The Florida Senate

39.508  Disposition hearings; powers of disposition.--

(1)  At the disposition hearing, if the court finds that the facts alleged in the petition for dependency were proven in the adjudicatory hearing, or if the parents or legal custodians have consented to the finding of dependency or admitted the allegations in the petition, have failed to appear for the arraignment hearing after proper notice, or have not been located despite a diligent search having been conducted, the court shall receive and consider a case plan and a predisposition study, which must be in writing and presented by an authorized agent of the department.

(2)  The predisposition study shall cover for any dependent child all factors specified in s. 61.13(3), and must also provide the court with the following documented information:

(a)  An assessment defining the dangers and risks of returning the child home, including a description of the changes in and resolutions to the initial risks.

(b)  A description of what risks are still present and what resources are available and will be provided for the protection and safety of the child.

(c)  A description of the benefits of returning the child home.

(d)  A description of all unresolved issues.

(e)  An abuse registry history and criminal records check for all caregivers, family members, and individuals residing within the household.

(f)  The complete report and recommendation of the child protection team of the Department of Health or, if no report exists, a statement reflecting that no report has been made.

(g)  All opinions or recommendations from other professionals or agencies that provide evaluative, social, reunification, or other services to the parent and child.

(h)  The availability of appropriate prevention and reunification services for the parent and child to prevent the removal of the child from the home or to reunify the child with the parent after removal, including the availability of family preservation services through the Family Builders Program, the Intensive Crisis Counseling Program, or both.

(i)  The inappropriateness of other prevention and reunification services that were available.

(j)  The efforts by the department to prevent out-of-home placement of the child or, when applicable, to reunify the parent and child if appropriate services were available, including the application of intensive family preservation services through the Family Builders Program, the Intensive Crisis Counseling Program, or both.

(k)  Whether the services were provided to the parent and child.

(l)  If the services were provided, whether they were sufficient to meet the needs of the child and the parent and to enable the child to remain safely at home or to be returned home.

(m)  If the services were not provided, the reasons for such lack of action.

(n)  The need for, or appropriateness of, continuing the services if the child remains in the custody of the parent or if the child is placed outside the home.

(o)  Whether dependency mediation was provided.

(p)  If the child has been removed from the home and there is a parent or legal custodian who may be considered for custody pursuant to this section, a recommendation as to whether placement of the child with that parent or legal custodian would be detrimental to the child.

(q)  If the child has been removed from the home and will be remaining with a relative or other adult approved by the court, a home study report concerning the proposed placement shall be included in the predisposition report.

(r)  If the child has been removed from the home, a determination of the amount of child support each parent will be required to pay pursuant to s. 61.30.

Any other relevant and material evidence, including other written or oral reports, may be received by the court in its effort to determine the action to be taken with regard to the child and may be relied upon to the extent of its probative value, even though not competent in an adjudicatory hearing. Except as otherwise specifically provided, nothing in this section prohibits the publication of proceedings in a hearing.

(3)(a)1.  Notwithstanding s. 435.045(1), the department may place a child in a foster home which otherwise meets licensing requirements if state and local criminal records checks do not disqualify the applicant, and the department has submitted fingerprint information to the Florida Department of Law Enforcement for forwarding to the Federal Bureau of Investigation and is awaiting the results of the federal criminal records check.

2.  Prospective and approved foster parents must disclose to the department any prior or pending local, state, or federal criminal proceedings in which they are or have been involved.

(b)  Prior to recommending to the court any out-of-home placement for a child other than placement in a licensed shelter or foster home, the department shall conduct a study of the home of the proposed legal custodians, which must include, at a minimum:

1.  An interview with the proposed legal custodians to assess their ongoing commitment and ability to care for the child.

2.  Records checks through the department's automated abuse information system, and local and statewide criminal and juvenile records checks through the Department of Law Enforcement, on all household members 12 years of age or older and any other persons made known to the department who are frequent visitors in the home.

3.  An assessment of the physical environment of the home.

4.  A determination of the financial security of the proposed legal custodians.

5.  A determination of suitable child care arrangements if the proposed legal custodians are employed outside of the home.

