Justice for Semaj is Rethinking Accountability

In light of the successful intervention that has protected children from neglect and abuse at home, the child welfare system can be praised for its effective services and promising practices for care.[1] In fact, the federally mandated child protective services are essential considering the 4 million referrals alleging maltreatment of 7.2 million children in the latest National Child Abuse and Neglect Data System report of 2015.[2] Less than half of those reported children received an investigation or “alternative response.”[3] Approximately six hundred eighty thousand were deemed victims.[4] A national estimate of 1,670 of those victims became child fatalities—a number that has fluctuated over the past several years.[5] This seemingly low sum only represents reported deaths attributed by maltreatment from families.[6]

Thus, the data implores one critical question: Who reports the fatalities that occur at the hands of the system? States are “increasingly consulting data outside of [child protective services]” to improve their counts,[7] but fail to acknowledge this query.

Substantiated by this national response to the system’s most tragic consequence—child fatalities—the lack of an accountability culture diminishes the purpose and function of child welfare by failing to protect vulnerable children. For instance, child welfare agencies have confirmed that “[a]accountability enables funders, stakeholders, and voters to ensure agencies and their representatives fulfill their responsibilities to whom they serve.”[8] Yet, studies on caseworkers’ accountability practices are “scant,”[9] posing a clear drawback for accountability management, implementation strategies, and measuring progress. Absent the ability to inform child welfare on the significance of accountability, we more importantly find that in the extreme cases of child fatalities, little is done to rectify the overt misjudgment of the system’s authorities.

This article seeks to propose that our impaired child welfare system can be reformed by enforcing criminal penalties for caseworkers in extreme instances where bad-faith conduct results in the deaths of children. Specifically, it will address the broad discretion of caseworkers and lack of accountability which currently plague the system, examining the recent fatality of one-year-old Sema’j Crosby of Joliet, Illinois as a martyr of the current child welfare tragedy. Recognizing the nation’s reluctance to initiate system reforms, this article will proceed in four (4) parts to provide examples of propositions that support this reform and challenge the limits that abrogate states of certain duties. Part I introduces protagonist Sema’j Crosby who represents an extreme case of the child welfare system failing a child. Part II is an extension of this illustration, examining the recent work of child welfare expert and author of Out of Harm’s Way, Dr. Richard J. Gelles, who inadvertently supports criminal liability through his studies. Part III identifies the challenges posed by existing laws but derails these restraints pursuant to the urgency for accountability. Finally, Part IV explicates this proposal and envisions a child welfare system that holds state agencies responsible in situations where the needs of at-risk children are not met while juxtaposing the criminal liability of caseworkers to police officers who face similar consequences in extreme cases.

I. Remembering Sema’j Crosby

On April 25, 2017, one-year-old Sema’j Crosby was reported missing shortly after being seen playing outside with other children.[10] Engulfed by her mysterious disappearance and desperate to safely return Sema’j to her family, the sheriff’s deputies and countless volunteers immediately joined forces and began an extensive search for the baby girl.[11] After scouring nearby ponds, questioning neighbors, and sending a helicopter, bloodhounds, and drones, Sema’j was still not found. The next morning, the Federal Bureau of Investigation (FBI) intervened, refocusing the investigation on Sema’j’s family who was then uncooperative with authorities.[12] That evening, investigators searched the inside of Sema’j’s home where her lifeless body was found underneath a couch.[13] The roach-infested home, described by police as “very deplorable” and “uninhabitable,”[14] had been visited by the Department of Children and Family Services (DCFS) just hours before Sema’j was reported missing.[15] The agency had been involved in several ongoing investigations of the home and purportedly found no safety concerns at that time.[16]

The following week, the baby girl’s life was celebrated at a funeral service coordinated by grief-stricken members of the community.[17] After her burial, her home where she was found was inexplicably burned to the ground, adding another cryptic layer to the story.[18] In September 2017, five months after the incident, the Will County Coroner ruled the child’s death a homicide by asphyxia.[19] Police identified the child’s mother, paternal grandmother, paternal aunt, and a family friend as “persons of interest” in the now criminal investigation, along with a minor who had also been living in the home.[20] In honor of the innocent life lost, community activists organized the Justice for Sema’j Action Team[21] to spread awareness about child neglect and abuse, to seek DCFS policy reforms, and to ultimately ensure that the individuals responsible for the child’s death are brought to justice. Vigils, rallies, and hearings have since been held advocating its cause.[22] Sema’j’s death reached national and international news,[23] and her memory lives on, shedding light on vulnerable children in similar situations who have been maltreated by their families and not adequately serviced by the child welfare system.

