Some grand jurors critical of own report hailing DCF improvements

Three years ago, a Miami grand jury wrote a scathing report suggesting that “utter failure” on the part of Florida’s child welfare agency resulted in the gruesome death of a 10-year-old twin, who had been tortured, starved and locked in a bathtub on and off for months.

In the wake of another scandal, highlighted in a Miami Herald series titled Innocents Lost, a new grand jury revisited the Department of Children & Families’ performance: The result was a 30-page report DCF described in a news release as “highly complimentary” of the agency’s progress since 10-year-old Nubia Barahona’s battered body was found stuffed in a garbage bag.

What changed?

Here is one thing: Unlike the grand jury that met three years earlier, which heard from an array of witnesses, the 2014 panel heard from just two. Both of them had worked for the agency that got the upbeat review.

Miami Circuit Judge Cindy Lederman, who was invited to testify before the earlier grand jury but not this one, described the latest report as a “fraud” for its lack of outside witnesses.

Said retired Florida Supreme Court Justice Gerald Kogan: “I would want to listen to some of the witnesses who testified three years ago, and find out if they have seen any difference between now and then, and, if so, what are those differences? Have things gotten worse, or has there been any improvement? These are the people I would have brought in if I were running an investigation.”

Through a spokesman, Ed Griffith, Miami-Dade State Attorney Katherine Fernandez Rundle declined to discuss the report, saying it “must speak for itself.”

“The decisions, choices and motivations for the grand jury’s selection of a topic, the witness testimony and discussions held during their sessions are private matters covered by the grand jury secrecy rule,” Griffith wrote in an email to The Miami Herald. “It is the statement of the Grand Jury as a whole and not any individual officers or members. Prosecutors and witnesses are also bound by these rules.”

Although the report is the statement of the grand jury, the grand jury is instructed and overseen by a representative of the state attorney’s office.

Likewise, the decisions on who testifies before a grand jury are often made by the state attorney’s office.

That was apparently the case this time. The witnesses before the grand jury were Esther Jacobo, Fernandez Rundle’s chief of staff — and until recently the secretary of DCF — and Rosa Baez, a subordinate of Jacobo’s in the Miami office of the child welfare agency. Some grand jurors, speaking on condition of anonymity because of their secrecy oath, told the Herald they a hoped to hear from more witnesses.

Nubia and her twin brother, Victor, were initially foster children in the home of Jorge and Carmen Barahona. In 2009, they were allowed to adopt the twins, despite persistent concerns the youngsters were being mistreated. In February 2011, Nubia’s corpse was found awash in lethal chemicals in the flatbed of her father’s pest control truck.

The Miami grand jury handed up a 25-page report detailing the agency’s lapses that led to the tragedy, bemoaning, among other things, a “persistent, insidious bias of trust” that led investigators and caseworkers to accept the word of parents who had been repeatedly accused of abuse.

“Let Nubia not have died in vain,” the grand jury warned.

Since Nubia’s death, at least 180 Florida children have died from abuse or neglect following prior contact between DCF and the child’s family. The summer and fall of 2013 — which included part of the latest grand jury’s term — were particularly deadly, leading to the resignation of then-DCF Secretary David Wilkins. Those deaths were catalogued in the Herald’s Innocents Lost series, which prompted the Florida Legislature to add tens of millions of dollars to its child welfare budget this spring.

Nonetheless, the grand jury report dealing with DCF suggested that a redesign of the agency’s risk assessment tool, used to calculate the level of danger in a child’s current situation, was “well designed to address many of the problematic child protection practices identified in its review” — including so-called promissory-note safety plans in which parents accused of neglecting or abusing their children promised to do better in the future.

Miami-Dade Circuit Judge Rosa Figarola, who sits in child welfare court, said she continues to see such pledges regularly in her courtroom.

“I still see safety plans that are not well-thought out,” Figarola said. “I still have extreme concerns about them.” Figarola said she was not asked to testify before the latest grand jury.

Among the Herald’s findings: The number of deaths reported to the governor’s office and Legislature was significantly lower than the number the Herald tallied during an examination of DCF’s own records. Although there were multiple reasons for the disparity, the reduction coincided with DCF’s revision of its definition of neglect. The revision excluded some deaths resulting from drowning or in-bed suffocation, two of the leading causes of fatality among very small children.

After the series ran, three grand jurors told the newspaper, they asked the State Attorney’s Office to look into whether DCF was manipulating numbers to improve its image. “We saw it in the Herald,” one juror said. “We were the ones who initiated it.”

“We saw the numbers, and we were asking ourselves how many reports are there out there of child neglect that were not being seen.”

Said another juror, : “Kids died a wrongful death, but it doesn’t count. We found that to be very, very ridiculous.”

“We didn’t have much of a voice in that room,” the juror added. “We were mostly coaxed into saying ‘yes’.”

University of Florida law professor Shani King, who co-directs the school’s child welfare clinic, said:

“If you really want to get a sense of where we are, and the progress that the department has made over the past [few] years, you are going to call more than two witnesses and make sure that the jurors are aware of the potential conflicts of interest the witnesses have.”

Harry Lee Anstead, a member of the Florida Supreme Court until he retired in 2009, said it would be surprising to see a thorough investigation for “something as important as this” that included only two witnesses.

Records obtained by the newspaper show that Jacobo was first to testify, on May 14, and, two weeks later, on May 28. As the State Attorney’s Office’s chief of staff, Jacobo would be close colleagues with Chief Assistant State Attorney Don Horn, who presented the testimony to the grand jury, and one juror said, wrote the report.

The two worked together for about a decade at the prosecutors’ office before Jacobo joined DCF in 2008. Baez, a child protection program administrator based in Opa-locka, gave testimony on June 11. The report was released June 24.

The report praised the Legislature for setting aside money to hire new “quality assurance” specialists to review child deaths and oversee random child abuse investigations. “The Grand Jury believes that the Legislature’s decision to give DCF 26 new [full-time positions] for the enhancement of the Quality Assurance Unit was a good decision,” the report said.

What the grand jury was not told: Lawmakers, with DCF’s blessing, eliminated 60 such watchdogs, or 72 percent of all DCF regional quality assurance workers, from 2008 until the last legislative session, records show.

“We did not know that,” a juror said. “That never was said.”

DCF called the report “thoughtful” and “comprehensive.” In a letter to Horn, the agency’s current secretary, Mike Carroll wrote: “We truly appreciate the commitment of the Grand Jury and the Miami-Dade community to ensuring that DCF and our partners are held to a high standard and focused on continuous improvement.”

Lederman, the Miami-Dade judge who has served on the child welfare bench for 20 years — and has published 40 articles and a book on the subject — was not called to testify. She called the report “a glorified wish list with no proof of implementation.”

Lederman said she was dismayed to learn that only two witnesses testified, and that no judges, doctors, caseworkers or children’s advocates had been invited. For the first Nubia panel, Lederman had been asked to testify, but was forced to decline due to a scheduling conflict. “Any attempt to use this report to indicate DCF has made improvements, lasting institutional improvements, is premature and misplaced. A panel that listens to only one side of an issue is a fraud.”

King, the law school professor who co-directs UF’s Center on Children & Families, said the document might actually thwart progress, by making it appear DCF needs no additional reform.

“People will look at the report and assume that things are better than they are, and there won’t be pressure on lawmakers and the governor to make the changes that have to be made to keep kids safe,” King said.