Florida Senate - 2012                              (NP)    SB 18
       
       
       
       By Senator Ring
       
       
       
       
       32-00155-12                                             201218__
    1                        A bill to be entitled                      
    2         An act for the relief of L.T., a minor; providing an
    3         appropriation to compensate L.T., a minor, by and
    4         through Vicki McSwain, the Permanent Custodian for
    5         L.T., for injuries and damages sustained as a result
    6         of the negligence of employees of the Department of
    7         Children and Family Services; providing a limitation
    8         of the payment of fees and costs; providing an
    9         effective date.
   10  
   11         WHEREAS, on August 15, 1995, the Department of Children and
   12  Family Services (DCF) removed 14-month-old L.T. and her infant
   13  brother from their mother’s custody because they were not
   14  receiving adequate care, and
   15         WHEREAS, Judy Mandrell, a protective supervision counselor
   16  for DCF, was assigned to find a foster home for the children.
   17  Ms. Mandrell conducted a home study of the children’s great aunt
   18  and uncle, Vicki and Eddie Thomas. Ms. Mandrell recommended
   19  temporarily placing the children in the Thomases’ custody. Ms.
   20  Mandrell’s immediate supervisor, Lillie S. Pease, approved the
   21  recommendation, and
   22         WHEREAS, a background check was conducted shortly after the
   23  children were placed in the Thomases’ home. It indicated that
   24  many years earlier Mr. Thomas had been convicted of a
   25  misdemeanor and possession of narcotics equipment and that Ms.
   26  Thomas had been charged with, but apparently not convicted of,
   27  larceny. The background check did not reveal any prior history
   28  of violence, sex offenses, or child abuse, and
   29         WHEREAS, Ms. Mandrell and Ms. Pease ultimately concluded
   30  that the Thomases were capable of providing the children a safe
   31  and loving home and approved the placement. Ms. Mandrell
   32  continued to make monthly home visits to assess the living
   33  arrangements and the children’s welfare, and
   34         WHEREAS, on August 21, 1996, Mr. Thomas was charged with a
   35  lewd and lascivious act on a child under the age of 16. The
   36  alleged victim was the 13-year-old daughter of a woman Mr.
   37  Thomas was seeing despite being married to Ms. Thomas. The state
   38  later amended the charge to add a count for sexual battery on a
   39  child by a familial or custodial authority, and
   40         WHEREAS, while the charges were pending, the Florida trial
   41  court ordered Mr. Thomas to not have any contact with the victim
   42  or her family, to vacate the home where Mr. Thomas had lived
   43  with Ms. Thomas, L.T., and her brother, and to not have any
   44  contact with any children. Mr. Thomas moved into his mother’s
   45  garage just down the street from the home where Ms. Thomas lived
   46  with L.T. and her brother, and
   47         WHEREAS, DCF became aware of the charges against Mr. Thomas
   48  and of the court’s no-contact order when L.T.’s biological
   49  mother advised Ms. Mandrell of the charges and asked that L.T.
   50  be removed from the home of Ms. Thomas. Ms. Mandrell spoke with
   51  Ms. Thomas about the allegations and visited Mr. Thomas’s
   52  mother’s home to confirm that Mr. Thomas was living there. Ms.
   53  Mandrell continued to report that L.T. and her brother were
   54  thriving and that Ms. Thomas was providing good care. On several
   55  occasions, Ms. Mandrell reminded Mr. Thomas that he must not
   56  have contact with the children, and
   57         WHEREAS, on January 31, 1997, Mr. Thomas went to trial for
   58  the charges against him, and the jury acquitted him of sexual
   59  battery but was unable to reach a verdict on the charge of
   60  committing a lewd and lascivious act. On March 25, 1997, a
   61  retrial of the charge of committing a lewd and lascivious act
   62  again produced a hung jury. On April 9, 1997, Mr. Thomas pled no
   63  contest to that charge and was sentenced to 5 years’ probation.
   64  As part of the sentence, Mr. Thomas was ordered to not have any
   65  contact with the victim and her family and was required to
   66  attend sex offender classes, and
   67         WHEREAS, the same judge who presided over both trials of
   68  Mr. Thomas also presided over the dependency case involving L.T.
   69  and her brother. On May 9, 1997, 1 month after Mr. Thomas
   70  entered his plea and was sentenced to probation, the judge
   71  entered an order allowing Mr. Thomas to return to the home of
   72  Ms. Thomas and the children. The judge authorized Mr. Thomas to
   73  have unsupervised contact with the children, and
   74         WHEREAS, Ms. Mandrell continued to make monthly home
   75  visits. She noted that the case against Mr. Thomas involving
   76  commission of a lewd and lascivious act barred the Thomases from
   77  adopting, but she recommended the continuation of the foster
   78  care arrangement. Each month, Ms. Mandrell’s report indicated
