Hastings Women’s Law Journal


Michele Miller


The Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services declared that abused children in the legal custody of the state (but residing with their natural parent) have no private cause of action against the state for substantive due process violations. Since the decision, many courts have attempted to circumvent DeShaney by using a "state-created danger theory," by which a state may be liable, under negligence principles, for removing a child from foster care and returning him/her to a parent, despite clear indications that future abuse will occur. This note examines the application of the state-created danger theory in the context of foster care, including the advantages and problems of permitting such a private cause of action. The author assesses whether a private cause of action should be permitted in these instances, and proposes avenues of redress and state accountability where a child's rights have been violated.