The caseworker who visited the home the day Sema’j was reported missing noted “no obvious hazards or safety concerns” for the child or her siblings.[24] But shortly following the one-year-old’s death, DCFS issued a 22-page report disclosing details of ongoing maltreatment in the home.[25] The state agency had been involved with the Crosby family since the previous year with four unfounded investigations for neglect and two others pending as of March 2017.[26] How is it possible then that the children’s safety was determined? In a brief summation of the graphic report, DCFS states:

Multiple reports noting concern about young children being cared for by three related caregivers living in the same home were reported to the State Central Registry over a 10-month period. Three of the child protection investigations involved physical [and sexual] abuse allegations to children who were age three and under, and one seven-year-old with multiple reports had a significant history of emotional and behavioral disturbance for which he had been placed in a therapeutic day school. The pattern of reports, coupled with vulnerability of the children, should have been recognized as requiring comprehensive assessment and intensive interventions by both Intact Family and Investigative Staff.[27]

The report further explicates the family’s history of domestic violence and allegations of inadequate supervision in the home.[28] In considering the ongoing risk factors and the grave consequences for not confronting these issues sooner, it is not clear how safety was confirmed. However, evidenced by DCFS’s response to the situation, any assurance would have been misguided as the prior investigations lacked an adequate assessment. Sensationalizing the incident as a “missed opportunity” and attributing the agency’s incompetence to “report sequencing practices,” [29] DCFS fails to acknowledge the capacity of its role in the child’s death. Rather, its report intended to demonstrate a “willingness to answer tough questions and correct problems” [30] serves as a pivotal exemplar of child welfare agencies lacking effective accountability practices. What is accomplished by issuing a statement that unveils the atrocities once occurring in a deceased child’s home because child protective services refused to ensure her safety? DCFS might argue that its report at least offered “Lessons Learned and Recommendations,”[31] yet it makes no mention of the “chronic mismanagement” of its understaffed office.[32] Moreover, DCFS’s shortfalls—in allowing children like Sema’j to remain in homes where they are neglected, beaten, and molested—cannot be justified where the agency palpably disregarded a longstanding federal decree[33] that aims to curtail heavy caseloads.[34] A result of earlier reforms, the decree was also enforced to protect children from foreseeable, preventable harm and to ensure their prompt placement in safe living conditions.[35]

For state legislators, the agency’s suggestions for reviewing its intervention process are insufficient due to the “lack of transparency about high caseloads and other breakdowns that may have put Sema’j at risk.”[36] In July 2017, DCFS officials attended a joint House and Senate committee meeting in Chicago to address the agency’s handling of the case.[37] During the hearing, new director Beverly Walker defended DCFS deferring to poverty as a factor in Sema’j’s demise.[38] (The former director “resigned in May amid an ethics probe and questions about multiple recent child deaths, including Sema’j’s.”)[39] State representative Mary Flowers contested Walker’s comments, deeming them “disturbing” and “criminal” as they presented no tangible opportunity for change. She particularly noted that the investigative reports in Sema’j’s case were not made until after her death.[40] Walker ensured state officials that some of the proposed improvements delineated in the 22-page report had already been implemented, but Flowers “suggested [that] some problems would be addressed if [DCFS] simply followed existing policies.”[41] She declared, “There are thousands of Sema’j’s out there, and for too long DCFS has been failing the children of this state.”[42] Before the hearing adjourned, Walker pledged to address the agency’s shortcomings, but as of September 2017, no updates or reforms have been related to Flowers[43]—further indicative of a system that does not hold caseworkers accountable.

II. Assessing the Realities of Our Imperfect System

As evidenced by the tragic circumstances illustrated in Part I, the child welfare system is currently plagued by the lack of accountability practices that require caseworkers to adequately meet the needs of children. Instead, caseworkers can perform at their whim, which too often turns children to casualties and leaves families seeking justice they may never find. The next section of this article will further examine the roles of caseworkers and the consequences that ensue from both appropriate and inappropriate behavior. While there have been countless reform proposals, Part II specifically grapples with the recent works of Dr. Richard J. Gelles. Contrasting his depiction of reality to his image of a child welfare utopia, Gelles ironically suggests that criminal liability should be imposed on caseworkers where their misconduct is attributed to the misfortunate instances of child fatalities.

A response to the nation’s fractured child welfare system, Out of Harm’s Way by Dr. Richard J. Gelles delineates the shortcomings of all individuals involved and proposes ideas for reconditioning that can be embraced at both federal and local levels. Gelles accepts that restructuring the child welfare system entirely is unlikely but premises his contentions on an urgency to better further the interests of children.[44] To this end, he creates a fictional “Ideal World” account of a neglected special-needs girl who is ultimately freed from her unsupportive parents and placed with a nurturing adoptive family. In his example, Child Protective Services (CPS) suspects maltreatment early on and then adamantly advocates for a positive outcome where the child is healthy and given adequate care. After several unsuccessful interventions, the state eventually urged the parents to voluntarily terminate their rights. Thus, both the state and parents acted in the child’s best interest which protected her from additional suffering and placed her in an environment to thrive. As an “ideal” account, this depiction is seemingly romanticized, but it is employed to illustrate a practical approach to child welfare reform where caseworkers prioritize the child’s best interest. Essentially, Gelles suggests that the true purpose of the child welfare system is only accomplished under fantastical circumstances. However, his subsequent depiction of the system’s shameful reality can likewise be construed as a guide for reform which alleviates the rights of children.

