The DeShaney Case

Child Abuse, Family Rights, and the Dilemma of State Intervention

Lynne Curry

• Publisher: University Press of Kansas
• Year: 2007
• ISBN:
  9780700622429
• Topic: Jura
• Subtopic: Rechtsgeschichte

"Poor Joshua!" lamented Justice Harry Blackmun in his famous dissent. "Victim of repeated attacks by an irresponsible, bullying, obviously cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing...." Even so, the Supreme Court, by a 6-to-3 margin, absolved Wisconsin officials of any negligence in a case that had left a young child profoundly damaged for the rest of his life.Does the Constitution protect children from violent parents? As Lynne Curry shows, that was the central question at issue when Melody DeShaney initially sued Wisconsin for failing to protect her battered son Joshua from her estranged husband, thus violating her son's constitutional right to due process. The resulting case, DeShaney v. Winnebago County (1989), was a highly emotional one pitting the family against the state and challenging our views on domestic relations, child abuse, and the responsibilities—and limits—of state action regarding the private lives of citizens.The Supreme Court's controversial decision ruled that the Constitution was intended to limit state action rather than oblige the state to interfere in private affairs. In other words, it viewed the Due Process Clause as a limitation on the state's power to act, not a guarantee of safety and security, not even for children who depend on the state for their very survival. In this first book-length analysis of the case, Curry helps readers understand how considerations of "what should be" in an undeniably tragic case are not always reflected in legal reasoning.Curry brings to light details that have been ignored or neglected and covers both the criminal and civil proceedings to retell a story that still shocks. Drawing on legal briefs and social work case files, she reviews the legal machinations of the state and includes personal stories of key actors: family members, social workers, police officers, child advocates, and opposing attorneys. She then clearly analyzes the majority and dissenting opinions from the Court, as well as reactions from the court of public opinion.Joshua DeShaney depended on the state for protection but found no satisfaction in the courts when the state failed him. The DeShaney Case offers a much-needed perspective on the dilemmas his predicament posed for our legal system and fresh insight into our ambivalent views of the role that the state should play in our daily lives.

chapter 1

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Joshua’s Story

By the time he came to the attention of the Winnebago County Department of Social Services (DSS) in January 1983, three-year-old Joshua had already seen a world of trouble. A photograph of the child published in Time magazine in 1989, the year his case was decided by the U.S. Supreme Court, shows a thin, wiry-looking boy holding a kitten. He is dressed in a sleeveless “muscle” shirt and his skinny arms appear tanned from long hours playing outdoors. His face is markedly triangular, with small, sharp features, and his sandy hair, with bangs cut straight across his forehead, looks bleached by the sun. He is looking directly into the camera with a slight but decidedly impish smile, and one senses neither he nor the kitten remained still for very long after the photo was taken. One observer described him as looking “like a regular kid.”

Joshua Eli DeShaney was born in Cheyenne, Wyoming, on March 21, 1979, to a young couple, Melody and Randy DeShaney. Randy DeShaney had joined the U.S. Air Force directly after graduating from high school in 1976, serving four years before receiving an honorable discharge. The marriage was both troubled and short-lived, and the couple divorced in 1980. Randy, a brown-haired, blue-eyed man who has been described as both “open” and “quick to anger” by those who knew him, left Melody and the infant Joshua to return to central Wisconsin, where his extended family of siblings and half-siblings resided. His parents also lived in Wisconsin, although they had been divorced when Randy was just six months old; Randy’s father, Tom DeShaney, a trucker who lived near Stevens Point, had subsequently remarried and divorced twice. Randy soon remarried as well. He had received a knee injury in the Air Force and upon returning to Wisconsin found that it required surgery. As a result, he had a difficult time holding down a job.

When Joshua was fourteen months old, Melody told her mother, Myrna Bridgewater, that she no longer could take care of him. She was twenty-one and living an unsettled life in Phoenix, Arizona. She agreed to surrender custody of the boy to Randy and his new wife Christine, who were living in Neenah, Wisconsin, a small town on the shores of Lake Winnebago that promotes itself as “a friendly, spirited ‘hometown,’ where life is safe, comfortable, and secure.” In a 1989 interview with William Glaberson of the New York Times, Melody recalled thinking that Joshua would have a “nice kid life” living with two parents among extended family in small-town Wisconsin, a life she felt she herself was “too young, too alone, and too poor” to give him.