   79  that there was little or no risk of abuse to the children, and
   80         WHEREAS, on March 3, 2000, the same judge, acting in the
   81  dependency case, approved the children’s long-term placement
   82  with the Thomases, removing them from protective services, and
   83         WHEREAS, 3 years later, on March 24, 2003, an anonymous
   84  caller to DCF alleged that L.T. was being abused by Mr. Thomas
   85  and that both Mr. and Ms. Thomas were using drugs in the
   86  children’s presence. The anonymous caller incorrectly asserted
   87  that Mr. Thomas was “a proven sex offender and is not supposed
   88  to be around children.” Jennifer Johnson, a child protective
   89  investigator for DCF, was assigned to investigate the
   90  allegations. Gayla Spivey, Ms. Johnson’s supervisor, oversaw the
   91  investigation, and
   92         WHEREAS, on March 25, 2003, the day after the anonymous
   93  report was received, Ms. Johnson interviewed L.T., her brother,
   94  and Ms. Thomas. Both children denied the abuse allegations and
   95  said that they were happy in the Thomases’ home. The children
   96  said they understood the difference between good and bad touches
   97  and had never been touched in a manner that made them
   98  uncomfortable, and
   99         WHEREAS, Ms. Johnson ran additional background checks on
  100  the Thomases and required that they submit to drug tests. The
  101  background checks revealed nothing new, and the drug tests came
  102  back negative. Ms. Johnson prepared a report concluding that
  103  L.T. and her brother were not being abused and were not at risk
  104  of abuse. Ms. Johnson concluded that the case should be closed,
  105  and her supervisor, Ms. Spivey, approved the report and the
  106  closing of the case, and
  107         WHEREAS, on February 24, 2005, L.T. ran away from the
  108  Thomases’ home and was found by law enforcement officers. She
  109  said she ran away because she had been sexually abused by Mr.
  110  Thomas and physically abused by Ms. Thomas. L.T. told the
  111  officers that Mr. Thomas sexually abused her from October 2004
  112  to late December 2004. DCF immediately removed L.T. and her
  113  brother from the Thomases’ home, and
  114         WHEREAS, L.T. brought a lawsuit in the United States
  115  District Court for the Northern District of Florida alleging
  116  that Ms. Mandrell, Ms. Pease, Ms. Johnson, and Ms. Spivey were
  117  deliberately indifferent to the risk that Mr. Thomas would
  118  sexually abuse her, thus violating her right to substantive due
  119  process under the Fourteenth Amendment, and
  120         WHEREAS, Ms. Mandrell, Ms. Pease, Ms. Johnson, and Ms.
  121  Spivey filed a motion for summary judgment, and the trial court
  122  granted it. All federal law claims against Judy Mandrell, Lillie
  123  S. Pease, Jennifer Johnson, and Gayla Spivey were dismissed with
  124  prejudice, and all state law claims were dismissed without
  125  prejudice, and
  126         WHEREAS, on June 21, 2010, the parties agreed to a mediated
  127  settlement under which L.T. shall receive $1 million, of which
  128  $200,000 shall be submitted by check to the trust account of
  129  Haas, Lewis, Difiore, & Amos, P.A., and the balance of $800,000
  130  shall be submitted through a claim bill that DCF agrees to
  131  support, NOW, THEREFORE,
  132  
  133  Be It Enacted by the Legislature of the State of Florida:
  134  
  135         Section 1. The facts stated in the preamble to this act are
  136  found and declared to be true.
  137         Section 2. There is appropriated from the General Revenue
  138  Fund to the Department of Children and Family Services the sum
  139  of $1 million for the relief of L.T., by and through Vicki
  140  McSwain, Permanent Custodian for L.T., for injuries and damages
  141  sustained. After payment of attorney’s fees and costs, lobbying
  142  fees, other similar expenses relating to this claim, outstanding
  143  medical liens, and other immediate needs, the remaining funds
  144  shall be placed into a special needs trust created for the
  145  exclusive use and benefit of L.T.
  146         Section 3. The Chief Financial Officer is directed to draw
  147  a warrant in the sum of $1 million, payable to L.T., by and
  148  through Vicki McSwain, Permanent Custodian for L.T., upon funds
  149  in the State Treasury to the credit of the Department of
  150  Children and Family Services, and the Chief Financial Officer is
  151  directed to pay the same out of such funds in the State Treasury
  152  not otherwise appropriated.
  153         Section 4. Any amount awarded pursuant to the waiver of
  154  sovereign immunity under s. 768.28, Florida Statutes, and the
  155  amount awarded under this act are intended to provide the sole
  156  compensation for all present and future claims arising out of
  157  the factual situation described in the preamble to this act
  158  which resulted in the injury to L.T. The total amount paid for
  159  attorney’s fees, lobbying fees, costs, and other similar
  160  expenses relating to this claim may not exceed 25 percent of the
  161  total amount awarded under this act.
  162         Section 5. This act shall take effect upon becoming a law.