Florida Senate - 2011 SB 878
By Senator Garcia
40-01306-11 2011878__
1 A bill to be entitled
2 An act relating to child welfare; providing a short
3 title; creating s. 39.0142, F.S.; requiring
4 photographs and reports of child visitations, subject
5 to availability of equipment; providing for submission
6 and distribution of reports and photographs; amending
7 s. 39.5085, F.S.; providing that an unmarried
8 biological father is not considered a relative for
9 purposes of the Relative Caregiver Program; amending
10 s. 39.521, F.S.; authorizing a court to direct the
11 placement of a parent in a substance abuse facility in
12 which his or her child may also reside; revising
13 provisions concerning the effect of an unfavorable
14 home study on the placement of a child in a home under
15 shelter or postdisposition placement; amending s.
16 39.621, F.S.; requiring a permanency hearing to be
17 timed so that a child will achieve permanency within
18 12 months; revising the order of preference of
19 permanency goals; creating s. 39.6215, F.S.; requiring
20 certain reports by counties on the numbers of children
21 entering care and achieving permanency; providing
22 financial consequences for failure of children to
23 achieve permanency within a specified period; amending
24 s. 39.801, F.S.; limiting the period for diligent
25 search and inquiry to find a living relative of the
26 child in certain circumstances; amending s. 39.803,
27 F.S.; limiting the period required to conduct a
28 diligent search for an unmarried biological father in
29 certain circumstances; amending s. 39.0136, F.S.;
30 revising provisions relating to continuances; amending
31 s. 39.809, F.S.; requiring an adjudicatory hearing to
32 be scheduled consistent with a specified time period
33 for final orders; limiting continuances unless
34 required by specified provisions; requiring entry of a
35 final order within a specified period; creating s.
36 39.8056, F.S.; requiring that a child remain with
37 foster parents until disposition of a petition to
38 terminate parental rights in certain circumstances;
39 amending s. 39.812, F.S.; providing that a child
40 placed with a licensed foster parent or court-ordered
41 custodian who has applied to adopt the child may not
42 be removed from that home except in specified
43 circumstances; limiting visitation of such children;
44 amending s. 39.816, F.S.; revising provisions relating
45 to development of best practice guidelines; providing
46 for extensions before a petition for termination of
47 parental rights may be filed if a parent is
48 incarcerated but does not meet specified criteria or
49 is physically incapacitated; revising provisions
50 relating to demonstration projects; providing an
51 effective date.
52
53 WHEREAS, although the number of children in foster care has
54 been reduced in Florida, the length of time a child spends in
55 foster care has increased, and
56 WHEREAS, the focus of the Department of Children and Family
57 Services, the Statewide Guardian Ad Litem Office, and the state
58 court system should be the prevention of out-of-home placement
59 of a child, the reduction of the length of stay in foster care,
60 and the promotion of adoption as a viable alternative to out-of
61 home placement, NOW, THEREFORE,
62
63 Be It Enacted by the Legislature of the State of Florida:
64
65 Section 1. This act may be cited as the “Lambourg Keep
66 Families United Act.”
67 Section 2. Section 39.0142, Florida Statutes, is created to
68 read:
69 39.0142 Photographs and reports of child visits.—Subject to
70 the availability of department-issued equipment, all
71 caseworkers, guardian ad litem volunteers, and other department
72 authorized volunteers must, upon any visitation, photograph the
73 child and submit the photograph and report while at the site
74 where the child is located. The report and photograph shall be
75 transmitted immediately to all parties to the child’s case, the
76 court, and any foster parents.
77 Section 3. Paragraph (a) of subsection (2) of section
78 39.5085, Florida Statutes, is amended to read:
79 39.5085 Relative Caregiver Program.—
80 (2)(a) The Department of Children and Family Services shall
81 establish and operate the Relative Caregiver Program pursuant to
82 eligibility guidelines established in this section as further
83 implemented by rule of the department. The Relative Caregiver
84 Program shall, within the limits of available funding, provide
85 financial assistance to:
86 1. Relatives who are within the fifth degree by blood or
87 marriage to the parent or stepparent of a child and who are
88 caring full-time for that dependent child in the role of
89 substitute parent as a result of a court’s determination of
90 child abuse, neglect, or abandonment and subsequent placement
91 with the relative under this chapter.
92 2. Relatives who are within the fifth degree by blood or
93 marriage to the parent or stepparent of a child and who are
94 caring full-time for that dependent child, and a dependent half
95 brother or half-sister of that dependent child, in the role of
96 substitute parent as a result of a court’s determination of
97 child abuse, neglect, or abandonment and subsequent placement
98 with the relative under this chapter.