Melody is often described as a pretty woman. Photographs display abundant dark hair, dark eyes, and a long narrow face with delicate features much like Joshua’s. But she had problems in 1980. The divorce had been acrimonious. There were allegations that she had been unfaithful to Randy as well as an unfit mother. When Randy agreed to take custody of his son, he initially wanted to deny Melody visitation rights, but Melody refused to sign the decree. In December 1980, after the decree was modified to allow her to visit her son, Melody returned to Cheyenne and signed the official paperwork. Later the same day she took the toddler to her mother’s home, where Christine and Randy’s brother Kim had arranged to pick him up the following morning. Randy could not make the trip himself because he was in the hospital recovering from a staph infection he had contracted following the knee surgery. Melody later recalled staying for a few hours at her mother’s house, and then she left Joshua. Christine and Kim later claimed that when they picked up Joshua at the Bridgewater house, his bottle had been laced with liquor, a charge Melody vigorously denied. They also believed that Joshua had been underfed.

Shortly after returning to Phoenix, Melody embarked on a two-month road trip with her new boyfriend, a trucker named Swede. Her life became peripatetic. Nevertheless, she made monthly child support payments of $150, sending the checks not to her former husband’s home address, which she didn’t know, but rather via the Laramie County clerk’s office in Cheyenne. She did not speak to nor see her son for more than two years, although she later insisted that she had made between twenty and thirty attempts, only to be “stonewalled” by one of Randy’s many relatives on each occasion. For news about Joshua she depended on her mother, who remained in contact with Randy and Christine for awhile and made a few visits to see her grandson in Neenah. Although Melody had no direct knowledge of Joshua’s new life, she believed there was no particular reason to suspect anything was wrong. But the next time Melody saw her son, more than two years later, he was severely brain damaged and partially paralyzed, the end result of many months of physical abuse.

Clearly, Randy’s home had not provided the “nice kid life” Melody had envisioned for Joshua. Randy’s second marriage had also been troubled, and Christine served him with divorce papers on the last day of January 1982. There were allegations that Randy had hit her. As an adult she was free to remove herself from a bad situation, but Christine worried about leaving the two-year-old behind. She took her concerns to her lawyer, David Krizensky, who in turn contacted the Neenah police. “In the past Randy has hit the boy causing marks and is a prime case for child abuse,” the complaint reads. “Christine is afraid that when she leaves next Monday and leaves the boy alone with Randy something may happen.” Krizensky then contacted DSS, where a file on the family was begun by a caseworker named Peter Donner. The agency investigated the situation but, according to the case notes, concluded that “Randy had given physical custody of Joshua to Joshua’s grandfather living in Stevens Point so services were not needed.” The social worker did not investigate the circumstances that had led Randy to hand the boy over to his father’s care, nor did he arrange to have a DSS worker in Portage County visit the home to check on Joshua. For reasons that are not clear from the public record, the boy soon returned to live with Randy in Neenah. For awhile Joshua and his father lived out of Randy’s van. During that time Randy met Marie DeShaney, the former wife of his half-brother, Mark DeShaney, and the two set up a household in an apartment in Neenah that consisted of Randy, Marie, Joshua, and Marie’s son, Rusty, who was six months old. On January 22, 1983, almost exactly one year after Christine had warned DSS about her concerns for Joshua, the child made his first trip to the emergency room at Theda Clark Regional Medical Center in Neenah.

Joshua was brought to the hospital at 1:30 that January afternoon by Marie, who identified herself to hospital personnel as the little boy’s aunt. A friend had driven them to the emergency room because another toddler, a boy named Andy, had struck Joshua with a metal toy truck. He had a three-inch abrasion on his forehead that had swollen markedly, protruding a half-inch. The emergency room staff became suspicious about Marie’s explanation of how the accident had happened. Their doubts were furthered when Marie objected to a nurse removing Joshua’s clothing. A nurse took Joshua to be x-rayed, and when his clothes were removed, she saw numerous additional injuries on the child’s body, apparently of differing ages. In addition to a quarter-sized bruise on his face, the boy had several injuries to his scalp and spine, and numerous bruises on both buttocks and upper thighs as well as the penis, ankle, and heel. Perhaps most disturbing were the marks on both of the buttocks and the right arm, with a distinctive pattern of indentations; the nurse thought the marks may have been made by the bristles of a hairbrush. According to a report filed by Robert E. Gehringer, a pediatrician who saw Joshua in the emergency room, when Joshua had been asked about his injuries, he said “my daddy spanks us with the belt.” The nurse telephoned Theda Clark’s medical social worker, Thomas Hoare, as per the hospital’s protocol when a case of child abuse was suspected.