Trailing Gelles’s “Ideal World” model, Out of Harm’s Way proceeds to present a counter-example of what typically happens when the system fails a child. In this “Real World” account, the neglect of 14-year-old Danieal and absence of reasonable intervention resulted in her death. Case management problems began at the administrative level[45] with employees back-dating and falsifying their reports.[46] Gelles uses Danieal’s experience with CPS to prove that the prevailing child welfare culture is ineffective because it treats parents as the primary client. [47] In many ways, this “realistic” representation is like the tragic story of Sema’j Crosby (and countless others). For example, Danieal’s name was not once mentioned in the CPS reports. Her case was characterized by rogue employees who maintained lax attitudes towards policies and regulations. Supervisors had minimal training, and it was impossible to determine if home-visits had truly been made.[48] Similarly, when Sema’j disappeared, DCFS had been weeks behind on filing[49] yet still inclined to issue an ostensibly “comprehensive” report. But contrarily, seventeen individuals (including caseworkers) were convicted or pled guilty to an array of charges following Danieal’s death. These charges varied from involuntary manslaughter and child endangerment to perjury, conspiracy, and forgery.[50] Unfortunately, the contributors to Sema’j’s egregious fatality have not yet been called to justice.

The lack of accountability in cases like Sema’j’s is a harsh reality that proves even Gelles’s “Real World” paradigm is unrealistic. Noting that jail terms are rare in these situations, Gelles does not intend to prove in setting forth this narrative that CPS should face criminal liability. However, his exhibit supports this claim as it depicts foul players being held criminally liable for imprudent decisions that caused a preventable tragedy. This lesson informs our understanding of accountability for the child welfare system by suggesting there could be more punitive consequences for serious occurrences of caseworker malpractice.

III. State Autonomy In Extending Protection

The former depictions of fatalities caused by the child welfare system portray a vital need for heightened liability. However, implementing said reform would necessitate a complete rethinking of the legal and social conventions that obstruct progression. Part III elucidates these barriers and explains the exigency for implementing revised practices and legislation.

In the early nineteenth century, the concept of parens patriae became an established tenet of American common law and has since then been deeply embedded in the power of states.[51] This authority enables states to guard the interests of minors (and others lacking legal capacity) and allows courts to remove children from parental custody and make further dispositions regarding the well-being of children.[52] While state laws and community standards triggering the doctrine may vary, [53] it is undisputed in the United States that the government has broad authority to regulate the actions and treatment of children.[54] In cases of child neglect, parens patriae operates as an infringement on parental rights. Specifically, the state may act on behalf of a child when it is necessary to extend protection or when the parent fails to furnish the child’s basic needs.[55] Instituted under the assumption that the state doubtlessly acts in the child’s best interest—even more so than parents[56]—this principle has long avoided the actuality that government is not exempt from error. Public duty and immunity doctrines likewise shield states from the negligent acts of their employees, such as caseworkers in this context. But then who limits the power of the government? What happens when the state does not advance a child’s best interests?

By reducing the autonomy of children and expanding states’ rights, our legal and social constructs effectually prevent many individuals from seeking remedies against state child protection agencies. Some states allow negligence actions or criminal charges against caseworkers or agencies, but statutory immunity provisions are often interpreted in an arbitrary fashion which results in inconsistent or unpredictable conclusions.[57] For instance, certain statutes extend immunity to caseworkers where they have exercised “good faith” in fulfilling their duties.[58] Some may extend immunity to caseworkers’ discretionary functions that compel personal judgment or policy-making[59]—permitting the added subjectivity of distinguishing ministerial acts that are conversely imposed by law.[60] Others have held that caseworkers are not susceptible to immunity but do not necessarily offer recourse in extreme occurrences of negligent case management.[61]

While typically justified by the urgency to preserve government funds and a concern for protecting the decision-making of state officials,[62] neither of the above schemes is warranted when a child dies at the hand of the state. In fact, the most significant criticism of upholding these principles is that “the doctrine plainly favors the government at the expense of an innocent victim.”[63] Moreover, deliberations made by caseworkers are generally based on legislative policies,[64] demanding a higher standard of accountability that ensures those mandates are fulfilled. Thus, immunity should be abolished as it is often irreconcilably applied and provides caseworkers excessive independence that does not typically serve the best interests of aggrieved or at-risk children.

