Florida Senate - 2016                       (NP)    CS for SB 48
       By the Committee on Judiciary; and Senator Flores
       590-03309-16                                            201648c1
    1                        A bill to be entitled                      
    2         An act for the relief of “Survivor” and the Estate of
    3         “Victim”; providing an appropriation to compensate
    4         Survivor and the Estate of Victim for injuries and
    5         damages sustained as result of the negligence of the
    6         Department of Children and Families, formerly known as
    7         the Department of Children and Family Services;
    8         providing a limitation on the payment of compensation,
    9         fees, and costs; providing an effective date.
   11         WHEREAS, on May 30, 2000, 4 days after their birth, a baby
   12  boy, hereinafter referred to as “Survivor” and his twin sister,
   13  hereinafter referred to as “Victim,” first came to the attention
   14  of the Department of Children and Families, formerly known as
   15  the Department of Children and Family Services, due to the fact
   16  that the children were to be sent to separate foster homes, and
   17         WHEREAS, Survivor was reunited with their biological mother
   18  and father on July 26, 2000, and Victim was reunited with them
   19  on January 8, 2001, and
   20         WHEREAS, on August 4, 2003, the court terminated the
   21  parental rights of Survivor’s and Victim’s biological mother,
   22  and
   23         WHEREAS, on March 26, 2004, Survivor’s and Victim’s
   24  biological father was arrested, which resulted in both Survivor
   25  and Victim being placed in the custody of the state and moved
   26  into the foster home of Jorge and Carmen Barahona, and
   27         WHEREAS, within 4 days of the placement of Survivor and
   28  Victim in foster care, contact was made with paternal relatives
   29  in Texas, Mr. and Mrs. Reyes, to explore their potential role as
   30  caregivers, and
   31         WHEREAS, on March 30, 2004, Mr. and Mrs. Reyes informed the
   32  Department of Children and Families that they were interested in
   33  caring for Survivor and Victim, and
   34         WHEREAS, pursuant to s. 39.521, Florida Statutes, placement
   35  with adult relatives takes priority over out-of-home licensed
   36  foster care placement, and Survivor and Victim should have been
   37  placed in the Reyes’s home as soon as due diligence allowed, and
   38         WHEREAS, pursuant to s. 39.001, Florida Statutes,
   39  Department of Children and Families case workers are required to
   40  achieve permanency within 1 year, either through reunification
   41  with a child’s natural parents or adoption, and
   42         WHEREAS, due to significant delays in the placement
   43  process, the Reyes were not permitted to adopt Survivor and
   44  Victim, who were ultimately adopted by the Barahonas on May 29,
   45  2009, and
   46         WHEREAS, prior to the adoption of Survivor and Victim by
   47  the Barahonas, significant events occurred which the Department
   48  of Children and Families knew or should have known were
   49  indicative of the perpetration of abuse of Survivor and Victim,
   50  and
   51         WHEREAS, in at least one instance, allegations of medical
   52  neglect were reported and, pursuant to Department of Children
   53  and Families Operating Procedure 175-28, the allegations should
   54  have been verified and Survivor and Victim should have been
   55  immediately removed from the Barahona home, and
   56         WHEREAS, in January 2005, it was reported that Jorge
   57  Barahona had “tickled the private parts” of Victim, which the
   58  child protective investigator dismissed as being of “little
   59  concern,” and
   60         WHEREAS, on March 20, 2007, Survivor’s and Victim’s school
   61  principal called in an abuse report to the Department of
   62  Children and Families which alleged that, for 5 months, Victim
   63  had been going to school at least two to three times per week
   64  with serious body odor, smelling rotten, and appearing unkempt;
   65  that Victim’s uniforms were not clean and her shoes were dirty;
   66  that on one occasion Victim had spilled applesauce in her hair
   67  at school and returned the following day with the applesauce
   68  still in her hair; that Victim was always hungry and eating a
   69  lot at school, hoarding food in her backpack from breakfast and
   70  lunch, and there was a concern that she was not eating at home;
   71  that Victim was afraid to talk; that Survivor also went to
   72  school appearing unkempt; and that both Survivor and Victim were
   73  having trouble staying awake during classes, and
   74         WHEREAS, on March 29, 2007, the Department of Children and
   75  Families learned that Survivor and Victim had been absent from
   76  school approximately 20 days, taken out of school early about a
   77  dozen times, and were expected to be retained in the first
   78  grade, and
   79         WHEREAS, on May 29, 2009, Victim and Survivor were adopted
   80  by the Barahonas, despite numerous incidents that should have
   81  led to an active investigation and discovery of abuse, and
   82         WHEREAS, in February 2011, the Department of Children and
   83  Families Abuse Hotline received another report concerning
   84  Survivor and Victim, this time alleging that Survivor and Victim
   85  were being severely abused and imprisoned from the world, and
