812 F.2d 298 (7th Cir. 1987), 86-2188, DeShaney by First v. Winnebago County Dept. of Social Services

Docket Nº:86-2188.
Citation:812 F.2d 298
Party Name:Joshua DeSHANEY, a minor, by his guardian ad litem, Curry FIRST, Esq.; and Melody DeShaney, Plaintiffs-Appellants, v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES, et al., Defendants-Appellees.
Case Date:February 12, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 298

812 F.2d 298 (7th Cir. 1987)

Joshua DeSHANEY, a minor, by his guardian ad litem, Curry

FIRST, Esq.; and Melody DeShaney, Plaintiffs-Appellants,

v.

WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES, et al.,

Defendants-Appellees.

No. 86-2188.

United States Court of Appeals, Seventh Circuit

February 12, 1987

Argued Jan. 13, 1987.

Rehearing and Rehearing En Banc Denied April 21, 1987.

Page 299

Donald J. Sullivan, Cheyenne, Wyo., Curry First, Perry, First, Lerner & Quindel, Milwaukee, Wis., for plaintiffs-appellants.

Mark J. Mingo, Simarski & Stack, Ltd., Milwaukee, Wis., for defendants-appellees.

Before POSNER and COFFEY, Circuit Judges, and GRANT, Senior District Judge. [*]

POSNER, Circuit Judge.

This appeal requires us to decide whether a reckless failure by Wisconsin welfare authorities to protect a child from a parent's physical abuse deprives the child of liberty or property within the meaning of the Fourteenth Amendment.

Since the case was dismissed on summary judgment, we state the facts as favorably to the plaintiffs as the record will allow. The principal plaintiff, Joshua DeShaney, was born in 1979, the son of Melody and Randy DeShaney (Melody is also a plaintiff). Joshua was born in Wyoming, where the DeShaneys then lived and where his mother still lives. In 1980 a court in Wyoming granted the DeShaneys a divorce. The court awarded custody of Joshua to his father. Shortly afterward, Randy moved to Wisconsin, bringing Joshua with him. There he married (and shortly afterward divorced) a woman whose lawyer told the police in 1982 that Randy had "hit the boy, causing marks and is a prime case for child abuse."

In January 1983, Randy DeShaney's girlfriend, Marie, brought Joshua to a hospital. He was covered with bruises and abrasions--from an attack by another child, she said, but the emergency room personnel suspected child abuse. They notified the

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Winnebago County Department of Social Services immediately, and by the end of the day that Joshua had been admitted to the hospital the Department had obtained an order from a Wisconsin juvenile court placing him temporarily in the hospital's custody. See Wis.Stat. Secs. 48.13(3), 48.19, 48.207. Three days later an ad hoc "child protective team," consisting of a pediatrician, a psychologist, a police detective, a lawyer for the county, a caseworker for the Department named Ann Kemmeter, her superior, and others, discussed the situation. On the basis of this discussion the county's lawyer decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court (authorized by Wisconsin law if "probable cause exists to believe that if the child is not held he or she will ... be subject to injury by others," Wis.Stat. Sec. 48.205(1)(a); see also Secs. 48.19, 48.21). So Joshua was returned to Randy DeShaney's custody. The team recommended, however, that Randy be required to enroll Joshua in the Headstart program, receive counseling from the Department, and tell Marie to move out of Randy's house--for Randy had suggested that she might be abusing Joshua. This recommendation was embodied in a written agreement between Randy and the Department, a form of informal disposition of juvenile cases that Wisconsin law authorizes. See Wis.Stat. Sec. 48.245.

Three weeks later the court closed the child-protection case that the Department had brought. A month after this Ann Kemmeter received word from the hospital that Joshua had again been treated for suspicious injuries. But after talking to the hospital's social worker she concluded that there was no evidence of child abuse.

Ann Kemmeter visited the DeShaney household in May. She noticed a bump on Joshua's forehead. Randy and Marie said he had gotten it falling off a tricycle. Kemmeter visited the household again in July, and noticed that Marie still hadn't moved out and that Joshua still hadn't been enrolled in Headstart. In September she visited again and asked to see Joshua but was told by someone that Randy and Marie had taken Joshua to the emergency room with a scratched cornea. In October she visited again and noticed another bump on Joshua's head. On her next visit, which was in November, she noticed that Joshua had a scrape on his chin; it looked to her like a cigarette burn. Later that month Joshua was treated at the emergency room for a cut forehead, bloody nose, swollen ear, and bruises on both shoulders. Emergency room personnel notified the Department of Social Services that they believed that he was a victim of child abuse, but there was no reaction from the Department.

Kemmeter next visited the DeShaney household in January (1984), but was told she couldn't see Joshua because he was in bed with the flu. She returned on March 7 and was told that several days earlier Joshua had fainted in the bathroom for no apparent reason. She did not ask to see him on this occasion--and has not been able to give a reason why not. The next day Randy DeShaney beat Joshua so severely that he critically injured Joshua's brain. The neurosurgeon who treated Joshua found evidence of...

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