Perhaps the most onerous challenge to doctrines like parens patriae and governmental immunity is the infamous Supreme Court case of 1989, Deshaney v. Winnebago County Department of Social Services, which held that a state’s failure to protect an individual against private violence did not violate Fourteenth Amendment Due Process.[65] Precisely, the Due Process Clause forbids states to deprive individuals of life, liberty, and property without due process, but does not impose an affirmative duty on states to provide protection for harms they do not create.[66] Thus, as a matter of Constitutional law, CPS was not held liable—despite its intervention and knowledge of child abuse—in the case of 4-year-old Joshua whose father beat him into a life-threatening coma. The Court affirmed:

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment.[67]

To achieve their preferred result, petitioners would have had to ascertain that Joshua was in fact in state custody (such that parental rights were terminated) when he was harmed.[68] In effect, the foster care system is the preferred forum for challenging children’s protected right to safety.[69] This standard not only disregards the phases of intervention preceding foster care but also implicates inconsistent applications of immunity and regulation through tort law.[70] Scholars have defended these policies relying on the unfeasibility of compensatory damages for persons harmed by social workers’ conduct.[71] However, this rationale overlooks alternative approaches, such as criminal liability.

Proponents of immunity legislation contend that holding even culpable caseworkers accountable for their actions would be too burdensome on the child welfare system. Pointing to the lack of accurate information accessible during investigations, inadequate funding, and the potential for “defensive” social work, these individuals believe that implementing caseworker liability—either criminal or civil—would equate to “unfair blame.”[72] Nonetheless, they agree that “social workers should be held accountable for careless or slothful conduct.”[73] Following this reasoning, it is especially important to reform accountability practices in extreme cases that result in child fatalities. Rather than “inhibiting the recruitment of qualified government employees and stifling vigorous decision-making,”[74] imposing liability on the state “deters negligence, compensates victims, and limits the problems of over-intervention.”[75] This also aligns with the federally funded National Technical Assistance and Evaluation Center for Systems of Care’s[76] 2010 determination that “[a]accountability should be central to system improvement.”[77] Thus, as means of ensuring accountability, states should be held liable for criminally or grossly negligent conduct.

Since the mid-1990s, the child welfare system has grown progressively attentive to accountability practices as evidenced by key legislation, such as the Government Performance and Results Act of 1993, Child Welfare Amendments to the Social Security Act in 1994, and the Child and Family Services Reviews in 2000. Due to meaningful federal standards, advancements in technology, and increasingly supportive families and communities, the efficacy of accountability has strengthened in recent years.[78] However, considering the evasion of various mandates and reprehensible chronicles of defective case management, it is imperative to reevaluate accountability customs and outcomes.

In 2003, the Children’s Bureau funded 9 demonstration grants to test the utility of accountability in an effort to provide guidance for reform to agencies nationwide. Participants observed that some of the major challenges to implementing accountability were the lack of “accountability culture” and evaluators engaged in casework, problems with accurately tracking progress and sharing data, and over-reliance on parents and communities to invite change.[79] Designed to inspire agency leaders to “thoughtfully and faithfully apply what is learned,”[80] this analysis deliberately refutes compliance-driven management thereby failing to envision a system of accountability that holds individuals responsible for culpable conduct. Instead, the response is often merely “a spate of committee meetings, television messages calling on people to report suspected maltreatment, new brochures for professionals describing their legal responsibility to report, and a small increase in staffing,”[81] or other measures that do not actually promote accountability.[82]

In rethinking these customs, it is important to note that “[e]xisting standards set no limits on intervention and provide no guidelines for decision-making. They are a prime reason for the system’s inability to protect obviously endangered children, even as it intervenes into family life on a massive scale.”[83] Admittedly, child protective services cannot guarantee the safety of all children it encounters, but there must be some reasonable expectation of legitimate decision-making and a degree of assurance that state officials will acknowledge when they fall short of that expectation. To this end, the federal government has established national standards to assess state performance as it relates to accountability. Despite the use of sanctions, the program has been proven unproductive because 1) no state has been found to substantially conform to performance goals, and 2) the Secretary of Health and Human Services cannot adjust or negotiate a state’s individual penalties.[84] Considering the foregoing circumstances, children would perhaps be better served if a heightened penalty was uniformly imposed thereby deterring misconduct and ensuring justice for innocent victims.

IV. Criminal Liability as Reform

Expanding upon the reasoning for accountability reform discussed in Part III, Part IV will further provide justification for criminal liability, examining the productive model of criminal liability for law enforcement officials. Sharing similar functions as bureaucratic agencies, police and caseworkers are often analogized in a variety of discussions. This section extends the comparison to accountability by offering a solution to child welfare reform that mirrors reforms enacted for police.