99
100 The placement may be court-ordered temporary legal custody to
101 the relative under protective supervision of the department
102 pursuant to s. 39.521(1)(b)3., or court-ordered placement in the
103 home of a relative as a permanency option under s. 39.6221 or s.
104 39.6231 or under former s. 39.622 if the placement was made
105 before July 1, 2006. The Relative Caregiver Program shall offer
106 financial assistance to caregivers who are relatives and who
107 would be unable to serve in that capacity without the relative
108 caregiver payment because of financial burden, thus exposing the
109 child to the trauma of placement in a shelter or in foster care.
110 An unmarried biological father, as defined in s. 63.032, is not
111 considered a relative for purposes of this paragraph.
112 Section 4. Paragraph (b) of subsection (1) and paragraph
113 (r) of subsection (2) of section 39.521, Florida Statutes, are
114 amended to read:
115 39.521 Disposition hearings; powers of disposition.—
116 (1) A disposition hearing shall be conducted by the court,
117 if the court finds that the facts alleged in the petition for
118 dependency were proven in the adjudicatory hearing, or if the
119 parents or legal custodians have consented to the finding of
120 dependency or admitted the allegations in the petition, have
121 failed to appear for the arraignment hearing after proper
122 notice, or have not been located despite a diligent search
123 having been conducted.
124 (b) When any child is adjudicated by a court to be
125 dependent, the court having jurisdiction of the child has the
126 power by order to:
127 1. Require the parent and, when appropriate, the legal
128 custodian and the child to participate in treatment and services
129 identified as necessary. The court may require the person who
130 has custody or who is requesting custody of the child to submit
131 to a substance abuse assessment or evaluation. The assessment or
132 evaluation must be administered by a qualified professional, as
133 defined in s. 397.311. The court may also require such person to
134 participate in and comply with treatment and services identified
135 as necessary, including, when appropriate and available,
136 participation in and compliance with a treatment-based drug
137 court program established under s. 397.334. In addition to
138 supervision by the department, the court, including the
139 treatment-based drug court program, may oversee the progress and
140 compliance with treatment by a person who has custody or is
141 requesting custody of the child. When available, the court may
142 direct the placement of the person who has custody or who is
143 requesting custody of the child in a substance abuse facility in
144 which the child may also reside as described in s. 39.816(2)(b).
145 The court may impose appropriate available sanctions for
146 noncompliance upon a person who has custody or is requesting
147 custody of the child or make a finding of noncompliance for
148 consideration in determining whether an alternative placement of
149 the child is in the child’s best interests. Any order entered
150 under this subparagraph may be made only upon good cause shown.
151 This subparagraph does not authorize placement of a child with a
152 person seeking custody of the child, other than the child’s
153 parent or legal custodian, who requires substance abuse
154 treatment.
155 2. Require, if the court deems necessary, the parties to
156 participate in dependency mediation.
157 3. Require placement of the child either under the
158 protective supervision of an authorized agent of the department
159 in the home of one or both of the child’s parents or in the home
160 of a relative of the child or another adult approved by the
161 court, or in the custody of the department. Protective
162 supervision continues until the court terminates it or until the
163 child reaches the age of 18, whichever date is first. Protective
164 supervision shall be terminated by the court whenever the court
165 determines that permanency has been achieved for the child,
166 whether with a parent, another relative, or a legal custodian,
167 and that protective supervision is no longer needed. The
168 termination of supervision may be with or without retaining
169 jurisdiction, at the court’s discretion, and shall in either
170 case be considered a permanency option for the child. The order
171 terminating supervision by the department shall set forth the
172 powers of the custodian of the child and shall include the
173 powers ordinarily granted to a guardian of the person of a minor
174 unless otherwise specified. Upon the court’s termination of
175 supervision by the department, no further judicial reviews are
176 required, so long as permanency has been established for the
177 child.
178 (2) The predisposition study must provide the court with
179 the following documented information:
180 (r) If the child has been removed from the home and will be
181 remaining with a relative or other adult approved by the court,
182 a home study report concerning the proposed placement shall be
183 included in the predisposition report. Prior to recommending to
184 the court any out-of-home placement for a child other than
185 placement in a licensed shelter or foster home, the department
186 shall conduct a study of the home of the proposed legal
187 custodians, which must include, at a minimum:
188 1. An interview with the proposed legal custodians to
189 assess their ongoing commitment and ability to care for the
190 child.
