Florida Senate - 2009                               CS for SB 58
       
       
       
       By the Policy and Steering Committee on Ways and Means; and
       Senator Pruitt
       
       
       
       576-06122-09                                            200958c1
    1                        A bill to be entitled                      
    2         An act for the relief of Jorge and Debbie Garcia
    3         Bengochea and their adoptive children, Brian, Matthew,
    4         and James, by the Department of Children and Family
    5         Services; providing an appropriation to compensate
    6         them for injuries and damages sustained as a result of
    7         negligence by employees of the department or its
    8         predecessor agency; providing a limitation on the
    9         payment of attorney’s fees and lobbying fees;
   10         providing legislative intent with respect to
   11         ratification of terms of the parties’ settlement
   12         agreement and waiver of lien interests held by the
   13         state; providing an effective date.
   14  
   15         WHEREAS, when Jorge and Debbie Garcia-Bengochea legally
   16  adopted Brian, Matthew, and James, on July 24, 1998, the boys
   17  had previously been under the care and supervision of the
   18  Department of Health and Rehabilitative Services, the
   19  predecessor agency for the Department of Children and Family
   20  Services, and
   21         WHEREAS, in November 1994, when the boys were ages 2 years
   22  and 9 months, 1 year and 9 months, and approximately 1 month,
   23  the department placed them in an emergency shelter because of
   24  evidence of physical and sexual abuse and neglect while under
   25  the care of the boys’ biological mother and the father of
   26  Matthew and James, and
   27         WHEREAS, Brian, Matthew, and James officially entered the
   28  department’s foster care system in January 1995, following a
   29  departmental investigation indicating that they had been
   30  physically, mentally, and sexually abused and that their
   31  biological parents were mentally ill, had poor prognoses for
   32  improvement, and were abusing alcohol and illegal drugs, and
   33         WHERAS, from January 1995 to March 1997, the boys lived in
   34  two foster homes that were loving and provided them with
   35  nurturing care, and although both foster parents expressed
   36  interest in adopting the boys, the department did not bring the
   37  foster parents’ requests to the attention of the dependency
   38  court, and
   39         WHEREAS, in mid-March of 1997, the department reunified
   40  Brian, Matthew, and James with their biological mother against
   41  the advice and repeated warnings from social workers,
   42  counselors, therapists, and personnel of social service agencies
   43  who recommended against the reunification and advised the
   44  department that the boys’ biological mother had married a man
   45  known for alcohol abuse and cocaine addiction, and
   46         WHEREAS, after returning Brian, Matthew, and James to their
   47  biological mother, the department did not provide her with
   48  sufficient support and services despite warnings to the
   49  department by counselors, social service agencies, and
   50  therapists that Brian, Matthew, and James would be at risk of
   51  further harm absent such support and services, and
   52         WHEREAS, on June 3, 1997, the boys’ biological mother was
   53  arrested for child abuse and ordered to undergo treatment, and
   54         WHEREAS, on August 4, 1997, the parental rights of the
   55  boys’ biological mother were permanently terminated, and the
   56  parental rights of the boys’ biological father had been
   57  terminated before that date, and
   58         WHEREAS, over the next 2 years, the department placed
   59  Brian, Matthew, and James in various shelters and foster homes,
   60  and on various occasions Brian, Matthew, and James were abused
   61  and neglected by their caretakers, which included cruel
   62  discipline where they were locked overnight in a backyard
   63  chicken coop and underfed, and
   64         WHEREAS, one of the boys’ foster parents, Hector Rosa, was
   65  later convicted of sexual battery on each of the three boys and
   66  another foster child and is serving a life sentence in prison,
   67  and
   68         WHEREAS, while the boys were living in the foster home of
   69  Hector Rosa, their therapist repeatedly expressed concern to the
   70  department regarding Hector Rosa’s treatment of the boys,
   71  including a report to the department that while on an outing
   72  with the youngest child, he dropped to his knees and
   73  hysterically begged not to be returned to the Rosa foster home,
   74  but the department did not act on the report, and
   75         WHEREAS, in March 1998, the department arranged for the
   76  introduction of Brian, Matthew, and James, then aged 6, 5, and
   77  3, to Jorge and Debbie Garcia-Bengochea, a couple who had
