0dissenting). Joshua DeShaney was just two weeks short of his fourth birthday when his father beat him so severely that he fell into a life-threatening coma. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 193 (1989). The doctors who performed emergency brain surgery on Joshua founds pools of rotted blood in his brain resulting from his father's repeated beatings.1
Joshua and his mother (hereafter "Joshua") began an action under 42 U.S.C. § 19832 against the Winnebago County Department of Social Services, several caseworkers and other officials for depriving them of their liberty interest in their personal safety under the due process clause of the Fourteenth Amendment to the United States Constitution. The due process clause provides in part: "No State . . . shall . . . deprive any *944person of life, liberty, or property, without due process of law ...." U.S. Const, amend. XIV, § 1. The Seventh Circuit Court of Appeals affirmed the federal district court's decision dismissing Joshua's action. DeShaney v. Winnebago County Dep't of Soc. Servs., 812 F.2d 298 (7th Cir. 1987), aff'd, 489 U.S. 189 (1989). The court concluded that the due process clause did not require the state to protect Joshua from the beatings inflicted on him by a private actor — his father. On certiorari, the Supreme Court affirmed the lower courts.
The trial court herein concluded that DeShaney required that it grant respondents' motion for summary judgment dismissing appellants' § 1983 action. I disagree. I conclude that appellants state claims under the procedural and substantive components of the due process clause. This case is distinguishable from DeShaney because the child and his family involved herein were subject to a juvenile court's dispositional order which removed the child from his home and placed him in the custody of the Dane County Department of Social Services for one year. Joshua DeShaney was not subject to a dispositional order and remained in his home.
The due process clause has two components: a procedural component and a substantive component. Zinermon v. Burch, 494 U.S. 113, 125 (1990). DeShaney involved only the substantive component. The case before us involves both. I conclude that because the state assumed the duty to care for Robby and his family, and its agents were recklessly indifferent to that duty, it deprived appellants of their liberty interest in their personal safety under the substantive component of the due process clause. I further conclude that because respondents forced Robby's father and stepmother to accept Robby back into their home without *945notice and an opportunity to object as required by § 48.357(1), Stats., they deprived them of procedural due process.3 In this case, respondents' deprivation of appellants' right to procedural due process contributed to and overlapped their deprivation of appellants' right to substantive due process.
SUBSTANTIVE DUE PROCESS
Chief Justice Rehnquist, who authored the majority opinion in DeShaney, stated that the most that could be said as to the Winnebago County caseworkers was that they stood by and did nothing while Joshua's father beat him to the point of permanent insensibility. 489 U.S. at 203. Joshua was not in physical custody of the state nor was he subject to the department's formal supervision. The majority of the Court agreed that the state had no obligation under the due process clause to protect Joshua from his father's violence, even though the state's agents knew that Joshua's father was regularly battering him. The social worker who periodically visited Joshua's home expressed her belief that "the phone would ring some day and Joshua would be dead." Id. at 209 (Brennan, J., dissenting). In the instant case, the majority concludes that appellants' liberty interest in their personal safety was not protected by the due process clause because neither Robby nor his family was in physical custody of the state;4 nor was Robby a *946state actor when he shot and seriously wounded appellants.
While the physical custody requirement has the advantage of all bright-line rules, it has no support in DeShaney or decisions prior or subsequent to DeShaney. The overwhelming majority of the courts have held that when the state assumes a duty to protect a person who is not in the physical custody of the state, the due process clause requires that the state not be recklessly indifferent to that duty.
Not since Roe v. Wade, 410 U.S. 113 (1973), modified by Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992), has a decision of the Supreme Court evoked such critical commentary from the interpretive community as has DeShaney.5 Professor Aviam Soifer calls *947Chief Justice Rehnquist's opinion an "abomination." Soifer, Moral Ambition, Formalism, and the "Free World” of DeShaney, 57 Geo. WASH. L. Rev. 1513,1514 (1989). Professor Jack M. Beermann describes Rehnquist's "free society" distinction as "bizarre." Beermann, Administrative Failure and Local Democracy: The Politics of DeShaney, 1990 Duke L.J. 1078, 1087.
Professor Soifer's allusion to the "free world" of Joshua DeShaney refers to Chief Justice Rehnquist's assertion that "[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." DeShaney, 489 U.S. at 201 (emphasis added). In this case, respondents recklessly required Robby's father and stepmother to reassume their duty to care for Robby, without informing them that Robby continued to use drugs and was potentially violent. The caseworker's "reckless indifference" lies principally in his ipse dixit decision to compel Robby's father and stepmother to accept Robby back into their home without informing himself and appellants as to whether Robby was ready to return home. The worker's decision was not based on his assessment that Robby was ready for the "free world" but that the department had no placement available to treat Robby's needs. I conclude that lack of available placement does not excuse the *948department's failure to care for Robby according to his needs.