Hoare arrived at the emergency room and noted for himself the multiple bruises and the unusual patterned marks on the child’s buttocks and arm. After consulting with Gehringer, and questioning Marie himself, Hoare decided to contact the Winnebago County DSS office in Oshkosh about the suspected abuse. It was a Saturday, and Donner, the caseworker who had started the DeShaney family file after Christine’s complaint, was unavailable. But another child protective worker from a DSS branch office in Neenah, Ann Kemmeter, lived in town, and Hoare was able to reach her at home. Kemmeter, who had been employed with the Winnebago County DSS since 1967, came to the hospital and also became suspicious about the nature of the child’s injuries. Further, she thought the bristle-like marks may have been inflicted by Marie, a woman who once described herself as “big and strong.” Randy was out of town on an ice fishing trip and the DSS worker felt leery about allowing Joshua to leave the hospital with Marie. Invoking the authority the State of Wisconsin invested in her, Kemmeter contacted the intake worker of the juvenile court about having the state take emergency custody of Joshua. The petition was granted and Joshua was admitted into the hospital’s pediatric unit just after 4:00 p.m. Hoare asked the pediatrics staff to observe interactions between Joshua and his father when he came to visit his son.

Randy arrived that evening, reportedly very upset. Detective Keith Nelson of the Neenah Police Department came to the hospital and, along with the DSS child protective worker, conducted interviews with both Randy and Marie after advising them of their Miranda rights. Both denied abusing Joshua, and they told Nelson that they had been intending to contact Gehringer in any case because he seemed to bruise easily and the injuries failed to heal quickly. Randy was especially concerned about this because his sister had died of leukemia when Randy was sixteen. Kemmeter seemed reassured by their explanations, recording in her notes that “Detective Nelson and myself found Marie DeShaney and Randy DeShaney to be very cooperative in the sharing of information.” The two were interviewed again on Monday by Kemmeter, this time accompanied by Hoare. “Once again they were very cooperative and very open to sharing information with us,” Kemmeter later wrote in a report to the juvenile court, “and there appeared to be no basis to the establishment of child abuse or neglect. Rather,” she continued, “it appeared they were lacking in parenting skills and may not have provided adequate supervision to Joshua and two other children Marie takes care of.” (Marie was a caregiver to Joshua, Rusty, and Andy, her friend’s son.) The child protective worker then learned that Joshua’s behavior appeared to be deteriorating of late. Although he had been potty trained when he lived with Randy and Christine, the three-year-old had begun wetting his bed (a condition called “enuresis”) and soiling himself (known as “encopresis,” a condition often associated with psychological disturbances). Randy and Marie told her that he was also playing more roughly, biting and pinching himself and pulling out his own hair, leaving bloody marks on his scalp. A few days earlier he had twisted his own ear so severely it had turned purple. When Marie had asked Joshua why he did it, the boy told her he pulled his own ear because the baby, Rusty, also did it to himself. They thought the bruise on Joshua’s penis may have resulted from the child pinching himself as well. They added that Joshua became especially agitated when Randy left the apartment, and during the previous week Randy had gone ice fishing on three separate days, so Joshua had been quite unmanageable. In light of this information, Gehringer called in Donald Derozier, a psychologist, to examine Joshua. Derozier interviewed Randy as well.

Wisconsin’s child protection laws, originally enacted in 1955 and subsequently modified in 1977, were known as Chapter 48, or the Children’s Code. Under the statutes, the ultimate responsibility for determining whether a child could be removed permanently from his parents’ home fell to the juvenile court. Court action was initiated by a petition filed by the county social service agency. Kemmeter, in her role as a Winnebago County child protective worker, and John Bodnar, the county’s assistant corporation counsel, were the individuals responsible for making the request based on evidence from an investigation of the child’s home and family circumstances, as required by the Children’s Code. On Tuesday, Hoare convened a “child protective team meeting” at the hospital to share and discuss the evidence that had been gathered about the DeShaney family’s situation. A number of professionals participated, including Bodnar, Nelson, Gehringer, Derozier, emergency room staff, nurses from the pediatric unit, and Kemmeter, along with her DSS supervisor, Cheryl Stelse.

