Florida Senate - 2009 CS for SB 58
By the Policy and Steering Committee on Ways and Means; and
Senator Pruitt
576-06122-09 200958c1
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 17, 16, and 14
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. There is appropriated from the Federal Grants
162 Trust Fund within the Department of Children and Family Services
163 the sum of $950,000 each year for fiscal years 2009-2010 through
164 2018-2019, inclusive, to the department for the relief of Jorge
165 and Debbie Garcia-Bengochea and their adopted sons, Brian,
166 Matthew, and James Garcia-Bengochea, for injuries and damages
167 sustained as a result of negligent acts by employees and agents
168 of the Department of Children and Family Services or its
169 predecessor agency, the Department of Health and Rehabilitative
170 Services.
171 Section 3. For fiscal years 2009-2010 through 2018-2019,
172 inclusive, the Chief Financial Officer is directed to draw
173 annually a warrant in favor of Jorge and Debbie Garcia-Bengochea
174 and of the trusts in place for Brian, Matthew, and James in the
175 sum of $950,000 upon funds of the Department of Children and
176 Family Services in the State Treasury. The Chief Financial
177 Officer is directed to pay the same out of such funds in the
178 State Treasury. These funds shall be distributed annually as
179 follows:
180 (1) The sum of $256,666.66 to the special needs trust for
181 Brian Garcia-Bengochea;
182 (2) The sum of $256,666.66 to the special needs trust for
183 Matthew Garcia-Bengochea;
184 (3) The sum of $256,666.66 to the special needs trust for
185 James Garcia-Bengochea;
186 (4) The sum of $90,000 to Debbie Garcia-Bengochea; and
187 (5) The sum of $90,000 to Jorge Garcia-Bengochea.
188 Section 4. (1) This award, appropriated up to a grand total
189 of $9.5 million, is intended to provide the sole compensation
190 for all present and future claims arising out of the factual
191 situation described in this act which resulted in the injury to
192 Jorge and Debbie Garcia-Bengochea and their adopted sons, Brian,
193 Matthew, and James Garcia-Bengochea.
194 (2) The total amount paid for attorney’s fees and lobbying
195 fees are to be paid to the attorneys and lobbyists currently
196 retained by the claimants. The total amount paid for attorney’s
197 fees, lobbying fees, costs, and other similar expenses relating
198 to this claim may not exceed 25 percent of each annual payment
199 awarded pursuant to this act. Further, no more than 25 percent
200 of each annual payment may be used to pay attorney’s fees,
201 lobbying fees, costs, and other similar expenses relating to
202 this claim.
203 Section 5. (1) It is the intent of the Legislature that the
204 department’s recognition of its negligence as the cause of the
205 injuries suffered by the minor children, as provided by the
206 parties’ settlement agreement, is ratified by this act and all
207 lien interests held by the state resulting from the treatment
208 and care of Jorge and Debbie Garcia-Bengochea and their adopted
209 sons, Brian, Matthew and James Garcia-Bengochea, for the
210 occurrences described in this act are waived.
211 (2) Brian, Matthew, and James Garcia-Bengochea shall be
212 eligible for services from the Department of Children and Family
213 Services as though each child is eligible for foster care
214 related services.
215 Section 6. This act shall take effect upon becoming a law.