08-004319CB In Re: Senate Bill 58 (Garcia-Bengochea) vs. * Status: Closed DOAH Final Order on Friday, May 8, 2009.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

40 2 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

4 / 22 /0 9 SM Fav/ 1 amendment

April 22 , 2009

Th e Honorable Jeff Atwater

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 58 (2009 ) Î Senator Ken Pruitt

HB 159 (2009 ) Î Representative Carl J. Domino

Relief of Jorge and Debbie Garcia - Bengochea and

their ado ptive children, Brian, Matthew, and James

SPECIAL MASTERÓS FINAL REPORT

THIS IS AN UNCONTEST ED CLAIM FOR $9.5 MI LLION (IN

PAYMENTS OF APPROXIMATELY $950,000 A YEAR FOR

TEN YEARS) FOR INJURIES AND DAM AGES SUSTAINED

BY THREE BOYS AND TH EIR ADOPTIVE PAREN TS AS A

RESULT OF THE NEGLIG ENCE OF EMPLOYEES OF THE

DEPARTMENT OF CHILDR EN AND FAMILIES AND ITS

PREDECESSOR AGENCY IN FAILING TO TREAT AND

DISCLOSE HISTORIES O F ABUSE .

FINDINGS OF FACT: ClaimantsÓ Damages and Injuries

Brian, Matthew, and James Garcia - B e ngochea are ages 16,

15, and 14 , respectively, and are a danger to themselves

and others. They suffer from reactive attachment disorder, a

severe mental illness characterized by the inability to

develop normal human relationships and feelings, as

describe d in the book High Risk: Children Without a

Conscience

which chronicles the making of Charles Manson, Ted Bundy

and other psychopaths. They also suffer from post - traumatic

stress syndrome and oppositional de fiance disorder . Their

primary diagnosis results from their failure as infants to bond

with or trust any caregivers, most importantly their mother;

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 2

from multiple foster care placements that began when Brian

was 2 years and 9 months, Matthew was 1 year and 9

months, and James was a month old; and from being

subjected to extreme cruelty, physical and sexual abuse by

their mother, her boyfriends/husband, perhaps a

grandfather, and some of their many foster parents.

According to the expert psychiatrist hired by DCF, they are

also at significantly greater risk for substance abuse and

predatory sexual behavior .

In 1998, when they were 6, 5, and 3 years old, respectively,

Brian, Matthew, and James were adopted by Debbie and

Jorge Garcia - Bengochea. Sexual abuse warnings were

minimized by caseworkers, information that should have

been provided to prospective parents was withheld from the

files of the predecessor agency to the Department of

Children and Families (DCF), and the Garcia - Bengocheas

were assured that th e boys had been safe since they came

under s tate protection. I nformation that would reasonably

cause one to suspect severe past trauma to the boys was

withheld, as was appropriate assistance and treatment. The

Garcia - Bengocheas kept the boys in their ho me trying to

keep them from harming themselves and other s , and to keep

them from going back to the foster care or to the juvenile

justice system for almost 10 years, until DCF accepted some

responsibility and arranged for the Agency for Health Care

Adminis tration (AHCA) to negotiate Medicaid reimbursement

contracts for appropriate psychiatric inpatient placements.

By that time, the adoptive parents described their

relationship as being that of captors with prisoners - of - war.

The boys first came to the atte ntion of the predecessor to

DCF on November 8, 1994, because their biological mother

sought refuge at a domestic abuse shelter from a man who

was the father of Matthew and James, but not Brian. After 5

weeks in the shelter, the mother returned to live wit h her

boyfriend despite a restraining order. The three boys were

kept in a childrenÓs shelter due to concerns that their mother

could not and would not protect them. The oldest, Brian,

was found to be recovering from a broken arm and the

cause was explai ned inconsistently by the mother and her

bo yfriend. A medical examination showed that Brian had

anal tissue tearing. Matthew and James had bruises and

also some indications of sexual abuse. All of the boys had

severe impetigo, scabies, ring worm and mal nutrition due to

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 3

a diet of sweets and junk food that had badly damaged

BrianÓs teeth. In retrospect, a DCF expert agreed that

conditions justified the termination of parental rights and

placing the boys for adoption at that time.

