"Indifferent [towards] Indifference:" Post-DeShaney Accountability for Social Services Agencies When a Child is Injured or Killed Under Their Protective Watch

Abstract

As cases like the Terrell Peterson case increasingly come to the public's attention, more and more child advocates are turning to lawsuits as a means for reforming the system; however, in federal court, they are hitting the DeShaney roadblock.

This comment will analyze these lawsuits as a method of state accountability. Specifically, it will focus on the legal obligations that a child protective service agency has to children, and when a violation of these obligations will result in liability under section 1983. Federal lawsuits against child protective services agencies under section 1983 are currently reaching varying results. The success of some lawsuits has led to monetary damages and court-ordered changes in the child welfare system. An estimated twenty child welfare systems have been ordered to "change the way they do business" as a result of these lawsuits. Other lawsuits are dismissed based on the fact that the child was not in the custody or control of the State at the time of the death. This comment will discuss the different judicial approaches that the federal courts have taken to these lawsuits since DeShaney and evaluate what the legal duty of child protective services agencies should be.