Soifer claims that Rehnquist severely diminished the extent of the involvement of the Winnebago County Department of Social Services and its workers in Joshua's situation. 57 Geo. WASH. L. Rev. at 1518. Regardless, that involvement did not approach the almost total involvement of the Dane County Department of Social Services in Robby's life. It is the extent of that involvement which distinguishes the present case from DeShaney.
In DeShaney, Judge Posner framed the constitutional question presented to the Supreme Court as whether "a reckless failure by Wisconsin welfare authorities" to protect a child under the state's supervision might violate the due process clause. DeShaney, 812 F.2d at 299. Professor Soifer points out how easy it would have been for the DeShaney majority to reach the opposite result, and to do so on narrow grounds, in view of Judge Posner's description of the constitutional issue. 57 Geo. Wash. L. Rev. at 1516 n.14. Professor Soifer argues that:
[I]t... would have been very easy to decide this case on the narrow basis of its appalling facts, because the particular governmental inaction, despite repeated contact by state officials, surely rises to the level of "deliberate indifference," "recklessness," or "gross" negligence made actionable even under this Court's recent, stingy precedents.
Id. at 1527. In the case before us, it is not governmental inaction which rises to such levels; it is the affirmative action of the state's agents in coercing the Joneses to accept Robby back into their home, when the state's agents knew or should have known that he continued *949to use illegal drugs and remained potentially dangerous, especially to his stepmother at whom most of Robby's hatred was directed.6
Rehnquist refused to " 'thrust upon' the people of Wisconsin an unworthy expansion of the Due Process Clause." 57 Geo. WASH. L. Rev. at 1529 (quoting DeShaney, 489 U.S. at 203). I do not believe that the people of Wisconsin would consider it an unworthy expansion of the due process clause to require their juvenile courts and social service departments to protect children and families over whom they have assumed supervision.
Chief Justice Rehnquist adopts Judge Posner's view of the constitution as a charter of negative liberties. See 489 U.S. at 195. In Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982), Judge Posner wrote: "The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order." See also Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (Judge Posner stated that "the Constitution is a charter of negative rather than positive liberties. The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them." (citations omitted)), cert. denied, 465 U.S. 1049 (1984). Thus, the substantive component of the due process clause protects the individual from arbitrary and capricious action by the state and its agents but does not protect them from private violence. The constitution *950does not require the state to maintain police departments; that is a decision made by the people's representatives.
Rehnquist hints that the due process clause would have protected Joshua if the state had worsened Joshua's situation. See 489 U.S. at 201. In this case, the state worsened Robby's family's situation by coercing them to accept him back into their home before he was ready for the "free world," and assuring his father and his stepmother that Robby had made such progress that he was ready to be returned to their home. It is undisputed, however, that when the caseworker sought to return Robby to his home after his discharge from Thoreau House, his father and stepmother objected and the caseworker placed Robby at Bockari House, a temporary facility to which juveniles are assigned who are awaiting disposition. The stepmother deposed that the caseworker assured her that Robby would get help at Bockari House. The appellants allege that the caseworker knew that Bockari House was not a treatment facility.
It is also undisputed that the caseworker based his decision to return Robby to his home on his belief that "[d]uring August [1982], Robby maintained the highest level at Bockari due to good behavior, and he completed summer school, and attended AA meetings and visited with his parents." The caseworker later admitted that these facts were not true. In his reply brief however, the worker continues to rely on facts which he knows are not true: "Robby was at a high level of behavior at Bockari House and had consistently improved in both individual and family therapy throughout his stay in all of the various placements over the previous year." Respondents do not cite anywhere in the record where this "high level of behavior" is chronicled. In fact, *951Robby had not improved; he was discharged from Wyeth House and Thoreau House for violating home rules. He continued to use illegal drugs while he was placed in such homes and thereafter. He engaged in abusive behavior directed at himself and others. The caseworker was not merely negligent in determining Robby's true situation; he was recklessly indifferent to Robby's condition.
The caseworker admitted that he did not question Bockari House staff as to Robby's progress. Had the caseworker reviewed staff progress notes he would have found that Robby's "progress" at Bockari House was consistent with his conduct at other group homes. The Family Counselor at Wyeth House stated in her Discharge Summary:
In group, individual and family sessions, Rob presented himself as intelligent, pleasant, highly defensive and a first-rate con. He has the ability to quickly size up a counseling situation be it individual, group or family, and feed back appropriate verbal responses. His suppressed feelings of anger, hurt and shame did sometimes surface. At these times, Rob became violent and self-abusive. Old family hurts, centering on the divorce conflict between his natural parents, were major areas of confusion, frustration and rage for Rob.
For the most part, Rob played his con game in group mouthing responses. He was almost always dishonest in family sessions....