Acknowledging the preventable tragedies occurring at the hands of state officials each year, and absence of legal recourse in many cases, the child welfare system should implement criminal liability to advance accountability practices and ultimately reduce child fatalities. As formerly discussed, existing laws and customs are ineffective in furthering the interests of children and have been proven unproductive due to noncompliance. Moreover, child protective services are endowed with broad authority for decision-making but encounter no serious consequences for incompetent case management. Thus, confronting these challenges with a criminal law approach would curtail unreasonable expectations about what state actors can accomplish, alleviate tensions caused by imbalanced influence, and promote better decision-making.[85]

Criminal liability additionally serves as a response to the nation’s staggering statistics on child homicide.[86] Just as criminal statutes have been proposed to secure convictions for parents—including circumstances where parents indirectly contributed to the abuse[87]—child welfare officials should be criminally liable for failing to prevent abuse in extreme situations. After all, the federal government has vowed to facilitate a review of child fatalities, “ensuring that services are provided for surviving family members [and] providing information to assist in the prosecution of perpetrators.”[88] Though reluctant to admit, those perpetrators often include individuals charged with averting these tragic outcomes. Relying on traditional definitions of criminal negligence,[89] however, it becomes conceivable that a state official might be held liable for contributing to a child’s death. Following this line of reasoning, perverse caseworkers (like those in Danieal’s or Sema’j’s case) should face criminal charges when sufficient evidence supports such consequences. For instance, charges might include involuntary manslaughter or criminal negligence when a child dies after caseworkers intervene then falsify reports or allow children to remain in homes undergoing numerous investigations for physical and sexual abuse or neglect without continued oversight. Furthermore, liability might be imposed on caseworkers who circumvent federal legislation.

Federal courts and scholars have analogized the functions of child welfare workers and criminal prosecutors, often pointing to similarities in the exercise of independent judgment or obligation to intervene.[90] But in considering accountability practices and the potential for criminal liability as child welfare system reform, it may be valuable to extend these comparisons to police officers charged for murder in the line of duty. Like caseworkers, law enforcement officials typically avoid prosecution due to immunity legislation and the discretionary nature of their professions. However, as indicated by a number of incidents, police conduct is not always justified.[91]

In recent years, fatal shootings of unarmed black men have inflamed public concern over police brutality in the United States.[92] Convictions have been rare, but in some cases, justice is served. Notably, in November 2017, former Chicago police officer Marco Proano was sentenced to five years in federal prison for using unreasonable force where he unleashed several shots at a car full of black teenagers.[93] Less than a year earlier, Chicago police officer Jason Van Dyke was charged with the first-degree murder of Laquan McDonald.[94] As depictions of state actors being held criminally liable in instances where misconduct caused death, these examples inform discussions on implementing criminal liability as a function of child welfare accountability. And perhaps the cases where justice was arguably miscarried[95] equally illuminate the system’s urgency for reform.

In the high-profile case of Freddie Gray, Baltimore State’s Attorney Marilyn J. Mosby brought criminal charges against 6 officers ranging from misconduct in office to second-degree murder. Three officers were acquitted, and all remaining charges against the other three were dropped.[96] For many members of the community, these determinations shattered notions of accountability by reinforcing the flawed convention that police are entitled to govern themselves.[97] To this end, activists like Dayvon Love, director of public policy for Leaders of a Beautiful Struggle, pushed to amend the Maryland Law Enforcement Officer’s Bill of Rights.[98] In November 2017, comparable legislation was introduced in Congress. Titled the “Police Accountability Act,” this bill seeks to “provide a penalty for assault or homicide committed by certain State or local law enforcement officers.”[99] Specifically, the Act applies to police officers—receiving federal funding pursuant to the Omnibus Crime Control and Safe Streets Act of 1968[100]—who in the line of duty have authority to make arrests, carry firearms, and are engaged in or supervise prosecutions, investigations, incarcerations, or crime prevention.[101] In the same respect, caseworkers are public agents authorized to facilitate intervention, investigate families, and prevent abuse/neglect.[102] They are additionally subject to the risks of self-rewarding behavior and unimpeded decision-making.[103] Considering these parallels, child welfare officials should likewise be subject to criminal liability when they contribute to child fatalities.

V. Conclusion

Though habitually attributed to child maltreatment, child fatalities often occur at the hand of the state—specifically by the caseworkers presumed to facilitate care. Albeit, the child welfare system is not solely to blame in instances where life is lost. However, by examining accountability practices and laws favoring the government, it becomes gruesomely clear, that those individuals are hardly brought to justice. Helpless children like one-year-old Sema’j Crosby reaffirm this realization. To date, not one person has been charged in the criminal prosecution of this child’s homicide, and for DCFS, “accountability” is merely offering suggestions for improvement that might not be enforced.

In an effort to reform the child welfare system, criminal liability should therefore be imposed to deter the misjudgment that fosters these tragedies and to ensure justice for innocent victims of the system. Like law enforcement officials, caseworkers have broad discretion in executing their duties and are traditionally immune from prosecution. But as demonstrated by recent police brutality cases and proposed legislation, the landscape for police accountability is changing. For the sake of the individuals it aims to protect, and in furtherance of misplaced justice, our child welfare system must be accordingly flexible and contemplative enough to undertake a similar reform.

[1] See generally Child Welfare Information Gateway, How the Child Welfare System Works (2003).

[2] U.S. Dep’t of Health and Human Serv., Children’s Bureau, Child Maltreatment 2015, at xii (2015) https://www.acf.hhs.gov/sites/default/files/cb/cm2015.pdf.