The boysÓ history prior to DCF intervention is as follows:

Brian was born on February 14, 1992, in California, and

reported by his mother to have been conceived as a result of

rape. At the time, his mother had been married once, but

was living with a boyfriend. With his mother and her

boyfriend, both of whom had histories of substance abuse,

Brian lived in their car, trailers, and motels in Alabama , then

in Georgia, where almost a year later Matthew was born on

February 1, 1993. While they were living in Georgia, a

neighbor re ported to the Georgia Department of Human

Resources that the parents were abusing and neglecting the

b oys. The family avoided scrutiny by Georgia officials when

they moved back to the mother's home state of Florida.

They eventually settled in Palm Beach County, where James

was born on October 13, 1994. They lived in motels or with

the motherÓs father who reportedly had sexually molested

her when she was a child, as did her stepfather, and a family

friend .

After State intervention, in December 1994, the mother and

her boyfriend were referred for psychological evaluations.

The mother was diagnosed as extremely troubled, damaged,

and conflicted, of low average intelligence with an IQ of 86,

and likely to "act out in some aggressive/sexual manner."

The boy friend, the biological father of Matthew and James,

was found to be an angry, blunt, crude, bombastic liar with

an antisocial personality disorder.

From November 1994 until February 1997, the boys were

placed in the foster homes of Alix Reyna - Holley, and then

Jimmy and Kim Shelton. During a supervised visit with their

biological mother, in February 1996, the mother took James

to the bathroom to change his diaper and digitally penetrated

his anus, which was pink and swollen when he was returned

to his fost er parent who took him to the emergency room. A

staff person with the Community Intervention and Research

Center, who was assigned to observe the mother interacting

with the boys wrote, in an April 1996 memorandum, that the

case ". . . should be monitored closely by your most

experienced caseworker because it has the potential to be a

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 4

'newspaper' article that would be detrimental to HRS [the

predecessor agency, the Department of Health and

Rehabilitative Services] and others concerned." The

Sheltons expre ssed an interest in adopting the boys and an

expert psychiatrist opined that the boys appeared to have

had the ability to be connected and to form good

relationships with the Sheltons at that time, but counseling

and family reunification were the stated go als.

In March 1997, the boys were returned to their biological

mother and her new "husband" (although the mother later

commented that she was not sure that she was ever

divorced from her first husband). This second

"husband/boyfriend" was known to abuse alcohol and

cocaine, and soon left or was thrown out by the mother. The

mother, now alone with the boys, was required to have

regular family counseling from the Center for Children in

Crisis. Some reports indicate that Matthew suffered a

broken arm durin g this time. In June 1997, according to

conflicting reports, either the staff at the center saw bite

marks and bruises on 2 - year - old James' ear, neck, arm and

back, or James' injuries were discovered when his brother,

Brian, then 5 years old, telephoned 9 11 to report the abuse.

Their mother admitted that she "lost it" and bit James and hit

him with her shoe. She was arrested and charged with

aggravated child abuse and, in August 1997, her p arental

rights were terminated.

From June until August 1997, Bri an, Matthew, and James

were back in the childrenÓs shelter. In August 1997, Brian

was returned to the Sheltons for foster care, while Matthew

and James at ages 4 and almost 3 , respectively, were

placed in the foster home of Luis and Nancy Garcia. The

Gar cias made DCF aware of their preference for infants who

were not toddlers and made no secret of especially not

wanting Matthew in discussions with DCF staff, sometimes

in front of the boys. After one of the boys told a daycare

worker what was happening at the Garcia Ós , DCF

caseworkers confirmed on an unannounced visit that the

Garcias disciplined the boys by locking them in a chicken

coop in the backyard. The two were returned to the shelter

in October 1997 .

From December 1997 until March 1998, all three boys were

in the foster home of Hector and Yolanda Rosa.

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 5

Caseworkers interviewed the Rosas in advance. The y knew

that Hector was an abused foster child, that he had abused

his first wife, that Yolanda was his second wife, and that one

of YolandaÓs child ren was standing in a corner like a statue

during their entirety of an a pproximately 2 - hour meeting.

