Senate Bill 2080e1
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1 A bill to be entitled
2 An act relating to child protection; creating
3 s. 383.50, F.S.; prescribing duties of
4 hospitals and fire stations with respect to
5 abandoned newborn infants, as defined;
6 providing for anonymity of such infants'
7 parents; amending s. 39.01, F.S.; redefining
8 the term "abandoned"; amending s. 39.201, F.S.;
9 revising duties of the central abuse hotline to
10 accept specified reports of abandoned newborn
11 infants and disclose names of eligible licensed
12 child-placing agencies; amending s. 63.167,
13 F.S.; providing duties of the state adoption
14 information center with respect to maintaining
15 a list of child-placing agencies with which
16 abandoned newborns may be placed; creating s.
17 63.0423, F.S.; prescribing rights, duties and
18 procedures for licensed child-placing agencies
19 with respect to custody, placement, and
20 adoption of abandoned newborn infants;
21 providing limited relief from judgment of
22 termination of parental rights; amending s.
23 63.182, F.S.; providing a statute of repose for
24 setting aside adoptions; providing duties of
25 the Department of Children and Family Services
26 in conjunction with the Department of Health to
27 produce media campaign with respect to
28 abandoned newborns; creating s. 827.035, F.S.;
29 providing that it is an affirmative defense to
30 certain child-abuse charges that the parent of
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1 a newborn infant arranged its placement under
2 this act; providing an effective date.
3
4 WHEREAS, in this state and in the nation, newborn
5 infants have suffered and died as the result of abandonment in
6 life-threatening situations, and
7 WHEREAS, the parents of newborn infants are often under
8 severe emotional stress, and
9 WHEREAS, anonymity, confidentiality, and freedom from
10 prosecution for parents may encourage them to leave a newborn
11 infant safely and thus save the newborn infant's life, NOW,
12 THEREFORE,
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Section 383.50, Florida Statutes, is
17 created to read:
18 383.50 Treatment of abandoned newborn infant.--
19 (1) As used in this section, the term "newborn infant"
20 means a child that a licensed physician reasonably believes to
21 be approximately 3 days old or younger at the time the child
22 is left at a hospital or a fire station.
23 (2) There is a presumption that the parent who leaves
24 the newborn infant in accordance with this section intended to
25 leave the newborn infant and consented to termination of
26 parental rights.
27 (3) Each fire station staffed with full-time
28 firefighters or emergency medical technicians shall accept any
29 newborn infant left with a firefighter or emergency medical
30 technician. The fire station shall consider these actions as
31 implied consent to and shall:
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1 (a) Provide emergency medical services to the newborn
2 infant to the extent he or she is trained to provide those
3 services, and
4 (b) Arrange for the immediate transportation of the
5 newborn infant to the nearest hospital with emergency
6 services. Any firefighter or emergency medical technician
7 accepting or providing emergency medical services to a newborn
8 infant pursuant to this subsection is immune from criminal or
9 civil liability for having performed the act. Nothing in this
10 subsection limits liability for negligence.
11 (4) Each hospital of this state subject to s. 395.1041
12 shall, and any other hospital may, admit and provide all
13 necessary emergency services and care, as defined in s.
14 395.002(10), to any newborn infant left with the hospital in
15 accordance with this section. The hospital or any of its
16 licensed health care professionals shall consider these
17 actions as implied consent for treatment, and a hospital
18 accepting physical custody of a newborn infant has implied
19 consent to perform all necessary emergency services and care.
20 The hospital or any of its licensed health care professionals
21 is immune from criminal or civil liability for acting in good
22 faith in accordance with this section. Nothing in this
23 subsection limits liability for negligence.
24 (5) Except where there is actual or suspected child
25 abuse or neglect, any parent who leaves a newborn infant with
26 a firefighter or emergency medical technician at a fire
27 station or brings a newborn infant to an emergency room of a
28 hospital and expresses an intent to leave the newborn infant
29 and not return has the absolute right to remain anonymous and
30 to leave at any time and may not be pursued or followed unless
31 the parent seeks to reclaim the newborn infant.
