ENROLLED 2017 Legislature CS for CS for SB 18 201718er 1 2 An act for the relief of “Survivor” and the Estate of 3 “Victim”; providing appropriations to compensate 4 Survivor and the Estate of Victim for injuries and 5 damages sustained as a 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. 13 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 caseworkers 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, 148 149 Be It Enacted by the Legislature of the State of Florida: 150 151 Section 1. The facts stated in the preamble to this act are 152 found and declared to be true. 153 Section 2. For the relief of Survivor for personal injuries 154 he sustained and to the Estate of Victim for damages related to 155 the death of Victim: 156 (1) The sum of $1.875 million is appropriated from the 157 Federal Grants Trust Fund to the Department of Children and 158 Families for the 2017-2018 fiscal year; and 159 (2) The sum of $1.875 million is appropriated from the 160 Federal Grants Trust Fund to the Department of Children and 161 Families for the 2018-2019 fiscal year. 162 Section 3. The Chief Financial Officer is directed to draw 163 warrants upon the funds appropriated in section 2 of this act to 164 pay such funds, as follows: 165 (1) No later than August 1, 2017, in favor of the adoptive 166 parents of Survivor, as legal guardians of Survivor, in the 167 amount of $562,500, and to Richard Milstein, as personal 168 representative of the Estate of Victim, in the amount of 169 $1,312,500; and 170 (2) No later than August 1, 2018, in favor of the adoptive 171 parents of Survivor, as legal guardians of Survivor, in the 172 amount of $562,500, and to Richard Milstein, as personal 173 representative of the Estate of Victim, in the amount of 174 $1,312,500. 175 Section 4. The amount paid by the Department of Children 176 and Families pursuant to s. 768.28, Florida Statutes, and the 177 amount awarded under this act are intended to provide the sole 178 compensation for all present and future claims arising out of 179 the factual situation described in the preamble to this act 180 which resulted in the personal injuries of Survivor and the 181 death of Victim. The total amount paid for attorney fees 182 relating to this claim may not exceed 25 percent of the amount 183 awarded under this act. 184 Section 5. This act shall take effect upon becoming a law.