Knowing the placement was Ðnot greatÑ but was the only

foster home available for all three boys, the staff decided to

place Brian, Matthew, and James with the Rosas. When a

caseworker was returning James to the Rosa's home after

taking him to a doctor's appointment, he grabbed her around

the leg and screamed pleading with her not to make him go

back to Hector's. The caseworker and the Court that had

termi nated their biological mother's parental rights began to

increase pressure on superiors to make other arrangements

or to find a suitable home for the boys to be adopted, and

the boys left the Rosas in March 1998. ( In December 1998,

Hector Rosa was arreste d for the sexual abuse of the next

foster child placed in the Rosa home. Later, he also pled

guilty to sexually abusing the three brothers. The abuse was

virtually a nightly occurrence, during which he would use

Brian to help him catch and hold the young er boys. Hector

Rosa is now serving multiple life sentences for child sexual

battery. )

When Debbie and Jorge Garcia - Bengochea considered

adopting the boys, they were assured that Brian had been in

therapy and had no memory of any incidents related to the

1994 medical test showing anal tearing when he was 2 years

and 9 month s old. A case summary signed by the Garcia -

Bengocheas and dated February 25, 1998, and a Pre -

Disposition Report that was listed as one of the documents

provided to them indicated that there was "substantial

evidence of neglect, physical abuse, and sexual abuse of the

children." That statement, the Adoptive Child Registration

forms for Matthew and James, and the psychological

evaluations that also described them as victims of sexual

abu se were explained to mean that, because their older

brother had experienced sexual abuse, the other two had

also received counseling. Most importantly, the Garcia -

Bengocheas were assured that the boys had been safe in

DCF custody since they were very youn g. The pre - adoption

evaluations indicate d that Brian and Matthew had moderate

emotional needs, while James had mild emotional needs.

During pre - adoption meetings, a caseworkers commented

that they were pleased that the Garcia - Bengocheas were

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 6

willing to t ake blond Caucasian boys, like Matthew and

James (although Brian has dark hair), rather than preferring

onl y children with darker hair like Mr. Garcia - Bengochea and

the older son the couple had already adopted. The Garcia -

Bengocheas were not given medical and psychological

records for the birth parents, nor any reports that would

contradict the assertion that the boys had been completely

safe since they came into DCF custody.

The 11 - year - old son who was already living in the home was

adopted when he was 5 , after his biological mother , a

member of the church the Garcia - Bengocheas attended,

died of cancer. Debbie Garcia - Bengochea was a teacher,

who had also served as the principal, in a school for children

who required personalized educational programs due to

social or educational deficits. Jorge Garcia - Bengochea,

who, as a young child emigrate d from Cuba with his family to

C entral Florida, had an MBA and became the Director of

Church Education for a large religious denomination. He

was responsible for pro grams a t approximately 25 churches

in S outh Florida and Latin America. Because of her

experience with children, the need to protect their first son,

and because both parents worked around children, Mrs.

Garcia - Bengochea explicitly ruled out adopting child ren with

extreme problems, and insisted that their son would be the

oldest of the siblings. She testified that she explicitly ruled

out taking any children who were "sexualized," meaning

those likely to act out as a result of sexual abuse.

After receivin g the caseworker's assurances, the Garcia -

Bengocheas and the boys first met in a public park, and then

the boys came for a trial overnight visit. The three boys ate

food ravenously with their hands, as if starving, and the

couple noticed bruising and sign s of malnourishment when

they bathed them. The next day the boys cried and begged

again, as James had done with the caseworker previously,

not to be returned to Hector's, and they were allowed to

remain in the Garcia - Bengocheas home pending adoption.

DCF arranged for a lawyer to represent the Garcia -

Bengocheas and to make the adoption permanent

immediately after the expiration of the required 90 - day

waiting period.

After an apparent "honeymoon" period with their adoptive

family that is typical and that r oughly coincided with the 90

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 7

days, the boys began acting out sexually. They had an

obsession with smearing their feces. They urinated

inappropriately including in Mrs. Garcia - Bengochea Ós face

while she was sleeping in a tent duri ng a family camping trip.

Mrs. Garcia - Bengochea caught the three boys having oral

sex with each other, and consulted DCF about the behavior.