The staff notes covering Robby's stay at Bockari House reveal a "honeymoon" period and then disillusion. On August 3, 1982, Robby was placed by staff at level five, the highest level attainable at Bockari House. In her daily log, the staff worker reported on August 6, 1982: "As usual, Rob had a perfect day and *952he's doing great." Gradually, the staff workers became aware of how adept Robby was at conning them. On August 20,1982, staff placed him back at level two. He got into a fight with another resident at a bowling alley. The worker told him "one more fist and he'd be going to detention." "He looked at me [and] called me a 'f— bitch' and made a fist." The worker was ready to terminate Robby's placement but gave him the benefit of the doubt.
On August 25,1982, two days before his scheduled return home, at some time between 7:00 p.m. and 8:30 p.m., Robby broke out the screen door and took off. The worker's notes show the following: "So far, Rob's actions the last few weeks show a great disturbance within him. All of the sudden mood changes [and] violence show he's not yet ready to go home, [and] may possibly need further counseling." (Emphasis added.)
Another worker reported that Robby had signed out to visit his girlfriend but did not do so. The worker commented:
So much for honesty [and] credibility, which leads to several other questions. If Rob is being deceitful about his use of time, how long has it been going on? And is he also being deceitful about other things like his chemical use [and] taking things from others? I'm afraid the bottom is about to fall out.
The worker was prescient; the bottom did fall out. The worker questioned whether Robby was able to deal with an open setting. She suggested that possibly his deteriorating attitude and behavior were related to his pending placement at home. The worker commented: "It's obvious that Rob is not nearly as mature or stable as he initially impressed us as being."
*953The Jones family's caseworker did not confer with Bockari staff to determine whether Robby was ready to be returned home. The caseworker deposed that he expected that Bockari staff would inform him whether there were reasons why Robby should not be returned home.
DeShaney is a weak reed upon which to support summary judgment in this case because the facts as to respondents' care of Robby are seriously disputed and DeShaney's predicate — lack of duty — is missing.
There is a wealth of authority as to the responsibilities of social workers and their liability under state law and § 1983.7 See Liability in Child Welfare and Protection Work: Risk Management Strategies, ABA Center On Children and the Law (1991). Our research reveals that since January 1995, DeShaney has been cited in fifty-five decisions. These cases and authorities firmly establish that noncustodial relationships between the state and the claimant may trigger the due process clause when there is a "special" relationship between the state and the claimant or when the state *954places a person in danger which might not be faced in the "free world."
In several of these cases, the facts are so appalling that they graphically illustrate that the majority's bright-line "custody" rule is too superficial to be seriously considered as a standard. One of these cases is the Dahmer case, Estate of Sinthasomphone v. City of Milwaukee, 785 F. Supp. 1343 (E.D. Wis. 1992). The court concluded that at the motion-to-dismiss stage, it could not say that no special relationship existed between Dahmer's victim and the police. The court, therefore, denied respondents' motion to dismiss based on DeShaney. The court concluded that "the DeShaney doctrine is not without some small cracks in its surface; hairline, perhaps, but cracks nonetheless." 785 F. Supp. at 1348.
One of these cracks was caused by Ross v. United States, 910 F.2d 1422 (7th Cir. 1990). A twelve-year-old boy fell from a dock into Lake Michigan. Within minutes, two lifeguards, two fire fighters, one police officer and two civilians with scuba diving equipment responded to pleas for assistance. However, before any rescue attempt could begin, a Lake County deputy sheriff arrived in a marine patrol boat. He insisted that only the county, which had a contract with Waukegan, could provide rescue services on Lake Michigan. When the civilian scuba-divers offered to attempt to rescue the boy at their own risk, the deputy sheriff promised to arrest them if they entered the water. Twenty minutes later, authorized divers arrived and pulled the boy from the water. Of course, he died as a result of the incident. The court found that the complaint stated a claim under § 1983 against both Lake County and the individual deputy. While the sheriffs deputy had not taken the boy into custody, he had taken control of the *955situation and by his directives had unconstitutionally subjected the boy to a special danger.
The decisions we have researched reveal an almost unanimous hostility to DeShaney where the facts show that the state has placed or allowed persons to be involuntarily placed in situations of special danger.
The American Bar Association Center on Children and the Law states that, "[w]hile DeShaney has served to limit the liability of caseworkers, of child protective and child welfare agencies, and of private service providers in some respects, it does not affect most of the cases filed in this context." Liability in Child Welfare and Protection Work at 18. The Center assesses the level of risk of liability where the state fails to adequately protect a child from harm in foster care as "high." Id. at 27. It rates failure to warn of the child's dangerousness as "moderate-high." Id.
