Court to Rule on Officials Who Ignore Child Abuse

The Supreme Court agreed Monday to decide whether county child care workers may be held liable for “gross negligence” for failing to protect a child who was bruised, battered and nearly beaten to death by his father.

A ruling in the case, likely to be issued early next year, could have an impact on thousands of other public employees such as schoolteachers and hospital workers if they are given the legal duty to protect abused children and fail to act in the face of clear evidence that a child is in danger.

The case focuses on Joshua DeShaney, a Wisconsin boy who was 4 years old when he suffered irreparable brain damage in 1984 from a beating by his father. The boy, now 9, was left profoundly retarded and is in a county foster-care facility today. His father, Randy DeShaney, who had custody of Joshua, was convicted of child abuse and is completing a 2- to 4-year sentence in a Wisconsin prison.

Joshua had come to the attention of authorities in January, 1983, when he was taken to a hospital suffering from bruises and cuts. His stepmother said he had been in a fight with another child. Hospital workers suspected child abuse and turned the case over to the Winnebago County Department of Social Services.

Five times in the next year, the boy was treated at hospitals for injuries ranging from bumps, cuts and swollen ears to a scratched cornea. Once, the child care worker assigned to Joshua’s case visited him at home and noted an apparent cigarette burn on his chin. On two other occasions early in 1984, she went to the house but did not see the boy because the stepmother said he was in bed with flu or “fainting spells.”

At no point did the county worker seek to have the boy removed from the home.

The suit, filed on behalf of Joshua and his natural mother, Melody DeShaney, seeks damages to help pay for the boy’s care. Their attorney, Donald J. Sullivan of Cheyenne, Wyo., said he hopes the case will put child care workers on notice that they have a legal duty to intervene in such extreme cases.

Benefit to Children Cited

” . . . There are presently alive in this country children who are being physically abused who will benefit directly from a court-encouraged increase in vigilance by the designated public authorities,” Sullivan said in his appeal to the high court.

In many states, including California, teachers, hospital workers and others are required to report suspected child abuse cases.

However, the DeShaney case takes the process a step further, by contending that the child’s constitutional rights are being violated when officials fail to intervene in a dangerous situation.

The suit tests the limits of the 14th Amendment, which says government may not “deprive any person of liberty . . . without due process of law.” Sullivan contends that “grossly negligent misconduct” by government officials violates that amendment.

Dilemma for Social Workers

But a lawyer who represents the county, the child care worker and her superiors said the threat of a damage suit presents workers with an awful dilemma.

“If they prematurely remove a child, they can be sued by the parents. If they fail to remove him, they could be sued, too,” said attorney Mark J. Mingo of Milwaukee. “I don’t think social service workers can operate in that environment.”

None of the hospital workers could confirm that the child’s injuries were due to parental abuse, Mingo said, and there were no witnesses to testify about what happened. Child care workers may not remove a child simply because they have a “bad feeling” about what might happen, he said.

A federal district court in Milwaukee dismissed the lawsuit, and an appeals court in Chicago upheld that decision last year. Arguments in the case (DeShaney vs. Winnebago County, 87-154) will be heard in the fall.

Suits Over Paddlings

In other actions, the court:

--Let stand an appeals court ruling from New Mexico that says that, in extreme cases, public school students may sue for damages on claims that their constitutional rights have been violated by a severe paddling. This case (Miera vs. Garcia, 87-603) was returned for trial. School officials had contended that they should have immunity from such suits when carrying out their legal duties.

--Agreed to decide whether a state may be forced to pay for the cost of pollution cleanup under the federal Superfund program if the state had a role in causing the problem. Attorneys for 17 states, including California, contend that they are immune from such federal actions. (Pennsylvania vs. Union Gas, 87-1241.)

--Refused to let state and local governments regulate the price of basic service provided by cable television operators. In 1984, Congress said local cable operators should be free of price limits on basic service if there was “effective competition” in the area, and the Federal Communications Commission in 1986 said competition was available if viewers could watch any three other channels without paying. (Connecticut vs. FCC, 87-671.)

--Refused to intervene in the tangled litigation over the Dalkon Shield birth control device and the bankrupt A. H. Robins Co. of Richmond, Va. Attorneys representing women who were harmed by the intrauterine device had filed suits asking for a $15-million fund to compensate some victims and for the right to sue the company’s insurer. But an appeals court rejected both suits pending the outcome of the bankruptcy action. Under a pending District Court order, a planned merger between Robins and American Home Products Corp. would create an immediate $100-million fund to handle pending claims and a $2.4-billion trust to handle other outstanding claims. (Mabey vs. A. H. Robins, 87-1267.)

Boy Hanged Self

--Refused to reinstate a jury award won by the mother of a 14-year-old New Orleans boy who hanged himself after reading an article about “autoerotic asphyxiation” in Hustler magazine. An appeals court ruled in favor of Hustler on the grounds of a free press. Attorneys for the mother contended that the magazine was pornographic and should be held responsible for the boy’s death. (Herceg vs. Hustler, 87-113.)

--Justice Harry A. Blackmun took the unusual step of criticizing a former Stanford University law dean for high legal fees in a case assigned by the justices. The former dean, Charles J. Meyers, now a partner in the Denver office of Gibson, Dunn & Crutcher, was assigned to referee a Pecos River dispute between Texas and New Mexico and recently submitted a bill of $69,661 in fees incurred since 1986. In reviewing the bill, Blackmun said Meyers was charging $290 an hour and an assistant $200 an hour. In a sole dissent to the payment, Blackmun said the fees should be lowered to $50,000, adding that such high costs add to “public dissatisfaction . . . and public distrust of lawyers.” (Texas vs. New Mexico, No. 65.)

Related stories on Page 3 and in Part II, Page 3.