Nurses in the hospital’s pediatrics unit reported observing a good relationship between Joshua and Randy. Joshua did not seem at all afraid of his father, they had noticed; in fact, he ran to him with his arms out wanting to jump up and be hugged when Randy arrived at the unit. The psychologist, Derozier, reported that he had administered the Stanford-Binet intelligence scale tests and had measured Joshua’s IQ at 113, a score in the “bright normal” range. He described the boy as “bright and alert,” with an appropriate attention span for his age. However, when Joshua was shown “projective pictures” and asked to describe them, Derozier reported that he “invariably ended up with negative conclusions. Children either die, houses burn down, etc.” This evidence, in addition to the information that Joshua became extremely agitated when Randy left the house, led Derozier to hypothesize that the child “does have significant anxiety with reference to the instability of the home situation.” He had found Randy to be “fairly attentive to the child.” He had learned from his interview that Randy’s own father was an alcoholic and Randy himself “may have been [an alcoholic] in the past.” Joshua’s father had also told the psychologist that he suspected Melody had abused the child when he was still in her custody. According to Kemmeter’s meeting notes, Derozier told the team that neglect and abuse in his infancy could account for the three-year-old’s apparent self-destructive behavior. The psychologist recommended that both Randy and Joshua should “be seen professionally” to address the boy’s problems. He suggested that Joshua be enrolled in a program like Head Start to help further his psychological and cognitive development. Participation in Head Start would also make the child visible to adults outside of the DeShaney household. Gehringer added that he would like to follow Joshua’s situation via his position as a pediatrician at the Nicolet Clinic in Neenah.

Detective Nelson, however, had reservations about allowing Joshua to return to his father’s home. Nelson was skeptical of the various explanations Randy and Marie had given for Joshua’s injuries. He had tried to talk to Joshua in the hospital but had not succeeded in getting “anything definite out of him; [Joshua] would tend to agree with anything you say, both negative or positive,” he wrote in his notes. Nelson thought the patterned marks on Joshua’s body resembled the surface of a ping-pong paddle, but when he had investigated the home none had been found. The police officer’s notes paint a disturbing picture of the DeShaney household. Randy admitted to Nelson that both he and Marie spanked Joshua “when he needs it” with their hands, and he himself used a belt on occasion, but Randy stressed that he never used the buckle end. They cited as an example of Joshua “needing” to be spanked an incident that had occurred a few days before his hospital admission. On that day, they told the detective, Joshua had wet his pants twice and therefore Randy had disciplined him with a spanking. Marie said that Joshua lately had been playing Superman and jumping from his bed into his toy box, and speculated that this boisterous play may have caused some of his injuries. Marie also told Nelson that a few days previously Joshua had fallen on the sidewalk twice while they were walking to the grocery store, which may have explained the extensive bruising on his legs.

The detective then asked her when Joshua had last been bathed. Marie replied that she had given Joshua a bath the night before his emergency room visit, but asserted she had not noticed any unusual bruising at that time. Nor did Joshua appear to have such marks when he had come out of his bedroom that morning, including the quartersized bruise on his face. Nelson asked to see the toy truck with which Joshua reportedly had been struck in the head. Upon examining the toy, Nelson concluded that “it would seem that this toy, being swung hard by a two-year-old, couldn’t produce such a large swelled bump as I witnessed yesterday, but I couldn’t say without some doubt that it is virtually impossible.” To him, the wound looked as if the child’s head had come into contact with a hard surface, such as a wall or a floor. Nelson also spoke with the DeShaneys’ neighbors in the apartment building. One neighbor told him that she often heard a little child crying “almost all day long” but could not identify which of the two little boys it was, nor was she certain if the crying was the result of the child being struck by one of the adults in the apartment. Another neighbor reported hearing Randy “swearing and yelling” but could not confirm hearing anything indicating a beating was taking place.

Although the detective lacked confidence in the various explanations given for Joshua’s injuries, he had not uncovered solid evidence that the child was being physically abused, and whether the abuser was Randy, Marie, or both, and therefore no arrest could be made at the time. But Nelson remained concerned for Joshua’s safety. “My own kids have had bruises on their arms,” he recalled in a deposition several years later, “and they have fallen on their knees, but I couldn’t believe that this number of injuries should be normal, whether it was abuse of the child himself or some destructive qualities or problems, and I just felt that definitely he should . . . have protection for his safety against whatever is causing this [and] should be removed or monitored.” Despite his concerns, however, under Wisconsin law Nelson did not have the authority to remove Joshua from the DeShaney home. According to Nelson, although “a police officer’s opinion can sway what a social worker may do or not do . . . [child protective workers] have to make the final decision as to whether they want to sign that form. A police officer cannot take custody that I know of without their okay.” At the team meeting, Nelson voiced his opinion that “the situation is in need of close supervision by the Department of Social Services and I would hope an ongoing physical surveillance by the hospital and Socia...