Three-year-old Eli Creekmore died at the hands of his father in spite of robust child welfare agency intervention in his home. Eli's tragic death so thoroughly captured the nation's attention that a documentary detailing his troubling story soon followed. (1) Daycare workers, a restaurant waitress, and Eli's grandmother all notified the state social welfare agency about the appalling physical abuse the toddler was enduring. (2) Even with these reports and his grandmother's attempts to rescue him, the child welfare agency kept Eli in his dangerous home where eventually his father beat him to death. (3) Bradley McGee's death was more of the same. (4) Although Bradley had previously been in foster care with parents who wanted to adopt him, state social workers returned Bradley home where his father killed him. Startlingly, many abused children die in their homes as Eli and Bradley did, even with forceful reporting laws and substantiated reports of abuse. These children die even when state welfare agencies are on notice that the kids are in grave danger. (5) Every six hours a child dies from abuse or neglect in the United States, and child welfare agencies are monitoring more than forty percent of these children. (6)
Joshua DeShaney is a child abuse victim whose claims gained Supreme Court review. (7) Although four-year-old Joshua survived multiple emergency room visits and repeated injuries, his father ultimately beat him so severely that Joshua ended up in a coma. As a result of this abuse, Joshua sustained permanent brain damage and remains profoundly retarded; he has spent the bulk of his life in a state institution. The Winnebago County Department of Social Services (DSS) file on Joshua commenced when he was just two years old. Joshua had been under the continuous monitoring of Ann Kemmeter, a DSS employee, for more than a year before that final beating. Joshua's mother brought a civil rights [section] 1983 claim (8) against DSS arguing that the conduct of the social worker--in disregarding obvious signs of repeated child abuse and in choosing not to save Joshua--had deprived him of his liberty interest in bodily integrity under the substantive component of the Fourteenth Amendment's Due Process Clause. (9) The Court held that even though DSS was on notice about the series of beatings and had frequently intervened in Joshua's family, the state agency had no constitutional duty to protect Joshua's life from the harm inflicted by his father, a private actor. According to Chief Justice Rehnquist's majority opinion, the Due Process Clause does not require the State to provide members of the general public with adequate protective services. Only in the case of a special relationship or a state-created danger would the state have a duty to protect an individual from private harm.
But can Joshua be fairly categorized as a member of the general public? The DeShaney opinion acknowledges that the "caseworker made monthly visits to the DeShaney home, during which she observed a number of suspicious injuries on Joshua's head ... [and] dutifully recorded these incidents in her files, along with her continuing suspicion that someone in the DeShaney household was physically abusing Joshua, but she did nothing more." (10) Chief Justice Rehnquist further mentions several instances where emergency room personnel called DSS about Joshua's injuries and notes that on the caseworker's final two visits to the DeShaney home she was told that Joshua was too ill to see her. "Still, DSS took no action." (11) And yet, the majority opinion assigns no liability to DSS because the Court did not see Joshua's situation as one of state-created danger and did not find that the state's intervention gave rise to a special relationship with Joshua. Indeed, the Court says of the state actors in this case, "they stood by and did nothing when suspicious circumstances dictated a more active role for them," (12) but this is not enough to establish a constitutional duty.
This Note will argue that although the DeShaney decision developed a workable legal framework, the Fourteenth Amendment has more to say about how states protect children from abuse and neglect. Abused children across the country should have the right to be reasonably protected by child welfare agencies that foreclose aH other would-be rescuers. (13) The Court has before carved out very narrow, special constitutional rules to protect the interests of child abuse victims, (14) and it should do so again. Part I will suggest that the DeShaney decision did not fully analyze the particular context of child abuse. Part II will demonstrate that Congress has attempted to improve child safety via legislation, but that actual improvement has not happened. Furthermore, an economic analysis cuts in favor of a constitutional remedy. Part III will address the DeShaney framework by arguing that when a child welfare worker intervenes in a family, a special relationship does arise. Thus, when a welfare agency unreasonably keeps an abused child in his home, the home becomes a state-maintained and controlled environment and is--in effect--that child's prison. Part IV will distinguish substantive due process claims from those made in the procedural due process context, a distinction important both for determining the threshold state of mind required for culpability and for shaping the remedies discussion. This section will argue that deliberate indifference in the context of a state agency's special relationship to children should trigger [section] 1983 liability. Part V will suggest and defend a narrow due process solution wherein abused children's rights to reasonable state protection match prisoners' rights to the same.
