Florida Senate - 2017                                      SB 18
       By Senator Flores
       39-00025-17                                             201718__
    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 remained in the care of the Barahonas, and
   45         WHEREAS, significant events occurred which the Department
   46  of Children and Families knew or should have known were
   47  indicative of the perpetration of abuse of Survivor and Victim,
   48  and
   49         WHEREAS, in at least one instance, allegations of medical
   50  neglect were reported and, pursuant to Department of Children
   51  and Families Operating Procedure 175-28, the allegations should
   52  have been verified and Survivor and Victim should have been
   53  immediately removed from the Barahona home, and
   54         WHEREAS, in January 2005, it was reported that Jorge
   55  Barahona had “tickled the private parts” of Victim, which the
   56  child protective investigator dismissed as being of “little
   57  concern,” and
   58         WHEREAS, on March 20, 2007, Survivor’s and Victim’s school
   59  principal called in an abuse report to the Department of
   60  Children and Families which alleged that, for 5 months, Victim
   61  had been going to school at least two to three times per week
   62  with serious body odor, smelling rotten, and appearing unkempt;
   63  that Victim’s uniforms were not clean and her shoes were dirty;
   64  that on one occasion Victim had spilled applesauce in her hair
   65  at school and returned the following day with the applesauce
   66  still in her hair; that Victim was always hungry and eating a
   67  lot at school, hoarding food in her backpack from breakfast and
   68  lunch, and there was a concern that she was not eating at home;
   69  that Victim was afraid to talk; that Survivor also went to
   70  school appearing unkempt; and that both Survivor and Victim were
   71  having trouble staying awake during classes, and
   72         WHEREAS, on March 29, 2007, the Department of Children and
   73  Families learned that Survivor and Victim had been absent from
   74  school approximately 20 days, taken out of school early about a
   75  dozen times, and were expected to be retained in the first
   76  grade, and
   77         WHEREAS, on May 29, 2009, Victim and Survivor were adopted
   78  by the Barahonas, despite numerous incidents that should have
   79  led to an active investigation and discovery of abuse, and
   80         WHEREAS, in February 2011, the Department of Children and
   81  Families Abuse Hotline received another report concerning
   82  Survivor and Victim, this time alleging that Survivor and Victim
   83  were being severely abused and imprisoned from the world, and
   84         WHEREAS, it was the duty of the Department of Children and
   85  Families to remove Survivor and Victim from a placement in which
   86  there was a substantial risk of harm and, over the course of 6
   87  years, there were multiple instances of abuse which the
   88  department either knew or should have known were occurring in
   89  connection with their placement with the Barahonas, and
   90         WHEREAS, on February 14, 2011, Victim was found dead in a
   91  truck parked off I-95 in Palm Beach County, and Survivor was
   92  found near death, in critical condition, and
   93         WHEREAS, after the death of Victim and the discovery of the
   94  severe abuse of both children, the Secretary of the Department
   95  of Children and Families, David E. Wilkins, conducted an
   96  investigation that culminated on March 14, 2011, with the
   97  issuance of a report of findings and recommendations, and
   98         WHEREAS, in the executive summary of the report,
   99  investigators reported that there were significant gaps and
  100  failures in common sense, critical thinking, ownership, follow
  101  through, and timely and accurate information sharing, all of
  102  which defined the care of Survivor and Victim from the inception
  103  of their relationship with the state child welfare system, and
  104         WHEREAS, investigators determined that the systematic
  105  failure included both investigative and case management
  106  processes, as well as the preadoption and postadoption
  107  processes, and
  108         WHEREAS, the investigative report cited numerous incidents
  109  of abuse of the children, including, but not limited to,
  110  punching, kicking, choking, beatings, the denial of basic and
  111  necessary medical care, forcing the children to eat cockroaches
  112  and food that contained feces, sexual abuse, sticking cotton
  113  swabs with human feces in the children’s ears, suffocating one
  114  child with a plastic bag while the other child watched, smearing
  115  feces over the children’s faces and placing feces on the
  116  children’s hands for extended periods of time, and binding the
  117  children with duct tape and placing them naked in a bathtub
  118  together for days on end, and
  119         WHEREAS, after the death of Victim and the discovery of
  120  Survivor, criminal charges were filed against the Barahonas, and
  121         WHEREAS, tort claims were filed on behalf of Victim and
  122  Survivor in the United States District Court for the Southern
  123  District of Florida, Case No. 1:11-civ-24611-PAS, and a
  124  complaint was also filed in the Circuit Court for the Eleventh
  125  Judicial Circuit of Miami-Dade County, Case No. 13-2715 CA 25,
  126  and
  127         WHEREAS, the personal representative of the Estate of
  128  Victim and the new adoptive parents of Survivor have agreed to
  129  amicably settle this matter and have entered into a settlement
  130  agreement in which the Department of Children and Families has
  131  agreed to pay $5 million to Survivor and the Estate of Victim,
  132  and
  133         WHEREAS, as a result of the allegations of both negligence
  134  and civil rights violations, and pursuant to s. 768.28, Florida
  135  Statutes, the Department of Children and Families has paid $1.25
  136  million to Survivor and the Estate of Victim, and
  137         WHEREAS, the balance of the settlement agreement is to be
  138  paid through the passage of this claim bill in the amount of
  139  $3.75 million, and such funds shall be allocated between
  140  Survivor and the Estate of Victim so that Survivor will receive
  141  $1.125 million and the Estate of Victim will receive $2.625
  142  million, and
  143         WHEREAS, the Department of Children and Families fully
  144  supports the passage of this claim bill, NOW, THEREFORE,
  146  Be It Enacted by the Legislature of the State of Florida:
  148         Section 1. The facts stated in the preamble to this act are
  149  found and declared to be true.
  150         Section 2. The sum of $3.75 million is appropriated from
  151  the General Revenue Fund to the Department of Children and
  152  Families for the relief of Survivor for the personal injuries he
  153  sustained and to the Estate of Victim for damages relating to
  154  the death of Victim.
  155         Section 3. The Chief Financial Officer is directed to draw
  156  a warrant in favor of the adoptive parents of Survivor, as legal
  157  guardians of Survivor, in the amount of $1.125 million, and to
  158  Richard Milstein, as personal representative of the Estate of
  159  Victim, in the amount of $2.625 million upon funds of the
  160  Department of Children and Families in the State Treasury, and
  161  the Chief Financial Officer is directed to pay the same out of
  162  such funds in the State Treasury.
  163         Section 4. The amount paid by the Department of Children
  164  and Families pursuant to s. 768.28, Florida Statutes, and the
  165  amount awarded under this act are intended to provide the sole
  166  compensation for all present and future claims arising out of
  167  the factual situation described in the preamble to this act
  168  which resulted in the personal injuries of Survivor and the
  169  death of Victim. The total amount paid for attorney fees and
  170  lobbying fees relating to this claim may not exceed 25 percent
  171  of the amount awarded under this act.
  172         Section 5. This act shall take effect upon becoming a law.