A caseworker told the Garcia - Bengocheas that the situation

was no longer DCF's problem and suggested that they take

measu res to separate t he boys. T he family bought a five -

bedroom house, so that each boy could have a separate

bedroom, and moved from their three - bedroom house that

had been approved as a part of the pre - adoption home

study. They installed an audible alarm system to alert the m

and identify which door or window was being opened.

In February 1999, upset by the squeaky sound of a bed

being moved, James told Mrs. Garcia - Bengochea what

Hector Rosa had done to them. Matthew responded with

fear that Hector would come after them. W ithout knowing

what James had said, Brian denied certain kinds of sexual

acts with knowing specificity for a 7 - year - old. The boys also

reported evidence that Hector snorted cocaine. Although

aware of the Garcia - Bengocheas Ó inquiries and requests for

assi stance because of the boys' behaviors, DCF employees

failed to inform the parents about Hector Rosa's arrest or to

investigate his past with the boys until after the parents

reported what the boys had said to the DCF abuse hotline.

In an effort to allevia te their fears, the boys were taken to

witness Hector being sentenced to life and taken away in

shackles. The youngest boy, James, later sought additional

reassurance and asked his parents who would watch Hector

while the guards were asleep .

As the boys grew, their behavior deteriorated and the threats

and violence towards others, particularly towards

Mrs. Garcia - Bengochea increased. Although they had been

molested and abused by men and women, the boys, like

others who suffer from reactive attachment dis order,

continued to blame the mother who failed to protect and

nurture them , and to transfer the hatred to any new mother -

figure and to women, in general. They were expelled from

day care, schools, a police academy, and a military school.

Mrs. Garcia - Ben gochea quit her job to stay home.

Mr. Garcia - Bengochea was forced to leave his job after he

had to report that Brian molested another child in Sunday

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 8

school, and after it became impossible for him to travel and

leave his wife alone with the boys. Matches , knives,

scissors, and poisons were not kept in the house, but the

boys wou ld run away and steal those items to bring home.

The boys set fires including near the family's kittens; they

destroyed furniture and made holes in the wall to create

places to ho ard and hide weapons that they stole, including

knives and screwdrivers; they destroyed Mrs. Garcia -

Bengochea's clothes by spraying each item in her closet with

bleach on one occasion and by taking scissors to cut each

item on another; they threw away her jewelry, cell phones,

and laptops only to admit what they had done after the

garbage had been hauled away; they wet the bathroom

floors to cause falls; they tried to stab their parents; while

she tried to restrain him when he was in a rage as part of the

" holding" therapy, Matthew broke Mrs. Garcia - Bengochea Ós

jaw; Matthew also poisoned his adoptive mother with

salmonella by putting blood from uncooked chicken meat in

her drinks. Brian became obsessed with violent anti - women

pornography, ran away , and was once found in a motel with

a man he met on the Internet. The family stopped going out

or having any house guests. As the boys grew stronger and

more dangerous, the parents hired aides to help watch them,

including a male aide to protect Mrs. Garcia - Bengo chea at

home and when she tried to drive with the boys in her car .

Brian once took every thumb tack out of posters on his wall

and lined the floor in the doorway to his room with thumb

tacks turned up, then called to his older brother who ran

barefoot int o the room. At age 11, Brian was hospitalized

under the Baker Act at a S outh Florida children's psychiatric

facility after he placed a knife to his throat threatening

suicide. Another time, he apparently found a cleaning liquid

to drink. He sometimes sp oke to his brothers in a deep

voice that sounded like Hector's. Unfamiliar with severe

attachment disorders, the South Florida facility

misdiagnosed and heavily drugged Brian for bipolar disorder ,

and the medications, that affect th e part of the brain tha t

causes Parkinson's disease, caused Brian to have now

significant ly noticeable tics, movements akin to those from

Tourrette's syndrome.