No DUTY TO PROTECT ABUSED CHILDREN
DeShaney's Workable Framework
In deciding DeShaney, the Court established a workable analytical framework. (15) Chief Justice Rehnquist explained that the state is not "require[d] to protect the life, liberty, and property of its citizens against invasion by private actors" (16) unless the case falls within two narrow exceptions: First, if the state has created the danger, then it may owe a duty of care to the victim; or second, if the state has a special relationship to the victim--as it does with prisoners and institutionalized mental patients--then the state must offer reasonable protection. (17) Thus, DeShaney's holding embodies a general "no duty" principle, and the state has no duty to protect citizens like Joshua from private-party harm. (18)
DeShaney's framework is one viable way to analyze Joshua's claim. The Court was not convinced that state intervention in a familial child abuse situation established a special relationship and a corresponding state duty to complete a reasonable rescue. Consequently, Justice Rehnquist found no violation of Joshua's right to personal security, even though the right is a "'historic liberty interest' protected substantively by the Due Process Clause." (19) The relative silence of the opinion suggests that the Court did not consider the amount of control the state was exerting in the DeShaney family. The state played a very active role in Joshua's family life, and the social worker had nearly exclusive power to determine Joshua's living situation. Such state intervention in the family should trigger special relationship protections. DeShaney held that the Fourteenth Amendment has nothing to say about how states care for abused children. Child welfare agencies, no matter how negligently or recklessly they execute their tasks, are not liable for any consequent harms. Thus, when the inaction of child welfare agencies keeps abused children trapped in dangerous homes and those children are severely injured or killed, the Constitution offers no remedy.
The Larger Legal Context of Child Welfare
Perhaps the Court's decision in DeShaney was not unexpected. (20) Courts took a relatively long time to recognize the due process rights of children in juvenile delinquency proceedings, too, maintaining the fiction that the Fourteenth Amendment and the Bill of Rights were "for adults alone." (21) Judges have also been appropriately reluctant to impinge on parents' fundamental liberty interests in raising their children, (22) including the parental right to administer corporal discipline. (23) Nevertheless, a parent's rights over her child are not absolute. (24) Moreover, DeShaney's legacy is the unworkable state-created danger doctrine and thoroughly muddled circuit tests. (25) In the twenty-three years since the decision, DeShaney has foreclosed [section] 1983 claims in many child abuse cases with robust state agency involvement. (26) And, child abuse deaths continue to rise in America. (27) Abused children continue to die daily under watchful state agency care. The public is always suitably outraged, and yet those agencies statutorily obligated to intervene are not liable when they fail. (28) Because of DeShaney, this system is unlikely to change. In 1989, "[g]overnment child welfare agencies expressed relief over the [DeShaney] decision" because "'[a] contrary ruling would have seriously affected programs and budgetary priorities.'" (29) Certainly, a contrary decision would have necessitated reform. In 1990, child abuse was declared a "national emergency" and "a moral disaster" because the rise in reported cases was "astronomical" (30) even then. (31) Today the trend continues. (32) If constitutional rights were protected and liability were appropriately assigned, necessary policy change would likely follow. (33) Now is the time for the Court to exercise "reasoned judgment" to rework how such claims are treated. (34)
THE CURRENT CHILD WELFARE REGIME
The facts of the DeShaney case and so many child abuse cases raise the question: Why do child protection workers choose not to intervene in situations like Joshua's? Although arguably DSS did establish a special relationship in DeShaney, the...