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. …