191 2. Records checks through the Florida Abuse Hotline
192 Information System (FAHIS), and local and statewide criminal and
193 juvenile records checks through the Department of Law
194 Enforcement, on all household members 12 years of age or older
195 and any other persons made known to the department who are
196 frequent visitors in the home. Out-of-state criminal records
197 checks must be initiated for any individual designated above who
198 has resided in a state other than Florida provided that state’s
199 laws allow the release of these records. The out-of-state
200 criminal records must be filed with the court within 5 days
201 after receipt by the department or its agent.
202 3. An assessment of the physical environment of the home.
203 4. A determination of the financial security of the
204 proposed legal custodians.
205 5. A determination of suitable child care arrangements if
206 the proposed legal custodians are employed outside of the home.
207 6. Documentation of counseling and information provided to
208 the proposed legal custodians regarding the dependency process
209 and possible outcomes.
210 7. Documentation that information regarding support
211 services available in the community has been provided to the
212 proposed legal custodians.
213
214 The department may shall not place the child or continue the
215 placement of the child in a home under shelter or
216 postdisposition placement if the results of the home study are
217 unfavorable, and the focus of the department’s efforts must
218 immediately shift towards the child’s adoption unless another
219 placement in compliance with this section can be found unless
220 the court finds that this placement is in the child’s best
221 interest.
222
223 Any other relevant and material evidence, including other
224 written or oral reports, may be received by the court in its
225 effort to determine the action to be taken with regard to the
226 child and may be relied upon to the extent of its probative
227 value, even though not competent in an adjudicatory hearing.
228 Except as otherwise specifically provided, nothing in this
229 section prohibits the publication of proceedings in a hearing.
230 Section 5. Subsections (1) and (2) of section 39.621,
231 Florida Statutes, are amended and reordered to read:
232 39.621 Permanency determination by the court.—
233 (1) Time is of the essence for permanency of children in
234 the dependency system. A permanency hearing must be held at such
235 time as to enable the child to achieve permanency no later than
236 12 months after the date the child was removed from the home or
237 no later than 30 days after a court determines that reasonable
238 efforts to return a child to either parent are not required,
239 whichever occurs first. The purpose of the permanency hearing is
240 to determine when the child will achieve the permanency goal or
241 whether modifying the current goal is in the best interest of
242 the child. A permanency hearing must be held at least every 12
243 months for any child who continues to receive supervision from
244 the department or awaits adoption.
245 (2) The permanency goals available under this chapter,
246 listed in order of preference, are:
247 (a)(b) Adoption, if a petition for termination of parental
248 rights has been or will be filed;
249 (b)(a) Reunification;
250 (c) Permanent guardianship of a dependent child under s.
251 39.6221;
252 (d) Permanent placement with a fit and willing relative
253 under s. 39.6231; or
254 (e) Placement in another planned permanent living
255 arrangement under s. 39.6241.
256 Section 6. Section 39.6215, Florida Statutes, is created to
257 read:
258 39.6215 Permanency; reporting; program funding.—
259 (1) Each county shall report to the department, on a
260 quarterly basis, the number of children entering care and the
261 number of children achieving a permanency goal as listed in s.
262 39.621(2).
263 (2) Effective October 1, 2012, each quarter the department
264 shall reduce funds allocated to a county for permanency-related
265 programs for the next quarter based on the county’s percentage
266 of children who entered the system in the corresponding quarter
267 during the previous year for which data is available who failed
268 to achieve permanency within a 12-month period.
269 Section 7. Paragraph (a) of subsection (3) of section
270 39.801, Florida Statutes, is amended to read:
271 39.801 Procedures and jurisdiction; notice; service of
272 process.—
273 (3) Before the court may terminate parental rights, in
274 addition to the other requirements set forth in this part, the
275 following requirements must be met:
276 (a) Notice of the date, time, and place of the advisory
277 hearing for the petition to terminate parental rights and a copy
278 of the petition must be personally served upon the following
279 persons, specifically notifying them that a petition has been
280 filed:
281 1. The parents of the child.
282 2. The legal custodians of the child.
283 3. If the parents who would be entitled to notice are dead
284 or unknown, a living relative of the child, unless upon diligent
285 search and inquiry, to be completed within 90 days after the
286 child enters into care, no such relative can be found.
287 4. Any person who has physical custody of the child.
288 5. Any grandparent entitled to priority for adoption under
289 s. 63.0425.