6.  Documentation of counseling and information provided to the proposed legal custodians regarding the dependency process and possible outcomes.

7.  Documentation that information regarding support services available in the community has been provided to the proposed legal custodians.

(c)  The department shall not place the child or continue the placement of the child in the home of the proposed legal custodians if the results of the home study are unfavorable.

(4)  If placement of the child with anyone other than the child's parent is being considered, the predisposition study shall include the designation of a specific length of time as to when custody by the parent will be reconsidered.

(5)  The predisposition study may not be made before the adjudication of dependency unless the parents of the child consent.

(6)  A case plan and predisposition study must be filed with the court and served upon the parents of the child, provided to the representative of the guardian ad litem program, if the program has been appointed, and provided to all other parties not less than 72 hours before the disposition hearing. All such case plans must be approved by the court. If the court does not approve the case plan at the disposition hearing, the court must set a hearing within 30 days after the disposition hearing to review and approve the case plan.

(7)  The initial judicial review must be held no later than 90 days after the date of the disposition hearing or after the date of the hearing at which the court approves the case plan, whichever occurs earlier, but in no event shall the review be held later than 6 months after the date of the child's removal from the home.

(8)  When any child is adjudicated by a court to be dependent, and the court finds that removal of the child from the custody of a parent or legal custodian is necessary, the court shall first determine whether there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child and, if such parent requests custody, the court shall place the child with the parent unless it finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child. Any party with knowledge of the facts may present to the court evidence regarding whether the placement will endanger the safety, well-being, or physical, mental, or emotional health of the child. If the court places the child with such parent, it may do either of the following:

(a)  Order that the parent assume sole custodial responsibilities for the child. The court may also provide for reasonable visitation by the noncustodial parent. The court may then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the circuit court hearing dependency matters. The order of the circuit court hearing dependency matters shall be filed in any dissolution or other custody action or proceeding between the parents and shall take precedence over other custody and visitation orders entered in those actions.

(b)  Order that the parent assume custody subject to the jurisdiction of the circuit court hearing dependency matters. The court may order that reunification services be provided to the parent from whom the child has been removed, that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court jurisdiction, or that services be provided to both parents, in which case the court shall determine at every review hearing which parent, if either, shall have custody of the child. The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.

(9)(a)  When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child has the power, by order, to:

1.  Require the parent or legal custodian, and the child when appropriate, to participate in treatment and services identified as necessary.

2.  Require the parent or legal custodian, and the child when appropriate, to participate in mediation if the parent or legal custodian refused to participate in mediation.

3.  Place the child under the protective supervision of an authorized agent of the department, either in the child's own home or, the prospective custodian being willing, in the home of a relative of the child or of another adult approved by the court, or in some other suitable place under such reasonable conditions as the court may direct. Protective supervision continues until the court terminates it or until the child reaches the age of 18, whichever date is first. Protective supervision shall be terminated by the court whenever the court determines that permanency has been achieved for the child, whether with a parent, another relative, or a legal custodian, and that protective supervision is no longer needed. The termination of supervision may be with or without retaining jurisdiction, at the court's discretion, and shall in either case be considered a permanency option for the child. The order terminating supervision by the department shall set forth the powers of the custodian of the child and shall include the powers ordinarily granted to a guardian of the person of a minor unless otherwise specified. Upon the court's termination of supervision by the department, no further judicial reviews are required, so long as permanence has been established for the child.

4.  Place the child in the temporary legal custody of an adult relative or other adult approved by the court who is willing to care for the child. The department must supervise this placement until the child reaches permanency status in this home, and in no case for a period of less than 6 months. Permanency in a relative placement shall be by adoption, long-term custody, or guardianship.

5.a.  When the parents have failed to comply with a case plan and the court determines at a judicial review hearing, or at an adjudication hearing held pursuant to this section, that neither reunification, termination of parental rights, nor adoption is in the best interest of the child, the court may place the child in the long-term custody of an adult relative or other adult approved by the court willing to care for the child, if all of the following conditions are met:

(I)  A case plan describing the responsibilities of the relative or other adult, the department, and any other party must have been submitted to the court.