[3] This term refers to any response other than an investigation that determines a child or family needs protective services. Here, no determination regarding a perpetrator or maltreatment is made. States may report findings as either “alternative response victim” or “alternative response non-victim.” These categories are combined in the 2015 report.

[4] Id.

[5] Id. at 52.

[6] Id.

[7] Id.

[8] Nat’l Tech. Assist. and Eval. Ctr. for Sys. of Care, Accountability, A Closer Look 1 (2010), https://www.childwelfare.gov/pubPDFs/accountability.pdf.

[9] Kwangseon Hwang, Accountability Practices in Public Child Welfare Services, 39 Int’l. J. Pub. Admin. 587 (2016).

[10] Brian Stanley, Timeline: The disappearance and death of Preston Heights toddler Semaj Crosby, Herald News (Apr. 28, 2017), http://www.theherald-news.com/lists/2017/04/28/5bb71c7f4658474f91e3415a93ff8d78/index.xml?page=1.

[11] Lauren Petty, Frantic Search After 16-Month-Old Girl Goes Missing in Joliet Township, NBC Chicago (Apr. 26, 2017, 5:33 AM), https://www.nbcchicago.com/news/local/Frantic-Search-for-1-Year-Old-Girl-Missing-From-Joliet-420456353.html.

[12] Supra n. 11.

[13] Alicia Fabbre et al., Missing Toddler Found Dead in ‘Deplorable’ Home Where ‘Squatters’ Often Lived: Police, Chicago Tribune (Apr. 27, 2017, 10:31 PM), http://www.chicagotribune.com/news/local/breaking/ct-missing-joliet-toddler-dead20170427-story.html.

[14] Id.

[15] Alicia Fabbre & Chrissy Gutowski, Judge Rips Caseworkers Who Visited Squalid Home Before Toddler Died, Chicago Tribune (May 3, 2017, 6:45 AM), http://www.chicagotribune.com/news/local/breaking/ct-joliet-child-protection-hearing-met-20170502-story.html.

[16] Id.

[17] Emily Florez, Funeral Services Held for Semaj Crosby Friday, NBC Chicago (May 6, 2017), https://www.nbcchicago.com/news/local/Funeral-Services-Semaj-Crosby-421433093.html.

[18] Fire Destroys Home Where Semaj Crosby Was Found Dead, NBC Chicago (May 7, 2017), https://www.nbcchicago.com/on-air/as-seen-on/semaj-crosby-house-burned-421546243.html.

[19] Alicia Fabbre & Gregory Pratt, Joliet Toddler Semaj Crosby's Death Ruled a Homicide by Asphyxia, Chicago Tribune (Sept. 15, 2017, 8:05 PM), http://www.chicagotribune.com/news/local/breaking/ct-semaj-crosby-cause-of-death-0916-20170915-story.html.

[20] Id.

[21] Justice for Semaj Action Team (@JusticeforSemaj), Facebook, https://www.facebook.com/JusticeForSemaj/.

[22] Id.

[23] E.g. 17-Month-Old Semaj Crosby’s Death Ruled a Homicide, Her Grandmother and Family Friend are People of Interest, BET News (2017),

https://www.bet.com/video/news/national/2017/17-month-old-semaj-crosby-found-dead-under-couch.html; Toddler Found Under Couch Suffocated, Death Ruled Homicide, NBC Universal (Sept. 15, 2017, 9:00 PM), https://www.nbcdfw.com/news/national-international/Cause-of-Death-Released-for-Toddler-Semaj-Crosby-444728493.html.

[24] DCFS Visited Joliet Home 33 Hours Before Baby Found Dead There, Fox Chicago, (Apr. 27, 2017, 6:09 AM), http://www.fox32chicago.com/news/crime/dcfs-visited-joliet-home-33-hours-before-baby-found-dead-there.

[25] Read the DCFS Semaj Crosby Report, Chicago Tribune (May 26, 2017, 3:41 PM), http://www.chicagotribune.com/news/ct-dcfs-semaj-crosby-report-20170526-htmlstory.html.

[26] Stefano Esposito & Jeff Mayes, Semaj Crosby’s Godmother Rants as Baby’s Death Still Being Probed, Chicago Suntimes (Apr. 30, 2017, 2:42 PM), https://chicago.suntimes.com/news/joliet-twp-home-where-girl-died-not-fit-for-human-occupancy/.

[27] Supra n. 25, at 15–16.

[28] Id.

[29] Id.

[30] David Jackson & Gary Marx, At DCFS Office That Handled Semaj Crosby Case, a ‘Toxic’ Work Environment, Chicago Tribune (Sept. 15, 2017 4:08 PM), http://www.chicagotribune.com/news/watchdog/ct-dcfs-semaj-caseloads-met-20170915-story.html.

[31] Supra n. 25, at 18.

[32] Supra n. 30.

[33] See id.