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1 (6) A parent of a newborn infant left at a hospital or
2 a fire station under this section may claim his or her newborn
3 infant up until the court enters a judgment terminating his or
4 her parental rights. A claim of parental rights of the newborn
5 infant must be made to the entity having physical or legal
6 custody of the newborn infant or to the circuit court before
7 whom proceedings involving the newborn infant are pending.
8 (7) Upon admitting a newborn infant under this
9 section, the hospital shall immediately contact a local
10 licensed child-placing agency or alternatively contact the
11 statewide central abuse hotline for the name of a licensed
12 child-placing agency for purposes of transferring physical
13 custody of the newborn infant. The hospital shall notify the
14 licensed child-placing agency that a newborn infant has been
15 left with the hospital and approximately when the licensed
16 child-placing agency can take physical custody of the child.
17 In cases where there is actual or suspected child abuse or
18 neglect, the hospital or any of its licensed health care
19 professionals shall report the actual or suspected child abuse
20 or neglect in accordance with ss. 39.1023 and 395.1023 in lieu
21 of contacting a licensed child-placing agency.
22 (8) Each hospital or fire station taking physical
23 custody of a newborn infant under this section shall make a
24 good-faith effort to obtain the health, medical, and social
25 history concerning the newborn infant and the parents,
26 including a physical description of the parents if reasonably
27 ascertainable. The hospital or fire station may offer
28 materials to the parent leaving the newborn infant, including:
29 (a) Information on the importance of the medical,
30 health, and social history regarding the newborn infant and
31 notice that such information may be given anonymously; and
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1 (b) Written notification that failure to contact the
2 entity having physical or legal custody of the newborn infant,
3 or, alternatively the court if proceedings have already been
4 initiated or are pending and assert a claim of parental rights
5 within 30 days after the newborn infant is left at the
6 hospital or the fire station shall result in the commencement
7 of proceedings for termination of parental rights and
8 subsequent adoption of the newborn infant.
9 (9) Any newborn infant admitted to a hospital in
10 accordance with s. 383.50 is presumed eligible for coverage
11 under Medicaid, subject to federal rules. Medicaid eligibility
12 remains in effect until a licensed child-placing agency takes
13 physical custody of the newborn infant.
14 (10) A newborn infant left at a fire station or a
15 hospital in accordance with this section shall not be deemed
16 abandoned subject to reporting and investigation requirements
17 under s. 39.201 unless there is actual or suspected child
18 abuse or until the department takes physical custody of the
19 child.
20 (11) A criminal investigation shall not be initiated
21 solely because a newborn infant is left at a hospital under s.
22 383.50 unless there is actual or suspected child abuse or
23 neglect.
24 Section 2. Subsections (1) and (30) of section 39.01,
25 Florida Statutes, are amended to read:
26 39.01 Definitions.--When used in this chapter, unless
27 the context otherwise requires:
28 (1) "Abandoned" means a situation in which the parent
29 or legal custodian of a child or, in the absence of a parent
30 or legal custodian, the caregiver responsible for the child's
31 welfare, while being able, makes no provision for the child's
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1 support and makes no effort to communicate with the child,
2 which situation is sufficient to evince a willful rejection of
3 parental obligations. If the efforts of such parent or legal
4 custodian, or caregiver primarily responsible for the child's
5 welfare, to support and communicate with the child are, in the
6 opinion of the court, only marginal efforts that do not evince
7 a settled purpose to assume all parental duties, the court may
8 declare the child to be abandoned. The term "abandoned" does
9 not include an abandoned newborn infant as described in s.
10 383.50, a "child in need of services" as defined in chapter
11 984, or a "family in need of services" as defined in chapter
12 984. The incarceration of a parent, legal custodian, or
13 caregiver responsible for a child's welfare may support a
14 finding of abandonment.
15 (30) "Harm" to a child's health or welfare can occur
16 when any person:
17 (a) Inflicts or allows to be inflicted upon the child
18 physical, mental, or emotional injury. In determining whether
19 harm has occurred, the following factors must be considered in
20 evaluating any physical, mental, or emotional injury to a
21 child: the age of the child; any prior history of injuries to
22 the child; the location of the injury on the body of the
23 child; the multiplicity of the injury; and the type of trauma
24 inflicted. Such injury includes, but is not limited to:
25 1. Willful acts that produce the following specific
26 injuries:
27 a. Sprains, dislocations, or cartilage damage.
