October 04, 2005

Monetarily Enriched Joshua

by PG

The four most pitiable millionaires in New Jersey probably are the adopted children who received a $12.5 million settlement in their lawsuit against the state's child welfare agency for failing to take action. While the two youngest have a greater chance of recovery, the eldest was found two years ago at the age of 19, weighing 45 lbs. and rummaging through trash for food, though he quickly gained 30 lbs. and three inches of height after being removed from his adoptive parents.

However, that they were able to sue the state in federal court at all surprised me somewhat. In fact, the court-appointed lawyer for the younger children, Marcia Robinson Lowry, filed an amicus brief for the American Civil Liberties Union Children's Rights Project in DeShaney v. Winnebago County Department of Social Services. The 1989 decision by six Supreme Court justices held that the failure of the department to remove a severely abused boy from his father's custody did not deprive the child (who ultimately was beaten into a coma and thereby severely retarded) of his liberty in violation of the Due Process Clause. Judge Posner wrote the Seventh Circuit's opinion, which the Supreme Court affirmed in an opinion by Chief Justice Rehnquist. Nor has DeShaney been overturned; on the contrary, a question that it left unanswered, whether state “child protection statutes gave [him] an ‘entitlement’ to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection," was answered in the negative last term in Castle Rock v. Gonzales. Stevens, who voted with the majority in DeShaney, wrote the dissent that Ginsburg joined in Castle Rock.

The fact that obviously distinguishes the New Jersey case from DeShaney and Castle Rock is that in the latter cases, the children were abused and killed by their biological fathers, whereas the state of New Jersey placed these boys in the hands of parents who starved them. So if the Supreme Court precedents mean that 42 U.S.C. 1983 claims are viable only for state action and not inaction, Tyrone, Keith, Michael and Bruce may have argued that the state took an action in approving their adoption that is comparable to being held in a prison or state mental institution, an action that played a part in the creation of dangers that otherwise would not have existed.

Or maybe they weren't going for 1983 at all; it can be difficult to tell the basis of a lawsuit from standard news articles. I will have to teach the few journalists whom I have the opportunity to influence to do better. Regardless, "Poor Joshua" has come up a bit lately. This famous phrase from the conclusion of Justice Blackmun's dissent in DeShaney is regarded with admiration by liberals as a sign of humanity, and with contempt by conservatives for being emotional.

October 4, 2005 11:43 PM | TrackBack
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