1

A bill to be entitled

2

An act relating to the Department of Children and Family

3

Services; providing for the relief of Jorge and Debbie

4

Garcia-Bengochea and their adoptive children Brian,

5

Matthew, and James for injuries and damages sustained as a

6

result of negligence by employees of the department or its

7

predecessor agency; providing an appropriation; providing

8

a limitation on the payment of fees and costs; providing

9

an effective date.

10

11

     WHEREAS, when Jorge and Debbie Garcia-Bengochea legally

12

adopted their sons, Brian, Matthew, and James, on July 24, 1998,

13

the boys had previously been under the care and supervision of

14

the Department of Children and Family Services or its predecessor

15

agency, the Department of Health and Rehabilitative Services, and

16

     WHEREAS, in November of 1994, when the boys were ages 2

17

years and 9 months, 1 year and 9 months, and a little over 1

18

month, the department, or its predecessor agency, placed them in

19

an emergency shelter due to evidence of physical and sexual

20

neglect and abuse by the boys' biological mother and the father

21

of Matthew and James, and

22

     WHEREAS, the boys officially entered the department's foster

23

care system in January of 1995, following a departmental

24

investigation that indicated they had been physically, mentally,

25

and sexually abused and their biological parents were mentally

26

ill, had a poor prognosis for improvement, and were abusing

27

alcohol and illegal drugs, and

28

     WHEREAS, in mid-March of 1997, the department placed the

29

boys back with their biological mother after having received

30

warnings from some of its social workers and counselors

31

concerning this placement and notice that the boys' biological

32

mother had allegedly married a man known for alcohol abuse and

33

cocaine addition, and

34

     WHEREAS, after returning the boys to their biological

35

mother, the department did not provide her with sufficient

36

support and services although counselors and therapists warned

37

the department that the boys would be at risk of further harm

38

absent such support and services, and

39

     WHEREAS, on June 3, 1997, the boys' biological mother was

40

arrested for child abuse and ordered to undergo treatment, and

41

     WHEREAS, on August 4, 1997, the parental rights of the boys'

42

biological mother were permanently terminated, the parental

43

rights of the boys' biological father having been terminated

44

before that date, and

45

     WHEREAS, over the next 2 years, the department placed the

46

boys in various shelters and foster homes and, on various

47

occasions, the boys were again abused by one or more of their

48

caretakers, and

49

     WHEREAS, one of the boys' foster parents, Hector Rosa, was

50

later convicted of sexual battery on each of the three boys and

51

is serving a life sentence, and

52

     WHEREAS, while the boys were in the care of Hector Rosa,

53

their therapist repeatedly expressed concern to the department

54

regarding the placement, and

55

     WHEREAS, in March of 1998, the department arranged for the

56

introduction of the boys, then aged 6, 5, and 3, to Jorge and

57

Debbie Garcia-Bengochea, a couple who had expressed interest in

58

adopting one or, if they were siblings, perhaps two children, and

59

specified that they could not adopt a child having significant

60

emotional problems, and

61

     WHEREAS, before this introduction, departmental records

62

included medical reports concerning the boys indicating a history

63

of sexual abuse and also reports by foster parents and day care

64

centers indicating that the boys were committing sexual acts on

65

one another and other children, and

66

     WHEREAS, subsequent to adopting the boys, the adoptive

67

parents saw that the boys had severe behavioral problems and

68

later came to understand the reasons for these problems, and

69

     WHEREAS, a departmental memorandum of August 11, 2000,

70

describes the Garcia-Bengocheas as "a family in crisis" and

71

notes, while making various recommendations, that the adoptive

72

parents "are attempting to parent children who were severely

73

damaged while under our care," and

74

     WHEREAS, the adoptive parents learned, in January of 2001,

75

from staff at a treatment center in Colorado, and subsequently

76

from records the department produced during civil litigation,

77

that the department did not disclose material records concerning

78

the boys and their biological parents during the preadoption

79

period, and

80

     WHEREAS, the additional records indicate a troubling history

81

and various troubling behaviors of their adoptive children in far

82

greater detail than previously disclosed, and

83

     WHEREAS, the boys, now 15, 14, and 12 years of age, have

84

each been diagnosed as having reactive attachment disorder, post-

85

traumatic stress disorder, and oppositional defiant disorder, and

86

there have been numerous instances of psychiatric

87

hospitalizations, expulsions from school, acts of aggression,

88

sexual acting out on each other and other children, and running

89

away from home, and

90

     WHEREAS, defiant behavior of the two eldest boys has led to

91

their recent involvement with the juvenile justice system, and

92

     WHEREAS, the boys will need a variety of psychiatric or

93

therapeutic services and the adoptive parents also will require

94

professional services, and

95

     WHEREAS, the adoptive parents have filed a lawsuit against

96

the Department of Children and Family Services seeking

97

compensation for injuries caused by negligence in the care and

98

supervision of the boys by departmental employees and agents and

99

alleging wrongful adoption, based on negligent misrepresentations

100

and concealment by departmental employees and agents, and

101

     WHEREAS, the parties have been discussing settlement, and

102

the plaintiffs estimate that the department is liable for

103

economic and noneconomic damages in excess of $75 million for the

104

three boys and their adoptive parents, NOW, THEREFORE,

105

106

Be It Enacted by the Legislature of the State of Florida:

107

108

     Section 1. The facts stated in the preamble to this act are

109

found and declared to be true.

110

     Section 2. The sum of $___ million is appropriated from the

111

General Revenue Fund to the Department of Children and Family

112

Services, to be paid for the relief of Jorge and Debbie Garcia-

113

Bengochea and their adopted sons, Brian, Matthew, and James, for

114

injuries sustained as a result of negligent acts by employees and

115

agents of the Department of Children and Family Services or its

116

predecessor agency, the Department of Health and Rehabilitative

117

Services.

118

     Section 3. The Chief Financial Officer is directed to draw

119

a warrant in favor of Jorge and Debbie Garcia-Bengochea in the

120

sum of $___ million upon funds in the State Treasury and pay the

121

same to Jorge and Debbie Garcia-Bengochea out of such funds in

122

the State Treasury.

123

     Section 4. This award is intended to provide the sole

124

compensation for all present and future claims arising out of the

125

factual situation described in this act which resulted in injury

126

to the claimants. The total amount paid for attorney's fees,

127

lobbying fees, costs, and other similar expenses relating to this

128

claim may not exceed 25 percent of the amount awarded under this

129

act.

130

     Section 5.  This act shall take effect upon becoming a law.