I conclude that ch. 48, STATS., imposes on local departments of social services and caseworkers an affirmative obligation to protect the child and his or her family when the juvenile court places the child and the family under the court's protection and the department's supervision. The dispositional order entered by the juvenile court in this case required the Dane County Department of Social Services to supervise Robby and to maintain his placement in a designated out-of-home facility. That order was still in effect when the caseworker returned Robby to his home over his father's and his stepmother's objections, and without court approval. As far as the juvenile court knew, Robby was still placed at Bockari House.
Respondents failed to comply with the disposi-tional order and the applicable rules and statutes. Wisconsin Adm. Code § HSS 58.03(12) defines supervision as:
*956[A] court disposition under which a youth is provided community services by the department, another lead agency or by a suitable adult under conditions prescribed by the court and which are designed for the physical, mental and moral well-being and behavior of the youth and include reasonable requirements for the youth's conduct and the conduct of his or her parents, guardian or legal custodian.
(Emphasis added.)
Section 48.01(2), Stats., provides:
This chapter shall be liberally construed to effect the objectives contained in this section. The best interests of the child shall always be of paramount consideration, but the court shall also consider the interest of the parents or guardian of the child, the interest of the person or persons with whom the child has been placed for adoption and the interests of the public.
(Emphasis added.)
I conclude that Wisconsin's child protection statutes require that the state and its agents do more than merely stand by when children and their families are at-risk.8 In this case, the common-law duty of Robby's *957parents to care for Robby broke down. The state stepped in as parens patriae. "From early times in our law, the sovereign has been considered to be parens patriae of destitute or abandoned children_" Bartels v. County of Westchester, 429 N.Y.S.2d 906, 908 (N. Y. Sup. Ct. 1980). In the instant case, the state placed Robby and his family under the protection of the juvenile court and the supervision of the department. However, the state's agents showed a reckless indifference to the physical safety of Robby and his family. That indifference is sanctionable under the due process clause through 42 U.S.C. § 1983. I do not believe that the state can relinquish its protective role when it falters.
Chief Justice Rehnquist concluded that any affirmative duty to an individual the state has under the due process clause must derive entirely "from the limitation... imposed on his freedom to act on his own behalf." DeShaney, 489 U.S. at 200. When the state judged Robby delinquent and placed him outside his home for care and treatment, it asserted its pre-emp-tive parens patriae role. Professor Soifer points to the "pre-emptive quality of the state's initial protective decision." 57 Geo. Wash. L. Rev. at 1518. In an earlier opinion, Schall v. Martin, 467 U.S. 253, 265 (1984), Chief Justice Rehnquist stated: "Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae." (Emphasis added.)
In this case, not only did the Joneses' parental control falter, the State in its role as parens patriae *958likewise faltered. However, Robby's father and stepmother were not free to protect themselves from the potential danger Robby presented by seeking the only realistic protection they had. Under § 48.13(4), Stats., Children In Need of Protection or Services (CHIPS), a parent may petition the department of social services to assume the role of a child's parents when parental control falters. That option was not available to Robby's father and stepmother because the juvenile court determined that Robby was delinquent and not a child in need of protection or services. The dispositional order which the juvenile court had entered October 19, 1981, remained in effect. Robby's father and stepmother were told by the caseworker that they had no choice but to accept Robby back into their home. They no longer had the option, so they believed, of requiring the department to provide treatment for Robby outside of their home. For these reasons, I conclude that respondents deprived appellants of their liberty interest in their personal safety under the due process cause.
PROCEDURAL DUE PROCESS
Respondents argue that we should not consider appellants' procedural due process claim because that claim was not raised in the trial court. I conclude otherwise. Appellants allege facts which form the basis for a procedural due process claim.
Appellants argue that respondents deprived them of procedural due process when they failed to give Robby, his father and his stepmother notice and an opportunity to object to Robby's change of placement, as required by § 48.357(1), STATS.9 The majority con*959cedes that the purpose of the statute is to give persons affected by a change in placement of a child an opportunity to object. However, they contend that because the caseworker's failure to comply with § 48.357(1) was a "random and unauthorized act," appellants have no cause of action under 42 U.S.C. § 1983 for deprivation of their right to adequate process unless they can show that they do not have an adequate post-deprivation remedy under state law. It is critical to remember that the "random and unauthorized act" doctrine applies only to procedural due process. In this case, appellants' procedural and substantive due process rights overlap. Respondents' failure to give Robby's father and step*960mother an opportunity to object to placing a dangerous person in their home was as arbitrary and capricious as the placement itself.
The due process clause does not create a property or liberty interest; nor does the Fourteenth Amendment prevent the state from adversely affecting such an interest. The due process clause provides: "No State . . . shall . . . deprive any person of life, liberty, or property, without due process of law" (Emphasis added.) Due process requires reasonable notice and a fair opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
Title 42 U.S.C. § 1983 provides in part:
Every person who, under color of [law] . . . subjects, or causes to be subjected ... [a] person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
(Emphasis added.)
