Deshaney's Unfinished Business: The Foster Child's Due Process Right to Safety

47 Pages Posted: 2 Apr 2007

See all articles by Laura E. Oren

Laura E. Oren

University of Houston Law Center


In 1989 the Supreme Court decided DeShaney v. Winnebago County Department of Social Services, holding that a child under supervision of a state's child protection system, yet still in the immediate care of an abusive father, stated no constitutional cause of action for the state's failure to protect him from abuse. This was so because the government had not assumed "custody" of the child. In a previous article published in this journal, the author argued that the Court's bright-line custody test represents an abstraction that improperly ignores the context of child abuseĀ—the history of domestic violence in the United States as well as present methods of dealing with both victims and perpetrators of this problem.

This article addresses a question that the DeShaney Court intentionally left unanswered: Does the government have an affirmative constitutional duty to protect those children whom it has taken into custody and placed in foster care? This question provoked different answers from courts of appeals, sometimes turning on the issue of whether the child was involuntarily taken from parents to be placed in foster care versus whether the parents had voluntarily surrendered the child to the system. The voluntariness distinction, however, is artificial, and should not form the basis upon which a child's constitutional right to safety is determined. Even under DeShaney's crabbed construction of constitutional duty, foster care constitutes the kind of "custody" that creates an affirmative responsibility in the state for the safety of the children in the system. The state's failure to provide that protection is an abuse of government power, for which section 1983 provides a remedy.

Keywords: Substantive Due Process, Foster Children, Failure to Protect, DeShaney v. Winnebago County Department of Social Services, Civil Rights

Suggested Citation

Oren, Laura E., Deshaney's Unfinished Business: The Foster Child's Due Process Right to Safety. North Carolina Law Review, Vol. 69, 1991, U of Houston Law Center No. 2007-A-15, Available at SSRN:

Laura E. Oren (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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