State Child Welfare Agencies get a Free Pass when Children are Murdered
While horrific, unspeakable torture and murder of children in the United States who have or had open cases with child welfare agencies which operate under different names like DCF or CPS, the truth is they operate with impunity and they know it. These state agencies have a reason to make sure that children never see the inside of a courtroom where they would have rights overseen by a judge including removal from dangerous neglect and abuse while in custody of a parent. While agencies and advocates, particularly parent advocates, tell us children have a fundamental right to be with their families, they neglect to speak about a child’s procedural and substantive due process rights to fair investigations of abuse and the right to be safe and free of abuse. In reality, abused children have only the illusion of rights and that’s why many of them die.
While no one argues that separating children from their parents is inherently traumatic or that maintaining familial bonds can be crucial for their well-being, development, and stability, those laudable goals, often cited by states and their child welfare agencies, conveniently neglect to consider the trauma and lack of stability when leaving a child in the home of an abuser. The real question is, what is behind decisions to leave children in harms way while avoiding removals to foster care or family members who will not harm children or worse yet murder them?
Show Me the Money
Like everything else in government, money is always at the root of decisions made by federal and state agencies. Budget first; children second…or last actually. Federal law incentivizes states to keep children in their homes while parents have open abuse and neglect cases with state child welfare agencies. Foster care is deemed too expensive by the federal government and therefore, states can sometimes save money by keeping children at home with so-called services. Prior to 2018, Title IV-E reimbursed states for eligible foster care, adoption assistance, and guardianship assistance costs. But that all changed in 2018, with the Family First Prevention Services Act (FFPSA) when the use Title IV-E funds was shifted toward certain prevention services aimed at keeping children “safely” at home.
Federal and state funding that directs the majority of child welfare budgets to preventing removals and supporting reunification is not the only benefit states get by keeping kids away from judges who might possibly order their removal to keep them safe, or even alive for that matter. Shockingly, the US Supreme Court protects states from civil liability and damages as long as the states keep children from being in their custody. It’s all about the money.
DeShaney v Winnebago County
The SCOTUS Free Pass for States When Children Are murdered
In the US Supreme Court case of DeShaney v. Winnebago County, Joshua DeShaney, who lived with his father, was repeatedly abused in the home. DSS received multiple reports of suspected abuse over two years requiring hospital visits and observations by social workers. Despite the reports, DSS did not remove Joshua from his father’s custody, believing there was insufficient evidence to act. Ultimately, Joshua’s father beat him severely causing permanent brain damage, leaving him profoundly disabled. The mother sued the state claiming that DSS violated Joshua’s substantive due process rights under the Fourteenth Amendment because they repeatedly failed to protect him from his father’s abuse, despite having knowledge of ongoing safety risks.
In a decision that defies logic still forty years later, the Court held that the Due Process Clause is a limitation on government action, not a guarantee of protection from “private actors” like Joshua’s father. The Court said the state’s failure to intervene did not directly cause Joshua’s injuries because the harm was inflicted by a private individual. So why wouldn’t every state child welfare agency like DCF do everything they can to make sure that when a child is at risk of abuse and even death by a parent they know is dangerous, leave that child with the abuser?
This is what happened in the case of Harmony Montgomery where the state kept her in the hands of her abusive, monster father who later murdered her. When the lawsuit was filed, the state immediately invoked the ruling in DeShaney claiming they had no fiduciary duty to protect Harmony because she was not in state custody. And while the state settled a wrongful death claim filed by the mother, the evidence was clear that DCYF falsified documents after the initial report of abuse that ultimately allowed the state to keep her at home so they could prevent her from being put into state custody. In the settlement, there was no admission of wrongdoing and liability was waived for all employees of DCYF and the state. It was for this reason that I filed a federal complaint for violations of Harmony’s rights under federal law.
In DeShaney, three justices dissented criticizing the state. Writing for the dissent, Justice Blackmun criticized the state’s meager efforts to protect Joshua pointing out that, “The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. Inaction can be every bit as abusive of power as action; power can be abused by omission as well as commission.”
It is a sad commentary upon American life, and constitutional principles….
– Justice Blackmun
In a rare display of anger at the majority, Blackmun wrote: “Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly father, and abandoned by the Department of Social Services, which placed him in a dangerous predicament and then did little when suspicions of abuse arose. It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about ‘liberty and justice for all’ — that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. His plight is tragic.”
The dissenters further wrote: “Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. § 1983 is meant to provide.”
With the ever-increasing failures of state child protection agencies failing to keep children safe, while shielding themselves from liability, the DeShaney case is the most anti-child rights case in American history. Frankly, it’s time for the Court to re-visit the decision if there is any hope of saving children from injury and death in the U.S. child protection systems.
