Note: This article originally ran on June 9, 1989 as part of the AJC’s award-winning “Suffer the Children” series.
For Joshua DeShaney and Kathy Jo Taylor, childhood has been a Hobbesian proposition: nasty, brutish and short. Very short.
Joshua was 5 when his enraged Wisconsin father destroyed most of his brain in a beating. Kathy Jo was 2 when she lapsed into a coma in a Gwinnett County foster home - the result, her attorneys say, of abuse. Today, both children are brain-damaged invalids who will never enjoy life outside hospital walls.
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The two cases underscore what could become the civil rights movement of the 1990s: the protection of children's rights. And, like civil rights marchers 25 years ago, children's advocates are creating unprecedented tensions in the law, raising questions that pit children against adults and family against government.
In lawsuits recently before the U.S. Supreme Court, advocates of these two children asked if the U.S. Constitution should have shielded Joshua and Kathy Jo from the adults who left them in danger. Should a child abuse victim have the right to sue authorities who knew the abuse was occurring and failed to stop it?
The answer was yes and no.
In Joshua's case, the Supreme Court ruled Feb. 22 that public officials could not be sued even when their negligence permits the abuse of a child. Key to the decision was the distinction made between a child already in the state's custody and one simply monitored by child protective service workers.
Joshua was not in the state's custody; Kathy Jo was. Wisconsin caseworkers had known for months that Joshua was being beaten, but did nothing. Gwinnett County caseworkers had already placed Kathy Jo in a foster home when she was injured, despite the fact that she had relatives who wanted her.
Less than two weeks after the DeShaney ruling, the high court refused to hear the Taylor case. In doing so, the court left intact a 1987 ruling by the 11th U.S. Circuit Court of Appeals that gave citizens the right to sue caseworkers if children were injured or killed while in the state's custody.
The effect of that ruling was to lift the shroud of immunity that had previously protected most government workers from such suits. It also means that at least in the 11th Circuit, states - and caseworkers themselves - might now be forced to pay damages in cases where authorities have demonstrated a pattern of indifference to signs of child abuse.
Kathy Jo's attorneys already are proceeding with their lawsuit against Georgia child welfare officials. Similar suits can be expected in Florida and Alabama, which are also in the jurisdiction of the 11th Circuit. And they could potentially encompass more than child protective services workers, pinning liability charges on law enforcement officers, firemen and others who provide "protective services."
Child welfare workers argue that to take away the immunity that has shielded caseworkers from lawsuits could cripple child protective services. "If a child isn't removed from the home and something happens, the social worker is blamed," said Joan Levy Zlotnik, a staff director with the National Association of Social Workers. "If a child is removed and after a thorough investigation it's found that nothing had happened, the worker is open [to being sued] for inappropriately removing the child."
Some legal experts say the two court decisions could actually put children at greater risk by discouraging caseworkers from ever taking custody of endangered children. DeShaney says caseworkers are safe from lawsuits as long as their charges aren't in foster care or in the state's custody. Taylor says once they cross that line and take custody, then they can be held liable.
"When you take the DeShaney and Taylor decisions side by side, what the Supreme Court has in fact done has pasted a sign on all child welfare agency bulletin boards that says: 'Remove children at your own risk,' " said Don C. Keenan, an Atlanta lawyer who represents Kathy Jo.
Nevertheless, Mr. Keenan and other child advocates maintain that a bad system won't get better unless those who run it are held accountable for their actions - or for their inactions.
Every day, Dr. Barbara Bruner, director of Grady Memorial Hospital's pediatric emergency clinic, sees the products of child abuse. Daily she sees what she considers to be the products of bad decisions.
"These workers are going to do too much sometimes or too little sometimes and kids are going to die, or they're going to get harmed," she said. "Rather than say, 'We're the county; we can't be sued,' we should be aware there's a problem out there."
Her solution: county and state governments should purchase malpractice insurance. "There should be a compensation law that takes care of the problems that arise because of neglect or mistakes or whatever." Then in clear cases of incompetence, the county Department of Family and Children Services - not individual caseworkers - should be sued, Dr. Bruner says.
"To hold an individual social worker personally responsible for something the system has put upon her - either because she's got too many cases or is not adequately trained - isn't fair," Dr. Bruner said.
But Mr. Keenan says her suggestion, while good, may be impractical. No one will purchase insurance that invites lawsuits, he says. In the meantime, Mr. Keenan says that complete immunity sends a dangerous message to child welfare workers.
"It simply says, 'You don't have to do your job,' " Mr. Keenan said. " 'You don't have to follow the policies and procedures, you can be neglectful, you can be malicious. . . . You can cause loss of life, you can cause quadriplegia and, my friend, you are home free because you have got not one thing to worry about.' "