(II)  The case plan for the child does not include reunification with the parents or adoption by the relative or other adult.

(III)  The child and the relative or other adult are determined not to need protective supervision or preventive services to ensure the stability of the long-term custodial relationship, or the department assures the court that protective supervision or preventive services will be provided in order to ensure the stability of the long-term custodial relationship.

(IV)  Each party to the proceeding agrees that a long-term custodial relationship does not preclude the possibility of the child returning to the custody of the parent at a later date, should the parent demonstrate a material change in circumstances and the return of the child to the parent is in the child's best interest.

(V)  The court has considered the reasonable preference of the child if the court has found the child to be of sufficient intelligence, understanding, and experience to express a preference.

(VI)  The court has considered the recommendation of the guardian ad litem if one has been appointed.

(VII)  The relative or other adult has made a commitment to provide for the child until the child reaches the age of majority and to prepare the child for adulthood and independence.

(VIII)  The relative or other adult agrees not to return the child to the physical care and custody of the person from whom the child was removed, including for short visitation periods, without the approval of the court.

b.  The court shall retain jurisdiction over the case, and the child shall remain in the long-term custody of the relative or other adult approved by the court until the order creating the long-term custodial relationship is modified by the court. The court shall discontinue regular judicial review hearings and may relieve the department of the responsibility for supervising the placement of the child whenever the court determines that the placement is stable and that such supervision is no longer needed. The child must be in the placement for a minimum of 6 continuous months before the court may consider termination of the department's supervision. Notwithstanding the retention of jurisdiction, the placement shall be considered a permanency option for the child when the court relieves the department of the responsibility for supervising the placement. The order terminating supervision by the department shall set forth the powers of the custodian of the child and shall include the powers ordinarily granted to a guardian of the person of a minor unless otherwise specified. The court may modify the order terminating supervision of the long-term placement if it finds that the long-term placement is no longer in the best interest of the child.

6.a.  Approve placement of the child in long-term out-of-home care, when the following conditions are met:

(I)  The foster child is 16 years of age or older, unless the court determines that the history or condition of a younger child makes long-term out-of-home care the most appropriate placement.

(II)  The child demonstrates no desire to be placed in an independent living arrangement pursuant to this subsection.

(III)  The department's social services study pursuant to part VIII recommends long-term out-of-home care.

Long-term out-of-home care under the above conditions shall not be considered a permanency option.

b.  The court may approve placement of the child in long-term out-of-home care, as a permanency option, when all of the following conditions are met:

(I)  The child is 14 years of age or older.

(II)  The child is living in a licensed home and the foster parents desire to provide care for the child on a permanent basis and the foster parents and the child do not desire adoption.

(III)  The foster family has made a commitment to provide for the child until he or she reaches the age of majority and to prepare the child for adulthood and independence.

(IV)  The child has remained in the home for a continuous period of no less than 12 months.

(V)  The foster parents and the child view one another as family and consider living together as the best place for the child to be on a permanent basis.

(VI)  The department's social services study recommends such placement and finds the child's well-being has been promoted through living with the foster parents.

Notwithstanding the retention of jurisdiction and supervision by the department, long-term out-of-home care placements made pursuant to this section shall be considered a permanency option for the child. For purposes of this subsection, supervision by the department shall be defined as a minimum of semiannual visits. The order placing the child in long-term out-of-home care as a permanency option shall set forth the powers of the custodian of the child and shall include the powers ordinarily granted to a guardian of the person of a minor unless otherwise specified. The court may modify the permanency option of long-term out-of-home care if it finds that the placement is no longer in the best interests of the child.

c.  Approve placement of the child in an independent living arrangement for any child 16 years of age or older, if it can be clearly established that this type of alternate care arrangement is the most appropriate plan and that the health, safety, and well-being of the child will not be jeopardized by such an arrangement. While in independent living situations, children whose legal custody has been awarded to the department or a licensed child-caring or child-placing agency, or who have been voluntarily placed with such an agency by a parent, guardian, relative, or adult approved by the court, continue to be subject to court review provisions.

