Florida Senate - 2017                       (NP)    CS for SB 18
       By the Committee on Judiciary; and Senator Flores
       590-01948-17                                            201718c1
    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 that the amount already paid by the
    9         department and the appropriation satisfy all present
   10         and future claims related to the injuries of Survivor
   11         and the death of Victim; providing a limitation on the
   12         payment of attorney fees; providing an effective date.
   14         WHEREAS, on May 30, 2000, 4 days after their birth, a baby
   15  boy, hereinafter referred to as “Survivor,” and his twin sister,
   16  hereinafter referred to as “Victim,” first came to the attention
   17  of the Department of Children and Families, formerly known as
   18  the Department of Children and Family Services, due to the fact
   19  that the children were to be sent to separate foster homes, and
   20         WHEREAS, Survivor was reunited with their biological mother
   21  and father on July 26, 2000, and Victim was reunited with them
   22  on January 8, 2001, and
   23         WHEREAS, on August 4, 2003, the court terminated the
   24  parental rights of Survivor’s and Victim’s biological mother,
   25  and
   26         WHEREAS, on March 26, 2004, Survivor’s and Victim’s
   27  biological father was arrested, which resulted in both Survivor
   28  and Victim being placed in the custody of the state and moved
   29  into the foster home of Jorge and Carmen Barahona, and
   30         WHEREAS, within 4 days of the placement of Survivor and
   31  Victim in foster care, contact was made with paternal relatives
   32  in Texas, Mr. and Mrs. Reyes, to explore their potential role as
   33  caregivers, and
   34         WHEREAS, on March 30, 2004, Mr. and Mrs. Reyes informed the
   35  Department of Children and Families that they were interested in
   36  caring for Survivor and Victim, and
   37         WHEREAS, pursuant to s. 39.521, Florida Statutes, placement
   38  with adult relatives takes priority over out-of-home licensed
   39  foster care placement, and Survivor and Victim should have been
   40  placed in the Reyes’s home as soon as due diligence allowed, and
   41         WHEREAS, pursuant to s. 39.001, Florida Statutes,
   42  Department of Children and Families case workers are required to
   43  achieve permanency within 1 year, either through reunification
   44  with a child’s natural parents or adoption, and
   45         WHEREAS, due to significant delays in the placement
   46  process, the Reyes were not permitted to adopt Survivor and
   47  Victim, who remained in the care of the Barahonas, and
   48         WHEREAS, significant events occurred which the Department
   49  of Children and Families knew or should have known were
   50  indicative of the perpetration of abuse of Survivor and Victim,
   51  and
   52         WHEREAS, in at least one instance, allegations of medical
   53  neglect were reported and, pursuant to Department of Children
   54  and Families Operating Procedure 175-28, the allegations should
   55  have been verified and Survivor and Victim should have been
   56  immediately removed from the Barahona home, and
   57         WHEREAS, in January 2005, it was reported that Jorge
   58  Barahona had “tickled the private parts” of Victim, which the
   59  child protective investigator dismissed as being of “little
   60  concern,” and
   61         WHEREAS, on March 20, 2007, Survivor’s and Victim’s school
   62  principal called in an abuse report to the Department of
   63  Children and Families which alleged that, for 5 months, Victim
   64  had been going to school at least two to three times per week
   65  with serious body odor, smelling rotten, and appearing unkempt;
   66  that Victim’s uniforms were not clean and her shoes were dirty;
   67  that on one occasion Victim had spilled applesauce in her hair
   68  at school and returned the following day with the applesauce
   69  still in her hair; that Victim was always hungry and eating a
   70  lot at school, hoarding food in her backpack from breakfast and
   71  lunch, and there was a concern that she was not eating at home;
   72  that Victim was afraid to talk; that Survivor also went to
   73  school appearing unkempt; and that both Survivor and Victim were
   74  having trouble staying awake during classes, and
   75         WHEREAS, on March 29, 2007, the Department of Children and
   76  Families learned that Survivor and Victim had been absent from
   77  school approximately 20 days, taken out of school early about a
   78  dozen times, and were expected to be retained in the first
   79  grade, and
   80         WHEREAS, on May 29, 2009, Victim and Survivor were adopted
   81  by the Barahonas, despite numerous incidents that should have
   82  led to an active investigation and discovery of abuse, and
   83         WHEREAS, in February 2011, the Department of Children and
   84  Families Abuse Hotline received another report concerning
   85  Survivor and Victim, this time alleging that Survivor and Victim
   86  were being severely abused and imprisoned from the world, and
   87         WHEREAS, it was the duty of the Department of Children and
   88  Families to remove Survivor and Victim from a placement in which
