HB 1079

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, and
4	James, by the Department of Children and Family Services;
5	providing an appropriation to compensate them for injuries
6	and damages sustained as a result of negligence by
7	employees of the department or its predecessor agency;
8	providing a limitation on attorney's fees and lobbying
9	fees; providing legislative intent with respect to
10	ratification of terms of the parties' settlement agreement
11	and waiver of lien interests held by the state; providing
12	an effective date.
13
14	WHEREAS, when Jorge and Debbie Garcia-Bengochea legally
15	adopted their sons, Brian, Matthew, and James, on July 24, 1998,
16	the boys had previously been under the care and supervision of
17	the Department of Children and Family Services or its
18	predecessor agency, the Department of Health and Rehabilitative
19	Services, and
20	WHEREAS, in November 1994, when the boys were ages 2 years
21	and 9 months, 1 year and 9 months, and approximately 1 month,
22	the department, or its predecessor agency, placed them in an
23	emergency shelter because of evidence of physical and sexual
24	neglect and abuse by the boys' biological mother and the father
25	of Matthew and James, and
26	WHEREAS, Brian, Matthew, and James officially entered the
27	department's foster care system in January 1995, following a
28	departmental investigation indicating that they had been
29	physically, mentally, and sexually abused and that their
30	biological parents were mentally ill, had a poor prognosis for
31	improvement, and were abusing alcohol and illegal drugs, and
32	WHEREAS, in mid-March of 1997, the department placed Brian,
33	Matthew, and James back with their biological mother after
34	having received warnings from some of its social workers and
35	counselors concerning the placement and being notified that the
36	boys' biological mother had allegedly married a man known for
37	alcohol abuse and cocaine addiction, and
38	WHEREAS, after returning Brian, Matthew, and James to their
39	biological mother, the department did not provide her with
40	sufficient support and services despite warnings to the
41	department by counselors and therapists that Brian, Matthew, and
42	James would be at risk of further harm absent such support and
43	services, and
44	WHEREAS, on June 3, 1997, the boys' biological mother was
45	arrested for child abuse and ordered to undergo treatment, and
46	WHEREAS, on August 4, 1997, the parental rights of the
47	boys' biological mother were permanently terminated, the
48	parental rights of the boys' biological father having been
49	terminated prior to that date, and
50	WHEREAS, over the next 2 years, the department placed
51	Brian, Matthew, and James in various shelters and foster homes
52	and, on various occasions, Brian, Matthew, and James were again
53	abused by one or more of their caretakers, and
54	WHEREAS, one of the boys' foster parents, Hector Rosa, was
55	later convicted of sexual battery on each of the three boys and
56	is serving a life sentence in prison, and
57	WHEREAS, while the boys were in the care of Hector Rosa,
58	their therapist repeatedly expressed concern to the department
59	regarding the placement, and
60	WHEREAS, in March of 1998, the department arranged for the
61	introduction of Brian, Matthew, and James, then aged 6, 5, and
62	3, to Jorge and Debbie Garcia-Bengochea, a couple who had
63	expressed interest in adopting one or, if they were siblings,
64	perhaps two children, and specified that they could not adopt a
65	child having significant emotional problems, and
66	WHEREAS, before this introduction, departmental records
67	included medical reports concerning Brian, Matthew, and James
68	that indicated a history of sexual abuse and also reports by
69	foster parents and day care centers indicating that Brian,
70	Matthew, and James were committing sexual acts on one another
71	and on other children, and
72	WHEREAS, subsequent to adopting Brian, Matthew, and James,
73	the adoptive parents saw that Brian, Matthew, and James had
74	severe behavioral problems and later came to understand the
75	reasons for these problems, and
76	WHEREAS, a departmental memorandum of August 11, 2000,
77	describes the Garcia-Bengocheas as "a family in crisis" and
78	notes, while making various recommendations, that the adoptive
79	parents "are attempting to parent children who were severely
80	damaged while under our care," and
81	WHEREAS, the adoptive parents learned, in January 2001,
82	from staff at a treatment center in Colorado and subsequently
83	from records the department produced during civil litigation,
84	that the department did not disclose material records concerning
85	Brian, Matthew, and James and their biological parents during
86	the preadoption period, and
87	WHEREAS, the additional records indicate a troubling
88	history and various troubling behaviors of their adoptive
89	children in far greater detail than previously disclosed, and
90	WHEREAS, Brian, Matthew, and James, now 15, 14, and 12
91	years of age, have each been diagnosed as having reactive
92	attachment disorder, post-traumatic stress disorder, and
93	oppositional defiant disorder, and
94	WHEREAS, among Brian, Matthew, and James there have been
95	numerous instances of psychiatric hospitalizations, expulsions
96	from school, acts of aggression, sexual acting out on each other
97	and on other children, and running away from home, and
98	WHEREAS, defiant behavior of the two eldest boys has led to
99	their recent involvement with the juvenile justice system, and
100	WHEREAS, Brian, Matthew, and James will need a variety of
101	psychiatric or therapeutic services and the adoptive parents
102	will also require professional services, and
103	WHEREAS, the adoptive parents have filed a lawsuit against
104	the Department of Children and Family Services seeking
105	compensation for injuries caused by negligence in the care and
106	supervision of Brian, Matthew, and James by departmental
107	employees and agents and alleging wrongful adoption, based on
108	negligent misrepresentations and concealment by departmental
109	employees and agents, and
110	WHEREAS, the parties have reached a settlement in the
111	amount of $10,000,000, with other terms of value, and the
112	plaintiffs have been paid $500,000, or $100,000 per claimant,
113	pursuant to the limits of liability set forth in s. 768.28,
114	Florida Statutes, leaving a balance of $9,500,000 to be paid
115	pursuant to this agreed upon claim bill, NOW, THEREFORE,
116
117	Be It Enacted by the Legislature of the State of Florida:
118
119	Section 1.  The facts stated in the preamble to this act
120	are found and declared to be true.
121	Section 2.  There is appropriated from the General Revenue
122	Fund to the Department of Children and Family Services the sum
123	of $9,500,000 for the relief of Jorge and Debbie Garcia-
124	Bengochea and their adopted sons, Brian, Matthew, and James, for
125	injuries and damages sustained as a result of negligent acts by
126	employees and agents of the Department of Children and Family
127	Services or its predecessor agency, the Department of Health and
128	Rehabilitative Services.
129	Section 3.  The Chief Financial Officer is directed to draw
130	a warrant in favor of Jorge and Debbie Garcia-Bengochea in the
131	sum of $9,500,000 upon funds of the Department of Children and
132	Family Services in the State Treasury, and the State Treasurer
133	is directed to pay the same out of such funds in the State
134	Treasury.
135	Section 4.  Any amount awarded under this act pursuant to
136	the waiver of sovereign immunity permitted under s. 768.28,
137	Florida Statutes, and this award is intended to provide the sole
138	compensation for all present and future claims arising out of
139	the factual situation described in the preamble to this act
140	which resulted in the injury to Jorge and Debbie Garcia-
141	Bengochea and their adopted sons, Brian, Matthew, and James. The
142	total amount paid for attorney's fees and lobbying fees relating
143	to this claim may not exceed 25 percent of the amount awarded
144	under section 2.
145	Section 5.  It is the intent of the Legislature that all
146	terms of the parties' settlement agreement are ratified by the
147	passage of this act and all lien interests held by the state
148	resulting from the treatment or care of Jorge Garcia-Bengochea
149	and Debbie Garcia-Bengochea, and their adoptive children Brian,
150	Matthew, and James, for the events described in this act are
151	waived as provided for in the parties' settlement agreement.
152	Section 6.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.