RULING MIGHT NOT END CHILD-ABUSE LAWSUITS

The Philadelphia Inquirer

It has become a familiar pattern across the country: A child's life is threatened by parental abuse and neglect, the child welfare agency is alerted. Then the system breaks down. A caseworker ignores repeated warnings. The child dies or suffers serious injury. The public is appalled.

And yet, despite the national clamor for better child-protective services, the U.S. Supreme Court decided last week that the Constitution does not require it.The opinion, written by Chief Justice William H. Rehnquist, clearly indicates that the court sought to avoid "the slippery slope" of a ruling that might permit suits against a government agency merely because it had failed to protect a person from others. Such a ruling could lead to an avalanche of litigation, it was feared, forcing states to shift money allotted for child protection and similar services to pay for legal defense and possible liability claims.

But child advocates last week raised the possibility that the decision will not put an end to lawsuits against child welfare agencies. Lawyers already have begun devising strategies to file lawsuits based upon legal issues not addressed in Rehnquist's opinion.

These advocates also contend that by restricting citizens' rights to sue, the court has lessened the public's ability to hold child-protective agencies accountable in cases of outrageous incompetence and mismanagement. Several child advocates called for state laws that would create the right to sue child-welfare agencies in cases of extreme indifference or recklessness.

"It sends the wrong message," said Bill Grimm, a staff attorney with the National Center for Youth Law in San Francisco. "There is a deterrent effect on workers and their supervisors when they have this kind of liability. Now there's no standard. You can act with impunity in a grossly unprofessional way."

The issue reached the U.S. Supreme Court when it was asked to consider the case of Joshua DeShaney, who at age 4 was beaten severely by his father. Now, six years later, he is profoundly retarded, cannot talk and has no use of his legs and only limited use of his arms. The child's mother filed suit, asserting that governmental action should have protected her son.

It was undisputed that a Wisconsin caseworker knew the boy was in danger and yet had done nothing to protect him. When she first learned Joshua was hospitalized and in a coma, she said, "I just knew the phone would ring some day and Joshua would be dead."

Rehnquist wrote that although the facts were "undeniably tragic," the Constitution's protections work as "a limitation on the state's power to act, not as a guarantee of certain minimal levels of safety and security."

Only "when the state takes a person into its custody and holds him there against his will" does the Constitution provide such guarantees, Rehnquist wrote.

The DeShaney decision comes at a time of exploding child-abuse caseloads. Reports nationally have increased 200 percent in the last 12 years, from 670,000 in 1976 to more than 2.1 million last year. In Philadelphia, about 600 caseworkers in the Department of Human Services (DHS) are responsible for 20,000 children, including about 5,000 in out-of-home placement.

In recognition of the difficulties involved in protecting these children from parental violence, lawyers for DeShaney asked the court to permit lawsuits only when there was clear evidence of recklessness by the caseworker, or wanton disregard for the child's safety. A mere mistaken judgment - even negligence - would not justify a lawsuit, DeShaney's attorney conceded.

James Weill, a lawyer for the Children's Defense Fund in Washington,  said Rehnquist's opinion "disregarded the fact that these children are basically defenseless and always in some form of custody. Once the public agency has intervened, do we really want to impose no duty to protect the kid?"

Robert Schwartz, director of the Juvenile Law Center in Philadelphia who helped DeShaney's attorney prepare the oral argument before the Supreme Court in November, denounced the decision as "consistent with several other Nixon- Reagan court decisions limiting children's rights."

Because Pennsylvania law already prohibits lawsuits against the state and local governments, the Supreme Court decision will block some people from their only other legal recourse - suing in federal court - in cases where they believe they have been victims of incompetence.

"It's frustrating that no one may ever be held accountable," said Ben W. Joseph, attorney for John and Andrea Richardson, grandparents of Zachary Dacri, the 2-month-old boy who was drowned and dismembered last month, allegedly by his mother, Tanya Dacri.

Joseph said that before the high court's decision, he had been planning to sue the DHS for its handling of the case, citing the fact that an autopsy revealed five broken ribs and two broken collarbones "at a time when the baby was supposed to be under intensive supervision." Joseph said the Supreme Court ruling "might very well kill the lawsuit."

Here and elsewhere, child advocates have been reading Rehnquist's opinion closely in an attempt to find "windows of opportunity" for lawsuits based upon constitutional issues not specifically addressed in Wednesday's opinion.

DeShaney, they note, was never declared by a judge to be dependent on a public agency for protection, as are many other children in the protective- services system. Perhaps, they argue, court-adjudicated dependent children fall under a different category than DeShaney.

These arguments can be expected from Philadelphia lawyer Mary Stein, who represents Khemsu Walton in a lawsuit pending in U.S. District Court in Philadelphia. Like DeShaney, Khemsu was living with his parents when, at age 4, he was almost starved to death by his mother. He survived with severe brain damage. Now 8, he has the mental ability of a 3-year-old and will require personal care for the rest of his life.

Unlike DeShaney, Walton had been in foster care with Virginia relatives for two years. A Virginia judge allowed his mother to regain custody but ordered the DHS to make frequent unannounced home visits to check on his health. The judge's orders, and warnings from social workers, were ignored by the DHS caseworker, court records show.

Stein contends that the fact that the DHS was under a court order to provide continuing supervision of Khemsu Walton's family makes his case significantly different from DeShaney's. Nevertheless, she acknowledges, "all it gives us is a chance. We were in much better position before the DeShaney opinion."

Another window might have been left open in a footnote that Rehnquist included in his opinion, suggesting that children who are abused in foster care may be treated differently under the Constitution than a child abused by his parents at home.

For more than a year, the high court has been weighing whether to hear arguments on this issue in Taylor v. Ledbetter. There, a U.S. Circuit Court of Appeals ruled in 1987 that a 2-year-old boy who was beaten by his foster father and suffered severe brain injuries could sue the Georgia Department of Family and Children Services.

Several such lawsuits are pending in U.S. District Court in Philadelphia.

One of them involves Joey Huot, 2, who died in January 1988 of massive brain injuries while in foster care. The boy's foster father, Walter Hairston, 29, convicted of raping and slashing the throat of a woman in 1981, hid his criminal record from the DHS and Catholic Social Services by misspelling his name on his foster-parent application. Agency officials did not ask for proof of identification, the suit alleges.

Gladys Campbell, 2, died in June 1988 of head injuries after the DHS arranged a foster placement through Children's Home of Easton. The foster mother, Colleen Chavez, 24, pleaded guilty earlier this month to aggravated manslaughter. Lawyers for Gladys' grandmother have sued, contending that agency workers should have become concerned when the girl was hospitalized with suspicious injuries a month before she was killed.

Nationally, attorneys with the American Civil Liberties Union say the DeShaney ruling will not stop seven lawsuits that seek reform of foster-care practices in several states.

"It's unfortunate that the doors to the courthouse will be closed to some kids," said Christopher Hansen, an attorney with ACLU's Children's Rights Project. "But it's very important that we don't see this as the end of child- welfare litigation."