A few months after a 10-year-old child was placed with eight other children in a Tampa foster home overseen by a single mom, a 13-year-old boy sneaked into his room and raped him in 2005.
But Hillsborough Kids Inc., a state contractor that placed the boy, says it's not liable because it subcontracted with another agency that directly cared for him. It contends that the state Department of Children and Families is ultimately responsible for overseeing its providers, according to court documents.
The lawsuit filed on behalf of the boy has dragged on for three years and is the crux of an ongoing argument between the DCF and the contractors it hires to place and monitor foster children: Who should be financially responsible when one of the children is harmed?
That question has major repercussions for both taxpayers and the children. If it's the state, the contractors would be off the hook, and a victimized foster child would be limited by law to receiving $200,000 in damages from the state unless the Legislature approves a higher amount. If it's the contractors, an injured child could receive whatever damages a court awards up to $3 million per incident, and the money would be paid by the contractor and its insurance company.
Child advocates say the DCF and its contractors are trying to dodge responsibility and are wasting tax money as discussions drag on. The state spent more than $740 million this year on foster care, employing 21 contractors to oversee between 9,000 and 10,000 foster children.
"It's sad and a complete waste of resources when we see each blame the other or duck behind technical defenses while the innocent foster child is suffering and waiting to get help," said Howard Talenfeld, a child advocate and Broward County lawyer.
The DCF says it has spent millions in legal fees on cases it wasn't responsible for, according to a letter obtained by the Associated Press. Meanwhile, private contractors say they should have immunity from large judgments just as the state does, despite a statute and contracts that say otherwise. Also, providers say they couldn't afford rising insurance premiums and legal fees brought by an increase in lawsuits
Florida became the first state to fully privatize its child welfare programs in 2005. The Legislature privatized the system after some high-profile cases in which government workers lied about visiting foster homes, resulting in the deaths or disappearances of some children. Backers said privatization would keep children safer, and the Legislature removed a cap on how much money abused children could receive by pushing the responsibility onto private insurers.
DCF Secretary George Sheldon told the AP he supports giving contractors sovereign immunity, which could limit judgments, fearing a multimillion-dollar verdict could break them. He suggested increasing the cap on the insurance that contractors are required to carry and barring judgments over that amount. Any change to the statute would require legislative action. Providers have shopped an amendment to various legislators in the past few years, but little has come of it.
The providers "want to be able to take all this money from taxpayers, and they don't want to be accountable. It's absurd," said attorney Karen Gievers, who is representing the 10-year-old boy who was raped.
She is also suing the organization for negligence in the case of a foster child, saying its workers ignored signs that the boy was sexually abused while bouncing among more than 43 foster care placements in roughly 14 years.
Providers should have immunity against large judgments in cases where they subcontract with other providers because they are acting on behalf of the state, just as the DCF does when it contracts with them, said Ed Savitz, general counsel for Hillsborough Kids. The state is paying Hillsborough Kids nearly $200 million for a three-year contract to oversee about 2,500 kids.
Attorney Richard Filson says he has encountered the same argument in nearly every case he has filed against DCF providers, including a lawsuit alleging that a foster parent burned a child's chest with an iron.
The DCF says it's still named in lawsuits even though local providers were caring for the child.
"We don't micromanage how they behave, but we get sued nevertheless," said DCF general counsel Jerry Curington.