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Lawyers for six brothers and sisters allegedly abused over a period of years while in foster care, using the Civil Rights Act of 1964 to overcome a damage cap, have reached a $5 million settlement with the Florida Department of Children and Families. Florida’s sovereign immunity law limits state liability to a maximum of $100,000 in damages per person or $200,000 per incident, an amount insufficient to pay the cost of therapy for the six allegedly abused children, asserted plaintiffs’ attorney Howard Talenfeld of Colodny, Fass, Talenfeld, Karlinsky & Abate of Ft. Lauderdale, Fla. “The big lesson here is that state caps do not preclude federal claims under � 1983,” Talenfeld said, referring to 42 U.S.C.A. � 1983, the section of the Civil Rights Act under which he brought suit. “We hope this judgment will be a wake-up call that a state is responsible for the actions of its employees and cannot hide behind sovereign immunity.” In December 1990 four siblings, identified in court papers as “John Roes 1 through 4,” were placed in the custody of the Department of Children and Family Services. After a year of separation and movement between foster homes, they were placed with Frank and Jacqui Lynch. Eventually the children’s mother had twins, who joined them in foster care. During a summary judgment hearing, evidence was presented showing that no case worker visited the Lynch home for 20 months after the children were placed there. The children were kept in the home even after staff learned in November 1993 that years earlier Jacqui Lynch’s biological daughter was taken from her because of abuse and that her teen-age son was living in the home despite a conviction for sexually abusing a minor. Talenfeld, who was appointed by the court to represent the children, sued the agency and individual employees with direct responsibility for the Roe children. The employees filed for summary judgment on the grounds of qualified immunity, which is the application of sovereign immunity to state employees. U.S. District Judge Federico Moreno of the Southern District of Florida denied the request for four of the employees — Cynthia McCarthy, Karen Reale, Margaret Andrews and A. Kay Williams — after finding that they “displayed deliberate indifference to situation of children in foster care.” Moreno, in his decision, determined that the employees had an explicit duty by law to protect children. The employees who participated directly in the decisions that placed and kept the children in an abusive home violated the children’s constitutional right under the 14th Amendment to physical safety “free of unnecessary pain.” Defense attorney Elizabeth M. Rodriguez, a partner at Kubicki Draper in Miami who represented McCarthy, said her client visited the Lynch home but did not document the visits and was not reprimanded by supervisors. All of the employees, she said, argued that their conduct was at worst negligence, which would have given them qualified immunity. The suits against individual employees were dropped under the $5 million settlement, leaving undecided the issue of qualified immunity and the standard for deliberate indifference, Rodriguez said. LOW-PAYING JOBS “The public policy concern is that these are low-paying jobs in a badly strapped system,” she said. “If employees face individual liability, that is going to undermine the system further.” Talenfeld was sympathetic to the pressure facing child-protection workers. “What happens is an increased number of kids come into the system, there are management deficiencies, and these systems can swing out of constitutional conformance very quickly,” he said. “But there is a certain institutional insensitivity that can occur among management,” he added. “The reality is if they couldn’t visit monthly because they had twice the caseload they expected, they should have visited every other month.” Roe v. Florida Department of Children and Family Services, No. 00CV6433 (S.D. Fla).

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