   89  there was a substantial risk of harm and, over the course of 6
   90  years, there were multiple instances of abuse which the
   91  department either knew or should have known were occurring in
   92  connection with their placement with the Barahonas, and
   93         WHEREAS, on February 14, 2011, Victim was found dead in a
   94  truck parked off I-95 in Palm Beach County, and Survivor was
   95  found near death, in critical condition, and
   96         WHEREAS, after the death of Victim and the discovery of the
   97  severe abuse of both children, the Secretary of the Department
   98  of Children and Families, David E. Wilkins, conducted an
   99  investigation that culminated on March 14, 2011, with the
  100  issuance of a report of findings and recommendations, and
  101         WHEREAS, in the executive summary of the report,
  102  investigators reported that there were significant gaps and
  103  failures in common sense, critical thinking, ownership, follow
  104  through, and timely and accurate information sharing, all of
  105  which defined the care of Survivor and Victim from the inception
  106  of their relationship with the state child welfare system, and
  107         WHEREAS, investigators determined that the systematic
  108  failure included both investigative and case management
  109  processes, as well as the preadoption and postadoption
  110  processes, and
  111         WHEREAS, the investigative report cited numerous incidents
  112  of abuse of the children, including, but not limited to,
  113  punching, kicking, choking, beatings, the denial of basic and
  114  necessary medical care, forcing the children to eat cockroaches
  115  and food that contained feces, sexual abuse, sticking cotton
  116  swabs with human feces in the children’s ears, suffocating one
  117  child with a plastic bag while the other child watched, smearing
  118  feces over the children’s faces and placing feces on the
  119  children’s hands for extended periods of time, and binding the
  120  children with duct tape and placing them naked in a bathtub
  121  together for days on end, and
  122         WHEREAS, after the death of Victim and the discovery of
  123  Survivor, criminal charges were filed against the Barahonas, and
  124         WHEREAS, tort claims were filed on behalf of Victim and
  125  Survivor in the United States District Court for the Southern
  126  District of Florida, Case No. 1:11-civ-24611-PAS, and a
  127  complaint was also filed in the Circuit Court for the Eleventh
  128  Judicial Circuit of Miami-Dade County, Case No. 13-2715 CA 25,
  129  and
  130         WHEREAS, the personal representative of the Estate of
  131  Victim and the new adoptive parents of Survivor have agreed to
  132  amicably settle this matter and have entered into a settlement
  133  agreement in which the Department of Children and Families has
  134  agreed to pay $5 million to Survivor and the Estate of Victim,
  135  and
  136         WHEREAS, as a result of the allegations of both negligence
  137  and civil rights violations, and pursuant to s. 768.28, Florida
  138  Statutes, the Department of Children and Families has paid $1.25
  139  million to Survivor and the Estate of Victim, and
  140         WHEREAS, the balance of the settlement agreement is to be
  141  paid through the passage of this claim bill in the amount of
  142  $3.75 million, and such funds shall be allocated between
  143  Survivor and the Estate of Victim so that Survivor will receive
  144  $1.125 million and the Estate of Victim will receive $2.625
  145  million, and
  146         WHEREAS, the Department of Children and Families fully
  147  supports the passage of this claim bill, NOW, THEREFORE,
  149  Be It Enacted by the Legislature of the State of Florida:
  151         Section 1. The facts stated in the preamble to this act are
  152  found and declared to be true.
  153         Section 2. The sum of $3.75 million is appropriated from
  154  the General Revenue Fund to the Department of Children and
  155  Families for the relief of Survivor for the personal injuries he
  156  sustained and to the Estate of Victim for damages relating to
  157  the death of Victim.
  158         Section 3. The Chief Financial Officer is directed to draw
  159  a warrant in favor of the adoptive parents of Survivor, as legal
  160  guardians of Survivor, in the amount of $1.125 million, and to
  161  Richard Milstein, as personal representative of the Estate of
  162  Victim, in the amount of $2.625 million upon funds of the
  163  Department of Children and Families in the State Treasury, and
  164  the Chief Financial Officer is directed to pay the same out of
  165  such funds in the State Treasury.
  166         Section 4. The amount paid by the Department of Children
  167  and Families pursuant to s. 768.28, Florida Statutes, and the
  168  amount awarded under this act are intended to provide the sole
  169  compensation for all present and future claims arising out of
  170  the factual situation described in the preamble to this act
  171  which resulted in the personal injuries of Survivor and the
  172  death of Victim. The total amount paid for attorney fees
  173  relating to this claim may not exceed 25 percent of the amount
  174  awarded under this act.
  175         Section 5. This act shall take effect upon becoming a law.