Dcf v. Amora

• Decision Date: 15 November 2006
• Docket Number: No. 4D05-3346.,4D05-3346.
• Citation: 944 So.2d 431
• Parties: STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. Dawn AMORA and Rick Amora, as parents and guardians of Marissa Amora, a minor child, Appellees.
• Court: Florida District Court of Appeals

944 So.2d 431

STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. Dawn AMORA and Rick Amora, as parents and guardians of Marissa Amora, a minor child, Appellees.

No. 4D05-3346.

District Court of Appeal of Florida, Fourth District.

November 15, 2006.

Kara Berard Rockenbach and Stephen F. Radford of Gaunt, Pratt, Radford, Methe & Rockenbach, P.A., West Palm Beach, for appellant.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and Marc C. Brotman and Joseph N. Nusbaum of Brotman Nusbaum Fox, Boca Raton, for appellees.

PER CURIAM.

The Department of Children and Family Services (DCF) appeals the trial court's final judgment against DCF finding DCF negligent and awarding the plaintiffs, Dawn and Rick Amora, as guardians and adoptive parents of Marissa Amora, the sum of $26,849,849.06. DCF raises several issues on appeal that we affirm without comment. We address only DCF's argument that the plaintiffs failed to prove a prima facie case of negligence. We affirm the final judgment because the plaintiffs presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the injuries sustained by two-year-old Marissa Amora.

The vast majority of the material facts in this case are undisputed. DCF first became involved in this case on December 9, 2000 when representatives at the Miami Children's Hospital (MCH) called the DCF hotline because Marissa's biological mother failed to come to the hospital on December 8, 2000, the date of the child's discharge. Shirley Arias, the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. Arias testified that she was concerned that the mother did not show up to the hospital on the date of Marissa's discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while Marissa was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed Arias that the child did not appear very bonded to the mother. In her testimony, Arias expressed concern because Marissa's x-ray results showed a fractured clavicle, for which the mother had no explanation. Arias also testified that the mother's boyfriend was living with the mother and Marissa, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child's natural father and have been responsible for abuse situations.

Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, Arias, the mother, and Dr. Biehler, the head of the child advocacy team (CAT) at MCH, met at the hospital on December 11, 2000. Dr. Biehler testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although Dr. Biehler testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that "this is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing." Arias admitted in her testimony that Dr. Biehler advised her that a home study should be completed first before the child was returned to her home. Arias also testified that after meeting with Dr. Biehler, she suspected physical abuse.

Arias then met with her DCF supervisor in Miami, Robert Boyack, because she wanted to share with him her concerns about Marissa. They agreed that the Miami DCF office could not place a hold on Marissa because the Miami office lacked jurisdiction as Marissa was a resident of Lake Worth. They agreed that an out of town inquiry (OTI) was necessary and that the case should be transferred to the Lake Worth DCF office. The following day, on December 12, 2000, Arias received a phone call from Arlene Padilla, a social worker at MCH. Arias informed Padilla that the Miami DCF office would not place a hold on the child, that the child could be released to the mother, and that the Lake Worth DCF office would follow up. However, according to Arias's testimony, Padilla informed her that a hold was appropriate at that time because of all of the concerns regarding the child's safety. Arias testified that she shared these concerns with Padilla.

Arias testified that Padilla then consulted with her supervisor at MCH, and both Padilla and her supervisor called Arias again on December 12, 2000, which was the second phone call that day from Padilla to Arias. Arias testified that Padilla and her supervisor were very concerned with the child being released and that they would feel much more comfortable if they had the name and number of the protective investigator in Lake Worth who would be following up on the case so that they could speak with that person. Ten minutes later, Arias called the DCF office in Lake Worth and was informed that before the case could be reassigned to an investigator in the Lake Worth office, Arias would have to update the computer with all of the information concerning the case. While updating the computer, Arias received a third phone call from Padilla, who again sounded concerned. Arias testified that she had nothing new to tell Padilla because she was still in the process of updating the computer and that no investigator in Lake Worth had been assigned to the case at that point. After completing the update, Arias called DCF in Lake Worth, informing them that the update had been completed, and Arias was given the name of the protective investigator in Lake Worth assigned to do the OTI. Arias testified that she told the Lake Worth office that the case was "urgent" because there were many concerns about the mother's ability to care for the child. Arias also testified that she then called Padilla and informed her that the case had been reassigned and gave her the name of the DCF protective investigator in Lake Worth, Evelyn Diez.

Arias testified that that same day, December 12, 2000, she met with Steve Estes, Boyack's supervisor, and Estes informed Arias that his supervisor received a phone call from the hospital expressing concerns about the child's release. Furthermore, on December 13, 2000, Estes called Arias and informed her that they had two options at that point. First, if the hospital was comfortable, the child could be released to the mother and the case would be followed up in Lake Worth. Second, if the hospital was not comfortable with allowing the child's release, DCF would staff the case with the legal department for the possibility of filing a petition for detention. Because Arias knew that the hospital was not comfortable with allowing Marissa to return home, the case was staffed with legal.

Thereafter, a DCF attorney advised Arias that DCF must complete the following four tasks before the child could be sent home: (1) contact the father of Marissa's half-sister in New Jersey, (2) run criminal checks on the mother and boyfriend, (3) staff the case with the Child Protection Team (CPT), and (4) complete a home study. Arias testified that as of December 20, 2000, she did not contact the father in New Jersey nor did any other witness testify that this task was completed. Evelyn Diez, the DCF investigator in the Lake Worth office, testified that she conducted criminal background checks on the mother and boyfriend, which revealed no criminal records for either the mother or her boyfriend.

As for the CPT review, which is the process of reviewing records and assessing the child by medical professionals to determine abuse, the testimony at trial was that none was completed. Boyack testified that CPT did not do a complete investigation and that the child should not have gone home until CPT did their work. Dr. Biehler also testified that he was not serving in any official capacity as part of a CPT. Dr. Miller, DCF's own retained expert, testified that there was no CPT or equivalent review of this child's medical records to look into the issue of abuse either before she left the hospital on December 15, 2000 or before the child sustained massive brain injuries on January 11, 2001. Dr. Miller agreed that a CPT review of Marissa's available charts and medical history would have shown that Marissa more likely than not was the victim of abusively-inflicted injuries. Furthermore, Dr. Miller agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that this child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse.

As for the home study, which is the review of the child's living situation, Diez testified that she was never requested to do a home study nor was she told by DCF in Miami that a home study or CPT was required before the child could be sent home. Diez did go to the mother's apartment on December 13, 2000 and noticed that there was no crib, toys, baby clothes, or any evidence of a child living there. However, she admitted that had she completed a home...