This guest blog post is from Heather Wong, 2019 Regent Law graduate and former Family Law student:
According to the United States Supreme Court, the answer seems to be “no.” Chief Justice William Rehnquist wrote, “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against private invasion by private actors.”[1] The “private actor” was Joshua DeShaney’s father. And the “private invasion”? Repeated violence that severely handicapped a four-year old boy.
In 2017, there were 673,830 victims of child abuse.[2] One quarter of such victims were less than three years old,[3] like Joshua. In the first years of his life, Joshua suffered relentless beatings that could have been prevented. Who is responsible to protect protect child abuse victims? In Joshua’s case, social workers knew about the abuse, but failed to intervene. Instead, social workers merely noted likely child abuse and returned Joshua back to his father’s hands. As a consequence, Joshua’s father beat him so severely that he fell into a life-threatening coma. Joshua’s father served two years of incarceration. Joshua, however, suffered permanent brain damage.
The Constitution protects a parent’s fundamental right to direct the upbringing of their child. But, that right must be balanced with a parent’s fundamental duty to seek the best interest of their child. A parent’s rights should be secondary to a child’s rights and welfare. Otherwise, the State must intervene under parens patriae[4] authority when a parent abrogates their highest parental duty to seek the best interest of their child. Furthermore, “active state intervention” in cases of known child abuse should trigger a fundamental duty to provide aid to the child as soon as the State learns of any severe danger to which the child is exposed.[5] So children have parents charged with the duty of protecting the best interests of their children. When that fails, the state must intervene in a timely manner to protect that child.
Joshua’s tragic outcome is enough to wonder why “compassion [was] exiled from the province of judging,”[6] as Justice Blackmun’s dissent put it. Yet, the Supreme Court held that “the State had no constitutional duty to protect Joshua.”[7]
Joshua died at the age of thirty-six in 2015.
[1] Deshaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989).
[2] Child Maltreatment, U.S. Dep’t Health & Human Servs. 20 (2017), https://www.acf.hhs.gov/sites/default/files/cb/cm2017.pdf.
[3] Id. at 22.
[4] The State’s role as “parent” to protect children who have been abandoned, neglected, or abused by their parents.
[5] Deshaney at 212 (dissenting opinion).
[6] Id. at 213.
[7] Id. at 201.
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