Volusia County jury: DCF liable for $15M for negligence in child abuse case

A Volusia County jury issued a $15 million verdict against the Florida Department of Children and Families for negligence in its investigation of reports that a mother was using drugs and endangering her daughter, who was tortured and suffered a permanent brain injury from repeated abuse, according to a press release from the girl's attorneys.

State law however, limits DCF’s liability to a fraction of the $15 million, a total of $200,000 per person, unless a claims bill is approved by the Florida Legislature.

DCF stated this week that it was exploring all options to appeal.

Stacie Schmerling and Lisa Elliott, attorneys with the Justice for Kids Division of the Kelley Kronenberg law firm, represented the 8-year-old girl who was identified by her initials, H.H., in the complaint.

The girl was tortured and suffered a permanent traumatic brain injury from repeated head trauma as part of the abuse and is now completely dependent on others, the release stated. She requires a care plan including numerous medical specialists and multiple therapies such as speech/feeding, occupational and physical therapy. She will also require constant care for the rest of her life, the release stated.

Two abuse reports filed

DCF received a report through the abuse hotline In May 2017 about concern for the girl, who at the time was 18-months-old, according to the release. Those concerns included poor living conditions and drug activity at the child’s home. The stepfather, who lived in the home and was a caregiver to the girl, also had a criminal history indicating a “pattern of impulsivity and violence,” the release stated.

Another abuse report was made to the hotline in June 2017 regarding drug activity in the home and lack of supervision for the girl and another child.

“However, investigators failed to take any action to ensure the health, welfare, and safety of H.H., who was being physically abused, neglected, and tortured by her drug-addicted mother and stepfather,” her attorneys stated in the release.

In September 2017, the girl was brought to an emergency room by her mother who claimed that she had difficulty waking the child in the morning, the release stated.

“H.H. suffered horrific injuries including traumatic brain injury with multiple areas of bleeding in and around her brain and retinal hemorrhages due to repeated episodes of abusive head trauma. She has been left with severe cerebral palsy, spastic quadriplegia, severe post-traumatic epilepsy with ongoing epileptic spasms and epileptic encephalopathy, ineffective airway clearance/restrictive lung disease, obstructive sleep apnea, and thick sputum/excessive oral secretions/ineffective airway clearance. She requires a feeding tube and is unable to walk or talk,” the release stated.

The girl's maternal grandmother currently has custody of her.

Attorneys: One of largest verdicts in Florida

Attorneys for the girl said it was one of the largest verdicts in Florida history.

"Today's record jury verdict speaks to the sheer magnitude and severity of the 8-year-old's injuries that she sustained more than six years ago," Schmerling stated in the release. "Our fight is to ensure that she will be able to live at home with her family and have the care, dignity and resources that she deserves for the rest of her life. Now that the jury has spoken, we are hopeful that DCF and Florida's leaders will respect the jury's decision and now fight with us to help (her)."

The Florida Department of Children and Families stated in an email that it was looking to appeal.

“The Department disputes the plaintiff and is exploring all legal options to appeal,” according to the email from Miguel Nevarez, DCF press secretary.

Circuit Judge Dennis Craig presided over the case.

Mother, stepfather convicted

During the investigation, law enforcement found various drugs, firearms, ammunition, burglary tools and a pillowcase stained with blood in the motel room where H.H. was living with her mother and stepfather, the lawsuit stated. The motel was in New Smyrna Beach.

The complaint also states that prior to investigating the allegations, DCF knew that the stepfather was a caregiver, who had a “significant and dangerous criminal history” including drug charges and battery on a law enforcement officer.

The girl's biological mother, now 31, pleaded no contest to charges of being a principal to aggravated child abuse, child neglect and two counts of aggravated child abuse. Judge Craig, who at the time was overseeing a criminal docket, adjudicated her guilty and sentenced her to 40 years. Her current release date is March 7, 2055, according to the Department of Corrections website.

The girl's stepfather, now 41, pleaded no contest and was adjudicated guilty of attempted principal to aggravated child abuse, child neglect causing great bodily harm and possession of a firearm by a convicted felon, according to court records. He was sentenced to 15 years in prison to run concurrent on each count, the lawsuit stated.

Verdict breakdown

The jury returned a verdict on Dec. 8 finding that there was negligence on the part of DCF. The jury broke down the award as follows:

• $500,000 for the girl's loss of earning capacity in the future

• $250,000 for past medical, hospitalization, nursing care and treatment

• $10 million for future medical, hospitalization, nursing care and treatment

• $250,000 for pain and suffering, disability, mental anguish, loss of capacity to enjoy life in the past

• $4 million for pain and suffering, disability, mental anguish, loss of capacity to enjoy life in the future

'Sovereign immunity' limits liability

But collecting the $15 million could be a challenge.

Sovereign immunity limits the state’s liability at $200,000 per person and $300,000 per incident, said Kelly Chanfrau of the law firm Chanfrau and Chanfrau in Daytona Beach. Chanfrau is not involved in the case.

The lawyers for the child will have to seek a claims bill in the state legislature, according to Chanfrau.

“They are difficult,” Chanfrau said about claim bills. “They are going to have to get a sponsor in the legislator and then help push it through the legislators.”

“They can be successful but it’s a tough road for sure. But not impossible,” Chanfrau said.

Chanfrau said the state’s limits on compensation were unfair and she added that it sounded like $15 million judgement was warranted.

“For a child to have life altering injuries for the rest of his or her life, the child is going to need medical care, future care and substantive help and a $15 million award sounds as if was justified for these facts,” Chanfrau said.

This article originally appeared on The Daytona Beach News-Journal: Volusia jury: DCF liable for $15M for negligence in child abuse case