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When the buck stops nowhere, failure is to be expected: the problems created by the lack of tort liability for a Social Service agency’s failure to protect a child from abusive caregivers

My first year of law school the United States Supreme Court, in the case of Deshaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189 (1989), rejected a claim that negligence of a child protective service agency to protect a child from an abusive caregiver was a violation of the due process clause of the Fourteenth Amendment of the United States Constitution.

In doing so, the Supreme Court interpreted the 14th Amendment requirement that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law” as not creating an affirmative duty to protect an individual’s right to “life, liberty, or property” from harm caused by third parties even when the state has assumed some control over the individual’s protection.  There is a limited exception to that rule “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.”  However, since the State had not taken young Deshaney into its custody, the Supreme Court held there was no affirmative duty to protect him from his father’s abuse.

The Supreme Court in Deshaney interprets due process as a negative duty (the duty of the state to generally let people be) rather than a positive duty (the obligation of the state to protect individual from depravations by third-parties to “life, liberty, or property, without due process of law”).  In general such analysis in eminently sensible.  By definition every crime victim is deprived of life, liberty or property without the due process of law.  We can’t make every crime a civil rights violation.

However, when it comes to child protective services issues, the matter somehow feels different.  The three dissenting Justices thought that Deshaney’s situation was somewhat analogous to that of prisoners or institutionalized patients, in that:

[T]he State’s knowledge of an individual’s predicament and its expressions of intent to help him can amount to a limitation on his freedom to act on his own behalf to obtain help from others. … [I]f a State cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction.

To put this in layman’s terms: social service agencies, by appearing to take actions to protect abused children from harm, may cause private individuals–neighbors, friends, family, civil or religious organizations–from stepping in to protect an abused child.  In the dissent’s opinion, when these agencies do so negligently they deprive these children of their right to due process.

Three recent news stories–one national; two local–give me renewed appreciation for the dissent’s analysis in Deshaney.  Today’s New York Times story about the “Barefoot Bandit,” ‘Barefoot Bandit’ Started Life on the Run Early, is filled with social service malfeasance and stories of neighbors who knew about his mother’s abuse but didn’t take actions to remedy it.  This week’s Charleston Post & Courier story about a infant starved to death by his mentally ill parents, Police: Tot starved to deaths, follows by less than a month another news story, Officials: Father let boy die, about a father who let his child die from medical neglect, wrapped his body in garbage bags, stuffed him into a trash can which he then filled with cement, and then concocted a claim that the child had fallen over the Battery seawall.

All of these stories have me wondering why neighbors or other private individuals didn’t intervene, why social service agencies weren’t doing more to protect these children, whether private individuals held back on intervention in the expectation that social service agencies would protect these children, and why social service agencies were inadequate to the task of protecting these children.

The Deshaney decision creates a system in which social service agencies have the right to protect children but not the duty to protect children.  Private individuals–who in the time before social service agencies protected children might be more willing to intervene–are probably less willing to interfere with what they perceive as the government’s role.  The end result appears to be dead or abused children with no one ultimately answerable for this failure to protect them.

When the buck stops nowhere, expect failure.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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  • I do not read DeShaney as broadly as you do. The Court says that this is not an appropriate 1984 action for a deprivation of life, liberty, or property without due process of law. However, Chief Justice Rehnquist, suggests that a tort cause of action may exist under state law.

    • Thomas:

      I agree that, in theory, there can be tort liability for a social service agency’s negligent failure to protect the child. However, most states’ tort claims acts would prevent just such lawsuits. How many successful tort claims against DSS are you aware of for harm caused by third-parties? I know of none.

  • Greg –

    Interesting read. A quick search yields the case of Jensen v. Anderson County Dep’t of Soc. Servs., 304 S.C. 195, 403 S.E.2d 615 (1991), which seems to be on point. I’m not sure what came of the case on remand, but clearly the S.C. Supreme Court notes there is statutorily-mandated affirmative duty upon DSS to conduct a “thorough” investigation into allegations of child abuse and that, as you said, liability can theoretically arise. However, the burden upon DSS to simply show it exercised some amount of “discretion” in deciding to categorize an allegation of abuse as either “indicated” or “unfounded” is not a very tall hurdle to clear. Once DSS shows it weighed competing considerations and made a conscious decision, no matter how unreasonable it may seem, its affirmative defense essentially becomes complete. While pursuing the theory of gross negligence still remains, that seems a long shot at best.

