State puts on hold settlement payment to Nubia Barahona’s brother

By Mary Ellen Klas -

TALLAHASSEE —

When the state of Florida quietly agreed to pay $5 million to settle a lawsuit over the gruesome death of 10-year-old Nubia Barahona and the torture of her twin brother, Victor, it all but admitted it was at fault.

Now, the Florida Department of Children and Families and lawyers for the state Legislature want to put the deal on hold and indefinitely delay final payments.

DCF agreed to settle the lawsuit in March 2013, two years after Victor was found near death and covered with pesticides alongside his sister’s decomposing body on I-95 in Palm Beach County. A 2011 DCF report concluded that, from the time Victor and Nubia Barahona entered the child welfare system as infants through Nubia’s death, their safety net was a “systemic failure.”

They were sexually abused, starved and forced to sleep in a bath tub for years by their adoptive parents, Jorge and Carmen Barahona. They were ordered to eat cockroaches and consume food that contained feces and, despite numerous complaints to the child abuse hotline, the state stood silent as their adopted parents routinely beat and bound them inside their West Miami-Dade home.

The report said DCF’s “failure in common sense, critical thinking, ownership, follow-through, and timely and accurate information-sharing” defined the care of Nubia and Victor. It was signed by then-Secretary David Wilkins a month after Nubia’s body was found, and Victor, barely alive, was rescued from the back of his father’s pickup truck. Both of Nubia’s adoptive parents are awaiting trial on murder charges; they face the death penalty.

The state cut a check for $1.25 million — from a risk-management fund used to cover liability — and sent it to to help Victor and his new adoptive parents deal with the years of psychological trauma.

DCF did not admit liability under the settlement, but it did agree not to oppose having the remaining $3.75 million in settlement funds come from the Legislature, in the form of a claim bill.

Now, DCF has changed its story, and the family’s attempt to claim the rest of the money has run into quiet but powerful opposition.

Under state sovereign immunity laws, the state is shielded from having to pay more than $200,000 when it injures someone, unless the Legislature agrees to lift the cap.

A bill was filed last year, but Senate President Don Gaetz, R-Niceville, refused to give it a hearing. Another bill was filed again for the 2015 legislative session, and Gaetz’s general counsel, George Levesque, was named as the “special master” to conduct a mini-trial on the state’s liability.

A hearing was scheduled to go forward on the bill in October until Levesque canceled it. Even though legislators decide what bills to pass and which to reject, it was Levesque, a staff attorney, who made the decision that legislators will not vote on the claim bill this year.

His reason: The claim bill could hurt the state’s case as it attempts to defend itself against two abuse lawsuits filed by two other children adopted by the Barahonas. Levesque announced in November that the bill will “be held in abeyance” until the other lawsuits are concluded.

“The adverse finding of fact or conclusion contained in a claim bill could be used against [DCF] in the pending litigation,” Levesque said in an email to the lawyers for the family. No legislators were copied on the ruling.

After agreeing to the settlement, DCF now also wants to put the claim bill on hold.

It is typical to have “whereas clauses” laying out the facts of the case and the reason for damages, but Rhonda Morris, DCF assistant general counsel, now argues that the whereas clauses in the bill “contain statements of disputed facts and conclusions of law.”

If adopted and declared to be true by the Legislature, it “may imply liability,” she wrote in a letter to the parties.

Lawyers for Victor see it differently.

There is nothing in the Legislature’s rules that requires that all claims from an incident be resolved before the Legislature acts, said Neal Roth, the Coral Gables lawyers who negotiated the settlement. “And if it doesn’t like the ‘whereas clauses’ because of fear of liability, it can rewrite them.”

He sees the Legislature’s argument — that pending lawsuits should halt a claim bill — as an underhanded way to breach the agreement because if the Barahonas get the death penalty, there will be pending legal challenges over that for years.

“Why doesn’t DCF just get its head out of the sand and just resolve these cases?” he asked. “Given the problems that are ongoing with DCF, you would think they would stand behind their word as a gesture of concern and understanding, instead of going around it.”