[34] B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989) (holding that children placed in state custody—direct or indirect—have Fourteenth Amendment substantive due process rights to be free from arbitrary intrusions on their physical and emotional well-being and to be provided with adequate food, shelter, clothing, medical care and minimally adequate training to secure these basic constitutional rights); see also Univ. of Mich. L. Sch., Civil Rights Litigation Clearinghouse, https://www.clearinghouse.net/detail.php?id=11161 (last updated Sept. 28, 2016); see generally B.H. v. Sheldon, ACLU Illinois, https://www.aclu-il.org/en/cases/bh-v-sheldon (last visited Dec. 22, 2017).

[35] Univ. IL. Sch. Soc. Work, Children & Family Research Center, Conditions of Children in or at Risk Foster Care in Illinois: 2015 Monitoring Report of the B.H. Consent Decree, at I-1, I-4 (2015) https://www.aclu-il.org/sites/default/files/field_documents/conditions_of_children_in_or_at_rist_of_foster_care_in_illinois.pdf.

[36] Gary Marx & David Jackson, Illinois Lawmakers Seek DCFS Data About the Caseloads of Child Welfare Investigators (Sept. 28, 2017 9:51 AM), http://www.chicagotribune.com/news/watchdog/ct-dcfs-lawmakers-caseloads-met-20170926-story.html.

[37]Alicia Fabbre, DCFS Vows Change in Wake of Joliet-Area Toddler’s Death, Chicago Tribune (July 25, 2017, 6:23 PM), http://www.chicagotribune.com/news/local/breaking/ct-dcfs-semaj-crosby-hearing-met-20170724-story.html.

[38] Id.

[39] Id.

[40] Id.; see also David Jackson et al., DCFS Was Weeks Behind in Filing Reports When Semaj Crosby Disappeared, Records Show, Chicago Tribune (May 31, 2017, 7:04 AM), http://www.chicagotribune.com/news/watchdog/ct-met-dcfs-late-reports-met-20170530-story.html.

[41] Supra n. 37.

[42] Id.

[43] Supra n. 36.

[44] Richard J. Gelles, Out of Harm’s Way: Creating an Effective Child Welfare System (Oxford Press 2017).

[45] Id. at 29.

[46] Id. at 33.

[47] Id. at 41.

[48] Id. at 38–42.

[49] David Jackson et al., DCFS Was Weeks Behind in Filing Reports When Semaj Crosby Disappeared, Records Show, Chicago Tribune (May 31, 2017, 7:04 AM), http://www.chicagotribune.com/news/watchdog/ct-met-dcfs-late-reports-met-20170530-story.html.

[50] Supra n. 44, at 45.

[51] 1 Children & the Law: Rights and Obligations § 2:12 (2017).

[52] Id.

[53] Id.

[54] See e.g., Prince v. Massachusetts, 321 U.S. 158 (1944) (“The state’s authority over children’s activities is broader than over like actions of adults…A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers, within a broad range of selection…It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power, whether against the parents claim to control of the child or one that religious scruples dictate contrary action.”).

[55] See e.g., In Interest of A.B., 492 N.W.2d 446, 448 (Iowa Ct. App. 1992); Matter of Appeal in Cochise Cty. Juvenile Action No. 5666-J, 650 P.2d 459 (1982).

[56] See Parham v. J. R., 442 U.S. 584, 605 (1979) (“The parens patriae interest in helping parents care for the mental health of their children cannot be fulfilled if the parents are unwilling to take advantage of the opportunities because the admission process is too onerous, too embarrassing, or too contentious.”).

[57] See Laura Huber Martin, Caseworker Liability for the Negligent Handling of Child Abuse Reports, 60 U. Cin. L. Rev. 191 (1991).

[58] Id. at 201; Cf. Brown v. Board of Education, 347 U.S. 483 (1954) (ordering a vague requirement of “deliberate speed” and failing to address moral responsibility which allowed segregationists to organize mass resistance).

[59] Supra n. 57, at 213; E.g., Bradford v. Davis, 626 P.2d 1376, 1382 (1981) (citing McBride v. Magnuson, 578 P.2d 1259 (1978) (“Repeated decisions of this court have emphasized that when an action under the Tort Claims Act alleges tortious conduct by a named officer, employee, or agent in the performance or nonperformance of his or her duties…[t]he question of immunity is… whether the defendant had been delegated responsibility for a policy judgment and exercised such responsibility in the act or omission alleged to constitute the tort.”).

[60] See generally Andrea MacIver & Daniel Pollack, Ministerial Versus Discretionary Acts

or Omissions in Child Welfare Litigation, 44 Cap. U. L. Rev. 103 (2016) (discussing the differences between ministerial and discretionary duties and the inconsistent application of immunity in child welfare cases).

[61] Supra n. 57, at 212; E.g., Midamerica Tr. Co. v. Moffatt, 511 N.E.2d 964, 968 (1987) (refusing to mention the statutory immunity provision but holding that the common law public official immunity protected a caseworker from liability).

[62] Id. at 211, 214.

[63] Id. at 210.

[64] Supra n. 51.

[65] DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989).

[66] Id. at 195.

[67] Id. at 203.