    • Ryan:

      Thanks for pointing out the case. I was unaware of it and it was interesting to read. However, between the limitations of the Tort Claims Act and the requirement that it be a breech of a “ministerial” duty before liability arises, I suspect such lawsuits are rarely if ever successful. As Jensen notes, poor decision making by DSS as part of its decision not to remove a child from a home is not a basis for liability so long as “discretionary” authority was exercised.

      I certainly know of no successful suit against DSS for injuries to a child brought on by caregivers not under DSS auspices. I would further note that none of the twenty-six subsequent reported South Carolina cases citing Jensen involved lawsuits against DSS.

  • Jensen v. Anderson County Dept. of Social Services, 304 S.C. 195, 403 S.E.2d 615 (1991) has profoundly affected the investigation of abuse and neglect cases in Anderson County since that child died in 1980. The end result of that case, in this county, has often been excessive investigation and intervention by the agency. I say this having worked both sides of the DSS courtroom since 1991. We are only now, 31 years later, getting away from that mentality. It has taken all the caseworkers involved in that matter moving on or retiring to change the local agency mindset. So, at least in Anderson County, the citizenry’s perception that the agency will investigate is very accurate. But that does not get to the root of the legal issue.

    I think that you hit the nail on the head when you state that child abuse cases “feel” different than other cases. The Constitution leaves no room for feeling. It is the rule of law. It limits government intrusion. But I do not think it limits government’s duty to protect anyone from harm, which includes minor children. Protecting society, via police or social workers, is a basic governmental responsibility in my view. I don’t think neighbors or other private citizens have any legal duty to report to DSS (unless they are mandatory reporters), but I do think that a moral duty exists. But once again, it is impossible to legislate morality. Providing liability for DSS in the case of gross negligence, following a report of abuse or neglect, is certainly, in my view, within the bounds of our law and of reason. I think South Carolina’s children are in better shape in this regard due to our statutory scheme.

    I will think about this some more and let you know if I have any further revelations.

    • MJ-

      I respectfully disagree that the Constitution leaves no room for “feelings.” I agree that constitutional analysis has no room for feelings but, as to guide us to a just result, how something feels is vital. It is the “feeling” of violation that justifies much search and seizure law and without the “feeling” that some searches violate personal autonomy and others don’t, there’d be no constitutional difference between a pat-down and a strip search.

      When it comes to children, the Supreme Court has already made distinctions. See Kennedy v. Louisiana, 554 U.S. ___ (2008) (death penalty for minors violates due process); Graham v. Florida, 560 US __ (2010) (life imprisonment for minors convicted of non homicide offenses violates due process).

      Because children are less able to protect themselves, it feels different when things are done to them versus when similar things are done to adults. The Constitution, as interpreted by the United States Supreme Court, routinely makes this distinction. The whole purpose of a child protective services agency is that children need this protection. I see nothing improper in making a similar distinction on whether the state has a constitutional duty to take reasonable steps to protect children from harm from third parties when the state is aware of the abuse and has intervened to prevent the abuse even though I would never advocate such duties regarding adults (unless these adults are in state custody).

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  • The Constitution was designed to hold our country together regardless of the whims of the day. Many of the cases that come before the courts deal with feelings. After all, feelings are an important part of who we are. But the Constitution protects us from the government mandating how we ought to feel. “Feelings” or social whims regarding the raising of children have varied and changed widely over the years. The Court affirmed a parent’s right to reject grandparent visitation. That certainly dealt with feelings. The Court rejected a government ban on the use of birthcontrol in Griswold v. Conn. Again, state sponsored feelings. And once again, I think you and I come to the same conclusion, but get there via different routes. I think the government has a duty to protect children from abuse and I don’t think it is inconsistent with my view of the constitution. I just don’t think it’s a due process issue. I think it’s an individual state’s legislative responsibility, which we have in SC. You know my views, Greg. State government. Local government. Virtually all government should be local or up to the individual states. Gee, I love Thomas Jefferson.

  • Charles M. Dulaney

    Greg,
    I just want to say thanks for your blog. Your insight and the time you spend sharing your thoughts are appreciated.

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