an "interim service plan" that outlines the goals and tasks for families receiving services from the agency.

He refused and wrote instead: "I am being forced to sign this agreement or else my three children will be taken this evening to foster care. I offered to completely cooperate on condition that any interaction of my children be videorecorded. I was told ‘[the DCF] doesn't do video.'"

From there, the intensity of the case rapidly increased.

The next morning, Piccone's wife, Elena, took the child to a pediatrician who found no evidence of sexual abuse. The doctor subsequently called the DCF to inform the agency that the child appeared fine.

Three days later, the DCF told Piccone that it had scheduled a Sexual Assault Intervention Network, or SAIN, interview, and allegedly warned him that if he didn't cooperate and agree to stay out of his house indefinitely, the DCF would seek custody of his children.

Later that day, Elena Piccone took their three children to New York, removing them from the DCF's jurisdiction. From there, they would eventually travel to Russia - where Elena was born and raised - and then to Canada, where they currently are living in a small apartment, afraid to return to the United States.

Over the ensuing weeks and months, the DCF would obtain an ex parte order granting the agency custody of Piccone's children. For traveling with his wife and children to Paris before they went on to Russia, he would be accused of kidnapping. When he returned to the country, he was arrested and held for 30 days before he was allowed to post bail.

"All of that jail time was in administrative segregation, where you spend 23 hours in your cell. There were innumerable strip searches. It was not pleasant," he says. "It was just a fiasco. It really was. It really opened my eyes to what is a sore on the American myth of liberty and freedom. The system is not working."

Piccone maintained his innocence throughout and became an outspoken critic of the DCF and the Dalton Police Department. His supporters launched a website - berkshirehorror.com - that portrayed him as a victim of a power-hungry system that felt threatened by a lawyer defending himself.

He claims the DCF was retaliating against him for challenging the state's authority: Piccone had been helping a lawyer defend a day care center in Pittsfield against allegations of child neglect. A week before the abuse charges were levied against him, he says, he informed the state Department of Early Education that he planned to challenge the constitutionality of G.L.c. 119, §§51A and 51B, the statutes that govern the protection and care of children.

After nearly a year and more than $275,000 in legal bills, the Juvenile Court dismissed the sexual abuse allegations against Piccone, and a District Court judge threw out the kidnapping charge.

Crusade

Now, Piccone says he wants "to show attorneys that they can make money by going after DCF when they screw up." He cites a federal lawsuit in New York that found that that state's Office of Children and Family Services has a 75 percent error rate when it issues findings of abuse and neglect. A similar suit in Florida found a 92 percent error rate.

While there are no numbers available for Massachusetts cases, Piccone argues that the state's rate is likely similar to that of New York and Florida. Given such a huge number of mistakes, he says, lawyers should be lining up to take on clients whose children have been removed from their homes.

But because most of those parents don't have the resources to hire counsel, few lawyers take their cases, and, under the state's Tort Claims Act, the DCF's liability is capped at $100,000, making contingency cases unappealing.

Piccone and his lawyers, Boston's John G. Swomley and Eric B. Tennen, are trying to overcome those hurdles by suing seven DCF employees, two Dalton police officers and a state trooper under federal civil rights statute 42 U.S.C. §1983, claiming that each person violated Piccone's civil rights in their individual capacity. The full text of the complaint can be found by clicking here.

Piccone says "the secret" to successfully suing the DCF is to pursue the employees as individuals and "attack those aspects of a social worker's function where they are acting solely in an investigatory function. Then you have a much greater chance of getting a successful result. That is what I am going to focus on."

He argues that the DCF routinely "acts in a way in which they don't have constitutional authority to act. In some ways, the social worker acts as an investigator, prosecutor and judge."

Finally, under the Declaratory Judgment Act, Piccone wants to show lawyers that they can collect counsel fees of up to $250 an hour, plus a one-third contingency fee, if they prevail on any of their claims.

"I want to try to educate enough attorneys about what is going on so that they will see the horrible rate at which DCF makes mistakes," he says. "If other attorneys are doing this - and there are enough attorneys strapped for cash right now - it will have the effect of doing what the government should be doing, which is making sure that when these allegations are wholly unsupportable and the DCF people commit these egregious violations of family rights, that they are held accountable."

Piccone's theory is already being tested. The defendants have filed motions to dismiss and oral arguments were held before Judge Michael A. Ponsor in U.S. District Court in Springfield on Jan. 29. Ponsor had not issued a ruling as of press time.

DCF evolving

The Department of Children and Families declined to discuss Piccone's allegations, citing an office policy of not commenting on pending lawsuits.

But the agency says it has undertaken a lengthy review of its practices and has developed a new casework model that will allow for an extended timeframe in which to gather information about a case, provide two different tracks - investigation or assessment - depending on the severity of the allegation, and use research-based methods that will bring more consistency when assessing the danger of a situation.