In January 2001, a retiring DCF administrator arranged for

the family, at State expense, to receive 2 weeks of intensi ve

therapy at the Evergreen Psychotherapy Center Attachment

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 9

Treatment and Training Institute in Colorado (Evergreen),

and for their two caseworkers to accompany them, as

required by Evergreen. At the request of Evergreen,

complete records of the multiple placements, abuse

histories, and psychological profiles of their biological mother

and the biological father of Matthew and James were

provided to the staff. The same caseworker who had

assured the family that the boys were not Ðextreme" cases,

called the facility saying that the complete records were sent

by mistake and were not to be shown to the parents. On the

advice of various experts, the parents tried holding therapy

to force bonding, power sitting or yoga for relaxation and

body control, and equin e therapy, eventually moving to a

farm in Loxahatchee, then to a miniature horse farm in

Central Florida.

The actions of the two older boys, Brian and Matthew,

ultimately led to their involvement in the juvenile justice

system after the parents took their counselor's advice and

began to report the behavior to law enforcement authorities.

With DCFÓs help and the AHCA Medicaid arrangements,

Brian and Matthew were sent to reactive attachment disorder

residential treatment programs in Illinois and Utah. Real izing

that he too was also about to be sent away to a mental

health facility in New Mexico, the youngest boy, James, ran

away and stole rat poison from a neighboring horse farm and

mixed it in with horse and cat food. Sometime after James

left, Mrs. Garci a - Bengochea fed the animals the tainted feed

and returned home to find her pasture littered with the

bodies of dead horses and the dead cats inside the house.

Claimant's Current Living Situation

Last year, t he three boys were placed in residential

treatm ent programs in Utah, Illinois, and New Mexico at

Medicaid expense. The three programs require parental

participation in therapy sessions , including approximately

five to ten hours a week by telephone, two trips to Utah for

sessions with Brian, four trips to Illinois for therapy with

Matthew, and four trips to New Mexico for therapy with

James, to locate and move James to a different facility after

Medicaid refused to continue to pay for the first institution.

The Garcia - Bengocheas summarized , in part, wh at has

happened with each child during the past year as follows:

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 10

Brian - At Oxbow Academy in Utah, Brian

eventually started receiving treatment from the

Clinical Director because his issues were so

severe. Brian spoke to his Florida probation

officer ab out doing some work around Oxbow

Academy in order to pay his $1,500 restitution

resulting from his breaking and entering arrest

in West Palm Beach. Brian is currently playing

league football, horseback riding, earning AÓs

and BÓs in school, actively parti cipating in

group and individual therapy, and is engaged

during our weekly family phone therapy.

According to Heather Green, BrianÓs therapist,

these initial signs of progress are promising but

Brian still has a long way to go.

Matthew - Progress has bee n slow and steady

for Matthew. He is learning to express himself

using his words. Matthew still becomes easily

agitated with his peers and tries to negotiate

the rules. He often instigates others to cause

problems and get them in trouble claiming he

had nothing to do with it. Matthew appears to

be working hard in therapy and is starting to

recognize his issues and articulate his

struggles. MatthewÓs grades in school have

improved dramatically, receiving all AÓs and

BÓs. Matthew is pleasant during phon e calls

and enjoyable to be around for parent visits,

although he still tends to be superficial and

nervous during these times. Matthew enjoys

football, basketball, fishing, reading, chess,

and shop. He has enjoyed learning about

Mark Twain and the Missi ssippi River. Peers

have nominated Matthew to be a Student

Representative in the Student Council. He was

surprised and pleased with his n omination.

Matthew volunteers in the library and helps

select books for the school to purchase. Fall

and winter app ear to be MatthewÓs favorite

time of year as the leaves change and the

snow falls. Upon MatthewÓs arrival, he put on

approximately twenty pounds, but still remains

tall and slender . He says, ÐThe food here is

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 11

great, almost as good as home.Ñ Matthew is

gl ad to be at Chaddock working on the issues

that are preventing him from having normal

relationships and a better life. Like Brian, he

talks about going to college one day.

James - Of the three boys, James has

progressed the least over the past several

mo nths. This is mainly due to the lack of

continuity of JamesÓ treatment. After only four

months of residential treatment at Villa Santa

Maria in New Mexico, Florida Medicaid stated

that it could no longer fund this program and

would require James to be tr ansferred as soon

as possible. James was transported from

Cedar Crest, New Mexico to Enterprise, Utah.