[68] Id. (“[T]he harm was inflicted not by the State of Wisconsin, but by Joshua’s father. The most that can be said of the state functionaries in this case is that they stood by and did nothing…[but] had they 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.”).

[69] Laura A. Harper, The State’s Duty to Children in Foster Care—Bearing the Burden of Protecting Children, 51 Drake L. Rev. 793, 802 (2003).

[70] See id. at 813.

[71] Rebecca Aviel, Restoring Equipose to Child Welfare, 62 Hastings L.J. 401, 442 (2010).

[72] Douglas J. Besharov, Child Welfare Liability: The Need for Immunity Legislation, 7 Child. Legal Rts. J. 1 (1986).

[73] Id. at 2.

[74] Supra n. 57, at 210.

[75] Susan Lynn Abbott, Liability of the State and its Employees for the

Negligent Investigation of Child Abuse Reports, 10 Alaska L. Rev. 401 (1993).

[76] Nat’l Tech. Assist. and Eval. Ctr. for Sys. of Care Resources, https://www.childwelfare.gov/topics/management/reform/soc/communicate/initiative/ntaec/.

[77] Supra n. 9, at 10.

[78] Id. at 5.

[79] Id. at 6–9.

[80] Id. at 10.

[81] Supra n. 2, at 554.

[82] E.g. U.S. Gov’t Accountability Off., GAO-11-599, Child Maltreatment: Strengthening National Data On Child Fatalities Could Aid in Prevention (2011) (addressing the failures of parents in child maltreatment cases but offering no suggestions for improving “accountability” where child fatalities occurred after state intervention).

[83] Id. at 570.

[84] Casey Family Programs, The Role of Accountability in Child Welfare Finance Reform, April 2011, at 5, http://www.casey.org/media/WhitePaper-Accountability.pdf.

[85] Supra n. 2, at 587.

[86] See Lissa Griffin, “Which One of You Did It?” Criminal Liability

for “Causing or Allowing” the Death of a Child, 5 Ind. Int’l. & Comp. L. Rev. 89 (2004).

[87] Id. at 105.

[88] Child Welfare Information Gateway, Child Abuse and Neglect Fatalities 2015: Statistics and Interventions (2017), https://www.childwelfare.gov/pubPDFs/fatality.pdf.

[89] 2 Wharton’s Criminal Law § 169 (2017).

[90] Supra n. 71, at 428; see also Zachary W. Oberfield, Rule Following and Discretion at Government's Frontlines: Continuity and Change during Organization Socialization, 20 J. Pub. Admin. Res. & Theory 735 (2010).

[91] Robert Grimminck, 10 Cops Who Were Convicted for Killing in the Line of Duty, Listverse (Apr. 4, 2015), https://listverse.com/2015/04/04/10-cops-who-were-convicted-for-killing-in-the-line-of-duty/.

[92] Madison Park, Police Shootings: Trials, Convictions are Rare for Officers, CNN (June 24, 2017, 8:18 PM), http://www.cnn.com/2017/05/18/us/police-involved-shooting-cases/index.html.

[93] Aamer Madhani, Chicago Cop Gets Five Years in Federal Prison for Firing Barrage of Bullets at Teens, USA Today (Nov. 20, 2017, 9:02 PM), https://www.usatoday.com/story/news/2017/11/20/chicago-police-officer-marco-proano-sentence-five-years-prison/883151001/.

[94] Ray Sanchez, Laquan McDonald Death: Officer Indicted on 16 New Charges, CNN (June 27, 2017, 5:02 PM), http://www.cnn.com/2017/03/23/us/laquan-mcdonald-case-hearing/index.html.

[95] http://killedbypolice.net.

[96] Tim Prudente, With Prosecutions Over, Six Baltimore Officers Back at Work After Death of Freddie Gray, Baltimore Sun (Nov. 30, 2017, 5:25 PM), http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-officers-back-to-work-20171128-story.html.

[97] Lawrence Grandpre Speaks at Hearings on Police Accountability, Baltimore United for Change Blog (Feb. 25, 2016), http://bmoreunited.org/2016/02/lawrence-grandpre-speaks-at-hearings-on-police-accountability-%E2%80%AA%E2%80%8Ebmoreunited%E2%80%AC/.

[98] Baltimore Rising (Home Box Office 2017).

[99] Police Accountability Act of 2017, H.R. 4331, 115th Cong. (2017).

[100] 42 U.S.C. 3750 et seq (permitting federal and state law enforcement officers to use wiretapping and electronic eavesdropping under strict limitations).

[101] Supra n. 99.

[102] See U.S. Dep’t of Health and Human Serv., Children’s Bureau, Child Protective Services: A Guide for Caseworkers (2003), https://www.childwelfare.gov/pubPDFs/cps.pdf.

[103] See e.g., Steven Maynard-Moody & Michael Musheno, State Agent or Citizen Agent: Two Narratives of Discretion, 20 J. Pub. Admin. Res. & Theory 735 (2000).