Section 1983 does not confer any constitutional right upon anyone; it is how the constitutional right is enforced. Section 1983 is a part of a statute denominated "An Act to enforce the Fourteenth Amendment." See Monroe v. Pape, 365 U.S. 167,171 (1961), overruled in part by Monell v. Department of Social Servs., 436 U.S. 658, 700 (1978) (overruling "Monroe insofar as it holds that local governments are not 'persons' who may be defendants in § 1983 suits.").
Bear with me a moment while I usurp the power of the legislature and repeal § 48.357(1), Stats. Could the department or the caseworker then remove a child from his or her home without notice and an opportunity to be heard? Obviously not; the constitution forbids it. *961Could the department or caseworker place a child outside his or her home and change that placement without notice to the child, his or her parents, or the child's guardian ad litem, and without an opportunity to be heard? The majority is willing to concede that neither the state nor its agents could do so. The right to notice and an opportunity to be heard is not conferred by § 48.357(1) but by the constitution.
Without §48.357(1), STATS., consider the legal effect of depriving the child or his or her parents of notice and the right to be heard on any dislocation of the family. The due process clause says "[n]o State" shall do such a thing, "without due process of law." But before § 1983 was enacted, a person deprived of a constitutional right had no way to punish the state or its officers for depriving him or her of a constitutional right. After § 1983 was enacted, however, a person deprived of a constitutional right — due process, for example — has a right to penalize "[e]very person" who deprives him or her of a constitutional right, so long as the deprivation is under color of law. After my repeal of § 48.357(1), Robby, his father and his stepmother still had a cause of action under § 1983 against respondents for depriving them of a liberty interest without due process of law. Can anyone seriously argue that a person has less protection of his or her constitutional rights if states and local governments enact due process procedures to protect those rights? That, however, is the effect of the majority's argument. Their fallacious argument stems from their failure to understand Par-rott v. Taylor, 451 U.S. 527 (1981), overruled by Daniels v. Williams, 474 U.S. 327 (1986); Hudson v. Palmer, 468 U.S. 517 (1984); and Zinermon v. Burch, 494 U.S. 113 (1990). I cannot emphasize too strongly that the "random and unauthorized" exception to the procedu*962ral component of the due process clause does not apply when the state has provided notice and an opportunity to be heard before it deprives a person of life, liberty or property. Nor does it apply when the state could have provided constitutionally sufficient process but failed to do so. The Supreme Court had made this clear in Zinermon.
Certainly, Zinermon makes clear that "when [state] officials fail to provide constitutionally required procedural safeguards to a person whom they deprive of liberty, the state officials cannot then escape liability by invoking Parratt and Hudson." 494 U.S. at 135. The Court found it strange, as do I, "to allow state officials to escape § 1983 liability for failing to provide [or follow] constitutionally required procedural protections by assuming that those procedures would be futile because the same state officials would find a way to subvert them." Id. at 137-38. I find it even stranger that a state official may secure immunity from § 1983 liability by refusing to follow due process procedures mandated by the legislature.
I recognize the precedent of Irby v. Macht, 184 Wis. 2d 831, 522 N.W.2d 9, cert. denied, 115 S. Ct. 590 (1994). Irby was a prisoner who claimed the prison disciplinary committee violated his right to procedural due process when it failed to follow Wis. Adm. Code Ch. DOC 303. Irby is no longer precedential because the case relied on by the court—Hewitt v. Helms, 459 U.S. 460 (1983) — has been abandoned by the United States Supreme Court as the test to determine whether an inmate has a liberty interest protected by the due process clause. Sandin v. Conner, 115 S. Ct. 2293 (1995). Henceforth, an inmate's right to constitutional protection will depend on whether the restriction "imposes [an] atypical and significant hardship on the inmate in *963relation to the ordinary incidents of prison life." Id. at 2300.
It is impossible to know whether the philosophy of Sandin will extend to determinations of liberty and property interests in areas other than prison discipline. If the Court returns to fundamental procedural due process jurisprudence, as it did in Sandin, the "random and unauthorized act" exception will be largely a thing of the past. The Court said: "The time has come to return to those due process principles that were correctly established and applied in Wolff v. McDonnell, 418 U.S. 539 (1974) and Meachum v. Fano, 427 U.S. 215 (1976)]." Id. at 2295. Liberty and property interests will no longer depend on a mechanistic formula but upon substance.
The private interest which an individual has in a liberty or property interest does not always mandate pre-deprivation notice and opportunity to be heard. The government's interest may outweigh the private interest, or the risk of an erroneous deprivation of the private interest may be increased by the procedures used or additional substitute procedural safeguards may cost more than their value. Mathews v. Eldridge, 424 U.S. 319, 335 (1976), quoted in Zinermon, 494 U.S. at 127.