7.  Commit the child to the temporary legal custody of the department. Such commitment invests in the department all rights and responsibilities of a legal custodian. The department shall not return any child to the physical care and custody of the person from whom the child was removed, except for court-approved visitation periods, without the approval of the court. The term of such commitment continues until terminated by the court or until the child reaches the age of 18. After the child is committed to the temporary custody of the department, all further proceedings under this section are also governed by this chapter.

8.a.  Change the temporary legal custody or the conditions of protective supervision at a postdisposition hearing, without the necessity of another adjudicatory hearing. A child who has been placed in the child's own home under the protective supervision of an authorized agent of the department, in the home of a relative, in the home of a legal custodian, or in some other place may be brought before the court by the department or by any other interested person, upon the filing of a petition alleging a need for a change in the conditions of protective supervision or the placement. If the parents or other legal custodians deny the need for a change, the court shall hear all parties in person or by counsel, or both. Upon the admission of a need for a change or after such hearing, the court shall enter an order changing the placement, modifying the conditions of protective supervision, or continuing the conditions of protective supervision as ordered. The standard for changing custody of the child shall be the best interest of the child. If the child is not placed in foster care, then the new placement for the child must meet the home study criteria and court approval pursuant to this chapter.

b.  In cases where the issue before the court is whether a child should be reunited with a parent, the court shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.

(b)  The court shall, in its written order of disposition, include all of the following:

1.  The placement or custody of the child as provided in paragraph (a).

2.  Special conditions of placement and visitation.

3.  Evaluation, counseling, treatment activities, and other actions to be taken by the parties, if ordered.

4.  The persons or entities responsible for supervising or monitoring services to the child and parent.

5.  Continuation or discharge of the guardian ad litem, as appropriate.

6.  The date, time, and location of the next scheduled review hearing, which must occur within the earlier of:

a.  Ninety days after the disposition hearing;

b.  Ninety days after the court accepts the case plan;

c.  Six months after the date of the last review hearing; or

d.  Six months after the date of the child's removal from his or her home, if no review hearing has been held since the child's removal from the home.

7.  Other requirements necessary to protect the health, safety, and well-being of the child, to preserve the stability of the child's educational placement, and to promote family preservation or reunification whenever possible.

(c)  If the court finds that the prevention or reunification efforts of the department will allow the child to remain safely at home or be safely returned to the home, the court shall allow the child to remain in or return to the home after making a specific finding of fact that the reasons for removal have been remedied to the extent that the child's safety, well-being, and physical, mental, and emotional health will not be endangered.

(d)  If the court places the child in an out-of-home placement, the disposition order must include a written determination that the child cannot safely remain at home with reunification or family preservation services and that removal of the child is necessary to protect the child. If the child has been removed before the disposition hearing, the order must also include a written determination as to whether, after removal, the department has made a reasonable effort to reunify the parent and child, if reasonable efforts are required. Reasonable efforts to reunify are not required if the court has found that any of the acts listed in s. 39.806(1)(f)-(i) have occurred. The department has the burden of demonstrating that it has made reasonable efforts under this paragraph.

1.  For the purposes of this paragraph, the term "reasonable effort" means the exercise of reasonable diligence and care by the department to provide the services delineated in the case plan.

2.  In support of its determination as to whether reasonable efforts have been made, the court shall:

a.  Enter written findings as to whether or not prevention or reunification efforts were indicated.

b.  If prevention or reunification efforts were indicated, include a brief written description of what appropriate and available prevention and reunification efforts were made.

c.  Indicate in writing why further efforts could or could not have prevented or shortened the separation of the parent and child.

3.  A court may find that the department has made a reasonable effort to prevent or eliminate the need for removal if:

a.  The first contact of the department with the family occurs during an emergency;

b.  The appraisal by the department of the home situation indicates that it presents a substantial and immediate danger to the child's safety or physical, mental, or emotional health which cannot be mitigated by the provision of preventive services;

c.  The child cannot safely remain at home, either because there are no preventive services that can ensure the health and safety of the child or, even with appropriate and available services being provided, the health and safety of the child cannot be ensured; or

d.  The parent or legal custodian is alleged to have committed any of the acts listed as grounds for expedited termination of parental rights in s. 39.806(1)(f)-(i).

