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Two sisters who won a $4.4 million negligence verdict against the state of Florida for their treatment in foster care as young children must retry their case. A state appellate court said jurors should not have been allowed to hear evidence about staffing and budget problems of the Department of Children and Families (DCF). “For example,” wrote Senior Judge Joseph Nesbitt of the state Court of Appeal, 3rd District, “the court permitted evidence of DCF’s alleged negligence in spending $317,000,000 in Dade County and not having sufficient case workers but having too many administrators.” Because the state retains sovereign immunity for planning activities, the trial judge should have admitted only evidence concerning the department’s operational actions, the court ruled. State of Florida Dep’t. of Health and Rehabilitative Svcs. v. T.R., No. 3D99-3133. After they were found wandering in a park without adult supervision in 1986, the sisters were placed in temporary foster placements until 1999. They sued the Department of Health and Rehabilitative Services, now known as the Department of Children and Families, for failing to protect them from abusive doctors and foster parents and failing to find a permanent home for them. The sisters, aged 16 and 18 at the time of trial, alleged that they were sexually and physically abused, then placed in psychiatric wards where they were given inappropriate medication that caused brain damage. But Tallahassee, Fla., solo practitioner Karen A. Gievers, co-counsel for the sisters, countered, “The court suggested that the plaintiffs put [planning activities] into evidence, but it was really the defense that did that. They used underfunding and overloads as an excuse. We focused on witnesses who were directly involved in the sisters’ cases, but on cross-examination, the defense would ask about how many cases the social workers had to work on. Why should the defendant’s invited error delay justice for the girls?” Gievers said she is moving for a rehearing and clarification of the opinion. Miami’s Roy Wasson, a solo practitioner, also represented the sisters on appeal. Appellate counsel for the department, solo practitioner John G. Crabtree of Key Biscayne, Fla., deferred to the department’s district administrator in Miami, Charles M. Auslander, who did not return phone calls. The department’s trial lawyer, Sheridan K. Weissenborn of Papy, Weissenborn, Poole & Vraspir in Coral Gables, Fla., said she did not want to comment because the case may go back to trial. Gievers is also fighting the Florida foster care system in a federal class action, Bonnie L. v. Bush, No. 00-2116-CIV. The suit alleges that the due process rights of foster children are being violated. Ira P. Lustbader of New York’s Children’s Rights Inc., a national advocacy group, is also working on the Bonnie L. case. Lustbader claims that the number of Florida children who are abused while in government custody is twice the national median. “Advocacy for individual children is critical, but too often, individual harms indicate broad systemic failures,” he said. “Federal civil rights litigation [in the form of class actions] can get at problems across the board,” including planning problems such as resource management. Florida’s problems will worsen if the state continues its recent privatization efforts, Gievers asserted, because it will be difficult to oversee all the contract providers. “The system continues to be more hurtful than helpful,” she charged.

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