When the Supreme Court has applied the Mathews v. Eldridge test, it "usually has held that the Constitution requires some kind of hearing before the State deprives a person of liberty or property." Zinermon, 494 U.S. at 127 (citing Loudermill, 470 U.S. at 542 (" '[T]he root requirement' of the Due Process Clause" is" 'that an individual be given an opportunity for a hearing before he is deprived of any significant protected interest.'") (emphasis added)).
*964"[A]t minimum, due process requires 'some kind of notice and ... some kind of hearing.'" Id. at 127 (quoting Goss v. Lopez, 419 U.S. 565, 579 (1975) (emphasis added)). However," 'the necessity of quick action by the State or the impracticality of providing any predeprivation process' may mean that a postdeprivation remedy is constitutionally adequate." Id. at 128 (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982) (quoting Parratt, 451 U.S. at 539)).
Parratt is not an exception to the Mathews v. Eldridge analysis. Zinermon, 494 U.S. at 129. It is "rather an application of that test to the unusual case in which one of the variables in the Mathews equation — the value of pre-deprivation safeguards — is negligible in preventing the kind of deprivation at issue." Id.
The Mathews test requires that to determine what procedural protections the constitution requires in a particular case, the court must weigh several factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Zinermon, 494 U.S. at 127 (quoting Mathews, 424 U.S. at 335).
In this case, the private interest affected is enormous; it involves the integrity of the family, which is clearly protected by the constitution. See Santosky v. Kramer, 455 U.S. 745 (1982). Section 48.357(1), STATS., *965is admirably constructed to correct an erroneous deprivation of such an interest. The notice required thereunder must inform the child or the child's counsel or guardian ad litem, parent, guardian or legal custodian of the reasons for the change in placement, including a statement describing why the new placement is preferable to the present placement and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court. Thus, the caseworker or the agency must justify the change of placement, and the child, his or her representatives and the family must have an opportunity to object to the change in placement.
The government's interest may outweigh the private interest if emergency conditions necessitate an immediate change in the placement of the child placed outside the home. See § 48.357(2), Stats. Respondents do not claim that Robby's change of placement was due to emergency conditions.
Under the Mathews v. Eldridge balancing test, the private interests of Robby and his family substantially outweigh the government's interest. Thus, the constitution required some kind of a hearing before the state changed Robby's placement. Appellants' rights to procedural due process were violated because Robby's change of placement was made without notice to Robby and his family and without an opportunity to object.
STATE-LAW TORT ACTION
The jury found that the caseworker was negligent but that his negligence was not a cause of appellants' injuries. This finding as to cause is erroneous as a matter of law and the trial court should have changed the jury's answer to this question.
*966The Wisconsin test as to "cause" has been well articulated by decisions of the Wisconsin Supreme Court. Professor Richard V. Campbell traced the early development of the law in Recent Developments of the Law of Negligence in Wisconsin, 1955 WlS. L. Rev. 6. He concluded that Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 55 N.W.2d 29 (1952), established a procedure in tune with substantive law. 1955 WlS. L. REV. at 37. That court prescribed an instruction on proximate or legal cause which rejected the use of the term "proximate cause" in favor of "substantial factor." 262 Wis. at 237, 55 N.W.2d at 33. Professor Campbell concluded that, "[t]his [instruction] brings the law in action and the law in words together." 1955 WlS. L. Rev. at 37.
The Seventh Circuit Court of Appeals noted that the Wisconsin Supreme Court has overturned jury verdicts in several cases where the jury found that the negligence of a party was not causal. Fietzer v. Ford Motor Co., 590 F.2d 215, 218 (7th Cir. 1978). In Sampson v. Laskin, 66 Wis. 2d 318, 224 N.W.2d 594 (1975), the jury found that the plaintiffs were negligent but their negligence was not the cause of the death and injuries involved. The court concluded that that finding could not stand. Id. at 328, 224 N.W.2d at 599.1 need not detail the facts relied on by the court except to note that the facts were undisputed. The court concluded, however, that plaintiffs were guilty of contributory negligence. The court reversed and remanded the case for a new trial on the issue of comparative negligence.
In the cases in which the supreme court has set aside a jury finding of lack of cause, the real issue was contributory negligence. That is the issue in this case.
When the jury determines that the defendant is negligent, it resolves the disputed issues of fact as to *967that issue. In previous cases, the supreme court has reviewed the facts and determined as a matter of law that a party's negligence was a cause of plaintiffs injuries. See Miles v. Ace Van Lines & Movers, Inc., 72 Wis. 2d 538, 241 N.W.2d 186 (1976); Mustas v. Inland Constr., Inc., 19 Wis. 2d 194, 120 N.W.2d 95 (1963); Wittig v. Kepler, 275 Wis. 415, 82 N.W.2d 341 (1957).
In this case, the jury found that respondents' acts were negligent. Those acts can only have included respondents' return of Robby to his home without informing appellants that he was still using drugs and that his behavior was potentially violent and dangerous.