4.  A reasonable effort by the department for reunification of the parent and child has been made if the appraisal of the home situation by the department indicates that the severity of the conditions of dependency is such that reunification efforts are inappropriate. The department has the burden of demonstrating to the court that reunification efforts were inappropriate.

5.  If the court finds that the prevention or reunification effort of the department would not have permitted the child to remain safely at home, the court may commit the child to the temporary legal custody of the department or take any other action authorized by this chapter.

(10)(a)  When any child is adjudicated by the court to be dependent and temporary legal custody of the child has been placed with an adult relative, legal custodian, or other adult approved by the court, a licensed child-caring agency, or the department, the court shall, unless a parent has voluntarily executed a written surrender for purposes of adoption, order the parents, or the guardian of the child's estate if possessed of assets which under law may be disbursed for the care, support, and maintenance of the child, to pay child support to the legal custodian caring for the child, the licensed child-caring agency, or the department. The court may exercise jurisdiction over all child support matters, shall adjudicate the financial obligation, including health insurance, of the child's parents or guardian, and shall enforce the financial obligation as provided in chapter 61. The state's child support enforcement agency shall enforce child support orders under this section in the same manner as child support orders under chapter 61.

(b)  Placement of the child pursuant to subsection (8) shall not be contingent upon issuance of a support order.

(11)(a)  If the court does not commit the child to the temporary legal custody of an adult relative, legal custodian, or other adult approved by the court, the disposition order shall include the reasons for such a decision and shall include a determination as to whether diligent efforts were made by the department to locate an adult relative, legal custodian, or other adult willing to care for the child in order to present that placement option to the court instead of placement with the department.

(b)  If diligent efforts are made to locate an adult relative willing and able to care for the child but, because no suitable relative is found, the child is placed with the department or a legal custodian or other adult approved by the court, both the department and the court shall consider transferring temporary legal custody to an adult relative approved by the court at a later date, but neither the department nor the court is obligated to so place the child if it is in the child's best interest to remain in the current placement. For the purposes of this paragraph, "diligent efforts to locate an adult relative" means a search similar to the diligent search for a parent, but without the continuing obligation to search after an initial adequate search is completed.

(12)  An agency granted legal custody shall have the right to determine where and with whom the child shall live, but an individual granted legal custody shall exercise all rights and duties personally unless otherwise ordered by the court.

(13)  In carrying out the provisions of this chapter, the court may order the parents or legal custodians of a child who is found to be dependent to participate in family counseling and other professional counseling activities deemed necessary for the rehabilitation of the child.

(14)  With respect to a child who is the subject in proceedings under this chapter, the court shall issue to the department an order to show cause why it should not return the child to the custody of the parents upon expiration of the case plan, or sooner if the parents have substantially complied with the case plan.

(15)  The court may enter an order ending its jurisdiction over a child when a child has been returned to the parents, provided the court shall not terminate its jurisdiction or the department's supervision over the child until 6 months after the child's return. The court shall determine whether its jurisdiction should be continued or terminated in such a case based on a report of the department or agency or the child's guardian ad litem, and any other relevant factors; if its jurisdiction is to be terminated, the court shall enter an order to that effect.

History.--s. 20, ch. 78-414; s. 14, ch. 79-164; s. 2, ch. 80-102; s. 15, ch. 80-290; s. 11, ch. 83-217; ss. 9, 10, ch. 84-311; s. 6, ch. 85-80; s. 83, ch. 86-220; s. 8, ch. 87-289; s. 13, ch. 87-397; s. 30, ch. 88-337; s. 1, ch. 90-182; s. 2, ch. 90-211; ss. 7, 8, ch. 90-306; s. 71, ch. 91-45; s. 2, ch. 91-183; s. 5, ch. 92-158; s. 7, ch. 92-170; ss. 12, 13, ch. 94-164; s. 62, ch. 95-228; s. 4, ch. 97-96; s. 8, ch. 97-101; s. 9, ch. 97-276; s. 6, ch. 98-137; s. 11, ch. 98-280; s. 69, ch. 98-403; s. 31, ch. 99-193.

Note.--Former ss. 39.408(3), (4), 39.41.