28 b. Bone or skull fractures.
29 c. Brain or spinal cord damage.
30 d. Intracranial hemorrhage or injury to other internal
31 organs.
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1 e. Asphyxiation, suffocation, or drowning.
2 f. Injury resulting from the use of a deadly weapon.
3 g. Burns or scalding.
4 h. Cuts, lacerations, punctures, or bites.
5 i. Permanent or temporary disfigurement.
6 j. Permanent or temporary loss or impairment of a body
7 part or function.
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9 As used in this subparagraph, the term "willful" refers to the
10 intent to perform an action, not to the intent to achieve a
11 result or to cause an injury.
12 2. Purposely giving a child poison, alcohol, drugs, or
13 other substances that substantially affect the child's
14 behavior, motor coordination, or judgment or that result in
15 sickness or internal injury. For the purposes of this
16 subparagraph, the term "drugs" means prescription drugs not
17 prescribed for the child or not administered as prescribed,
18 and controlled substances as outlined in Schedule I or
19 Schedule II of s. 893.03.
20 3. Leaving a child without adult supervision or
21 arrangement appropriate for the child's age or mental or
22 physical condition, so that the child is unable to care for
23 the child's own needs or another's basic needs or is unable to
24 exercise good judgment in responding to any kind of physical
25 or emotional crisis.
26 4. Inappropriate or excessively harsh disciplinary
27 action that is likely to result in physical injury, mental
28 injury as defined in this section, or emotional injury. The
29 significance of any injury must be evaluated in light of the
30 following factors: the age of the child; any prior history of
31 injuries to the child; the location of the injury on the body
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1 of the child; the multiplicity of the injury; and the type of
2 trauma inflicted. Corporal discipline may be considered
3 excessive or abusive when it results in any of the following
4 or other similar injuries:
5 a. Sprains, dislocations, or cartilage damage.
6 b. Bone or skull fractures.
7 c. Brain or spinal cord damage.
8 d. Intracranial hemorrhage or injury to other internal
9 organs.
10 e. Asphyxiation, suffocation, or drowning.
11 f. Injury resulting from the use of a deadly weapon.
12 g. Burns or scalding.
13 h. Cuts, lacerations, punctures, or bites.
14 i. Permanent or temporary disfigurement.
15 j. Permanent or temporary loss or impairment of a body
16 part or function.
17 k. Significant bruises or welts.
18 (b) Commits, or allows to be committed, sexual
19 battery, as defined in chapter 794, or lewd or lascivious
20 acts, as defined in chapter 800, against the child.
21 (c) Allows, encourages, or forces the sexual
22 exploitation of a child, which includes allowing, encouraging,
23 or forcing a child to:
24 1. Solicit for or engage in prostitution; or
25 2. Engage in a sexual performance, as defined by
26 chapter 827.
27 (d) Exploits a child, or allows a child to be
28 exploited, as provided in s. 450.151.
29 (e) Abandons the child. Within the context of the
30 definition of "harm," the term "abandons the child" means that
31 the parent or legal custodian of a child or, in the absence of
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1 a parent or legal custodian, the person responsible for the
2 child's welfare, while being able, makes no provision for the
3 child's support and makes no effort to communicate with the
4 child, which situation is sufficient to evince a willful
5 rejection of parental obligation. If the efforts of such a
6 parent or legal custodian or person primarily responsible for
7 the child's welfare to support and communicate with the child
8 are only marginal efforts that do not evince a settled purpose
9 to assume all parental duties, the child may be determined to
10 have been abandoned. The term "abandoned" does not include an
11 abandoned newborn infant as described in s. 383.50.
