HB 1395

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	WHEREAS, 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 15, 14, and 12
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
160	are found and declared to be true.
161	Section 2.  The sum of $9.5 million is appropriated from
162	the General Revenue Fund to the Department of Children and
163	Family Services for the relief of Jorge and Debbie Garcia-
164	Bengochea and their adopted sons, Brian, Matthew, and James, for
165	injuries and damages sustained as a result of negligent acts by
166	employees and agents of the Department of Children and Family
167	Services or its predecessor agency, the Department of Health and
168	Rehabilitative Services.
169	Section 3.  The Chief Financial Officer is directed to draw
170	a warrant in favor of Jorge and Debbie Garcia-Bengochea and the
171	trusts in place for each of the three boys in the sum of $9.5
172	million upon funds of the Department of Children and Family
173	Services in the State Treasury, and the Chief Financial Officer
174	is directed to pay the same out of such funds in the State
175	Treasury.
176	Section 4.  Any amount awarded under this act pursuant to
177	the waiver of sovereign immunity permitted under s. 768.28,
178	Florida Statutes, is intended to provide the sole compensation
179	for all present and future claims arising out of the factual
180	situation described in this act which resulted in injury to
181	Jorge and Debbie Garcia-Bengochea and their adopted sons, Brian,
182	Matthew, and James. The total amount paid for attorney's fees
183	and lobbying fees relating to this claim may not exceed 25
184	percent of the amount awarded under section 2.
185	Section 5.  It is the intent of the Legislature that all
186	terms of the parties' settlement agreement are ratified by the
187	passage of this act and all lien interests held by the state
188	resulting from the treatment or care of Jorge and Debbie Garcia-
189	Bengochea and their adopted sons, Brian, Matthew, and James, for
190	the events described in this act are waived as provided for in
191	the parties' settlement agreement.
192	Section 6.  This act shall take effect upon becoming a law.

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