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Care Providers Can Reduce Liability and Lawsuit Risk When Helping Florida Foster Children

September 4th, 2009   No Comments   Damage Claims

Child Advocate Lawyer to DCF Dependency Summit: Reduce Risks & Damage Awards in the Child Welfare System

Attorney Howard Talenfeld, who focuses his practice on protecting the rights of vulnerable individuals in civil rights cases, personal injury cases and systemic reform litigation, presented at the Florida Department of Children & Families Dependency Summit on August 27 to DCF employee’s, lead agencies and other providers on Preventative Law and Early Risk Assessment.

Presenting with Talenfeld were DCF’s John Copelan, Esq., Karen Nissen of Vernis & Bowling of Palm Beach, and Derrick Roberts of ChildNet.

As an attorney and child advocate, Talenfeld has been involved in many of the significant and innovative child advocacy claims handled throughout Florida and the country. Talenfeld is perhaps best known in the child advocacy legal arena for his work as one of first attorneys nationally to utilize a federal civil rights damage statute to recover damages for injured foster children. In its 2001 case Roe v. Florida Department of Children & Family Services, the firm recovered a $5 million damage award – an amount in excess of Florida’s sovereign immunity limit of $100,000 – on behalf of six foster children.

To protect the developmentally disabled and the mentally retarded, the firm in Baumstein v. Sunrise Communities successfully argued in the Third District Court of Appeal to establish a private cause of action for damages based upon the violation of Florida’s Bill of Rights for the developmentally disabled. This decision was the first to recognize this approach which led to a significant settlement of this wrongful death damages claim.

Talenfeld represents children injured while in state care because he knows that after children in DCF custody turn 19, no one to help them get the care, treatment and support they need to face the future.

His role on this panel, though, blended both his litigation successes as well as his specialized knowledge of how to protect the rights of foster care and other children in the state’s care.

Talenfeld has spent years helping Florida State of Florida Department of Health & Rehabilitative Services, DCF, lead agencies and providers improve their child welfare practice and reduce the risk of litigation.

During the panel discussion, Talenfeld emphasized that helping foster children in the custody of DCF and other children in care can be risky business. But putting the child’s interests first can virtually eliminate the risk. Training child welfare employees on specific DCF administrative rules and operating procedures where most mistakes are made is the best way to avoid caretaker abuse, child on child sexual abuse, physical abuse, and other risks of harm that are frequent in foster care – mistake-borne outcomes that can forever damage a child’s life.

Talenfeld urged that if mistakes do happen, putting the child first and getting them the help they need –assessment, quality counseling, and an appropriate placement most likely will reduce the harm. It also may keep the case from ever reaching the plaintiffs’ attorneys. A focus on getting kids the counseling they need early for physical and sexual abuse they’ve suffered – as well as for the trauma of being taken from their parents, can help address the permanent psychological disorders they often face. These include post-traumatic stress disorder, attachment disorders, conduct disorders and future acts of physical and sexual abuse by other vulnerable children in the providers’ custody.

If a child’s been harmed – even in a clear violation of the rules – some providers go on the defensive. They ignore records requests, opting instead to engage in costly legal battles that eat into insurance coverages – when there may be no reason to fight at all. By withholding records, suspicion is aroused. Attempting to cover up lapses in care that nonetheless are in the records will be discovered – and public records violations only further pique the interest of counsel and the authorities. Then precious money that should go toward care is spent on the legal defense. Insurance premiums rise. All the while, vital care isn’t being delivered as the provider is focused on self-serving protective measures.

Providers must understand that even though there have been record requests, most cases still do not end up in costly litigation.

And if the law suit is filed, providers and still can put the children first, and engage in early mediation – instead of spending $100,000 or more on attorneys, experts, depositions and court costs.

Talenfeld’s firm will not file a law suit unless the child’s records and other documents obtained demonstrate clear departures from the applicable rules, operating procedures and standards of care. Because they have carefully reviewed records first, it only makes sense for the defense counsel and their clients to carefully review the same records themselves to determine if they agree that liability is likely before mounting a costly defense. Early mediation is far less expensive than defending the case for many years – only later to realize that a damage judgment is inevitable. In Roe v. Florida Department of Children & Family Services, Florida officials spent more than $1.2 million to defend the federal law suit – and still settled the claims for $5 million.

Besides, lawyers like Talenfeld know that an early settlement for less than the full value of  the case will put the child first and let them get the help they need while minimizing litigation losses.

The smart reaction if or when a provider makes a mistake – even in instances of clear violations – is to do the right thing. First, ensure that the children’s needs and best interests are served and they get the help they need. Then, be honest and forthright about the situation, and address the lapse or failure. Take corrective action. And learn from the mistake.

Talenfeld has learned that responsible behavior comes from the top. By operating a quality child protection program, providers can control risks, mitigate damages – and stay focused and funded to help kids.

The result is the avoidance of millions of dollars paid in lawsuits, settlements, damage awards, and defense and plaintiff legal fees – and better outcomes for the children.

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