Florida Senate - 2009 (Reformatted) SB 58 By Senator Pruitt 28-00134B-09 200958__ 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 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 are 160 found and declared to be true. 161 Section 2. The sum of $9.5 million is appropriated from the 162 General Revenue Fund to the Department of Children and Family 163 Services for the relief of Jorge and Debbie Garcia-Bengochea and 164 their adopted sons, Brian, Matthew, and James for injuries and 165 damages sustained as a result of negligent acts by employees and 166 agents of the Department of Children and Family Services or its 167 predecessor agency, the Department of Health and Rehabilitative 168 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.