This post continues a look at legal doctrines, as opposed to pure administrative incompetence, that limit the State’s ability to intervene in families’ lives due to suspected abuse, abandonment or neglect. Thus far, since the publication of Innocent’s Lost by the Miami Herald, we have seen the Second DCA (Lakeland) refuse application of the Imminent Risk doctrine, and the Fourth DCA (West Palm Beach) do the same with the Sibling Nexus Doctrine. Yesterday, the Third DCA (Miami) took its turn at yet another risk prediction heuristic: the Unknown Perpetrator Doctrine.
At its strictest the Unknown Perpetrator Doctrine in dependency cases states that, if a child is egregiously abused while in the exclusive custody of the parents, the Court can find the child abused even if the State cannot prove which parent committed the act. The doctrine derives from the language of the Egregious Abuse ground for termination of parental rights, which says that the parent is at fault if he or she either inflicted the abuse or knowingly failed to prevent it, and from the concept of circumstantial evidence. If the injuries were severe and obvious and only the two parents had access to the child, one of them inflicted and the other failed to protect. It is irrelevant under the statute which parent did which.
The Unknown Perpetrator Doctrine begins to unravel when you add in third parties. The access to the child by third parties–such as relatives, day care workers, or people at a park–during the time frame of the injuries has in some cases caused courts to reverse TPRs on the basis that you can no longer say that each parent falls into one of the two fault-worthy roles. The Doctrine also loses strength in TPR cases when the injuries themselves are not obvious.
In the Third DCA’s case yesterday, the 11-month-old child had two bruises and a loopmark after a weekend with the father. Numerous people had access to the child during that time, and there was no evidence presented (or at least no facts recited in the opinion) that the father did or failed to do anything in particular. The evidence was limited to the injuries to the child plus the fact that the child was in the father’s custody for the weekend.
The Third DCA reversed:
Based on the definition of “harm,” there is substantial, competent evidence that H.C.(2) was harmed, as it is undisputed that she not only had significant bruises, but she also had a “loop mark” that is consistent with being hit with an instrument such as an electrical cord or a belt. However, the record is completely devoid of any evidence that the Father caused H.C.(2)’s injuries, allowed anyone else to inflict H.C.(2)’s injuries, or has ever hit or physically disciplined H.C.(2) or H.C.(1). Moreover, during the weekend, H.C. (2) was exposed to numerous individuals besides the Father and the Mother, including the Father’s then-wife, her two children, the maternal grandmother, and several of H.C.(2)’s cousins. Thus, the Department failed to establish by a preponderance of the evidence that the Father inflicted or allowed someone else to inflict these injuries on H.C.(2). We therefore reverse the order adjudicating the Children dependent as to the Father.
These injuries are not legally considered “egregious.” And notably the opinion does not even mention the line of cases that favorably apply the Unknown Perpetrator Doctrine to egregious abuse TPRs. Instead, Judge Rothenberg looks only at the dependency statute and finds that it requires proof of a willful act by the parent. In a situation where the injury was not obvious and the parent did not have exclusive access to the child, there is not even circumstantial proof of a willful act.
At first this feels wrong, because a loop mark is obviously inflicted by a human. But we don’t know if that loop was done by a parent, an adult relative, or just kids at the park using a jump rope as a helicopter. Child welfare policy is the constant struggle between our desire to protect (certain) children and our concept of ordered liberty in which families are entrusted to care for them first. Based on the evidence, this child needed an ice pack and a maybe a band aid. If the Department could prove this child was at prospective risk of harm, I have to assume it would have. The Unidentified Perpetrator Doctrine only makes sense when limited to the most extreme cases of injury, or else it risks elevating every mysterious bruise or scratch into a basis for state intervention. We don’t have enough foster homes in the world for that.