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.

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