Florida Senate - 2017 SB 18 By Senator Flores 39-00025-17 201718__ 1 A bill to be entitled 2 An act for the relief of “Survivor” and the Estate of 3 “Victim”; providing an appropriation to compensate 4 Survivor and the Estate of Victim for injuries and 5 damages sustained as result of the negligence of the 6 Department of Children and Families, formerly known as 7 the Department of Children and Family Services; 8 providing a limitation on the payment of compensation, 9 fees, and costs; providing an effective date. 10 11 WHEREAS, on May 30, 2000, 4 days after their birth, a baby 12 boy, hereinafter referred to as “Survivor,” and his twin sister, 13 hereinafter referred to as “Victim,” first came to the attention 14 of the Department of Children and Families, formerly known as 15 the Department of Children and Family Services, due to the fact 16 that the children were to be sent to separate foster homes, and 17 WHEREAS, Survivor was reunited with their biological mother 18 and father on July 26, 2000, and Victim was reunited with them 19 on January 8, 2001, and 20 WHEREAS, on August 4, 2003, the court terminated the 21 parental rights of Survivor’s and Victim’s biological mother, 22 and 23 WHEREAS, on March 26, 2004, Survivor’s and Victim’s 24 biological father was arrested, which resulted in both Survivor 25 and Victim being placed in the custody of the state and moved 26 into the foster home of Jorge and Carmen Barahona, and 27 WHEREAS, within 4 days of the placement of Survivor and 28 Victim in foster care, contact was made with paternal relatives 29 in Texas, Mr. and Mrs. Reyes, to explore their potential role as 30 caregivers, and 31 WHEREAS, on March 30, 2004, Mr. and Mrs. Reyes informed the 32 Department of Children and Families that they were interested in 33 caring for Survivor and Victim, and 34 WHEREAS, pursuant to s. 39.521, Florida Statutes, placement 35 with adult relatives takes priority over out-of-home licensed 36 foster care placement, and Survivor and Victim should have been 37 placed in the Reyes’s home as soon as due diligence allowed, and 38 WHEREAS, pursuant to s. 39.001, Florida Statutes, 39 Department of Children and Families case workers are required to 40 achieve permanency within 1 year, either through reunification 41 with a child’s natural parents or adoption, and 42 WHEREAS, due to significant delays in the placement 43 process, the Reyes were not permitted to adopt Survivor and 44 Victim, who remained in the care of the Barahonas, and 45 WHEREAS, significant events occurred which the Department 46 of Children and Families knew or should have known were 47 indicative of the perpetration of abuse of Survivor and Victim, 48 and 49 WHEREAS, in at least one instance, allegations of medical 50 neglect were reported and, pursuant to Department of Children 51 and Families Operating Procedure 175-28, the allegations should 52 have been verified and Survivor and Victim should have been 53 immediately removed from the Barahona home, and 54 WHEREAS, in January 2005, it was reported that Jorge 55 Barahona had “tickled the private parts” of Victim, which the 56 child protective investigator dismissed as being of “little 57 concern,” and 58 WHEREAS, on March 20, 2007, Survivor’s and Victim’s school 59 principal called in an abuse report to the Department of 60 Children and Families which alleged that, for 5 months, Victim 61 had been going to school at least two to three times per week 62 with serious body odor, smelling rotten, and appearing unkempt; 63 that Victim’s uniforms were not clean and her shoes were dirty; 64 that on one occasion Victim had spilled applesauce in her hair 65 at school and returned the following day with the applesauce 66 still in her hair; that Victim was always hungry and eating a 67 lot at school, hoarding food in her backpack from breakfast and 68 lunch, and there was a concern that she was not eating at home; 69 that Victim was afraid to talk; that Survivor also went to 70 school appearing unkempt; and that both Survivor and Victim were 71 having trouble staying awake during classes, and 72 WHEREAS, on March 29, 2007, the Department of Children and 73 Families learned that Survivor and Victim had been absent from 74 school approximately 20 days, taken out of school early about a 75 dozen times, and were expected to be retained in the first 76 grade, and 77 WHEREAS, on May 29, 2009, Victim and Survivor were adopted 78 by the Barahonas, despite numerous incidents that should have 79 led to an active investigation and discovery of abuse, and 80 WHEREAS, in February 2011, the Department of Children and 81 Families Abuse Hotline received another report concerning 82 Survivor and Victim, this time alleging that Survivor and Victim 83 were being severely abused and imprisoned from the world, and 84 WHEREAS, it was the duty of the Department of Children and 85 Families to remove Survivor and Victim from a placement in which 86 there was a substantial risk of harm and, over the course