In a given year, the DCF supervises nearly 8,800 children who have been taken from their homes and placed in foster care or other settings. Of the children it removes from homes, 77.1 percent are reunited with their families within 12 months.

Given the number of families it interacts with, says Virginia A. Peel, DCF's general counsel, lawsuits against the agency represent a "very, very, very small number" of cases.

"Generally, people are suing us for things that fall under the Tort Claims Act, so employees are not individually liable," Peel says. In cases where plaintiffs allege individual employees violated their civil rights, "it is much less likely that people will be successful with that. Generally, [DCF employees] are operating within the scope of their employment, and some mistakes may be made," but that doesn't change the nature of their function.

Rebuke from the bench

Piccone's aggressive stance toward the DCF and Department of Early Education has earned him a sharp rebuke from the federal bench and put his law license in jeopardy.

As a patent lawyer, Piccone is admitted to the bar in Pennsylvania and practices before the U.S. Patent and Trademark Office, but he is not licensed to practice in Massachusetts.

Nonetheless, he participated in three federal lawsuits in 2008 and 2009 that targeted the DCF and Department of Early Education. Each time, the court warned Piccone that he was not licensed in Massachusetts; Ponsor went so far as to lodge a complaint with the Board of Bar Overseers, which referred the matter to Pennsylvania authorities.

Late last year, Piccone sought to be admitted pro hac vice in a case against several Department of Early Education officials. On Jan. 13, U.S. Magistrate Judge Kenneth P. Neiman denied the request.

"Piccone's conduct, at least with regard to matters before this court, has been frequently inappropriate and unprofessional," Neiman wrote, adding: "In the court's estimation, Piccone has engaged in a pattern of behavior which not only purposefully skirted its authority but, as well, wasted judicial resources and potentially harmed litigants."

Neiman also noted that Piccone's unauthorized practice of law began before the DCF initiated its investigation into the sexual abuse allegations, as evidenced by Piccone's claim that the DCF was retaliating against him because he planned to challenge the constitutionality of §§51A and 51B.

"The court can only hope that this memorandum and order will rein in Piccone's future actions, motivate him to become fully conversant with the laws of Massachusetts, and/or apply for membership to its bar," Neiman wrote.

Strategy questions

Lawyers who handle juvenile cases and matters involving the DCF say they have some doubts over whether Piccone's strategy will succeed, but most agree that the system is flawed, suffering from a lack of resources and under-trained and occasionally over-zealous investigators.

Brian J. Dunn, a Boston lawyer and president of the Juvenile Bar Association, says "99 percent of the consumers of DCF lack the ability to bring action against DCF when there are legitimate actions. I can say that I have in the past tried to interest attorneys to take actions in similar cases, even sometimes kids injured in foster care, but it is very difficult. Attorneys aren't too interested in those cases because there is not a history of being able to do too much recovering against the DCF."

Given the scarcity of suits against the agency, Dunn says, it is difficult to predict whether Piccone will be successful. Even if he is, it would be nearly impossible for the agency to "set up a structure or policy that would guide every investigation in every circumstance," Dunn adds. "They don't even have the resources to tape every interview."

Boston attorney Kevin P. Seaver, who represented Piccone in Juvenile Court, says he doesn't expect that Piccone's suit will survive challenges from the DCF, which will assert its immunity and argue that the employees were acting solely in their official capacity.

"The government only lets you sue them for so much," he says. "I have had many clients come through my door looking to sue DCF and others, and I have been honest that it is a long road that may include exposing your family to public scrutiny," he says.

Springfield lawyer Gregory Hession specializes in cases involving the DCF and argues on his website, MassOutrage.com, that the agency is out of control and governed by a "very flawed set of laws."

Hession says that G.L.c. 119, §§51A and 51B create a low standard that "shoves tens of thousands of children into the [DCF] pipeline every year when there is no abuse or neglect."

The problem, he argues, is that §51A requires teachers, doctors, police officers and others to report abuse to state authorities. That would be fine, he says, but the DCF "has gone to schools and the medical profession and practically flogged them, saying if you have the slightest suspicion [of abuse], you must report it. That is not the standard. The standard is reasonable cause to believe that the child is being abused. The average teacher says, ‘I don't know what to do here,' but they have been so bullied that they report everything now. It is ruining families left and right."

Piccone says that's precisely what happened to his family. His wife is still afraid to return to the United States with their children, so Piccone splits his time between Ottawa and Dalton. His savings have been drained by legal bills, and he says his reputation has been trashed and he has been unable to earn a living. His finances are so strained that he routinely runs out of minutes on his cell phone and has to rely on e-mail until a new billing cycle starts.

"In balance, I would argue that unjustified zeal in pursuing these cases against poor and unsophisticated people should not occur as routinely as it does," he says. "I hope this case will cause [the DCF] to take a step back and consider all of the evidence instead of just the evidence that supports their goal. I hope it will cause them to have some circumspection and to reconsider before they take steps to destroy a family."