James is about to successfully complete

Redcliff Ascent in Utah , and bega n treatment

at Discovery Academy, also in Utah. James is

having a difficult t ime taking responsibility for

his actions. The Clinical Director at the

Discovery Academy will personally provide

therapy because of the severity of JamesÓ

issues. James is highly intelligent and should

thrive at Discovery Academy, since there is a

stron g emphasis on academics and individual

therapy. James has started to write letters

home expressing some appreciation for his

family. The staff and Clinical Director at

Discovery Academy are confident of JamesÓ

success at their program.

Compensation Estim ates

The total estimated economic damages for Brian are

$11,828,217.00; for Matthew, $10,889,488.00; for James,

$14,800,990.00; or a total ranging from $34 to $46 million for

the three boys. Mrs. Garcia - Bengo chea 's damages are

estimated at $899,237.00 (no t including her past medical

expenses) and Mr. Garcia - Bengo chea 's are $562,237.00

(not including his past medical expenses), or a total of over

$1.4 million.

LITIGATION HISTORY: In 2001, the Garcia - Bengocheas hired an attorney to

demand release of the bo ys' entire DCF records. They filed

suit, in 2002, for negligence and wrongful adoption based on

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 12

misrepresentations and concealment. The case was

contested until mediation in July and September 2007, when

the parties reached a settlement agreement that wa s

approved by the Circuit Court of Palm Beach County on

November 30, 2007. Under the terms of the $10 million

settlement, the parents have received $100,000 each which

they have used to get the boys into the residential programs

and continue to use to tra vel to attend family therapy

sessions. The state's expert witness agreed in deposition

that he was unaware of any program in Flor ida that offers

treatment for severe reactive attachment disorder.

The state has also paid a $100,000 into each of the three

boys' special needs trust m anaged by the Lilliquist Firm in

Miami. Initially, Allen E. Rossin of West Palm Beach, t he

attorney ad litem , recommended that the remaining $9.5

million be divided so that each boy w ould receive $3.1

million and the parents w o uld receive the balance of

$350,000 each, after the total compensation is reduced by

the proportionate share of costs, and attorneys' and

lobbyists' fees. Now, given the parents' sacrifices, loss of

full - time employment due to the time commitments to

part icipate in therapy with the three boys, and traveling

expenses, the attorney ad litem revised his recommendation

and proposes th e following allocation: $2,666,666 to each of

the three boys, and $1,000,000 to each parent . Each year

for 10 years, through a continuing appropriation, each parent

will receive $90,000; and each child's special needs trust will

receive $256,666 .

CLAIMANT S ' AND DCF'S In 2008, t he parents expressed their gratitude to the new

POSITION: administration , especially to DCF Secretary Butterworth who

testified on their behalf at the special masters' hearing , and

submitted a letter of support dated February 28, 2008 .

Current DCF Secretary Sheldon also support s this claim bill.

OTHER ISSUES : The claim bill should be amended to provide for the

allocation of funds among the claimants.

CONCLUSIONS OF LAW: As the Department concedes, there is competent and

substantial evidence to conclude that DCF and/or its

predecessor failed to protect Brian, Matthew , and James

Garcia - Bengochea 1) whe n it returned them to their

biological mother rather than terminating her parental rights

earlier; 2) when it placed them and left them in foster care

SPECIAL MASTERÓS FINAL REPORT Î SB 58 (2009)

April 22, 2009

Page 13

homes of the Garcias and the Rosas knowing the

placements were inappropriate; 3) when it failed to advise

the adoptive parents of the complete history of the boys Ó pre -

adoption that continued post - adoption until they hired an

attorney in 2001; and 4) when it failed to provide adequate

assistance with therapies and/or placements in adequate

mental health facil ities for almost 10 years.

LEGISLATIVE HISTORY : This is the second year that a claim bill has been filed on

behalf of the claimants.

ATTORNEYS Ó FEES AND AttorneysÓ fees are limited to 25 percent as required by

LOBBYISTSÓ FEES : s. 768.28(8), Florida Sta tutes. Costs are $234,772.67, after

five years of preparation for trial with the assistance of the

limited number of experts on reactive attachment disorder.

The contract for l obbyists' fees are provided for an additional

6 percent of the final claim bill ; however , the attorneyÓs

affidavit agrees to abide by the provisions of section 3 of the

bill, requiring that lobbyistsÓ fees are included in the 25

percent allocated to both attorneys and lobbyists.