It is not accurate to state that whether a party's negligence was the cause of an injury is a question of fact. The jury may decide the question but only "in any case in which it may reasonably differ on the issue." Restatement (second) of Torts § 434(2) (1965). "It is the function of the court to determine .. . whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff." Id. at § 434(l)(a).
The Wisconsin Supreme Court has not accorded a jury's finding of lack of causation the traditional respect an appellate court gives to the findings of a jury. In fact, the court has frequently made a de novo review of the evidence and set aside a jury finding of lack of cause where the finding "is contrary to the evidence and is based only on conjecture." Wittig, 275 Wis. at 419, 82 N.W.2d at 344; see also Hatch v. Smail, 249 Wis. 183, 189-90, 23 N.W.2d 460, 463 (1946). In the latter case, the trial court submitted the question of cause to the jury which found that defendant's negligence was a substantial factor in causing plaintiffs *968injury. The court said, however: "It may well be under the facts of this case that the court might have determined causation as a matter of law." Id.
The reviewing court must assume that the jury has resolved disputed issues of fact in favor of the plaintiff if it finds defendant negligent. There may, however, be cases in which defendant's negligence is more or less abstract and is not tied concretely to the question of cause. In that case, the reviewing court should be loathe to change the jury's finding. That is not the case here. The caseworker's negligence lies in forcing the Joneses to accept Robby back into their home even though he knew or should have known that Robby was dangerous to society and to the members of his family, especially his stepmother. The situation in which the caseworker placed Robby and his family well fits the metaphorical snake pit alluded to by Judge Posner in Bowers v. DeVito, 686 F.2d at 618: "If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit."
In the instructions and verdict conference, plaintiffs argued that the pattern instruction — Wis J I — CIVIL 1500 (Cause)10 — would confuse the jury. The *969trial court rejected appellants' request for an amended jury instruction.
The trial court has broad discretion when instructing a jury. Fischer v. Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10, 16 (1992). If the overall meaning communicated by the instructions is a correct statement of the law, no grounds for reversal exist. Id. at 850, 485 N.W.2d at 16. Plainly, the instruction submitted confused the jury. The jury asked for additional instructions from the court on two questions:
1. Does "a cause" refer to neglectful action being a direct contributing factor in building the situation, the outcome of which was the injury?
2. Does "a cause" refer to neglectful inaction, which may have prevented the construction of any hypothetical situation in which (similar) injury may have occurred?
The trial court simply instructed the jury to reread the instruction the court had given. Two jurors dissented on the cause questions. I cannot conclude that the trial court erroneously exercised its discretion when it declined to elaborate on the instruction which the court gave. The jury’s first question is understandable but the second is incomprehensible. There was greater danger in attempting to answer these questions than directing the jury to re-read the instruction. While I do not believe that the pattern instruction erroneously informed the jury as to the law, I believe the instruction could be more complete. For example, the instruction could define "substantial factor." The most confusing aspect of "causation" is that the acts of more *970than one person may cause an injury. I suggest a definition of "substantial factor" as follows:
"Substantial factor" means that defendant's conduct contributed in a significant way to the injury suffered by the plaintiff. Defendant's conduct may be a "substantial factor" even if the conduct of another person or persons also contributed to plaintiffs injuries.
I believe that by objecting to the pattern instruction and requesting an amended instruction, the plaintiffs preserved for appellate review their claim that respondents' acts constituted a substantial factor in causing appellants' injuries. See Fischer, 168 Wis. 2d at 849, 485 N.W.2d at 15-16 (citing In re C.E.W., 124 Wis. 2d 47, 54, 368 N.W.2d 47, 51 (1985)); see also Douglas v. Dewey, 154 Wis. 2d 451, 463-68, 453 N.W.2d 500, 505-07 (Ct. App. 1990).
I do not believe that a new trial is necessary. We can conclude as a matter of law that respondents' negligence was a cause of appellants' injuries. I would reverse the judgment and remand this cause to the trial court with instructions to change the jury's answer as to the cause questions.
For the reasons set forth in this opinion, I respectfully dissent.
Martha Minow, Words and the Door to the Land of Change: Law, Language, and Family Violence, 43 VAND. L. Rev. 1665, 1666 (1990). Joshua survived but is now a patient in an institution for profoundly retarded persons. Id.
Title 42 U.S.C. § 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
This alleged "fact" is disputed by respondents, as are other facts appellants allege. At the motion-to-dismiss stage of summary judgment, we must accept these allegations as true. Further, respondents argue: "Even accepting all of the appellants factual allegations as true, no Sec. 1983 claim would exist under DeShaney."
However, respondents concede that Robby was in "some sort of custody" of the state.
