Federal lawsuit moving forward after kids removed from Waltham home at 1 a.m.

A couple whose children were removed from their home in the middle of the night has cleared a legal hurdle in their federal lawsuit against a handful of Massachusetts Department of Children and Families employees and Waltham police officers for violating their civil rights.

Josh Sabey and Sarah Perkins first shared their story with the NBC10 Boston Investigators in September 2022.

"What's at stake here are these core constitutional protections," said Daniel Woislaw, an attorney at Pacific Legal Foundation, the nonprofit firm representing the family. "What the city has done and what the officers did is they came to the house and they threatened to break in and take the children away. Without a court order. Without an emergency. And without, really, any evidence at all of child abuse."

The government agencies had filed motions to dismiss the case, arguing the public workers were protected by qualified immunity. However, Judge Patti Saris determined the case should proceed.

"It's a big victory to get past this hurdle and try to protect people from government overreach," Sabey told us.

The ordeal for the parents started in July 2022, when they took their 4-month-old son, Cal, to the hospital with a high fever. Tests by doctors revealed an almost-healed rib fracture.

The parents had no explanation for Cal's injury, triggering health care workers to notify DCF. Perkins stayed at the hospital as doctors performed more tests and social workers questioned her about the circumstances.

Health care workers who specialize in child abuse told NBC10 Boston that certain injuries in babies — including broken ribs — immediately raise suspicion and can trigger an in-depth evaluation. Doctors are required by law to report suspicions of child abuse or neglect to DCF.

After hours of scrutiny and an overnight stay at Newton-Wellesley Hospital, the mother left with her child.

The family thought the nightmare was over — until unexpected visitors arrived at their front door at 1 a.m.

Police and DCF workers were there to make an emergency removal of the two children. They did not provide any paperwork to the parents that justified the drastic decision.

Cellphone video of the incident captured 3-year-old Clarence screaming in fear about leaving with strangers in the middle of the night.

The lawsuit alleges several constitutional violations, including unlawful search and seizure and deprivation of parental rights without due process. It says the initial DCF investigation turned up no evidence of domestic abuse, no police calls to the parents' home, no evidence of substance abuse, and no concerns from the pediatrician who had regularly seen both boys.

We reached out to the City of Waltham and DCF about the latest legal development with the case. A DCF spokesperson said the agency doesn't comment on pending legislation, and we have not yet received a response from the City of Waltham.

Following the original NBC10 Boston investigation, a Massachusetts state lawmaker proposed another layer of oversight before DCF workers can make an emergency removal of children.

The legislation filed by Rep. Joan Meschino, D-Plymouth, would require DCF workers to get them to sign off before emergency removals are made during hours when courthouses are closed, similar to a search warrant or restraining order.

Sabey and Perkins moved to Idaho with their kids after the DCF investigation was closed. The parents say they are continuing the fight to change the system.

"We've had, like, hundreds of families now reach out to us and tell us their stories," said Perkins. "I just feel so fortunate that we're in a position to be able to do something, to try to enforce basic constitutional protections for families that people can't come to their house without paperwork and take their children."

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