290 6. Any prospective parent who has been identified under s.
291 39.503 or s. 39.803.
292 7. The guardian ad litem for the child or the
293 representative of the guardian ad litem program, if the program
294 has been appointed.
295
296 The document containing the notice to respond or appear must
297 contain, in type at least as large as the type in the balance of
298 the document, the following or substantially similar language:
299 “FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING
300 CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF
301 THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND
302 TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE
303 CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS
304 NOTICE.”
305 Section 8. Subsection (5) of section 39.803, Florida
306 Statutes, is amended to read:
307 39.803 Identity or location of parent unknown after filing
308 of termination of parental rights petition; special procedures.—
309 (5) If the inquiry under subsection (1) identifies a parent
310 or prospective parent, and that person’s location is unknown,
311 the court shall direct the petitioner to conduct a diligent
312 search for that person before scheduling an adjudicatory hearing
313 regarding the petition for termination of parental rights to the
314 child unless the court finds that the best interest of the child
315 requires proceeding without actual notice to the person whose
316 location is unknown. If the person whose location is unknown is
317 an unmarried biological father and the mother files an affidavit
318 to that effect with 30 days after the child enters care, the
319 diligent search may not exceed 60 days beyond the date the court
320 accepts the affidavit.
321 Section 9. Section 39.0136, Florida Statutes, is amended to
322 read:
323 39.0136 Time limitations; continuances.—
324 (1) The Legislature finds that time is of the essence for
325 establishing permanency for a child in the dependency system.
326 Time limitations are a right of the child which may not be
327 waived, extended, or continued at the request of any party
328 except as provided in this section.
329 (2) The time limitations in this chapter do not include:
330 (a) Periods of delay resulting from a continuance granted
331 at the request of the child’s counsel or the child’s guardian ad
332 litem or, if the child is of sufficient capacity to express
333 reasonable consent, at the request or with the consent of the
334 child. The court must consider the best interests of the child
335 when determining periods of delay under this section.
336 (b) Periods of delay resulting from a continuance granted
337 at the request of any party if the continuance is granted:
338 1. Because of an unavailability of evidence that is
339 material to the case if the requesting party has exercised due
340 diligence to obtain evidence and there are substantial grounds
341 to believe that the evidence will be available within 30 days.
342 However, if the requesting party is not prepared to proceed
343 within 30 days, any other party may move for issuance of an
344 order to show cause or the court on its own motion may impose
345 appropriate sanctions, which may include dismissal of the
346 petition.
347 2. To allow the requesting party additional time to prepare
348 the case and additional time is justified because of an
349 exceptional circumstance.
350 (c) Reasonable periods of delay necessary to accomplish
351 notice of the hearing to the child’s parent or legal custodian;
352 however, the petitioner shall continue regular efforts to
353 provide notice to the parents during the periods of delay.
354 (3) Notwithstanding subsection (2):,
355 (a) In order to expedite permanency for a child, the total
356 time allowed for continuances or extensions of time may not
357 exceed 60 days within any 12-month period for proceedings
358 conducted under this chapter. A continuance or extension of time
359 may be granted only for extraordinary circumstances in which it
360 is necessary to preserve the constitutional rights of a party or
361 if substantial evidence exists to demonstrate that without
362 granting a continuance or extension of time the child’s best
363 interests will be harmed.
364 (b)(4) Notwithstanding subsection (2), A continuance or an
365 extension of time is limited to the number of days absolutely
366 necessary to complete a necessary task in order to preserve the
367 rights of a party or the best interests of a child.
368 Section 10. Subsections (2) and (5) of section 39.809,
369 Florida Statutes, are amended to read:
370 39.809 Adjudicatory hearing.—
371 (2) The adjudicatory hearing must be held within 45 days
372 after the advisory hearing on a schedule consistent with the
373 time required for a final order under subsection (5)., but
374 reasonable Continuances for the purpose of investigation,
375 discovery, or procuring counsel or witnesses may, when
376 necessary, be granted only when consistent with s. 39.0136(3)(b)
377 and consistent with the time required for a final order under
378 subsection (5).
379 (5) The judge shall enter a written order with the findings
380 of fact and conclusions of law within 90 days after completion
381 of service on all parties.
382 Section 11. Section 39.8056, Florida Statutes, is created
383 to read:
384 39.8056 Foster parents; effect of petition.—If foster
385 parents have been approved after a home study to adopt a foster
386 child, the child shall be placed with the foster parents upon
387 the filing of the termination of parental rights petition and
388 shall reside with the foster parents until disposition of the
389 petition.