RECOMMENDATIONS: For the reasons set forth in this re port, I recommend that

Senate Bill 58 (2008) be reported FAVORABLY, as

amended.

Respectfully submitted,

Eleanor M. Hunter

Senate Special Master

cc: Senator Ken Pruitt

Philip Twogood, Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 58

Ì794900ÉÎ 79490 0

LEGISLATIVE A CTION

Senate . House

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The Special Master on Claim Bills recommended the following:

1 Senate Amendment ( with title amendment )

2

3 Delete lines 161 - 192

4 and insert:

5 Section 2. There is appropriated from the General Revenue

6 Fund the sum of $950,000 each fiscal year beginning with the

7 2009 - 2010 fiscal year and continuing through the 2 0 18 - 2019

8 fiscal year, inclusive, to be paid to an insurance company or

9 other financial institutio n that is admitted and authorized to

10 issue annuity contracts in this state and sel ected by the

11 claimant - guardians Jorge and Debbie Garcia - Benochea, to finance

12 and purchase a structured settlement for the benefit of the

Page 1 of 3

4/22/2009 2:18:00 PM 600 - 03007B - 09

Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 58

Ì794900ÉÎ 79490 0

13 three minor claimants as follows: $25 6,666.66 to Brian Garcia -

14 Bengochea, $256,666.66 to Matthew Garcia - Bengochea, and

15 $256,666.66 to James Garcia - Bengochea and lump - sum annual

16 payments of $95,000 to Jorge Garcia - Bengochea and $95,000 to

17 Debbie Garcia - Bengochea, as relief for their injuries an d

18 damages sustained as a result of the negligence of the

19 Department of Children and Family Services .

20 Section 3. The Chief Financial Officer is directed to

21 execute all necessary agreements to implement the payment of

22 this claim, and to draw a warrant each f iscal year in the amount

23 of $950,000 beginning in the 2009 - 20 10 fiscal year and

24 continuing through the 2018 - 20 19 fiscal year , inclusive, in

25 favor of the financier of the structured settlements for Brian

26 Garcia - Bengochea, Matthew Garcia - Bengochea , and James Garcia -

27 Bengochea, and lump - sum annual payments of $95,000 to Jorge and

28 Debbie Garcia - Bengochea, to be paid from the General Revenue

29 Fund of the Department of Children and Family Services , or any

30 successor thereto.

31 Section 4. The Department of Children and Family Services

32 shall include in its annual legislative budget request a

33 specific appropriation for funds sufficient to make the payment

34 due under this act during each relevant fiscal year beginning in

35 the 2009 - 2010 fiscal y ear and continuing through the 2018 - 2019

36 fiscal year .

37 Section 5. It is the intent of the Legislature that the

38 terms of the partiesÓ settlement agreement are ratified by this

39 act , that all lien interests held by the state resulting from

40 the treatment and ca re of Jorge and Debbie Garcia - Bengochea and

41 their adopted sons Brian, Matthew , and James Garcia - Bengochea,

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Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 58

Ì794900ÉÎ 79490 0

42 for the occurrences described in this act are waived , and that

43 the boys continue to be eligible for services from the

44 Department of Children and Fami ly Services until each child

45 reaches the age of 21 .

46 Section 6. Any amount awarded under this act pursuant to

47 the waiver of sovereign immunity permitted under s. 768.28,

48 Florida Statutes, is intended to provide the sole compensation

49 for all present and future claims arising out of the factual

50 situation described in th is act which resulted in injury to

51 Jorge and Debbie Garcia - Bengochea and their adopted sons, Brian,

52 Matthew, and James. The total amount paid for attorneyÓs fees

53 and lobbying fees are to be paid to the attorneys and lobbyists

54 currently retained by the clai mants and may not exceed 25

55 percent of the total present value amount awarded under section

56 2 of this act .

57 Section 7. This act shall take effect upon becoming a law.

58

59 ================= T I T L E A M E N D M E N T ================

60 And the title is amended as follows:

61 Delete line 125

62 and insert:

63 WHEREAS, Brian, Matthew, and James, now 17, 16, and 14

64

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