of 6 87 years, there were multiple instances of abuse which the 88 department either knew or should have known were occurring in 89 connection with their placement with the Barahonas, and 90 WHEREAS, on February 14, 2011, Victim was found dead in a 91 truck parked off I-95 in Palm Beach County, and Survivor was 92 found near death, in critical condition, and 93 WHEREAS, after the death of Victim and the discovery of the 94 severe abuse of both children, the Secretary of the Department 95 of Children and Families, David E. Wilkins, conducted an 96 investigation that culminated on March 14, 2011, with the 97 issuance of a report of findings and recommendations, and 98 WHEREAS, in the executive summary of the report, 99 investigators reported that there were significant gaps and 100 failures in common sense, critical thinking, ownership, follow 101 through, and timely and accurate information sharing, all of 102 which defined the care of Survivor and Victim from the inception 103 of their relationship with the state child welfare system, and 104 WHEREAS, investigators determined that the systematic 105 failure included both investigative and case management 106 processes, as well as the preadoption and postadoption 107 processes, and 108 WHEREAS, the investigative report cited numerous incidents 109 of abuse of the children, including, but not limited to, 110 punching, kicking, choking, beatings, the denial of basic and 111 necessary medical care, forcing the children to eat cockroaches 112 and food that contained feces, sexual abuse, sticking cotton 113 swabs with human feces in the children’s ears, suffocating one 114 child with a plastic bag while the other child watched, smearing 115 feces over the children’s faces and placing feces on the 116 children’s hands for extended periods of time, and binding the 117 children with duct tape and placing them naked in a bathtub 118 together for days on end, and 119 WHEREAS, after the death of Victim and the discovery of 120 Survivor, criminal charges were filed against the Barahonas, and 121 WHEREAS, tort claims were filed on behalf of Victim and 122 Survivor in the United States District Court for the Southern 123 District of Florida, Case No. 1:11-civ-24611-PAS, and a 124 complaint was also filed in the Circuit Court for the Eleventh 125 Judicial Circuit of Miami-Dade County, Case No. 13-2715 CA 25, 126 and 127 WHEREAS, the personal representative of the Estate of 128 Victim and the new adoptive parents of Survivor have agreed to 129 amicably settle this matter and have entered into a settlement 130 agreement in which the Department of Children and Families has 131 agreed to pay $5 million to Survivor and the Estate of Victim, 132 and 133 WHEREAS, as a result of the allegations of both negligence 134 and civil rights violations, and pursuant to s. 768.28, Florida 135 Statutes, the Department of Children and Families has paid $1.25 136 million to Survivor and the Estate of Victim, and 137 WHEREAS, the balance of the settlement agreement is to be 138 paid through the passage of this claim bill in the amount of 139 $3.75 million, and such funds shall be allocated between 140 Survivor and the Estate of Victim so that Survivor will receive 141 $1.125 million and the Estate of Victim will receive $2.625 142 million, and 143 WHEREAS, the Department of Children and Families fully 144 supports the passage of this claim bill, NOW, THEREFORE, 145 146 Be It Enacted by the Legislature of the State of Florida: 147 148 Section 1. The facts stated in the preamble to this act are 149 found and declared to be true. 150 Section 2. The sum of $3.75 million is appropriated from 151 the General Revenue Fund to the Department of Children and 152 Families for the relief of Survivor for the personal injuries he 153 sustained and to the Estate of Victim for damages relating to 154 the death of Victim. 155 Section 3. The Chief Financial Officer is directed to draw 156 a warrant in favor of the adoptive parents of Survivor, as legal 157 guardians of Survivor, in the amount of $1.125 million, and to 158 Richard Milstein, as personal representative of the Estate of 159 Victim, in the amount of $2.625 million upon funds of the 160 Department of Children and Families in the State Treasury, and 161 the Chief Financial Officer is directed to pay the same out of 162 such funds in the State Treasury. 163 Section 4. The amount paid by the Department of Children 164 and Families pursuant to s. 768.28, Florida Statutes, and the 165 amount awarded under this act are intended to provide the sole 166 compensation for all present and future claims arising out of 167 the factual situation described in the preamble to this act 168 which resulted in the personal injuries of Survivor and the 169 death of Victim. The total amount paid for attorney fees and 170 lobbying fees relating to this claim may not exceed 25 percent 171 of the amount awarded under this act. 172 Section 5. This act shall take effect upon becoming a law.