390 Section 12. Subsection (4) of section 39.812, Florida
391 Statutes, is amended to read:
392 39.812 Postdisposition relief; petition for adoption.—
393 (4)(a) The court shall retain jurisdiction over any child
394 placed in the custody of the department until the child is
395 adopted. After custody of a child for subsequent adoption has
396 been given to the department, the court has jurisdiction for the
397 purpose of reviewing the status of the child and the progress
398 being made toward permanent adoptive placement. As part of this
399 continuing jurisdiction, for good cause shown by the guardian ad
400 litem for the child, the court may review the appropriateness of
401 the adoptive placement of the child. When a licensed foster
402 parent or court-ordered custodian has applied to adopt a child
403 who has resided with the foster parent or custodian for at least
404 6 months and who has previously been permanently committed to
405 the legal custody of the department and the department does not
406 grant the application to adopt, the department may not, in the
407 absence of a prior court order authorizing it to do so, remove
408 the child from the foster home or custodian, except when:
409 1.(a) There is probable cause to believe that the child is
410 at imminent risk of abuse or neglect;
411 2.(b) Thirty days have expired following written notice to
412 the foster parent or custodian of the denial of the application
413 to adopt, within which period no formal challenge of the
414 department’s decision has been filed; or
415 3.(c) The foster parent or custodian agrees to the child’s
416 removal.
417 (b) After a child has been placed with a licensed foster
418 parent or court-ordered custodian who has applied to adopt the
419 child, that child may not be removed from that home except as
420 provided in paragraph (a). Such a child is not subject to
421 visitation unless there is a preexisting visitation arrangement.
422 Section 13. Section 39.816, Florida Statutes, is amended to
423 read:
424 39.816 Authorization for pilot and demonstration projects.—
425 (1) Contingent upon receipt of a federal grant or contract
426 pursuant to s. 473A(i) of the Social Security Act, 42 U.S.C. s.
427 673A(i), enacted November 19, 1997, the department is authorized
428 to establish one or more pilot projects for the following
429 purposes:
430 (a) The development of best practice guidelines for
431 expediting termination of parental rights in cases of child
432 abuse, abandonment, or neglect if the family is unable to meet
433 the requirements of a plan of action established by the child
434 protection team. However, a parent who is incarcerated but does
435 not meet the criteria established under s. 39.806(1)(d) or a
436 parent who is physically incapacitated shall be granted an
437 extension of up to 180 days after the presentation of the plan
438 of action before the department files a petition for termination
439 of parental rights.
440 (b) The development of models to encourage the use of
441 concurrent planning.
442 (c) The development of specialized units and expertise in
443 moving children toward adoption as a permanency goal.
444 (d) The development of risk assessment tools to facilitate
445 early identification of the children who will be at risk of harm
446 if returned home.
447 (e) The development of models to encourage the fast
448 tracking of children who have not attained 1 year of age, into
449 preadoptive placements.
450 (f) The development of programs that place children into
451 preadoptive families without waiting for termination of parental
452 rights.
453 (2) Contingent upon receipt of federal authorization and
454 funding pursuant to s. 1130(a) of the Social Security Act, 42
455 U.S.C. s. 1320a-9, enacted November 19, 1997, the department is
456 authorized to establish one or more demonstration projects for
457 the following purposes:
458 (a) Identifying and addressing barriers that result in
459 delays to adoptive placements for children in out-of-home care.
460 (b) Identifying and addressing parental substance abuse
461 problems that endanger children and result in the placement of
462 children in out-of-home care. This purpose may be accomplished
463 through the placement of children with their parents in
464 residential treatment facilities, including residential
465 treatment facilities for postpartum depression, that are
466 specifically designed to serve parents and children together, in
467 order to promote family reunification, and that can ensure the
468 health and safety of the children by providing a separate unit
469 in which the children may reside.
470 (c) Addressing kinship care by including next of kin, as
471 defined in s. 39.01, in the early intervention and
472 decisionmaking process. An unmarried biological father, as
473 defined in s. 63.032, is not considered next of kin for purposes
474 of this paragraph.
475 (d) In cases in which danger to the child is not imminent,
476 developing a 90-day early intervention process that includes all
477 family members except children under the age of 13 and is
478 developed in collaboration with representatives of the
479 department, the state Guardian Ad Litem Program, and a private
480 attorney representing the family.
481 Section 14. This act shall take effect July 1, 2011.