12 (f) Neglects the child. Within the context of the
13 definition of "harm," the term "neglects the child" means that
14 the parent or other person responsible for the child's welfare
15 fails to supply the child with adequate food, clothing,
16 shelter, or health care, although financially able to do so or
17 although offered financial or other means to do so. However,
18 a parent or legal custodian who, by reason of the legitimate
19 practice of religious beliefs, does not provide specified
20 medical treatment for a child may not be considered abusive or
21 neglectful for that reason alone, but such an exception does
22 not:
23 1. Eliminate the requirement that such a case be
24 reported to the department;
25 2. Prevent the department from investigating such a
26 case; or
27 3. Preclude a court from ordering, when the health of
28 the child requires it, the provision of medical services by a
29 physician, as defined in this section, or treatment by a duly
30 accredited practitioner who relies solely on spiritual means
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1 for healing in accordance with the tenets and practices of a
2 well-recognized church or religious organization.
3 (g) Exposes a child to a controlled substance or
4 alcohol. Exposure to a controlled substance or alcohol is
5 established by:
6 1. Use by the mother of a controlled substance or
7 alcohol during pregnancy when the child, at birth, is
8 demonstrably adversely affected by such usage; or
9 2. Continued chronic and severe use of a controlled
10 substance or alcohol by a parent when the child is
11 demonstrably adversely affected by such usage.
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13 As used in this paragraph, the term "controlled substance"
14 means prescription drugs not prescribed for the parent or not
15 administered as prescribed and controlled substances as
16 outlined in Schedule I or Schedule II of s. 893.03.
17 (h) Uses mechanical devices, unreasonable restraints,
18 or extended periods of isolation to control a child.
19 (i) Engages in violent behavior that demonstrates a
20 wanton disregard for the presence of a child and could
21 reasonably result in serious injury to the child.
22 (j) Negligently fails to protect a child in his or her
23 care from inflicted physical, mental, or sexual injury caused
24 by the acts of another.
25 (k) Has allowed a child's sibling to die as a result
26 of abuse, abandonment, or neglect.
27 (l) Makes the child unavailable for the purpose of
28 impeding or avoiding a protective investigation unless the
29 court determines that the parent, legal custodian, or
30 caregiver was fleeing from a situation involving domestic
31 violence.
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1 Section 3. Present paragraphs (f) and (g) of
2 subsection (2) of section 39.201, Florida Statutes, are
3 redesignated as paragraphs (g) and (h), respectively, and a
4 new paragraph (f) is added to that subsection to read:
5 39.201 Mandatory reports of child abuse, abandonment,
6 or neglect; mandatory reports of death; central abuse
7 hotline.--
8 (2)
9 (f) Reports involving abandoned newborn infants as
10 described in s. 383.50 shall be made and received by the
11 department.
12 1. If the report is of an abandoned newborn infant as
13 described in s. 383.50 and there is no indication of abuse,
14 neglect, or abandonment of the infant other than that
15 necessarily entailed in the infant having been left at a fire
16 station or hospital, the department shall provide to the
17 caller the name of a licensed child-placing agency on a
18 rotating basis from a list of licensed child-placing agencies
19 eligible and required to accept physical custody of and to
20 place newborn infants left at a hospital or a fire station.
21 The report shall not be considered a report of abuse, neglect,
22 or abandonment solely because the infant has been left at a
23 hospital pursuant to s. 383.50.
24 2. If the caller reports indications of abuse or
25 neglect beyond that necessarily entailed in the infant having
26 been left at a fire station or hospital, the report shall be
27 considered as a report of abuse, neglect, or abandonment and
28 shall be subject to the requirements of s. 39.395 and all
29 other relevant provisions of this chapter, notwithstanding any
30 provisions of chapter 383.
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1 Section 4. Paragraph (f) is added to subsection (2) of
2 section 63.167, Florida Statutes, to read:
3 63.167 State adoption information center.--
4 (2) The functions of the state adoption information
5 center shall include:
6 (f) Maintaining a list of licensed child-placing
7 agencies eligible and willing to take custody of and place
8 newborn infants left at a hospital, pursuant to s. 383.50. The
9 names and contact information for the licensed child-placing
10 agencies on the list shall be provided on a rotating basis to
11 the statewide central abuse hotline.
12 Section 5. Section 63.0423, Florida Statutes, is
13 created to read:
14 63.0423 Procedures with respect to abandoned
15 newborns.--
16 (1) A licensed child-placing agency that takes
17 physical custody of a newborn infant left at a hospital or a
18 fire station pursuant to s. 383.50, shall assume
19 responsibility for all medical costs and all other costs
20 associated with the emergency services and care of the newborn
21 infant from the time the licensed child-placing agency takes
22 physical custody of the newborn infant.