   78  expressed interest in adopting one or, if they were siblings,
   79  perhaps two children, but who had specified that they could not
   80  adopt children who had significant emotional problems or who
   81  were acting out sexually, and
   82         WHEREAS, before this introduction, departmental records
   83  included medical reports concerning Brian, Matthew, and James
   84  which indicated a history of sexual abuse and also reports by
   85  foster parents and day care centers indicating that Brian,
   86  Matthew, and James were committing sexual acts on one another
   87  and on other children, but the records and the information
   88  contained therein were not shared with the Garcia-Bengocheas,
   89  and
   90         WHEREAS, subsequent to adopting Brian, Matthew, and James,
   91  the adoptive parents saw that the boys had severe behavioral
   92  problems and were acting out sexually with one another and other
   93  children and later came to understand the reasons for these
   94  problems, and
   95         WHEREAS, the boys soon became aggressive with one another
   96  and other children, attacked their adoptive mother, were
   97  expelled from school, and had to be separated from other
   98  children, and
   99         WHEREAS, a departmental memorandum of August 11, 2000,
  100  described the Garcia-Bengocheas as “a family in crisis” and
  101  admitted, while making various recommendations, that the
  102  department had failed to protect the boys by stating that the
  103  adoptive parents “are attempting to parent children who were
  104  severely damaged while under [the department’s] care,” and
  105         WHEREAS, in January of 2001, the adoptive parents and the
  106  three boys traveled to a treatment center in Colorado and, upon
  107  arriving there, learned that the department had failed to
  108  forward their records, and when the treatment center requested
  109  the records from the department, the treatment center was told
  110  that the department would send records only if the treatment
  111  center promised to conceal the records from, and not disclose
  112  the information contained therein to, the adoptive parents, and
  113         WHEREAS, the adoptive parents learned from the staff at the
  114  treatment center in Colorado, and subsequently from records
  115  produced by the department during the civil litigation, that the
  116  department had not disclosed key material records concerning
  117  Brian, Matthew, and James and their biological parents during
  118  the preadoption period, and
  119         WHEREAS, the additional records revealed a history of
  120  trauma, abuse, neglect, and resulting behaviors of their
  121  adoptive children which had not been previously disclosed to the
  122  Garcia-Bengocheas, and if full and complete disclosure of the
  123  history had been provided they would not have adopted the boys,
  124  and
  125         WHEREAS, Brian, Matthew, and James, now 17, 16, and 14
  126  years of age, have each been diagnosed as having severe reactive
  127  attachment disorder, posttraumatic stress disorder, and
  128  oppositional defiant disorder, and
  129         WHEREAS, among Brian, Matthew, and James there have been
  130  numerous instances of psychiatric hospitalizations, expulsions
  131  from school, acts of aggression, sexual acting out on each other
  132  and on other children, and running away from home, and
  133         WHEREAS, defiant behavior of the two eldest boys has led to
  134  their recent involvement with the juvenile justice system, and
  135         WHEREAS, Brian, Matthew, and James will need a variety of
  136  psychiatric or therapeutic services, and the adoptive parents
  137  will also require professional services, and
  138         WHEREAS, the adoptive parents have filed a lawsuit against
  139  the Department of Children and Family Services seeking
  140  compensation for injuries caused by negligence in the care and
  141  supervision of Brian, Matthew, and James by departmental
  142  employees and agents and alleging wrongful adoption, based on
  143  negligent misrepresentations and concealment by departmental
  144  employees and agents, and
  145         WHEREAS, during the discovery phase of the litigation, even
  146  the department’s own retained expert witness, Bruce Perry, M.D.,
  147  admitted under oath during his deposition that the department
  148  was negligent and that he had recommended that the department
  149  settle the case, and
  150         WHEREAS, the parties have reached a settlement in the
  151  amount of $10 million, with other terms of value, and the
  152  plaintiffs have been paid $500,000, or $100,000 per claimant,
  153  pursuant to the limits of liability set forth in s. 768.28,
  154  Florida Statutes, leaving a balance of $9.5 million to be paid
  155  pursuant to this agreed-upon claim bill, NOW, THEREFORE,
  156  
  157  Be It Enacted by the Legislature of the State of Florida:
  158  
  159         Section 1. The facts stated in the preamble to this act are
  160  found and declared to be true.