   86         WHEREAS, it was the duty of the Department of Children and
   87  Families to remove Survivor and Victim from a placement in which
   88  there was a substantial risk of harm and, over the course of 6
   89  years, there were multiple instances of abuse which the
   90  department either knew or should have known were occurring in
   91  connection with their placement with the Barahonas, and
   92         WHEREAS, on February 14, 2011, Victim was found dead in a
   93  truck parked off I-95 in Palm Beach County, and Survivor was
   94  found near death, in critical condition, and
   95         WHEREAS, after the death of Victim and the discovery of the
   96  severe abuse of both children, the Secretary of the Department
   97  of Children and Families, David E. Wilkins, conducted an
   98  investigation that culminated on March 14, 2011, with the
   99  issuance of a report of findings and recommendations, and
  100         WHEREAS, in the executive summary of the report,
  101  investigators reported that there were significant gaps and
  102  failures in common sense, critical thinking, ownership, follow
  103  through, and timely and accurate information sharing, all of
  104  which defined the care of Survivor and Victim from the inception
  105  of their relationship with the state child welfare system, and
  106         WHEREAS, investigators determined that the systematic
  107  failure included both investigative and case management
  108  processes, as well as the pre- and post-adoption processes, and
  109         WHEREAS, the investigative report cited numerous incidents
  110  of abuse of the children, including, but not limited to,
  111  punching, kicking, choking, beatings, the denial of basic and
  112  necessary medical care, forcing the children to eat cockroaches
  113  and food that contained feces, sexual abuse, sticking cotton
  114  swabs with human feces in the children’s ears, suffocating one
  115  child with a plastic bag while the other child watched, smearing
  116  feces over the children’s faces and placing feces on the
  117  children’s hands for extended periods of time, and binding the
  118  children with duct tape and placing them naked in a bathtub
  119  together for days on end, and
  120         WHEREAS, after the death of Victim and the discovery of
  121  Survivor, criminal charges were filed against the Barahonas, and
  122         WHEREAS, tort claims were filed on behalf of Victim and
  123  Survivor in the United States District Court for the Southern
  124  District of Florida, Case No. 1:11-civ-24611-PAS, and a
  125  complaint was also filed in the Circuit Court for the Eleventh
  126  Judicial Circuit of Miami-Dade County, Case No. 13-2715 CA 25,
  127  and
  128         WHEREAS, the personal representative of the Estate of
  129  Victim and the newly adoptive parents of Survivor have agreed to
  130  amicably settle this matter and have entered into a settlement
  131  agreement in which the Department of Children and Families has
  132  agreed to pay $5 million to Survivor and the Estate of Victim,
  133  and
  134         WHEREAS, as a result of the allegations of both negligence
  135  and civil rights violations, and pursuant to s. 768.28, Florida
  136  Statutes, the Department of Children and Families has paid $1.25
  137  million to Survivor and the Estate of Victim, and
  138         WHEREAS, the balance of the settlement agreement is to be
  139  paid through the passage of this claim bill in the amount of
  140  $3.75 million, and such funds shall be allocated between
  141  Survivor and the Estate of Victim so that Survivor will receive
  142  $1.125 million and the Estate of Victim will receive $2.625
  143  million, and
  144         WHEREAS, the Department of Children and Families fully
  145  supports the passage of this claim bill, NOW, THEREFORE,
  147  Be It Enacted by the Legislature of the State of Florida:
  149         Section 1. The facts stated in the preamble to this act are
  150  found and declared to be true.
  151         Section 2. The sum of $3.75 million is appropriated from
  152  the General Revenue Fund to the Department of Children and
  153  Families for the relief of Survivor for the personal injuries he
  154  sustained and to the Estate of Victim for damages relating to
  155  the death of Victim.
  156         Section 3. The Chief Financial Officer is directed to draw
  157  a warrant in favor of the adoptive parents of Survivor, as legal
  158  guardians of Survivor, in the amount of $1.125 million, and to
  159  Richard Milstein, as personal representative of the Estate of
  160  Victim, in the amount of $2.625 million upon funds of the
  161  Department of Children and Families in the State Treasury, and
  162  the Chief Financial Officer is directed to pay the same out of
  163  such funds in the State Treasury.
  164         Section 4. The amount paid by the Department of Children
  165  and Families pursuant to s. 768.28, Florida Statutes, and the
  166  amount awarded under this act are intended to provide the sole
  167  compensation for all present and future claims arising out of
  168  the factual situation described in the preamble to this act
  169  which resulted in the personal injuries of Survivor and the
  170  death of Victim. The total amount paid for attorney fees and
  171  lobbying fees relating to this claim may not exceed 25 percent
  172  of the amount awarded under this act.
  173         Section 5. This act shall take effect upon becoming a law.