23 (2) The licensed child-placing agency shall
24 immediately seek an order from the circuit court for emergency
25 custody of the newborn infant. The emergency custody order
26 shall remain in effect until the court orders preliminary
27 approval of placement of the newborn infant in the prospective
28 home, at which time the prospective adoptive parents become
29 guardians pending termination of parental rights and
30 finalization of adoption or until the court orders otherwise.
31 The licensed child-placing agency may seek to temporarily
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1 place the newborn infant in a prospective adoptive home as
2 soon as possible.
3 (3) The licensed child-placing agency that takes
4 physical custody of the newborn infant shall immediately
5 request assistance from law enforcement officials to
6 investigate and determine, through the Missing Children
7 Information Clearinghouse, the National Center for Missing and
8 Exploited Children, and any other national and state
9 resources, whether or not the newborn infant is a missing
10 child.
11 (4) Within 7 days after accepting physical custody of
12 the newborn infant, the licensed child-placing agency shall
13 initiate a diligent search to notify and to obtain consent
14 from a parent whose identity or location is unknown, other
15 than the parent who has left a newborn infant at a fire
16 station or a hospital in accordance with s. 383.50. The
17 diligent search must include, at a minimum, inquiries of all
18 known relatives of the parent, inquiries of all offices or
19 program areas of the department likely to have information
20 about the parent, inquiries of other state and federal
21 agencies likely to have information about the parent,
22 inquiries of appropriate utility and postal providers and
23 inquiries of appropriate law enforcement agencies.
24 Constructive notice must also be provided pursuant to chapter
25 49 in the county where the newborn infant was left and in the
26 county where the petition to terminate parental rights will be
27 filed. The constructive notice must include at a minimum,
28 available identifying information, and information on whom a
29 parent must contact in order to assert a claim of parental
30 rights of the newborn infant and how to assert that claim. If
31 a parent is identified and located, notice of the adjudicatory
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1 hearing shall be provided. If a parent can not be identified
2 or located subsequent to the diligent search and constructive
3 notice, the licensed child-placing agency shall file an
4 affidavit of diligent search at the same time that the
5 petition to terminate parental rights is filed.
6 (5) A petition for termination of parental rights
7 under this section may not be filed until 30 days after the
8 date the newborn infant was left in accordance with s. 383.50.
9 A petition for termination of parental rights may not be
10 granted until consent to adoption or an affidavit of
11 nonpaternity has been executed by a parent of the newborn
12 infant as set forth in s. 63.062, a parent has failed to
13 reclaim or claim the newborn infant within the specified time
14 period, or the consent of a parent is otherwise waived by the
15 court.
16 (6) A claim of parental rights of the newborn infant
17 must be made to the entity having physical or legal custody of
18 the newborn infant or to the circuit court before whom
19 proceedings involving the newborn infant are pending. A claim
20 of parental rights of the newborn infant may not be made after
21 the judgment to terminate parental rights is entered, except
22 as otherwise provided by subsection (10).
23 (7) If a claim of parental rights of a newborn infant
24 is made before the judgement to terminate parental rights is
25 entered, the circuit court shall hold the action for
26 termination of parental rights pending subsequent adoption in
27 abeyance for a period of time not to exceed 60 days.
28 (a) The court shall order scientific testing to
29 determine maternity or paternity at the expense of the parent
30 claiming parental rights unless maternity or paternity has
31 been previously established legally or by scientific testing.
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1 (b) The court may appoint a guardian ad litem for the
2 newborn infant and order whatever investigation, home
3 evaluation and psychological evaluation are necessary to
4 determine what is in the best interest of the newborn infant.
5 (c) The court may not terminate parental rights solely
6 on the basis that the parent left a newborn infant at a
7 hospital or fire station in accordance with s. 383.50.
8 (d) The court shall enter a judgment with written
9 findings of fact and conclusions of law.
