Joshua (DeShaney) Braam: Honoring the Person and Reconsidering the Case that, Sadly, Reached the Right Legal Result

Supreme Court

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“Poor Joshua!” Justice Harry Blackmun’s dissent captured many children’s advocates’ responses to DeShaney v. Winnebago County Department of Social Services. Randy DeShaney repeatedly beat his son Joshua and eventually brain damaged him, all while the local CPS officials were aware of the abuse and did not intervene. The Supreme Court held that the Due Process Clause did not give Joshua a legal remedy against the agency. When I first read the case as a law student, I was angry – at Randy DeShaney, at the agency, and at the Court.

Joshua died last November at the age of 36, as Linda Greenhouse recently reported when she revisited his case in the New York Times. The assault left Joshua severely disabled until he died. Richard and Ginger Braam adopted Joshua when he was 12, and Greenhouse reports that they cared for him the rest of his life.

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Reading Greenhouse’s column, and re-reading the Supreme Court’s opinion, my anger at Randy DeShaney and the CPS agency remain, but I am now convinced that the Supreme Court got the legal question right: CPS should have removed Joshua from his father, but their failure to do so was not a constitutional violation.

Here’s the rub: had the Supreme Court ruled differently, CPS agencies would face a legal incentive to remove more children, in a system that already removes many children unnecessarily. “When in doubt, take them out” would have gained a constitutional imprimatur, diminishing children’s and parents’ right to family integrity. That right has been an essential legal tool for children and parents, and one of the few tools capable of leveraging reforms in court which help focus scarce CPS resources on the cases that really need CPS attention.

I would have written the DeShaney opinion differently, but there is at least one part that the Court got right: [H]ad CPS workers “moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.” Or, as Justice Brennan put it in an earlier child welfare case, we should hesitate to grant due process rights when we cannot do so “without derogating from [] substantive liberty” that the Constitution protects in other situations. Neither Justice Blackmun’s or Justice Brennan’s DeShaney dissents address this point.

We need legal tools to make CPS agencies more effective. But the Due Process Clause exists to protect children and families against an overbearing state, not to incentivize removals.


Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

About Josh Gupta-Kagan

Josh is an Assistant Professor, University of South Carolina School of Law and a regular contributor to the NACC Child Law Blog. Before becoming a professor, he worked as a staff attorney at the Children’s Law Center in Washington, DC, for six years. He has represented children, parents, and kinship caregivers in family courts and advocated for policy changes in state legislatures. He teaches a juvenile defense clinic with third year law students, and studies child welfare and juvenile justice law.

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