See Susan Bandes, The Negative Constitution: A Critique, 88 MlCH. L. Rev. 2271 (1990); Jack M. Beermann, Administrative Failure and Local Democracy: The Politics of DeShaney, 1990 DUKE L.J. 1078; Karen M. Blum, Monnel, DeShaney, and Zinermon: Official Policy, Affirmative Duty, Established State Procedure and Local Government Liability Under Section 1983, 24 CREIGHTON L. Rev. 1 (1990); Caitlin E. Borgmann, Battered Women's Substantive Due Process Claims: Can Orders of Protection Deflect DeShaney, 65 N.Y.U.L. REV. 1280 (1990); Michael D. Daneker, Moral Reasoning and the Quest for Legitimacy, 43 AM. U. L. Rev. 49 (1993); Arlene E. Fried, The Foster Child's Avenues of Redress: Questions Left Unanswered, 26 COLUM. J.L. & SOC. PROBS. 465 (1993); Martha Minow, Words and the Door to the Land of Change: Law, Language, and Family Violence, 43 VAND. L. Rev. 1665,1666-78 (1990); Jane Rutherford, The Myth of Due Process, 72 B.U. L. Rev. 1,60-62 (1992); Amy Sinden, In Search of Affirmative Duties Toward Children under a Post-DeShaney Constitution, 139 U. PA. L. Rev. 227 (1990); Aviam Soifer, Moral Ambition, Formalism, and the "Free World" of DeShaney, 57 GEO. WASH. L. Rev. 1513 (1989); David A. Straus, Due Process, Government Inaction, and Private Wrongs, 1989 Sup. Ct. Rev. *94753; Developments in the Law: Legal Responses to Domestic Violence, 106 HARV. L. Rev. 1498 (1993). For a summary of the history of child protection since the Seventeenth Century, see Laura Oren, The State's Failure to Protect Children and Substantive Due Process: DeShaney in Context, 68 N.C. L. Rev. 659, 665-69 (1990).
Pursuant to court order, Dr. Larry Zuberbier evaluated Robby. In his evaluation, he reported that Robby's hatred of his stepmother was so intense that he shook when he described how he could hurt her. The caseworker was aware of this report.
Unfortunately, our research of that authority and the unusual posture of this case delayed our decision. Also, my research satisfied me that I could not accept the majority's view that the due process clause does not require the state to protect individuals who are not in the physical custody of the state. I struggled for sometime with the significance of the jury's verdict in the state-law claim on the trial court's grant of respondents' motion for summary judgment dismissing appellants' civil rights action. I would have required the parties to brief that question. Plainly, the parties have also struggled not only with the legal issues but the procedural issues. This case did not come to trial until eight years after the shooting. Undoubtedly, the appellants' severe injuries contributed to the delay.
The DeShaney Court left open this avenue by not deciding the precise question. In footnote 2, the Court stated:
Petitioners also argue that the Wisconsin child protection statutes gave Joshua an "entitlement" to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection against state deprivation under our decision in Board of Regents of State College v. Roth, 408 U.S. 564 (1972). But this argument is made for the first time in petitioners' brief to this Court: it was not pleaded in the complaint, argued to the Court of Appeals as a ground for reversing the District Court, or raised in the petition for certiorari. We therefore decline to consider it here.
*957489 U.S. at 195 n.2 (citations omitted).
nection 48.357(1), Stats., provides:
*959The person or agency primarily responsible for implementing the dispositional order may request a change in the placement of the child, whether or not the change requested is authorized in the dispositional order and shall cause written notice to be sent to the child or the child's counsel or guardian ad litem, parent, foster parent, guardian and legal custodian. The notice shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement is preferable to the present placement and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court. Any person receiving the notice under this subsection or notice of the specific foster or treatment foster placement under s. 48.355 (2) (b) 2. may obtain a hearing on the matter by filing an objection with the court within 10 days of receipt of the notice. Placements shall not be changed until 10 days after such notice is sent to the court unless the parent, guardian or legal custodian and the child, if 12 or more years of age, sign written waivers of objection, except that placement changes which were authorized in the dispositional order may be made immediately if notice is given as required in this subsection. In addition, a hearing is not required for placement changes authorized in the dispositional order except where an objection filed by a person who received notice alleges that new information is available which affects the advisability of the court's dispositional order. If a hearing is held under this subsection and the change in placement would remove a child from a foster home, the foster parent may submit a written statement prior to the hearing.
Wisconsin JI— Civil 1500 (Cause) reads:
The cause questions ask whether there was a causal connection between the negligence of any person and the (accident) (injury). These questions do not ask about "the cause" but rather "a cause." The reason for this is that there may be more than one cause of an (accident)(injury). The negligence of one person may cause an (accidentXinjury), or the combined negligence of two or more persons may cause it. Before you find that (any)(a) person's negligence was a cause of the (accident) (inj ury), you must find that *969the negligence was a substantial factor in producing the (accident) (injury).