10 (8) Within 24 hours after filing the judgment, the
11 clerk of the court shall mail a copy of the judgment to the
12 department, the petitioner, and the persons whose consent were
13 required, if known. The clerk shall execute a certificate of
14 each mailing.
15 (9)(a) A judgment terminating parental rights pending
16 adoption is voidable, and any later judgment of adoption of
17 that minor is voidable, if, upon the motion of a parent, the
18 court finds that a person knowingly gave false information
19 that prevented the parent from timely making known his or her
20 desire to assume parental responsibilities toward the minor or
21 from exercising his or her parental rights. A motion under
22 this subsection must be filed with the court originally
23 entering the judgment. The motion must be filed within a
24 reasonable time, but not later than 2 years after the entry of
25 the judgment terminating parental rights.
26 (b) No later than 30 days after the filing of a motion
27 under this subsection, the court must conduct a preliminary
28 hearing to determine what contact, if any, will be permitted
29 between a parent and the child pending resolution of the
30 motion. Such contact may be allowed only if it is requested by
31 a parent who has appeared at the hearing. If the court orders
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1 contact between a parent and child, the order must be issued
2 in writing as expeditiously as possible and must state with
3 specificity any provisions regarding contact with persons
4 other than those with whom the child resides.
5 (c) At the preliminary hearing the court, upon the
6 motion of any party or upon its own motion, may order
7 scientific testing to determine the paternity or maternity of
8 the minor if the person seeking to set aside the judgment is
9 alleging to be the child's parent and that fact has not
10 previously been determined by legal proceedings or scientific
11 testing. The court may order supervised visitation with a
12 person for whom scientific testing for paternity or maternity
13 has been ordered. Such visitation shall be conditioned upon
14 the filing of test results with the court and those results
15 establishing that person's paternity or maternity of the
16 minor.
17 (d) No later than 45 days after the preliminary
18 hearing, the court must conduct a final hearing on the motion
19 to set aside the judgment and enter its written order as
20 expeditiously as possible thereafter.
21 (10) Except to the extent expressly provided in this
22 section, proceedings initiated by a licensed child-placing
23 agency for the termination of parental rights and subsequent
24 adoption of a newborn left at a hospital or a fire station in
25 accordance with s. 383.50 shall be conducted pursuant to
26 chapter 63.
27 Section 6. Section 63.182, Florida Statutes, is
28 amended to read:
29 (Substantial rewording of section. See
30 s. 63.182, F.S., for present text.)
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1 63.182 Statute of repose.--Notwithstanding s. 95.031
2 or s. 95.11 or any other statute:
3 (1) An action or proceeding of any kind to vacate, set
4 aside, or otherwise nullify a judgment of adoption or an
5 underlying judgment terminating parental rights on any ground,
6 including duress but excluding fraud, shall in no event be
7 filed more than 1 year after entry of the judgment terminating
8 parental rights.
9 (2) An action or proceeding of any kind to vacate, set
10 aside, or otherwise nullify a judgment of adoption or an
11 underlying judgment terminating parental rights on grounds of
12 fraud shall in no event be filed more than 2 years after entry
13 of the judgment terminating parental rights.
14 Section 7. Department; duties with respect to
15 abandoned newborns.--The Department of Health in conjunction
16 with the Department of Children and Families shall produce a
17 media campaign to promote safe placement alternatives for
18 newborn infants, to inform the public concerning the
19 confidentiality and limited immunity from criminal prosecution
20 offered to a parent who leaves a newborn infant at a hospital
21 or a fire station under section 383.50, Florida Statutes, and
22 the rights of parents to reclaim or claim their newborn infant
23 within specified time periods, and to publicize adoption
24 procedures.
25 Section 8. Section 827.035, Florida Statutes, is
26 created to read:
27 827.035 Affirmative defense.--It is an affirmative
28 defense to any prosecution under this chapter that the parent
29 of a newborn infant placed or arranged for placement of the
30 infant with any hospital or fire station in accordance with s.
31 383.50. A criminal investigation shall not be initiated solely
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1 because a newborn infant is left at a hospital or at a fire
2 station under s. 383.50 unless there is actual or suspected
3 child abuse.
4 Section 9. This act shall take effect July 1, 2000.
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