DeShaney v. Winnebago County (1989): Does the Constitution Require the State to Protect a Child at Home?
In DeShaney (1989), the U.S. Supreme Court held that a county's failure to protect a boy from his father's violence did not violate the Due Process Clause, because the Clause generally does not require a State to protect people from private violence. The Court said States may create such duties through their own laws, and it expressed no view on whether a duty arises for a child the State places in a foster home.
The short answer
In DeShaney v. Winnebago County, the U.S. Supreme Court held that a county did not violate the Constitution when it failed to protect a young boy from his father's violence. The Court said that, as a general matter, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause" DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
The decision is about what the federal Constitution requires. It is not a ruling that child welfare agencies have no duties at all. The Court said a State may create duties of care through its own courts and legislatures DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
What the case was about
The Court called the facts "undeniably tragic" DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). The petitioner was a boy, Joshua DeShaney, who lived with his father. Local social workers and officials received complaints that the father was abusing him and had reason to believe it, but they did not remove him from his father's custody DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
In January 1983, the boy was admitted to a hospital with multiple bruises and abrasions. The county Department of Social Services got a juvenile court order placing him in the hospital's temporary custody. A county child protection team then decided there was not enough evidence of abuse to keep him in the court's custody, and the juvenile court returned him to his father DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
In March 1984, his father beat the 4-year-old so severely that he fell into a life-threatening coma. He survived with severe brain damage. His father was later convicted of child abuse DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
The boy and his mother sued the county, its Department of Social Services and several employees in federal court under 42 U.S.C. §1983, claiming a due process violation for failing to protect him. The trial court ruled for the county side, and the federal court of appeals affirmed DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
What the court decided
Chief Justice Rehnquist wrote the opinion of the Court. Justice Brennan dissented, joined by Justice Marshall and Justice Blackmun, and Justice Blackmun also wrote his own dissent DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
The claim was about substantive due process, not procedure. The family did not say the State used unfair procedures. They said it was "categorically obligated to protect him" DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). The Court said the Due Process Clause "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." Its purpose "was to protect the people from the State, not to ensure that the State protected them from each other" DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
The family argued that a "special relationship" arose because the State knew of the danger and had promised to help. The Court rejected that argument. It agreed that in "certain limited circumstances" the Constitution does require the State to protect particular people. But that duty applies when the State takes a person into its custody and holds him there against his will. It comes from the State's limits on the person's freedom, not from its knowledge of the danger or its intent to help DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
Here, the harm happened while the boy was in his father's custody, not the State's. The State played no part in creating the danger. Its earlier temporary custody did not change that, because returning him left him "in no worse position" than if it had not acted at all. So the State "had no constitutional duty to protect" him DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
The Court was careful about what it did not decide:
- Foster care. In a footnote, the Court said that if the State had placed a child "in a foster home operated by its agents," that might be enough like incarceration to create a duty to protect. It expressed "no view" on that question because it was not before the Court DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
- State law. The State may have taken on a duty under state tort law, but the Due Process Clause does not turn every such wrong into a constitutional violation DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). The Court said the people of Wisconsin could create a system of liability by changing their State's tort law DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
- Equal protection. A State may not selectively deny protective services to disfavored minorities without violating the Equal Protection Clause DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
- Other questions. The Court declined to consider a new argument that Wisconsin's child protection statutes created an "entitlement" to services. It also did not reach qualified immunity DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
The judgment was affirmed DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). Justice Brennan's dissent argued "that inaction can be every bit as abusive of power as action." Justice Blackmun's dissent saw "active state intervention," not "mere passivity" DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). Those views did not carry the Court.
In the court's words
The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security.
In plain English: the clause limits what government may do to you. It does not, by itself, promise protection from other people DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.
In plain English: a constitutional duty to protect comes from the State holding someone in custody, not from knowing about a danger DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes.
In plain English: States can write their own laws requiring protection, even though the Constitution does not DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
Why it matters for Texas families
DeShaney is about the limits of one federal constitutional claim. It does not describe what Texas law requires of DFPS. State law can set duties of its own. For example, the Texas Family Code says DFPS "shall make a prompt and thorough investigation" of a report of child abuse or neglect by a person responsible for a child's care Tex. Fam. Code §261.301(a). DeShaney says nothing about what remedies, if any, Texas law provides. That is a question for a lawyer. See The Texas CPS Investigation Process, Step by Step (Family Code §§261.301–261.302).
The case also shows both sides of the Due Process Clause. The Court noted that if the officials had moved too soon to take the boy from his father, they would likely have faced "charges of improperly intruding into the parent-child relationship," based on the same Due Process Clause DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). The same clause is the one the Court relied on to protect parents in termination cases Santosky v. Kramer, 455 U.S. 745 (1982). See Santosky v. Kramer (1982): The Proof Needed to End Parental Rights.
This page is legal information, not legal advice.
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Sources
- DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) checked 2026-10-02
- Tex. Fam. Code §261.301 · full text here checked 2026-10-02
- Santosky v. Kramer, 455 U.S. 745 (1982) checked 2026-10-02
Every legal statement on this page was checked word for word against the official sources above on 2026-10-02. Not yet reviewed by an attorney. Legal information, not legal advice.