DCF Lawsuit
State Settles DCF Case for $14 Million

By Jordana Mishory
Daily Business Review
September 28, 2007

For 10 years, agents with Florida’s Department of Children and Families placed children with foster mother Nellie Johnson, despite multiple reports that she abused kids in her care.

Now, the agency has agreed to pay more than $14 million to the 20 children placed in Johnson’s home. She was convicted of child abuse and neglect in 2003 and sentenced to 60 years in prison.

The payouts will resolve a federal lawsuit filed against nine DCF case workers and investigators. It also disposes of a state case filed against DCF in Alachua Circuit Court.

The federal suit brought on behalf of 20 children alleged the DCF workers violated the children’s civil rights by depriving them of their rights to life, liberty or property provided in the 14th Amendment’s due process clause of the U.S. Constitution.

By suing the DCF agents under a federal civil rights act, the plaintiffs did not have to endure a protracted claims bill procedure in the Legislature to collect damages above the Florida’s sovereign immunity caps of $100,000 per person and $200,000 per incident. State law protects governmental entities such as the DCF from paying the full amount of claims unless lawmakers approve an exemption.

Filing a federal civil rights claim sidesteps the sovereign immunity limits, but it requires a higher burden of proof. The lawsuit, filed by child advocate and Fort Lauderdale attorney Howard Talenfeld, outlines each instance that a case worker failed to act upon a tip or a report of abuse.

"This is one of the most egregious set of facts you’ve seen anywhere and obviously the state agreed," Talenfeld said. He applauded DCF and its secretary, Bob Butterworth, for not forcing the plaintiffs to go to trial to seek the money they needed for treatment.

Butterworth, a former Florida attorney general, Broward judge and law school dean at St. Thomas University, said the outcome demonstrates the department’s commitment to settling cases involving clear wrongdoing on the part of DCF and its agents.

"The state can’t have it both ways," Butterworth said, adding that Florida cannot prosecute the foster mother for abuse and simultaneously take the position in civil court that the children must prove they were abused.

Coral Gables attorney Sheridan Weissenborn, a partner at Papy Weissenborn Vraspir Paterno & Puga, who represented the state agents named in the federal lawsuit, did not return call for comment by deadline Thursday.

From 1991 to 2001, Johnson, a single mother, took in more than two dozen children, according to the federal lawsuit filed by Talenfeld. During that time, 17 reports of physical and emotional abuse were filed with DCF and 30 calls were received by the department’s hotline indicating that Johnson was abusing children in her care, the lawsuit alleged.

Despite the complaints and the need for the removal of some abused children from Johnson’s homes in the Gainesville area, DCF continued to place children with her.

The children said that Johnson would beat them with pipes, belts, shoes, sticks and paddles. She would also force them to eat until they vomited.

In 2001, state officials terminated Johnson’s parental rights and removed the 17 children who were then in her care.

In 2003, Johnson and one of her adult adoptive daughters were convicted of child abuse and neglect.

In 2005, Talenfeld sued on the children’s behalf in Broward Circuit Court. The case was removed to U.S. District Court in Miami. Ten of the children in the suit were older than 18 at the time the lawsuit was filed.

The lawsuit alleged that DCF "utilized the Johnson home as an inexpensive means to warehouse special needs children in order to avoid providing necessary and appropriate foster care and adoption services to those children."

Talenfeld recounted one instance when a child risked bringing a paddle to school that Johnson used to beat her with so she could give it to a DCF agent. The agent returned the paddle to Johnson without acting on the child’s complaint.

"Obviously the whole system plain did not work," Butterworth said in an interview. He added the state should not have left the children in Johnson’s home.

"When Nellie Johnson receives 60 years in prison for abusing the children that she had placed with her, you know pretty well that you’re not going to win that case," Butterworth said.

He said DCF decided it was in the best interest of the state and the children to settle and not delay justice for the children who were guaranteed to win anyway.

"Butterworth’s position makes sense: Why should we waste state resources on defending indefensible claims when we could be getting treatment for these children?" Talenfeld said.

Howard Talenfeld

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