Levesque also argues that Jorge and Carmen Barahona were Nubia’s legal parents at the time of her death and, while Carmen’s rights have been severed, Jorge could inherit any money in the child’s estate.

“At this point in time, as a matter of law, the father’s rights have not been terminated,” said Katie Betta, Senate spokeswoman. “That is a valid concern the Senate has to consider.”

“Utter nonsense,” said Roth. “The claim bill will be referred to by at least one committee, and that can easily be addressed by amending the bill to specifically exclude Mr. Barahona from ever receiving any money from the settlement of this case.”

In addition, if the Barahonas are convicted of first-degree murder charges, both would be barred from collecting the cash because of the state’s “Slayer Statute” — the state law that bars anyone who has killed someone else from benefiting economically, he said.

Both Roth and the attorney representing the other surviving Barahona sibling have told Levesque and Morris “we are not interested in putting the claim bill into evidence,” Roth said. “I don’t need ‘whereas clauses’ to prove a case.”

Roth is not a favorite of the GOP-led Legislature. Roth and his partners were heavy contributors to Charlie Crist’s campaign and the Florida Democratic Party and, under law, attorneys for the victims are entitled to 25 percent of the proceeds from a claim bill against the state, including lobbying fees and costs.

Meanwhile, the settlement has spared the state a trial that could have exposed the grisly details about the children’s abuse under DCF in court.

Testimony from educators would show that the twins showed up at school bruised or famished, but DCF ignored or downplayed the complaints from school officials.

Interviews with the surviving children by child abuse experts and psychologists described the physical and sexual abuse in the home as “chronic and unremitting.”

Victor has now been adopted by a couple that tried unsuccessfully to adopt him and Nubia prior to them being placed in the Barahona home. He has received weekly psychotherapy. The Miami Herald has agreed not to name the family to protect their identity.

“They are all keenly aware that had both twins been adopted by the [couple] prior to their having been adopted by the Barahonas, that Nubia would be alive today,” wrote child abuse expert Eli Newberger after interviewing Victor and the family. “All, without question, will carry this burden through their lives.”

In the months after the incident, Victor was placed with Katia Garcia, a Miami-Dade caregiver. She told detectives that the boy had been so starved that he wolfed down food quickly and wouldn’t eat with silverware. He wouldn’t wash his hands and had to be taught how to bathe.

Mundane events triggered painful memories of abuse. Victor and Nubia would be hogtied or bound by the wrists and ankles, and he would be forced to put his hands underneath his legs with his body contorted into a twisted ball that left him barely able to walk when freed. Once, Jorge Barahona whipped him with a mop handle so wickedly that it left a large scar on his head. A large scar on Victor’s lip came from a punch, and his back bears scars from whippings.

During an interview with Newberger, Victor described being made to “sleep in the bath tub with ice almost every day” and said that Nubia “slept in the bath tub almost three years” with “10 locks on the door” because the parents considered the children so dangerous.

Victor recalled how his father “got dog poop, put it on a napkin and forcibly put it in my mouth.” How he would “randomly” put a plastic bag on his head until Victor nearly suffocated and how Nubia wanted to kill herself to end the torture.

Newberger, a pediatrician and adjunct professor at Harvard University, concluded that Victor “has been profoundly affected by his experience” and “appears to suffer continual anxiety and flashbacks.”

He diagnosed Victor with post-traumatic syndrome and recommended intensive psychotherapy, educational and occupational training and “urgent and appropriately skilled psychiatric care” that could last a lifetime.

Newberger also examined the older adopted son who was placed in the Barahona home at three weeks of age. Roth is representing him in the lawsuit that the state has not agreed to settle. The boy, who has been diagnosed with autism, is now suffering post-traumatic stress after years of alleged abuse by the Barahonas, Newberger said.

DCF spokeswoman Alexis Lambert said the agency has already made good on a piece of its promise — $1.25 million — and is ready to work things out when a future Legislature decides to move forward with the bill.

“DCF has sympathy for everyone affected by this terrible tragedy as we continue to work to ensure that the victims’ needs are met,” she said in a statement.