Couple's lawsuit vs. DCF postponed

As both sides await information the defense argues may win the case, the trial scheduled Tuesday was continued for a former North Naples couple suing the Florida Department of Children and Families for failing to inform them of their adopted son’s history of mental problems.

Set for Tuesday before Collier County Circuit Judge Daniel R. Monaco, the trial of Christopher and Laverne Westphal versus the DCF was postponed without a new date set.

The case centers on whether DCF informed the Westphals their 10-year-old foster son, who was adopted in 1998, had been the victim of sexual and mental abuse and had developed severe mental disorders. The couple, now separated or divorced and living in different states, filed their lawsuit in August 2003, seeking at least $200,000 in damages.

The lawsuit has already survived two attempts by Melville G. Brinson, an attorney representing the state, to have the case thrown out by Monaco. But Brinson persuaded the judge to grant a delay.

Brinson was unavailable for comment Monday. According to his motion before the court, the issue in the case is whether the state failed to provide the Westphals with written psychological profiles of the child, identified only as C.P. in court records, before the adoption was final.

The state believes the psychological profiles were given to the couple, or the profiles’ contents were discussed with them, by the David Lawrence Center, a Golden Gate mental health counseling provider that evaluated the boy.

If that’s so, the defense would win the case, according to the motion.

In pre-trial interviews, David Lawrence Center officials have refused to answer questions about the reports, citing the child’s confidentiality rights. Special Magistrate Lawrence Pivacek ruled in March that the boy, now 19, would have to sign a written authorization for the records to be released.

So Brinson persuaded the child’s court-appointed guardian ad litem to approach the boy and ask him to sign the waiver. The boy is incarcerated at the Lee County Stockade, charged with burglary, larceny, forgery and fraudulent use of a credit card, according to the court records.

The boy signed the authorization as well as a second one after lawyers for David Lawrence Center objected to the legal language in the first one.

Now lawyers for David Lawrence Center have informed the guardian ad litem “that these records would not be released until such time as each and every record had been reviewed and a meeting had been performed with the case manager,” according to the defense motion. And some of the information in the reports may be redacted.

The defense wants more time to obtain and review the documents before trial, Brinson argued.

Mike McDonnell, the Westphals’ attorney, objected to the continuance. He said Monday there’s no indication yet what impact the records could have on the case.

“We have not seen them. We have no idea what’s in them,” McDonnell said.

In September 2005, the Westphals rejected the arbitrator’s award, sending the case to trial. The terms of the award are confidential and under seal.

The child was 10 when he moved into the couple’s North Naples home. In pre-trial depositions, the Westphals said he was on good behavior while he was just a foster child because he knew the adoption was pending.

It was after that happened that his behavioral problems started. He stole from neighbors and the couple. He got into fights at school. He was accused of sexually assaulting a young relative of the Westphals. He was peeping on Laverne Westphal and inside several neighbors’ homes. He was later arrested on a grand theft auto charge.

The couple was in fear for their own safety because “we found knives underneath his pillow,” according to Laverne Westphal’s deposition.

The couple learned later his mental conditions were severe and required “long-term therapeutic intervention.” According to the lawsuit, the child had endured “a multi-generational history of incest, neglect and abuse.”

Two psychiatric reports detail aberrant sexual behavior, fire-setting, physical aggression toward others and urination on the personal property of others, all of which DCF was aware of before the adoption, according to the suit.

“One of the reports was so bad that if I had seen that report ahead of time, I more than likely would not have adopted (the boy),” Laverne Westphal said.

The child was removed from the couple’s custody after he was placed in juvenile detention for a strong-armed robbery felony arrest.