  161         Section 2. There is appropriated from the Federal Grants
  162  Trust Fund within the Department of Children and Family Services
  163  the sum of $950,000 each year for fiscal years 2009-2010 through
  164  2018-2019, inclusive, to the department for the relief of Jorge
  165  and Debbie Garcia-Bengochea and their adopted sons, Brian,
  166  Matthew, and James Garcia-Bengochea, for injuries and damages
  167  sustained as a result of negligent acts by employees and agents
  168  of the Department of Children and Family Services or its
  169  predecessor agency, the Department of Health and Rehabilitative
  170  Services.
  171         Section 3. For fiscal years 2009-2010 through 2018-2019,
  172  inclusive, the Chief Financial Officer is directed to draw
  173  annually a warrant in favor of Jorge and Debbie Garcia-Bengochea
  174  and of the trusts in place for Brian, Matthew, and James in the
  175  sum of $950,000 upon funds of the Department of Children and
  176  Family Services in the State Treasury. The Chief Financial
  177  Officer is directed to pay the same out of such funds in the
  178  State Treasury. These funds shall be distributed annually as
  179  follows:
  180         (1)The sum of $256,666.66 to the special needs trust for
  181  Brian Garcia-Bengochea;
  182         (2)The sum of $256,666.66 to the special needs trust for
  183  Matthew Garcia-Bengochea;
  184         (3)The sum of $256,666.66 to the special needs trust for
  185  James Garcia-Bengochea;
  186         (4)The sum of $90,000 to Debbie Garcia-Bengochea; and
  187         (5)The sum of $90,000 to Jorge Garcia-Bengochea.
  188         Section 4. (1)This award, appropriated up to a grand total
  189  of $9.5 million, is intended to provide the sole compensation
  190  for all present and future claims arising out of the factual
  191  situation described in this act which resulted in the injury to
  192  Jorge and Debbie Garcia-Bengochea and their adopted sons, Brian,
  193  Matthew, and James Garcia-Bengochea.
  194         (2)The total amount paid for attorney’s fees and lobbying
  195  fees are to be paid to the attorneys and lobbyists currently
  196  retained by the claimants. The total amount paid for attorney’s
  197  fees, lobbying fees, costs, and other similar expenses relating
  198  to this claim may not exceed 25 percent of each annual payment
  199  awarded pursuant to this act. Further, no more than 25 percent
  200  of each annual payment may be used to pay attorney’s fees,
  201  lobbying fees, costs, and other similar expenses relating to
  202  this claim.
  203         Section 5. (1)It is the intent of the Legislature that the
  204  department’s recognition of its negligence as the cause of the
  205  injuries suffered by the minor children, as provided by the
  206  parties’ settlement agreement, is ratified by this act and all
  207  lien interests held by the state resulting from the treatment
  208  and care of Jorge and Debbie Garcia-Bengochea and their adopted
  209  sons, Brian, Matthew and James Garcia-Bengochea, for the
  210  occurrences described in this act are waived.
  211         (2)Brian, Matthew, and James Garcia-Bengochea shall be
  212  eligible for services from the Department of Children and Family
  213  Services as though each child is eligible for foster care
  214  related services.
  215         Section 6. This act shall take effect upon becoming a law.