The DeShaney Case: Child Abuse, Family Rights, and the Dilemma of State Intervention (review)

“Poor Joshua,” Justice Blackmun wrote with rare emotion in his U.S. Supreme Court dissent in the case of DeShaney v. Winnebago County (1989). He was dissenting from the ruling by the six-justice majority in the Supreme Court that Joshua DeShaney did not have a constitutional right to state protection from child abuse. To Justice Brennan, because an abused child was dependent on state agencies for his physical safety, those agencies could be held liable when they failed to protect him. The judgment instead was that Joshua’s father, not the state or individual child protectors, was responsible for the harm done to this boy since the boy was not in the custody of the state. In reaching this decision, the Supreme Court signaled that it would side with state authority against expanding legal rights for aggrieved individuals. The majority of the court drew a major distinction between irresponsible action, which could be punished, and bureaucratic inaction, for which no one could be held responsible. Brennan, however, wrote that “inaction can be every bit as abusive as power of action. I cannot agree that our Constitution is indifferent to such indifference.”

Joshua’s father, an unemployed alcoholic, often high on cocaine, repeatedly denied having beaten his son during the fourteen months when he was under voluntary supervision by a social service agency. When Joshua ended up in a coma at Mercy Hospital in Oshkosh, doctors who ordered CT scans could see that the extensive damage to Joshua’s brain was consistent with being shaken many times. They strongly doubted the father’s story that Joshua had accidentally fallen down the stairs. Eventually, Joshua’s father went to prison on a felony charge of child abuse. His mother, divorced from the boy’s father when her son was about a year old, filed a civil law suited against the child-protection services agency of Winnebago County, Wisconsin, for violation of her son’s constitutional rights. According to the Fourteenth Amendment, a citizen cannot be deprived of liberty without due process of law. Her suit argued that social workers and their agencies had deprived Joshua of his constitutionally protected liberty by failing to act on his behalf. She decided upon this legal strategy because the state of Wisconsin had placed a cap on the amount of damages handed out in liability cases; she wanted a substantial award so that she could pay for expensive private medical care for her son.

Curry has been able to reconstruct the story of Joshua and his mother’s legal suit through interviewing key participants and taking advantage of Wisconsin’s policy of keeping records open. She makes effective use of police reports, medical testimony, social workers’ case notes, and legal briefs. Curry’s wide-angle lens encompasses the history of child-protection services, beginning in the late nineteenth century. Her more immediate focus is the “family preservation model” of these services, adopted in the 1980s. Critics were complaining that too many children, especially minority children, were being removed from their families and placed in foster care, shuttled about without ever being legally adopted. Moreover, foster care was far more expensive than keeping a child at home and providing social services to the family. Most social-service agencies preached that case workers could preserve a child’s biological family by guiding the parent(s) to job counseling and parenting classes and ensuring that the child was enrolled in Head Start. Cases such as DeShaney, however, led to disenchantment with the failures of the family-preservation approach to protect abused and neglected children.

Curry adopts an objective voice in discussing the debate about state intervention in the family and children’s rights rather than the voice of the outraged journalist or child advocate. Nonetheless, in this deeply researched narrative, the police invariably emerge as the good guys because they tend to assume that the accused are lying. Curry is fair, probably...